Supreme Court rules local authorities can be held liable for failing to protect children from harm

In a much-awaited judgment handed down today (6 June), the Supreme Court has restored the right of children and young people to sue for negligence where a local authority has failed to protect them from harm. 

Article 39 and The Care Leavers’ Association jointly intervened in this landmark case, after a Court of Appeal decision in 2017 ruled against negligence liability in child protection because, among other things, this could lead to defensive decision-making by social workers. This blanket position has now been successfully overturned.

Today’s ruling clarifies that local authorities can be held to have a duty of care when they are carrying out their statutory child protection functions in respect of children for whom they have not previously accepted responsibility (by virtue of a care order for example). This has very important and welcome implications for children living in a variety of institutional settings and for care leavers.

Carolyne Willow, Article 39’s Director, said:

“We are incredibly relieved that the Supreme Court has reinstated the potential for children and young people to bring negligence claims against local authorities who have failed to protect them from harm. We are particularly concerned about the continuing scandals of mistreatment in child prisons and local authorities’ failures to take robust, protective action. Just this week inspectors have reported that children in Oakhill secure training centre and Feltham young offender institution have been inflicted with pain-inducing restraint techniques which the Independent Inquiry into Child Sexual Abuse has condemned as a form of child abuse.” 

David Graham, National Director of The Care Leavers’ Association, said:

“A court ruling that a local authority had a duty of care and acted negligently can give care leavers a real sense of justice and vindication, as well as financial compensation for harm that should never have happened. We hope the courts will now quickly deal with the backlog of cases from adults who were failed as children.”

Prior to the Court of Appeal decision in December 2017, local authorities had been held to have a duty of care in respect of their child protection functions (with liability to be decided by the facts of each case) since July 2003 following appeals brought by three separate families

Both of our charities are sorry that the claimants in this particular case were not successful in their negligence claim. Two young boys, one described as “severely disabled”, and their mother were subject to sustained and serious harassment from neighbours. They had been placed in their accommodation by Poole Council. One of the boys was the subject of a child protection plan. The family’s legal challenge was initially focused on the failings of the housing authority rather than children’s social care but it was the latter claim which progressed to the Supreme Court. 

Article 39 and The Care Leavers’ Association were represented by Oliver Studdert and Peter Garsden from Simpson Millar Solicitors and Aswini Weereratne QC, Caoilfhionn Gallagher QC and Nicholas Brown from Doughty Street Chambers.

Poole Borough Council (Respondent) v GN (through his litigation friend “The Official Solicitor”) and another (Appellants)

Children in care in “other arrangements”

Newsnight programme, 20 May 2019

Serious concerns about children in care living in unsafe and unsuitable accommodation are growing after BBC Newsnight recently reported over 5,000 teenagers are living in unregulated accommodation – up 70% from a decade ago.

Several police forces were cited in the programme as having provided alarming evidence to a parliamentary group – of children in care being abused, exploited and criminalised through lack of effective care and safeguarding.

A statement from the Association of Directors of Children’s Services concluded:

We recognise the role unregulated provision can play within the care placement market and the flexibility it offers when linked to a clear plan based on the needs of a young person and a clear support plan. There is a distinction to be made between using it as part of a considered move compared with using it to deal with a crisis when no other accommodation is available. Total regulation would limit this flexibility so we are keen to see all providers take their responsibilities seriously and welcome increased expectations around standards and transparency as to how those will be delivered.

Care paradox

Having reviewed the legal framework surrounding unregulated accommodation, Article 39’s Director, Carolyne Willow, said:

Here we have a care paradox, whereby children are legally in the care of the state but placed by social workers in accommodation operating outside the law.

The contorted legal arrangements for placing children in unregulated accommodation show successive governments are aware of the risks and the dangers.

Teenagers’ growing independence is not a legitimate reason for relaxing safeguards. If a child is in care, they must be properly cared for – in settings which are registered, inspected and meet minimum standards. Children’s homes regulations include a particular requirement to prepare children for adult life – so it cannot be said that they are not intended to care for older teenagers. Indeed, the Children Act permits local authorities to place a child in a children’s home between the ages of 16 and 21 years.

Councils are at breaking point with lack of resources but these are children for whom councils are legally serving the function of parents and families. It can never be right for a child in the care of the state to be placed in a setting where they are abused and exploited, or in which they simply cannot possibly feel loved or looked after.

We support wider calls for a comprehensive review of the care system, conducted with care experienced people of all ages, to eliminate this and other practices which clearly work against what’s best for children. Meanwhile, intervention by independent reviewing officers will be essential for children not in safe or suitable accommodation today.”

Council legal duties

Councils are under a duty to provide accommodation to children in their care (Section 22A of the Children Act 1989).

Unless this would not be consistent with the child’s welfare, or it is not reasonably practicable, the Children Act requires that children in care are supported to live with a parent, a person with parental responsibility or a carer with whom a family court formerly said the child should live (through making a ‘residence order’).

When the above arrangements are not possible, local authorities must place a child in “the most appropriate placement available” from the following options:

– A relative, friend or other person who is a local authority foster parent
– A local authority foster parent who doesn’t fall into the above category
– A registered children’s home
– Other arrangements which comply with any regulations.

The Care Planning, Placement and Case Review (England) Regulations 2010 set out the factors (in Schedule 6 – below) to which councils are legally required to have regard in satisfying themselves that unregulated accommodation is “suitable”.

It is important to stress that other provisions in the Children Act apply, including the general duty to safeguard and promote the child’s welfare (Section 22(3)), and the duty to ascertain and give due consideration to the child’s wishes and feelings before making any decision with respect to them (Section 22(5).

Moreover, there must be a review of the child’s case before he or she is placed in “other arrangements” – unless the local authority considers it has to take this course of action to safeguard the child’s welfare as a matter of urgency (Section 22D). This means that the vast majority of decisions to use unregulated accommodation for children in care should be subject to independent scrutiny and challenge by an independent reviewing officer (IRO) – before the child is moved.

IROs and Cafcass – protecting children’s rights

IROs are empowered by Regulation 45(3) of the Care Planning Regulations to refer to Cafcass any cases where, in their opinion, a material breach of council duties has occurred.

Cafcass are, in turn, empowered to bring a Human Rights Act claim or initiate judicial review proceedings following a referral from an IRO (Regulation 3, The Children and Family Court Advisory and Support Service (Reviewed Case Referral) Regulations 2004). However, its Practice Note 2017 states IROs should not refer cases to it where a child has sufficient age and understanding and wishes to pursue legal action him or herself.

Freedom of Information Act request

Article 39 has today (29 May) submitted an FOI request to Cafcass to ascertain how well the IRO/Cafcass legal safety net is working for children. Once we obtain basic data, we will seek further information about the types of cases referred to the organisation by IROs, and what happens as a result.

Article 39’s preliminary FOI request to Cafcass, 29 May 2019

United call for the immediate closure of harmful child prisons and proposals for positive care

Child prisons are failing institutions causing devastating harm to vulnerable children and should be closed immediately. A coalition of organisations and independent experts is today (18 April) launching a completely different approach with the publication of a set of principles and minimum expectations for reducing the number of children locked up and making sure secure care is effective and safe.

The document provides a positive framework for addressing harmful behaviour and meeting children’s needs outside of prison. This requires skilled, multi-disciplinary teams working in small establishments close to children’s communities. Wherever possible, children should attend education and other facilities in their local area even when they are being looked after in a secure setting. Families and professionals who know children well should be fully involved in their care.

Drawing upon the best available national and international evidence, the document shows how to properly look after children while stopping their harmful behaviour. It comes two months after the country’s largest public inquiry found appalling mistreatment in child prisons.

Only children who present a serious risk to themselves or others should ever be deprived of their liberty, the coalition says. Deprivation of liberty should be for the shortest period of time, and punishment and deterrence must play no part in decision-making. The principles and minimum expectations also apply to children who may arrive in a secure setting through mental health or child welfare routes.

Carolyne Willow, Article 39 Director, said:

“The Government announced more than two years ago that it would phase out child prisons. Since then children have continued to suffer terribly in institutions which are incapable of meeting their needs and cyclically produce regimes of abuse, neglect and pervasive violence. It’s time for Ministers and opposition parties to treat this as an urgent matter of child protection and to commit to moving on from a penal system built in the Victorian age as an alternative to capital punishment and banishment to the colonies. No other area of policy concerned with children is so wedded to the distant past.”

Richard Garside, Director of the Centre for Crime and Justice Studies, said:

“Imprisonment of children is unethical, harmful and perpetuates a system that punishes some of the most vulnerable in our society.

“We need to work towards ending child imprisonment. Given that imprisonment is an ongoing lived reality for many hundreds of children, it is also vital that the government takes steps, in the here-and-now, to reduce the harms of imprisonment and ensure that imprisoned children are treated with compassion, dignity and respect.”

Frances Crook, Chief Executive, Howard League for Penal Reform, said:

“It is a stain on the very fabric of the nation that we send children into prisons. Prisons damage already damaged children. It is time to put children first and make sure that every single child is nurtured and supported to grow into a law-abiding citizen.”

Deborah Coles, Director of INQUEST, said:

“The deaths of children in prison are not a distant memory, but an unacceptable and recent reality. Deaths are the starkest demonstration of the damage caused by child imprisonment, and the culture of violence, use of force, self-harm, fear and neglect. Children need and deserve to be supported and nurtured. Child prisons must close. The focus of any government with children’s interests in mind must be investment in and expansion of community support services, not detention and criminal justice systems.”

Enver Solomon, CEO of Just for Kids Law, said:

“Child prisons are costly, failing institutions that are violent, unsafe and ineffective – sweeping vulnerable children and young people into a world of further crime from which it is impossible to escape.  We need to think again and create alternatives that guide children to safer more stable shores and improve public safety for us all.”

Ross Little, Chair of the National Association for Youth Justice, said:

“Prisons for children have been shown to be expensive ways of making vulnerability, disadvantage and harmful behaviour worse. It really is time for government to change its approach to how we deal with complex issues for some of the most challenged and challenging children in our society. We can do better than this.”

Pippa Goodfellow, Director of the Standing Committee for Youth Justice, said:

“This week is the anniversary of the horrific death of 15-year-old Gareth Myatt at Rainsbrook secure training centre. As we mark the loss of his young life fifteen years later, this should serve as a pressing reminder of the need to protect the hundreds of children locked up in child prisons today. In 2017 the Chief Inspector of Prisons warned that the state of youth custody was in crisis and so dangerous that tragedy was “inevitable”. Now is the time to take the necessary and urgent action to close these harmful and failing institutions.” 

Maggie Atkinson, Children’s Commissioner for England between 2010 and 2015, said:

“The incarceration of children and young people is at best unproductive and at worst qualifies as cruel and inhumane treatment. It often scars the children and young people involved still more deeply than whatever has happened to them that made them offend. 

“A modern society should seek to change the lives of children in conflict with the law robustly and with care. We have to reach a place where there is no need to lock them away, especially given our tendency to release them both unrehabilitated and more likely to reoffend. Finding the political and social will to do what’s right for children and wider society is an urgent necessity.”

Professor Barry Goldson, University of Liverpool and member of the United Nations Global Study on Children Deprived of Liberty Expert Advisory Board, said:

“The international evidence base is compelling. Child imprisonment is typically: dangerous and damaging for young prisoners; spectacularly ineffective in terms of obtaining crime reduction and community safety; often unnecessary; wasteful of public money and utterly inadequate. There is an urgent and pressing need to seek replacement strategies that meet children’s needs and serve the public interest to positive effect.”

Notes

1.    ‘Principles and minimum expectation for children deprived of their liberty’ is published by the End Child Imprisonment campaign steering group. It can be downloaded here.

2.    The End Child Imprisonment campaign was launched in November 2018. It is run by a campaign steering group of Article 39, Centre for Crime and Justice Studies, Howard League for Penal Reform, INQUEST, Just for Kids Law, the National Association for Youth Justice and the Standing Committee for Youth Justice, as well as leading experts in children’s rights, the care of children and juvenile justice, including former Children’s Commissioner for England Maggie Atkinson; Dr Tim Bateman, University of Bedfordshire; Professor Barry Goldson, University of Liverpool and member of the United Nations Global Study on Children Deprived of Liberty Expert Advisory Board; Dr Di Hart, Winston Churchill Memorial Trust Fellow (children’s secure care); Pam Hibbert OBE, youth justice specialist and a former manager of a secure children’s home; and Dr David Scott, Open University.  

3.    In February 2019, the Independent Inquiry into Child Sexual Abuse published its investigation into children’s custodial institutions. It found there had been 1,070 sexual abuse allegations between 2009 and 2017. This included 36 allegations of rape or attempted rape in young offender institutions and secure training centres over that period. Physical violence and children feeling unsafe in custody were commonplace, and appeared to be rising.

4.    Individuals and organisations can support the End Child Imprisonment campaign here.

5.    Fifteen years ago, Gareth Myatt, aged 15 and weighing just 6½ stone and less than five feet tall, was fatally restrained in Rainsbrook secure training centre. 34 children have died in young offender institutions and secure training centres since 1990, the year the UK signed up to the UN Convention on the Rights of the Child and pledged to use custody as a last resort and for the shortest period possible. The most recent child deaths in prison were Daniel Adewole (aged 16) and Alex Kelly (aged 15). Daniel was found unresponsive in his cell in Cookham Wood young offender institution following an epileptic fit in 2015. The prison had cancelled his paediatric neurology hospital appointment a few weeks before, because he and his parents knew the date – which was said to breach prison security rules. Alex Kelly was found hanging in his cell in Cookham Wood in 2012; he had been in care since the age of five and was known to be extremely vulnerable. The night Alex was found hanging he had told a prison officer about the sexual abuse he suffered as a very young child.

6.    In December 2016, Charlie Taylor’s review of the youth justice system in England and Wales was published. The Government’s response, published at the same time, said in respect of child prisons: “The Taylor Review proposes that YOIs and STCs should be replaced in the longer term by smaller secure schools situated in the regions that they serve. These should be set up, run, governed and inspected as schools, drawing on the expertise and experience of outstanding alternative provision schools (which provide education for children and young people who are unable to go to mainstream schools) and have greater freedoms for their head teachers to recruit staff and commission services… We agree with this vision…”. Charlie Taylor became Chair of the Youth Justice Board for England and Wales in March 2017.

End child imprisonment

A joint campaign to end child imprisonment – run by a steering group of Article 39, the Centre for Crime and Justice Studies, Howard League for Penal Reform, INQUEST, Just for Kids Law, the National Association for Youth Justice and the Standing Committee for Youth Justice with leading independent experts – launches a week of action today.

We begin with a new mini-documentary produced by The Open University and will launch a joint publication at the end of the week.

The week of action is timed to mark the 15th anniversary of the death of Gareth Myatt. It follows February’s report from the Independent Inquiry into Child Sexual Abuse. The inquiry’s Chair Alexis Jay said she is “deeply disturbed by the continuing problem of child sexual abuse in these institutions over the last decade. It is clear these children, who are some of the most vulnerable in society, are still at risk of sexual abuse.

Gareth Myatt loved riding his bike and watching South Park and the Simpsons. He was academically very able and his favourite game was chess.


Fifteen years ago, on 19 April 2004, Gareth Myatt was fatally restrained by three officers in Rainsbrook secure training centre in Northamptonshire. Gareth was aged 15; he weighed just 6½ stone and stood less than five feet tall.


GOVERNMENT WITHDRAWS ‘MYTH BUSTING’ DOCUMENT AFTER LEGAL CHALLENGE

The Department for Education has withdrawn a controversial document about council duties to vulnerable children and young people, after Article 39 launched an application for judicial review.

The so-called ‘myth busting’ guide advised local authorities that they are legally permitted to reduce and remove support from children in long-term foster care, children who run away or go missing from home or care, children who are remanded to custody and young people who have left care and are still living with their former foster carers. 

Children’s Minister Nadhim Zahawi claimed the document simply clarified council duties, but Article 39 and 49 other charities and social work experts warned last September it contained numerous inaccuracies and risked vulnerable children and care leavers losing vital support. 

After correspondence with the Minister failed to elicit any agreement to correct the errors, or even a meeting to discuss our collective concerns, Article 39 instructed lawyers to begin legal proceedings.

Carolyne Willow, Article 39’s Director, said:

“It’s deeply disappointing that the Children’s Minister didn’t respond to our serious concerns months ago but what matters is that the document has now been withdrawn and the risks to children and young people minimised. We are relieved and delighted that children’s rights have prevailed.

“There is of course the possibility that social workers and local authority managers have already used the guide and we hope that councils will quickly review and rectify any removal or reduction of support.”   

As well as deleting it from the children’s social care innovation programme’s website, the Department for Education has committed to notify local authorities and others that the document has been withdrawn. It has also confirmed that any plans to issue a similar document in the future will follow a consultation process that includes Article 39, relevant organisations and children and young people who may be directly affected.

Oliver Studdert, solicitor at Simpson Millar, representing Article 39, said:

“It is absolutely right that this guide has been withdrawn. It is unfortunate that it has taken the issuing of court proceedings to achieve this, but it is reassuring that the Secretary of State has now acknowledged the concerns of Article 39 and other charities and experts concerning the removal of vital statutory safeguards for vulnerable children and care leavers.”

Notes

1.       As a very small charity, Article 39 was only able to take legal action to protect the rights of vulnerable children through pledges of financial support from organisations and individuals, including the British Association of Social Workers, The Centre for Outcomes of Care, Cherry Cottage Ltd, MAC-UK, Napo (Family Court Section), National Association for Youth Justice, National Association of Independent Reviewing Officers, NSPCC and the Social Workers Union.

2.       The 50 organisations and social work experts who wrote to the Children’s Minister last September, urging him to withdraw the inaccurate parts of the document, were: The Aire Centre; Article 39; Association of Independent Visitors and Consultants to Child Care Services; Association of Lawyers for Children; Association of Professors of Social Work; Association of Youth Offending Team Managers; Become; British Association of Social Workers England; The Care Leavers’ Association; Children England; Child Rights International Network; Coram Children’s Legal Centre; Coram Voice; ECPAT UK; Family Action; The Fostering Network; Howard League for Penal Reform; Independent Children’s Homes Association; Just for Kids Law; The MAC Project (Central England Law Centre and the Astraea Project); Nagalro, Professional Association of Children’s Guardians, Family Court Advisers and Independent Social Workers; National Association for People Abused in Childhood (NAPAC); National Association for Youth Justice; National Association of Independent Reviewing Officers; National IRO Managers Partnership; NYAS (National Youth Advocacy Service); Parents Of Traumatised Adopted Teens Organisation (The Potato Group); Refugee Council; Social Workers Union; Social Workers Without Borders; Southwark Law Centre; UNISON; Dr Maggie Atkinson, Children’s Commissioner for England 2010-2015; Sir Al Aynsley-Green, first Children’s Commissioner for England 2005-10; Wendy Bannerman, Director of Right Resolution CIC; Jay Barlow, Napo National Vice-Chair; Liz Davies Emeritus Professor of Social Work, London Metropolitan University; Anna Gupta, Professor of Social Work, Royal Holloway University of London; Pam Hibbert OBE; Ray Jones, Emeritus Professor of Social Work, Kingston University and St George’s, University of London; John Kemmis, former Chief Executive Voice, NAIRO Patron and Article 39 Expert Panel member; Dr Mark Kerr, Managing Partner, The Centre for Outcomes of Care; Jenny Molloy, Author, Adviser and Trainer; David Palmer, Lecturer in Criminal Justice Services, University of Northampton; Peter Saunders, Founder NAPAC; Mike Stein, Emeritus Professor, University of York; June Thoburn CBE, Emeritus Professor of Social Work, University of East Anglia; Dr Nigel Thomas, Professor Emeritus of Childhood and Youth, University of Central Lancashire; Judith Timms OBE, Founder and Trustee of the National Youth Advocacy Service (NYAS) and a Vice President of the Family Mediators Association; and Jane Tunstill, Emeritus Professor of Social Work, Royal Holloway, London University.

3.       Article 39 is represented by Oliver Studdert, Partner in Public Law and Eleanor Gauld at Simpson Millar, and Steve Broach and Khatija Hafesji from Monckton Chambers.

4.       Our application was made to the High Court on 18 February 2019.