Our monthly children’s rights legal digest

Article 39’s monthly legal digest shares legal and human rights developments and highlights cases and judgments that we believe can help those on the frontline defend the rights of children and young people even more effectively.  

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September 2021

In this issue, we focus on a decision of the Local Government and Social Care Ombudsman (LGSCO) concerning multiple failings by a council in its care of a looked after child, called ‘D’ in this decision. Because of the failings, D lost a total of 17 months of suitable education, he lost the opportunity to achieve GCSEs, his relationship with his family was damaged and his mental health deteriorated significantly. This important decision is a reminder of not only the statutory duties of local authorities, including the duty to promote and support the educational achievement of looked after and formerly looked after children, but also of the paramount importance of listening to children and young people and taking seriously their views and wishes. Additionally, the LGSCO noted that outsourcing children’s services does not absolve local authorities of their legal responsibility for the quality of such services and any failings.

August 2021

Previous issues

August 2021

In late July, the Supreme Court ruled on the use of the inherent jurisdiction to authorise a local authority to deprive a child of their liberty in accommodation that has not been approved for this purpose. The background is a severe shortage of secure children’s homes for looked after children who need highly specialised care. The case was brought by T, a young woman whose deprivation of liberty in unregistered and unregulated accommodation had been authorised by the court when she was a child. She appealed the earlier decision of the Court of Appeal and questioned such use of court powers. The Supreme Court dismissed T’s appeal, ruling that the use of inherent jurisdiction in such situations is both lawful and necessary.

July 2021

In this issue, we examine an important, recent decision of the Local Government and Social Care Ombudsman (LGSCO) concerning a council not fulfilling its legal obligations as a corporate parent and its handling of a statutory complaint about the failings. Noteworthy aspects of the LGSCO’s decision include its consideration of the complaint despite the statutory process not being completed, the LGSCO’s conclusion that the financial remedy offered by the council to the young woman who made the complaint did not reflect the injustice caused to her, and an explicit consideration of the young woman’s human rights protected by the European Convention on Human Rights.

June 2021

The High Court judgment we focus on this month examines the scope of the powers local authorities have with respect to children who are looked after under a care order. Importantly, as the two cases jointly heard by the High Court considered local authorities’ duties in the context of the European Union Settlement Scheme (EUSS), the judgment also deals with the operation of the EUSS with respect to looked after children and care leavers, including those who are not subject to a care order.

May 2021

In this issue we take a closer look at a recent decision of the Local Government and Social Care Ombudsman (LGSCO) concerning a council’s handling of a statutory complaint made by B, a care leaver, about failure to support him. We use the LGSCO’s decision to highlight the rights and entitlements of care experienced children and young people under the Children Act 1989 representations (including complaints) procedure.  

April 2021

This year we are dedicating four issues of our children’s rights legal digest to landmark judgments that have strengthened the protection of children’s rights in England. This legal digest looks at a Supreme Court judgment – D (A Child) – that forms a key part of the legal framework for determining whether deprivation of a child’s liberty has taken place and whether the appropriate safeguards are being followed. This judgment will be of relevance to all advocates, both those who support children living in institutional settings and those in other arrangements, for instance foster care, as it is the types of restrictions, and not the type of setting, that determine whether a child is deprived of their liberty.

March 2021

Last month, the European Court of Human Rights found that the UK had breached Articles 4 (prohibition of forced labour) and 6(1) (right to a fair trial) of the European Convention on Human Rights when it prosecuted and convicted two Vietnamese nationals who had been trafficked into in the UK. Both were children, aged 15 and 17, when they were found by the police on cannabis farms. Rather than be referred for an assessment by designated authorities as potential victims of trafficking, both were charged, convicted and given custodial sentences. Their convictions were later upheld by the Court of Appeal. We examine the case, the actions of UK authorities and the breaches identified by the European Court of Human Rights. We also remind advocates about the importance of the European Convention on Human Rights in defending the rights of children.  

February 2021

In this issue, we focus on a recent decision by the Local Government and Social Care Ombudsman relating to a local authority’s failure to support a child in need upon his release from custody. We use the LGSCO’s decision as an illustration and a reminder of local authorities’ duties towards children in need, as set out in the Children Act 1989, highlighting the potential consequences and harmful impact on children and young people of late or incomplete assessments of need.  

January 2021

In 2021 we will dedicate four issues of our children’s rights legal digest to landmark judgments that have strengthened the protection of children’s rights in England. In this issue, we look at ‘the Southwark judgment’ – a landmark case in which the House of Lords clarified and reaffirmed local authority duties towards homeless 16 and 17-year-olds. We look at the criteria that determine whether a duty under Section 20 of the Children Act 1989 arises and the implications of children not being accommodated under Section 20. We also examine the relevant statutory guidance which further stresses the rights and entitlements of this group of children.

December 2020

We dedicate the last 2020 issue of our children’s rights legal digest to our own case which reached the Court of Appeal in September – Article 39 v. Secretary of State for Education. The Court of Appeal found the Secretary of State for Education to have acted unlawfully in removing safeguards for children in care by failing to consult the Children’s Commissioner and other bodies representing the rights of children in care before introducing the Adoption and Children (Coronavirus) (Amendment) Regulations 2020 (known as Statutory Instrument 445). 

November 2020

In late October, a High Court judge granted permission for judicial review concerning the duties of local authorities towards unaccompanied children who are awaiting an age assessment. While the case won’t be heard until January 2021, this legal digest highlights the issues it raises around local authority duties towards unaccompanied children whose ages are in dispute. It looks at a similar case from 2017 which confirmed that local authorities should follow statutory guidance and accommodate a young person whose age is in doubt as a child until the outcome of an age assessment.

October 2020

This month we take a closer look at the needs of children and young people in care in connection with their immigration status or nationality. It is estimated that there are over 200,000 undocumented children in the UK – children living without ‘leave’ (permission) to remain, many of whom were born here – and over 3,000 undocumented children who are looked after by local authorities in England. Being born in the UK does not make you automatically British. However, many professionals working with looked after children may assume that, because they may have lived in the UK or been in care for a long time, they must be legally entitled to stay here and local authorities may need to take action to identify and support children with unresolved immigration issues.

September 2020

This month we share some of the key takeaways from a recent significant Court of Appeal judgment which confirmed that the principles set out in the Children Act 1989 continue to apply and must inform decisions about contact between children in care and their families during the Covid-19 pandemic. We also reference a couple of previous cases that have centred on children and young people’s right to family life to illustrate the interconnectedness between legal entitlements set out in the Children Act 1989 and the human rights protected under the European Convention on Human Rights.    

August 2020

A number of recent court judgments have highlighted the severe lack of secure accommodation in England and the growing trend of depriving children of their liberty in unregulated and unregistered settingsWe covered one of these cases in the May issue of our legal digest. This month, we are looking at another such case and use it as an opportunity to explore the criteria that have to be met for a secure accommodation order (SAO) to be made. We also look at the use of inherent jurisdiction in deprivation of liberty applications.

July 2020

With the Local Government and Social Care Ombudsman (LGO) resuming its work following temporary suspension during the pandemic, we dedicate this issue to the role of the LGO. We look at three decisions reached in response to complaints relating to children’s social care services, highlighting the role of the LGO as “the final point in the statutory complaints process”.

June 2020

This issue examines the right to be protected from torture and inhuman or degrading treatment or punishment following a recent decision by the High Court which found the government’s ‘no recourse to public funds’ policy to be unlawful. We also look at the importance of intermediaries in supporting young people during criminal proceedings and ensuring their rights to participate effectively and receive a fair trial are effectively protected. 

May 2020

We look at the ‘public sector equality duty’ by referencing two recent cases where failure to adequately consider and monitor the impact of policies was challenges as discriminatory against people with protected characteristics. We also zoom in on a case which drew attention to the nationwide shortage of secure accommodation for children and young people.

April 2020

Focusing on the added vulnerability created by the Covid-19 pandemic for some groups of children and young people, we look at how the Human Rights Act 1998 and the Equality Act 2010 have been recently used to successfully challenge national level guidance. We also share a recent Court of Appeal judgment which found that children in foster care enjoy the same right to family life as children cared for by their birth families. 

March 2020

We dedicate this issue to the importance of international law in protecting human rights in the UK, looking at how ‘incorporation’ of international treaties makes them directly applicable here at home. We reference two examples of alleged breaches of human rights and how domestic and international mechanisms can be used to draw attention to suspected human rights violations.  

February 2020

This issue zooms in on two recent judgments highlighting the right to family life. The first case relates to two sisters separated during care proceedings and the failure of the local authority to ensure access to advocacy as a means of supporting the older sister to challenge the separation. The second case looks at the right to family and private life as enshrined in the European Convention on Human Rights.