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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November 2023 – Special guardianship orders (Local Government Ombudsman decision)
In this issue we focus on a recent decision of the Local Government and Social Care Ombudsman which concerns multiple failings in the provision of information, support and advice to a family of two children and their special guardians. Following a review of the council’s 3-stage investigation, the Ombudsman made several recommendations for individual remedies and service improvement. This decision will be of interest to anyone wanting to learn more about the rights and entitlements of children and young people who are the subject of a special guardianship order, including financial support and eligibility for the Adoption Support Fund.
August 2021
Previous issues
In this issue we zoom in on a judicial review (March 2023) brough on behalf of DB (aged 14) and ZB (aged 12), a brother and sister who each have a wide range of impairments and health needs. Both children’s right to education under the European Convention on Human Rights was breached when, following a move to a new local authority area, they did not receive any meaningful education for over 16 months. The judgment contains a useful overview of the relevant case law as well as an analysis underlying the award of damages sought on behalf of the children.
September 2023 – Unaccompanied children in hotels (High Court judgment)
In this issue we zoom in on the breakthrough judgment concerning unaccompanied children being housed in hotels outside of local authority care. The judgment concerns three claims – one by ECPAT UK against Kent County Council and the Home Secretary, and two by Kent County Council and Brighton & Hove City Council respectively, each against the Home Secretary. The High Court found the Home Office practice of accommodating unaccompanied children in hotels to be routine and systematic, making it unlawful. The Kent Protocol, agreed between Kent County Council and the Home Secretary and capping the number of unaccompanied children who would be accepted into Kent’s care was also found unlawful, as was the Home Office’s operation of the National Transfer Scheme governing the transfer of responsibilities for unaccompanied children between local authorities.
In this issue we focus on a recent decision of the Local Government and Social Care Ombudsman which highlights the potential harm and distress caused by the mishandling by local authorities of Children Act 1989 complaints. The decision provides a useful illustration of the range of individual and systemic remedies that can be recommended by both those investigating Children Act 1989 complaints at the local authority level and the Ombudsman. The decision also serves as a vital reminder of the importance of respect for the rights and dignity of children, young people and adults who have experienced injustice because of local authority failings.
July 2023 – Effect of a care order and child’s religious upbringing (High Court judgment)
In this issue we examine a 2010 High Court judgment which clarified the statutory duty to sustain the religious persuasion of children who become looked after, and the responsibilities of local authorities towards them and their families. The High Court considered children’s developing maturity and autonomy alongside the need to ensure looked after children are supported to understand and appreciate their religious heritage and background. The judgment also contains an analysis of relevant duties under the European Convention on Human Rights.
In this issue we revisit the seminal 2012 High Court judgment concerning A and S – two brothers whose human rights were gravely violated while they were in local authority care. The High Court found that because of numerous, protracted failings by the local authority, as well as repeated failure by the boys’ independent reviewing officer (IRO) to act on concerns and hold the local authority to account, A and S suffered “irreparable harm” with lifelong consequences. Still today, the judgment shines a light on the vital importance of listening to children and young people and ensuring rigorous, independent scrutiny over the actions of individuals and organisations responsible for looked after children.
May 2023 – Duty to co-operate (children and families in need) (High Court judgment)
In this issue we zoom in on a 2018 judicial review in which the High Court found a local authority had failed to safeguard and promote the welfare of children in need, breaching statutory duties under the Children Act 1989 and Children Act 2004. In the same judgment, the High Court concluded a local housing authority had failed to discharge its duty to co-operate with another authority, as required by section 27 of the Children Act 1989. The judgment contains a useful analysis of relevant legislation, including its interpretation by UK courts, and will be of value to anyone supporting children and families in need.
In this issue we examine a crucial 2018 decision of the Upper Tribunal which concerned an 11 year-old boy who has autism whose parents appealed against his fixed period exclusion from school for what the school described as ‘aggressive behaviour’. The Upper Tribunal found that, in the context of education, the Equality Act 2010 (Disability) Regulations 2010, which remove Equality Act 2010 protections from disabled people who have ‘a tendency to physical abuse’, are incompatible with the European Convention on Human Rights. This decision will be important for anyone advocating on behalf of disabled children whose behaviour within an education setting is judged to be abusive, and they are facing exclusion and/or other sanctions.
This month, we take a closer look at a January 2023 decision of the Local Government and Social Care Ombudsman in which a local authority was found at fault for not following statutory guidance when supporting a boy unable to attend school because of health needs. This caused him to miss out on suitable education for several months. We take this opportunity to examine the relevant statutory guidance more closely, setting out what is expected of local authorities when supporting individual children, as well as developing relevant local policies.
February 2023 – Restrictions on the use of mobile phone (looked after child) (High Court judgment)
In January 2023, considering the situation of a highly vulnerable 16 year-old girl, the High Court refused to use its inherent jurisdiction to sanction broad-ranging restrictions on the girl’s use of her mobile phone, tablet, laptop and her access to social media. The restrictions were being proposed by the local authority looking after the girl as part of a deprivation of liberty regime designed to keep her safe from harm. Reflecting on the meaning and scope of ‘liberty’ within Article 5 of the European Convention on Human Rights, and reminding the local authority about the girl’s right to respect for private and family life under the Convention, the High Court found the powers under section 33 of the Children Act 1989 to be sufficient and appropriate to regulate the child’s phone and online activity when needed to keep her safe.
January 2023 – Use of section 20 (Court of Appeal judgment)
Earlier this month, the Court of Appeal reached an important decision which clarified the use of section 20 of the Children Act 1989 as a long-term care solution in circumstances where there is ‘full collaboration’ between the parent/s and the local authority, and where the child’s needs clearly require this. Reflecting on the interplay between voluntary accommodation under section 20 and the local authority assuming parental responsibility of a child under section 31 (through the family court making a care order), including by reference to crucial case law, the judgment will be of relevance to anyone supporting children in need and children in care.
December 2022 – Local authorities’ duties towards care leavers (education) (High Court judgment)
In this issue we revisit a 2013 High Court judgment which confirmed that the payment of tuition fees falls within the ambit of sections 23C and 24B of the Children Act 1989 and should be treated as ‘expenses connected with education’. The judgment clarified that financial assistance connected to a care leaver’s education is a statutory duty of local authorities as corporate parents (to the extent that the young person’s welfare and educational or training needs require it), and that assessment of care leavers’ educational needs should be contextual and based on individual circumstances.
November 2022 – Deprivation of liberty (High Court judgment)
In this issue, we share an October 2022 judgment in which the inherent jurisdiction of the High Court was used to authorise the deprivation of liberty of a 13 year-old child for the eighth time, after continued deprivation of her liberty in a hospital due to a lack of suitable, secure accommodation. The judgment contains important remarks about the potential harms to children who are effectively living in hospital settings. It will also be of relevance and interest to those wishing to deepen their knowledge on deprivation of liberty, including the use of restraint.
October 2022: Local authorities’ power to exercise parental responsibility for children in care
This month, following a seven-year inquiry and the publication of 19 individual investigation reports, the Independent Inquiry into Child Sexual Abuse (IICSA) published its concluding report. Drawing on evidence from over 7,000 victims and survivors, this final report makes 20 recommendations to ensure children are better protected from child sexual abuse. In this issue, we focus on one of the concluding recommendations – recommendation 6. Addressed to the UK Government and proposing an amendment to the Children Act 1989, recommendation 6 is designed to enable children in care to apply to court to restrict local authorities’ power to exercise their parental responsibility in respect of individual looked after children. We examine this recommendation and take this opportunity to set out the current legal framework.
September 2022: Access to care files (LGO decision)
A recent (June 2022) decision of the Local Government and Social Care Ombudsman shines a spotlight on the significant barriers care experienced people can face when requesting access to their care files. We briefly examine this decision, in which a local authority took more than two years to respond to such a request, before considering relevant legislation and national guidance. We hope the overview of the law we share in this issue will assist those advocating on behalf of care experienced people to challenge delays and, where possible, seek remedies.
August 2022: Child’s wishes and feelings, and the right to family life (care proceedings)
In this issue, we focus on a recent High Court judgment in which the wishes of a ‘Gillick competent’ 12 year-old girl to be removed from foster care and returned home to her mother’s care were granted by the court. The girl had been subjected to “draconian restrictions” on her family and social life after an interim care plan prevented her from any contact with her mother, and severely restricted her contact with her sister and peers. The restrictions, justified by the local authority as necessary due to the risk of emotional harm presented by the girl’s mother, were found by the court to have “severely interfered” with her rights under the European Convention on Human Rights.
July 2022: Savings for children in care (LGO decision)
In April 2022, the Local Government and Social Care Ombudsman published a decision about a council’s failings connected to payment of savings to two children who were previously in care. The complaint, made by a foster carer on behalf of two children she was looking after, was upheld. While the Ombudsman’s decision centred on the injustice caused to the children and their foster carer through significant delays and other administrative failings, we take this opportunity to set out the relevant law and government guidance to assist those advocating on behalf of care experienced children and young people. We know through our work with advocates and children’s rights officers that access to savings is one of the issues children and young people seek help with.
June 2022: Education health and care plans – statutory timescales (High Court judgment)
According to government data, there were 473,255 children in England with education health and care (EHC) plans in January 2022, representing an increase of 9.9% on the previous year and continuing a trend of year-on-year increase since 2010. Complaints about local authority education and children’s services, many of them concerning EHC plan delays and other service failures, dominate Local Government and Social Care Ombudsman’s casework, with 77% of complaints upheld in 2020-2021. We dedicate this issue to an important High Court judgment (March 2022) which clarified the statutory timescales for notifying children, young people and their families of the proposed changes to an EHC plan following an annual review.
May 2022: Special and alternative educational provision (High Court judgment)
This month, we focus on a recent judgment which found a local authority had failed to meet its statutory duties under the Education Act 1996, the Children and Families Act 2014 and the Children Act 1989. After identifying “serious and substantial breaches of duties” that left a 15 year-old child with complex needs without suitable accommodation, education and support, the High Court judge concluded that an order was necessary to ensure compliance with the duties imposed by Parliament. The judgment contains a clear and useful analysis of the law, including relevant case law, and it will be of interest and relevance to all those supporting children and young people of compulsory education age who require special educational arrangements because of illness, exclusion or another reason.
April 2022: ‘Other arrangements’ (unregulated accommodation) for children in care (Article 39 judicial review)
This month, we examine the unsuccessful judicial review brought by Article 39 against the Secretary of State for Education which relates to the changes introduced by The Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021. The 2021 Regulations amended The Care Planning, Placement and Case Review (England) Regulations 2010, making it unlawful for local authorities to place looked after children under the age of 16 in unregulated accommodation (often referred to as ‘independent’ or ‘semi-independent accommodation’ or ‘supported accommodation’) – through prescribing a list of permitted placements under ‘other arrangements’ in section 22C(6)(d) of the Children Act 1989. The effect of the 2021 Regulations is that looked after children aged 15 and under must always be placed by local authorities in settings which are regulated and where they receive care, whereas this same protection has not been granted to looked after children aged 16 and 17. Article 39 argued the decision not to extend the ban / legal protection to all looked after children in England was irrational, in breach of the public sector equality duty and based on a flawed public consultation.
March 2022: Education health and care plans – maximum duration (Upper Tribunal decision)
In this issue, we focus on a decision of the Upper Tribunal (August 2021) – responsible for dealing with appeals against decisions made by the First-tier Tribunal (Special Educational Needs and Disability) – which concerned local authorities’ power to maintain an Education Health and Care (EHC) plan after a young person’s 25th birthday. We take this opportunity to examine the rights of children and young people with special educational needs and disabilities that relate to EHC plans. We also summarise the statutory duties designed to make sure that children and young people with special educational needs and disabilities are heard, that their wishes and feelings are considered, and that they are enabled to actively participate when decisions are made about them and their lives.
February 2022: Section 20 duties – homeless children aged 16 and 17 (LGO decision)
In this issue, we take a closer look at a November 2021 decision of the Local Government and Social Care Ombudsman which found a local authority had failed to accommodate a child under Section 20 of the Children Act 1989, breaching statutory guidance and its own local guidance for social workers. The Ombudsman accepted the complained ‘early’ (after stage 2 of the Children Act 1989 procedure) and found the council had also failed to inform the child of her rights and did not listen to her concerns. Aside from agreeing several recommendations to remedy the injustice suffered by the child, the Ombudsman recommended the council review all homelessness applications received from 16 and 17-year-olds during a specified period and proactively make remedies where needed without waiting for a formal complaint.
January 2022: Vaccinations for children in care and parental consent (High Court judgment)
This month, we look at a recent High Court judgment which considered the scope of local authority powers in relation to arranging and consenting to COVID-19 and flu vaccinations for children in care whose parents oppose these vaccines. The judgment contains a useful analysis of Section 33 of the Children Act 1989 (effect of care order) and relevant case law and sets out the principles for decision-making not only in relation to the COVID-19 and flu vaccines but all routine vaccines available to children and young people. It also addresses the importance of considering children’s views and wishes in this context.
December 2021: Landmark judgment series – the ‘Gillick judgment’ (House of Lords)
This year we have dedicated four issues of our children’s rights legal digest to landmark judgments that have strengthened the protection of children’s rights in England. This last one, the ‘Gillick judgment’, was a successful appeal brought by the Department of Health and Social Security (as the Department of Health and Social Care was then known). It concerned the lawfulness of doctors and other health practitioners providing children under the age of 16 with contraceptive advice and treatment without their parents’ knowledge or consent. In one of the most famous children’s rights judgments in our jurisdiction, which pertains to this day, the House of Lords held that parental authority dwindles as a child’s understanding grows. Further, parental responsibility exists for the benefit of the child; it is not indicative of parental control or ownership of children. From this judgment, the concept of ‘Gillick capacity’ and a ‘Gillick-competent child’ was born.
November 2021: Duties towards unaccompanied children whose age is uncertain (High Court judgment)
In this issue, we focus on a recent High Court judgment relating to local authorities’ duties under Section 20 of the Children Act 1989 towards children and young people awaiting the outcome of an age assessment. The High Court found the local authority’s refusal to accommodate three putative children unlawful, dismissing the local authority’s claim that exceptional circumstances justified departure from statutory guidance. This judgment will be of relevance to anyone supporting unaccompanied migrant children, but also to those wishing to learn more about the duties of local authorities under Part III of the Children Act 1989.
October 2021: Landmark judgments series – R (Howard League), the rights of children in custody (High Court)
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 month we revisit a successful judicial review brought by the Howard League for Penal Reform which confirmed that children in custody are entitled to the protections guaranteed in the Children Act 1989. In addition to affirming the applicability of the Children Act 1989 to children in custodial settings, the judgment contains an important analysis of public authorities’, including prisons’, human rights obligations under the European Convention on Human Rights and the United Nations Convention on the Rights of the Child.
September 2021: Educational achievement of looked after children (LGO decision)
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: Inherent jurisdiction in deprivation of liberty applications (Supreme Court judgment)
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: Statutory complaints and remedies (LGO decision)
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: EU Settlement Scheme and children in care (High Court judgment)
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: Statutory representations, including complaints (LGO decision)
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: Landmark judgments series – the ‘D judgment’ (deprivation of liberty) (Supreme Court)
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: The rights of potential victims of trafficking (European Court of Human Rights judgment)
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: Support for children and young people leaving custody (LGO decision)
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: Landmark judgments series – the ‘Southwark judgment’ (House of Lords)
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: Safeguards for children in care (Article 39 judicial review)
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: Local authorities’ duties towards unaccompanied children (High Court)
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: Children in care and immigration status/nationality (Court of Appeal judgment)
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: Contact between children in care and their families (Court of Appeal judgment)
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: Secure accommodation orders (High Court judgment)
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 settings. We 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: Statutory representations (incl. complaints) procedures (LGO decision)
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”.
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.
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.
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: The role of international law in protecting human rights in the UK
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.
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.