13 July 2018
Article 39 and The Care Leavers’ Association have been granted permission to intervene in a case (CN v Poole), which will be heard in the Supreme Court on 16/17 July.
We jointly applied to intervene because we are extremely concerned about justice being denied to the children, young people and adults we serve. We believe the wrong decision in this case could prevent those who have experienced abuse in care and custodial settings from being able to seek legal redress and compensation.
In December 2017 the Court of Appeal dismissed an appeal made on behalf of two individuals who, as young children, were subject to serious harassment and abuse from a family that lived close to their home.
The children were cared for by their mother. Their accommodation had been arranged by Poole housing authority, which was aware of their neighbours’ persistent anti-social behaviour.
CN has severe physical and learning difficulties. When he was aged 9, he tried to take his own life because of the serious abuse he suffered from the nearby family.
The Court of Appeal rejected arguments that Poole Borough Council should have used its Children Act 1989 powers to protect the young brothers from harm, perhaps even by temporarily moving them from their mother’s care.
But the court went much further. It decided that local authorities can no longer be held liable for negligence when a child has suffered harm due to their failure to act. Such claims had been possible since 2003.
Article 39 has longstanding concerns about the difficulties children in institutional settings face in reporting abuse, being believed and receiving care and support to help them recover from mistreatment.
We asked all English local authorities to provide us with information about allegations against staff working in institutional settings. Of those that provided detailed data – 34 councils – we found that only 24% of 1,389 allegations resulted in an official child protection investigation.[i]
When councils undertake child protection investigations they are under a duty to listen to the child. They must consider taking action to safeguard or promote the child’s welfare. A child who has been abused or suffered some other trauma may need counselling, extra help with their education and/or changes within their living environment and daily care. If councils fail to act to protect a child from institutional abuse, this can have devastating and long-lasting consequences.
The Care Leavers Association has numerous first-hand accounts from adult care leavers of abuse they have experienced as children in the care system. Over recent decades there have been many enquiries focusing on such abuse of looked after children. Such abuse – whether physical, sexual, emotional or through neglect – can have severe effects on a person, both at the time and throughout their later adult life.
If the Court of Appeal’s decision is upheld by the Supreme Court it could, at its worst, remove the duty of care from local authorities in respect of all child protection functions. This would have a disproportionate effect on looked after children, and on adults who were in care or custody as children. We need to revert to the 2003 position to ensure accountability where professionals and organisations failed to take appropriate action to prevent or stop abuse. Being able to pursue a claim for negligence can achieve a real sense of justice and provide a route to some financial compensation that helps to address the long-term consequences of abuse in childhood.
Carolyne Willow, Article 39’s Director, said:
“We are delighted to have been given permission to intervene in this very significant case. With The Care Leavers’ Association, we want to help the court consider local authorities’ obligations under the Convention on the Rights of the Child and to understand the terrible impact that abuse can have on children, especially when they have tried to seek help but are ignored and left to cope alone with profound psychological pain, isolation and confusion. We appreciate that local authorities are under great financial strain but children’s rights to safety and recovery must be robustly defended.”
David Graham, National Director of The Care Leavers’ Association, said:
“It is incomprehensible that a local authority would not face the legal consequences for not doing enough to prevent abuse and neglect to young people in care. But the important thing to remember is this is not just about blame, or legal outcomes. It is about the lives of many young people and adults affected by abuse and neglect experienced as children. It is essential that they have legal recourse to challenge the decisions and omissions that facilitated those damaging experiences. We are determined to work with Article 39 and our legal team to right this wrong.”
[i] Undertaken under Section 47 the Children Act 1989. Section 47 requires local authorities who have reasonable cause to suspect that a child in their area is suffering, or is likely to suffer, significant harm, to make enquiries to enable them to decide whether they should take any action to safeguard or promote the child’s welfare. Article 39’s freedom of information request was made in 2015 and local authorities were asked to provide data for the preceding three years.
Article 39 and The Care Leavers’ Association are 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.
PLEASE NOTE: If you have been abused in care or custody, or anywhere else, the criminal law has not changed and your right to bring a claim under the Human Rights Act 1998 is also not affected by this case.