A & S (Children) v Lancashire County Council

Two brothers, now teenagers, came into local authority care as infants and were in due course freed for adoption. After a time, the search for adopters was abandoned, but the freeing orders were never discharged and all links with the boys’ family were cut. They remained under the freeing orders for 11 years, moving from foster placement to foster placement and becoming increasingly unsettled and disturbed. Their experiences are described in part 2 of this judgment. They have suffered irreparable harm, reflected in declarations now made under the Human Rights Act 1998.

Over the years, the local authority defaulted on its duties towards the children and its independent reviewing system did not call it to account. The matter was never returned to court as it should have been and as a result the local authority’s actions did not come under independent scrutiny.

Nationally, there are other children who remain under unsuccessful freeing orders or placement orders. This case suggests that (1) those cases may need to be identified and reviewed to ensure that these children are not being disadvantaged as a result of their incorrect legal status, and (2) there is a pressing need for the independent reviewing system to work more effectively than it did for these boys.

The information lying behind the parties’ submissions on these issues appears in Part 3 of the judgment, which is included for its relevance to social work practice and current developments in the family justice system.

These proceedings concern two brothers, A (16) and S (14). In February 1998, when they were aged just 2¾ and 6 months old, they went into the care of Lancashire County Council (LCC). Their parents had separated, their father was homeless, and their mother had abandoned them. LCC were responsible for them for the next 14 years, but unfortunately did not succeed in finding them a new family. Freeing orders, made in 2001, remained in existence until this hearing in 2012. In A’s case, his foster carers (Mr and Mrs SG) have now become his special guardians. For S, a family placement is not possible and he lives in a children’s home under a care order.

LCC has agreed a special guardianship support package for A and presented a care plan for S. These are detailed documents that commit significant support to both boys for the foreseeable future and end the welfare aspects of the proceedings.

In the light of what has happened, Human Rights Act proceedings have been taken by A and S against LCC and one of its employees, an Independent Reporting Officer, Mr H (to whom I will refer as ‘the IRO’).

The history, recorded in a staggering 19,000 pages of social work records, is undisputed, as are its legal repercussions. LCC and the IRO accept that they have breached the boys’ rights under Articles 8, 6 and 3 of the European Convention on Human Rights and Fundamental Freedoms 1950. Declarations, set out below, have been made, and the boys will now seek damages for negligence and breach of statutory duty by separate civil action. At the same time, any claims for damages under the Human Right Act will be transferred to the Queens Bench Division.

This judgment summarises A and S’s story. The Guardian does not exaggerate when he refers to the ‘havoc’ in the children’s lives and refers to the plans for permanence as having amounted in reality to ‘permanently looked after disruption’.

These boys have suffered real, lifelong damage and they are now entitled to demand an effort of understanding. This has become important to A, who attended the hearing in the hope that lessons might be learned for the benefit of other children. When he was recently asked what improvements he thinks could be made to the system in which he spent his childhood, he replied: “FOR THE IMPORTANT PEOPLE TO LISTEN TO US.”

One lesson is that the legal status of children in care has welfare consequences. If the court has authorised a local authority to look for an adoptive home under a freeing order or a placement order, all energies will be directed towards achieving that outcome, with the maintenance of family ties a much lower priority. That is, in the current jargon, the direction of travel. But if adoption is not possible, the direction changes. The child will not be losing membership of his birth family and the question of what family connections (if any) are in his interests needs to be reviewed.

In this case, the destination changed from adoption to long term fostering, but the local authority did not react. It did not apply to return the children’s status to being children under care orders and it kept its back turned on the birth family. The result was that these children, who were very young when they went into care, lost their links with their birth family without gaining a family of their own.

LCC’s reviewing system did nothing to correct this. The role of the Independent Reviewing Officer can be compared to that of the Safety Officer, or Quality Control Supervisor within the local authority organization. In this case, no one carried out these essential tasks.

There are a number of other children who remain under freeing orders over six years after they were abolished and a greater number who are under failed placement orders that have not been revoked. I will send a copy of this judgment to the Children’s Commissioner, so that she can consider whether any action is needed to protect the situation of other children.

(1) A and S were born in 1995 and 1997, the third and fourth children of their mother.

The task of charting this sad narrative has been made easier by the co-operative approach of the parties. As a result, the only oral evidence required at the hearing was brief testimony by the IRO. It has been a considerable achievement upon which I congratulate the parties and their advocates.

I also acknowledge the thought that the Children’s Guardian, Mr Doherty, has given to the boys’ situation. As can be seen from the frequency with which I record his views, I have found them very helpful.

The boys’ mother (‘M’) has four children:

N’s father is a Mr M, while the other three boys share the same father, M’s late husband (‘F’).

The family came to the attention of LCC in January 1998 because of domestic violence between the parents and the children being left with unsuitable carers. The parents had separated. The four children were moved to the care of relatives by the police on 21 February 1998 when M abandoned them. She failed to return for five weeks and was untraceable.

N was then placed with his father (Mr M) and the three younger boys were placed in foster care. A and S stayed with three sets of short term foster carers between February and September 1998.

On 19 March 1998, F took a fatal overdose of antidepressants, which caused him to die of a heart attack. The coroner recorded a verdict of accidental death.

Proceedings were issued by LCC in the Family Proceedings Court on 2 April 1998. M failed to engage. Relatives were assessed and one, Aunt D, was matched as a suitable carer for 3-year-old A and his 13-month-old brother S, while another aunt (Aunt C) looked after S1. The boys were placed with Aunt D on 18 September 1998.

A care order was granted on 19 October 1998 on the basis of the placement with Aunt D. A and S remained there until 1 October 1999.

In July 1999, M remarried.

Aunt D has filed a statement in these proceedings. She describes how the children were neglected by their parents and placed with her after a period in foster care. She was rehoused, but she had eight children to look after. A (aged 4) already had behavioural problems and was soiling himself. His school could not cope with him. Aunt D only had child benefit for the children. She had help from LCC with items such as beds, but it was a struggle. She herself was grieving the death of her brother, who she had found after his death. Her mother, who had given good support, was then diagnosed with cancer. She had no respite. She told social services that she was not coping and the boys were taken away, with everyone crying. She was told that they would be adopted, and until 2011 she thought they had been. Later on, after the death of her mother, and with an improvement in her own circumstances, she asked social services if the boys could return to her care. She was told that they were happy where they were.

In 2011, A and S sought her out and she has had some contact with both boys since then, and hopes that this will continue.

Aunt D says that she is devastated to learn that the boys had had so many moves, but nonetheless supports their present placements. She bought the boys St Christopher’s medals on behalf of their father, but these were lost sometime in the course of their many moves.

In October 1999, when A was aged 4½ and S aged 2, they were placed with a new foster carer. In November 1999, she became unwell and they moved to a pre-adoptive foster placement with Mrs and Mrs D, where they remained until September 2001. A LAC review in November 1999 described A as a confused and distressed little boy who was being assessed for a statement of special educational needs. Repeated changes of carer and of social worker were noted.

In November 1999, M co-operated with the adoption process to the extent of providing information and signing forms for the boys to have medicals, but in March 2000, she withdrew co-operation.

In May 2000, LCC received a complaint about the mistreatment of two children fostered by Mr and Mrs H (who were later to become A and S’s carers), but it decided that there was no evidence to justify stopping placing children with them.

In August 2000, LCC’s Adoption and Permanence Panel recommended that the boys be placed for adoption together. The plan was for no contact to M, but for contact with their brother S1 and with paternal family members.

In September 2000, M pleaded guilty to four counts of wilful neglect of a child, one count in respect of each of her children.

In November 2000, LCC applied for orders freeing A (5½) and S (3) for adoption and on 19 March 2001 those orders were made. M’s consent was dispensed with on the ground that it was being unreasonably withheld.

The Children’s Guardian at that time described A as a very confused child, with little idea of his relationship to people in his life, and who members of his family were or how they fitted in. His disrupted early years meant that he found it difficult to form attachments. Of S, she wrote: “Given the number of moves he has experienced at a time which is crucial for the formation of attachments, it is not surprising that S demonstrates behaviour which is indicative of insecure attachment. He is indiscriminately affectionate towards people he does not know. He readily approached me and wanted to sit on my knee within minutes of me arriving at the foster home and wanted to be physically close to me. On my departure he asked if he could come home with me.”

As it was, back in 2001, Mrs and Mrs D gave notice, and on 8 September 2001 A and S were placed with Mr and Mrs H. Extraordinarily, LCC says that the transfer of the children to the H’s care arose from a private agreement between the D’s and the H’s. Nonetheless when it came to its attention, it maintained the placement.

On 1 November 2001, when the boys had been with the Hs for a few weeks, A (6) told a parent helper at school that he did not want to go home because Mrs H smacked him. The complaint was investigated and closed with no action being taken.

On 5 April 2002, a contact worker attended the H’s home to collect another child. She saw A and S, dressed in underpants and standing against a wall as a punishment for fighting. They remained there for the ten minutes she was in the home.

On 15 April 2002, M attended a LAC review. She said that she wanted to resume care of the children, and had been to solicitors. The review noted that every adoption agency in the country had been approached without success and that S urgently needed long term stability.

On 29 April 2002, S was seen at school with a cut under his nose that needed four stitches. Mrs H had no explanation.

On 8 May 2002, A (7) reported that Mr and Mrs H’s 12 year old daughter had ‘snogged’ him and touched his ‘widgey’. LCC was informed. The social worker established that the girl admitted the touching, but the boys were left in the placement.

On 21 May 2002, the boys, who were 7 and 4, had their last contact with their half-brother, N, who was 12.

On 18 June 2002, the boys’ school made a referral to social services, saying that they arrived hungry and with unappetising lunches. The Hs appeared very strict and had telephoned the school to say that they were keeping the boys off school because they had been naughty. A had said that he had been forbidden from getting out of bed at night and had had to urinate in a drawer belonging to one of the Hs’ own children so as not to wake anyone.

A social worker visited. She found the boys to be tired and anxious and being kept off school in a state of undress as a punishment. A said that they had been made to stand against a wall for a long time on the previous night, and that that morning they had to stand against the wall in their underpants.

The children were removed from Mr and Mrs H on 19 June 2002, after social workers had a strategy meeting with the police. They were placed in a foster home for five days with a couple known as Mr and Mrs M; during this time, A was heard to tell S that if they were good, this family might decide to keep them.

It then transpired that Mr H had been accused of sexual abuse by a female foster child who had been living in the home at the same time as A and S. He was subsequently convicted of sexual offences against that child and received a sentence of three years imprisonment.

On 25 June 2002, the boys were placed with Mr and Mrs B, where they remained for 5½ years.

On 22 August 2002, the boys, who were 7 and 5, had their last contact with their brother S1, who was then 8.

This marked the final step in the eradication of family members from the boys’ lives. They have not seen their mother since 2001 or either of their siblings since 2002. Until recently, they had not seen their Aunt D since 1999. The only contact that was supposed to happen was twice yearly indirect contact, very little of which seems to have taken place.

In October 2002, A was recorded as being very keen to stay in touch with his siblings. It was recorded that S “wants to be mothered”.

Since late 1999, LCC’s plan had been to find the boys an adoptive home, but it was not until August 2000 that this plan was endorsed by the panel. Efforts to find adopters in 2000 and 2001 failed. By the end of 2001, LCC noted the significant delay in placing the boys. By October 2002, a family finding target of 4 months was set.

In October 2002, the Ms (who had looked after the boys for five days after they were removed from the Hs) approached social services expressing interest in looking after them long-term. They renewed the request in November 2002. LCC said that this would be of interest if an adoptive placement was not found, but in the event nothing came of it.

M, whatever her earlier behaviour towards the children, had maintained communication with LCC and taken up contact until the freeing orders were made. On 2 December 2002, she applied for the orders to be revoked, the boys not having been placed within a year of their having been made.

In March 2003, possible adopters were identified, and introductions were planned, but by April 2003 they had pulled out.

On 22 April 2003, M withdrew her application to revoke the freeing order. The previous Children’s Guardian had written a report recommending that the application be dismissed, but presciently adding: “I would be concerned about the children’s legal status in the future should no adoptive placement be found for the boys. They would in reality be existing in something of a legal limbo. I understand that should this situation arise, the High Court has power to grant leave to the adoption agency to revoke the freeing orders. The Local Authority could at the same time seek Care Orders. If such orders were granted the Local Authority would have the same duties and responsibilities towards A and S as it would towards any other child in its care.”

From this, LCC clearly had notice of what ought to happen if its plan did not succeed. In fact, by September 2003, it was already reconsidering the plan for adoption as no adopters had been found and the boys were settling with Mr and Mrs B.

Aunt D was unaware that the matter had been back before the court at all. In March 2012, she told the current Guardian that “she was never approached or contacted at any stage, but was very firmly of the view that by the time of the Freeing Order revocation she would have been able to offer a permanent home for the boys and felt that they had been denied a (paternal) family and aunts, uncles and cousins who would have been there for them as they are now.”

On 10 March 2004, the panel recommended that LCC change the care plan from adoption to long term fostering and return to court for the freeing order to be revoked. For some reason this recommendation was not endorsed by the agency decision-maker until July 2004.

The search for adopters was thus abandoned at a time when A was 7 and S was 6.

In the course of the 7 years from April 2004, there were 37 LAC reviews. On each occasion the chair recorded that LCC were going to apply, or in some cases had in fact applied, to revoke the freeing order. The fact that it never actually happened passed without comment.

From the outset, the Bs, who had been looking after the boys for two years, had made clear that they did not want to consider adoption.

A review of the records shows that LCC initially considered that the boys were appropriately placed with the Bs, but that concerns surfaced from time to time. Both boys were showing some sexualised behaviour and the Bs were unwilling to give them rooms of their own, though space was available. By December 2005, the situation was described as “very fragile”, with Mrs B very distressed and at times quite irrational. The boys were frequently going to strangers for respite care for periods of between two days and two weeks. Referrals were made to CAMHS and for psychological assessment of S.

In January 2006, M updated her contact details with social services. In March 2006, A (10) said he wanted to see her and N, but was told it was not possible.

In September 2006, Mr H became the boys’ Independent Reviewing Officer. By this stage it was recorded that M’s circumstances had improved. She was living in a suitable property, had regular employment, and had taken over the care of N (16), whose placement with his father had broken down.

By February/March 2007, it was recorded at a LAC meeting that the placement was meeting S’s needs to a high standard but that A was behaving in a challenging way at home and at school, and that the Bs needed regular respite care. However, in July 2007, the placement was described as “as positive as ever”.

In January 2008, there were discussions with the Bs about caring for the boys under residence orders. Both boys were keen on the idea. On 28 January 2008, A (12) said that he was happy in the placement and glad that “Mam” (Mrs B) would always look after him and S.

A week later, on 5 February 2008, A told friends that Mrs B had hit him with a belt. He was medically examined and found to have marks on his bottom consistent with being hit multiple times with a belt. The boys were removed.

Removal from the Bs was extremely traumatic for the boys. They were taken away late at night and were not allowed to speak to the Bs afterwards because of the criminal investigation. S was distraught. He said that Mrs B had held him under the water after he had run a cold bath by mistake. He could not understand why she had hurt A or given him a cold bath. He told the social workers that he loved Mrs B and begged them to contact her to say he was sorry so that he could return to her care. A said that he had lots of happy times in the Bs care and could not understand why they had hurt him and S. A said he would never want to return to their care as he would be afraid. The boys’ journey to their next placement was highly emotional and their next carers described the situation as “tragic”.

The LCC review records this of the placement with the B’s: “[They] were experienced and competent carers, and all involved with A and S believed, up until February 2008, that the placements were positive, settled and happy... Both A and S were receiving therapy sessions during their placement. I believe these were supported well by [the Bs]. A clear structure and boundaries were in place in placement with incentives for positive behaviour which the boys appeared to respond well to. A and S were secure and fully integrated into their family. [The Bs] encouraged good manners and worked on training good habits and tidiness.”

The Guardian comments: “The incident led to the Bs having to stop fostering. It was a rescue A and S did not necessarily want and the disruption and destruction became apparent in their regressed behaviour and insecurity.”

In January 2009, Mrs B pleaded guilty to assaulting A and was placed under a supervision order.

The boys remained with new professional carers for 5 months. The carers described them as having very high levels of need indeed, and believed that they needed separate long term placements, as A tended to overpower S. S also resented the fact that the placement with the Bs had broken down, as he saw it, because of A.

In May 2008, A (13) was described as quite an angry young person, who would like to live with his birth family and was very confused. In July 2008, he was recorded as needing therapy and as having intense temper outbursts.

On 28 July 2008, A and S went to live with Mr and Mrs SG. A has remained there, while S left after two years.

Of this move, the Guardian writes:

“By July 2008 when A and S moved to the [SGs], the stress and accumulated anxiety of another placement move (either their 16^th and 14^th main placement or with respite included, their 41^st and 39^th) was little short of trying to ask the [SGs] as foster carers to manage a runaway express train into a siding without a collision.

S was almost 11 years old and A 13 years old. They were bigger, hormonally imbalanced and unused to the very different new style of carers they now found themselves with. They would still have unresolved feelings about the abrupt loss of their former home with [the Bs]. The [SGs] had little real information as to the boys’ history of disrupted placements and there was a new Social Worker… who had not met the boys before.”

A has thrived in this placement, although he has tested the commitment of the SGs to the limit, including by assaulting them and seriously damaging the family home. At different times both boys have threatened to kill themselves.

In December 2008, A and S’s latest social worker was allocated to their case. In February 2010, she recorded that A was settled in the placement and had developed positive relationships with the SGs and their family.

It is therefore baffling to read in the record of a LAC review in March 2010 that LCC’s preferred placement for A was with different in-house foster carers. This seems to have been because of concerns felt by the social workers about the SGs’ level of co-operation with LCC.

Throughout their lives, the children’s only constant relationship has been with each other, even if it has often been rivalrous.

From the start of his placement with the SGs, S said that he wanted to see his birth family. He assaulted the foster carers on occasions and his behaviour was so challenging that the SGs and the school were in real difficulties.

On 26 May 2010, S went for a period of respite care from which, at the request of the SGs, he did not return. S was confused about why his placement had come to an end.

Since then A and S have lived separately, but see each other for organised contact of variable quality.

S remained with his respite carers (who themselves needed periods of respite) until September 2010, when he went to a children’s home. He remained there until February 2011, when he moved to his current children’s home.

Even that move has not been without additional stress. No sooner had S arrived at the home than LCC, faced with budget cuts, began to consult about closing it. The Guardian writes:

“In my opinion, S’s ability to learn, concentrate and respond to tasks was considerably hampered by his anxiety and stress from not knowing if his children’s home was to close. When I saw him at [the home], both he and staff were anxious about the impact the closure may have on him and the other small group of children affected.”

LCC has now confirmed that it will not be closing this home, but is reducing its residential provision in the county. As a consequence a staff redeployment programme is on-going.

In February 2011, when the SGs were away on holiday without A, S and A made contact with their Aunt D. They were invited to a family wedding some weeks later, and S attended.

In March 2011, an incident took place during which A assaulted the SGs. The social worker met A on 22 March, at which point he was saying that he wanted to move on. She started the process of finding a new home and identified a residential placement. However, by 5 May, matters had settled down and A was saying that he was happy and wanted to stay where he was. Despite this, on 12 May, the social work manager decided to give notice to end the placement. There was no discussion or joint planning between LCC and the SGs at any stage about such a significant decision, nor was any concerted action taken to support A’s placement and avoid yet another move for him.

On the same day, 12 May 2011, the boys’ mother happened to leave her new address at social services’ reception. No contact was made with her at the time, indeed LCC apparently had considerable difficulty in finding her once these proceedings began.

On 27 May 2011, in a very distressing scene, the police and a social worker attended at the SGs’ home to remove A’s foster brother, L (14). L refused to leave and ran away before being found and placed elsewhere. A says that the social worker said that after the Bank Holiday weekend he too would have to move.

A was so concerned that he made his way to a solicitor’s office before office opening hours on the first working day after the Bank Holiday. He spoke to a solicitor, telling her that he was freed for adoption (which she understandably thought highly unlikely). She then obtained assurances from LCC that A would not be removed before a meeting could take place.

On 1 June 2011, a meeting took place between A and his solicitor, and the solicitor and social workers for LCC. LCC confirmed that it had been looking into children’s homes for A and had found one on elsewhere in the county. It was agreed that A would not be removed without notice except in an emergency. Further meetings were discussed.

On 3 June 2011, A’s solicitor invited LCC to issue an application to revoke the freeing order within 14 days. When it did not do so, A issued his own application on 20 June 2011. He has been assessed as having the capacity to litigate. S has not.

On 30 June 2011, A’s application came before Her Honour Judge Watson, sitting as a judge of the High Court. She was highly concerned at the history and granted leave to A to apply to invoke the inherent jurisdiction of the High Court. An order was made preventing LCC from removing A from the care of the SGs without the permission of the court.

Further hearings before Judge Watson took place on 4 August and 5 September 2011. A special guardianship assessment was commissioned from an independent social worker. In the meantime, steps were also taken to allow the SGs to have more day-to-day autonomy by signing the forms to allow A to enrol in college, go on scouting trips overnight and have routine medical treatments. A saw this as a powerful endorsement of his placement with the SGs.

Consideration was given to the effect of the revival of the care order that would follow revocation of the freeing order, in that it would restore parental responsibility to M. A was worried about the effect of his mother reappearing without more being known about her situation. A cautious approach was decided upon. Decisions about service of the proceedings on M were deferred until a hearing that took place before me on 28 November 2011. I directed that efforts should be made to locate her and to inform her of her sons’ circumstances. The question of her party status was to be determined once she had been located and a hearing in January 2012 was fixed for this purpose. (As M had not by then been found, it was postponed until February.)

The hearing of the Human Rights Act claims was fixed for March 2012 and that hearing has led to this judgment. A welfare hearing was fixed for May, but was unnecessary as welfare aspects have now been dealt with by consent.

The assessment of the SGs by the independent social worker, Guy Mitchell, firmly supported the making of a special guardianship order for A. Mr Mitchell identifies many positives in the continued placement of A with the SGs and concludes: “What conceivable sense would it make to move A somewhere else?” A should “stay put and systems should be doing all in their power to give the placement the best shot.”

Disclosure orders were directed to HMRC and the Benefits Agency, but in the event M was not found until 22 March 2012, the Thursday before the week of the hearing. Arrangements were made for her to meet the Guardian and the social workers the following day, 23 March.

M described her current situation. She still lives in the same town and has a partner and a job. Informed that the boys had not been adopted and had been in several foster homes and had now separated, she said that she would like to see them settled and to have photographs of them and to meet them if they wanted. She said that she did not want to upset them. She agreed to see a solicitor, and LCC made the arrangements. M said: “There isn’t a day, not one day, that has gone past when I haven’t thought about them. I think about them all the time.” and in so saying she became tearful.

On 27 March, S and A were informed that their mother had been found. S was very curious, A cautious.

The Guardian arranged to meet M again on 28 March to ensure that she did not want to contribute further to the hearing that was by then taking place. For reasons that have not been explored, but which may be significant, M did not attend that meeting. Nor has she taken up the opportunity to be heard directly during the proceedings.

The reappearance of M in the lives of the children will now need careful attention, and Dr Sturge, Consultant Child and Adolescent Psychiatrist, has given valuable advice. It is a development that has the potential to benefit the boys, or unsettle them further. The Guardian comments:

“In my opinion, the delay in notifying their mother and paternal aunt who had cared for them, notwithstanding the freeing order status, ought to have led to the IRO recommending notification be given to all the previous birth family that the children were now fostered and would not be adopted. If the consequences are now a shock for A and S in finding a mother who is presentable and remorseful about letting them down, this is entirely a result of the Local Authority not having planned and considered the implications of the boys’ altered status on their duty to inform the birth family of the change of plan.”

After such a catalogue of difficulties, it is important that the boys are valued for who they are. A, whom I had the pleasure of meeting at an earlier hearing, attends college. He is good with his hands and takes pride in his skill at fixing cars and in helping with building work (which began when the SGs insisting on him helping builders who had come to repair damage that he himself had caused). He is a member of a scouting organisation and enjoys family holidays. Dr Sturge describes him as a caring, likeable boy who has made good use of the cognitive abilities he has and who has some ability to recognise and think about his feelings.

For his part, S is an articulate boy who is liked by staff at his children’s home despite the demands he places on them.

It is to their credit that neither boy has been involved in offending outside the home.

However, their care history has had disastrous consequences. The Guardian says this:

“S and A are profoundly damaged by their particular childhood journey through the care system, symbolised in their Freeing Order status remaining in place all of 10 years later; a relic of the optimism and good intentions which surrounded the early adoption plans.”

A has been assessed by Dr Claire Sturge and by her colleague Dr Howcroft, Consultant Child Psychologist. Dr Sturge writes that A has emotional regulation difficulties and dysarthria (a problem with speech production). It is within his close personal relationships that he is most likely to lose control and act out verbally and physically: “Currently, there are still verbal outbursts but not violence.” A is not currently presenting a risk to others. Dr Sturge expresses concern that his degree of learning disability has hitherto not been properly recognised and that he has “very special needs in cognitive terms”. A will not reach independence at 18 and is likely to require the support of his placement and educational provision up to the age of 20 or 21.

As to the effect of the history, Dr Sturge says:

“‘These frequent moves and experiences of rejection (all moves will have been experienced as rejection even when through no fault of his own) will have had a compounding effect on his emotional regulation problems, adding each time to angry feelings inside him which he could not understand and the feeling of being unacceptable, unwanted and an outsider belonging nowhere.

A says he had had lots of happy times with [Mr and Mrs B] and did not understand why [Mrs B] had hurt him and his brother. He was too afraid to return. This was a highly traumatic event and this sudden, painful and frightening [reaction] from an adult he trusted must have had a profound effect. How could he trust feeling secure or trust a carer again?

It is not possible to disentangle all these adverse experiences in A’s life and attribute his difficulties specifically to any one of them or to any particular period in his life.

We would say that the following will have had the most deleterious effects on A and his development. While we rank these below, this is somewhat artificial as there are so many interactions between events and one event will have compounded another.

(a)

Probable neglect in his first year/18 months of life;

(b)

The three changes of carers following his reception into Care in 1988;

(c)

The instability of the placement and period of respite care in 1999;

(d)

The physical abuse in February 2008;

(e)

Other care transitions – the sheer multiplicity of these.

The Guardian, however, comments:

“Nevertheless, my reading of the social work records is A has been less traumatised than his brother and a considerable feature of this has been the survival of his current placement and the separation from S. A has been able to feel he can trust [the SGs], whereas S has experienced another profound loss and further moves. The separation has enabled A to have more time to be looked after without the relentless competition and rivalry which has featured throughout A and S’s childhood.”

Dr Anna Litwinenko, Consultant Clinical Psychologist has assessed S and says that he has a low intellect and extremely limited concentration span which made it impossible to undertake cognitive testing with him. He (like A) has poor self-esteem and is “currently functioning at best as a junior school child”. He is “unlikely to be able to form and sustain healthy adult relationships”.

Dr Litwinenko’s opinion is that:

“S is an extremely ‘damaged’ child... also ‘damaged’ by the numerous changes of placement and carers… He is highly impulsive with little control over his emotions. He thus experiences explosive outbursts of anger during which he can be highly aggressive towards property and toward others... The absence of a secure primary attachment has not equipped him with the necessary resources to manage his heightened emotions. When frustrated he reacts like a toddler, throwing a temper tantrum and hitting out at everything round him. S therefore needs to be cared for by highly experienced professional carers in a highly controlled environment with set routines and clear expectations of behaviour.”

Dr Sturge has also assessed S:

“S presents as a quite damaged boy. Unlike his brother, A, there are major problems in:

i.

Superficial emotionality;

ii.

Lack of ability to connect with his feelings;

iii.

Poor emotional regulation;

iv.

Impulsivity;

v.

Poor social and communication skills and ability to make and sustain relationships;

vi.

Major problems in his relationships with his peers (he gets on better with adults);

vii.

Low levels of considerateness and ability to identify with others;

viii.

Sustaining attention and focus and remaining calm and on task;

ix.

Distractibility.

He has a sense of being picked on and sees all of his problems as being caused by others. This refers to current problems as there is a surprising lack of anger or blame in relation to the many adverse and horrible things he has experienced.

… There is an absence of identity beyond that conferred by others and an absence of a cohesive personality structure.

In my opinion, S’s early experiences and experiences throughout his childhood account for… :

i.

His huge relationship problems;

ii.

His very poor emotional regulation; temper control problems;

iii.

His limitations in experiencing and responding to emotion and emotional cues – emotional shallowness and lack of reciprocity. This can be called emotional illiteracy.

An important factor is that everything went wrong in his life at a critical time – around 7 months of age (if there were even a more positive time prior to that). This time (around 8-18 months) is the critical time for developing attachment and patterns of attachment. In fact, this period saw the ‘loss’ of his mother and 3 further moves in quick succession. This has probably been disastrous for him.

… To my mind he presents… as someone who never developed any form of attachment when young rather than that he developed a disorganised pattern.”

HUMAN RIGHTS ACT INFRINGEMENTS

Section 8(1) of the Human Rights Act 1998 provides that:

The parties are agreed that this court should go no further than the granting of declarations, and that the relevant provisions are those under Articles 8, 6 and 3.

A and S are entitled to enjoy the same Convention right to respect for their private and family life as anyone else. This relates not just to the search for a substitute family, but to the maintenance of such birth family connections as were in their interests. LCC had, as it now acknowledges, a continuing positive obligation to promote these rights. It accepts that the early history and delays significantly damaged the prospect of the boys finding a permanent adoptive placement.It further accepts responsibility for the lost opportunity for continuing contact with family members, such as their Aunt D and with N and S1.

The IRO accepts that he was in a particularly significant position to have asserted these rights on behalf of the boys. In fact he was the only independent professional who could have done so.

Had the children been under a care order, LCC would have been obliged to permit and promote reasonable contact with their mother and siblings in accordance with their statutory obligations to a child in care under s.34(1) and Schedule 2 paragraph 15(1) of the Children Act 1989. If it did not consider this in their interests, it would have had to justify this to the court by means of an application for permission to refuse contact under s.34(4).

What LCC instead did was to circumvent those statutory obligations. Although it operated as if these children were under care orders, it remained positively resistant to family contact. In effect, it gave itself an order under s.34(4) – to the point that the records often referred to such an order actually being in existence.

At times, LCC mulled over the possibility of exploring contact with M. There are references to this in 2006 in particular. However, despite resolving to set up meetings with M, there is no record of this ever happening. As a further example, on 13 December 2010, Aunt D attended social services’ offices to ask for an update about S and A and was upset to hear that they were not in the same placement. The social work note reads:

“D asked about direct contact with S and A. I advised D that at this time indirect contact would be more appropriate to begin to build up a relationship with S and A should they want this as it has been several years since S and A have had any direct contact with their birth family”.

D wanted to provide her address so that the boys could write directly but was advised that indirect communication through the social worker was more appropriate “at this time”. In the end, in February 2011, the boys made contact with Aunt D in their own way.

Whether or not it would have been in the boys’ interests to have had contact with family members in earlier years cannot now be known. What is clear is that A and S often asked for contact. As examples of numerous references:

This revolves around LCC’s inadequate monitoring and reviewing procedures and, again, the failure to revoke the Freeing Order, amounting to a denial of access to the court process. They were accordingly deprived of the entitlement to have:

LCC had a positive obligation to protect A and S from inhuman and degrading treatment. The abuse in the home of the Hs and the Bs was a violation of these rights. The placement of the boys with the Hs was particularly unfortunate when LCC was aware of previous complaints against them.

I declare that LCC and the IRO acted incompatibly with the rights of A and S, as guaranteed by Articles 8, 6 and 3 of the European Convention of Human Rights and Fundamental Freedoms 1950, in the following 10 respects.

LCC:

The IRO:

LCC has disclosed its entire archive of records relating to A and S and has submitted to the Human Rights Act declarations without demur. At an earlier stage it filed a detailed statement from its Director of Specialist Services in relation to the possible closure of S’s children’s home.It has also filed some general evidence about the history of the matter.

It has not, however, filed evidence that explains its actions down the years and it has offered only a limited apology to the boys. It may take the view that the history speaks for itself, but the fact remains that LCC’s perspective has been presented forensically rather than evidentially in this court. The result is that, to take one example, no explanation has been given for the fact that social workers repeatedly told the IROs that legal proceedings to revoke the freeing orders were under way when they were not.

This is the full extent of LCC’s submission about its social work system:

This does not give any real answer to “the key question” or explain to A and S what their corporate parent considers went wrong. The only explanation that has been offered for the fact that no application to court was ever made is that there were “competing demands and priorities” for the previous social worker, who was allocated to the case for several years, and the assertion of the current social worker that LCC was going to remedy the boys’ legal status, but that there were too many crises to allow this to be progressed; anyhow, the wrong legal status did not, according to her, have any welfare consequences. On the basis of that unsustainable view of events, LCC has offered an apology to A and S for its failure to seek the discharge of the freeing orders.

The manner in which LCC has presented its case makes it important to recall that the primary failings in this case were front line social work failings, compounded by abusive behaviour in two foster homes. The inadequacy of the IRO system was an important secondary contributor, in that it did not pick up on and remedy the primary problem. This distinction is reflected in the balance of the Human Rights Act declarations as between the defendants.

Mr Sharpe and Mr Gilmore have nonetheless filed helpful submissions on the lessons to be learned, but again limited to the shortcomings in LCC’s IRO system. On A’s behalf it is acknowledged that much has been done by LCC recently to improve practice in relation to IROs.

In contrast, Mr H has filed a very full statement, and given supplementary evidence. He was IRO for A and S between 2006 and 2011 and is now the manager of the IROs in Lancashire. As part of his evidence, he elaborated on his plans for the improvement of the IRO system in the county.

His statement, rightly described by Mr Hayden QC for A as a remarkable document, contains an unsparing analysis of the respects in which he accepts that he failed the boys.

In his oral evidence, Mr H apologised to A and S. He said:

“The one thing I want to do today is apologise unreservedly to both the boys in court. I clearly got it wrong… The one thing about this whole situation that has troubled me the most is the denial of the opportunity to mum to come back into this case. It troubles me deeply. Again, I would seek to apologise to the boys for that.”

In his statement, Mr H accepts these specific shortcomings on his part:

Mr H’s evidence described a number of obstacles to his doing his job as he would have liked:

In his statement, Mr H describes the 27 reviews that he chaired between September 2006 and March 2011. They lasted just 45-60 minutes on average. These passages give the flavour:

The overall impression from the records is that until the removal of the boys from the Bs in February 2008, the reviews were of an ineffectual “let well alone” type, while subsequent reviews were dominated by crisis management, with longer term objectives being lost from sight.

In his statement Mr H describes the conditions under which he worked.

In oral evidence, Mr H emphasised the issue of IRO numbers:

He also emphasised the need for IROs within LCC to have better legal awareness about the consequences of legal status, and access to advice.

He did not see why this should be so, provided boundaries within the legal department were maintained:

He described what legal advice is now available to IROs in his team.

Mr Hayden QC asked for his assessment of the Lancashire IRO system as a whole.

Mr H’s frank evidence was not challenged by LCC, his employer, and in my view it goes a long way to explain the utter ineffectiveness of the independent reviewing system in protecting A and S’s interests. As Mr H acknowledges, his account of what went wrong is too late for A and S, but it may help other children and I commend him for having had the courage to speak up.

Freeing orders were introduced by the Adoption Act 1976, but only came into effect in January 1988. They remained available for nine years, until December 2005.

A freeing order extinguished a child’s membership of his birth family and entrusted sole parental responsibility to the local authority as adoption agency. A freeing order could only be made where there was a real prospect of a permanent family being found within twelve months. The term “statutory orphan” reflects the lack of legal tie to any natural person.

Any child who remains freed today has been a statutory orphan for more than 6 years. The freeing order cannot now be a true reflection of their care plan.

This not simply a matter of legal technicality, but has the welfare consequences that I have already described. There are also real problems with sole corporate parental responsibility existing for anything other than a short transitional period. Anyone, let alone a child, who relies entirely on professionals to make decisions for him depends on effective systems and professional commitment. Foster carers, employed by the local authority, are responsible for the day to day care of children. They are not well placed to hold local authorities to account, even if, as here, some do. The situation of a child in a children’s home is even more exposed.

By their nature, families, even those with major shortcomings, have a persistent quality that carers and social workers may lack. The involvement at some level of family members in the lives of children in public care can act as a stimulus to good practice, if only as a reminder to the state that, having removed the children, it is under an obligation to do better for them than their own family could do.

For these reasons, in December 2005, the Adoption and Children Act 2002 replaced freeing orders with placement orders, which do not remove the child’s legal tie to his family.

However, in this case, as Mr H says, “the idea of legal status as a welfare issue was never countenanced.”

Had A not taken himself off to get legal advice, both boys would have remained in limbo. It is unlikely that S’s situation would ever have come to light. He would probably have remained free for adoption until he reached adulthood.

Moreover, all meaningful family contact was taken away from A and S without anything durable replacing it. With every move, relationships and connections were broken, not just with carers, but with the carers’ extended families, and with schools and schoolmates. As the Guardian says:

“In my opinion, it is only by considering the total accumulation of placements A and S have been sent to, is it possible to encompass the extent of the disruption to their lives in care. In my opinion the consequences of such moves and all of its effects on them has significantly contributed S and A’s inability to trust – without which it is impossible to feel secure or to form safe attachments. A and S have been repeatedly let down and removed even from those who were for much of the time loving towards them that we can [hardly] begin to estimate the damage done.”

This process occurred despite the well-meaning efforts of a wide range of professionals, but the buck did not stop with any of them. The Guardian puts it this way:

“As far as I can discover, it has not been the intention of any one person in LCC’s care or legal staff (excluding the above foster carers) to ever fail the boys or act negligently but the accumulative process of regulation, policy and procedure has in my opinion significantly affected them in their years in care. As in all such cases of children ‘Lost in Care’ it is rare to find any one person who is responsible …”

On behalf of A, Freedom of Information Act requests were made to the 23 local authorities in the North West region.

This court has been informed that 16 responses have been received. These show that at the end of 2011, 14 children in those 16 authorities remained under freeing orders, including A and S and one other LCC child (K), whose case I have also had before me. The distribution of the other 11 children is as follows: Blackpool Council (1), Cumbria County Council (2), Liverpool City Council (2), Oldham Metropolitan Borough Council (1), Rochdale Metropolitan Borough Council (2), Salford City Council (1), St Helens Metropolitan Borough Council (2).

7 authorities have not provided information in response to the FOIA requests. Stockport Metropolitan Borough Council has said that it does not hold data as to whether any children are under freeing orders. 6 others have not replied:

It is known by the advocates in this case that there are at least three children still freed for adoption in these authorities; there may be more.

If the Directors of Social Services of those authorities who have not yet replied to the request do not do so now, those representing A have the remedies that the Freedom of Information Act provides.

On behalf of A, it is submitted that the court should itself take positive steps to promote the interests of these children. They propose that the court should invite all regional Directors of Social Services who have a freed child accommodated by them to provide details to A’s solicitor so that she can ascertain the circumstances of each child and report on them to the court.

I salute the commitment of A and his representatives to ensuring that the welfare of this group of vulnerable children is protected, but it is not the court’s role to require local authorities who are not before it to disclose information about children to outsiders. It might benefit some children, but it might unsettle others. I also bear in mind that this is not just a regional issue.

The court does, however, have a responsibility to bring the situation to wider attention. I will send a copy of this judgment to the Children’s Commissioner, to the President of the Family Division, and to Designated Family Judges in the North-West. I give permission to those representing A to send a copy to Directors of Social Services in the region.

Of further significance is the position of the larger number of children who are living under failed placement orders, for which there is a formal statutory route (ACA 2002 s.24) by which a local authority or a parent with permission can apply to revoke the order. The Guardian writes:

“Finally, in my view, there does seem to me to be a potentially wider issue arising from cases such as this, of the need for Local Authorities to be diligent in bringing changes of Placement Orders back to court under the Adoption and Children Act 2002… where Adoption orders are not pursued or an adoption fails.”

The Guardian’s comments on the amount of respite care that these boys experienced deserves to be heard:

“The use of respite care in general is commonly a default mechanism to protect the foster placement from breakdown. When respite care is consistent and reliable the effect on the child can be benign as going camping might be, but as we see with S and A it has, in my opinion, directly added to their by now hardened and institutional response to being moved about, with emotions perhaps more akin with the uncertainty and anxiety of travellers being put out on the road and finding new camps.

Far from having a few transitions of placement over the years, both A and especially S have had a bewildering array of respite care. The behaviour described… illustrates how S in particular has sadly and dangerously learnt to see family life as a temporary facade where emotional warmth cannot be trusted and even those who say they care always end up throwing you out. This requires particularly bizarre mechanisms for self survival.

… There have been far more moves as opposed to placements and although these may be disregarded as “holidays” or “breaks” we need to be clear it was the foster carer who was having the break.

During their long placement [with the Bs between 2002 and 2008], A and S were placed with respite carers 24 times comprising of 13 different foster placements over the course of 5 years 8 months. The constructive view is that such placements offered A and S the weekend away or a break, but, in my opinion, the accumulative impact of so many moves was to fragment further their lack of feeling they belonged to anyone, compounding their insecurity and lack of well being.

As a result of the years of such bewildering changes of care, often required so as to maintain exhausted care placements, it becomes evident how the damaging outbursts of violent anger and frustration displayed by S and at other times A with the SG’s had come about through the never knowingly intended consequences of corporate care on their emotions and behaviour.”

Respite care will continue to be an essential element in many foster placements, but it is important that the impact on the looked after child is considered alongside the benefits to the foster carers and the placement overall.

Mr Hayden and Ms Cavanagh describe the task of the IRO as being to monitor, persuade, cajole, encourage and criticise fellow professionals in the interests of the child. A and S’s experiences demonstrate that none of this happened in Lancashire between 2004 and 2011, at least in their case.

Since Mr H became IRO to the boys in 2006, the system has evolved nationally in four main ways:

Locally, on the basis of information supplied in these proceedings, LCC has now awoken to the need to invigorate its own service. Many of these initiatives are benefiting from the work of Mr H himself as a Senior IRO. There must nonetheless be concerns that a system that did not work for these children at a time of relative affluence will be affected by rising responsibilities and diminishing local authority resources.

A further important point is that the Family Justice Review [3.18] recommends that courts should take fewer decisions about care plans, with wider powers being entrusted to local authorities, making efficient IRO systems all the more vital.

The parties have developed these issues in the course of detailed, thoughtful submissions. They submit that, in order to be effective, the IRO service must achieve:

On behalf of LCC, Mr Sharpe notes that as part of the agenda for modernisation of the Family Justice System, Mr Justice Ryder has indicated that 'pathways' identifying solutions to particular problems will be introduced. He persuasively submits that the integration of the IRO into the process of producing the best outcome for children may be an area which would benefit from such a pathway.

The Family Justice Review at [3-116] found that:

“…the work of IROs and their impact needs to be more clearly seen and understood.”

I therefore give a short account of the evolution of the reviewing system.

The Review of Children’s Cases Regulations 1991, brought in with the Children Act 1989, placed a duty on the local authority to review the case of each looked after child. There were duties to seek and take into account the views of the child and others prior to the review, to secure attendance at reviews, and to notify the decisions of reviews to the child and others, as well as duties to record, monitor and implement decisions.

However, in 2002 the House of Lords identified a group of looked after children who lacked an effective remedy in the event of a failure by their local authority to meet its statutory duties in respect of them and to promote their Convention rights. This was in the “starred care plan” case, which passed through the Court of Appeal as Re W & B: Re W (Care Plan) [2001] EWCA 757, [2001] 2 FLR 582, before going to the House of Lords as Re S (Minors) (Care Order: Implementation of Care Plan); Re W (Minors) (Care Order: Adequacy of Care Plan) [2002] 1 FLR 815.

The Court of Appeal (Thorpe, Sedley and Hale LJJ) referred to this group of children as one where “for any one of many reasons the parents may not be available to exercise their rights or they may be unable or unwilling to do so”, while Lord Nicholls described them as “young children who have no parent or guardian able and willing to become involved in questioning a care decision made by a local authority”.

The courts identified these children as being among the most vulnerable in the system; A and S must be firmly in this group, in that they not only lacked involved relatives but also had a learning disability.

The remedy chosen by the Court of Appeal was to introduce a scheme of “starred milestones” in care plans, non-compliance with which enabled a court to review the operation of the care order by the Local Authority after the end of the original proceedings. The House of Lords, allowing the appeal, held that the procedure introduced by the Court of Appeal went beyond the proper ambit of statutory interpretation. However, it acknowledged the need for a proper, independent mechanism to review the local authority’s discharge of its responsibilities under a care order. Lord Nicholls identified a “pressing need for the Government to attend to the serious practical and legal problems identified by the Court of Appeal or mentioned by me”.

Ironically, at that very moment in 2002, A and S had just been freed for adoption and should have benefited from any improvements in the system.

The consequence of the call for reform was the creation of the Independent Reviewing Officer, a defined role with enhanced responsibilities. The Adoption and Children Act 2002 provided for regulations imposing an obligation on the local authority (now found in CA 1989 s.26(2)(e)(i)):

Regulations would also provide (s.26(2)(e)(k)) for the authority to appoint a person (the IRO) in respect of each case, who would

The status of IRO was created with effect from 27 September 2004. The scheme was brought in by the Review of Children’s Cases (Amendment) (England) Regulations 2004 and the Independent Reviewing Officers’ Guidance, published that year.

At the same time, the Children and Family Court Advisory and Support Service (Reviewed Case Referral) Regulations 2004 extended the functions of CAFCASS so that on a referral from an IRO they could consider bringing proceedings for breaches of the child’s human rights, judicial review and other proceedings.

These provisions applied to Mr H’s period as IRO for A and S.

The IRO initiative was not regarded as successful and a Green Paper consultation (“Care Matters” Cmd 6932 [2006]) found that:

The list could have been based on A and S’s case.

Professional criticism of the performance of the IRO system was also recorded in S (A Child Acting by the Official Solicitor) v Rochdale Metropolitan Borough Council and the Independent Reviewing Officer [2008] EWHC 3283 (Fam), [2009] 1 FLR 1090. The Official Solicitor, through Mr Hayden QC, referred to the IRO in that case as having been supine and ineffective.

Meanwhile, the number of formal referrals to CAFCASS has been very low (see paragraph 215 below).

A new regime has been in force since April 2011. By ss.25A-25C of the Children Act 1989 Act (inserted by section 10 of the 2008 Act) responsibilities have been extended from monitoring local authority performance in relation to a child’s review to monitoring its performance in relation to a child’s case. The intention is that the IRO to have an effective independent oversight of the child’s case and ensure that the child’s interests are protected throughout the care planning process.

The present role of IROs is governed by

Paragraph 1.19 of the IRO Handbook describes the amended 1989 Act and the Regulations as specifying:

Specifically, paragraphs 3.38 and 3.39 of the Handbook provide that:

These are detailed responsibilities. To carry them out properly needs time and care.

Significantly, s.11 of the 2008 Act includes a power to confer the delivery of IRO services on a national body, outside the control of local authorities, if the measures to strengthen the IRO function do not now contribute to a significant improvement in outcomes for looked after children.

On behalf of LCC, Mr Sharpe submits that the guidance that was previously lacking is now available. He also draws attention to guidance produced by the National Association of Independent Reviewing Officers. NAIRO’s Draft Code of Practice for IROs (June 2011) is published on http://nairo.org.uk. This provides details of the experience required to undertake the role of an IRO, the nature of the reviews, the voice of the child and how that should prevail within the review. It also provides guidance on how the IRO should, if necessary, seek to challenge the Local Authority. It states that the core task of an IRO is to manage the review and to chair that review in a way which should:

At the same time, NAIRO published a Protocol for the management of the IROs within Local Authorities. This provides guidance for the IRO managers about the support that they should offer to the IROs whom they manage.