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Case No: WR15Z00014
IN THE FAMILY COURT AT WORCESTER
IN THE MATTER OF THE CHILDREN ACT 1989
IN THE MATTER OF THE ADOPTION AND CHILDREN ACT 2002
AND IN THE MATTER OF B
His Honour Judge Rundell
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Worcestershire County Council
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The child (2)
By the Child’s Guardian)
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Hearing date: 12 January 2016
Judgment handed down 29 January 2016
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- The child, B, is now ten years
old. His mother is Ms S. His father is thought to be Mr H, a Schedule 1
offender. He does not hold parental responsibility. Mr H refused to
undertake a DNA test and played no part in the proceedings in 2010/2011,
which concluded in my making a care order and a placement order on 23
February 2011 in respect of B, who was then three months short of six
- At the same time, I continued an
order, made earlier during the course of those proceedings, pursuant to
s34(4) of the Children Act 1989, authorising the local authority to
withhold contact between mother and son. This order, made with the
agreement of the Guardian, was necessary to protect B from the harmful
impact of potential contact with his mother.
- The local authority’s plan for B,
in 2011, was that he should be adopted. In view of his very serious
behavioural difficulties, this was always likely to be a difficult task.
In those circumstances the realistic contingency plan for B was for
long-term foster care. He had been in foster care during the course of the
proceedings; he has lived with his present foster carers since 10 June
2010, when he was just 5. His last contact with his mother was some three
months earlier; after that she failed to attend appointments, contact was
suspended and the s34(4) order was sought and made.
- The inevitable reservation
whether the plan would prove feasible was entirely justified.
Notwithstanding, no doubt, a careful search for appropriate adopters, none
was found able and willing to care for B. Eventually, at a looked after
children ("LAC") review on 23 November 2011, his plan was
changed to one of long-term foster care. In February 2012 the appropriate
local authority panel formally agreed the change of plan. Later that same
month his mother was informed of his changed status.
- At that stage the local authority
ought to have sought to revoke the placement order. Had they done so, the
matter would have returned to court, a Guardian (in all probability the
same Guardian who acted for B in the care proceedings) would have been
appointed to protect his interests. His mother would have had the
opportunity, if she was so minded, to seek contact with him.
- None of this happened. A
succession of LAC reviews took place (some 7 in all) before, in February
2015, the local authority presented an application for revocation. During
the course of that three-year period the Independent Reviewing Officer
("IRO") took no adequate action to progress the matter.
- A similar (but far more serious)
example of such failure gave rise to the decision of Peter Jackson J in A
and S v Lancashire County Council  EWHC 1689 (Fam). In that case the
judge described the situation in this way, "One lesson is that the
legal status of children in care has welfare consequences. If the court
has authorised the 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."
- During these present proceedings
mother has not sought to become actively involved; she does not oppose the
local authority’s application. Mr H, true to form, has not engaged.
- During the course of the
proceedings the Guardian, who also did not seek to oppose the application,
indicated an intention to make a claim, on behalf B, against the local
authority in respect of alleged breaches of the child’s Article 6 and 8
rights under the European Convention of Human Rights, pursuant to the
Human Rights Act 1998 s6(1).
- In due course Particulars of
Claim were served, seeking declarations and damages from the local
authority, in respect of its failings, and those of the IRO service, for
which it is vicariously responsible. At a case management hearing on 1
July 2015 the authority accepted in principle that declarations should be
made but resisted the claim for damages. That stance is repeated in the
formal Defence, dated 28 August.
- The power to award damages in
cases such as the present is to be found in sections 7 and 8 of the Human
Rights Act. The local authority concedes that the power exists and applies
in this instance. It is submitted, however, that this is not a case where
damages should be awarded. Section 8, so far as it is material, provides
that the court "may grant such relief or remedy, or make such order,
within its powers as it considers just and appropriate" (s8(1)), but
that "no award of damages is to be made unless, taking account of all
the circumstances of the case, including ….. any other relief or remedy
granted, or order made, in relation to the act in question….. the court is
satisfied that the award is necessary to afford just satisfaction to the
person in whose favour it is made" (s8(3)). It is important, in my
judgment, to note that any relief must be "just and appropriate"
and must be "necessary to afford just satisfaction".
- The various authorities to which
I have been referred emphasise the need to consider all the relevant facts
of any particular case and that the decision to award damages and, where
such an award is made, the quantum of damages, are "highly fact
sensitive". Whilst not wishing to overlook any other matters, it
seems to me that the most important factors are the severity and length of
any breach of Convention rights, and the impact of such breach on the
child, together with the circumstances of any procedural failure.
- In the present case the local
authority failed for three years to take the obvious step of seeking to
revoke the placement order. B’s circumstances were considered on numerous
occasions by the authority at LAC reviews but, despite some references to
seeking revocation, nothing was done in this respect. Equally, the IRO did
nothing to ensure that an application was made. Both the authority and the
IRO service tender apologies and seek to assure the court that their
processes have improved and that there will be no repetition of such a
- Far more important was the local
authority's failure, and a similar failure on the part of the IRO, to give
proper consideration to the question of contact between B and his mother
and, maybe, also his father, together with the possibility of sibling
contact. Ms S, after B had been taken into care, gave birth to two
children (by a different father), M, born 2010, and T, born 2012. Mr H had
already fathered four children, D, J, C and L (who was adopted at the age
of four), now aged respectively 19, 17, 16 and 15.
- In a detailed skeleton argument,
prepared by Ms Tompkins and adopted at the hearing by Ms Temple Bone, the
local authority itself, and acting on behalf of the IRO service, concedes
that B's Article 6 and 8 rights were breached and that appropriate
declarations should be made. I will make those declarations which are
annexed to this judgment.
- Most of the authorities to which
I was referred concern cases where children have been unlawfully removed
from their parents’ care; where the provisions of s20 of the 1989 Act have
been ignored. However, as the Lancashire case shows, late revocation of
placement orders is not uncommon; indeed, it is not only a phenomenon
known to the courts in the north-west of the country, the West Midlands
courts experience is the same, although reported cases are be rare.
- This case is unusual. When the
placement order was made, mother was the subject of a s34(4) order and
father (if he is B's father) did not engage in the proceedings. It could
easily be said, therefore, that, in 2011, it was not in B's best interests
to have contact with either adult. The question remains, however, whether
that situation continued through into 2015?
- There are two particular factors
which, on behalf B, Ms Kushner relies. First, she submits that, by virtue
of the local authority’s failures, B has lost his opportunity to have the
matter ventilated in court; his access to justice was denied. Had the
authority made a revocation application, B would have had a guardian
appointed to protect his interests. Who knows what might then have arisen?
He therefore lost the chance of resuming contact with his mother at that
time. She might have reformed or, when told of the local authority’s
change of plan, and with the benefit of discussions with a guardian, been
galvanised into reform.
- Ms Kushner's second line of
argument concerns B's half siblings. He lost the opportunity, during 2012
to 2015, to begin to form a relationship with them. Again, who knows what
might have occurred? However, there must, at least, have been a chance
that he might have begun to develop a fulfilling sibling relationship with
at least one of them; the three-year delay may well have damaged that
- Ms Kushner submits that once the
plan for B had changed, the local authority's obligation was to promote
contact, provided it was in his interests; it must "recalibrate"
and, at the very least, give serious and meaningful consideration to the
prospect of contact. By acting as it did, it denied B access to the court
and denied him, and a guardian, the opportunity to investigate the
potential for contact.
- She pointed to a line of cases
decided by the European Court of Human Rights where such a denial of
access of justice and subsequent loss of opportunity was found sufficient
to entitle an applicant to an award of damages, notwithstanding, certainly
in some of the cases, the absence of a direct causal link between the
breach of a convention right and subsequent damage. She also referred me
to a recent decision of Keehan J in Northamptonshire County Council v AS
and others  EWHC 199 (Fam) where he awarded a very young child
£12,000 damages following an unlawful removal from his mother's care; in
that case no causal link appears to have been established.
- On behalf of the local authority,
Ms Temple Bone conceded that this was a bad case but contended that there
was no causative link between breach and damage; she submitted that no
loss had been proved. B is thriving in his foster placement, as the
Guardian herself accepts.
- Ms Temple Bone pointed out that B's
mother was told in 2012 that his plan had changed to one of long-term
foster care and, notwithstanding that on 15 May 2012 she expressed
"interest in face-to-face contact" she has made no application
to the court. That, of course, may be because social workers told her that
they would not support direct contact. She has, recently sent B a letter.
- B was told about his maternal
half siblings in February last year. The local authority argues that it
would have been wrong to tell him before because M was suffering from
leukaemia; that may or may not have been the correct analysis, but it was,
inevitably in the circumstances, reached without the input of a guardian.
In any event, M and T now live with their father who is apparently reluctant
to agree to them seeing B at the present time; again, this is a decision
reached without the benefit of a guardian's input.
- It may well not be in B's best
interest for him to have contact with Mr H (even assuming that he is B's
father). If they are paternal half siblings, Mr H's
boys are significantly older than B; he was not aware of their existence
either until 2015. They all appear to be somewhat needy children and the
social worker’s view is that the absence of contact has not had a negative
impact on B. Once more, that is a conclusion reached without the benefit
of discussion with the Guardian.
- I must be careful not to yield to
the temptation to make an award of damages by way of sanction of the local
authority and IRO service in respect of their manifest, and admitted,
failures. An award of damages should only be compensatory and, in the
present circumstances, should only be made "where necessary to afford
- In this case, given the length of
time involved and the severity of the breaches of B's convention rights,
taken together with the impact of such breaches in the form of his loss of
access to justice and the lost opportunity, over three years, to develop a
relationship with at least one of his half siblings, I consider that it is
appropriate, just and proportionate to make an award of damages. In my
judgment there has been here a lost opportunity for this child to make
contact with members of his extended family; the passage of time is likely
now to make this more difficult.
- How is this lost opportunity (the
loss of a chance) to be quantified into an award of damages? This is a
task undertaken frequently in the civil courts in assessing damages for
future loss in personal injury cases. In the present case I bear in mind
that B's own behavioural difficulties and his mother's limitations (in
particular her past behaviour, leading to a s34(4) order being made). I
also consider that the prospect of his ever achieving beneficial contact
with his father was remote, and that fulfilling contact (even indirect)
with the paternal half siblings is unlikely. However, there must be a real
possibility of his establishing contact with his maternal half siblings,
and the passage of time is likely to have damaged that prospect.
- In all the circumstances, I have
concluded that the damages, which are necessary to afford B just
satisfaction in this case, should be modest, but more than nominal. Having
regard to the level of damages in the decided cases to which I have been
referred, I would award him £5000. I do not consider it necessary to make
separate awards against local authority and IRO service; it seems to me
that they should bear responsibility roughly in equal shares.
- I turn now to the question of
costs. The parties recognise the extreme difficulty in this area caused by
the legal aid agency regulations. B's solicitor has researched this aspect
of the case; her helpful position statement is contained within the court
bundle and has not been the subject of any challenge. B has the benefit of
a full legal aid certificate, covering the revocation application and, by
a subsequent amendment, the human rights claim. The usual rules in
relation to the agency's statutory charge cover both of these proceedings
and would do so regardless of whether the human rights claim was separated
from the revocation proceedings.
- The most recent cost schedule
served by B's solicitor shows her costs to amount to £6700. It follows,
therefore, that the statutory charge will take the whole of the damages
unless I also make an award of costs in B’s favour.
- I am faced with a stark choice,
either I make the usual order in Children Act cases, no costs, the result
of which will be that B receives not a penny and renders the entire
exercise pointless (save for the making of declarations, which will be of
no practical benefit to the child), or I order the local authority to pay
the costs of the proceedings. Ms Temple Bone invites me to adopt the
former course, arguing that the local authority ought not to be required
to make good the defects in the legal aid regime. On the other hand, Ms
Kushner invites me to make an order for costs, to give meaningful effect
to my award of damages.
- I prefer the latter approach. I
have found the local authority and the IRO service, both public
authorities, on their own admissions, to be seriously at fault and to have
breached B’s convention rights in a variety of respects and have concluded
that it is appropriate that he should be awarded damages by way of just
satisfaction. Another public authority has made regulations which would
effectively prevent him from receiving those damages. That cannot be
right, and is certainly neither just nor proportionate. The justice of the
case demands that B receives his damages and that, therefore, the local
authority must pay the entire costs of these proceedings, on the standard
basis, to be subject to a detailed assessment if not agreed.
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