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England and Wales Family Court Decisions (High Court Judges) |
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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (High Court Judges) >> A & B (care orders and placement orders - failures) [2018] EWFC 72 (30 November 2018) URL: http://www.bailii.org/ew/cases/EWFC/HCJ/2018/72.html Cite as: [2018] EWFC 72 |
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Strand, London, WC2A 2LL |
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B e f o r e :
____________________
COUNTY OF HEREFORDSHIRE DISTRICT COUNCIL |
Applicant |
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- and - |
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A |
1st Respondent |
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- and - |
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B |
2nd Respondent |
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(by her Children's Guardian) |
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- and - |
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C |
3rd Respondent |
____________________
Ms Judi Evans (instructed by Huw Jones of Humfrys & Symonds) for the 1st Respondent
Ms Judi Evans (instructed by Huw Jones of Humfrys & Symonds) for the 2nd Respondent
The third respondent did not attend and was not represented.
Hearing dates: 11th October 2018
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Crown Copyright ©
The Hon. Mr Justice Keehan :
Introduction
i) the acknowledged breaches of their Article 8 rights; and
ii) the quantum of damages which should be paid in settlement of their Human Rights Act claims.
Background
Evidence
"In my view our service has failed to support [A] as I would expect since she first became homeless and in particular I would identify the following:
a. In May when [A] first contacted our team to say that she was homeless we should have offered her supported lodgings accommodation in Herefordshire with [F] on a temporary basis whilst a longer term solution was identified. We should also have pro-actively supported [A] to search for private rented options in Birmingham and made it clear to her that we would financially support her with a bond and act as a guarantor if required.
b. As time progressed and [A] continued to ask us for help and was not able to obtain suitable accommodation for herself in Birmingham we should have revisited these options and again offered her short-term solutions in Herefordshire and proactively supported her to find private rented accommodation. On the 15th June [A] specifically requested to return to Herefordshire but I can find no evidence of this being responded to which is unacceptable.
c. The situation should have been escalated through Heads of Service to our Assistant Director and Director who have all asked to be kept informed of any young person who is placed in Bed and Breakfast accommodation. In the turnover of team managers and Heads of Service this expectation was not understood.
d. On the 18th June [A] was informed that the local authority decision was that we would not pay a bond for her to secure private rented accommodation for her. This was not the case as this was agreed by the Head of Service when she was made aware of the situation. It is concerning that the team lack clarity about the support they are able to offer and did not escalate the situation earlier.
e. There was a delay of almost a month in authorising a placement request made in July and this is unacceptable. The delay was due to further information not being provided to the Head of Service but in the circumstances the Head of Service should have been more pro-active in gaining the information she required.
f. On the 11th October the personal advisor supported [A] and [F] to move from the Travel lodge to Northbrook hostel but did not look around the shared facilities. She described the accommodation as "basic" but did not raise concerns about the suitability of it for [A] and [F]. Having seen the photographs that [A] sent via her legal representative I was appalled by the state of the accommodation she was living in and was very clear that this was unsuitable and she should not have been left there.
4. [A] is currently living in a supported lodging placement in Herefordshire with her daughter, [F]. She moved there on Tuesday 23rd October as an interim arrangement whilst suitable private rented accommodation for [A] and [F] is sourced in Birmingham. I received photographs and an email that [A] had sent her legal representative on the 23rd October and I was appalled at the state of the accommodation that she was living in. I telephoned [A] directly myself and asked if she would be willing to move to a supported lodging placement in Herefordshire if I could arrange that whilst we sorted out a suitable place for her to live in Birmingham. [A] was concerned about moving away from Birmingham but I was able to reassure her that this would be for just a short time. [A] agreed and so I made arrangements for our fostering team to find a placement for her and [F] and for her personal advisor to go to Birmingham to collect her that day.
5. [A] was supported by her personal advisor to view flats in Birmingham on Thursday, 25th October and found a flat that she liked in an area that she is happy to live in. Herefordshire Council has paid 6 months' rent up front and all relevant administrative fees to enable [A] to move into the accommodation. [A] will pay the housing benefit that she receives to the local authority as she receives it. At the time of writing this statement the plan is that [A] and [F] will move into their new home on Friday, 2nd November.
6. [A] will continue to receive the support of her personal advisor. She is being referred for "floating support" and the most suitable provider for this is being investigated. The local authority will fund this support if [A] is not entitled to receive the support at no cost."
"[B] continues to live in a supported lodging placement with her boyfriend and his mother. She has lived there since March 2018. She is reported as happy living there although understands it is unusual to be living in the same home as her boyfriend at such a young age and is keen to move to live independently soon after she turns 18. She has been supported to register for housing and in the meantime can remain where she is. [B] will continue to receive the support of her personal advisor."
i) the mistakes and serious errors made in respect of A and B are not suffered nor endured by any other child or young person in the care of Herefordshire; and
ii) far more robust procedures are now in place to ensure issues are escalated to more senior managers and, where appropriate, to the assistant director and/or the director of children's services.
i) the lack of any coherent care planning for either child; nor
ii) the failure of the local authority to make applications to revoke the placement orders.
"It is very clear that the issue of revoking [B]'s placement order continued without resolution for a significantly long period of time, both prior to and since the data error was realised in early 2016. This length of delay is absolutely unacceptable and I apologise unreservedly to [B] and her sister. The IRO service failed to fulfil its statutory responsibilities to [B]. I failed to robustly challenge the views of my assistant director at the time, which I recognise I should have done and as head of service I take full responsibility for these failings and apologise unreservedly to the court."
This is a frank acceptance of a proper degree of responsibility by Ms Thomas. I accept her apology without reservation. Some of her actions or more properly her lack of action may be explained or, at least, put into context by a number of events set out in her statement which I shall now turn to consider.
Discussion
"(1)The independent reviewing officer must—
(a) monitor the performance by the local authority of their functions in relation to the child's case;
(b) participate, in accordance with regulations made by the Secretary of State, in any review of the child's case;
(c) ensure that any ascertained wishes and feelings of the child concerning the case are given due consideration by the local authority;
(d) perform any other function which is prescribed in regulations made by the Secretary of State.
(2) An independent reviewing officer's functions must be performed—
(a) in such manner (if any) as may be prescribed in regulations made by the Secretary of State; and
(b) having regard to such guidance as that authority may issue in relation to the discharge of those functions.
(3) If the independent reviewing officer considers it appropriate to do so, the child's case may be referred by that officer to—
(a) an officer of the Children and Family Court Advisory and Support Service;
(4) If the independent reviewing officer is not an officer of the local authority, it is the duty of the authority—
(a) to co-operate with that individual; and
(b) to take all such reasonable steps as that individual may require of them to enable that individual's functions under this section to be performed satisfactorily"
"The IRO must—
(a) so far as reasonably practicable, attend any meeting held as part of the review ("the review meeting") and, if attending the review meeting, chair it,
(b) speak to C in private about the matters to be considered at the review unless C, being of sufficient understanding to do so, refuses or the IRO considers it inappropriate having regard to C's age and understanding,
(c) ensure that, so far as reasonably practicable, the wishes and feelings of C's parents, or any person who is not C's parent but who has parental responsibility for C, have been ascertained and taken into account, and
(d) ensure that the review is conducted in accordance with this Part and in particular—
(i) that the persons responsible for implementing any decision taken in consequence of the review are identified, and
(ii) that any failure to review the case in accordance with this Part or to take proper steps to implement decisions taken in consequence of the review are brought to the attention of an officer at an appropriate level of seniority within the responsible authority.
(2) The IRO may, if not satisfied that sufficient information has been provided by the responsible authority to enable proper consideration of any of the matters in Schedule 7, adjourn the review meeting once for not more than 20 working days, and no proposal considered in the course of the review may be implemented until the review has been completed."
"The responsible authority must—
(a) make arrangements to implement decisions made in the course, or as a result, of the review, and
(b) inform the IRO of any significant failure to make such arrangements, or any significant change of circumstances occurring after the review that affects those arrangements."
"(1) The IRO must ensure that, having regard to C's age and understanding, C has been informed by the responsible authority of the steps C may take under the 1989 Act and in particular, where appropriate, of—
(a) C's rights to apply, with leave, for a section 8 order (residence, contact and other orders with respect to children) and, where C is in the care of the responsible authority, to apply for the discharge of the care order, and
(b) the availability of the procedure established by them under section 26(3)(1) for considering any representations (including complaints) C may wish to make about the discharge by the responsible authority of their functions, including the availability of assistance to make such representations under section 26A(2) (advocacy services).
(2) If C wishes to take legal proceedings under the 1989 Act, the IRO must—
(a) establish whether an appropriate adult is able and willing to assist C to obtain legal advice or bring proceedings on C's behalf, and
(b) if there is no such person, assist C to obtain such advice.
(3) In the following circumstances the IRO must consider whether it would be appropriate to refer C's case to an officer of the Children and Family Court Advisory and Support Service—
(a) in the opinion of the IRO, the responsible authority have failed in any significant respect to—
(i) prepare C's care plan in accordance with these Regulations,
(ii) review C's case in accordance with these Regulations, or effectively implement any decision taken in consequence of a review,
or are otherwise in breach of their duties to C in any material respect, and
(b) having drawn the failure or breach to the attention of persons at an appropriate level of seniority within the responsible authority, it has not been addressed to the satisfaction of the IRO within a reasonable period of time.
(4) When consulted by the responsible authority about any matter concerning C, or when informed of any matter relating to C in accordance with these Regulations, the IRO must—
(a) ensure that the responsible authority have ascertained and, subject to C's age and understanding, given due consideration to, C's wishes and feelings concerning the matter in question, and
(b) consider whether to request a review of C's case."
"(1) The IRO must be registered as a social worker in a register maintained by the General Social Care Council or by the Care Council for Wales under section 56 of the Care Standards Act 2000(1), or in a corresponding register maintained under the law of Scotland or Northern Ireland.
(2) The IRO must have sufficient relevant social work experience with children and families to perform the functions of an independent reviewing officer set out in section 25B(1) and under these Regulations in an independent manner and having regard to C's best interests.
(3) The responsible authority must not appoint any of the following as the IRO—
(a) a person involved in preparing C's care plan or the management of C's case,
(b) R,
(c) C's personal adviser,
(d) a person with management responsibilities in relation to a person mentioned in sub-paragraphs (a) to (c), or
(e) a person with control over the resources allocated to the case."
"The IRO's primary focus is to quality assure the care planning and review process for each child and to ensure that his/her current wishes and feelings are given full consideration. To be successful, the role must be valued by senior managers and operate within a supportive service culture and environment. An effective IRO service should enable the local authority to achieve improved outcomes for children."
"IROs then are well placed to assess the quality and effectiveness of local authority planning and support for children. The IRO has a crucial role to play in ensuring that the local authority fulfils its responsibilities as a 'corporate parent' for all the children that it looks after. The IRO should ensure that the child is offered stable care that is sensitive and appropriate to each individual's personal needs so that the child is able to flourish and achieve. The plan for each child must demonstrate how the services provided have fully taken account of the child's wishes and feelings."
"The primary task of the IRO is to ensure that the care plan for the child fully reflects the child's current needs and that the actions set out in the plan are consistent with the local authority's legal responsibilities towards the child. As corporate parents each local authority should act for the children they look after as a responsible and conscientious parent would act."
"The role of the IRO is a specialist one which stands alone in the local authority. It is a role that may involve challenging senior managers and may require the IRO to seek legal remedies if the local authority fails in its duties."
"The independence of the IRO is essential to enable him/her to effectively challenge poor practice. The Regulations do not prescribe the position of the IRO within the local authority but do prescribe minimum levels of independence"
"The IRO is responsible for setting any remedial timescales if actions have not been taken and there is a risk of drift in the delivery of a plan that will meet the child's needs and planned outcomes within the child's timescale."
"In addition to advising the child of his/her right to make applications to the courts, the review must consider whether there should be any change to the child's legal status. The IRO should read all the assessments that have informed the current legal status, including the core assessment, and be satisfied that the child's welfare continues to be safeguarded and promoted by this status. If the legal status of the child appears to be no longer appropriate, the IRO should request confirmation from the social worker and their manager that the local authority has given due consideration to the issue and if the response to this is not satisfactory s/he will need to resolve the issue through other routes or through implementation of the local dispute resolution process"
"The IRO must identify the person responsible for implementing the decisions and the IRO must alert the accountable manager to any failure to take proper steps to implement decisions"
"The IRO has the power to refer the matter to Cafcass at any point in the dispute resolution process [regulation 45] and may consider it necessary to make a concurrent referral to Cafcass at the same time that s/he instigates the dispute resolution process."
"The individual IRO is personally responsible for activating the dispute resolution process, even if this step may not be in accordance with the child's wishes and feelings, but may, in the IRO's view, be in accordance with the best interest and welfare of the child, as well as his/her human rights."
"There will be times when the IRO may be advised that obstacles in the way of resolving the issue are outside or beyond the control of the local authority, for example in relation to staffing, interagency or resources issues. However, if these are impacting on the ability of the department to meet the needs of a child as identified in the child's care plan, the IRO should continue to escalate the issue."
"Each local authority should have a system in place that provides its IROs with access to independent legal advice. The reason for this is that the IRO works within a complex legal framework, with a number of other professionals and adults who have access to their own legal advice. The IRO may feel isolated and vulnerable in this position. It is essential that the IRO too can access independent legal advice, in addition to seeking the advice and support of the IRO manager. In the past some local authorities have been of the view that Cafcass duty lawyers provide this service. However, Cafcass duty lawyers can only provide guidance, not legal advice. Other local authorities have considered it sufficient for an IRO to seek advice from its own legal department. This is clearly not independent."
"It is important that this service is easily accessible by individual IROs and that IROs do not have to struggle to access it."
Conclusions