Social services - Adoption - Freeing orders remaining in place
Re A & S (children) (failed freeing order): Family Division, Liverpool District Registry (Mr Justice Peter Jackson): 21 June 2012
A and S were born in 1995 and 1997. In February 1998, they went into the care of the first defendant local authority. In October, care orders were made and the children were placed with a paternal aunt. The placement broke down after a year and the boys re-entered foster care. There was no available placement within the birth family. In November 2000, the authority applied to free the boys for adoption. Freeing orders were made in March 2001, ending the boys' membership of their birth family. All contact with the birth family, including siblings, then stopped.
In 2001/2002, the boys spent nine months with abusive foster carers from whom they were removed after the police became involved. In December 2002, the boys' mother applied to revoke the freeing orders but subsequently withdrew her application following opposition from the authority and the Children's Guardian. In July 2002, they were placed with foster carers, Mr and Mrs B, and achieved some stability. In March 2004, the authority formally abandoned their plan for adoption. However, it never applied to revoke the freeing orders, which remained in place until the instant hearing.
Social workers repeatedly told the Independent Reviewing Officers (IRO) that legal proceedings to revoke the freeing orders were under way when they were not. In September 2006, H became the boys' IRO (the IRO). He recorded that in 2007 he had not followed up the freeing as he had been under the mistaken impression that a care order was in place. In February 2008, the placement with Mr and Mrs B ended when Mrs B assaulted A with a belt. In July 2008, the boys moved to live with Mr and Mrs SG.
In June 2010, S's behaviour became too much for the SGs to manage, and at their request did not return from a period in respite care. In October 2010, he was placed in a children's home and, in February 2011 he moved to his current children's home. Between 1999 and 2011, each boy was the subject of 35 Looked After Children (LAC) reviews. From March 2004, every LAC review recommended that the freeing orders ought to be revoked on an application by the authority. The boys' legal position was not referred to Cafcass Legal. The LAC reviews also gave recommendations and advice about contact. During an LAC review in 2006, the boys specifically asked to be allowed to see their brothers and the social worker agreed to discuss whether direct contact could take place.
However, there was no record of that being followed up. At age 16, A had had 12 main placements during his lifetime and had been placed in respite care 36 times, with 19 different respite carers. At age 14, S had had 16 main placements during his lifetime and had been placed in respite care 40 times, with at least 22 different respite carers. The failure to revoke the freeing orders A and S brought proceedings under the Human Rights Act 1998 (the 1998 Act) against the authority and its employee, the IRO. The issue which fell to be determined was as to the appropriate declarations in respect of breaches of the boys' human rights.
The authority and the IRO accepted that they had breached the boys' rights under articles 8, 6 and 3 of the European Convention on Human Rights and gave explanations of the failings which had occurred. The Children's Guardian gave evidence that both S and A were profoundly damaged by their journey through the care system. Consideration was given to the Children Act 1989 (the 1989 act).
The court ruled: Had the boys been under a care order, the authority 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 section 34(1) and schedule 2, paragraph 15(1) of the 1989 act. Further, the failure to revoke the freeing order had amounted to a denial of access to the court process and had deprived the children, inter alia, of the protection and scrutiny of having a Children's Guardian appointed for them, and legal representation appointed to act on their behalf, during an application to revoke their freeing orders.
In the circumstances, the authority and the IRO had acted incompatibly with the rights of A and S as guaranteed by articles 8, 6 and 3 of the Convention. LCC had, inter alia: (a) failed to provide A and S with a proper opportunity of securing a permanent adoptive placement with a settled and secure home life; (b) failed to seek revocation of the orders freeing A and S for adoption which effectively deprived them of the protection afforded to children under the 1989 act, contact with their mother and/or other members of their family, and access to the court and the procedural protection of the Children's Guardian; (c) permitted A and S to be subjected to degrading treatment and physical assault and failed adequately to protect their physical and sexual safety and their psychological health; and (d) failed to promote the rights of A and S to independent legal advice.
The IRO had: (a) failed to identify that A and S's human rights had been and were being infringed; (b) failed to take effective action to ensure that the authority acted upon the recommendations of LAC reviews; and (c) failed to refer the circumstances of A and S to Cafcass Legal. The IRO's evidence went a long way to explain the utter ineffectiveness of the independent reviewing system in protecting A and S's interests (see , , -,  of the judgment). An order would be made accordingly (see  of the judgment).
Per curiam: 'IROs need to have sufficient training and experience to recognise the importance of issues of the kind raised by A and S's case. These were children with increasingly complex needs, but there is no record of any serious consideration being given to important questions such as whether keeping them together was in their interests, nor any acknowledgement of the possible value and purpose of family contact... All that can be said is that there is an obligation on every local authority to ensure that IROs have access to legal advice. If this cannot be achieved by one means or another, it may be an argument for making reciprocal arrangements mandatory or even for removing IROs from local authority control altogether.' (see ,  of the judgment).
Anthony Hayden QC and Lorraine Cavanagh for A and S; Malcolm Sharpe and Patrick Gilmore for the authority; Jane Cross QC and Kathryn Korol for the IRO; Shirley Pollard for A's Special Guardians; Edward Clifford for A and S's Children's Guardians.