A council has been ordered to pay £17,500 in damages for an “unjustified” breach of a child’s human rights while she was accommodated in a section 20 arrangement.
Judge Theis ruled that the 14-year-old girl, who was in a section 20 arrangement for almost four years, was denied her rights to a fair trial and family life because Kent council failed to issue legal proceedings for over three years and did not properly assess her needs while in care.
At the same time the girl’s mother, who still held parental responsibility, “was not in a position to challenge the actions, or inaction, by the [local authority]” due to her own vulnerabilities.
The judge also ruled a care order be made to ensure the girl, referred to as K, remained in her current long-term foster placement.
Security and stability
K had seven different foster placement during her time in care. The judge found that the lack of security and stability these placements offered caused her harm. This was because K was “acutely aware” that her mother could remove her at any time.
The child’s guardian, on behalf of K, brought the breach of human rights claim to court. The judge ruled the local authority had failed to properly assess K’s needs while in care, delayed issuing legal proceedings for over three years and failed to implement a care plan that met her needs.
This meant the girl was denied a “proper opportunity to secure a suitable long-term placement and a settled and secure home life” and the council “deprived K from the protection afforded to children under the Children Act 1989 and access to the court and the procedural protection of a guardian”.
A number of recent legal judgments have criticised how local authorities are using section 20 arrangements. Community Care Inform subscribers can read our guide to putting the case law into practice which summarises the legislation, what judges have said, guidance from Cafcass and the ADCS and explains how section 20 should now be used.
The local authority argued it had worked closely with the mother throughout, and the common issues in section 20 cases like parental consent and a lack of agreement over a care plan had not featured in this case. It also submitted that section 20 arrangements do not carry a time limit.
Abdicated parental responsibility
The judge however ruled that K’s mother had “to a large extent abdicated her parental responsibility to the [local authority].”
While the mother had some involvement in decision making, she did so reactively and was not in a position to challenge the action or inactions of the local authority due to her own vulnerabilities.
The fact she did not challenge the local authority inactions, and was “reactive” to decisions about K, demonstrated her inability to exercise parental responsibility for the girl’s benefit, Theis said.
She said the way K’s mother exercised parental responsibility “does not absolve the [local authority] from actively considering whether it should secure its legal position in relation to the child concerned”.
“The circumstances in this case demanded for K’s article 8 and 6 rights to be protected, for the [local authority] to secure their legal position regarding K,” Theis added.
She quoted Sir James Munby’s judgment in Re N, where he said the use of section 20 as a long prelude to care proceedings was “wholly unacceptable” and a “misuse by the local authority of its statutory powers”.
Significant emotional harm
K was accommodated by the local authority in 2011. She had previously been living with her aunt as her mother had been unable to cope with her. Kent had completed a core assessment on the child earlier that year when she was living with the aunt – but failed to update this for more than two years following. The initial assessment said the mother needed to address her own mental health needs.
The judge found K had “experienced inconsistent care from [her mother], causing K to suffer emotional neglect which caused her significant emotional harm”.
While there is no time limit on providing section 20 accommodation, the judge said each case had to be considered “on its own facts”.
“In this case care proceedings would have helped significantly to provide the stability and security that K so clearly needed. K would have had the benefit of a guardian and legal representative to give her an effective voice regarding the [local authority] failures and enabled the [local authority] to share [parental responsibility] with [the mother].”
Throughout the girl’s time in care it was found the local authority failed to act on suggestions to review her legal status. In 2012 a looked-after child review said “a legal planning meeting needs to be pursued with regard to care proceedings”.
In 2012 the mother agreed to a plan that it would be better for K to stay in foster care as none of the family were able to accommodate her.
The judge referenced recently published Cafcass and ADCS guidance which said: “As soon as the care plan changes away from a return home to a need for a longer period in care, the child should be subject to the same permanency planning considerations as all other children in care”.
Theis said: “It is clear that in this case K did not have a pro-active robust care planning process. The repeated failure to follow through decisions made at previous meetings with ineffective [independent reviewing officer] oversight meant that K’s welfare needs were not given the priority they obviously required.”
In 2014 a psychotherapist told a social worker that uncertainty about K’s future was “affecting [her] emotional well-being” and that the girl was “positioned between two families and needs to know who she is going to live with long term”.
The psychotherapist added that since foster carers were unable to reassure K about her long-term future, it impacted her attachment with them.
Records from December 2014 found ongoing concerns about the child’s legal status and how it impacted on her placement. They said she needed “to be spoken to urgently by her social worker tomorrow as she needs to feel validated and listened to and clearly needs an explanation about her current status in care and why she is not in her mother’s care”.
Inconsistent and unpredictable
The guardian told the judge K had been “left in a situation where she was receiving inconsistent and unpredictable care and where her emotional needs were not being met…It appears likely that this will have increased the risks of [K’s] difficulties becoming more entrenched and a high risk of her developing emotional difficulties”.
Theis found the council had acted unlawfully due to eight reasons, including a repeated failure by the local authority to act on its own decision to seek legal advice to secure K’s position, which she called “not justified in any way”.
Reliance on the unlimited term of section 20 “simply cannot be justified in a factual vacuum”, Theis said, and she felt that if the proceedings had been issued earlier, assessments the local authority failed to do would have been more likely to be ordered by the court, she added.
The judge found Kent council had acted unlawfully, and ordered them to pay £17,500 in damages, plus the costs of the human rights application.
A Kent County Council spokesperson accepted the findings, and said: “We acknowledge and accept the findings of the court in relation to this case and the criticism of the delay in initiating care proceedings.
“We have worked hard over a number of years in supporting this child and her family though it is regrettable that she has experienced disruptions both in terms of placement and social worker.
“Happily she is now in a more settled position and we will continue to do our utmost to ensure that she receives the consistent levels of care and support that she requires.”