A mother and two children have been awarded £45,000 in damages after a judge found a council ‘abused’ a section 20 agreement and breached human rights law.
Judge Farquhar made the award after ruling West Sussex Council had acted unlawfully by exercising parental responsibility “in every conceivable area” of the children’s lives without the power to do so; failing to promote contact between the children and mother; and failing to issue care proceedings for almost two and a half years, which had denied the children independent representation.
Farquhar said the section 20 arrangement itself was valid but the council’s actions were the “clearest possible breach” of the right to a private and family life under Article 8 of the European Convention of Human Rights. He found the delay bringing care proceedings breached the children’s and mother’s Article 8 rights and their right to a fair hearing under Article 6.
He said: “I am satisfied that the inordinate delay in this case was unlawful and an abuse of the [section] 20 agreements that had been obtained.”
‘Breath-taking’ lack of urgency
The judge criticised the “breath-taking” lack of urgency around the case and said the section 20 agreement had led to “very poor outcomes” for the children.
He criticised the independent reviewing officer (IRO) for “a total failure” to challenge the council’s conduct in the interests of the children, adding: “This was clearly a case that should have come before the courts years before it actually did, yet the IRO did not appear to put any pressure upon the local authority to ensure this occurred.”
This guide written by Michael Jones, a family law barrister, is regularly updated with new case law and guidance from national agencies to help you ensure you are complying with the law and upholding both a child and their family’s rights.
Farquhar awarded each child damages of £20,000 and £5,000 to the mother.
Defending the duration of the section 20 arrangement, West Sussex council argued the arrangement had not been used as a long prelude to proceedings but instead with a view to securing a long-term special guardianship order placement with foster carers. Farquhar said this excuse was “even worse” than the section 20 arrangement being used as a long prelude to proceedings.
“It suggests that they were exercising all of the parental responsibility without even thinking that proceedings were to be commenced any time in the foreseeable future”, he said
Loss of chance
The children, referred to as ‘X’ and ‘Y’, were cared for by their aunt via a residence order following care proceedings in 2008. In 2013 they entered care through the section 20 arrangement after the aunt said she could no longer take care of them. The children entered the arrangement with the aunt’s consent, and later the mother’s.
During the course of their time in care, the children were separated, had no contact with each other or any other family member. One was in a placement which was not culturally appropriate.
The judge said the council’s actions had “at best” seen the “loss of a chance” for the children to be placed together, for there to be any contact between the children and the mother, and for a culturally appropriate placement to be found.
He added: “It is apparent that the end result for these children is not a good one. It is not possible now to say that the outcome would have been any different if proceedings had been issued in early to mid-2013 which should have occurred. However, it is difficult to see how the outcome would have been much worse.”
The hearing took place in December 2015. The judgment was published online this month.
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Appalling. I have been an IRO for a year and have pursued a few cases where there has been delay in getting to court and even then the local authority has been slow to act. This is why IROS should truly be independent and not employed by the local authority.
Here here! I second that! I too have done the same and initially was supported by previous management. Since new management took over, there is less focus on the needs of the child and the rhetoric has conveniently changed to ‘the needs of the service’.
Some Team Managers and senior managers will actively ignore the IRO and advise the social workers, particularly ASYE to do the same, citing that ‘it’s just the IRO, they can’t do anything, they just chair meetings’.
Until the role of the IRO is fully understood and respected in Local Authorities, particularly under performing ones, this is likely to continue.
Referring cases to CAFCASS is rarely done, and when it is, the IRO is usually then under intense scrutiny by their employer. I have hard of some LA IRO services having NO access to independent legal advice and others having to get ‘permission’ from senior managers who are not part of the IRO service at all, to contact the lawyers from their reciprocal partners! Where is the independence there? The senior managers are likely to say no anyway!
The practice in some Local Authorities is shocking in many cases and borderline corrupt.
The culture of IROs being pally with managers, not wanting to rock the boat and address major failings and losing sight of the children is endemic. I’ll be interested to see whether the pilot in Birmingham of CAFCASS running the service is extended with a view to another organisation taking over the functions of the IRO service. That, in my view would be the best move.
I agree with the above post. It is very difficult for IRO’s to take a stance against poor practice/delay/bad planning within their own LA even if they are well respected etc.