A & S (Children) v Lancashire County Council  EWHC 1689 (Fam) (21 June 2012) Summary
In this case, brothers aged 16 and 14 took action under the Human Rights Act 1998 (UK) in relation to their treatment while in the care of the Lancashire County Council.
The England and Wales High Court declared that the Council and one of its employees, an Independent Reporting Officer, had acted incompatibly with the boys’ right to respect for private and family life, their right to a fair trial and the prohibition of torture.
A (aged 16) and S (aged 14) were placed into the care of the Council in 1998 when they were 2¾ years and 6 months old. Their parents had separated, their father was homeless and their mother had abandoned them. Their father later died of an overdose and in 1999 the boys were placed in foster care.
In 2001 “freeing orders” were made in respect of the boys, the effect of which was to extinguish their membership with their birth family and entrust sole parental responsibility to the Council as an adoption agency. These orders (which are no longer available) could only be made where there was a real prospect of a family being found within 12 months.
The Council failed to find the boys an adoptive home. Over a 14 year period A and S were moved from one foster family to another, becoming increasingly unsettled and disturbed. A had moved backwards and forwards between placements 77 times in his 16 years of life, and S had moved 96 times in his 14 years of life. The boys suffered physical and sexual abuse while in foster care.
Over time the situation of the boys’ mother improved and in 2002 she applied for revocation of the freeing orders, but withdrew the application in 2003 in the face of opposition from the Council and the Children’s Guardian.
The Council ultimately abandoned its search for an adoptive family, but no application was ever made by it to revoke the freeing orders. The boys were, in effect, rendered “statutory orphans”.
Throughout this history the boys were subject to some 35 internal Council reviews, known as “Looked After Child Reviews”, but the issue of the boys’ legal status was not remedied. The Officer chaired 16 of these reviews.
Section 6 of the Human Rights Act renders it unlawful (subject to certain exceptions) for a public authority to act incompatibly with the European Convention on Human Rights. Where a public authority acts unlawfully the court may grant “such relief or remedy, or make such orders within its powers as it considers just and appropriate” (section 8).
The Council and the Officer accepted that they had breached the boys’ right to respect for private and family life (article 8), the right to a fair trial (article 6) and the prohibition of torture (article 3) and submitted to a declaration to that effect.
The Court enumerated 10 specific human rights breaches by the Council and the Officer. In relation to article 8, the Court held the Council had a continuing positive obligation to promote the boys’ right to respect for private and family life, and that the early history of delays in the boys’ case management significantly damaged the prospect of the boys finding a permanent adoptive placement.
The failure to resolve the issue of the boys’ legal status was also significant. The Court observed that, had the freeing orders been revoked, the Council would have been required under relevant legislation to permit and promote reasonable contact with the boys’ birth family, or otherwise apply to the Court for permission to refuse contact. The effect of the Council’s failure to apply for revocation of the freeing order was to deprive the boys of these statutory protections, contact with their mother and other family members, and access to the Court. This amounted to a breach of articles 6 and 8.
The Court also found that the Council had (among other things) permitted A and S to be subject to degrading treatment and physical assault (articles 3 and 8), failed to provide accurate information to the Officer regarding their legal status (article 8) and failed to promote A and S’s rights to independent legal advice (article 6).
The Court further declared that the Officer had breached the boys’ human rights in failing to identify that the boys’ human rights had been and were being infringed (articles 6 and 8), failing to ensure that Council acted upon the recommendations of the Looked After Child Reviews (article 8), and failing the refer the boys’ case to the Children and Family Court Advisory and Support Service (article 8).
Claims for damages under the Human Rights Act were transferred to the Queens Bench Division to be heard with A and S’ claims for breach of statutory duty and negligence against the Council.
Each of the rights engaged in this case have counterparts in the Victorian Charter. Section 10 of the Victorian Charter contains the protection from torture and cruel, inhuman or degrading treatment, section 17 contains the protection of families and children, and section 24 protects the right to a fair hearing.
While there are relatively few decisions concerning the application of the Charter in the context of foster care, the decision of the England and Wales High Court is nonetheless relevant, particularly in light of the 2010 report of the Victorian Ombudsman on its Own motion investigation into child protection – out of home care. The report cited instances of abuse and mistreatment of children in foster care, and concluded that that “in some of these cases, the department’s actions in placing children in unsafe situations constitute breaches of the Charter.” The full impact of the Charter in such cases remains to be seen.
The decision is available online at: http://www.bailii.org/ew/cases/EWHC/Fam/2012/1689.html
Thea Chesterfield is a solicitor at Freehills