In December 2011 the local authority accommodated K, a child now aged 14, with her mother’s consent under section 20 of the Children Act 1989. By the time the local authority issued care proceedings in November 2015 K had been in seven foster placements which had all broken down. The local authority now sought a final care order and endorsement of the care plan for K to remain in long-term foster care. The parties were agreed that the threshold criteria for a care order were met and the care plan was supported by the mother and the children’s guardian. Also before the court was a claim on behalf of K under the Human Rights Act 1998 for declarations of breach of her rights to a fair trial and family life under articles 6 and 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and damages pursuant to section 3 of the 1998 Act, under three headings: (i) the failure of the local authority to assess her, being aware from their own core assessment in April 2011 of K’s considerable difficulties and that she might need some intervention from the primary mental health team; (ii) the inter-linked failure to meet her needs in not ensuring that K received appropriate therapy; and (iii) the failure to issue court proceedings timeously when, had K been represented in court proceedings, there would have been proper oversight, the plans would not have been allowed to drift and assessments would have been undertaken when required. The local authority submitted that they had managed K’s care in a way that complied with her article 6 and 8 rights and that section 20 of the 1989 Act was not time limited, there being no requirement to issue proceedings to enable the authority to acquire parental responsibility.
On the local authority’s application and K’s claim for declarations and damages—
Held, care order made and K’s claim allowed. (1) While there was no time limit on providing section 20 accommodation in the Children Act 1989, each case had to be considered on its own facts, with active consideration being given as to whether care proceedings should be issued. In the present case care proceedings would have helped significantly to provide the stability and security that K so clearly needed. The failures by the local authority to properly assess and then support K’s needs and to delay issuing legal proceedings for over three years were actions that were unjustified and incompatible with K’s article 6 and 8 rights. On the evidence the local authority had acted in breach of K’s article 6 and 8 rights in that they had (i) failed to properly assess K from March 2012 until July 2015, (ii) failed to implement a care plan that met K’s needs from March 2012 until July 2015, including ensuring there were sufficient procedures in place to give effect to the recommendations of the looked after child reviews, (iii) as a result of those failings the local authority had failed to provide K with a proper opportunity to secure a suitable long term placement and a settled and secure home life, and (iv) failed to issue proceedings in a timely manner from March 2012 to November 2015 and as a consequence deprived K of the protection afforded to children under the 1989 Act and access to the court and the procedural protection of a children’s guardian (paras 6, 69, 71, 74).
Northamptonshire County Council v AS [2015] EWHC 199 (Fam) and In re N (Children)(Adoption: Jurisdiction) [2016] 2 WLR 713, CA, considered.
(2) An award of damages under section 3 of the 1998 Act was necessary since K’s rights under articles 6 and 8 had been seriously interfered with by the actions of the local authority. The level of an award was highly fact sensitive. The relevant factors to be taken into account were the length of the proceedings, the length of the breach, the severity of the breach, the distress caused, and insufficient involvement of the parent or child in the decision-making process and other procedural failures. Here, the length of time during which the local authority had failed to secure effective assessment, therapy and support had resulted in K’s right to family life being seriously interfered with over an extended period of time. The additional failure to implement their own decisions regarding legal proceedings interfered with her right to a fair hearing, since neither K nor anyone on her behalf was effectively managing the repeated failure of the local authority to implement their own decisions. In the circumstances the appropriate award of damages was £17,500 (paras 76, 80, 81).
Medway Council v M (unreported) 13 October 2015, Fam Ct applied.
(3) Since the breaches had continued for such a long period of time, the costs of the Human Rights Act claim would, unusually, be awarded against the local authority (para 84).
Fawzia King (instructed by Director of Governance and Law, Kent County Council, Maidstone) for the local authority.
Max Konarek (of Kingsfords, Ashford) for the mother.
Jeremy Hall (instructed by Rootes & Alliott, Folkestone) for the child, by the children’s guardian.