Children subject to freeing orders.

Harris, Alexandra Conroy

A and S v Lancashire County Council [2012]

High Court (Family Division) Peter Jackson J

21 June 2012 EWHC 1689 (Fam)

A was a 16-year-old boy who had been in care since the age of two. Freeing orders had been granted to Lancashire County Council in respect of him and his younger brother S in 2001, and although the plan for their adoption had been abandoned in 2004 the orders were not revoked. After a disrupted childhood in the care system, A made an application to revoke the freeing order as part of his action to remain in his foster placement in the face of the local authority's plan to move him to a children's home.

When care orders were made in 1998 the boys were placed with an aunt, who had six children of her own, and that placement broke down after a year. They were moved to foster carers and freeing orders were obtained. All contact with their birth family, including with sib lings, was ended. The boys spent nine months in the care of abusive foster carers, from whom they had to be removed after police involvement. From 2002 to 2008 they were with one set of foster carers, until one carer hit A with a belt. Six months later they were moved to another placement, which S left in 2010, moving into a children's home. In total, A had experienced 77 moves and S 96, including in and out of respite placements. When the local authority decided to move A from his foster placement in 2011 he sought legal advice, eventually resulting in both boys seeking declarations that the local authority and the Independent Reviewing Officer (IRO) responsible for their case since 2006 had breached their Article 3, 6 and 8 rights.

The court heard that the boys' mother had addressed some of her issues and had one of her children living with her. In 2002, she had applied to revoke the freeing orders as the children had not been placed, but withdrew after opposition from the local authority and guardian. She had made enquiries about the boys over the years and had left her address with social services. Their aunt had approached social services when her circumstances changed and asked to be reconsidered as a carer for both boys. She was told that the boys were happy where they were. Both mother and aunt assumed that they had been adopted.

Held

Both the local authority and the IRO admitted the breach of the boys' human rights, in that they deprived them of a family life, failed to provide them with a proper opportunity of securing an adoptive placement, and failed to provide contact with their birth family, failed to seek revocation orders, failed to provide accurate information to the IRO, failed to promote the rights of the children to access legal advice and failed to protect them from degrading treatment and physical assault. The case was transferred to the Queen's Bench Division for consideration of the level of damages to be paid to the children.

Comment

This is a lengthy judgment, which includes a substantial amount of information about the deficiencies in the service provided by the IROs. In particular, a heavy caseload meant that they failed to investigate properly the circum stances of the children's placements and accepted tick boxes on social work forms purporting to show that appropriate people had been consulted and that the children were subject to orders restricting contact. They also accepted repeated assurances that the freeing orders were going to be revoked. The IROs had not had sufficient training to appreciate the importance of the appropriate legal orders or of the importance of contact, and did not have access to independent legal advice. The court heard that although IROs have the option to refer children's cases to CAFCASS so that they could consider taking action on behalf of children, only eight referrals had been made nationally since 2004. A copy of the judgment was sent to the Children's Commissioner and the Department for Education has asked all local authorities urgently to review cases where the children are subject to freeing orders, and either apply for their revocation or explain why they need to continue as freed children. He also asks that cases of placement orders, but where the plan for adoption has been changed, should be reviewed, as they can throw up similar issues to those found in this case.

Alexandra Conroy Harris, BAAF's Legal Consultant, prepared these notes