Judge urges review of cases where children under unsuccessful freeing orders

A High Court judge has called for a nationwide review of cases where children remain under unsuccessful freeing orders or placement orders, after concluding that a council breached the human rights of two teenagers.

In the case of A & S (Children) v Lancashire County Council [2012] EWHC 1689 Mr Justice Peter Jackson said a review of identified cases was necessary “to ensure that such children are not being disadvantaged as a result of their incorrect legal status”. 

The judge also said there was a pressing need for the independent reviewing system to work more effectively than it did for the boys in the case before him.

The A & S case centred on two brothers who are now teenagers. After coming into local authority care in 1998 at the ages of 2¾ and six months, they were freed for adoption in 2001.

After a time, Lancashire abandoned the search for adopters. However, the freeing orders were never discharged and all links with the boys’ family were cut.

The brothers remained under freeing orders for 11 years, moving through a huge number of foster placements – 96 for A and 77 for S. They were abused in two of those placements. The judge said the boys became “increasingly unsettled and disturbed” during this time.

The boys were also subject to 35 looked after children reviews, sixteen of which were chaired by an independent reviewing officer who was made a party to the legal action.

In A’s case, his foster carers have now become his special guardians. He now has a special guardianship support package. A family placement was not possible for S and he lives in a children’s home under a care order.

The council has committed to provide significant support to both for the foreseeable future.

Advised by Farleys Solicitors, the brothers launched a claim under the Human Rights Act against the county council and the independent reviewing officer.

Mr Justice Peter Jackson said the boys had suffered “real, lifelong damage” and “irreparable harm”, reflected in the declarations he would make under the Human Rights Act 1998.

He added: “Over the years, the local authority defaulted on its duties towards the children and its independent reviewing system did not call it to account. The matter was never returned to court as it should have been and as a result the local authority's actions did not come under independent scrutiny.”

The High Court judge said the local authority failed to react when the destination changed from adoption to long term fostering.

Mr Justice Peter Jackson concluded that as a result of a catalogue of failings, Lancashire had breached the boys’ rights under the following Articles of the European Convention on Human Rights: 8 (the right to respect for private and family life), 6 (the right to a fair hearing) and 3 (no one shall be subjected to torture or to inhuman or degrading treatment or punishment). 

The IRO had also breached Articles 8 and 6, he said. This was because he had failed to identify that their human rights had been and were being infringed, take effective action to ensure that Lancashire acted upon the recommendations of looked after children reviews, and failed to refer the circumstances of A and S to Cafcass Legal.

A copy of the judgment is to be sent to the Children’s Commissioner, so that she can see whether any action is needed to protect the situation of other children.

Farleys said the claimants would now seek damages for negligence and breach of statutory duty by separate civil action.

Antonia Love, a partner at the firm, said: “This is quite simply one of the most shocking cases that we have ever come across of children being failed by the care system and we are extremely proud of these two boys for having the courage, after all they have already been through, to see this case through to this rightful judgment.”

Lancashire County Council has apologised to the boys for the way their case was handled.

Helen Denton, its executive director for children and young people, said: "They are both now settled and the court is satisfied with plans for their future support.

“Whilst we cannot put right what has happened in the past, we have since transformed our services and have every confidence a case like this could not be repeated now or in the future.”

Philip Hoult