F v Lambeth LBC

JurisdictionEngland & Wales
Judgment Date2001
Date2001
CourtFamily Division

Children – Care – Local authority – Children being taken into care and placed in local authority home – Expert advising permanent placement with substitute parents – Children remaining ‘lost in care’ – Whether local authority in breach of statutory duties – Human Rights Act 1998, Sch 1, art 8 – Children Act 1989, ss 22(3), 27, 34(1), Sch 2, para 15(1) – Local Authority Social Services Act 1970, s 7(1).

Human rights – Privacy – Family life – Children ‘lost’ in local authority care – Whether local authority failing to secure rights of children and parents to family life – Human Rights Act 1998, Sch 1, art 8.

The parents of two children, J and K, applied for unsupervised contact, pursuant to s 34 of the Children Act 1989, away from the local authority home in which the children were staying. J and K were aged 16 and 12 years respectively. Wardship proceedings in respect of the two boys had been commenced in 1989. In 1991 interim care orders were made and the boys were subsequently placed in a children’s home. In September 1992 care orders were made, pursuant to s 7(2) of the Family Law Reform Act 1969, with leave to implement rehabilitation to the parents. However, the local authority subsequently decided not to proceed with the rehabilitation plan. In 1994 the parents applied to discharge the care orders. However, following a child psychiatrist’s report in 1995 that the boys needed the security of permanent care by substitute parents, they were given leave to withdraw the applications. Parental visiting contact was reduced to four times a year unsupervised. In 1996 the boys were moved to a different children’s home (the home), where they had remained ever since and in 1998 parental contact was changed to supervised contact at the home. Since early 1995 the boys had been ‘lost in care’. Despite earlier plans, the local authority had carried out no search for parents on J’s behalf and none on K’s behalf until August 2000; J’s case had never been taken to a permanency panel and K’s had not until September 2000. Moreover, matters in respect of the care of the boys continued to drift notwithstanding the court proceedings. Psychiatric evidence indicated that the children had suffered significant emotional, educational and psychological harm since they had been in care. The parents and the Official Solicitor submitted that the local authority had breached some or all of its duties under the Children Act 1989, and in particular the duty to safeguard and promote the welfare of the children pursuant to s 22(3)(a) of that Act, and its duty as a public authority not to act incompatibly with the rights to respect for private and family life, pursuant to art 8 of the European Convention on Human Rights and Fundamental Freedoms.

Held – (1) In all the circumstances, from 1995 to July 2000 there had been no effective planning by the local authority for the boys, who had drifted and been lost in care. In consequence of the local authority’s long term neglect, both boys had suffered significant educational, emotional, psychological, social and behavioural harm. Moreover, the authority’s failures of parental responsibility were likely to have enduring consequences for J and K. It followed that the local authority (a) was in breach of its statutory duties under s 22(3) of the 1989 Act; (b) was in breach of its statutory duties under s 34(1) and Sch 2, para 15(1) of the 1989 Act in failing to allow the children reasonable contact with their parents and failing to endeavour to promote such contact; (c) was in breach of its duties under s 7(1) of the Local Authority Social Services Act 1970, to act under the relevant guidance; and had failed properly to exercise its powers under s 27 of the 1989 Act; (d) had acted unlawfully; and (e) had treated the children and parents unfairly.

(2) Pursuant to art 8 of the European Convention on Human Rights, both the parents and children were guaranteed rights to respect for private and family life and by acceding to the Convention the State had bound itself to secure those rights to them. Moreover, since October 2000 it had been the duty of every public authority not to act in a way incompatible with a citizen’s Convention rights. The 1989 Act was the means by which the State provided for children’s welfare and the assumptions which underlay the statutory framework were founded on a contract between the State and the children placed by the courts in the care of the local authority, which thereby acquired overriding parental responsibility. The State undertook to ensure that the child benefited from the duties imposed upon a local authority. Where a local authority neglected its duties, the bargain between the State and the children had been dishonoured. In the instant case, the State had failed in its duties to both the parents and the children.

(3) When exercising its jurisdiction under s 34 of the 1989 Act, the court could not make an order directing the local authority to abandon an element in its care plan. However, it could and would express its considered views on the question. In the instant case, the local authority had to formulate an up to date care plan for K. The court had directed the steps it was to take before doing so, to formulate such a plan and file it with the court. It further indicated the way in which it should take matters forward and various considerations to which it ought to have regard; Re B (children in care: contact) [1993] 1 FCR 363 considered.

(4) Against that background, the court would order interim contact on five occasions, each of not less than four hour’s duration, one by way of an outing and at least one other to include some element of outing away from the home.

Cases referred to in judgment

A v Liverpool City Council [1982] AC 363, [1981] 2 All ER 385, [1981] 2 WLR 948, (1981) 2 FLR 222, HL.

Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223, [1947] 2 All ER 680, CA.

B (children in care: contact), Re[1993] 1 FCR 363; sub nom Re B (minors) (termination of contact: paramount consideration) [1993] Fam 301, [1993] 3 All ER 524, [1994] 3 WLR 63; sub nom Re B (minors) (care: contact: local authority’s plans) [1993] 1 FLR 543, CA.

CH (a minor) (care or interim order), Re[1998] 2 FCR 347, [1998] 1 FLR 402, CA.

Dawson v Wearmouth[1999] 1 FCR 625, [1999] 2 AC 308, [1999] 2 All ER 353, [1999] 2 WLR 960, [1999] 1 FLR 1167, HL.

KD (a minor) (ward: termination of access), Re [1988] FCR 657, [1988] AC 806, [1988] 1 All ER 577, [1988] 2 WLR 398; sub nom Re KD (a minor) (access: principles) [1988] 2 FLR 139, HL.

L (minors) (care proceedings: appeal), Re[1996] 2 FCR 352; sub nom Re L (sexual abuse: standard of proof) [1996] 1 FLR 116, CA.

M and H (minors), Re [1989] FCR 65; sub nom Re M and H (minors) (local authority: parental rights) [1990] 1 AC 686, [1988] 3 All ER 5, [1988] 3 WLR 485; sub nom Re M and H (minors) (parental rights: access) [1998] 2 FLR 431, HL.

O (a child) (supervision order: future harm), Re[2001] EWCA Civ 16, [2001] 1 FCR 289, [2001] 1 FLR 923.

R (minors) (care proceedings: care plan), Re[1994] 2 FCR 136; sub nom Re J (minors) (care: care plan) [1994] 1 FLR 253.

S v M (access order) [1997] 1 FLR 980, Scot HL.

W (a minor) (wardship: jurisdiction), Re [1985] AC 791, [1985] 2 All ER 301, [1985] 2 WLR 892.

W and B (children) (careplan), Re[2001] EWCA Civ 757, [2001] 2 FCR 450, [2001] 2 FLR 582.

X (a minor) (wardship: jurisdiction), Re [1975] Fam 47; sub nom Re X (a minor) (wardship: restriction on publication) [1975] 1 All ER 697, [1975] 2 WLR 335, Fam D and CA.

Application

The parents of two children, J and K, applied on 6 October 1999 for unsupervised contact away from the childrens’ home where the local authority had placed them. The Official Solicitor was appointed to represent the interests of the children, and submitted to the court that the local authority had breached some of its statutory duties under the 1989 Act. Judgment was delivered in November 2000 by Munby J, but leave for the judgment to be reported was postponed to a later date. On 28 September 2001, Munby J delivered an anonymised version of the judgment, so that it may be treated as having been given in open court. A postscript was attached explaining why the local authority’s identification should not be protected.

Jane Hoyal for the applicant parents.

Alexander Verdan for the local authority.

Peter Jackson QC for the Official Solicitor.

MUNBY J.

[1] With the exception of this paragraph and the postscript, what follows is the anonymised version of a judgment which I delivered on 13 November 2000. Because it involves children, I have prepared this version of the judgment in anonymised form so that it may, although given in chambers, be treated as having been given in open court. However, nothing must be published which might lead, either directly or indirectly, to the identification of the children involved in the case or their parents.

The judgment

[2] J was born in 1984 and is thus 16. In December 1986 his name was placed on the child protection register. His brother K was born in 1988 and is thus 12. Wardship proceedings in relation to both boys were begun by the London Borough of Lambeth on 4 September 1989. Interim care orders in respect of both boys were made on 9 September 1991 and they were placed for a week or two in a London children’s home. On 26 September 1991 they were moved to a children’s home in the country. On 8 September 1992 care orders were made pursuant to s 7(2) of the Family Law Reform Act 1969, with leave to implement a rehabilitation of the boys to their parents. On 11 July 1993 Lambeth decided not to proceed with the rehabilitation plan. On 18 July 1994 the parents applied to discharge the care orders but on 17 February 1995 the distinguished child psychiatrist who had been involved in the case since 1991 reported that the boys needed the security of permanent care by substitute parents. Following that, on 13 March 1995 the parents were...

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