S (A child acting by the Official Solicitor) v Rochdale Metropolitan Borough Council and the Independant Reviewing Officer
| Jurisdiction | England & Wales |
| Judge | Mr Justice Munby |
| Judgment Date | 31 December 2008 |
| Neutral Citation | [2008] EWHC 3283 (Fam) |
| Date | 31 December 2008 |
| Court | Family Division |
| Docket Number | Case No: 7MA90644 |
[2008] EWHC 3283 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Case No: 7MA90644
Mr Anthony Hayden QC and Miss Jane Walker (instructed by Forbes) for the Claimant
Mr Patrick Field QC and Miss Frances Heaton (instructed by Rochdale Legal & Democratic Services: Legal Services Section) for the First Defendant
The Second Defendant was neither present nor represented
This is an action brought by the Official Solicitor on behalf of a child in the care of a local authority alleging serious breaches of duty on the part of both the local authority and the Independent Reporting Officer (IRO) infringing the child's rights under the Human Rights Act 1998 and certain Articles of the Convention for the Protection of Human Rights and Fundamental Freedoms.
The background
The claimant, S, was born on 28 September 1990. She has had a difficult and damaged childhood, having in recent years had little effective support from her family. On 17 July 2004 her mother (the only person with parental responsibility) agreed to S being accommodated by Rochdale Metropolitan Borough Council (which I shall refer to as the local authority) pursuant to section 20 of the Children Act 1989. But thereafter she seems to have played no effective role in S's parenting. She was, so it is said, unable to meet her daughter's physical, educational, health or emotional needs or to participate in working with the local authority in order to ensure a plan was devised by which those needs could be met.
S suffers from cognitive functioning difficulties, “functioning within the low to very low range of cognitive ability … on the border of the range defined educationally as moderate learning difficulties” (I quote from a report by a child and adolescent psychologist dated 10 February 2006). A joint report by a child and adolescent psychologist, consultant speech and language therapists and a sensory occupational therapist dated 23 February 2007 described S as an “extremely vulnerable, needy and young girl, who has no family support at all” and diagnosed her as having the following difficulties: (i) autism (having primary areas of impairment in communication, social interaction and stereotyped behaviour, and restricted interests including an inability to cope with an unpredictable environment) and (ii) early attachment disorder. Well before that the local authority had acknowledged (in the words of the trainee social worker who was S's allocated social worker) that “though S is nearly sixteen, she is still a very vulnerable child.”
S was placed initially in a children's home and thereafter in numerous different foster placements. By the time she was 15 she was frequently absconding from foster placements, was involved in various inappropriate and exploitative sexual relationships with a number of older men (which led to her making allegations of sexual assault) and had attempted suicide on a number of occasions. On 10 November 2005, when she was still only a few weeks past her 15 th birthday, she gave birth to a daughter, L. By then, of course, she had been accommodated by the local authority for almost 16 months.
Care proceedings in relation to L (MA06C01017) were issued by the local authority on 12 January 2006. L was removed from S's care the following day. S was not competent to give instructions and the Official Solicitor was appointed to act on her behalf in March 2006. It became apparent to the Official Solicitor that S was an extremely vulnerable young person, in respect of whom nobody had been exercising parental responsibility for some time, and that she was herself suffering significant harm. On 21 June 2006 the Official Solicitor wrote formally to the local authority, inviting it to issue care proceedings in respect of S and putting it on notice that an application for judicial review might follow a negative decision. The local authority replied on 28 June 2006 confirming its decision not to commence care proceedings in respect of S. The Official Solicitor considered that the local authority's decision was irrational.
Supported by the Official Solicitor, S made an application for judicial review ( CO/5791/2006) on 10 July 2006. It sought, in effect if not in form, to compel the local authority to commence care proceedings in relation to S. Under the umbrella of the judicial review proceedings, S served draft Particulars of Claim (and on 27 July 2006 amended draft Particulars of Claim) setting out her claim for relief under the Human Rights Act 1998. The matter came before Bennett J on 18 July 2006 who made an order by consent consolidating the Human Rights Act claim with the application for judicial review and directing the local authority to file a Defence to the Particulars of Claim by 11 August 2006. A Defence was duly served on 26 August 2006. No purpose would be achieved by my seeking to analyse it in any detail. It contained no admissions of any substance and consisted of a mixture of denials, non-admissions and, in paragraph 4, details of the positive case being made by the local authority that it had properly carried out its duties and responsibilities in relation to S.
By then matters had got worse. S went missing from her foster placement on 25 July 2006. Three days later, on 28 July 2006, she was placed in secure accommodation by the local authority. On 31 July 2006 the local authority – having finally realised, as the Official Solicitor would have it, the inevitability of the need for a care order – commenced care proceedings in respect of S (MA06C01270) and obtained an interim care order. Thus, as the Official Solicitor saw it, the two applications – the application for judicial review and the Human Rights Act claim – had fairly quickly achieved their initial objective.
Both sets of proceedings – the proceedings in the Administrative Court and the care proceedings in respect of S – came before Black J on 7 September 2006 who ordered, by consent, that S have leave to withdraw her application for permission to apply for judicial review. At the same time Black J made an order giving directions in the care proceedings, consolidating the Human Rights Act claim with the care proceedings and allocating Her Honour Judge Kushner QC as the section 9 judge to hear the consolidated proceedings.
Following the hearing before Black J the Legal Services Commission suspended S's public funding certificate in respect of the Human Rights Act claim on the basis that the benefit to S of the claim continuing was not sufficient to justify funding the claim. The Official Solicitor disagreed, taking the view that the case appeared to raise issues of wider public interest justifying an extension of funding. The case went before the Public Interest Advisory Panel of the Legal Services Commission on 27 March 2007. It concluded, having heard representations on behalf of S, that the case did have a significant wider public interest – whereupon further funding was approved.
The Panel's Report (07/372) recorded that attention had been drawn by S's representatives to what was described as “the historical importance of ‘guidance judgments’ in the development of practice and procedure under the Children Act” and that the present case was “an opportunity for such a judgment in relation to accommodation, under section 20 of the Act, of children with care issues.” The Panel concluded that “this case comprised particularly severe circumstances, which nevertheless were representative of a basket of common problems across England and Wales for children in voluntary accommodation under section 20 … There is a potential Human Rights Act claim that will examine the past history of this child to produce a Guidance Judgment of real impact to the practice of Independent Reviewing Officers and local authority use of voluntary accommodation … this would be an important outcome not only for the applicant but other claims raising similar issues.”
At a directions hearing on 3 May 2007 Judge Kushner QC directed that the Human Rights Act claim was to be listed in front of me. I have been case managing the Human Rights Act claim ever since: the first hearing before me (by video link) was on 29 June 2007. The care proceedings in respect of S remained with Judge Kushner. They culminated in a final hearing on 20 September 2007 and the making on the same day (just a week before her 17 th birthday) of a final care order in respect of S. By then, of course, the care proceedings in respect of S's baby, L, had long since been concluded, a final care order and a placement order having been made on 30 October 2006. L has since been adopted.
The Human Rights Act claim
I have already referred to the early history of these proceedings.
Following the de-consolidation of the care proceedings and the Human Rights Act claim (in relation to which, as will be appreciated, there had never been any originating process), S issued on 9 July 2007 a Part 7 claim form in relation to the Human Rights Act claim (7MA90644). Much time during the latter part of 2007 and the earlier part of 2008 was, unavoidably, taken up in a massive disclosure exercise which was much more complex and took much longer than had originally been envisaged. (As I remarked at one hearing, the real challenge of the disclosure exercise became “an exercise in establishing what was not there.”) Partly in consequence of this, inadequacies in the existing pleadings became apparent, so on 11 April 2008 I directed that the case was to be re-pleaded. I directed S to file Particulars of Claim by 28 April 2008 and the local authority a Defence by 27 June...
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