The Mayor and Burgesses of the London Borough of Lambeth v L (A Child by His Children's Guardian)

JurisdictionEngland & Wales
JudgeMr Justice MacDonald
Judgment Date14 December 2020
Neutral Citation[2020] EWHC 3383 (Fam)
Date14 December 2020
Docket NumberCase No: FD20P00542
CourtFamily Division

[2020] EWHC 3383 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Sitting Remotely

Before:

THE HONOURABLE Mr Justice MacDonald

Case No: FD20P00542

Between:
The Mayor and Burgesses of the London Borough of Lambeth
Applicant
and
L (A Child by His Children's Guardian)
Respondent

Ms Jayne Fenn (inhouse advocate for London Borough of Lambeth) for the Applicant

Mr Alan Inglis (instructed by Covent Garden Law) for the Respondent

Hearing dates: 16 October 2020

Approved Judgment

I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic. Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties' representatives by email. The date and time for hand-down is deemed to be at 10.30am on 14 December 2020.

Mr Justice MacDonald

INTRODUCTION

1

In this case I am concerned with the welfare of L, a boy, born in 2006, now aged 13 years old. L is represented through his Children's Guardian, Ms Kathy Deutz. Mr Alan Inglis of counsel appears on behalf of L.

2

The court is concerned with an application by the London Borough of Lambeth for an order under the inherent jurisdiction of the High Court authorising the deprivation of L's liberty in a placement in Scotland. Ms Jayne Fenn, inhouse advocate, appears on behalf of the local authority. These proceedings were issued on 28 August 2020.

3

On 3 September 2020 the court made an order authorising the deprivation of L's liberty at a placement in Scotland on the basis that it was satisfied that L's circumstances in that placement amounted to a deprivation of L's liberty and it was in L's best interest for an order to be made. The Children's Guardian did not seek to oppose the making of a deprivation of liberty order in circumstances where L has reached a level of settlement and routine in his current placement and that the placement is meeting his current needs. L has informed the Children's Guardian that he is happy to remain in the placement until he is 15 years old.

4

Following the making of an order authorising the deprivation of L's liberty at a placement in Scotland, the local authority has instructed solicitors in Scotland to petition the Inner House of the Court of Session in Scotland for an order under the nobile officium to find and declare that the measures ordered by the English High Court in respect of L, should be recognised and enforceable in Scotland. The outcome of those proceedings is awaited.

5

Regrettably, the court has in these proceedings also been required to address a significant failure on the part of the local authority with respect to L. Namely, whilst the application for an order authorising the deprivation of L's liberty in his best interests was first made on 28 August 2020 and an order authorising the deprivation of L's liberty was first made on 3 September 2020, L had in fact been deprived of his liberty by the local authority without authorisation of the court for an extended period of time before the application for authority was issued. On 3 September 2020 I directed a statement from the Director of Children's Services for Lambeth, Alex Kubeyinje in order to explain the circumstances that had led to L's unlawful placement. That statement is now before the court.

6

It is accepted by the local authority that those placements that amounted to a deprivation of L's liberty prior to 3 September 2020 were unlawful. Within this context, Ms Fenn has indicated on behalf of the local authority that it also accepts that those placements were in breach of L's rights under Art 5 of the ECHR. The court has been made aware that a claim for damages for this breach of his fundamental rights will be issued on behalf of L in due course.

7

To its credit, in light of the highly concerning situation summarised above and considered in more detail below, and at the invitation of the court, the London Borough of Lambeth undertook at a previous hearing to carry out a comprehensive audit of its placement agreements and behaviour plans for every child looked after by the local authority to ensure that there are no other placements which constitute an unlawful deprivation of a child's liberty and to involve the local authority's Independent Review Officers in that process. The local authority also undertook to implement additional training provision to address the deficiencies identified in this case. The training was due to be completed in November 2020 and the placement audit is due to be completed by 12 February 2021.

BACKGROUND

8

On 1 November 2016 L was made the subject of a care order at conclusion of care proceedings under Part IV of the Children Act 1989 that were issued on 4 August 2016. L is an only child who lost his Mother in 2016. When he was just 9 years old his mother was found dead in the home from pneumonia. L's Father does not share parental responsibility for L, not being named on L's birth certificate. Following the enquiries made during the care proceedings, it became apparent that L's father had had nothing to do with the family since L was 2 years old and, indeed, that the father and his family refuted paternity and wished no further involvement with L.

9

L was diagnosed during the care proceedings with an Autistic Spectrum Disorder and significant difficulties with learning and language. L is on medication and is prescribed Risperidone. On 21 January 2020 L was also diagnosed with Post Traumatic Stress Disorder. It is evident from the expert reports, and from L's behaviour historically, that he has difficulty regulating his emotions. L can get angry and frustrated, which in turn leads him into serious aggressive behaviours, both toward people and property.

10

Following the making of the care order, by which order the local authority now holds sole parental responsibility for him, L had a number of foster placements break down consequent upon his behaviour before he was finally moved to a residential placement in January 2019.

11

As I have noted, the local authority accepts that prior to 3 September 2020 L was deprived on his liberty without authorisation of the court. Whilst the precise circumstances of the illegality that attended L's placement(s) will be a matter for detailed consideration in the context of the proposed claim for damages under the Human Rights Act 1998, it would appear that from at least January 2019 L was subjected to regimes in a number of residential placements that may have amounted to a deprivation of his liberty, including high levels of supervision and the use of physical restraint. Thus, in Ms Fenn's Position Statement dated 2 September 2020, it is made clear that in his placement in January 2019 L was subject to 2:1 supervision and that in a subsequent residential unit this was increased to 3:1 supervision in November 2019. Further, and within this context, I note the following extract from the report of the Children's Guardian, who was appointed on 5 September 2020 consequent upon the local authority issuing proceedings:

“3.10… As stated previously, while it is my opinion that the levels of L's anger and aggressive behaviour mean that the use of reasonable physical restraint is at times justified in order to safeguard him and others, I am very concerned that this has happened, without first being subject to appropriate consideration by the court.

3.11 I am also concerned that the incident reports received suggest that L reported receiving an injury to his finger from a physical restraint which occurred in [X] House in March 2019 and in November 2019, a report from [Y] House suggested that L had a “bleeding lip” after an incident in the car on the way to school. Confirmation is required from the local authority that L received medical attention as a result of these injuries and that they were reported to the LADO for further investigation.”

12

As I have noted, L was moved to his current placement on 28 January 2020, with 2:1 supervision being introduced at that placement on 5 March 2020. Once again, whilst no application was made prior to 28 January 2020 for an order authorising the deprivation of L's liberty, it is apparent that the regime in his current placement has amounted to a deprivation of L's liberty and that, without authorisation by the court, this was unlawful. Furthermore, the placement was outside the jurisdiction.

13

As noted above, in light of the matters I have related, on 3 September 2020 I directed a statement from the Director of Children's Services for the London Borough of Lambeth, Alex Kubeyinje, in order to explain the circumstances that had led to L's unlawful placement. The statement of Mr Kubeyinje contains the following concessions:

i) Prior to 3 September 2020 L was unlawfully deprived on his liberty (whilst Mr Kubeyinje states that this unlawful deprivation commenced on 28 January 2020, having regard to the matters I have summarised above, it would appear that the illegal deprivation of L's liberty by the local authority may well have commenced as early as January 2019).

ii) The fact that L's current placement commenced as an emergency placement did not absolve the local authority from making an application to the court for the appropriate order or orders.

iii) No early legal advice was sought by the local authority before the decision was made to place L in his current placement.

iv) At the time L was placed in his current placement there was no assessment undertaken by the local authority as to whether L's liberty was or would be deprived at that placement.

v) There was a highly regrettable delay in seeking the authority of the court to deprive L of his liberty.

14

Mr Kubeyinje goes on to make clear in his statement that the following steps have now been taken by the local authority with a view to avoiding in the future the mistakes made with respect to L's case:

i) A practice wide alert...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT