Neutral Citation Number:  EWFC 10
IN THE FAMILY COURT AT NOTTINGHAM
60 Canal Street
Thursday, 1 February 2018
- and -
(as on behalf of his children’s guardian)
MR W BAKER appeared on behalf of the Applicant
MS L MORGAN instructed by MS S RUDD on behalf of the 1stRespondent Mother
MS M RECORDON represented and appeared on behalf of the 2ndRespondent child.
- and -
(as on behalf of his children’s guardian)
MR W BAKER appeared on behalf of the Applicant
MS L MORGAN instructed by MS S RUDD on behalf of the 1stRespondent Mother
MR J KERRIGAN represented and appeared on behalf of the 2ndRespondent child.
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THE HONOURABLE MR JUSTICE KEEHAN:
1. This judgment concerns two unconnected young people who have been accommodated pursuant to the provisions of The Children Act 1989, section 20 (the 1989 Act) for a very considerable period of time. Their treatment by Herefordshire Council (‘the local authority’) represents two of the most egregious abuses of section 20 accommodation it has yet been my misfortune to encounter as a judge.
2. CD was born in 2001. A series of referrals were made to the local authority in respect of his parents' allegedly abusive relationship in 2005 which led to CD being accommodated by the local authority in October 2009 when he was eight years of age. He was not made the subject of public law care proceedings until September 2017, when he was 16 years of age; a period of eight years, subject to section 20 accommodation.
3. On 8 December 2017, I made a special guardianship order in respect of him in favour of his long-term and very dedicated foster carers to whom he affectionately refers as Fossil and Grumpy. I reserved judgment.
4. GH was born in early 2008. He was born with significant disabilities and spent the first five months of his life in a special care baby unit in Hereford hospital. His mother was 14 at the time of his birth and his father was 17. In July 2008, GH was accommodated pursuant to section 20 of the 1989 Act. Initially, he was placed in a mother and baby foster placement with his mother but this broke down in September 2008. He remained with the foster carer. He was not made the subject of public law care proceedings until September 2017 when he was nine years of age; a period of nine years under section 20 accommodation, the whole of his life to date.
5. Notwithstanding this appalling state of affairs, GH has been in the care of his dedicated and long-term foster carer ZA since his discharge from hospital. The resolution of the future care of GH will be determined by His Honour Judge Plunkett at an issues resolution hearing listed on 12 February 2018 at Worcester.
6. None of the criticisms in this judgment should be read as referring to or reflecting upon either of these foster carers. I have nothing but admiration for the stable and nurturing care they have given to both boys.
7. These two cases, once issued, came before the designated family judge (‘the DFJ’) for Worcester and Hereford, His Honour Judge Plunkett, who referred both cases to me as the Family Division Liaison Judge for the Midland Circuit. When the cases came before me for the first time, I had statements from the respective heads of service which set out the chronology of events for both children but neither of which gave me any explanation for what appeared to be wholly inexcusable delays and inaction in the care planning for these children.
8. I required the Director of Children's Services to file and serve (i) a statement explaining the events and lack of planning in respect of CD and GH, and (ii) a statement detailing the circumstances of each and every child accommodated by this local authority pursuant to the provisions of section 20.
9. The latter document made very grim reading. Excepting CD, GH and three other children who are now the subject of public law proceedings, the local authority is accommodating 42 children. Of these 42 children, the local authority have now recognised that 14 have wrongly and abusively been the subject of section 20 accommodation for a wholly inappropriate lengthy period of time and/or should have been the subject of legal planning meetings and/or care proceedings at a much earlier time.
10. Mr Chris Baird was appointed the permanent Director for Children's Wellbeing for this local authority (otherwise known as the Director of Children's Services and hereafter referred to the as ‘the Director’) on 10 November 2017. It is right that I record at an early stage in the judgment that he (a) has readily and timeously complied with all directions made by this court for the filing and serving of statements and letters (b) has been completely frank and open about the past failings of this local authority (c) has provided a ready explanation of the steps he has taken or will take to remedy past mistakes, and (d) has chosen to attend court hearings in person.
11. Later in this judgment, I will be roundly critical of egregious failings of this local authority in relation to CD and GH but also in relation to the 14 children to whom I have referred above. Nevertheless, it is important for me to recognise and acknowledge that Mr Baird and the new senior management team at this local authority have taken and will take steps to ensure that such dreadful failures in the care of and planning for children and young people in its care will not occur in the future. I have every confidence in the sincerity and commitment of this director to improve very significantly the planning for and provision of services to the children and young people for whom it is responsible.
12. In Northamptonshire County Council v AS & Ors  EWHC 199 (Fam) I said at paragraphs 35 to 38:
"The catalogue of errors, omissions, delays and serial breaches of court orders in this matter is truly lamentable. They will be serious enough in respect of an older child but they are appalling in respect of a 15-day-old baby. Each day, each week and each month in his young life is exceedingly precious. Where so young a child is removed from the care of his mother or father his case must be afforded the highest priority by the local authority. The use of the provisions of section 20 of the Children Act 1989 to accommodate was, in my judgment, seriously abused by the local authority in this case. I cannot conceive of circumstances where it would be appropriate to use those provisions to remove a very young baby from the care of its mother, save in the most exceptional of circumstances and where the removal is intended to be for a matter of days at most. The accommodation of DS under a section 20 agreement deprived him of the benefit of having an independent children's guardian to represent and safeguard his interests. Further, it deprived the court of the ability to control the planning for the child and to prevent or reduce unnecessary and avoidable delay in securing a permanent placement for the child at the earliest possible time. I trust that the events of the first 23 months of DS's life will not have a detrimental impact on his future development and his emotional and psychological wellbeing. There is a real risk they will do so."
13. In the case of Re: N (Children) (Adoption: Jurisdiction)  1 FLR, 621, the President said at paragraphs 157 to 160 and 171 as follows:
"The first issue relates to the use by the local authority, in my judgment the misuse by the local authority, of the procedure under section 20 of the 1989 Act. As we have seen, the children were placed in accordance with section 20 in May 2013. Yet it was not until January 2014, over eight months later, that the local authority eventually issued care proceedings. Section 20 may, in an appropriate case, have a proper role to play as a short-term measure pending the commencement of care proceedings but the use of section 20, as a prelude to care proceedings for a period as long as here, is wholly unacceptable. It is, in my judgment, and I use the phrase advisedly and deliberately, a misuse by the local authority of its statutory powers. As I said in Re: A (a Child) in Darlington Borough Council v M  EWFC 11, paragraph 100, 'There is, I feared, far too much misuse and abuse of section 20 and this can be no longer tolerated.
As I said in Re: A (a Child) in Darlington Borough Council v M  EWFC 11, paragraph 100:
"There is, I feared, far too much misuse and abuse of section 20 and this can no longer be tolerated."
I drew attention there and I draw attention again to the extremely critical comments of the Court of Appeal in Re: W (Children)  EWCA (Civ) 1065 and also to the decision of Keehan J in Northamptonshire County Council v AS & Ors  EWHC 199. As Keehan J pointed out in the latter case:
"The accommodation of a child under a section 20 agreement deprived the child of the benefit of having an independent children's guardian to represent and safeguard his interests and deprives the court of the ability to control the planning for the child and prevent or reduce unnecessary and avoidable delay. In that case, the local authority ended up having to pay substantial damages.
Then there was the decision of Cobb J in Newcastle City Council v WM & Ors  EWFC 42. He described the local authority as having acted unlawfully and in dereliction of its duty. We had occasion to return to the problem very recently in Re: CB (a Child)  EWCA (Civ) 888, paragraph 888, a case involving the London Borough of Merton. Even more recent is the searing judgment of Sir Robert Francis, QC, sitting as a Deputy High Court Judge in the Queen's Bench Division in William & Anr v London Borough of Hackney  EWHC 2629 (QB), another case in which the local authority had to pay damages.
"Moreover, there has, in recent months, been a litany of judgments in which experienced judges of the Family Court have had occasion to condemn local authorities, often in necessarily strong and on odd occasions withering language, for misuse and, in some cases, plain abuse of section 20. See, for example, Re: P (a Child) (use of section 20, Children Act 1989)  EWFC 7 and 75, a case involving the London Borough of Redbridge; Re: N (Children)  EWFC 37, a case involving the South Tyneside Metropolitan Borough Council; Medway Council v A & Ors (learning disability, foster placement)  EWFC B66; Gloucester County Council v M&C  EWFC B147; Gloucestershire County Council v S  EWFC B149; Re: AS (unlawful removal of a child)  EWFC B150, a case where damages were awarded against the London Borough of Brent; Medway Council v M&T  EWFC B164, another case where substantial damages were awarded against a local authority.
"I need not yet further lengthen this judgment with the analysis of this melancholy litany. If I may say so, directors of social services and local authority heads of legal services might be well advised to study all these cases and all the other cases I have mentioned on the point with a view to considering whether their authority's current practices and procedures are satisfactory.
"The misuse and abuse of section 20 in this context is not just a matter of bad practice. It is wrong and is a denial of the fundamental rights of both the parent and the child. It will no longer be tolerated and it must stop. Judges will and must be alert to the problem and be proactive in putting an end to it. From now on, local authorities which use section 20 as a prelude to care proceedings for lengthy periods or which fail to follow the good practice I have identified can expect to be subjected to probing questioning by the court. If the answers are not satisfactory, the local authority can expect stringent criticism and possible exposure to a successful claim for damages."
14. I respectfully agree with everything said by the President.
15. In February 2017, I sent a letter to the Director of Children's Services of each of the 22 local authorities on the Midlands circuit with the consent and approval of all of the circuits' designated family judges and of the chairs of the circuits' ten local family justice boards. One of the principal topics addressed was the use of section 20 accommodation. I offered the following guidance:
"The use of section 20 by a local authority to provide accommodation to children and young people is perfectly legitimate if deployed in appropriate circumstances. It is a useful tool available to local authorities. I offer the following as examples of the appropriate use of section 20 but I emphasise these are examples only and not an exhaustive list: (a) a young person where his or her parents have requested their child's accommodation because of behavioural problems and where the parents and social care are working co-operatively together to resolve the issues and to secure a return home in early course; (b) children or young people where the parent or parents have suffered an unexpected domestic crisis and require support from social care to accommodate the children or young people for a short period of time; (c) an unaccompanied asylum-seeking child or young person requires accommodation in circumstances where there are no grounds to believe the threshold criteria of section 31 of the Children Act 1989 are satisfied; (d) the children or young people who suffer from a medical condition or disability and the parent or parents seek respite care for a short period of time; or (e) a shared care arrangement between the family and local authority where the threshold of section 31 care is not met yet, where supported, this intensive level is needed periodically throughout a childhood or part of a childhood.
"In all of the foregoing, it is likely the threshold criteria of section 31 of the Children Act 1989 are not or will not be satisfied and/or it would be either disproportionate or unnecessary to issue public law proceedings. It is wholly inappropriate and an abuse of section 20 to accommodate children or young people as an alternative to the issue of public law proceedings or to provide accommodation and to delay the issue of public law proceedings. Where children and young people who are believed to be at risk of suffering significant harm are removed from the care of their parent or parents, whether under a police protection and emergency protection order or by consent pursuant to section 20, it is imperative that care proceedings are issued without any delay."
16. This guidance, which was given by me in my role as the Family Division Liaison Judge of the Midland Circuit, has neither legal effect nor greater significance than, as was intended to be, helpful advice to the respective directors, their senior staff, their social workers and the local authority's child care solicitors.
Background - CD
17. The history of CD's life in the care of the local authority can be summarised as follows. As I have said, CD first became known to the council in late 2005 following a series of referrals related to concerns around CD's parents, being in a domestically abusive relationship, the impact of emotional harm on CD and his mother, experiencing difficulties in managing his behaviour. To prevent CD suffering or being at risk of significant harm, on 14 October 2009 CD was accommodated at the request of his mother owing to CD being beyond parental control. CD's first LAC review was held on 9 November 2009.
18. CD's mother was not engaging with the local authority at this time and the care plan proposed for CD was for him to remain under section 20 whilst exploring the suitability of CD's father as primary carer. On 16 December 2009, legal advice was sought and it was advised that the threshold for care proceedings were met.
19. At CD's second LAC review on 27 January 2010, potential reunification had not been ruled out but would be the subject of an assessment and pending direct work being undertaken with CD's parents. CD's legal status was, therefore, deemed appropriate whilst reunification continued to be explored. On 28 March 2010, the mother wrote to the local authority formally to withdraw her consent to CD remaining accommodated by the local authority pursuant to the provisions of section 20. The local authority did not act on this withdrawal of consent and, instead, advised the mother to seek legal advice if they wished CD to be returned to their care. I shall return to this issue later in the judgment.
20. A further LAC review was held on 29 April 2010. That review recommended that the local authority should take steps to address CD's legal security and permanence. A legal planning meeting was held on 4 August 2010. The legal advice given was to issue care proceedings to gain greater clarity around the parties' views and timescales to secure permanence for CD as early as possible and for CD to have a voice in the proceedings through his guardian and solicitor. Nothing was done.
21. A further LAC review held on 18 November 2010, during which CD's independent reviewing officer raised concerns about the delay in achieving permanence for CD and reiterated that the legal advice given needed to be followed. Nothing was done.
22. Two further legal planning meetings were held on 16 February 2011 and, following the completion of an updated assessment of CD's needs again, on 30 March 2011, there was agreement at that latter meeting to initiate care proceedings. At a further LAC review on 6 April 2011, no further recommendations were made as a clear decision had been made on 30 March.
23. On 5 May 2011, the decision to initiate care proceedings was retracted by the then Assistant Director of Children's Services who stated she was not, "agreeing to issuing proceedings and considered that seeking a care order would not make a significant difference to CD's care given he had been accommodated for some time".
24. This decision was fundamentally misconceived and fundamentally wrong.
25. A further LAC review was held on 4 October 2011. The recommendation was that CD should remain accommodated under section 20 because of (i) the Assistant Director's decision and (ii) potential reunification to his father's care was still being considered. A further LAC review was held on 7 March 2012, which recommended permanence be achieved for CD through him remaining accommodated under section 20. Quite how such an arrangement achieved permanence for CD or was in his welfare best interests, I do not understand. Neither the local authority nor CD’s foster carers had parental responsibility for him.
26. It was stated that there were no current plans for reunification at that time. The independent reviewing officer noted it was unclear as to how the local authority had reached this permanence decision. CD's foster carers were noted as being committed to caring for CD long term and CD also expressed his wish for this. There was a further LAC review on 7 September 2012. At that review, the independent reviewing officer urged the local authority to be clear about permanence for CD and to do this without delay.
27. The next LAC review was held on 28 February 2013 where it was agreed that CD should remain looked after until his 18th birthday. There had been a query about his legal status. The decision was made that he remained accommodated pursuant to section 20, noting that CD's mother was engaging well with the arrangements. A further LAC review was held on 16 July 2013. No changes were recommended to CD's care plan. The same approach was taken at the next LAC review on 9 December 2013 but there were discussions about the possibility of CD's foster carers applying for a special guardianship order.
28. On 10 March 2014, the fostering team manager wrote to CD's social worker and team manager seeking clarity regarding CD's carer's position in relation to an application for a special guardianship order. The Fostering Team Manager shared the view that a special guardianship order would be the best outcome for CD given the long-term stable nature of the placement and his carer's commitment to him. At a LAC review held on 18 March 2014, it was confirmed that CD's carers were considering making a special guardianship order application. The same note was made at the next LAC review on 9 September 2014. At the next LAC review, on 10 February 2015, it was recommended that CD remained subject to section 20 accommodation whilst a special guardianship order was being progressed.
29. At the LAC review on 15 July 2015, CD's mother expressed her opposition to the application for a special guardianship order. A further LAC review was held on 16 December 2015. The reasons why a special guardianship application had not been pursued were discussed. It was considered that it would be too unsettling for CD whilst studying for his GCSEs, particularly in light of the mother's opposition to the making of such an order. It was agreed that the placement would be a long-term foster placement.
30. Following the issue of guidance in 2016, CD's case was reviewed by a service manager on 31 March 2016. The view was that CD's legal status remained appropriate, given the stability of his placement and his age. At a further LAC review on 3 June 2016, it was discussed that CD would prefer to be legally linked to his carers via a special guardianship order and not be looked after or the subject of a care order. It was recorded that permanence for CD had been established practically through his placement but issues about his legal status remained. The local authority, it was noted, had considered applying for a special guardianship order in favour of CD's foster carers but they did not pursue this option due to CD's mother opposing the plan. A further LAC review was held on 18 November 2016, at which the further discussion took place about the making of an SGO.
31. On 23 November 2016, CD's foster carers confirmed in writing their decision not to pursue an application for a special guardianship order. They stated they had discussed the matter with their family and had decided not to pursue it due to the length of time that had already elapsed and the potential disruption for CD.
32. There was a further LAC review on 3 April 2017. On 5 September 2017, legal advice was sought at a legal gateway meeting. It was recognised that CD had been accommodated under section 20 since 2009. Somewhat surprisingly, the section 20 accommodation arrangement was deemed appropriate. Thereafter, the decision was made to issue these public law proceedings.
Background - GH
33. The history of GH's life in the care of the local authority can be summarised as follows. GH, as I have said, was born with significant disabilities and spent five months in hospital in a special care baby unit. He then was placed with his mother, with ZA, in a mother and baby foster arrangement. That arrangement sadly broke down in September 2008. The mother left and GH remained with ZA. He became accommodated under section 20 on 9 July 2008 purportedly on the basis of the consent given by his 14-year-old mother. The first LAC review was held on 22 July 2008. There was then a legal planning meeting on 2 September 2008. There were discussions about the role played by the mother's mother, the maternal grandmother.
34. On 3 September 2008, the following day, it was recognised that care proceedings should be commenced in respect of GH. No application was made.
35. At the second LAC review on 30 September 2008, it was recorded that there was going to be a twin tracking approach taken. This was to determine whether rehabilitation of GH to his family would be possible or whether to follow and issue court proceedings. Thereafter, GH had a number of admissions to hospital for various periods of time for ill health between July 2008 and November 2009. At a LAC review and child protection conference on 16 March 2009, a decision was made that GH would no longer be subject to a child protection plan as he was not at risk of significant harm due to being in the care of his foster carer. Consideration of rehabilitation continued for some period of time. It was eventually agreed at a LAC review on 5 July 2011 that there would not be rehabilitation of GH to the care of his family.
36. There was a professionals meeting held on 8 March 2011 where, again, it was confirmed that it was clear that the mother and the maternal grandmother were not able to provide for GH's future care needs. There then followed a LAC review on 5 July 2011 when it was agreed that GH would not be rehabilitated to the care of his mother or of his wider family. It was noted that the family were in agreement with this plan. It was decided that care proceedings would not be instigated and GH would remain accommodated under section 20. This plan and proposal was confirmed throughout 2012 and 2013.
37. At a LAC review held on 4 March 2014, there was a change of plan by the local authority. The local authority decided to take GH’s case to a legal planning meeting.
"It is evident to me there have been multiple failings by our local authority during the period we have cared for CD. I accept there was a misuse of our powers in the use of section 20, and in particular where AB (that is the mother) withdrew her consent for CD being accommodated the local authority has failed to achieve permanency for CD as he has not had the legal protection of a court order enabling the local authority to commit to his placement. The local authority has been confused in its decision making and missed multiple opportunities to make things right.
"In the past the local authority has lacked a consistent focus in achieving permanency. This lack of a proactive approach to resolving difficulties and achieving permanency led to a comprehensive review of our practice during 2016/17 and the development of new guidance which includes the ongoing oversight of heads of service to ensure children's needs are appropriately met. Although there were some attempts to enable decision making through the use of delegated responsibility forms, this was inadequate given the length of time CD had been in care, the changes in the views of his parents and their varying levels of involvement in CD's life.
"The local authority now has a clear approach to managing and reviewing children who are admitted to care under section 20 that involves legal advice at the start and ensure the children do not remain under a section 20 for extended periods. The independent reviewing officer service has also developed more robust mechanisms for the escalation and monitoring of cases. The local authority has on occasions failed to make adequate progress through the independent officer dispute resolution processes. An escalation and tracking process is now in place to ensure disputes are brought to the attention of heads of service promptly and tracked until effective resolution is achieved.
"I hope this letter offers reassurance that I do understand and take responsibility for the serious failings of the local authority in CD's care and for ensuring that standards of practice for children admitted to care are now very different to those experienced by CD, his family and his foster carers."
"I do accept there have been serious failings by our local authority during the period we have cared for GH. I also understand that we have not respected EF's human rights in not treating her as a vulnerable child as well as being GH's mother. The local authority has failed to achieve permanency with GH as he has not had the legal protection of a court order enabling the local authority to commit to his placement. The local authority has been confused in its decision making and missed multiple opportunities to make things right, repeating the same mistakes on a number of occasions.
"In the past, this local authority has lacked consistent focus in achieving permanency. This lack of a proactive approach to resolving difficulties and achieving permanency led to a comprehensive review of our practice during 2016/17 and the development of new guidance which includes ongoing oversight by heads of service to ensure children's needs are properly met. Although GH has experienced excellent and dedicated care from his foster carer ZA, this does not excuse the failings identified. Failure to manage the case appropriately has resulted in significant periods of uncertainty with the family and the foster carer. This situation has still to be fully resolved after a period of nine years.
"The local authority now has a clear approach to managing and reviewing children who are admitted to care under section 20 that involves legal advice at the start and ensures children do not remain under section 20 for extended periods. The independent reviewing officer service has also developed more robust mechanisms for the tracking and escalation of cases."
"The third problem relates to the fact that far too often the arrangements under section 20 are allowed to continue for far too long. This needs no elaboration. This is related to the fourth problem: the seeming reluctance of local authorities to return the child to the parents immediately upon a withdrawal of parental consent. It is important for local authorities to recognise that as section 20(8) of the 1989 Act provides: "Any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section."
"This means what it says. A local authority which fails to permit a parent to remove a child in circumstances within section 20(8) acts unlawfully, exposes itself to proceedings at the suit of the parent and may even be guilty of a criminal offence. A parent in that position could bring a claim against the local authority for judicial review or indeed seek an immediate writ of habeas corpus against the local authority. I should add that I am exceedingly sceptical as to whether a parent can contract out of section 20(8) in advance as by agreeing with the local authority to give a specified period of notice before exercising their section 20(8) right."
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