B (A Child) [2016] EWFC B10 (29 January 2016)

The child, B, is now ten years old. His mother is Ms S. His father is thought to be Mr H, a Schedule 1 offender. He does not hold parental responsibility. Mr H refused to undertake a DNA test and played no part in the proceedings in 2010/2011, which concluded in my making a care order and a placement order on 23 February 2011 in respect of B, who was then three months short of six years old.

At the same time, I continued an order, made earlier during the course of those proceedings, pursuant to s34(4) of the Children Act 1989, authorising the local authority to withhold contact between mother and son. This order, made with the agreement of the Guardian, was necessary to protect B from the harmful impact of potential contact with his mother.

The local authority’s plan for B, in 2011, was that he should be adopted. In view of his very serious behavioural difficulties, this was always likely to be a difficult task. In those circumstances the realistic contingency plan for B was for long-term foster care. He had been in foster care during the course of the proceedings; he has lived with his present foster carers since 10 June 2010, when he was just 5. His last contact with his mother was some three months earlier; after that she failed to attend appointments, contact was suspended and the s34(4) order was sought and made.

The inevitable reservation whether the plan would prove feasible was entirely justified. Notwithstanding, no doubt, a careful search for appropriate adopters, none was found able and willing to care for B. Eventually, at a looked after children ("LAC") review on 23 November 2011, his plan was changed to one of long-term foster care. In February 2012 the appropriate local authority panel formally agreed the change of plan. Later that same month his mother was informed of his changed status.

At that stage the local authority ought to have sought to revoke the placement order. Had they done so, the matter would have returned to court, a Guardian (in all probability the same Guardian who acted for B in the care proceedings) would have been appointed to protect his interests. His mother would have had the opportunity, if she was so minded, to seek contact with him.

None of this happened. A succession of LAC reviews took place (some 7 in all) before, in February 2015, the local authority presented an application for revocation. During the course of that three-year period the Independent Reviewing Officer ("IRO") took no adequate action to progress the matter.

A similar (but far more serious) example of such failure gave rise to the decision of Peter Jackson J in A and S v Lancashire County Council [2012] EWHC 1689 (Fam). In that case the judge described the situation in this way, "One lesson is that the legal status of children in care has welfare consequences. If the court has authorised the local authority to look for an adoptive home under a freeing order or a placement order, all energies will be directed towards achieving that outcome, with the maintenance of family ties a much lower priority. That is, in the current jargon, the direction of travel. But if adoption is not possible, the direction changes. The child will not be losing membership of his birth family and the question of what family connections (if any) are in his interests needs to be reviewed."

During these present proceedings mother has not sought to become actively involved; she does not oppose the local authority’s application. Mr H, true to form, has not engaged.

During the course of the proceedings the Guardian, who also did not seek to oppose the application, indicated an intention to make a claim, on behalf B, against the local authority in respect of alleged breaches of the child’s Article 6 and 8 rights under the European Convention of Human Rights, pursuant to the Human Rights Act 1998 s6(1).

In due course Particulars of Claim were served, seeking declarations and damages from the local authority, in respect of its failings, and those of the IRO service, for which it is vicariously responsible. At a case management hearing on 1 July 2015 the authority accepted in principle that declarations should be made but resisted the claim for damages. That stance is repeated in the formal Defence, dated 28 August.

The power to award damages in cases such as the present is to be found in sections 7 and 8 of the Human Rights Act. The local authority concedes that the power exists and applies in this instance. It is submitted, however, that this is not a case where damages should be awarded. Section 8, so far as it is material, provides that the court "may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate" (s8(1)), but that "no award of damages is to be made unless, taking account of all the circumstances of the case, including ….. any other relief or remedy granted, or order made, in relation to the act in question….. the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made" (s8(3)). It is important, in my judgment, to note that any relief must be "just and appropriate" and must be "necessary to afford just satisfaction".

The various authorities to which I have been referred emphasise the need to consider all the relevant facts of any particular case and that the decision to award damages and, where such an award is made, the quantum of damages, are "highly fact sensitive". Whilst not wishing to overlook any other matters, it seems to me that the most important factors are the severity and length of any breach of Convention rights, and the impact of such breach on the child, together with the circumstances of any procedural failure.

In the present case the local authority failed for three years to take the obvious step of seeking to revoke the placement order. B’s circumstances were considered on numerous occasions by the authority at LAC reviews but, despite some references to seeking revocation, nothing was done in this respect. Equally, the IRO did nothing to ensure that an application was made. Both the authority and the IRO service tender apologies and seek to assure the court that their processes have improved and that there will be no repetition of such a lengthy failure.

Far more important was the local authority's failure, and a similar failure on the part of the IRO, to give proper consideration to the question of contact between B and his mother and, maybe, also his father, together with the possibility of sibling contact. Ms S, after B had been taken into care, gave birth to two children (by a different father), M, born 2010, and T, born 2012. Mr H had already fathered four children, D, J, C and L (who was adopted at the age of four), now aged respectively 19, 17, 16 and 15.

In a detailed skeleton argument, prepared by Ms Tompkins and adopted at the hearing by Ms Temple Bone, the local authority itself, and acting on behalf of the IRO service, concedes that B's Article 6 and 8 rights were breached and that appropriate declarations should be made. I will make those declarations which are annexed to this judgment.

Most of the authorities to which I was referred concern cases where children have been unlawfully removed from their parents’ care; where the provisions of s20 of the 1989 Act have been ignored. However, as the Lancashire case shows, late revocation of placement orders is not uncommon; indeed, it is not only a phenomenon known to the courts in the north-west of the country, the West Midlands courts experience is the same, although reported cases are be rare.

This case is unusual. When the placement order was made, mother was the subject of a s34(4) order and father (if he is B's father) did not engage in the proceedings. It could easily be said, therefore, that, in 2011, it was not in B's best interests to have contact with either adult. The question remains, however, whether that situation continued through into 2015?

There are two particular factors which, on behalf B, Ms Kushner relies. First, she submits that, by virtue of the local authority’s failures, B has lost his opportunity to have the matter ventilated in court; his access to justice was denied. Had the authority made a revocation application, B would have had a guardian appointed to protect his interests. Who knows what might then have arisen? He therefore lost the chance of resuming contact with his mother at that time. She might have reformed or, when told of the local authority’s change of plan, and with the benefit of discussions with a guardian, been galvanised into reform.

Ms Kushner's second line of argument concerns B's half siblings. He lost the opportunity, during 2012 to 2015, to begin to form a relationship with them. Again, who knows what might have occurred? However, there must, at least, have been a chance that he might have begun to develop a fulfilling sibling relationship with at least one of them; the three-year delay may well have damaged that prospect.

Ms Kushner submits that once the plan for B had changed, the local authority's obligation was to promote contact, provided it was in his interests; it must "recalibrate" and, at the very least, give serious and meaningful consideration to the prospect of contact. By acting as it did, it denied B access to the court and denied him, and a guardian, the opportunity to investigate the potential for contact.

She pointed to a line of cases decided by the European Court of Human Rights where such a denial of access of justice and subsequent loss of opportunity was found sufficient to entitle an applicant to an award of damages, notwithstanding, certainly in some of the cases, the absence of a direct causal link between the breach of a convention right and subsequent damage. She also referred me to a recent decision of Keehan J in Northamptonshire County Council v AS and others [2015] EWHC 199 (Fam) where he awarded a very young child £12,000 damages following an unlawful removal from his mother's care; in that case no causal link appears to have been established.

On behalf of the local authority, Ms Temple Bone conceded that this was a bad case but contended that there was no causative link between breach and damage; she submitted that no loss had been proved. B is thriving in his foster placement, as the Guardian herself accepts.

Ms Temple Bone pointed out that B's mother was told in 2012 that his plan had changed to one of long-term foster care and, notwithstanding that on 15 May 2012 she expressed "interest in face-to-face contact" she has made no application to the court. That, of course, may be because social workers told her that they would not support direct contact. She has, recently sent B a letter.

B was told about his maternal half siblings in February last year. The local authority argues that it would have been wrong to tell him before because M was suffering from leukaemia; that may or may not have been the correct analysis, but it was, inevitably in the circumstances, reached without the input of a guardian. In any event, M and T now live with their father who is apparently reluctant to agree to them seeing B at the present time; again, this is a decision reached without the benefit of a guardian's input.

It may well not be in B's best interest for him to have contact with Mr H (even assuming that he is B's father). If they are paternal half siblings, Mr H's boys are significantly older than B; he was not aware of their existence either until 2015. They all appear to be somewhat needy children and the social worker’s view is that the absence of contact has not had a negative impact on B. Once more, that is a conclusion reached without the benefit of discussion with the Guardian.

I must be careful not to yield to the temptation to make an award of damages by way of sanction of the local authority and IRO service in respect of their manifest, and admitted, failures. An award of damages should only be compensatory and, in the present circumstances, should only be made "where necessary to afford just satisfaction".

In this case, given the length of time involved and the severity of the breaches of B's convention rights, taken together with the impact of such breaches in the form of his loss of access to justice and the lost opportunity, over three years, to develop a relationship with at least one of his half siblings, I consider that it is appropriate, just and proportionate to make an award of damages. In my judgment there has been here a lost opportunity for this child to make contact with members of his extended family; the passage of time is likely now to make this more difficult.

How is this lost opportunity (the loss of a chance) to be quantified into an award of damages? This is a task undertaken frequently in the civil courts in assessing damages for future loss in personal injury cases. In the present case I bear in mind that B's own behavioural difficulties and his mother's limitations (in particular her past behaviour, leading to a s34(4) order being made). I also consider that the prospect of his ever achieving beneficial contact with his father was remote, and that fulfilling contact (even indirect) with the paternal half siblings is unlikely. However, there must be a real possibility of his establishing contact with his maternal half siblings, and the passage of time is likely to have damaged that prospect.

In all the circumstances, I have concluded that the damages, which are necessary to afford B just satisfaction in this case, should be modest, but more than nominal. Having regard to the level of damages in the decided cases to which I have been referred, I would award him £5000. I do not consider it necessary to make separate awards against local authority and IRO service; it seems to me that they should bear responsibility roughly in equal shares.

I turn now to the question of costs. The parties recognise the extreme difficulty in this area caused by the legal aid agency regulations. B's solicitor has researched this aspect of the case; her helpful position statement is contained within the court bundle and has not been the subject of any challenge. B has the benefit of a full legal aid certificate, covering the revocation application and, by a subsequent amendment, the human rights claim. The usual rules in relation to the agency's statutory charge cover both of these proceedings and would do so regardless of whether the human rights claim was separated from the revocation proceedings.

The most recent cost schedule served by B's solicitor shows her costs to amount to £6700. It follows, therefore, that the statutory charge will take the whole of the damages unless I also make an award of costs in B’s favour.

I am faced with a stark choice, either I make the usual order in Children Act cases, no costs, the result of which will be that B receives not a penny and renders the entire exercise pointless (save for the making of declarations, which will be of no practical benefit to the child), or I order the local authority to pay the costs of the proceedings. Ms Temple Bone invites me to adopt the former course, arguing that the local authority ought not to be required to make good the defects in the legal aid regime. On the other hand, Ms Kushner invites me to make an order for costs, to give meaningful effect to my award of damages.

I prefer the latter approach. I have found the local authority and the IRO service, both public authorities, on their own admissions, to be seriously at fault and to have breached B’s convention rights in a variety of respects and have concluded that it is appropriate that he should be awarded damages by way of just satisfaction. Another public authority has made regulations which would effectively prevent him from receiving those damages. That cannot be right, and is certainly neither just nor proportionate. The justice of the case demands that B receives his damages and that, therefore, the local authority must pay the entire costs of these proceedings, on the standard basis, to be subject to a detailed assessment if not agreed.

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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> B (A Child) [2016] EWFC B10 (29 January 2016) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2016/B10.html Cite as: [2016] EWFC B10

England and Wales Family Court Decisions (other Judges)