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Kent County Council v M and K (Section 20: Declaration and Damages) [2016] EWFC 28

Theis J addresses two issues in relation to a 14-year-old child: (1) the making of a care order with a plan for long-term foster care; and (2) a claim on K’s behalf under HRA 1998 for declarations and damages following prolonged accommodation under section 20, Children Act 1989.

All parties agreed that threshold was met on the basis of emotional harm flowing from K's mother's historically poor mental health; all agreed that a care order should be made for long-term foster care with a programme of contact between K, his mother and his sister. As such, Theis J made the order.

HRA 1998 claim

On 14 December 2011, K was accommodated by KCC under section 20, CA 1989. Care proceedings were issued on 16 November 2015.

The claim under HRA 1998 was for declarations that Kent County Council (KCC) breached K's article 6 and 8, ECHR, rights and for damages. Three heads of claim were advanced: KCC's failure properly to assess K (updating core assessment; life story work; psychological / psychiatric assessments of K and her family); KCC's failure to meet K's needs (7 placement breakdowns; non-receipt of appropriate therapy); and, KCC's failure to issue proceedings (depriving K of proper court oversight and, therefore, support and assessments).

KCC argued, in particular, that: unlike in many reported cases, there was no dispute about KCC's care plan for K; K's mother was involved from 2011 – 2015; the non-issue of proceedings was not causally related to the breakdown of placements; multiple referrals were made to CAMHS; and, the assertion that K has been harmed by KCC's actions was speculative.

Theis J held that KCC had acted in breach of K's article 6 and 8, ECHR, rights in that it had: (1) failed properly to assess K from March 2012 until July 2015; (2) failed to implement a care plan that met K's needs from March 2012 until July 2015; (3) in doing so, failed to provide K with a proper opportunity to secure a long-term placement and settled home life (article 8, ECHR); and (4) failed to issue proceedings in a timely manner from March 2012 until November 2015, which deprived K of protection under the CA 1989, access to court and the procedural protection of a children's guardian (articles 6 and 8, ECHR).

Theis J found that an award for damages under section 3, HRA 1998 was necessary. She referred to HHJ Lazarus's summary of the level of awards previously made in Medway Council v M and T [2015] EWFC B 164. Quantification is "highly fact sensitive", at [79]. On consideration of the level of previous awards and the facts of K's case, Theis J considered that the award should be £17,500.

Costs

Additionally, K sought her costs. KCC resisted the application. Theis J ordered that "where the breaches continued for such a long period of time", at [84], KCC should pay K's costs, limited to the HRA application. No order for costs was made between KCC and K's mother.

Summary by Alex Laing, barrister, Coram Chambers

___________________

This judgment was delivered in private.   The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved.  All persons, including representatives of the media, must ensure that this condition is strictly complied with.  Failure to do so will be a contempt of court.

Case No: ME15C01263
Neutral Citation Number: [2016] EWFC 28

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 13/05/2016


Before:

MRS JUSTICE THEIS DBE

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Between:

Kent County Council
 Applicant
- and - 
M 1st Respondent
- and- 
K By Her Children's Guardian  2nd Respondent
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Ms Fawzia King (instructed by KCC) for the Applicant
Mr Max Konarek
(instructed by Kingsfords Solicitors) for the 1st Respondent
Mr Jeremy Hall
(instructed by Rootes & Alliott) for the 2nd Respondent

Hearing date: 21st April 2016; Judgment 13 May 2016
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Judgment
Mrs Justice Theis DBE:

Introduction
1.  This case concerns the future care of K, now age 14 years. There are two issues the court is required to determine.

2.  First, whether a final care order should be made, endorsing a care plan for K to remain in long term foster care. There is no issue about that between the applicant local authority, Kent County Council (LA), K's mother, M, and K's Guardian, Ms Clark.

3.  The second issue is a claim under the Human Rights Act 1998 (HRA), made on behalf of K, for declarations that the LA has breached K's rights to family life (article 8) and a fair trial (article 6), together with a claim for damages. K was placed in the care of the LA pursuant to section 20 Children Act 1989 (CA 1989) on 14 December 2011, the LA issued these proceedings on 16 November 2015. The HRA claim is put under three headings: the failure of the LA to assess K; failure to meet K's needs and the failure to issue court proceedings. The LA deny this claim. K's mother supports the claim. 
 
4.  I heard the case on 21 April and reserved judgment. It was agreed between the parties that it was not necessary for me to hear oral evidence in relation to either issue, all parties made submissions on the written evidence in the trial bundle.

5.  For the reasons set out below, I am going to make a care order, endorsing the care plan for K to remain in long term foster care. This order will enable the LA to share parental responsibility (PR) and give K the security and stability that her welfare clearly demands. The arrangements for K to see her mother and sister are agreed.

6.   In addition, I will make the declarations sought that K's article 6 and 8 rights have been breached by the LA. In my judgment, the failures by the LA to properly assess and then support K's needs and to delay issuing legal proceedings for over three years were actions that were unjustified and incompatible with K's article 6 and 8 rights. I have made an order that the LA pay damages to K of £17,500.

Relevant Background
7.  K was accommodated by the LA, pursuant to s 20 CA 1989, on 14 December 2011. Prior to that she had been living with her aunt, as her mother was unable to cope with her care. K has a younger sister who remains in her mother's care. Her father has taken no active part in her care, or these proceedings.

8.  The LA had had prior involvement with K. They had completed a core assessment in April 2011 when K was living with her aunt. The assessment recorded the need for M to address her own mental health needs, K's relationship with her M was difficult which 'will certainly impact on her emotional and behavioural development', and '[K] may well need some intervention from the primary mental health team to support her with the difficult feelings and interactions she has with her mother and sister'. The recommendations in the assessment included M to give parental responsibility to the aunt.

9.  On 5 December 2011 K's aunt informed the LA that she was unable to continue to care for K. K's mother, M, gave her consent to K being accommodated by the LA by telephone that day. There is no issue that this was a valid consent.

10. The documents show a placement plan was formulated on 14 December, providing that the period of accommodation pursuant to s 20 was for an initial period of four weeks, pending the convening of a family group conference (FGC), to consider whether any alternative family placements could be explored. This plan recorded 'It is a concern that [K's] emotional needs has not been addressed in an appropriate way during her short life'. This care plan was signed by M.

11. At the Looked After Review (LAC Review) on 6 January 2012, it records K needing a referral for therapy/counselling and a referral had been made to the Lenworth Clinic (next meeting 25 January). The care plan is recorded as being 'Eventual return to birth family'. And under the 'Assessment' sub heading, it states a core assessment 'to be updated'. Under 'Emotional and Behavioural Development' it states K is 'known to CAMHS and plan is that once [K] is settled fully they will start working with her'. These LAC Review minutes are signed by M.

12. On 11 January 2012 the family met at the FGC, and all agreed that it would be better for K to stay in foster care as none of the family were able to have K live with them. M signed this document, signifying her agreement to this plan.

13. At the next LAC Review on 27 March 2012 there is a record of a meeting at the Lenworth Clinic on 25 January 2012, an acknowledgement that K needs a referral for therapy/counselling. It records the referral to the Lenworth Clinic and notes 'no work will be undertaken with her until current foster placement would be confirmed for long term'. The acute difficulties between K and her M at contact are noted. Importantly, this record notes the change in care plan for K to long term foster placement with foster carers, but acknowledges K has not been informed. It records the core assessment has been completed (although no updated core assessment has been produced) and notes it recommends that it would be 'advisable to convene a legal planning meeting for the [LA] to seek advice regarding [K's] care status and issue of parental responsibility'. This advice is repeated in the care planning section, where it records 'legal advice needs to be sought re long-term fostering as permanency for [K] and Parental Responsibility issue'. This topic is recorded in the decisions and recommendations section as 'Legal advice to be sought re Parental Responsibility Issue By whom – Social Worker and her manager Timescales – 27/04/12'. This document is not signed by M.

14. The advice from CAMHS of K being unable to benefit from individual therapy until she is 'firmly ensconced within a family unit' is confirmed in a letter copied to the LA from the Lenworth Clinic. The LA urge CAMHS to reconsider their position in a letter dated 2 May, stating that K is 'settled down and doing exceptionally well in the foster placement'. In June CAMHS respond to say they have sent the foster carers a questionnaire and when it is returned the referral will be discussed further.

15. K's placement broke down on 5 July, in circumstances where her behaviour was so difficult the police had to be called.

16. At the next LAC Review on 12 September 2012 there is reference in the record of the meeting to a legal planning meeting on 25 June 2012, but no other detail about this meeting has been disclosed. As regards the CAMHS referral it notes K has moved placements and another questionnaire will be sent to her new foster carer. The record repeats that K needs a referral for therapy/counselling and notes the concerns regarding K's emotional well-being caused by her wish to live with her mother, why her sister lives with her mother and she can't, and her mother's inconsistent behaviour at contact. It continues '[K] has been emotionally and psychologically affected by her experiences. She does require psychological support as soon as possible…It is hoped that once this [questionnaire] has been received by CAMHS appointments will be set up'. Under the section entitled 'Legal' it states 'A legal planning meeting needs to be pursued with regard to care proceedings'. There is reference to the core assessment and care plan to be updated. Under 'Decisions and Recommendations' is recorded 'Care proceedings to be pursued in order to give this child some stability and long-term placement. The referral to CAMHS to be pursued and the questionnaire to be completed by the previous and present foster carer.' M did not sign this record.

17. On 27 September the LA were informed by the Lenworth Clinic that as K was no longer placed in their catchment area they were referred to the CAMHS resource in the area of the new foster placement.

18. The next LAC Review was on 5 December 2012. There is a repeated reference to a legal planning meeting on 25 June 2012. As regards the CAMHS referral there is reference to Ms A (the LAC Mental Health Specialist in CAMHS) requesting a meeting with the foster carer, which was still outstanding. The record notes ongoing concerns about K's emotional well being, that she struggles in her relationship with M and M being unable to empathise with K and what she is going through. K has been 'emotionally and psychologically affected by her experiences' and requires psychological support as soon as possible. The record of the meeting refers to the care plan, stating that the case is twin tracked 'but the mother is clear that she could not care for her daughter and will therefore not consider rehabilitation home. Given the situation, the local authority needs to pursue long-term plans for [K]'. M does not sign these minutes.

19. In April 2013 there is a letter from Ms A to the LA setting out the CAMHS meeting with the foster carer and the social workers. It is accepted by Ms King, for the LA, that K was not present.

20. The LAC Review meeting on 16 May 2013 refers to the CAMHS meetings being with the foster carer, but then records K 'has been emotionally and psychologically affected by her experiences. She is currently receiving psychological support via [Ms A] at CAMHS', later on referring to Ms A as now 'working with [foster carer] and [K] to advise on strategies to manage behaviours and support the placement'. The CAMHS referral has been noted to have been 'actioned'. M does not sign the minutes, but is recorded as having been seen on 21 March.

21. On 16 July 2013 there was an emergency breakdown of the foster placement, there was an alleged assault by K on the foster carer requiring a late night home visit by the LA.

22. The LAC Review meeting on 5 September 2013 refers to K attending the meeting. The record notes there had been no updated core assessment, no life story or direct work done with K and that this had left her 'confused and unclear why she could not remain in the care of her mother. This is further exacerbated by a younger half-sibling remaining in the care of [M].' It continues 'LA do not hold PR for [K] and no other family members have been identified. The LA needs to give further consideration to this given [K's] young age and potential difficulties in the future if they do not hold PR…The LA have not been able to safeguard [K's] emotional well being given the breakdown in placements and the fact that Permanency has not yet been achieved for her…She [K] has previously had intervention and support from CAMHS – it was unclear as to whether this is being offered at present….Legal: Section 20. LA will need to give this further consideration in view of securing stability and security for [K]'.

23. In January 2014 there is a signed letter from M confirming her consent for the foster carer to sign for day trips abroad and emergency medical treatment. This is followed in February 2014 with a health consent form signed by M.

24. There is a report from an educational psychologist, following a consultation with K on 6 November 2013 regarding her behaviour at school which is reported to have improved.

25. Undated LAC Review minutes indicate a meeting took place in January 2014. There is reference to Ms A working with K in January 2013, which it is accepted is incorrect as no direct work was done with K. The minutes refer to Life Story work being started, but not completed. There is no entry in the box regarding consideration of any new legal orders. Under the section entitled 'Is this the preferred placement option for this child/young person?' it says 'No', when asked why, it states 'It is preferred that [K] return to a Local Authority Foster Placement', when asked about alternative plans it states 'An assessment is being undertaken to fully identify [K's] needs'.

26. In May 2014 there is a letter from SM (Senior Systemic Psychotherapist CAMHS) to the social worker confirming the four professional meetings and their conclusion that 'the uncertainty about her future is affecting [K's] emotional well-being and since [the foster carer] is similarly unable to provide reassurance to [K] this is having an impact upon [K's] attachment to the [foster carer] and the [foster carer's] attachment to [K]. [the foster carer] must, by virtue of not knowing, withhold some aspects of ''normal' family life as such as planning for the future. It could be that this is, in part, why [K] believes she may still return home, and why she has seemed confused in her thinking. Other issues notwithstanding, it would seem that [K] is positioned between two families and needs to know who she is going to live with long term. It must be borne in mind that multiple moves (such as have occurred for [K]) can only increase her sense of loss and reduce her hope that there is someone and somewhere she can feel safe and secure. It is not surprising that she displays very challenging behaviours, she must feel enraged and despairing.'

27. At around this time M writes a letter to K, to explain why she can no longer care for her.

28. In the LAC Review minutes for 18 June 2014 K is noted as attending. They note that the LA have not pursued to change the legal status for K as work was being undertaken with M and she is supporting the care plan. It notes that the social worker has 'undertaken and completed much overdue life story work' which M has supported so K has a clear message she is not returning home. Under 'Legal' the minutes record '[K] remains accommodated under s 20. Whilst Mum continues to give consent and work with the LA in care planning for [K] there are no indications to change this.' In July 2014 M gave her consent for K to go on holiday with the foster carer. In another record of this meeting it notes '[K's] emotional and physical behaviour continues to be of concern within the placement and this is felt to be due to the level of uncertainty she still has in regards to her placement due to being told she may be moving placements/is staying and the confusion this has caused her….a plan of permanency has not been agreed for the IFA placement due to Kent's current policy on IFA placements..'.

29. In September 2014 the foster placement broke down due to K's disruptive behaviour and in October she moved to her fourth placement.

30. At the LAC Review on 20 November 2014, which K attended, the minutes confirm that individual support from CAMHS has yet to be offered. As regards the care plan meeting the need for permanency it records 'Yes – if stability of Placement is achieved. Consideration also needs to be given to [K's] Legal Status which is s20 and has been since December 2011'. A little further on under 'Legal' it records 'IRO has asked that LA give consideration as to how her Legal Status could be more secured.' Under 'Decisions and Recommendations' the minutes note that the social worker is to request senior managers to write to CAMHS to secure appropriate level of service including a definite date for State of Mind Assessment. Also the social worker is to raise with managers K's legal status and advise IRO of outcome. One record of this meeting refers to concerns about the increased use of restraint and sedatives in her previous foster placement, with no further reference to how this was dealt with or whether M was informed.

31. A file note dated 7 December records discussions with the out of hours social worker. K had told the foster carer that 'she could go back to her mum any time'. The record ends with the following 'K needs to be spoken to urgently by her social worker tomorrow as she needs to feel validated and listened to and clearly needs an explanation about her current status in care and why she is not in her mother's care. It seems she has some unrealistic expectations about return to her mother'.

32. On 5 January 2015 there is an out of hours file note with the foster carer seeking to end the placement due to K's behaviour. K moves to her fifth placement on 16 January.

33. A file record on 18 March 2015 notes that CAMHS have not yet made any contact with the foster carer, although the school have made contact for K with another project.

34. In around June 2015 the LA make a referral to Great Ormond Street CAMHS where they note K has 'been passed around services for the last 18 months with no real support or assessment in place. The [LA] feel this in unacceptable for K and she needs a professional team to take responsibility for completing an assessment and putting a plan in place to address her needs'. The referral records it has the support of the service manager, Ms Ransley.

35. K's behaviour deteriorates again and the police are called. She moved to her sixth placement on 10 June 2015 for one night, before being placed with Mr and Mrs M her current carers on 11 June 2015. They are her seventh foster carer in four and a half years.

36. The LAC Review minutes for the meeting on 7 July 2015 record the attendance of Ms Ransley and K and M's apologies. The referral to GOSH is noted. Under 'Legal' it records '[K] remains accommodated under s20. Discussions have been ongoing outside of the CIC Reviews with LA regarding this. NB Subsequent to this Review Service manager advised via email that Care Proceedings will be filed in first week of September'.

37. A psychological report dated 6 August 2015 details the number of moves K has had and recommends a referral to GOSH, which had already taken place.  

Care Order
38. The facts necessary to establish the threshold criteria pursuant to s31 (2) CA1989 have been agreed. They focus on M's mental health history which has led to her being unable to care for K. As a result K has been subjected to a high level of instability during her early years, spending significant periods being cared for by the wider family and the LA. K experienced inconsistent care from M causing K to suffer emotional neglect which caused her significant emotional harm.

39. In reaching any decision about K the court must have regard to K's welfare as its paramount consideration pursuant to s1 CA 1989. M accepts she is not able to care for K, neither is the wider family. K is currently in a placement where she is settled and experiencing some stability. The making of a care order with a care plan to remain in her current long term foster placement, with a structure of contact with M and K's sister will meet her welfare needs. Such a plan accords with her wishes and meets her physical, educational and emotional needs. 

Legal Framework – Human Rights claim
40. Section 7(1) Human Rights Act 1998 (HRA) states as follows 'A person who claims that a public body has acted…in a way which is made unlawful by s.6(1) may:-…(b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act.' Sections 6 (1) and (6) of the HRA define an unlawful act as an act or failure to act which is incompatible with a convention right.

41. In this case K relies on breach of her article 6 and/or 8 rights. Those rights provide for her right to a fair trial and her right to private and family life.

42. K was accommodated pursuant to s 20 CA 1989, the relevant parts of which provide as follows

(1) Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of—

(a) there being no person who has parental responsibility for him;

(b) his being lost or having been abandoned; or

(c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care….

(4) A local authority may provide accommodation for any child within their area (even though a person who has parental responsibility for him is able to provide him with accommodation) if they consider that to do so would safeguard or promote the child's welfare…

(7) Before providing accommodation under this section, a local authority shall, so far as is reasonably practicable and consistent with the child's welfare—

(a) ascertain the child's wishes and feelings regarding the provision of accommodation; and

(b) give due consideration (having regard to his age and understanding) to such wishes and feelings of the child as they have been able to ascertain.

(6) A local authority may not provide accommodation under this section for any child if any person who—

(a) has parental responsibility for him; and

(b) is willing and able to—

(i) provide accommodation for him; or

(ii) arrange for accommodation to be provided for him,
objects.

(8) 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….

43. In Re N (Children)(Adoption: Jurisdiction) [2015] EWCA Civ 1112 the President criticised the LA in that case for delaying issuing proceedings for a period of 8 months, at paragraph 157 he stated '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'.

44. In Northampton CC v AS and others [2015] EWHC 199 (Fam) Keehan J pointed out that the accommodation of a child under a s 20 agreement deprives 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 LA accepted that '..the delays and general mismanagement of the case by the LA has been seriously prejudicial to the child's welfare…' and 'a lack of cohesive, comprehensive management and care for the child over a significant period of time' was in breach of the child's article 6 rights and prejudicial to his article 8 rights. At paragraph 32 this concession was expressly approved by Keehan J.

The human rights issue
45. There is no dispute that K's mother consented to the accommodation. Issues as to whether parental consent had effectively been given was a feature in a number of the authorities I have been referred to. In most of those cases the HRA claim was made by one or both parents.

46. Here the claim is made by the child, K, and the issues centre on whether the alleged failure by the LA to properly assess K, formulate or implement proper care plans for her, seek appropriate support for her, proactively manage her needs and delay applying to the court to share parental responsibility for her amount to failures that found a breach of her rights to family life and to a fair trial.

47. It is Mr Hall's contention, on behalf of K, that the delay and drift have added to the difficulties faced by K, with the consequence that her challenging behaviours and emotional difficulties becoming more entrenched.

48. The LA submit that they have managed K's care in a way that complies with her article 6 and 8 rights. They submit s 20 is not time limited, there being no requirement on them to issue proceedings to enable them to acquire parental responsibility.

The submissions
49. Mr Hall, on behalf of K, divides his submissions into three main headings: a failure to properly assess K, a failure to meet her needs and a failure to issue proceedings. Taking each heading in turn he makes the following key points.

50. On behalf of K it is submitted that when K was received into care in 2011, at the behest of the LA, they were already aware from their own core assessment in April 2011 of her considerable difficulties in her relationship with her mother, and that she may need some intervention from the primary mental health team. Despite this knowledge in their own assessment the LA failed to;

(i) Update her core assessment for over 2 years, despite repeated  recommendations at LAC Reviews to do so.

(ii) Seek a psychological assessment of K's family. The LA had recommended this should be done at a meeting in January 2005.

(iii) Seek a psychiatric or psychological assessment of K until 2015, despite that being recommended in LAC review meetings from    March 2012. It is acknowledged she did see an educational    psychologists in November 2013, but this concerned her behaviour at school. Some of the LAC reviews appeared to proceed on the basis that she was seeing someone from CAMHS, but the report dated 6 August 2015 from the trainee psychologist VT makes it clear she had not met K.

(iv) Life story work, although repeatedly recommended in LAC reviews   did not start until over 2 years after she was received into care.

51. In her statement the Guardian deals with the lack of assessment in the following way; 'If such an assessment was sought many years ago work could have been done on the mother/child relationship which may have prevented the need for [K's] permanent accommodation. In any event work could have been carried out on attachment and behavioural issues and therapeutic intervention could have assisted [K's] development which suffered by this not happening…This is an assessment that the LA could have commissioned itself, if CAMHS would not agree to undertake it'. Mr Hall rejects any suggestion in the LA evidence that they recognise, with the benefit of hindsight, they may have acted differently. He submits the need for assessment was obvious from the time K was placed with foster carers in 2011. K's attachment difficulties with her mother needed urgent assessment, and then effective support put in place. That was repeatedly recommended, but not done.

52. Turning to his second heading, Mr Hall recognises that it is inter-linked with the failure to assess. In the record of the LAC review meeting on 5 September 2013 the LA candidly recognise they have '..not been able to safeguard [K's] emotional wellbeing given the breakdown of placements and fact that permanency has not been achieved for her.'

53. There have been 7 placement breakdowns, often at short notice and in upsetting and distressing circumstances for K. The records have many references to the extent the placement breakdowns have caused K emotional harm. In their referral for a psychological report in 2014, some three years after K has been in the LA's care, the reason for a different picture at school emerged. As the record of the meeting notes '…[K] has learnt to cope by withdrawing emotionally and functioning independently whilst maintaining control over her environment. This works well at school and when she first enters into a new placement. However, this coping strategy breaks down at home as she starts to settle and get close to the foster carer…' To illustrate this Mr Hall relies on the report to the LA review in January 2014 concerning K's third foster placement with Mr and Mrs T. The social work report for the review notes that K was happy and beginning to form an attachment to the foster carer, but as it was an agency placement the LA, as a matter of policy, were unable to sanction this placement as a long term placement. The report notes that this lack of certainty in the placement was impacting on K's emotional well-being. This view was endorsed in a letter dated 15 May 2014 from CAMHS and it went further in stating 'It must be borne in mind that multiple moves (such as have occurred for [K]) can only increase her sense of loss and reduce her hope that there is someone and somewhere she can feel safe and secure. It is not surprising she displays very challenging behaviours, she must feel enraged and despairing.'

54. Between December 2011 and February 2016 Mr Hall submits the LA have not ensured K has received appropriate therapy; had they done so the Guardian considers K's family life is likely to have been very different. At the LAC review on 4 February 2015 it was recorded '…It is imperative that therapeutic support is offered to [K] to enable her to become more stabilised to reduce the risk of further placement breakdowns'.

55. Under the third heading, the failure of the LA to issue court proceedings, Mr Hall also recognises is linked to the first two. He submits on the LA's own records K suffered from instability from spending so long in foster care, with only her mother having parental responsibility and no clear direction. K's current social worker Ms A sets out in her statement in support of these proceedings 'It is envisaged that a care order will also support [K] in terms of feelings of security and stability, as she has historically struggled to understand the decisions made by her mother, and therefore she will know that there will be a level of oversight to her care planning'.

56. Mr Hall submits if proceedings had been issued there is every likelihood they would have made a difference. The repeated failures by the LA to follow through their own decisions would have been subject to effective scrutiny, by the guardian, her legal representative and the court. The issue was repeatedly flagged up by the LA from March 2012, but not followed through. Had K been represented in court proceedings, there would have been proper oversight, the plans would not have been allowed to drift and assessments would have been undertaken when required. Whilst K's mother did not raise any complaints at the time about how K was cared for by the LA, she had not been able to provide consistent and predictable care for K before 2011, K's mother had her own mental health difficulties, she was inconsistent in her attendance at LAC reviews and her contact was gradually reduced to the extent she was only seeing K once during each school holiday. Mr Hall submits it is difficult to see how she could be regarded as someone who was proactively exercising her parental responsibility in relation to K.

57. As regards any suggestion by the LA that s 20 is not time limited and/or is not always a prelude to care proceedings Mr Hall submits the LA's own records point in the other direction. In particular,

(i) On 12 September 2012 the LAC review records that a legal planning meeting needs to be pursued with regard to care proceedings noting 'care proceedings to be pursued in order to give this child some stability' and long-term placement'.

(ii) On 16 May 2013 the LAC review records that the LA are to review current legal status within next 3 working weeks and advise IRO of outcome.

(iii)  5 months later on 5th September 2013 the records note the LA does not hold PR for K and 'the LA needs to give further consideration to this given [K's] young age and potential difficulties in the future if they do not have PR…the LA have not been able to safeguard [K's] emotional wellbeing given the breakdown of the placements and the fact that permanency has not been achieved for her'.

(iv) 14 months later on 20 November 2014 the LAC review notes 'IRO has asked that LA give consideration as to how her legal status could be more secured…Sally to raise with managers [K's] legal status and advise IRO of outcome'.

(v) 4 months later on 4 February 2015 the LAC review records similar concerns being expressed by the IRO as to K's legal status.

58. The LA issued care proceedings on 16 November 2015. Mr Hall submits the fact that care proceedings were finally issued conclusively responds to any suggestion by the LA as to their necessity. Otherwise, he asks rhetorically, why did they issue them? He submits that the failure to issue the proceedings soon after K was placed in care has denied K the opportunity to be properly assessed and access appropriate support at a much earlier stage as, he submits, it would be inconceivable that a court would have permitted care plans to be made without a proper assessment of K's needs. As a result K has lost the opportunity to have the input of a Guardian, a legal representative and planning for her care to be properly and robustly based on sound assessment.

59. Mr Hall submits the detrimental effect on K of the LA's failure to secure emotional, practical and legal stability for her is clear from the LA records and the Guardian's evidence.

60. Ms King on behalf of the LA does not dispute the LA records. She submits there is no issue about the validity of the consent given by K's mother, either at the start or during K's placement with foster carers. She submits neither statute nor any guidance stipulate s 20 is a short term measure only. In this case, unlike the reported cases, there was not any dispute about the LA's care plan for K. So, she submits, the starting point is very different and distinguishes this case on the facts.

61. Ms King submits the documents show there was considerable involvement by K's mother, such as the number of written consents provided by her for the foster carers to sign forms for her, the letter she wrote to K about why she was placed with foster carers. The submission on behalf of K that they should have issued care proceedings earlier does not amount to a breach of her article 6 and 8 rights.

62. She submits there is no evidence of a failure to plan for permanency in that the LA investigated the options with the family first, when this was not possible their plan for K was to be placed with long term foster carers. They acknowledge the high number of placements, but state being within care proceedings was unlikely to have made any difference to the efforts made by the LA to secure a permanent placement. Ms Ransley, the service manager for the area at the relevant time, states 'Providing children with stability within foster care is often a challenge (this is irrespective of their legal status) and this sadly was the theme for [K]. [K] experienced numerous foster care breakdowns within both the in house provision and the commissioned private foster care sector, which is regrettable but not unusual within a care system which operates a 30 per cent disruption rate. Finding the right match where it clicks, can often evade even the most meticulous professional.' Ms King submits no link has been established that the situation would have been any different if care proceedings had been issued earlier than they were.

63. Ms King refutes the submission that the LA failed to assess and/or provide therapeutic support for K. She submits the papers demonstrate the appropriate referrals were made to CAMHS but CAMHS concluded they should provide a service to the carers, not directly with K until she was settled in her placement. Whilst Ms Ransley in her statement acknowledges the LA's frustration with the position taken by CAMHS that is the service provided to meet the mental health needs for children by the NHS, which is what the LA commissions for children in their care. Ms King relies on the fact that the Guardian has not sought an independent assessment within these proceedings.

64. Ms King submits the submission on behalf of K that as a result of the LA breaches K's welfare has been harmed, is speculative. Given the harm K suffered prior to coming into care and the extent to which that has been the root cause of her placement breakdowns and the uncertainty over CAMHS support due to placement uncertainty, such harm as might be found proved cannot be attributed directly to the failings of the LA to the extent of a breach of K's article 6 and 8 rights.

65. Finally, Ms King submits K's mother has exercised her PR in a way regarding K's accommodation that was and is consistent with her welfare. There were no alternative carers for her and K had an IRO. Ms King states in her written skeleton argument 'Whilst the LA accept that it is better for [K] that a care order is made so that her position as a child in care is formalised by way of an order which signals permanency and confers PR onto the LA, none of those advantages mean the LA has acted unlawfully and/or breached [K's] Article 6 rights. Her mother exercised her PR in a free and informed manner. Her mother decided that [K] was best looked after by the LA. She was entitled to take that decision and the LA was entitled to act on it'.

Discussion and decision
66. There is some force in the submission made by Ms King that the facts in this case are different than those in many of the reported cases concerning the misuse of s20. A common feature of those cases was an issue over the parent's consent to their child being accommodated and the lack of agreement with the care plan; neither of those matters featured in this case.

67. Ms King builds on that position as, whilst acknowledging what the President said in Re N (ibid) about s 20 having a role as a short term measure, she seeks to rely on the fact that there is nothing specific in the section, or guidance, to found that view.

68. The difficulty with Ms King's position is that the documents produced by the LA paint a picture of

(i) A mother who has to a large extent abdicated her parental responsibility to the LA. Whilst she has some involvement in the decision making after K is placed with foster carers, the fact that she doesn't seek to challenge the LA inactions in the context of what is taking place demonstrates her inability to exercise her parental responsibility proactively for the benefit of K.

(ii) The LA on the documents decided repeatedly there should be a further/updated core assessment, mental health assessment/therapeutic support and legal advice about K's status; but the same documents demonstrate repeated failures to follow through these decisions.

(iii)  Repeated and worsening placement breakdowns, which were deeply damaging to K's emotional well-being.

69. Whilst there is no time limit on providing s 20 accommodation in the statute, each case has to be considered on its own facts, with active consideration being given as to whether proceedings should be issued. In this case care proceedings would have helped significantly to provide the stability and security that K so clearly needed. K would have had the benefit of a guardian and legal representative to give her an effective voice regarding the LA failures and enabled the LA to share PR with M. As the LA accepted in the middle of 2015 K had been 'passed around services for the last 18 months with no real support or assessment in place'. This is hardly a ringing endorsement by the LA of their own care planning for K.
     
70. A common thread in the records is the harm being caused to K by the lack of security and stability any of her placements (other than the current one) were able to offer her. The evidence demonstrates K was acutely aware that her mother could remove her at any time.

71. I am satisfied that the LA have acted unlawfully, in my judgment their actions have been incompatible with K's article 8 and 6 rights. I have reached that conclusion for the following reasons: 

(1) The failure by the LA over a period of over three years to conduct or update the core assessment done in April 2011 meant the LA had not properly assessed K's needs during the period she was placed with them from December 2011 to November 2015 to provide a secure foundation for care planning for her, in order to protect her article 8 right to family life. The care plan for long term fostering lacked any detailed foundation that such an assessment would have given it.

(2) The LA's failure to secure appropriate mental health assessments and/or therapeutic support meant her continued placement breakdowns over that period were unsupported. Reliance on inconsistent CAMHS referrals together with the repeated misunderstanding of what CAMHS support was being provided permeated the decision making and the delay in seeking an assessment until 2015, when a referral was made to GOSH. This all contributed to the increased risk of repeated placement breakdown.

(3) The suggestion that the LA were not able to commission independent private providers on an ad hoc basis does not stand up to scrutiny. In her statement Ms Ransley states 'Commissioning independent, private providers on an ad hoc basis does not happen. Local Authorities only generally fund these types of arrangements within care proceedings'. Yet this is what the LA did when they made a referral to GOSH in July 2015, prior to issuing proceedings. No explanation is given as to why this could not have been done earlier, other than an acknowledgement in Ms Ransley's statement that 'this should have happened sooner with hindsight.'

(4) The repeated failure by the LA to act on its own decisions for over three years to seek legal advice to secure K's legal position, including consideration of the issue of proceedings and the advantages that would bring for K, together with the LA having PR through a care order. On their own admission in the evidence the LA filed in 2015 in support of the care proceedings, a care order would provide the stability that K clearly required. The delay of over three years in doing so is not justified in any way. That delay meant K was denied access to an independent guardian and her own legal representation, in circumstances where the LA were not implementing their own decisions about her and the only person with PR was not exercising it in a proactive way. K's article 6 and 8 rights were compromised by this significant delay.

(5) Whilst K's mother was entitled to exercise her PR for K in the way she did, that does not absolve the LA from actively considering whether it should secure its legal position in relation to the child concerned. Here K's mother was, at most, after November 2011 reactive rather than proactive in exercising her PR. She responded to requests from the LA and attended some, but not all, meetings. Probably due to her own vulnerabilities she was not in a position to challenge the actions, or inaction, by the LA in relation to K.

(6) Reliance by the LA on the unlimited term of s 20 simply cannot be justified in a factual vacuum. The circumstances in this case demanded for K's article 8 and 6 rights to be protected, for the LA to secure their legal position regarding K. The LA's own records repeatedly make decisions of the need to get such advice, those decisions were repeatedly not acted on and when they were care proceedings were issued, nearly three and a half years after they should have been. It is unattractive for the LA to now submit that there was no obligation on them to issue such proceedings. The President's words in Re N (ibid) could not be clearer.

(7) I am satisfied that if proceedings had been issued earlier the assessments that the LA failed to do are more likely to have been ordered by the court. Reliance by the LA on the fact that within these proceedings the Guardian has not sought any further assessment is a realistic recognition by her of the current position, that with a settled placement and a report from GOSH further assessment is not justified. That does not absolve the LA from responsibility of its failure to issue proceedings earlier, as it should have done, over three years ago.

(8) I agree that in considering this application the court should guard against making decisions with the benefit of hindsight. In her statement Ms Ransley observes 'With the benefit of hindsight criticism can be formulated. Is the service and support provided to [K] optimal, [K] has been given what all children in care are, but for [K] like 30 percent of young people, her experience has been sub-optimal due to issues inherent in the care system. These issues are experienced by children subject to an order and those who are not.' What this does not acknowledge are the facts of this case; the unacceptable delay in issuing proceedings, the consequent uncertainty which increased the risk of placement breakdown and the failure to properly assess and support K.

72. In her statement the Guardian, Ms Clark, states her professional opinion that K was 'left in a situation where she was receiving inconsistent and unpredictable care and where her emotional needs were not being met for a period of years before she was accommodated  on a full time basis in December 2011. It appears likely that this will have increased the risks of [K's] difficulties becoming more entrenched and a high risk of her developing emotional difficulties.' She continues 'It is my professional opinion that all of these factors will have had a negative impact on [K's] emotional health and development and will have contributed to the development of the challenging behaviours displayed by [K]. I agree. The delays by the LA in taking the necessary steps that their own decisions provided for, to safeguard K's welfare, security and stability have had a negative impact on her emotional health and development. The alarmingly high level of placement breakdown experienced by K, including her behaviour that caused this, is one tangible example of the impact on her of the instability and lack of security she experienced. Effective assessments and support, coupled with the structure of legal proceedings is likely to have significantly reduced that happening.

73. The recent Cafcass guidance about the use of s 20 states at paragraph 17 'As soon as the care plan changes away from a return home to a need for a longer period in care, the child should be subject to the same permanency planning considerations as all other children in care. This could lead to a negotiated way forward with a parent, for example in respect of an older child is a stable long term foster placement. Alternatively, a legal planning meeting to consider starting care proceedings may be appropriate for another child. In any event, this decision should be taken pro-actively by the local authority in consultation with parents and the child, and should be the subject of rigorous review by the IRO with a robust care planning process, whatever the child's age or situation. The importance of the IRO as a check and balance for the looked after child cannot be overstated, especially as the IRO role (set out in the IRO handbook) is 'to consider the legal status of the child, for example where the child is looked after under s20'. Parents must be supported to actively consider their parental responsibility (PR). S20 placement must not be allowed to drift into becoming long term arrangements by default.' It is clear that in this case K did not have a pro-active robust care planning process. The repeated failure to follow through decisions made at previous meetings with ineffective IRO oversight meant that K's welfare needs were not given the priority they obviously required.

74. The LA acted in  breach of K's article 6 and 8 rights in that they

(1) Failed to properly assess K from March 2012 until July 2015.

(2) Failed to implement a care plan that met K's needs from March 2012 until July 2015, including ensuring there were sufficient procedures in place to give effect to the recommendations of the LAC Reviews. (Art 8)

(3) As a result of (1) and (2) above the LA failed to provide K with a proper opportunity to secure a suitable long term placement and a settled and secure home life. (Art 8)

(4) Failed to issue proceedings in a timely manner from March 2012 to November 2015 as a consequence the LA deprived K from the protection afforded to children under the Children Act 1989 and access to the court and the procedural protection of a Guardian. (Arts 6 and 8)

Damages
75. An award for damages may be made under s 3 HRA 1998, this provides 'No award of damages is to be made unless, taking account of all the circumstances of the case, including (a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court) and (b) the consequences of any decision (of that or any other court) in respect of that act, the court is satisfied that the award is necessary to afford 'just satisfaction' to the person in whose favour the order in made'.

76. I am satisfied that an award of damages is necessary in this case. In my judgment K's rights under articles 8 and 6 have been seriously interfered with by the actions of this LA. The length of time during which the LA failed to secure effective assessment, therapy and support resulted in K's right to family life being seriously interfered with over an extended period of time. The additional failure to implement its own decisions regarding legal proceedings interfered with her right to a fair hearing as neither K, or anyone on her behalf was effectively managing the repeated failure of the LA to implement its own decisions.

77. Although I recognise I have not had any representations from the IRO, the records I have seen do not indicate that the IRO adequately safeguarded K's position. Repetition of concerns without effective action was insufficient in the circumstances of this case. An ineffective safeguard is no safeguard at all. The role of the IRO and the IRO service is comprehensively dealt with by Peter Jackson J in A and S v Lancs CC [2012] EWHC 1689 (Fam) paras 168 – 198. This should be required reading for all IROs.

78. Her Honour Judge Lazarus sets out a helpful summary of the level of awards previously made by courts in Medway council v M and T [2015] EWFC B 164. The parties in that case agreed the following were relevant factors to be taken into account when considering the level of any award: the length of the proceedings; the length of the breach; the severity of the breach; the distress caused; insufficient involvement of the parent or child in the decision making process and other procedural failures. 

79. Other than considering the level of previous awards and the facts of the case in question, there is no guidance as to the assessment of the level of awards. This issue has rightly been described as being 'highly fact sensitive' (see Re H [2014] EWFC 38 para 87).

80. The relevant factors in this case regarding the level of damages can be summarised as follows:

(1) The length of time of the LA's actions that amounted to breach of K's article 6 and 8 rights. Reliance by the LA on the fact that M consented to the placement whilst a factor does not absolve them of the responsibility that comes with a child being placed in their care pursuant to s 20. That responsibility includes having effective procedures in place to implement decisions made, which was simply not done here. As the LA accepted in the referral to GOSH in June 2015 K has been 'passed around services for the last 18 months with no real support or assessment in place. The [LA] feel this in unacceptable for K…' Whilst of course recognising the enormous pressure on resources the reality is from March 2012 the LA were simply not properly or effectively implementing their own decisions about K's needs, or the need to consider and issue legal proceedings.

(2) The consequences of the LA's breaches for K were that her needs for assessment, therapy and support remained unmet for over 3 years. As a consequence the LA failed to provide K with an opportunity to secure a long term placement and achieve the settled and secure home life she required. Whilst of course recognising the inherent risk of breakdown of such placements, it is unattractive for the LA to rely on this when their actions failed to provide the necessary structures for K to minimise the risk of placement breakdown. The evidence in the papers of the consequences of each of the seven placement breakdowns was K experienced significant emotional harm and distress on each occasion.

(3) Whilst I acknowledge there is no suggestion of inappropriate pressure by the LA on the M or bad faith by the LA, the over reliance by them on the consent to the placement by M failed to properly recognise the obligations on the LA that come with such a placement. For whatever reason M was not proactively exercising her PR, to ensure that K's needs were being met by her placement with the LA. Her effective scrutiny of the LA's actions was minimal. As a consequence K was left without an effective voice and the statutory protection in the Children Act 1989 was not made available to her. The LA should have issued care proceedings in March 2012, not November 2015.

(4) Whilst the length of time in this case is longer than in the Medway case it can be distinguished from that case in that the placement of K in the care of the LA was not unlawful from the start as M consented and throughout the relevant period M fully supported the LA's care plan. The contact between M and K was agreed and took place in accordance with the plan.

81. Having considered the facts of this case I consider the award for damages for K should be £17,500.

Costs
82. Mr Hall seeks an order for the LA to pay the costs of the proceedings. He submits the HRA claim has succeeded, the court should be mindful of the impact of the statutory charge and in the circumstances of the case the court should make an order for the LA to pay the cost of the proceedings.

83. Ms King resists this application. She submits the court should not depart from the general position in family cases that costs are not usually awarded in family proceedings (see Re S (A Child) [2015] UKSC 20 paras 15 and 29). She submits the LA have not taken an unreasonable stance. In any event, the LA should not be responsible for the cost of the proceedings, merely as a device to avoid the full impact of the statutory charge. She submits there are discrete costs concerning the HRA application.

84. I recognise the financial pressures on the LA and that it is unusual for the court to make a costs order in care proceedings. Against that I have determined that the HRA claim succeeds, I rejected the submissions of the LA and made an award of damages. In the circumstances of this case, where the breaches continued for such a long period of time, I have reached the conclusion the LA should pay K's costs of the HRA application only, but which will include the full costs of the hearing on 29 March 2016, as the only reason that hearing could not proceed was due to the late disclosure by the LA on that day of relevant documents. I will make no order for costs as between M and the LA.