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Re X, Y and Z (Damages - Inordinate Delay in Issuing Proceedings) [2016] EWFC B44

Application for declarations and damages pursuant to the Human Rights Act in respect of two children who were subject to a (purported) s.20 agreement to be accommodated by a local authority for more than two years after which an interim care order was granted.

Case No: SD15C00558

IN THE BRIGHTON FAMILY COURT

Date: 23/02/2016


Before :

HIS HONOUR JUDGE FARQUHAR

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Between :

X,Y and Z
 Applicants
and
WEST SUSSEX COUNTY COUNCIL Respondent
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Gemma Taylor (Instructed by McMillan Williams Solicitors Limited) for the Children X and Y
Susan Healy
(Instructed by Edward Hayes LLP) for the Mother, Z
Robert Cameron
for the Local Authority

Hearing dates: 17th December 2015
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JUDGMENT
HHJ Farquhar:
1. This is an application for declarations and damages pursuant to the Human Rights Act following the two children X and Y being subject to a (purported) s.20 agreement to be accommodated by West Sussex County Council for a period from 19th January 2013 until 15th July 2015 when an interim care order was granted. The application is brought by the mother, Z, and by the Guardian on behalf of the children. The Local Authority state that there has been no breach of their Human Rights and consequently no declarations should be made or damages awarded. The father has played no part in the care proceedings or the application for declarations and damages.

2. The facts of the case are not in dispute and as such I have heard no evidence. The care proceedings themselves were finalised on 17th December 2015 when care orders were made in relation to both children with care plans of long term fostering in separate placements. It was only at the very tail end of those proceedings that the issue of declarations and damages was raised and the applications are actually dated 14th December 2015 on behalf of the children and 16th December 2015 on behalf of the mother although directions were made prior to that in order to ensure that the appropriate evidence was before the court in anticipation of the applications being filed. This relates to disclosure of all of the Children's Services records in order to understand what had occurred and the filing of statements by the Principal Manager of Children's Safeguarding and the Service Manager for Children Looked After both employed by the Local Authority.

3. I have heard oral submissions by counsel for the three parties and have read all of the documents prepared by counsel. In particular I must praise the comprehensive skeleton argument produced by Mr Cameron on behalf of the Local Authority as well as the detailed chronology prepared by Ms Taylor on behalf of the Guardian, both of which I have found particularly helpful.


Factual Background

4. The children are a brother and sister, the boy (X) now being aged 12 and the girl (Y) aged 11. They were subject to care proceedings from 2006-2008 (it being noted that the Guardian in the original proceedings criticised the Local Authority (Newham) for delay and leaving the children in s.20 accommodation for too long) and the outcome of those proceedings was that the children were placed with their paternal aunt in Jamaica under a residence order. The mother remained in the UK.

5. On 19th January 2013 the children arrived at Gatwick Airport with a friend of the paternal aunt with whom they had been placed. The aunt had written a note stating that the children are to be sent home to their mother (in fact it was their foster carer in the previous proceedings, W) and that she could not care for them. A police protection order was granted on 19.1.13 which expired on 22.1.13.

6. There was a telephone call between the paternal aunt and a social worker on 21st January 2013 in which it is said that the aunt stated that she could not manage the children, she may die soon, would agree to accommodation and was clear that she wanted the children to be cared by their previous foster carer, W. This is the conversation which the Local Authority states provided a s.20 agreement for the children to be accommodated. The children were placed in foster care, and then moved to a second placement on 2nd February 2013.

7. The mother was contacted by mail on 6th February 2013 and replied two days later asking to see the children. There was a LAC review on 13th February 2013 and the report prepared for that review included the following:

"They said that they did not really remember Z. When Y was out of the room, X said that he would like to go back to his birth mother but that he hasn't spoken to her for a long time'… 'W has expressed a wish to have the children back in her care and is considering applying for an SGO. X has been unclear about whether he would like to live with her, and in fact revealed that he remembers very little of her. This is to be explored further with a view to at least starting some phone contact between them first. Z has now contacted us to say that she is very keen to see the children. We are mindful of the fact that we do not have a care order and their mother still has PR, but also that Newham stopped all contact between them before they moved to Jamaica as they were not positive. A legal meeting is being arranged to discuss this further.'

My emphasis is added and I set it out fully to set out what the parties positions were at the outset of all of this.

8. I do not intend to set out the rest of the history in detail but the highlights are:

i) The mother, Z, provided a purported oral s.20 agreement in June 2013

ii) There was a 'Meeting Before Proceedings' on 24th June 2013 and from that date onwards the mother was legally represented.

iii) The s.20 agreement by the mother was put in writing in November 2013

iv) The children were placed with W, the former foster mother on 22nd July 2013

v) The first contact between the children and their mother occurred on 18th February 2014

vi) A report was obtained from a psychologist in April 2015 – this report related to the mother and the children but was predominantly in relation to the mother.

vii) Allegations made against X which resulted in him being removed from the care of W and placed in an emergency placement

viii) X moved to final (and fifth) placement in June 2015

ix) Care proceedings issued on 23rd June 2015

x) ICO granted on 15th July 2015

9. Care proceedings concluded on 17th December 2015 with Care Orders made in relation to both children. The Care Plans are for separate long term foster placement for each child. At present there is no contact between the children and no contact between either of the children and their mother. X is in a placement that does not match his cultural identity.


The Law a) Human Rights Act
10. There have been a number of recent authorities dealing with issues of damages and declarations for breaches of Article 6 & 8 rights in relation s.20 agreements to which I have been referred. As is well known Article 6 relates to the right to a fair trial and the allegation is that by the extraordinary length of the s.20 agreement then the mother and children were denied that right. Article 8 relates to the right to respect for private and family life and the interference with that is obvious in a case such as this as there are three members of the family and none of them is having contact with the other two. The remedy for a breach of an individual's Convention Rights is set out in ss.7 & 8 Human Rights Act 1998:

11. S.7 states - (1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 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.

12. S.6 states - Acts of public authorities. (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right

13. Remedies are covered by s8 Judicial remedies (1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief  or remedy, or make such order, within its powers as it considers just and appropriate. (2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings. (3) No award of damages is to be made unless, taking account of all of 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 it is made. (4) In determining- (a) whether to award damages or (b) the amount of an award, the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention

14. Article 41 ECHR 1950 defines "just satisfaction" as; If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting party concerned allows only partial reparation to be made, the court shall, if necessary, afford just satisfaction to the injured party.

15. In order to be able to bring such a claim the mother and children will have to prove (and it is important to note that the burden is upon them) the following :

i) The Local Authority has acted in a way which is incompatible with a Convention Right;

ii) The Applicant is a 'victim' of that unlawful act;

iii) In order to succeed in a claim for damages, that it is necessary to make such an award to afford just satisfaction.


16. The Law b) S.20 Agreements

17. The ability of a Local Authority to accommodate a child is provided for within s.20 Children Act 1989 the relevant provisions of which are as follows :

S.20 (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 …(c) the person who has been caring for him being prevented from providing him with suitable accommodation or care.

S.20 (7)
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.

S.20 (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.

18. There is nothing within the section setting out the precise requirements of any agreement by a person with parental responsibility for a child to be accommodated. I have not been referred to any regulations dealing with this issue. There are many authorities to which I have been referred to which I shall make reference below.


The Declarations Sought by the Applicants

19. The declarations sought by the Applicants in this case are set out in a document prepared on behalf of the children dated 14th December 2015 and I note that the declarations sought by the mother in her document dated 16th December 2015 are in identical terms.

20. The declarations that are sought are as follows

21. That West Sussex County Council acted in violation of the article 6 and article 8 rights of X and Y as follows;

i. At the time that X and Y came into the jurisdiction on 19.1.13 and until care proceedings were issued, no adult was in a position to exercise parental responsibility for them.

ii. There was no lawful consent to their accommodation under s20 Children Act 1989 by the aunt. And any consent that she did  give orally was not valid for the years that followed.

iii. At the expiration of the Police Protection Order on 21.1.13, West Sussex County Council purported to act  as though they had parental responsibility for the children by arranging foster placements, schools, health appointments,   limiting their contact with their mother and forming a permanence plan for them, all without recourse to the court and any judicial scrutiny. This was a misuse of their statutory powers.

iv. West Sussex County Council failed to issue care proceedings for two and a half years. – that is followed by a list of consequences which are more relevant to consider in remedy.

v. The Independent Reviewing Officer failed to challenge the conduct of West Sussex and did not promote care proceedings

Was the S.20 Agreement Valid?
22. A good deal of the written and oral submissions centred on the issue as to whether there was ever a valid s.20 agreement. That is not surprising as if the original placement was not lawful then it would have to follow that the subsequent actions of West Sussex would also be unlawful. It is also reflected in the cases that have been reported to which I have been referred which have all involved cases where it has been held that there was no valid s.20 agreement:

i) Coventry CC v C [2012] EWHC 2190 – no valid s.20 as mother probably not capacitous, and in any event the consent that was provided was not fully informed.

ii) Medway v M [2015] EWFC B164 – failure to obtain properly informed capacitous consent.

iii) Brent v MS [2015] EWFC B150 – unlawful removal of child from the mother.

iv) Williams v LB Hackney [2015] EWHC 2629 ¬ a civil claim in which all other heads of claim were unsuccessful but the Human Rights Act claim succeeded – s.20 consent not obtained

v) R(G) v Nottingham CC [2008] EWHC 152 Munby J (as he then was) held that the removal of the child was unlawful.

vi) Northamptonshire CC v AS.. [2015] EWHC 199 Keehan J stated (although as matters were settled it does not appear that a formal finding was made) that "I question how effective that consent (ie s.20) was when it was sought without the benefit of an interpreter."

23. The Local Authority initially relies upon the oral agreement of the paternal aunt provided on 21st January 2013. There were two further telephone calls with the aunt and now that the minutes of those calls have been disclosed it can be seen that there does not appear to be any further mention of agreement for the children to be accommodated in those calls on 15th February and 28th March 2013.

24. It was not until the meeting before proceedings on 24th June 2013 when the mother was represented by solicitors that it is said that she provided s.20 agreement for the placement of the children in accommodation. There is reference made to the written agreement but in fact it became clear at the hearing that the actual agreement was not signed until 20th November 2013. However, it is noted that in a meeting between the mother and the social worker on 10th May 2013 the mother had stated her wish to care for the children. Indeed the telephone note of a conversation with the mother on 19th February 2013 (G319a) records that the mother stated that

"she wanted to have the children back with her, and she asked what she had to do next. It was clear that she didn't fully understand what her rights were…she said it would be good for the children to live with (their previous foster carer)..I was left feeling that the mother was not clear about her rights with the children…she swapped between wanting them back now , when they were 16 and being happy to just see them, lots"

25. It is argued that the agreement provided by the aunt is not in writing and was provided by an individual who had simply abandoned these children in a country where another individual held parental responsibility (the mother) and as a consequence the Local Authority were not entitled to rely upon this agreement. There have been issues over the mother's mental health although there is nothing to indicate that she lacked capacity and it has not been argued that this is a factor in this case.

26. As set out above there are a number of cases in which it has been found that the s.20 agreement has not been valid or simply never obtained. In Coventry CC v C [2012] EWHC 2190 Hedley J set out at paragraph 46 what a social worker should do in relation to a parent who may lack capacity, stating that they should consider the questions raised by s.3 Mental Capacity Act 2005 to assist in deciding whether they did have capacity. In particular the following guidance is provided:

i) Every parent has the right, if capacitous, to consent to s.20 accommodation.

ii) Every social worker obtaining such consent is under a personal duty to be satisfied that the person giving the consent does not lack the capacity to do so.

iii) The social worker must actively address the issue of capacity and must consider the questions raised by s.3 mental Capacity Act 2005.

iv) If the social worker has doubts about capacity no further attempt should be made to obtain consent……

27. Did the paternal aunt lack capacity? The only real information that exists in relation to this issue is that which was contained within the letter that accompanied the children and the notes of the phone calls between the social worker and the aunt in Jamaica. The letter stated that she was "sick and not feeling well and I am (not?) able to take care of them so I am sending them back home to their mother (in fact she meant W the previous foster carer)". The notes of the phone call on 21st January 2013 includes comments from the aunt that " she cannot manage the children ..her own health was poor and she suffers from ongoing headaches, anxiety and being unable to sleep. She said Doctor has refused to give her any more sleeping pills and told her that she is addicted to them..she might die any time soon and therefore wanted the children to be with someone who would care for them..she gave agreement for the children to be accommodated but she is clear that she wants the children to go to W"

28. Is this sufficient to comply with the guidance provided by Hedley J? There is no note of any discussion about capacity on 21st January 2013. The children had been returned under very unusual circumstances and it was known that the aunt was ill, although the nature of the illness was never referred to within the telephone note. However, it seems to me that this is not sufficient to put the social worker on notice of any mental health and this is not a case of removing a baby shortly after birth as was the case in the Coventry CC case. It would seem a counsel of perfection to place any more duties upon a social worker in a very difficult situation with two children who have effectively been dumped at an airport in this country. Unless there was a specific matter that made it likely that the aunt may not have had capacity then I am satisfied that the s.20 agreement provided at that time was valid.

29. Is it possible for this agreement to lapse as was suggested by Ms Healey on behalf of the mother? Or indeed is the fact that it was never committed to writing fatal? There are no formalities required within s.20 itself. As The President set out in the recent case of Re N (Children (Adoption Jurisdiction) [2015] EWCA 1112 at para 166 that "there is, in law, no requirement for the agreement to be or evidenced by writing." He adds that any prudent Local Authority would ensure that it is evidenced in writing but as I am presently considering whether the agreement is valid in law then that cannot possibly be sufficient to hold that it does not have such validity. No authority was provided to justify the argument that the agreement, once provided, could lapse. It is clearly an argument that allowing the s.20 agreement to run for too long can be a breach of human rights but it is difficult to see how a valid agreement can be altered into a non valid agreement simply by the effluxion of time and as such I am satisfied that the s.20 agreement provided by the aunt was valid.

30. Was the s.20 agreement from the mother valid? It is agreed that the mother provided her oral agreement in June 2013 and this was committed to writing in November 2013. At all times from June 2013 onwards the mother was represented by a solicitor. There are clearly mental health issues in relation to the mother but at no time has it been stated or suggested that she lacked capacity. The mother's mental health status cannot be a reason for holding that the agreement was not valid.

31. The mother clearly frequently stated that she would wish to care for the children and certainly to see them :

i) 8.2.13 Letter from Z seeking to see the children.

ii) 1.3.13 Z asks for contact and to have the children back in her first meeting with a social worker

iii) 3.4.13 Z seeks fortnightly contact in a telephone call.

iv) 5.9.13 LAC review – stated that Z would like to be able to care for the children.

v) 14.1.14 Report for LAC review notes that Z would like to see the children and that she sometimes states she wants to care for the children and sometimes that she just wants to have contact with them.

vi) 8.4.14 Legal Planning Meeting Solicitor for Z stated that she had requested both children be returned to her care as soon as possible…if not returned to her care, would like increased contact.

vii) 26.11.14 LAC Review Z would like to be able to care for the children.

32.  All such statements by the mother are in direct opposition to the agreement that the children should be placed in Local Authority accommodation with very little contact to herself which was happening. Can this amount to a valid agreement in such circumstances? The Local Authority only rely upon the agreement of the mother from June 2013 onwards and at all times during this period she was legally represented.

33. Does the fact that the mother was making frequent requests to have contact with the children, or alternatively to look after them mean that the s.20 agreement is no longer valid? The test is simply that set out in s.20(8) Children Act 1989 , namely that she would be able to remove them at any time. The advice that the mother was being given is clearly not before the Court but I must work on the basis that as the mother was represented for the whole period that she entered into the s.20 agreement then she would have been aware of the ability to remove the children at any time. It must follow that, even though the mother would have wished for different things to occur at times the overall consent was still forthcoming and as a result I hold that there was at all times a valid s.20 agreement.


Can the actions of the Local Authority still amount to a breach?
 
34. It is clear that it is not essential for there to be a finding of an invalid s.20 agreement in order to succeed in a claim for a breach of Article 6 or 8 as sought by the applicants. That is clarified in the Northamptonshire case above for Keehan J set out at paragraph 32 all of the relevant breaches which included :

i) Failure to take any protective action for a 15 day period

ii) Failure to commence proceedings for an 11 month period during which time the child lacked any independent representation and had no access to a remedy and no person was exercising parental responsibility for him

iii) Local Authority were responsible for substantial delays.

35. It is essential to consider the other declarations sought and potential breaches of the Convention Rights of the Applicants.

36. No adult to exercise Parental Responsibility/West Sussex purported to exercise parental responsibility. There was a period of almost two and a half years whilst the children were subject to the s.20 agreements. It is submitted by the applicants that during all of this period that the Local Authority was purporting to exercise parental responsibility for these children. The number of decisions that the Local Authority must have made on their behalf during this period would have been vast. The children had several placements, they attended different schools, no doubt their health care needs were attended to and it is possible (although there was simply no evidence on the point) that decisions in relation to religion were taken as well.

37. It is clear that the Local Authority were aware that they did not hold parental responsibility for the children. This is noted at the LAC Review on 13th February 2013 where the notes include the words : "the Local Authority does not have a Care Order and as such will work in partnership with the child's parents who have parental responsibility". On the same page (G29) reference is made to X having had a Health assessment, is attending school and is in a non culturally appropriate placement. It appears that none of these decisions were made in consultation with either the parents or the aunt in Jamaica who had parental responsibility. In such circumstances the Local Authority simply did not have the authority to make such decisions and the same is true for all such decisions for the following two and a half years.

38. It is stated within the skeleton argument of the Local Authority that "the involvement of the mother with her solicitors in the process shows that parental responsibility was still being exercised by the mother". This is incorrect as there is not one piece of evidence that I have been shown to indicate that any of the sort of decisions that should be made by an individual with parental responsibility was actually made in consultation with the mother and certainly not with her explicit agreement.

39. Further, there can be no doubt that the mother was frequently asking for contact with the children and the Local Authority did not agree to the same happening save for on two or three occasions. What is the purported basis upon which they could refuse such contact? It is stated by the Service Manager children Looked After at para 4(ii) of his statement that at a meeting on 1st March 2013 "Z was clear that she wanted contact with the children, however she was made aware that this had been a very confusing time for them and contact would need to be addressed slowly over time". The statement does not go on to state as to how the Local Authority was able to make such decisions legally. The allegation is as such clearly proved and deals with breaches (i) and (iii).

40. Is this sufficient to prove that the Local Authority acted unlawfully? This is the clearest possible breach of Article 8 rights. It must be the right of anyone with parental responsibility to be able to exercise that right and correspondingly, if the Local Authority acts in such a way as to be exercising parental responsibility in every conceivable area of a child's life when they do not have the authority so to do then this must also be a breach of Article 8. As such the Applicants have proved a breach of their Convention Rights.

41. West Sussex County Council failed to issue care proceedings for two and a half years.  This in itself is not denied, as it obviously could not be. The issue is whether it amounts to a breach of either Article 6 or 8 rights as alleged. There is no set time limit by which care proceedings must be issued once a Local Authority takes the type of actions taken by West Sussex in this case and it is always a question of degree and the effect of the delay which must be considered.

42. In the recent case of Re N (Above)  The President made some trenchant comments on the use (misuse) of section 20:

i) "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 word advisedly and deliberately, a misuse by the Local Authority of its statutory powers." Para 157.The delay in that case was one of eight months.

ii) "As Keehan J pointed out …the accommodation of a child under a section 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" para 158

iii) "The misuse and abuse of section 20 in this context is not just a matter of bad practice. It is wrong; it 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  pro-active in putting an end to it" para 171.

43. The same issues were aired by Cobb J in Newcastle CC v WM [2015] EWFC 42  in which he criticised (at para 40) the concept of a 'letter before action' as being meaningless once 18 months passes between the date of the meeting and the issuing of proceedings. It is noteworthy that in this case there was a meeting before action in June 2013 ie one day shy of two years before the issue of proceedings.

44. He also stated at para 41 that "By the time of the accommodation of the children, there was more than enough evidence in my judgment on which the Local Authority could have established "reasonable grounds" to believe that the children were suffering or likely to suffer significant harm." He further noted that in mid October 2013 (some 9 months before proceedings were issued) that a social worker reported that "the children need decisions made about their future as quickly as possible"para 41.

45. Finally on this topic Cobb J stated :

i) "In my view, for a significant period of time, the children have been accommodated unlawfully." Para 46

ii) "There are considerable repercussions from this delay. The children have been in limbo…precious time in the lives of these children has been spent, I would say wasted while the Local Authority has failed to progress any meaningful form of care planning." Para 47

46. In the face of such statements of the law it is instructive to see how the Local Authority argues the case in this application. It was set out in evidential form by the Principal Manager, Children's Safeguarding and the Service Manager, Children Looked After.  These statements do not refer at all to the huge delay in this case in ever getting this matter before a Judge. There is mention of some 'Areas for Development' for the IRO in terms of what should be contained within Review Meetings minutes, insufficient timescales provided for certain decisions and insufficient detail as to how the mother should be informed of the children's progress. The statements seem to miss the point spectacularly.

47. These children became the responsibility of West Sussex in January 2013 yet it is a full two and a half years before any steps were taken to issue proceedings. In the position statement for this hearing on behalf of the Local Authority it is submitted (presumably in an effort to avoid the criticism set out by the president quoted at 42(i) above) that "for much of the relevant period, s.20 was not being used as a prelude to care proceedings , since the focus for much of the period was on securing a long term SGO placement for the children with W…much valuable work was done in an attempt to secure a permanent placement with W..". If anything, this is even worse as it suggests that they were exercising all of the parental responsibility without even thinking that proceedings were to be commenced any time in the foreseeable future. 

48. There can be no argument but that the following have all occurred as a result of the huge delay in issuing proceedings :

i) X and Y were without access to independent representation and had no access to any remedy;

ii) The Local Authority were not obliged to promote contact between X and Y with Z as the obligation created by s.34 Children Act 1989 was not operational;

iii) There was no assessment of the children until that completed by Dr Conn in April 2015

iv) No assessment was carried out of the Mother, Z.

49. If one follows the logic of Cobb J set out above there can be little argument that the Local Authority would have had sufficient evidence by the summer of 2013 at the latest to have 'reasonable grounds' to conclude that the children were at risk of significant harm. It is not for this judgment to set out precisely when proceedings should have been commenced but I am entirely satisfied that the failure to do so in anything like a timeous fashion is a serious breach  of the Convention Rights of the applicants. This relates to Article 6 and 8 rights for the children but purely the mother's article 8 rights as she would have had the power to force the Local Authority to commence proceedings by simply withdrawing her s.20 consent.

50. The effect of these breaches is significant. At best, there has been the loss of a chance for the children to be placed together, for there to be any contact between the children and the mother and for X to be in a culturally appropriate placement. There can be no certainty as to the outcome of any proceedings if they had been commenced substantially earlier but when one considers the possible outcomes there has been a significant loss of a chance. I am satisfied that the inordinate delay in this case was unlawful and an abuse of the s.20 agreements that had been obtained. As such the applicants succeed under this head.

51. The Independent Reviewing Officer failed to challenge the conduct of West Sussex and did not promote care proceedings. The functions of the IRO are set out within s.25 Children Act 1989 and they include monitoring the performance of the Local Authority of their functions in relation to the child's case. In the case of A and S v Lancashire CC [2012] EWHC 1689  at para 168 it was submitted (and Jackson J did not demur) that the task of the IRO was to "monitor, persuade, cajole, encourage and criticise fellow professionals in the interest of the child". Their roles are more fully set out within the "IRO Handbook" which provides the relevant statutory guidance. In the Lancashire Case it was found that the failures of the IRO amounted to a breach of the children's rights.

52. The actions of the IRO in this case are fully set out within the statement of  Children's Safeguarding Manager and which is referred to above, which concludes with a list of 'Strengths' and 'Areas for Development' and the latter included :

i) "the Review minutes do not consistently contain sufficient specific evidence of IRO challenge, especially on issues in relation to progress towards permanence"

ii) "the decision specific to the permanence plan was not specific enough and did not contain any target dates"

iii) "would have expected more explicit detail in relation to the permanence plan of long term fostering and the need to seek legal advice"

53. It does not seem to me that this adequately highlights the deficiencies of the IROs (there were two) in this case. There does not appear to be any note whatsoever of the IRO cajoling the Local Authority on timescales and this can be highlighted by two simple issues :

i) There is a bald statement in the second review held in May 2013 that an SGO assessment is about to commence in relation to the paternal aunt. This is repeated in the fourth review in January 2014 which records that "an SGO assessment will be undertaken at the appropriate time". It is noted at the fifth review in July 2014 that the paternal aunt still wished to have the children living with her under SGOs but the assessment is still not there some fourteen months after it was first raised. This is a simply appalling delay and does not seem to be criticised by the IRO – if there is not going to be criticism in such cases then one has to ask when would it ever occur?

ii)  The IRO was aware in May 2013 that the mother wanted contact to the children but no decisions were made on this crucial point at the time. In September 2013 it was noted that indirect contact had happened and the next stage would be to consider re-introducing direct contact yet by the fourth review it is simply noted that they were "working towards direct contact"! The first face to face contact did not take place until February 2014, a full 13 months after the children had arrived in the UK with the mother saying that she wanted to see the children throughout and the eldest child, X, having said he would like to see his mother in February 2013. It is entirely possible that the contact would not have been successful (as has in fact occurred) but it must be the duty of the IRO to challenge this astonishing delay in attempting such contact in circumstances when the children had no involvement with any member of their birth family.

54. The lack of urgency in the case is breath-taking and it is simply wrong to point out the failures of the IROs to force the issues as an "Area for Development". It was a total failure to "monitor, persuade, cajole, encourage and criticise fellow professionals in the interest of the child" as they should have been doing. This was clearly a case that should have come before the courts years before it actually did yet the IRO did not appear to put any pressure upon the Local Authority to ensure that this occurred. There is power within s.25B(3) Children Act 1989 for an IRO to refer the case to CAFCASS if it is considered it was appropriate to do so. It is difficult to understand why such action should not have been carried out in this case in order to ensure that the welfare needs of these children were fully protected.

55. It follows that the failures of the IRO were sufficient in this case to amount to a breach of the children's and the mother's rights to family life and a fair trial.


Declarations

56. It follows from all that is set out above that I make the following declarations:

i) West Sussex County Council acted unlawfully and in violation of the Convention Rights of X, Y and Z as follows:

a) Purported to exercise parental responsibility for X and Y for a period of almost two and a half years when they did not hold parental responsibility for the children.

b) Failed to promote contact between the children ,X and Y and their mother Z.

c) Failed to issue care proceedings for almost two and a half years causing the children to be without access to independent representation, failing to carry out adequate assessments and allowing the children's permanence plan to drift.

d) The Independent Reviewing Officer failed to challenge the conduct of the Local Authority sufficiently robustly.


Damages
57. It is argued on behalf of the Local Authority that in the event of a breach being proved then an award of damages is not necessary to afford 'just satisfaction' and further that if damages are necessary then they should be limited to the children only and not the mother as she was legally represented.

58. The award of damages is clearly a last resort as is made clear by the wording of s.8 Human Rights Act set out above. However when I take account of the many factors in this case it simply would not be sufficient to make declarations and damages are required. These factors include:

i) The total length of nearly 2 and a half years from the arrival in the UK until proceedings were commenced

ii) The fact that the children were unrepresented for that whole period

iii) The outcome is a very poor one with the children being separated, having no contact with each other or any other family member and X being in a placement which is not culturally appropriate.

59. The authorities to which I have been referred do not make it clear, on the whole as to how the figures have been reached in relation to damages. In the Brent Case HHJ Rowe QC stated that there was little guidance on the matter and in assessing the figure that she could "doing the best that I can" a figure of £3,000 was reached. The figure in the Northamptonshire Case was reached by consent and no justification for it was set out.

60. It was no doubt this paucity of precedence that led HHJ Lazarus in her judgment in the Medway Case to consider the basis upon which damages should be calculated. The Learned judge set out a useful table at paragraph 90 setting out the awards in other cases. There is also a set of factors that the parties agreed should be taken into account. These are:

i) The length of the proceedings

ii) The length of the breach

iii) The severity of the breach

iv) Distress caused

v) Insufficient involvement of the parent or child in the decision making process

vi) Other procedural failures.

61. There is no comment as to how this list of factors is arrived at and no authorities are relied upon to reach these factors but I would not disagree with any of them. I would add to the above list the fundamental point of the effect upon the lives of the children of the breaches (although this may be what is meant by distress caused or severity of the breach).

62. It is stated in McGregor on Damages at 48-021 that domestic courts should look to Strasbourg and not to domestic precedents in determining the amount of the award, following the terms of S.8(4) HRA as set out above. This was endorsed by the Court of Appeal in Anufrijeva v LB Southwark [2004] QB 1124  which emphasised five points :

i) The award of damages under the HRA is confined to the class of unlawful acts of public authorities identified by s.6(1)

ii) The court has a discretion whether to make an award (it must be "just and appropriate") as opposed to the position in common law claims where there is a right to damages

iii) The award must be necessary to achieve "just satisfaction", using language which is distinct from the approach at common law where a claimant is invariably entitled , so far as money can achieve this, to be restored to the position he would have been in if he had not suffered the injury of which complaint is made;

iv) The court is required to take into account in determining whether damages are payable and the amount of damages payable the different principles applied by the ECtHR in awarding compensation; and

v) Exemplary damages are not awarded.

63. It appears that this was the approach taken by Sir Robert Francis QC sitting as a High Court Judge in the Hackney Case as all of the authorities upon which he relies in paras 119 – 122 in the consideration of quantum are either ECtHR cases or relate to similar breaches. In particular he notes at para 122 that "awards of this type should be fairly modest".

64. The difficulty arises in attempting to assess the principles that are applied in such cases in the ECtHR as they appear to be more nebulous than those that pertain in England and Wales and there is not consistency from one decision to the next. This led the Supreme Court in R (Sturnham)v Parole Board [2013] 2 A.C.254 to state that English courts should be guided by any clear and consistent practice of the European Court and that quantum of awards should broadly reflect the level of awards made by the European courts in comparable cases brought by Applicants from the UK  or other countries with a similar cost of living. Once that 'guidance' is taken into account it appears that domestic law can be taken into account.

65. The only principles that can be gleaned form the approach of the ECtHR (as set out in McGregor) that appear to be relevant are :

i) The awards should be moderate;

ii) There should be no award for exemplary or aggravated damages;

iii) There is no need to distinguish between pecuniary and non- pecuniary loss;

iv) The ECtHR has frequently held that a finding of breach of Article 6 is sufficient to justify the requirement of just satisfaction and no award of damages was made.

v) However there is more likely to be an award of damages where a breach of Article 6 occurs together with a breach of another article.

66. The approach to be taken in this case must be to consider the relevant factors that would apply in domestic law and make the appropriate award as there is no clear and consistent guidance that is provided by the relevant authorities from ECtHR which would be contrary to such an approach save for the first and last ones set out above. If it was not for the requirement for the awards to be modest (no further definition provided) then the awards that I would have made would be greater than set out below. Further, for both the children and the mother there are breaches of both Articles 8 and 6 so there is no need to consider whether the declarations by themselves would be sufficient and I have already set out the reasons for this above.


The Children's Award

67. The factors to be considered for the children are substantially different to those for the mother and consequently must be assessed separately. The main factors in relation to quantum are :

i) A failure to assess their needs for an inordinate period of time – over two years before any report was obtained;

ii) The fact that they were denied access to any independent legal representation for two and a half years – of particular importance when they had no relatives in the country who would be able to care for them and when they had been the subject of apparent abuse during their time in Jamaica;

iii) Little promotion of contact with their mother even though X indicated in February 2013 that he would like to go back to her – there was no contact for the next twelve months;

iv) No comprehensive assessment of their needs although it was indicated as early as March 2013 that such an assessment was required;

v) Frequent changes in placements without any input from anyone with parental responsibility

vi) Placement with W, the previous foster carer, without any such assessment or understanding of any abuse they had suffered in Jamaica;

vii) The fact that the children are now in separate long term foster placements with no contact with each other or any other relative and X is not in a culturally appropriate placement;

68. It is apparent that the end result for these children is not a good one. It is not possible now to say that the outcome would have been any different if proceedings had been issued in early to mid-2013 which should have occurred. However, it is difficult to see how the outcome would have been much worse and the loss of a chance of a better conclusion must be reflected in any award that is made.

69. This case appears to be at the upper end of the bracket that has been awarded in similar cases. The only aggravating feature which is not present in this case, which is present in the majority of other such cases, is the fact that I have found that the s.20 agreement is a valid one. I am not going to set out all of the possible comparators as they appear in the table in the Medway case but I would simply state that this case involves the longest period as well as a poor outcome which may not have been the case without the breaches. As a result due to all of the issues which have been highlighted I am satisfied that the children should be awarded the sum of £20,000 each for all of the breaches of their Article 6 and 8 rights.


The Mother's Award

70. The mother is in a different position as she did have the benefit of legal advice from June 2013 onwards and as a result would have been able to withdraw her consent at any time thereafter. This must be of significance in considering damages as the inordinate delay in this case is the most troubling aspect and that delay could have been stopped at any time by the simple act of instructing her solicitor to withdraw her consent.

71. It is argued on behalf of the Local Authority that this feature is of such significance that it should mean that the mother would receive 'just satisfaction' by way of a declaration alone. However that ignores the other crucial factors in her case which include :

i) The frequent requests for contact to her children which were simply ignored by West Sussex although there was no legal basis to do so;

ii) If proceedings had been issued the Local Authority would have been obliged pursuant to s.34 Children Act 1989 to promote such contact;

iii) The failure to properly assess the mother due to the fact that she had been fully assessed in the previous proceedings some five years earlier.

72. It seems unlikely that the children would have been placed with their mother if the proceedings would have been commenced in a timeous fashion and as such there does not need to be any award for the loss of that chance. However, the same cannot be said in relation to contact as that may have been very different if addressed much earlier. The children are now stating that they will not see their mother but that was not the position when they first arrived at Gatwick in January 2013. This loss is even more significant now that each child has no contact whatsoever with any member of their family.

73. In these circumstance the appropriate level of damages for the mother must be far lower than for the children and I assess the figure of £5,000 as the correct amount to compensate her for her Article 6 and (more significantly) Article 8 rights.

74. I would ask that counsel for the Guardian (as the lead applicant) draws up the order to reflect this judgment and submits it for my approval within 7 days. If there are any further applications in relation to costs or any other issues that any party wishes for the Court to consider they should be made in writing within 14 days and I shall consider the same in writing unless any party seeks a further oral hearing on any point raised.