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S (by the Official Solicitor) V Rochdale MBC & Anor [2008] EWHC 3283 (Fam)

Judgment arising from proceedings brought by the Official Solicitor alleging serious breaches of duty and the Human Rights Act by the local authority and the Independent Reporting Officer in their treatment of a vulnerable child.

This action had been de-coupled from care proceedings involving the child, who suffered severe cognitive difficulties, and her own child, who was born when the claimant was 15 (that child had since been adopted), to focus solely on the human rights issues arising and the role of the IRO. The Official Solicitor had expressed a desire to have a Guidance judgment on the subject. In the event the claim for damages was compromised, without any examination of the claimant’s allegations, and approved by Munby J. A hearing then followed in which Munby J considered whether he should give a judgment on the wider issues and whether the details of the compromise should remain confidential.

He concluded that the confidentiality clause in the compromise document was lawful and bound him not to disclose its contents even though some

“might think it unsatisfactory, judged from a wider public perspective, that a local authority should be enabled in this way to immunise itself from public discussion and, it may be in some cases, from justified criticism” 

He also declined to make a “Guidance judgment” on the wider issues as

" Judges do not decide hypothetical cases. ‘Guidance judgments’, as they have been referred to, no doubt serve a useful purpose when the occasion is right, but their utility derives from their being the product of what Megarry J once memorably referred to (in Cordell v Second Clanfield Properties Ltd [1969] 2 Ch 9 at page 16) as “the purifying ordeal of skilled argument on the specific facts of a contested case.” Here the case has not been contested – it has been compromised – and on these wider issues I have heard no adversarial argument at all."


This judgment was handed down in private but the judge hereby gives leave for it to be published in this form

The judgment is being published on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the claimant and the adult members of her family must be strictly preserved

Neutral Citation Number: [2008] EWHC 3283 (Fam)
Case No: 7MA90644
(In Private)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 31 December 2008

Before :

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In the Matter of the Human Rights Act 1998

Between :

S (A child acting by the Official Solicitor) (Claimant)

- and - 


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Mr Anthony Hayden QC and Miss Jane Walker (instructed by Forbes) for the Claimant
Mr Patrick Field QC and Miss Frances Heaton (instructed by Rochdale Legal & Democratic Services: Legal Services Section) for the First Defendant
The Second Defendant was neither present nor represented

Hearing date: 20 November 2008
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Mr Justice Munby :
1. This is an action brought by the Official Solicitor on behalf of a child in the care of a local authority alleging serious breaches of duty on the part of both the local authority and the Independent Reporting Officer (IRO) infringing the child’s rights under the Human Rights Act 1998 and certain Articles of the Convention for the Protection of Human Rights and Fundamental Freedoms.

The background
2. The claimant, S, was born on 28 September 1990. She has had a difficult and damaged childhood, having in recent years had little effective support from her family. On 17 July 2004 her mother (the only person with parental responsibility) agreed to S being accommodated by Rochdale Metropolitan Borough Council (which I shall refer to as the local authority) pursuant to section 20 of the Children Act 1989. But thereafter she seems to have played no effective role in S’s parenting. She was, so it is said, unable to meet her daughter’s physical, educational, health or emotional needs or to participate in working with the local authority in order to ensure a plan was devised by which those needs could be met.

3. S suffers from cognitive functioning difficulties, “functioning within the low to very low range of cognitive ability … on the border of the range defined educationally as moderate learning difficulties” (I quote from a report by a child and adolescent psychologist dated 10 February 2006). A joint report by a child and adolescent psychologist, consultant speech and language therapists and a sensory occupational therapist dated 23 February 2007 described S as an “extremely vulnerable, needy and young girl, who has no family support at all” and diagnosed her as having the following difficulties: (i) autism (having primary areas of impairment in communication, social interaction and stereotyped behaviour, and restricted interests including an inability to cope with an unpredictable environment) and (ii) early attachment disorder. Well before that the local authority had acknowledged (in the words of the trainee social worker who was S’s allocated social worker) that “though S is nearly sixteen, she is still a very vulnerable child.”

4. S was placed initially in a children’s home and thereafter in numerous different foster placements. By the time she was 15 she was frequently absconding from foster placements, was involved in various inappropriate and exploitative sexual relationships with a number of older men (which led to her making allegations of sexual assault) and had attempted suicide on a number of occasions. On 10 November 2005, when she was still only a few weeks past her 15th birthday, she gave birth to a daughter, L. By then, of course, she had been accommodated by the local authority for almost 16 months.

5. Care proceedings in relation to L (MA06C01017) were issued by the local authority on 12 January 2006. L was removed from S’s care the following day. S was not competent to give instructions and the Official Solicitor was appointed to act on her behalf in March 2006. It became apparent to the Official Solicitor that S was an extremely vulnerable young person, in respect of whom nobody had been exercising parental responsibility for some time, and that she was herself suffering significant harm. On 21 June 2006 the Official Solicitor wrote formally to the local authority, inviting it to issue care proceedings in respect of S and putting it on notice that an application for judicial review might follow a negative decision. The local authority replied on 28 June 2006 confirming its decision not to commence care proceedings in respect of S. The Official Solicitor considered that the local authority’s decision was irrational.

6. Supported by the Official Solicitor, S made an application for judicial review (CO/5791/2006) on 10 July 2006. It sought, in effect if not in form, to compel the local authority to commence care proceedings in relation to S. Under the umbrella of the judicial review proceedings, S served draft Particulars of Claim (and on 27 July 2006 amended draft Particulars of Claim) setting out her claim for relief under the Human Rights Act 1998. The matter came before Bennett J on 18 July 2006 who made an order by consent consolidating the Human Rights Act claim with the application for judicial review and directing the local authority to file a Defence to the Particulars of Claim by 11 August 2006. A Defence was duly served on 26 August 2006. No purpose would be achieved by my seeking to analyse it in any detail. It contained no admissions of any substance and consisted of a mixture of denials, non-admissions and, in paragraph 4, details of the positive case being made by the local authority that it had properly carried out its duties and responsibilities in relation to S.

7. By then matters had got worse. S went missing from her foster placement on 25 July 2006. Three days later, on 28 July 2006, she was placed in secure accommodation by the local authority. On 31 July 2006 the local authority – having finally realised, as the Official Solicitor would have it, the inevitability of the need for a care order – commenced care proceedings in respect of S (MA06C01270) and obtained an interim care order. Thus, as the Official Solicitor saw it, the two applications – the application for judicial review and the Human Rights Act claim – had fairly quickly achieved their initial objective.

8. Both sets of proceedings – the proceedings in the Administrative Court and the care proceedings in respect of S – came before Black J on 7 September 2006 who ordered, by consent, that S have leave to withdraw her application for permission to apply for judicial review. At the same time Black J made an order giving directions in the care proceedings, consolidating the Human Rights Act claim with the care proceedings and allocating Her Honour Judge Kushner QC as the section 9 judge to hear the consolidated proceedings.

9. Following the hearing before Black J the Legal Services Commission suspended S’s public funding certificate in respect of the Human Rights Act claim on the basis that the benefit to S of the claim continuing was not sufficient to justify funding the claim. The Official Solicitor disagreed, taking the view that the case appeared to raise issues of wider public interest justifying an extension of funding. The case went before the Public Interest Advisory Panel of the Legal Services Commission on 27 March 2007. It concluded, having heard representations on behalf of S, that the case did have a significant wider public interest – whereupon further funding was approved.

10. The Panel’s Report (07/372) recorded that attention had been drawn by S’s representatives to what was described as “the historical importance of ‘guidance judgments’ in the development of practice and procedure under the Children Act” and that the present case was “an opportunity for such a judgment in relation to accommodation, under section 20 of the Act, of children with care issues.” The Panel concluded that “this case comprised particularly severe circumstances, which nevertheless were representative of a basket of common problems across England and Wales for children in voluntary accommodation under section 20 … There is a potential Human Rights Act claim that will examine the past history of this child to produce a Guidance Judgment of real impact to the practice of Independent Reviewing Officers and local authority use of voluntary accommodation … this would be an important outcome not only for the applicant but other claims raising similar issues.”

11. At a directions hearing on 3 May 2007 Judge Kushner QC directed that the Human Rights Act claim was to be listed in front of me. I have been case managing the Human Rights Act claim ever since: the first hearing before me (by video link) was on 29 June 2007. The care proceedings in respect of S remained with Judge Kushner. They culminated in a final hearing on 20 September 2007 and the making on the same day (just a week before her 17th birthday) of a final care order in respect of S. By then, of course, the care proceedings in respect of S’s baby, L, had long since been concluded, a final care order and a placement order having been made on 30 October 2006. L has since been adopted.

The Human Rights Act claim
12. I have already referred to the early history of these proceedings.

13. Following the de-consolidation of the care proceedings and the Human Rights Act claim (in relation to which, as will be appreciated, there had never been any originating process), S issued on 9 July 2007 a Part 7 claim form in relation to the Human Rights Act claim (7MA90644). Much time during the latter part of 2007 and the earlier part of 2008 was, unavoidably, taken up in a massive disclosure exercise which was much more complex and took much longer than had originally been envisaged. (As I remarked at one hearing, the real challenge of the disclosure exercise became “an exercise in establishing what was not there.”) Partly in consequence of this, inadequacies in the existing pleadings became apparent, so on 11 April 2008 I directed that the case was to be re-pleaded. I directed S to file Particulars of Claim by 28 April 2008 and the local authority a Defence by 27 June 2008 – all this in contemplation of a further case management hearing before me on 3 July 2008 and a final hearing fixed for 10 days starting on 10 December 2008. (The case had previously been fixed for a final hearing for 15 days starting on 7 April 2008 but I had been compelled to vacate that date at a hearing on 8 February 2008.)

14. The Particulars of Claim, settled by Mr Anthony Hayden QC and Miss Jane Walker, were served on 13 May 2008. The Defence was due to be served on 27 June 2008 but never was, for on that very day I received notification that the parties had in principle achieved a successful resolution of the litigation. Further information was supplied to me on 1 July 2008, in the light of which I agreed to vacate the hearing fixed for 3 July 2008. In due course I also vacated the final hearing fixed for December 2008.

The Human Rights Act claim: the pleaded case
15. The pleaded case, explicitly brought pursuant to section 7(1)(a) of the Human Rights Act 1998, fell into two parts: one directed at the local authority, the other at the IRO. Both proceeded on the basis that S was accommodated by the local authority pursuant to section 20 of the Children Act 1989 on 17 July 2004, and at all times thereafter until the interim care order was made on 31 July 2006; that she was accordingly a ‘looked after child’ within the meaning of section 22(1)(b) of the Act, in relation to whom the local authority owed the duties in the Arrangement for Placement of Children (General) Regulations 1991, SI 1991 No 890, and the Review of Children’s Cases Regulations 1991, SI 1991 No 895; and that she was, as a ‘looked after child’, and subsequently as a child in care, entitled to an IRO who owed the duties in section 118 of the Adoption and Children Act 2002 and in the Review of Children’s Cases Regulations 1991, SI 1991 No 895 (as amended by the Review of Children’s Cases (Amendment) (England) Regulations 2004, SI 2004 No 1419).

16. In relation to both the local authority and the IRO it was also pleaded that they are a ‘public authority’ within the meaning of section 6(3) of the Human Rights Act 1998 and that they were accordingly under the obligation imposed by section 6(1) not to act in a way which was incompatible with S’s rights as set out in, inter alia, Article 8 of the Convention and Article 2 of the First Protocol.

17. The main case against the local authority itself fell into two parts: the first founded on alleged breaches of the local authority’s duties (including – see X and Y v The Netherlands (1985) 8 EHRR 235 at para 23 – its positive duties) under the limb of Article 8 which guarantees respect for ‘private life’ (as to which see Niemietz v Germany (1993) 16 EHRR 97); the other founded on alleged breaches of the local authority’s duties under Article 2 of the First Protocol.

18. So far as concerns the claim under Article 8, the foundation of S’s case was pleaded as follows:

“Article 8 protects the moral and physical integrity of the individual. The [local authority] in the position of “looking after” [S] had a continuing positive obligation to ensure her safety and to enable her to enjoy effectively the rights inherent to her moral and physical integrity.”

19. S’s case that her Article 8 rights had been infringed was then pleaded under three headings: first, that the local authority had failed to take any or any adequate child protection measures in respect of S, those failures constituting, it was said, an interference with her rights under Article 8; second, relating to S’s physical integrity and health; and third relating to what were characterised as specific social services failings.

20. In relation to the first complaint, lengthy particulars were set out in nineteen numbered sub-paragraphs:

“(i) [S] consistently absconded from her placements from the time of her accommodation in 2004 and, in particular, every weekend (save one) since the beginning of May 2006.
(ii) [S] was noted to been using illicit drugs and drinking alcohol during the periods of her absconding.
(iii) On or about the weekend of 10 September 2004 [S] absconded from her placement and was supplied with drugs and alcohol by a group of Asian men with whom she engaged in sexual activity and one of whom she alleged to have assaulted her.
(iv) On or about 10 October 2004 [S] was found to be drunk and suffering from cuts and injuries following another absconsion.
(v) On or about 2 November 2004 [S] was found to be sitting in the middle of a road after having absconded from her placement at …
(vi) On 16 November 2004 [S] had to be physically restrained whilst at … Children’s Home but no further action was recommended.
(vii) In December 2004 the trainee social worker reported to the Looked After Children’s Review that [S] had been self harming and threatening suicide.
(viii) On 21 December 2004, whilst placed at … , [S] ate silicon gel and banged her head against a radiator. No medical attention was received.
(ix) In or about January 2005 [S] engaged in further self harming behaviour including scratches to her arms.
(x) On or about 30 January 2005 [S] absconded from her placement at … Children’s Home and alleged she engaged in sexual relations with a man in order to obtain drugs.
(xi) In February 2005 [S] also required physical restraint in her placement after engaging in violent behaviour including throwing pool balls.
(xii) On or about 8 March 2005 [S] underwent a pregnancy test which proved positive.
(xiii) On or about 16 March 2005 [S] punched another resident at … .
(xiv) On or about the weekend of 14 May 2006 [S] made a complaint to the police that she was held against her will in a flat by a much older man and sexually assaulted. The incident occurred during a period of absconding.
(xv) On or about 14 May 2006, whilst absconding, [S] is alleged to have been in a park sitting on the knee of a man who had his genitals exposed. [S] alleged that she was sexually assaulted.
(xvi) On or about 29 May 2006 [S] was admitted to hospital with a urine infection, the ambulance crew alerted the hospital as to their child protection concerns that she had been collected from a flat in which she was the only female and under age where the only other occupants appeared to be a number of older men.
(xvii) On or about 9 June 2006 the foster carer and the [trainee social worker] refused the request for [S] to spend the weekend with a 22-year-old man (her boyfriend). [S]’s mother gave permission, thereby exercising her parental responsibility wholly contrary to the advice of the [local authority] and in a manner which was inimical to [S]’s welfare interests. [S] absconded from her foster placement that weekend.
(xviii) On or about Tuesday 13 June 2006 [S] became distressed and inconsolable, despite the interventions of her foster carer and the [trainee social worker]. [S] threatened to self-harm with a knife and thereafter attempted to take her own life by ingesting approximately 60 tablets.
(xix) [S] was admitted to the [hospital] and remained there until discharge on 16 June 2006. Prior to [S]’s admission to hospital and during her admission she did not eat at all for a number of days.”

21. In relation to the complaint that the local authority had failed to protect S’s physical integrity and health, the following particulars were given:

“(i) Between July 2004 and 12 May 2005, the [local authority] failed to make any or any adequate referral to Child and Adolescent Mental Health Services (CAMHS), despite the fact that it was obvious or ought to have been obvious that [S] was in need of urgent psychological and/or psychiatric support.
(ii) On 12 October 2004, an enquiry was made by the social services of CAMHS who made recommendations that they become involved immediately.
(iii) On or about 10 December 2004 the trainee social worker … in a report prepared for the purposes of a Looked After Children’s Review, indicated a referral was to be made to CAMHS and made reference to self harming behaviour by [S].
(iv No adequate action was taken by the [local authority] to pursue or progress this recommendation until 12 May 2005, a delay for which there is no or no adequate explanation.
(v) In consequence of the [local authority]’s failure to assume parental responsibility for [S], the [local authority] was unable to effect a stable placement for her and CAMHS were unable to commence work with her.
(vi) Nearly 2 years after the identified need for psychological / psychiatric support (June 2006) CAMHS commenced some work with [S] following her admission to [hospital] having taken an overdose.
(vii) There is no evidence of baseline assessment of [S]’s psychological functioning and/or needs ever having been undertaken.
(viii) An assessment was not undertaken of those needs at all until the commencement of care proceedings in respect of [S]’s child.
(ix) Though some work was undertaken by Child Action North West between December 2005 and March 2006 it was of a limited nature, confined to general issues of conflict solving, staying safe and inappropriate relationships. Inevitably, in the light of the psychological assessment conducted of [S] during the care proceedings, that work was likely to have been valueless, given the limitation of her functioning. It is further illustrative of how the instigation of care proceedings in respect of her (and therefore the appointment of a children’s guardian on her behalf) was likely to achieve an expert evaluation of her needs.”

22. In relation to the alleged specific social services failings, the following particulars were given:

“(i) At no point during the period of her accommodation was [S] ever allocated a qualified social worker. The instigation of care proceedings would immediately have remedied that situation. National Guidelines and the [local authority]’s own internal protocols do not permit unqualified social workers to be responsible for cases which require reports to be prepared for court, notwithstanding the pressures upon personnel resources, a qualified social worker would have been allocated, had proceedings been commenced.
(ii) The trainee social worker appointed for [S] had no or no adequate social work experience in child protection issues or understanding of the available legal options which might best promote her welfare.
(iii) There are no or no remotely adequate records detailing the trainee social worker’s work with [S] throughout the entirety of her involvement.
(iv) The absence of such records would have become apparent very quickly if the trainee social worker had received any or any adequate supervision by her manager. During the period of [S]’s accommodation there were frequent changes of team manager.
(v) A competent and experienced social worker would immediately have identified the need for child protection measures and the instigation of court proceedings.
(vi) The Children Act, the Codes of Practice on the Identification and Assessment of Special Needs (1994) (under review) and Behaviour Support Plans Guidance (Circular 1/98) all require inter-agency consultation and cooperation. The case for such is so self-evident that it should no longer need making.   The trainee social worker in [S]’s case failed entirely to identify [S]’s global needs or to identify a package of support which was likely to meet them.  
(vii) [S]’s statutory review documentation is seriously deficient and frequently incomplete (some remain missing and are unlikely to be discovered). The statutory review process, in effect, broke down entirely.
(viii) There is no evidence in the disclosure documentation that there was any contribution to the formulation of [S]’s care plan by any other person other than the trainee social worker.
(ix) There is no evidence of any pathway planning pursuant to the Children (Leaving Care) Act or any attempt to coordinate those with such plans as the [local authority] had formulated.
(x) Continuous planning and monitoring of plans should be carried out through the Looked After Children Review, as set out in the Review of Children’s Cases Regulations 1991 (Arrangements for Placement of Children (General) Regulations 1991). The [local authority]’s social services department has a duty to consult with all the appropriate agencies and individuals. Statutory review should act as a very important safeguard to young persons. [S]’s statutory review documentation is seriously deficient and frequently incomplete (some remains missing and is unlikely to be discovered). The statutory review process in effect broke down entirely in this case.”

23. The pleading of this part of the case concluded as follows:

“The cluster of failings set out above in the management of [S]’s care, led to avoidable delay in the identification of [S]’s needs globally, compromising her physical, moral and intellectual integrity and/or preventing her from developing the normal relationships protected by Article 8.”

24. The central core of S’s case that her rights under Article 2 of the First Protocol had been infringed was pleaded in the following terms:

“It was appropriate here for a statement of special educational needs to be drawn … none was ever undertaken. It is the obligation of every local authority to ensure that any child or young person in public care (including accommodated children) should have a personal education plan which:  

(i)  ensures access to services and support;  
(ii) contributes to stability;
(iii) minimises disruption and broken schooling;  
(iv) signals particular and special needs;  
(v) establishes clear goals;
(vi) acts as a record of progress and achievement. 

Despite the fact that the local authority recognised their obligations (recorded in statutory review) to formulate a personal education plan, none was ever drawn up.   Furthermore documents disclosed by the [local authority] indicate that [S] received only 14 days of education during the whole of her term as an accommodated child. Efforts made by the [local authority] to encourage [S] to attend school were wholly undermined by the absence of any assessment of her learning difficulties and a personal education plan. A report commissioned by an educational psychologist prior to 25 January 2006 ought to have been a baseline objective in helping to meet [S]’s educational needs. Further [S] was effectively denied the right to an education and/or access to an educational institution.”

25. I have said that S’s main case against the local authority was based on alleged breaches of Article 8 and Article 2 of the First Protocol. But at the end of the Particulars of Claim the following additional claims were pleaded in relation to Articles 6 and 3:

“Further, in failing to instigate public law care proceedings in order to protect [S] and to ensure a satisfactory system of statutory review, the [local authority] deprived [S] of her rights to a fair hearing pursuant to Article 6.

Further, the failure of the [local authority] to protect [S] from persistent exposure to degrading treatment (as set out in particulars under Article 8 above) contravened the [local authority]’s positive obligations to [S] pursuant to Article 3”.

26. I turn to the case pleaded against the IRO. It was pleaded that the IRO was an employee of the local authority and that, as such, the local authority was (as, indeed had been conceded before me at the hearing on 29 June 2007) vicariously liable for any action or omission to act on her behalf which was incompatible with a convention right.

27. Having rehearsed that IROs are responsible for monitoring a local authority’s review of its care plan, with the aim of ensuring that actions required to implement the care plan are carried out and outcomes monitored, and that the Review of Children’s Cases (Amendment) (England) Regulations 2004, give IROs a new power to refer a case to the Children and Family Court Advisory and Support Service (CAFCASS) to take legal action as a last resort where the child’s human rights are considered as breached, the pleading continued as follows:

“The IRO’s role involves chairing the review meetings and monitoring a local authority’s review of all looked after children. In the light of all those matters set out above, in particular the absence of a personal education plan, the IRO wholly failed to meet her statutory obligations to [S].

Given that [S] was effectively unrepresented at review meetings, save for a trainee social worker and that her mother rarely (if ever) attended, the IRO failed to ensure that the child’s views were understood and taken into account. She further failed to ensure that the people responsible for implementing any decisions taken in consequence of the review were identified further that the failure to protect [S]’s basic human rights were brought to the attention of appropriate persons at an appropriate level of seniority within the responsible authority.

In summary, the IRO:

(i)  failed to ensure that appropriate educational provision was identified for [S] by means of completion of a personal education plan;
(ii) failed to ensure that there was an adequate health plan;
(iii) failed to allocate timescales for the carrying out of any recommendations, with the consequence that the absence of a personal education plan and delay in the CAMHS  report were not promptly and adequately followed up from meeting to meeting;
(iv) failed to be sufficiently active (or indeed at all) in ensuring proper provision and implementation of all aspects of [S]’s care plan;
(v) failed to involve senior social workers when it ought to have been abundantly clear that [S] was suffering continuous emotional, physical and sexual harm whilst purportedly “looked after” by the [local authority].”

28. The relief sought by S was (1) a declaration that her human rights had been breached in the manner set out above, (2) damages and (3) costs.

29. Thus the case as pleaded on behalf of S.

30. On the face of it the pleaded allegations, if true, demonstrate a desperate catalogue of continuing failures by both the local authority and the IRO. I say ‘on the face of it’ because, as Mr Patrick Field QC has rightly emphasised on behalf of the local authority, the contents of the Particulars of Claim are no more than assertions. No admissions have been made by the defendants who, to repeat, have served no Defence. The action has been compromised and stayed (see below) so there had never been, and never will be, any contest in respect of these matters and, crucially, no testing of the evidence adduced in support of S’s case or of the arguments put forward on her behalf.
The compromise
31. I heard nothing further about the matter until late September 2008. By then the matter was urgent.

32. The papers were put before me on 23 September 2008 (a Tuesday). The urgency lay in the fact that S would turn 18 five days later on 28 September 2008 – the following Sunday – so the order, if it was to be approved in accordance with CPR Part 21.10(1), had to be made no later than Friday 26 September 2008.

33. I was, of course, very familiar with the case, having case managed it throughout since June 2007. For the purpose of considering whether or not to approve the proposed compromise I was supplied with copies of:

i) The Particulars of Claim as settled by Mr Hayden and Miss Walker.
ii) A draft of the Order I was being invited to make.
iii) A draft of the proposed Schedule to the Order, being the terms of Compromise I was being invited to approve. I shall refer to this as the Compromise.
iv) A written Advice by Mr Hayden and Miss Walker dated 22 September 2008.
v) A written but undated document entitled ‘Submissions on behalf of the Claimant’ also prepared by Mr Hayden and Miss Walker.

I pointed out that there was nothing in the papers I had been given to show that the Defendants in fact consented to an order in the proposed terms.

34. On 24 September 2008 I received written confirmation from Mr Field, on behalf of the local authority, that the terms of the Compromise had been agreed, and indeed been signed by both Leading Counsel, and that the local authority consented to an order in the proposed terms. He helpfully clarified for me that the Second Defendant (the IRO) had in fact never been served and had played no part in the negotiations; but he confirmed that the local authority admitted that it was vicariously liable for the acts and omissions of its employee, the IRO. 

35. In the light of Mr Field’s information about the position of the IRO, I indicated to both parties by email later the same day that I was proposing to adjust the draft order to reflect the fact that it was only the local authority which was consenting to the order. I sent Leading Counsel a copy of the draft order as I had amended it, indicating that I was proposing to make an order in the terms of that draft later the same day. I asked them to confirm by email that they were both content with an order in this form. Both responded that afternoon, confirming that they agreed to an order in these terms.

36. Accordingly, that afternoon, 24 September 2008, I made an order in the following terms (being the terms of the amended draft I had sent to counsel earlier that day):

“UPON READING various documents including an Advice by Leading and Junior Counsel for the Claimant dated 22 September 2008 and emailed submissions dated 24 September 2008 from Leading Counsel for the First Defendant consenting on behalf of the First Defendant to the making of this order

AND IT APPEARING that the Second Defendant has never been served with the proceedings and has played no part either in the proceedings or in the negotiations leading to the agreement referred to below

BUT the First Defendant admitting that it is vicariously liable for the acts and omissions of the Second Defendant

AND THE JUDGE approving the following terms of settlement and making them an Order of the Court

BY CONSENT of the First Defendant and with the APPROVAL of the JUDGE on behalf of the Claimant IT IS ORDERED that:

1  The Claimant and the First Defendant having agreed the terms set out in the Schedule hereto, all further proceedings in this claim be stayed except for the purpose of carrying such terms into effect.
2  There is liberty to apply as to carrying such terms into effect.
3  There is no order as to damages.
4  The First Defendant do pay the sum of £50,000 towards the Claimant’s costs.”

37. I forwarded the order to both Leading Counsel the same day under cover of an email which read as follows:

“Thank you for your latest emails.

This is to confirm that I have today (Wednesday 24 September 2008) made an order in the terms attached to this email. Please arrange for it to be lodged with the court (together with the Schedule to be attached to it) for sealing. You may produce this email to the court as confirmation that I have approved the order.

I shall in due course give a judgment (for publication) explaining why I have approved the order and, to such extent as is appropriate, dealing with the more general points which arise, including any lessons that may be learned. As I understand it the Claimant’s ‘Submissions’ document is not yet in final form. What I think would be helpful (subject to your views) is if:

1  The Claimant’s counsel could finalise their ‘Submissions’ document and any other material they wish me to consider.
2  The First Defendant’s counsel could then draft some document in response, to the extent that the First Defendant wishes to put any submissions before me.
3  The Claimant’s counsel could then prepare a brief written response.

It would be helpful if this could all be done within the next few weeks, so that I can see as soon as possible what the real ambit of any argument is likely to be. I do not propose to give any formal directions – I am sure you can agree a sensible informal timetable – but it would be helpful if you could let me know, sooner rather than later, how you are agreed that the matter should proceed.

The above is all quite apart from the submissions I shall require on the question of whether or not the LA should be publicly identified. In this connection you may wish to consider Re B Children, X Council v B and others [2007] EWHC 1622 (Fam) together with the other relevant authorities.”

38. I should explain the reference to “the more general points which arise.” I can best do that by setting out the final paragraph of the written Advice by Mr Hayden and Miss Walker to which I have already referred:

“Given that a public interest certificate was granted in this case we hope to persuade [the judge] to give a judgment which, whilst endorsing the compromise, goes further and addresses the wider lessons to be learned from this case. Our suggestions as to what those lessons might be are set out in the accompanying document headed “Submissions on behalf of the Claimant”. That document will need to be perfected but we have enclosed it in order that the court can see the wider issues as we perceive them to be. The local authority do not resist the submissions set out there, though plainly they are not in a position to support them. Given that S turns 18 on the 28th September, we would respectfully invite you to make the order … and adjourn the public interest judgment to be heard … on one or two of the days originally allocated for trial in December which remain in the list.”

39. I should record, for the point may be significant, that the order I had made on 24 September 2008 (and which bears that date) was sealed by the court the following day, 25 September 2008. So by the time S reached her majority three days later, the Human Rights Act claim had been compromised by an order, approved by the judge, which had been both made by the judge and sealed by the court.

The hearing
40. The hearing took place before me at Newcastle-Upon-Tyne on 20 November 2008. As previously, Mr Hayden and Miss Walker appeared for the claimant. The local authority was represented by Mr Field and Miss Heaton.

41. In addition to the documents previously before me I had ‘Outline Submissions on behalf of the Defendants’ prepared by Mr Field and Miss Heaton and a slightly revised version of the ‘Submissions on behalf of the Claimant’ prepared by Mr Hayden and Miss Walker (it is to this version of the document, rather than the version put before me on 23 September 2008, that I refer from now on).

42. Mr Field submitted that it was appropriate and in the interests of justice that the hearing should take place in private. He acknowledged that what he called ‘the default position’ was that the hearing should be in public unless I ordered otherwise (CPR Part 39.2(1)), but submitted that, given that questions of confidentiality, publicity and whether the parties should be identified were to be discussed, that provided sufficient justification for doing so in private (see CPR Part 39.2(3)(a), (c) and (g)). He relied also upon CPR 39PD1.6, pointing out that, even though S was no longer a child, the hearing related to the approval of a settlement that took place when she was still a child.

43. Mr Hayden did not seek to persuade me to a contrary course. In the particular circumstances, it seemed to me that the course proposed by Mr Field was appropriate. So the hearing proceeded in chambers.

The issues
44. It was apparent that there were three tasks which confronted me. The first was to consider the impact of the confidentiality clause in the Compromise. The second was to explain why I had approved the Compromise and made the order. The third was to consider to what extent (if at all) it was appropriate for me to embark upon a consideration of the wider issues which Mr Hayden wished to canvass. I shall deal with them in turn.

45. Clause 1 of the Compromise (the Schedule to the Order) provides as follows:

It is agreed between the parties that neither they their servants nor agents shall at any time or in any circumstances:

(i)  reveal to any third party unconnected with these proceedings the terms of this compromise agreement or to all or any of the particulars relating to either of the parties or their conduct referred to herein.
(ii) cause or facilitate publication in any form of the said terms, particulars or conduct
(iii) take any steps as a result of which the terms, particulars or conduct  are likely to become public knowledge or are reasonably foreseeable as being likely to become public knowledge;
(iv) fail to take any steps which either party may reasonably be expected to take to prevent the said terms, particulars or conduct from becoming public knowledge in circumstances in which they would otherwise be likely to do so.

In the event that there are care proceedings in respect of any future children of [S] it is agreed between the parties that this agreement shall be regarded as a relevant but confidential document and shall be filed within the proceedings regardless of whether the applicant in those care proceedings is [the local authority] herein or a different local authority; for all other purposes the general confidentiality of this agreement shall remain unaffected by such disclosure.”

46. It will be recalled that in the email I sent to the parties on 24 September 2008 when I made the order, I had indicated that I would require submissions on the question of whether or not the local authority should be publicly identified. This reflected an observation I had previously made in an email dated 23 September 2008 where I said that I noted the terms of the confidentiality clause “and appreciate its implications for the naming of the local authority in the public judgment I will be giving.” The fact, as borne out by these two emails, is that in this respect the only matter I was reserving for consideration at the final hearing was whether or not, despite the terms of the confidentiality clause, the local authority should be named.

47. Mr Field submitted that the Compromise was and should remain confidential to the parties in accordance with its terms.

48. Mr Field’s argument in relation to confidentiality fell into two parts. He summarised the first part as follows:

i) Clause 1 of the Compromise was entered into freely and following lengthy negotiations between the parties. At all material times S was represented by solicitors and Junior and Leading Counsel. Her litigation friend was the Official Solicitor.
ii) This is a binding contractual term for which there is consideration. It would be enforceable through the court.
iii) Each party to the agreement has a legitimate expectation that the other will not breach the term as to confidentiality.
iv) Similarly, each party has a legitimate expectation that the court will not act so as to vitiate the effect of this clause by making public in the form of a judgment those matters which the parties agreed to keep confidential to themselves.
v) Important issues of policy arise: (a) there is a public interest in seeing potentially costly litigation settle without resort to the judicial process:  (see CPR Part 1.1 and Part 1.4(2)(c), (f) and the 2008 White Book, Vol 1, para 1.4.9); (b) the settlement is a private matter and should remain so; it would be contrary to the policy of the CPR to undermine or threaten that privacy; and (c) litigants should feel confident to settle their cases on terms without fear that courts will go behind and undo such agreements, provided always that the agreement is lawful.

49. That is a formidably compelling argument. But Mr Field’s other argument was, if anything, even more compelling, indeed in my judgment determinative. By approving the Compromise, as I did on 24 September 2008, and making the order to that effect the same day, I had satisfied myself both that the confidentiality clause was lawful and that it was at the time in S’s best interests. I had, formally and irrevocably, set the court’s seal of approval upon the confidentiality clause.

50. So, says Mr Field, it would be inappropriate for there to be any judgment that contains reference to or touches upon the terms of the Compromise or (to adopt the language of clause 1) any of the particulars relating to the parties or their conduct as referred to in the Compromise.

51. I agree with Mr Field. The Compromise is and must remain confidential. Public policy as defined by Mr Field requires that the confidentiality negotiated between the parties not be breached by the court. And in any event, having itself approved the Compromise and (as an integral part of the Compromise) having likewise approved the confidentiality clause, the court cannot now go back on its own decision and resile from its own order. That order has been made. It has been sealed. And in my judgment it binds the court as much as it binds the parties.

52. This is subject to two (but, in my judgment, only two) qualifications.

53. In the first place, as Mr Field conceded, nothing in the Compromise prevents public dissemination of the terms of the order I made on 24 September 2008, for that is, of its nature, a public document.

54. Nor, by parity of reasoning, is there anything in the Compromise to prevent public dissemination of the terms of the Particulars of Claim, which were, by virtue of CPR Part 5.4C, in the public domain on 24 September 2008 when I was invited to make the order, the case, as I have already said, having been listed for final hearing. So far as material for present purposes CPR Part 5.4C provides as follows:

“(1)  The general rule is that a person who is not a party to proceedings may obtain from the court records a copy of –

(a)  a statement of case … ;
(b) a judgment or order given or made in public (whether made at a hearing or without a hearing).

(3)  A non-party may obtain a copy of a statement of case or judgment or order under paragraph (1) only if –

(a)  where there is one defendant, the defendant has filed an acknowledgment of service or a defence;
(b)  where there is more than one defendant, either –

(i)  all the defendants have filed an acknowledgment of service or a defence;
(ii)  at least one defendant has filed an acknowledgment of service or a defence, and the court gives permission;

(c)  the claim has been listed for a hearing; or
(d)  judgment has been entered in the claim.

(4)  The court may, on the application of a party or of any person identified in a statement of case –

(a) order that a non-party may not obtain a copy of a statement of case under paragraph (1);
(b)  restrict the persons or classes of persons who may obtain a copy of a statement of case;
(c)  order that persons or classes of persons may only obtain a copy of a statement of case if it is edited in accordance with the directions of the court; or
(d)  make such other order as it thinks fit.

(5)  A person wishing to apply for an order under paragraph (4) must file an application notice in accordance with Part 23.
… ”

55. I do not read the Compromise as purporting to oust the provisions of CPR Part 5.4C and in any event the local authority has never sought an order under CPR Part 5.4C(4). Mr Field did not seek such an order, either when I was invited by him on 24 September 2008 to approve the Compromise or at the hearing on 20 November 2008.

56. It is in these circumstances that I have accordingly set out the terms of the order I made on 24 September 2008 and rehearsed in some detail the Particulars of Claim. But further than that I should not – indeed, in my judgment, I cannot properly – go. The Compromise is and must remain confidential.

The basis of approval
57. Mr Hayden invited me to give a judgment endorsing the Compromise I had approved. He submitted, indeed, that I was bound to do so. Mr Field took issue with that assertion, submitting for his part that, in approving the Compromise, I had to do no more than express approval giving rudimentary reasons for so doing. He suggested that, given that there were no matters in issue in respect of the approval of the Compromise and that my approval was in part based upon counsel’s advice which was confidential to S, no judgment as such was required. He referred me in this connection to CPR Part 21.10 and the Practice Direction thereto.

58. Whatever the position might otherwise be, in the light of my ruling in relation to the effect of the confidentiality clause, I can say little either about the terms of the Compromise – which runs to some 6½ pages – or about the reasons why I have approved it.

59. When the Compromise was put before me on 24 September 2008, my duty, in accordance with CPR Part 21.10(1) (“Where a claim is made … by or on behalf of a child … no settlement, compromise or payment and no acceptance of money paid into court shall be valid, so far as it relates to the claim by [or] on behalf of … the child … without the approval of the court”), was to decide, in accordance with S’s best interests, whether or not to approve it. For, as S’s advisers pointed out, without the court’s approval the Compromise could not be valid or binding: see Drinkall v Whitwood [2003] EWCA Civ 1547, [2004] 4 All ER 378.

60. In deciding whether or not to approve the Compromise, I was, of course, critically dependent upon the written Advice from Mr Hayden and Miss Walker. As Megarry J said in In re Barbour’s Settlement Trusts, National Westminster Bank Ltd v Barbour and others [1974] 1 WLR 1198 at page 1201:

“When the court is asked to give its approval on behalf of minors to a compromise of a dispute, the court has long been accustomed to rely heavily on those advising the minors for assistance in deciding whether the compromise is for the benefit of the minors. Counsel, solicitors, and guardians ad litem or next friends have opportunities which the court lacks for prolonged and detailed consideration of the proposals and possible variations of them in relation to the attitudes of the other parties and the apparent strength and weakness of their respective claims. When the matter comes before the court, the terms of settlement are in final form and the time for consideration is of necessity less ample. The court accordingly must rely to a considerable extent on the views of those whose opportunities of weighing the matter have been so much greater. Expressing a view on whether the terms of a proposed compromise are in the interests of a minor is a matter of great responsibility for all concerned. The solicitors must see that all the relevant matters are put before counsel, that the right questions are asked, and that the guardian ad litem or next friend of the minor fully understands and weighs counsel’s advice when it is given. Counsel has to discharge what in my judgment is one of the most important and responsible functions of the Bar, that of helping those unable to help themselves; and the guardian ad litem or next friend must understand the advice given and carefully weigh the advantages of the proposed compromise to the minor against the disadvantages.”

He added at page 1203:

“It may be that the great responsibilities of those who act on behalf of minors are today not so well known or fully understood as they once were. Yet they remain of high importance in the due administration of justice. They provide an important illustration of what all lawyers know, namely, that justice according to law is a co-operative process to which solicitors, counsel and judges all make their contributions. No judge can perform his duties adequately and efficiently without the great assistance from counsel and solicitors that is traditional. The gratitude for this assistance that is sometimes expressed from the Bench is genuine indeed: and correlative to that gratitude is the duty of the Bench to take whatever steps may be appropriate to see that the ancient standards are fully maintained.”

61. Needless to say, I was blessed with every assistance from Mr Hayden and Miss Walker. They are entitled to my gratitude for all the assistance they have given me not merely at this ultimately decisive stage in the proceedings but throughout this anxious matter. I hope that S also is suitably appreciative of their efforts, as indeed of all the efforts of the Official Solicitor on her behalf since he first became involved early in 2006. Not for the first time, and assuredly not for the last, the Official Solicitor has demonstrated how vital a role he plays in ensuring that the vulnerable and helpless are enabled to obtain justice from the courts.

62. For reasons which by now will be apparent I can say little about the Advice from Mr Hayden and Miss Walker. It carefully analysed the terms of the Compromise against the background to the litigation and in the light of S’s case as set out in the Particulars of Claim. It identified for me what it correctly called the three central features of the Compromise. It set out, clearly and unequivocally, that the Official Solicitor and his legal team had had little difficulty in concluding that the Compromise represented a “proper and fair” resolution of the proceedings. It invited me, without qualification, to approve the Compromise “which we [counsel] have concluded strikes a fair balance”, providing what Mr Hayden and Miss Walker described as “a bespoke solution to a particularly difficult case.” It considered whether the litigation should continue but said “That course would, in our judgment, have involved losing sight of the interests of the vulnerable young person at the centre of this litigation”.

63. I had no hesitation in accepting this advice and deciding that I could and should approve the Compromise. Because of the fact that I had been case managing the litigation for well over a year, I had a much better knowledge of and ‘feel’ for the case than many judges placed in my position on 24 September 2008 might have had, but I was still, of course, and for all the reasons given by Megarry J, very much dependent on counsel’s advice. But Mr Hayden and Miss Walker’s analysis of the merits of the Compromise, viewed from S’s perspective, accorded entirely with my own, albeit more confined, view.

64. There is just one aspect of the Compromise which requires further and more specific justification, namely the confidentiality clause.

65. Quite plainly the confidentiality clause engages the Article 10 rights of both the local authority and S, for its effect is to fetter their ability to “impart information” to others. But it also, and most critically, engages S’s Article 8 rights. For, as explained in Re Roddy (A Child) (Identification: Restriction on Publication) [2003] EWHC 2927 (Fam), [2004] 2 FLR 949 (see at paras [34]-[36]), amongst the rights protected by Article 8 is the right, as a human being, to share with others – and, if one so chooses, with the world at large – what would otherwise be private, one’s own story, the story of one’s childhood, development and history. So the effect of the confidentiality clause is to deny S into adulthood, indeed in perpetuity, the ability to enjoy this critically important aspect of the right to ‘private life’ guaranteed to her by Article 8.

66. In my judgment the court must be slow – very slow – when asked to approve a compromise on behalf of a child, to approve a confidentiality provision such as that with which I was here presented, for, as I observed in Roddy (at para [35]), “It is natural for us to want to talk to others about ourselves and about our lives. It is fundamental to our human condition, to our dignity as human beings, that we should be able to do so.” If the court is to approve a compromise containing such a provision it must, in my judgment, be satisfied that to do so is in the child’s best interests; more specifically, it must be satisfied that what is being gained by the child under the compromise adequately reflects both the value of the claim which is being compromised and the value of the Article 8 rights which are being surrendered. And in assessing and evaluating those rights, and in striking the final balance, having evaluated both sides of the balance sheet, the court must, of course, have regard to any expressed wishes and feelings of the child.

67. Although for the purposes of analysis I have separated out these two distinct components, the task of the court is nonetheless, at the end of the day, to assess the proposed compromise in the round. In this connection I adopt the same approach as that adopted by Megarry J in In re Barbour’s Settlement Trusts, National Westminster Bank Ltd v Barbour and others [1974] 1 WLR 1198 at page 1203:

“I think the court must look at the matter as a whole, and should not single out [one aspect] for separate treatment and reject it as not being for the benefit of the minors.”

68. Adopting this approach I was – and I remain – entirely satisfied that the Compromise was one that I should sanction on behalf of S, notwithstanding that it included the confidentiality clause. Important elements in my evaluation of the Compromise from this perspective were (a) the fact that S had not expressed, and so far as I could see, was unlikely in future to express, any wish to ‘go public’ with her story – contrast the ‘Gillick competent’ Angela in Re Roddy – and (b) the very considerable value to S (and I am not talking here only about pecuniary value) of the arrangements comprised in the Compromise. Overall, in my evaluation, S’s welfare, then and into adulthood, justified, indeed demanded, that I approve the Compromise.

69. Some, perhaps, might think it unsatisfactory, judged from a wider public perspective, that a local authority should be enabled in this way to immunise itself from public discussion and, it may be in some cases, from justified criticism. But that is not, in my judgment, a factor to which I could properly have regard in deciding whether or not to approve the Compromise on behalf of S.

70. There is, as Mr Field has correctly argued, nothing contrary to public policy in the inclusion in a compromise of litigation of such a confidentiality clause, and the same must go whether the litigant is an adult or a child. The protection for the child-litigant is, of course, the necessity for judicial approval before the proposed compromise can take effect, but it is axiomatic that, in exercising this very anxious jurisdiction, the court is concerned with – and concerned only with – the welfare, the best interests, of the particular child. The court is not concerned with, and, save insofar as they may indirectly further the welfare of the child, cannot put into the balance, the interests of third parties or of the world at large. In assessing a proposed compromise the court has to evaluate the benefit it is going to confer on the child. Now ‘benefit’ is a wide and elastic concept and it is not, of course, to be assessed in merely pecuniary terms. Moreover, benefit can be found in circumstances which would leave the untutored layman puzzled (two striking examples in very different areas of the law can be found in In re Clore’s Settlement Trusts, Sainer v Clore [1966] 1 WLR 955 and In re Y (Mental Patient: Bone Marrow Donation) [1997] Fam 110). But however far one can legitimately take the concept, the irreducible requirement is that the compromise must be for the benefit of the child concerned. Whether or not it is for the benefit of others or of the world at large is neither here nor there, not even if it is quite plainly not for the benefit of third parties or of the world at large.

The wider issues
71. As I have already explained, the wider issues and concerns which Mr Hayden and Miss Walker had wished to canvas as part of this litigation, and which indeed founded the decision of the Legal Services Commission to continue funding the proceedings, were set out in their document, ‘Submissions on behalf of the Claimant’, the slightly revised final version of which was put before me shortly before the final hearing on 20 November 2008.

72. Those issues and concerns had to do with children who, like S prior to the commencement of the care proceedings on 31 July 2006, are accommodated in accordance with section 20 of the Children Act 1989. I need not rehearse the statutory regime. As we have seen, such children are, in the statutory sense, “looked after” children, in relation to whom the relevant local authority has the responsibilities and duties set out in the Arrangements for Placement of Children (General) Regulations 1991, SI 1991 No 890, and the Review of Children’s Cases Regulations 1991, SI 1991 No 895.

73. The ‘Submissions’ sketched out the Official Solicitors’ concerns:

“In pursuing the case the Official Solicitor … was … concerned both as to the extent that S’s welfare needs had remained unmet whilst she was accommodated by the local authority and the apparent inadequacy of the statutory safeguards to protect her. Plainly, the latter has potential repercussions beyond the particular circumstances of S’s case.

At the time these proceedings were commenced there had already been growing professional concern, across a range of disciplines, as to the effectiveness of the support and protection offered to ‘Looked After Children’ accommodated pursuant to Section 20”.

74. For convenience, and so that there can be some public record of them, I set out:

i) in Appendix A below the Official Solicitor’s concerns in relation to S;
ii) in Appendix B below the Official Solicitor’s more general concerns; and
iii) in Appendix C below the Official Solicitor’s overall analysis of what Mr Hayden referred to as the lessons to be learned, as set out in the concluding passages in the ‘Submissions’.

75. It was against this background that Mr Hayden invited me, as he put it, to “extend the ambit of the judgment to the wider policy issues which are in part the basis of S’s funding.” He elaborated this in the following terms:

“More importantly however it is an opportunity to ensure that the care given to ‘accommodated children’ nationally is re-invigorated.  This is especially pertinent in the present climate when there are greater numbers of children made subject to the section 20 provisions. From a positive perspective it may ensure that claims of this nature do not become commonplace, if the appropriate lessons are learned. Less positively it sends a signal to local authorities that their actions in respect of accommodated children are not immune from court scrutiny in the appropriate circumstances.”

76. And in this connection he reminded me that, when S’s public funding was under challenge, the Legal Services Commission’s Public Interest Advisory Panel had agreed that the case appeared to present matters of wider public interest.

77. Mr Field, in response, made the following submissions:

i) The claim was for a declaration and damages. It was not a public law action to which CPR Part 54 applies, nor was it a care case.
ii) The parties having reached a compromise there remain no issues between them that require determination by the court. Accordingly, any judgment sought by Mr Hayden is not in respect of issues raised between S and the local authority (or the IRO).
iii) That said, the local authority adopted a neutral position with regard to the submissions on the wider policy issues. In particular, Mr Field made clear that the local authority (a) does not support the submissions, (b) notes that the submissions have no direct bearing upon the claim (which now stands compromised) and (c) does not seek a judgment or any guidance from the court in respect of these matters.

78. Mr Field, understandably, emphasised that, insofar as S was making factual assertions relating to these proceedings in her ‘Submissions’ and in the Particulars of Claim, these were no more than assertions. No admissions had been made by the defendants who, to repeat, had served no Defence. The action having been compromised and stayed there was to be no contest in respect of these matters and no testing of evidence or argument. In short, the parties did not seek any findings from the court.

79. To Mr Field’s compelling arguments on this point Mr Hayden had, at the end of the day, no satisfactory answer. In my judgment there is none.

80. Judges do not decide hypothetical cases. ‘Guidance judgments’, as they have been referred to, no doubt serve a useful purpose when the occasion is right, but their utility derives from their being the product of what Megarry J once memorably referred to (in Cordell v Second Clanfield Properties Ltd [1969] 2 Ch 9 at page 16) as “the purifying ordeal of skilled argument on the specific facts of a contested case.” Here the case has not been contested – it has been compromised – and on these wider issues I have heard no adversarial argument at all. What the fate of Mr Hayden’s arguments might have been if put to the assay, and how the evidence he would have called if the case had not been compromised might have fared, I do not know, and no-one ever will. They might have passed through the purifying ordeal unscathed; but then they might not. I do not know. How then could anything I might say be of any value to anyone? I must, and do, resist Mr Hayden’s siren calls.

81. Accordingly, though I am content to place on record the wider issues as perceived by the Official Solicitor I do so without adding any comment of my own. They must stand or fall on their own merits. It should not be assumed that I endorse them (or any of them); it should not be assumed that I reject them (or any of them).

82. No-one disputed that S’s anonymity should be preserved, as is common practice in such cases, whether brought in the Family Division, the Administrative Court or elsewhere.

83. So far as concerns the local authority, both Mr Hayden and Mr Field, albeit from their very different perspectives submitted – though, I sensed, with somewhat diminishing enthusiasm as the argument developed – that its identity should not be revealed.

84. Mr Hayden submitted that there were two principal reasons why such anonymity was here justified. His first argument was that, if the identity of the local authority was known, it might lead to the identification of S who, it was to be assumed, would eventually return to live in the area. Mr Field disavowed this argument, accepting that there was no need to preserve the local authority’s anonymity in order to protect S’s identify. S, he said, was now an adult and no longer subject to a care order. More to the point, perhaps, he observed that S does not live in Rochdale and submitted that disclosure of the local authority’s identity was unlikely to lead to identification of S.

85. Mr Hayden’s second argument was that, if the local authority were to be identified, it might further add to this and other local authority’s difficulties in recruiting trainee social workers and senior management and thus compound the problems which are in many respects central to the issues in this case. In this connection he sought to apply the analysis in Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, at para [130] – a passage which, it is to be noted, dealt with the position of expert witnesses, not local authorities or social workers.

86. Mr Field put the argument somewhat differently. Referring to Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, at para [105], he submitted that:

“The proper approach is for the court to identify the various rights that are engaged and then to conduct the necessary balancing exercise between the competing rights, considering the proportionality of the potential interference with each right considered independently.”

87. That test, he said, had been refined in Re B, X Council v B [2007] EWHC 1622 (Fam), [2008] 1 FLR 482, at para [15] to be whether there is some proper basis for securing and continuing the local authority’s anonymity.
88. In the light of these authorities, Mr Field submitted that the balance was firmly in favour of anonymity and that there was a proper basis for anonymity because:

i) These were not care proceedings.
ii) There was no judgment criticising the local authority (nor, he said, should there be given that such matters have not been litigated).
iii) There was a strong public interest in maintaining anonymity because there is a public interest in allowing parties to litigation to settle their differences in private and to ensure that such settlements remain confidential (see above).
iv) There was no public interest in identifying the local authority in this case.
v) If the judgment was only in respect of ‘wider policy issues’ and related to local authorities in general rather than to this local authority in particular then there would be no interest, public or otherwise, in identifying the local authority.
vi) There was in existence a lawful confidentiality agreement.

89. I cannot, with all respect to Mr Hayden and Mr Field, accept any of this.

90. In the first place, although I agree with Mr Hayden that if identification of the local authority was likely to lead to the identification of S that would be a powerful argument in favour of preserving the anonymity of the local authority, I cannot, with respect, agree with the premise which underlies his argument. I agree with Mr Field that the naming of the one is not likely (in any sense of that word) to lead to the identification of the other.

91. So far as concerns Mr Hayden’s second argument it is no more compelling today – if anything, even less compelling today – than it was when I rejected very similar arguments in Re F, F v Lambeth London Borough Council [2002] 1 FLR 217. See, for example, what I said more recently in Re B, X Council v B [2007] EWHC 1622 (Fam), [2008] 1 FLR 482, at para [18]. I do not seek to depreciate the very real difficulties that all too many local authorities have to contend with, but surely (to adopt the language of the great Brandeis J so many years ago) the remedy for these ills is not the enforced silence of judicially conferred anonymity but rather the disinfectant power of exposure to forensic sunlight.

92. So far as concerns Mr Field’s submissions I agree with his analytical framework but differ from him, with respect, in his conclusions. The fact that these are not care proceedings can hardly be an argument in favour of anonymity. The fact that there may be no public interest in naming the local authority is, with respect, to put the boot on the wrong foot: see Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, at para [125]. And the confidentiality clause, as Mr Field himself accepts, does not preclude publication of the order, which of course naturally names the local authority. The simple fact, as pointed out in Re B, X Council v B [2007] EWHC 1622 (Fam), [2008] 1 FLR 482, at para [14], is that “current practice shows that local authorities involved in care cases are increasingly being identified” – and if in care cases then surely so in other types of case involving children, whether in the Family Division, the Administrative Court or elsewhere.

93. At the end of the day, no good reason has, in my judgment, been shown to justify maintaining the anonymity of the local authority. I decline to do so.

Appendix A: the Official Solicitor’s concerns in relation to S
94. The Official Solicitor’s concerns in relation  to S were summarised as follows:

“In S’s case it is clear that her mother (the only person who had PR throughout S’s time as an ‘accommodated child’) was not able to exercise it effectively (or perhaps indeed at all) … [leaving S] in a legal limbo, which in S’s case was compounded by the absence of any contact with extended family members.  Not only was S’s mother failing to exercise parental responsibility in any meaningful way, she was also strenuously resisting the local authority’s efforts to encourage her to have contact with her daughter. Contact had plainly been identified by the local authority as in S’s best interests and S herself insisted (at times) to have contact with her mother.”

95. The Official Solicitor asserts that in S’s case, and for the reasons set out in the Particulars of Claim, “It is plain that, as an ‘accommodated’ child her basic human rights were not met.” The ‘Submissions’ continue:

“We recognise that local authorities face enormous pressures in terms of finance, professional resources and recruitment of personnel. The combination of these factors creates fertile ground for “drift” where there are no muscular structures for prompting assessment planning and informed intervention. It is a dispiriting feature of S’s case that the local authority allocated very significant funds in an attempt to provide her with appropriate accommodation and education, but failed to take the rudimentary step of assessing her needs in respect of either. The explanation for that most probably lies in a cluster of 4 factors: 

(1) The supervision of the case by an unqualified and inexperienced worker.
(2) Inadequate line management by a manager who was struggling with an unrealistic caseload.
(3) Frequent changes of personnel at managerial level so that the case had no continuity.
(4) A largely impotent or supine IRO. 

The discovery process in this case revealed that the allocated worker also had significant responsibilities for other cases very considerably beyond her experience and expertise. These are, in our submission, systemic failures.”

96. The Official Solicitor adds this more general observation, commenting that such failures:

“are by no means limited to this particular authority. Not one single referral has been made by CAFCASS in respect of an ‘accommodated’ child since the office of the IRO was created.  There has still not been any case where a child’s circumstances have been referred to CAFCASS post care order, and that despite the fact that the office was created in response to a consistent concern by the courts as to the appropriate remedies to be taken when a local authority failed to implement a care plan which had been approved by the court and on the basis of which the court had ceded its control to the local authority.”

97. Returning to the issue of S’s allocated social worker, the ‘Submissions’ continue:

“In the case of S she was allocated a trainee social worker … The dominant factor in the allocation of that worker appears to have been the local authority’s policy (replicated nationally) to the effect that whilst only qualified social workers would be appointed to cases where there were proceedings before the court (to ensure standards and quality in reports prepared for the court process) unqualified social workers could work section 20 cases. The incorrect assumption developed from this practice appears to have been that section 20 cases are inherently less serious or complex. Even if that were generally true (which we doubt) it is not universally true and the allocation of a worker should be informed by an analysis of the reasons for and background to the initial accommodation, measured against a formalised assessment structure. [The trainee social worker] eventually left this local authority at least in part, because of the stress and complexity of her workload. A periodic review of the suitability of an identified worker to continue to work the case should be mandatory (or at the very least identified as best practice). It is within the experience of every judge within the family court justice system that some cases commence on an apparently simple basis but develop (perhaps unexpected) complexities. That applies at least equally to the circumstances of ‘accommodated children’. In her meetings with her line manager [the trainee social worker] did not volunteer the difficulties she was experiencing. There were however in this case virtually no case notes kept by her. Much effort has been made at the discovery stage to identify those notes until the Defendants were driven to acknowledge that they simply do not exist. Competent line management review and appraisal would have signalled that the worker was not coping with this case. That there was a problem with recording of notes was in fact noted – though not acted upon. The real issue however is that in the absence of any recordings the team manager could not evaluate whether S’s needs were being met at all. It is easy to see from this point in the case how whilst significant resources were deployed, they were never targeted effectively. Nobody in the social services had ever properly addressed the question which comprises the first paragraph of any care plan: what are the identified needs of the child? This of course ought to have been picked up by the statutory review process and the IRO.”

98. Turning to the issue of S’s statutory reviews, the ‘Submissions’ continue:

“Statutory review in S’s case appears to have largely a “tick box” process. 

(a) Basic review proformas are incomplete.
(b) Records of at least two statutory reviews are missing entirely.
(c) There is no evidence of any contribution to S’s care planning by any other professional other than the unqualified social worker …
(d) No action was taken in respect of the delay in the referral to CAHMS.
(e) Though the statutory requirement to provide a personal education plan was acknowledged in the course of review its absence was never remedied. 
(f)  There was never any suggestion that S be referred to a clinical or educational psychologist notwithstanding the fact that she had attended for education on only 14 days in her 2 years as an accommodated child and her behaviour frequently involved excessive alcohol consumption, self harm, illicit drugs and sexual activity with much older men and frequent absconscion from her accommodation. The only existing psychological assessment of S to date reveals her have “early attachment disorder”, “autism” and “cognitive difficulties”.  Her behaviours are, in our submission consistent with such diagnosis. That assessment was ordered by the court following the birth of S’s child L (now adopted). It ought (as set out in the Particulars of Claim) to have been the base line analysis of S’s needs as an accommodated child herself. The speed with which this crucial information was obtained within the court process for L throws into stark relief the deficiencies of the investigations within the section 20 processes. Structures are in place, in this respect, for looked after children, pursuant to the Review of Children’s Cases Regulations 1991 (Arrangements For Placement of Children (General) Regulations 1991), which impose a duty on the social services department to consult with all the appropriate agencies and individuals. The absence of proper records in S’s case rendered it impossible to assess whether or to what extent this was done. It is clear however that information from other services was not transmitted to the review meetings.”

99. In conclusion, the Official Solicitor asserts that “All these factors ought to have been obvious to the IRO.”

Appendix B: the Official Solicitor’s general concerns
100. The Official Solicitor’s general concerns were summarised as follows:

“Children are ‘accommodated’ when parents accept or are persuaded (perfectly properly) that they can no longer meet the needs of their children at home. They may sometimes wish to avoid the instigation of care proceedings where they run the risk of adverse findings being made against them, sometimes with a potentially adverse impact upon other children within the family. The very fact that a parent is unable to care for a child at home ought perhaps to signal that they may not always be well placed to exercise their PR in a child’s best interests at all points within his or her period of accommodation. When such parents do not (as in S’s case) regularly attend the review process that ought, in our submission, to be regarded as a “trigger” to alert the IRO to consideration of the need to instigate proceedings. The absence of parental input in circumstances where PR is not shared with a local authority should be seen as powerful evidence pointing to the local authority’s need to acquire PR. The alternative is that the ‘accommodated’ child whose parents have disengaged is left in a legal limbo.

Section 20 is a provision by which the State can assist rather than intervene in family life where there are identified problems … It can and ought to provide a structure in which the autonomy of family life is respected and preserved. The inappropriate use of it fails to respect or protect the autonomy and rights of the child (as here in S’s case). If it were to become a device to circumvent the scrutiny of the court and the CAFCASS appointed guardian that is likely to excite either judicial review and Human Rights Act applications or may well lead to pressure for legislative reform to curtail the local authority’s exercise of its section 20 jurisdiction (the undesirable consequence of which might in fact be an increase in the number of care proceedings issued). For this reason it is important that the scheme under which accommodated children are assisted should be clear and effective. They require the same access to professional expertise stimulated by independent scrutiny as those children who find themselves subject to proceedings. In the case of S she was allocated a trainee social worker”.

Appendix C: the Official Solicitor’s analysis
101. Mr Hayden summarised the Official Solicitor’s analysis of what he said were the broader messages to be learned from this case as follows:

“(1) Whilst the circumstances of children accommodated pursuant to section 20 may not justify public law intervention, they should not be regarded as automatically less complex. Time should be taken at the outset to identify the child’s needs and ensure that appropriately qualified staff are allocated.
(2) Line managers should keep in constant review the suitability and experience of the allocated worker as the case develops and assess whether he or she remains appropriately appointed to the case.
(3) Up to date case notes should be regarded as essential in every case. This is particularly important as staff turnover can be very high in social services and any new appointee should be able to see at a glance, or at least reasonably quickly, the current issues in the case as well as its history. 
(4) Statutory reviews of ‘looked after’ children must be rigorously conducted. Where action of assessment is recommended, time limits should be set to ensure compliance with a named individual identified to put the plan into action.
(5) Thought should be given, in the case of every looked after child as to whether reviews of the child’s circumstances should be held more frequently particularly at times of crises for the child.
(6) Where parents are not co-operating with the local authority or where they have disengaged, time-limited action should be established to encourage them back to the process.  Where this is unsuccessful, with the consequence that nobody is effectively exercising PR, serious consideration should be given to instigating care proceedings in order that the local authority can assume PR for the child. Indeed, where parents have withdrawn engagement public law proceedings should usually follow in order that a children’s guardian can protect the child’s interests.
(7) A personal education plan is an integral part of any care plan, it would reflect any existing education plan eg statement of special needs, career action plan etc. The plan should specifically:

(i)  ensure access to services and support;
(ii) contribute to stability;
(iii) minimise disruption and broken schooling;
(iv) signal particular and special needs;
(v) establish clear goals;
(vi) act as a record of progress and achievement.

(8) The key worker should co-ordinate, in a proactive manner, all the available information in relation to a child. Not only health and education matters but also information relating to a child’s behaviour from parents, foster carers, teachers etc.  Active consideration should be given on a regular basis to the need for any assessments or referrals eg to CAHMS.  Information from other agencies should be kept on file and clearly recorded. Where an unqualified or trainee social worker has been allocated a case there should be a clear line of responsibility to line managers and senior qualified staff who should bear ultimate responsibility for taking action on all significant aspects of a looked after child’s care plan.
(9) Any assessments or important information should be made available to the IRO sufficiently in advance of statutory reviews to provide him or her with the opportunity to consider them fully. The fact that it is not contemplated that a court or a guardian will review the case files should not mean that any lesser standard is acceptable. Case management and recordings should be regarded as requiring a universal standard of competence either in or outside proceedings.
(10) Where a recommendation is made, or has been made earlier and there has been a failure to comply, the IRO should be proactive in ensuring compliance with timetables, bearing in mind his obligation to make a referral to CAFCASS if he feels a child is not being sufficiently protected.
(11) The IRO should at all times bear in mind that to discharge his function effectively he must have access to all relevant documentation. In particular he should review the social workers’ files and read the records to ensure that they are up to date. Greater participation in the process of care planning would enhance the IRO’s credibility and confidence in challenging the decision making processes of the local authority from a platform of improved knowledge about the child’s individual circumstances.
(12) In line with the recommendations in “Care Matters: Transforming the Lives of Children and Young People in Care”, every child should be allocated a named IRO. The name of the officer should be communicated to the child who, in an age appropriate manner, should be told of the IRO’s function. 
(13) Where parents have consistently failed to attend statutory reviews the IRO should ensure that a planned programme to support their renewed involvement is devised with identified markers to evaluate its success.”