Factual and Procedural Background
Two brothers, referred to as A (aged 16) and S (aged 14), were taken into the care of a local authority as infants and were subsequently freed for adoption by orders made in 2001. Despite initial efforts, the search for adoptive families was abandoned without revoking the freeing orders, leaving the boys legally detached from their birth family but without a permanent adoptive placement. Over 11 years, the boys experienced numerous foster placements, including abusive ones, and suffered considerable emotional and psychological harm. The local authority failed to discharge its duties properly, and the independent reviewing system did not provide effective oversight. The boys’ mother was largely absent, and contact with their birth family ceased early in the process. The brothers eventually separated, with A placed under a special guardianship order with his foster carers and S living in a children’s home under a care order. Human Rights Act proceedings were brought against the local authority and the Independent Reviewing Officer (IRO), Mr H, who accepted breaches of the boys' rights under Articles 3, 6, and 8 of the European Convention on Human Rights. Declarations were made, and damages claims were to be pursued in separate civil proceedings.
Legal Issues Presented
- Whether the local authority breached the boys' rights under Articles 3, 6, and 8 of the European Convention on Human Rights by failing to provide a permanent adoptive placement and failing to revoke the freeing orders.
- Whether the Independent Reviewing Officer failed in his duties to identify and act upon breaches of the boys’ human rights and to ensure compliance with Looked After Child Reviews.
- The adequacy and effectiveness of the independent reviewing system and the local authority’s compliance with statutory obligations concerning looked after children.
- The legal and welfare consequences of the boys remaining under freeing orders for an extended period despite changes in their care plans.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Re W & B: Re W (Care Plan) [2001] EWCA 757; [2001] 2 FLR 582; Re S (Minors) (Care Order: Implementation of Care Plan); Re W (Minors) (Care Order: Adequacy of Care Plan) [2002] 1 FLR 815 |
Recognition of a group of looked after children lacking effective remedy in case of local authority failure; introduction of "starred milestones" in care plans enabling court review. |
The court referred to this precedent in discussing the vulnerability of children like A and S who lack involved relatives and the need for independent oversight of local authority care decisions. |
| S (A Child Acting by the Official Solicitor) v Rochdale Metropolitan Borough Council and the Independent Reviewing Officer [2008] EWHC 3283 (Fam); [2009] 1 FLR 1090 |
Criticism of ineffective and supine performance of Independent Reviewing Officers. |
The court cited this case to highlight professional criticism of the IRO system and its failure to protect children’s interests. |
Court's Reasoning and Analysis
The court conducted a detailed examination of the boys’ care history, emphasizing the harmful effects of prolonged freeing orders without revocation despite abandonment of adoption plans. The legal status under freeing orders severed the boys’ ties with their birth family but failed to provide them with a permanent family, resulting in "statutory orphan" status and significant welfare harm. The local authority breached its positive obligations under Articles 3, 6, and 8 of the European Convention on Human Rights by failing to secure a permanent adoptive placement, failing to revoke freeing orders, permitting degrading treatment in foster placements, and neglecting to promote the boys’ right to independent legal advice and family contact.
The Independent Reviewing Officer failed to identify and act upon these breaches, did not effectively monitor or enforce recommendations from Looked After Child Reviews, and failed to refer the case to CAFCASS Legal. The court accepted Mr H’s candid evidence regarding systemic shortcomings, including excessive caseloads, inadequate training, absence of legal advice, poor supervision, and a tick-box culture that undermined meaningful review.
The court also considered the broader implications for other children under freeing or placement orders, noting the need for local authorities to review such cases. It acknowledged reforms to the IRO system, including statutory guidance and increased responsibilities, but expressed concern about resource constraints and the potential impact on vulnerable children.
The court recognized the complexity of the boys’ needs and the cumulative impact of multiple placement disruptions and lack of family contact on their emotional and psychological development. The evidence of psychological assessments underscored profound damage and the necessity of stable, supportive placements.
Holding and Implications
Holding: The court declared that Lancashire County Council and the Independent Reviewing Officer acted incompatibly with the rights of A and S under Articles 3, 6, and 8 of the European Convention on Human Rights. The local authority failed to provide a permanent adoptive placement, failed to revoke freeing orders, allowed degrading and abusive treatment, failed to provide accurate legal information to IROs, and failed to promote independent legal advice. The IRO failed to identify and act on these breaches and failed to refer the matter to CAFCASS Legal.
The court ordered that the boys’ claims for damages under the Human Rights Act be transferred to the Queens Bench Division for civil proceedings. It granted permission for disclosure of evidence between proceedings and set directions for costs hearings.
Implications: The decision highlights systemic failures in the care and review process for looked after children, particularly regarding the legal status under freeing orders and the role of IROs. While no new legal precedent was established, the judgment underscores the critical importance of effective independent review, proper legal status management, and safeguarding the welfare and human rights of children in care. The court emphasized the need for local authorities to review other cases of children under outdated or inappropriate legal orders and drew attention to the necessity of adequate resources, training, and legal support for IROs. It also acknowledged ongoing reforms but warned of risks posed by resource limitations. The judgment serves as a cautionary example and a call for improved practice to prevent similar harm to vulnerable children.