Kent County Council v M and K (Section 20: Declaration and Damages)  EWFC 28
Keywords: s20 care, Human Rights
In this case, Kent County Council were ordered to pay £17,500 damages for failing to assess, give effect to a care plan, provide an opportunity for permanency and issue care proceedings in a timely manner. These failings breached the child’s Article 6 and 8 rights.
FACTS: K was placed in s.20 care in December 2011. Kent County Council issued proceedings seeking a full care order in November 2015. A core assessment had been completed in April 2011, when K was living with her aunt. This assessment concluded that M needed to address her own mental health needs and that K’s relationship with her M was difficult, recording concerns about the impact on her emotional and behavioural development and the likelihood that K may well need some intervention from the primary mental health team. The assessment recommended that M should give parental responsibility to the aunt.
However, in December 2011, K’s aunt notified the local authority that she was unable to continue to care for K and K’s mother (M) consented to her going into s.20 care. Initially, the intent is for K to return to her family. However by January 2012 M and the local authority were in agreement that the care plan had changed to long term foster care. Records of an LAC review in March 2012, indicate awareness of a need for legal advice regarding K’s care status and an intention to seek this and that a legal planning meeting took place in June 2012, but no outcome is recorded. In 2014 it is noted that “the LA have not pursued to change the legal status for K as work was being undertaken with M and she is supporting the care plan”. Later that year it is recorded that the uncertainty and lack of permanency is having a negative impact on K, but that “…a plan of permanency has not been agreed for the IFA placement due to Kent’s current policy on IFA placements…”.
Records from an LAC review in November 2014 record K’s s.20 status and note ‘IRO has asked that LA give consideration as to how her Legal Status could be more secured.’ Also the social worker is to raise with managers K’s legal status and advise IRO of outcome.
Meeting records during the period also record that a core assessment had been completed (referring presumably to the April 2011 assessment prior to K’s reception into LAC). However no updated core assessment was produced for over three years.
The records analysed by Theis J also showed a pattern of statements about K’s need for appropriate mental health support and a referral to CAMHS. However they also record insistence from CAMHS that K be in a settled placement and delays and disruption caused by changes of placement due to K’s problematic behaviour. At one point some limited work appears to have been done by CAMHS with K’s foster carer at the time, although not directly with K and the referral seems then not to have been pursued further. At the LAC Review on 20 November 2014 the minutes confirm that individual support from CAMHS has yet to be offered, note that the social worker is to request senior managers to write to CAMHS to secure appropriate level of service including a definite date for State of Mind Assessment and raises concerns about increased use of restraint and sedatives in K’s previous foster placement, with no further reference to how this was dealt with or whether M was informed.
The ongoing situation and its effects are summarised in paras 34-36 of the judgement which record:
“34. In around June 2015 the LA make a referral to Great Ormond Street CAMHS where they note K has ‘been passed around services for the last 18 months with no real support or assessment in place. The [LA] feel this in unacceptable for K and she needs a professional team to take responsibility for completing an assessment and putting a plan in place to address her needs’. The referral records it has the support of the service manager, Ms Ransley.
35. K’s behaviour deteriorates again and the police are called. She moved to her sixth placement on 10 June 2015 for one night, before being placed with Mr and Mrs M her current carers on 11 June 2015. They are her seventh foster carer in four and a half years.
36. The LAC Review minutes for the meeting on 7 July 2015 record the attendance of Ms Ransley and K and M’s apologies. The referral to GOSH is noted. Under ‘Legal’ it records ‘[K] remains accommodated under s20. Discussions have been ongoing outside of the CIC Reviews with LA regarding this. NB Subsequent to this Review Service manager advised via email that Care Proceedings will be filed in first week of September’.”
LEGAL FRAMEWORK: Theis J refers to two recent cases regarding the use of s.20. In Re N (Children)(Adoption: Jurisdiction)  EWCA Civ 1112 the use of s.20 for a period of 8 months as a prelude to care proceedings was judged to be “wholly unacceptable” and “ a misuse by the local authority of its statutory powers”. “In Northampton CC v AS and others  EWHC 199 (Fam), Keehan J pointed out that the accommodation of a child under a s 20 agreement deprives the child of the benefit of having an independent children’s guardian to represent and safeguard his interests and deprives the court of the ability to control the planning for the child and prevent or reduce unnecessary and avoidable delay. In that case the LA accepted that ‘..the delays and general mismanagement of the case by the LA has been seriously prejudicial to the child’s welfare…’ and ‘a lack of cohesive, comprehensive management and care for the child over a significant period of time’ was in breach of the child’s article 6 rights and prejudicial to his article 8 rights. At paragraph 32 this concession was expressly approved by Keehan J.” (para. 44)
In this case, there was no issue around consent. M clearly consented to K’s accommodation. The claim was founded entirely on the impact on K’s rights to family life and to fair access to legal protections as a result of delay and drift in the actions of the local authority in failing to properly assess and meet K’s needs and to provide stability and the security and protection of the appropriate legal status.
HELD: Theis J found that the LA had acted unlawfully, and in way that was incompatible with K’s article 8 and 6 rights. His reasons were:
(1) The LA’s failure to carry out or update the core assessment for more than 3 years – meaning that there was no secure foundation for care planning.
(2) The LA’s failure to secure appropriate mental health assessments and/or therapeutic support and failure to commission independent private providers
(3) The repeated and unjustified failure by the LA to act on its own decisions for over three years to seek legal advice to secure K’s legal position by issuing care proceedings, which meant K was denied access to an independent guardian and her own legal representation, in circumstances where the LA were not implementing their own decisions about her and the only person with PR was not exercising it in a proactive way. K’s article 6 and 8 rights were compromised by this significant delay.
(4) K’s mother’s entitlement to exercise her parental responsibility did not absolve the LA from actively considering whether to pursue care proceedings. K’s mother was not in a position to use her parental responsibility to challenge the LA’s actions or inactions in K’s interests.
(5) The lack of a formal time limit for the use of s 20 simply does not mean that its prolonged use is lawful in factual circumstances of this nature.
(6) General failures of the care system (i.e. the high rate of placement breakdown generally) do not explain or excuse the unacceptable delay in issuing proceedings, the consequent uncertainty and its impact in increasing the risk of placement breakdown for K, nor the failure to properly assess and support K.
The specific actions/inactions in breach of K’s human rights were:
(1) Failed to properly assess K from March 2012 until July 2015.
(2) Failed to implement a care plan that met K’s needs from March 2012 until July 2015, including ensuring there were sufficient procedures in place to give effect to the recommendations of the LAC Reviews. (Art 8)
(3) As a result of (1) and (2) above the LA failed to provide K with a proper opportunity to secure a suitable long term placement and a settled and secure home life. (Art 8)
(4) Failed to issue proceedings in a timely manner from March 2012 to November 2015 as a consequence the LA deprived K from the protection afforded to children under the Children Act 1989 and access to the court and the procedural protection of a Guardian. (Arts 6 and 8)
Damages for K of £17,500 and costs in relation to the Human Rights claim were awarded against Kent County Council. This included the full costs of a hearing which was delayed solely due to late disclosure (on the day of the hearing) by the LA of relevant documents.
ANALYSIS: This case highlights the hazards for councils who continue to ignore recent judgments on this issue and persist in misusing voluntary s.20 arrangements and failing to seek a full care order when doing so would be appropriate and would safeguard the child’s rights. Recent cases have clearly established the limited scope of s.20 and that it should not continue to be used once the criteria for a full care order have been met. In this case, had a care order been in place: “The repeated failures by the LA to follow through their own decisions would have been subject to effective scrutiny, by the guardian, her legal representative and the court.” (para. 56). By 2015, even the LA accepted the K had been “passed around services for the last 18 months with no real support or assessment in place” (para.69)
The finding that the local authority had breached K’s human rights by failing to secure mental health assessment and treatment is particularly interesting and should get the attention of councils everywhere. The council in this case had made repeated referrals to CAMHS and insisted that CAMHS failures were not their responsibility. Not so, according to this judgement. The risk of repeated placement breakdown was exacerbated by the failure to provide proper mental health assessment and this, in the court’s view, was the responsibility of the LA (rather than the NHS). Essentially, this would suggest, there comes a point where the LA must act to secure the needed services by any means (which is likely to include commissioning private services to overcome the shortcomings of the NHS). This is in line with the SEN case law holding LA’s responsible for the provision of services specified in the educational section of an EHCP where another public body fails to provide them.
More broadly, however, the case is a salutary warning to councils about the consequences of delay, drift and inaction. Para. 51 of the judgement contains this telling comment: “K’s attachment difficulties with her mother needed urgent assessment, and then effective support put in place. That was repeatedly recommended, but not done.”. Such failings are all too common in hard pressed social services offices, but councils would be well advised to consider carefully the risk that the cumulative impact on vulnerable individuals (whether children, as in this case, or vulnerable adults) can breach their human rights.