Who Cares About Children's Rights?

There has been an increased recognition of the importance of the rights of children and young people. But is that true for children in care? It seems, Hannah Rought-Brooks argues, that few young people in care are able to challenge failures by their ‘corporate parent’ to promote their welfare...

Children in care are a highly vulnerable group: marginalised, often forgotten and voiceless. Care proceedings in the family courts can hold up a microscope to local authority care plans and the difficult decisions about what is in a child’s best interests. The aim is to ensure proper scrutiny of any proposal to remove a child from their home, examine if there are better alternative placements, and what therapy might be required. The spotlight is firmly on the local authority. However, once that process is over, and the spotlight is switched off, what then happens to the children who find themselves within the care system – do they live happily ever after?

Children who have been placed in care have often been removed from violent, abusive or neglectful homes. Others have been taken from parents who are simply unable to look after them because of mental illness or other problems. They are often traumatised, troubled and vulnerable and need to be placed somewhere they can feel secure and where they will be supported and listened to. Yet sadly, this is often very far from the reality , which often involves frequent placement moves, being split up from siblings, placements miles from birth family members and inappropriate, abusive and neglectful placements.

Can the law help?

Over recent years there has been increased recognition of the importance of the rights of children and young people and the need for children to be listened to and given a voice in decision making processes. The Convention on the Rights of the Child, which the UK has signed up to, sets down this recognition in article 12 which provides for the right of the child to express their views freely and for those views to be given due weight. The Children Act 1989 provides very clear duties to local authorities for children in their care. Local authorities must not only provide accommodation but must safeguard and promote their welfare and make appropriate services available to the children.

But after a care order has been made the reality is that many children’s best interests and welfare are not promoted. However, very few young people are able to challenge failures by their ‘corporate parent’ to promote their welfare.

I recently represented a group of four siblings, through their aunt acting as their litigation friend. They had been removed from the care of their mother, a heroin addict and had been placed with foster carers, where over a number of years they had been subject to both physical and emotional abuse. This was subject to an investigation and a report which strongly criticised the local authority for, amongst other things, not moving the children sooner. They were placed with their aunt on an emergency basis but unfortunately she had very little space as she had two children of her own. The aunt wanted the local authority to do something about the lack of living space, as she was prepared to have all four children stay with her permanently and the children desperately wanted to stay with her. Over the course of 18 months nothing was done by the local authority to improve the situation and inevitably the placement broke down. The children have now been split up: the oldest in a leaving care flat, two in separate children’s homes, and another in a foster placement. It goes without saying that the cost of enlarging the aunt’s accommodation pales against the enormous costs of accommodating these four children separately.

A claim on behalf of the children was brought, first to try and get the local authority to resolve the accommodation situation and secondly for Human Rights Act damages for the children under article 8 for a breach of their right to family life. The local authority concerned has now made an offer for fairly considerable damages to the children and accept they may have been slow in resolving the accommodation issue and therefore contributed to the breakdown of the placement.

Is money the answer?

The money is certainly welcome for these children who have been badly let down by the care system and by their corporate parent but it is not what the children wanted. These children wanted to stay with their aunt and they wanted to stay together. The solution, for other children in similar situations, must surely lie in prevention – better accountability of local authorities’ implementation of care plans and greater and easier access to advice and assistance for children and young people to enable them to challenge the local authorities, whether because of bad decisions or simple inertia.

The role of the Independent Reviewing Officer (IRO) could be crucial. The appointment of an IRO is now a legal requirement under section 118 of the Adoption and Children Act 2002, with the government issuing the Review of Children’s Cases (Amendment) (England) Regulations 2004 along with statutory guidance in September 2004. The regulations were published to address the problem identified by the House of Lords in Re: S and Re: W [2002] 1 FLR 815, which ruled out a role for the court in monitoring a local authority’s actions after the making of a care order, but identified a potential lacuna where young children who had no adult to intervene on their behalf and, consequently, no means of initiating proceedings when care plans were not properly implemented.

The IRO’s role is to chair looked after children’s reviews, to monitor the performance of the local authority’s functions and importantly, to refer a case to the Children and Family Court Advisory and Support Service (Cafcass), who may apply to the court if the child’s human rights have been breached, to put right any failings in the local authority’s implementation of their care plan. The aim is to ensure that the local authority makes good these failings, which could be in respect of the suitability or location of the placement, separation from siblings, issues over contact with their birth family or perhaps lack of provision of services such as therapy and education.

Unfortunately, there is real concern about the effectiveness of IROs. The individuals concerned are often employed by the local authority and this inevitably raises questions about their independence and impartiality. It is also regrettable that there is no clarity about the way Cafcass will be expected to deal with cases referred to it. These concerns are borne out by the fact that there have been virtually no referrals to Cafcass by IROs and there is, as yet, no case law in relation to any challenges brought as a result of a referral by an IRO. If IROs are not going to exercise their powers, it is vital that children have access to effective advice in order to turn their rights into practical reality.

Leaving Care

Another issue of concern is how children are treated as they leave the care system. If an ‘eligible child’ ceases to be looked after by a local authority, but is still aged sixteen or seventeen, she becomes a ‘relevant child’. There is a specific duty to support her, by providing her with or maintaining her in suitable accommodation, and assisting her with education, training and employment. Once a ‘relevant child’ reaches 18 (or a child ceases to be looked after at that age), the local authority still owe duties to advise and to provide various forms of assistance, especially with employment, education and training. The Leaving Care Regulations 2001 also provide that a local authority must take reasonable steps to keep in touch with her, appoint a personal adviser, assess her needs and prepare a pathway plan if she does not already have these. Local authority guidance advises housing and social services that there should be a framework for the joint assessment of 16 and 17year olds. These are positive developments, but unfortunately, some local authorities are failing to properly exercise these duties and vulnerable children can and often do, fall through the net.

The case of R (J (by his litigation friend) v Caerphilly CBC [2005] EWHC 586 concerned a 16 year old boy who had served a custodial sentence in a young offenders institution and was entitled to the leaving care provisions, and should have been provided with accommodation under section 20 of the Children Act. In judicial review proceedings brought on behalf of J, the Judge held that not only was he entitled to the accommodation and to a pathway plan, but that the plan had to be very specific and should state the child’s needs and what was to be done about them, by whom and when, and that it was important that the personal adviser was acting in the role of adviser to the child and not in some conflicting role. In R (S) v Sutton LBC [2007] EWCA 790, a teenage girl who was released from a period of detention was provided with accommodation under the local authority’s obligations under part 7 of the Housing Act 1996. The Court of Appeal upheld her claim that the local authority owed her a duty under section 20 of the Children Act and had illegally sought to ‘side step’ its duties by having her declare herself homeless.

The House of Lords in R(M) v Hammersmith & Fulham [2008] UKHL 14 considered the questions of when and why a housing authority should refer cases concerning children and young people to social services for assessment. Lady Hale emphasised that once a section 20 duty has been established, local authorities cannot side-step their additional obligations under section 20 by arguing they are acting under other legislative provisions and made this comment on the importance of the distinction: “there is all the difference in the world between the services which an eligible, relevant or former relevant child can expect from her local children’s services authority, to make up for the lack of proper parental support and guidance within the family, and the sort of help which a young homeless person, even if in priority need, can expect from her local housing authority.” Sadly it seems that too many local authorities are failing to provide support for children and young people leaving care.

Bearing all this in mind it is perhaps not surprising that in a study on child well-being, the United Kingdom was ranked twenty first out of 21 developed countries. If the UK is to improve on this standing it would do well to start with improving the lives of its most vulnerable children.

Hannah Rought-Brooks is a barrister at Tooks Chambers and editor of Socialist Lawyer.

This article can be found in the print edition of Socialist Lawyer number 49, April 2008.