A case example of IRO and foster carers working to protect children’s rights
A NAIRO member recently worked with this interesting and difficult case, which highlights many important issues for IROs. The salient features of the case are set out below.
Peter, (aged 9) and his sister Susan (aged 5), both of whom have significant special needs, have been living with the Smith family for four years on Care Orders, made to a London Local Authority. (Real names are not used here) The children have had….the same IRO throughout their life in care. Both children have formed safe, secure affectionate attachments with the Smiths (who are committed and skilful foster carers) which the IRO believes should be supported and preserved. They have enjoyed family life with the Smiths during this whole period. They call Mr and Mrs Smith mum and dad. The long term plan, agreed by the court when the Care Order was made in May 2013, and endorsed by subsequent reviews, was long term fostering with the Smiths for the rest of the children’s childhoods. The birth parents support the placement.
There are significant difficulties with Peter’s behaviour. He suffers from autism and ADHD and his behaviour is sometimes aggressive and violent. He is sometimes violent towards his sister and there have been significant concerns for her safety. The Smiths need services and support with Peter’s behaviour to enable them to continue caring for him. In particular, suitable educational arrangements (possibly with a residential component) should be considered. He currently attends a main stream school, where, because of his behaviour, he is taught alone by a teaching assistant.
The IRO was prepared to agree to a plan which would involve the moving of Peter to a temporary placement, hopefully for a short period while further support and interventions were identified, particularly in relation to education. If it proved impossible to provide support that would keep Susan safe, permanent separation may have had to be considered.
Change of Care Plan
A senior manager in the Local Authority wrote to the IRO to tell him that the Local Authority had changed the care plan. They now wished to terminate Peter’s placement with the Smiths, and to rapidly move him to another family placement, just before Christmas. The IRO was told that this amended plan was based on a careful and comprehensive assessment of B’s needs, which concluded that the Smiths were unable to meet these needs. However:
- there was no assessment available
- there was no amended care plan available
Such a dramatic change in plan could not be implemented in law without the agreement of the IRO through the reviewing process (regulation 14, Care Planning Regulations). However, the manager asked the IRO to stand aside from the care planning process for 3 months, to allow the Local Authority to implement its new plan. He was also asked to have no communication with the foster carers. He was told that in the authority’s view, the care plan was not changing – it continued to be long term fostering. Therefore an amended care plan was not necessary, and the matter did not need to be considered at a review.
The IRO was of course not able to agree to these requests. He believed that the changed plan was likely to be highly detrimental to Peter’s interests. He told the manager that he needed to
(a) see the assessment
(b) see the new care plan
(c) consider the matter at a statutory review.
A statutory review was already arranged, but was cancelled by the Local Authority.
The IRO suggested that a way forward to resolve the disagreement, would be to commission an independent assessment. He suggested independent experts who would be able to help.
Referral to the Office of the Children’s Commissioner
The IRO referred the matter to the Office of the Children’s Commissioner (OCC). He was hoping that they would look into the matter and write to the Local Authority urging caution until the matter was properly assessed. He also hoped that they would allocate an advocate for the child. However, following a conversation with a senior manager at the Local Authority, the OCC decided to take no further action. They were apparently told that the child had refused the services of an advocate. Peter’s carers believed this to be untrue.
Referral to CAFCASS
The Local Authority refused to accede to any of the IRO’s requests or suggestions, and the OCC had not been prepared to take the matter up. Therefore the IRO referred the case to CAFCASS. He told CAFCASS he believed the authority’s action to be unlawful, and threatened Peter’s human rights.
The case was allocated to a children’s guardian, who undertook some work in response to this referral.
10 days after the referral to CAFCASS the Local Authority produced its assessment, a so called “Together or Apart” assessment, purporting to justify the new plan. The IRO believed this assessment to be deeply flawed and an unsafe basis for decision making. He informed CAFCASS of this view.
3 days after the receipt of the assessment, the CAFCASS guardian prepared a report, based entirely on the contents of the assessment.
The IRO was surprised that CAFCASS believed the Local Authority position was reasonable and that the proposed placement move was in Peter’s best interests. The guardian did not discuss the matter with the IRO or the carers. Nor did she make any attempt to discover the wishes and feelings of the child.
The IRO believed the position that CAFCASS took was unreasonable.
- They did not take seriously the unlawful nature of the authority’s plan
- They did not heed IRO warnings about the poor quality and unreliability of the authority’s assessment
- They acted in clear breach of their own procedures and guidance in dealing with the referral
There was no further intervention from CAFCASS on Peter’s behalf.
NAIRO is following up with CAFCASS concerns about this case.
The Local Authority intended to proceed with its plan and move Peter to a new family one week after the receipt of the CAFCASS report. Legal advice was that the IRO’s only access to the court was through CAFCASS, and since CAFCASS were taking no action, the IRO was effectively neutralised.
However, the carers could take the matter to court as Peter’s litigation friend. They were so concerned about the potential detriment to Peter’s welfare, and the breach of his rights, that they agreed to do this. 2 days before the intended move an application by the carers was heard in the High Court, that Peter’s Article 8 rights to family life were in danger of being breached. The court made an injunction restraining the Local Authority from moving Peter from the Smith family pending further information being available. The court also appointed the IRO to replace the carers as Peter’s litigation friend. They also appointed an independent expert to report to the court on the matter.
The Local Authority subsequently completely changed its position. 4 weeks later, they reported that (despite their comprehensive assessment) they now believed it was in Peter’s interests to live with the Smiths for the rest of his childhood. They would support an application from the Smiths for Special Guardianship. They subsequently agreed to fund a placement for Peter at a residential school for children on the ASD spectrum. Because of these concessions and on the basis of various agreements and undertakings by the Local Authority, the matter was withdrawn from proceedings.
The carers were thanked and congratulated by the court for their care and commitment.
Conclusions – Some Key Issues for IROs
The local authority action was clearly unlawful and was contrary to the interests of the child. It needed to be challenged very robustly. Of particular concern were:
- The attempt to sideline the IRO to enable a new plan, not agreed by the reviewing process, to be implemented
- The unlawful attempt to proceed with placement termination without a review
- The attempt to fetter the communication between the IRO and foster carers
The referral to the Office of the Children’s Commissioner did not yield a positive outcome. We have had subsequent communications with them, when they agreed they might have handled the matter better, and would do things differently in the future
The response of CAFCASS was highly unsatisfactory.
- It did not regard the unlawful action of the authority to be important
- It accepted and nodded through in an unquestioning way, the assessment of the authority, despite the warning of the IRO, and without consulting with those who should be consulted
- It was in breach of its own protocol
NAIRO is taking these matters up with CAFCASS and have had a constructive response from them.
Legal advice was that the IRO was effectively neutralised by the failure of CAFCASS to take the matter forward. The IRO had no standing in the court and could not take the matter further. However, the carers could take the matter further as the child’s “litigation friend”, which proved successful. It illustrates the need for IROs to work closely with carers where necessary.