A & S (Children) v Lancashire County Council

A child’s legal status is a welfare issue. Where an adoption plan has failed, a local authority must reconsider the child’s status, family relationships and permanence plan, and return to court where revocation of a freeing or placement order is required. The Independent Reviewing Officer must scrutinise the child’s legal status and care plan, monitor implementation, promote participation and refer the case to CAFCASS where appropriate. Statutory guidance concerning IRO functions must ordinarily be followed unless exceptional local circumstances justify departure. Repeated respite placements may themselves harm a child and must be assessed alongside their benefits.

Two brothers entered the care of Lancashire County Council as infants. Freeing orders were made under the Adoption Act 1976, but no adoptive placement was found. The adoption plan was abandoned in 2004, yet the orders were not revoked for many years. The boys experienced repeated foster and respite placements, loss of family contact, abuse in two placements and ineffective Looked After Child reviews.

The boys brought Human Rights Act proceedings against the local authority and their Independent Reviewing Officer. The parties agreed that declarations, rather than damages in these proceedings, were appropriate. The issues included the effect of the continuing freeing orders, the local authority’s duties concerning family and private life, and the adequacy of the independent reviewing system.

1. Declarations and orders. The court declared that Lancashire County Council had acted incompatibly with the boys’ rights under Articles 8, 6 and 3 of the European Convention, and that the IRO had acted incompatibly with Articles 8 and 6. The claims for damages under the Human Rights Act 1998 were transferred to the Queen’s Bench Division.
2. Legal status and welfare. A freeing order was not a mere legal technicality. It removed the children’s legal membership of their birth family and affected contact, access to the court and procedural protection. Once the adoption plan had failed, the local authority should have applied to revoke the orders and reconsidered the children’s family connections and long-term care.
3. Convention and statutory duties. The local authority had a continuing positive obligation under Article 8 to promote both the possibility of a permanent family and such birth-family relationships as were in the children’s interests. Had the boys been under care orders, contact would have been governed by Children Act 1989 s.34, including court scrutiny of any refusal of contact.
4. Independent reviewing. The IRO was the only independent professional positioned to assert the boys’ rights. The reviewing system failed because recommendations were not monitored or implemented, information was not verified, legal status was not checked, contact was not properly pursued, and the case was not referred to CAFCASS Legal. The IRO function requires sufficient status, training, management, manageable caseloads and access to independent legal advice.
5. Wider guidance. Respite care remains important, but its cumulative impact on the child must be considered. Local authorities must follow statutory guidance unless local circumstances provide exceptional reasons for departure. The court drew attention to children remaining under failed freeing or placement orders, but did not require disclosure concerning children in authorities not before it.