Tag Archives: Independent Reviewing Officer

The Independent Reviewing Officer

Following the case of Re S in 2002 the House of Lords raised concerns that children were ‘getting lost’ in the care system after the court had made final orders and that this could be a breach of the children’s and parents’ Article 8 rights. For further discussion of this case see our post about Article 8 rights and proportionality.

The Government responded with Section 118 of the Adoption and Children Act 2002 which amended the Children Act 1989 and established the role of Independent Reviewing Officer (IRO).

The IRO Handbook  from March 2010 sets out statutory guidance regarding care planning and reviewing arrangements for looked after children.

The key role for the IRO is to improve outcomes for looked after children by reviewing each child’s care plan, making sure it is effective and to ensure that the child’s wishes and feelings are taken into account.

Section 25B of the Children Act 1989 defines the IRO’s role in this way.  They must:

  • monitor the performance by the local authority of their functions in relation to the child’s case;
  • participate, in accordance with regulations made by the appropriate national authority, in any review of the child’s case;
  • ensure that any ascertained wishes and feelings of the child concerning the case are given due consideration by the local authority;
  • perform any other function which is prescribed in regulations made by the appropriate national authority.

Under section 25B(3), the IRO can refer the child’s case to Cafcass.

The Care Planning, Placement and Case Review (England) Regulations 2010/959 give further details of the IRO’s responsibilities, including making sure that the child knows about his/her rights under the Children Act 1989 to apply for section 8 orders or make a complaint about the LA>

The Good Practice Protocol for Public Law Work sets out guidance for a clear understanding of the statutory roles of Cafcass and the IRO and how they work together.

 

Research about the role of the Independent Reviewing Officer.

2014 Research from the National Children’s Bureau

See this report from March 2014 on the role of IROs in England for the National Children’s Bureau, carried out by the Centre for Child and Family Research at Loughborough University. The research concluded that more could be done to make sure the IRO was fulfilling his or her crucial role of ensuring good planning for the child.

As Mr Justice Peter Jackson commented in the foreword:

It is 10 years since IROs were created in response to widespread concern about children in care being lost to sight. Yet the key conclusion of this study is that the IRO role in ensuring high-quality care planning is still to be fully realised. The report is full of examples of what can be achieved by a well-organised service, but it also uncovers the widespread problems that still exist. Here is how one child describes a review meeting:

“It’s like you’re sitting there like a ghost and there was like normal people in the room just speaking about you and you can’t say anything because you’re just like this ghost person.”

Identification of Important elements to the role of the IRO

  • Professional status and respect, demonstrated both by resourcing the service properly and by openly giving IROs ‘permission’ to challenge.
  • IROs with the right skills, particularly the ability to communicate with children and young people, and to know how and when to challenge.
  • Access to expert advice, including independent legal advice and opportunities for reflective practice.
  • Dispute resolution protocols that work, from informal conversations to the escalation of cases to senior management.
  • Child-centred IROs, who demonstrate their commitment to each child and work out the best way to seek their views.
  • Having a focus on outcomes, and holding agencies to account for their contribution towards these, rather than ‘box-ticking’.

 

Conclusions

Making sure that a child’s care plan is reviewed in a timely fashion was perhaps seen as the area where IROs had the greatest impact. This was one of the reasons why the IRO service was created in the first place, and just because timely reviews could now be taken for granted in most cases, their role in ensuring this happens should not be underestimated.

IROs were also seen as having had an influence on cases on an ongoing basis, particularly on ensuring that the care planning process focused on permanency, was child-centred and evidence based. However, respondents’ accounts reflected the variations in practice and performance reported in previous chapters, and the barriers IROs were facing in operating as intended by the national guidance.

IROs were seen as contributing to improved support and services for looked after children mainly through their involvement in individual cases. And again participants’ accounts showed what difference IROs could make when they operated as intended, but also, their limited ability to make a difference when the service was not implemented effectively. We found examples of IROs having an influence at the more strategic level to improve a local authority’s functioning as a corporate parent. However, this is an area of IROs’ work that seems rather under-developed, and where greater clarity is required about expectations, as well as the creation of structures and processes to enable them to have an input at the strategic level.

Finally, when looking at the difference IROs made to children’s lives, respondents had some understandable difficulties attributing any improvements in child outcomes specifically to IROs, given the range of services involved in supporting children. A difficulty that was compounded by the fact that the IRO service has only recently been subject to strengthened guidance and therefore it is probably too soon to establish if they have made a difference to children’s outcomes. Assessing their contribution is important and some thought should be given, both nationally and locally, to how one can assess if and how IROs do make a difference to children’s lives, using the theory of change model outlined at the start of this chapter.

2015 Research from the University of East Anglia

This report, Care Planning and the Role of the IRO looked at how 122 children’s cases had been managed. They concluded that for the most part care planning had gone well but that there was no room for complacency as problems and challenges continued to arise. The repot noted that it was very important to understand the surrounding circumstances which influenced the way the IRO was able to work as opposed to how the IRO ideally should work according to guidance.

The report noted that it would be unfair to blame the IRO or the LA for some of the persistent difficulties and identified a number of factors that were detracting from good care planning for children:

  • delays in court decision making
  • slow or negative responses from other agencies
  • placement shortages
  • staff turnover
  • high workloads
  • the unpredictability of young people and their families.

Further Reading

For a case where an IRO was criticised for failing to intervene when a LA was not acting properly, see X (Discharge of care order (1)) [2014].

National IRO Manager Partnership – the national leadership body in England for statutory Independent Reviewing Officers (IROs) and IRO Managers. The partnership works with stakeholders, and crucially with IROs and the Local Authorities they are engaged with, to champion the issues that are affecting children in care and care leavers.

 

Proportionality and Article 8 of the ECHR

What does this mean? And why is it important?

to protect individuals against arbitrary interference by public authorities

 

The European Convention and the Human Rights Act 1998

‘Proportionality’ is the key concept to understanding how family law operates.  This comes from Article 8 of the European Convention on Human Rights and Fundamental Freedoms (ECHR).

The Convention is protected by the European Court of Human Rights, which was established in 1959. For a useful introduction to the ECHR see this infographic from Rights Info which discusses the basic structure of the European Court, who it protects and why it matters. For further information and discussion about the scope of Article 8, see the ECHR on-line site. You can get the form to make an application to the European Court and read the guide on how to make the application. 

Prior to the implementation of the  Human Rights Act 1998  (HRA), if you were complaining about a breach of the ECHR, you had to apply directly to the European Court in Strasbourg. Now, the HRA allows the ECHR to take ‘direct effect’ in domestic legislation.

Section 6 of the HRA and makes it clear that ‘public authorities’ – which includes local authorities who want to make applications for care orders – cannot act in a way which is incompatible with the ECHR, unless they are following statute law which they can’t interpret in a way to make it compatible.

If a Judge agrees that statute law is incompatible with the ECHR, he or she can make a ‘declaration of incompatibility’ which means the Government will have to think seriously about amending that statute.

For useful discussion about how Parliament in the UK and the European Court interact, see this discussion from the House of Commons Library blog about parliamentary sovereignty and the European Convention.  

There has been much recent debate about whether or not the UK should keep the Human Rights Act; the perception of some is that we are subject to excessive interference from Europe in the way we want to manage our country. The fears of excessive interference are not reflected by the number of times the UK has been subject to criticism in the European Court of Human Rights. The House of Commons blog says:

Since the Court of Human Rights was established in 1959, it has delivered around 17,000 judgments. Nearly half of these concerned five Member States (Turkey, Italy, the Russian Federation, Poland and Romania) … from 1959 to 2013, (and in purely numerical terms) the UK was responsible for 2.96% of the total violations found by the court (compared to Turkey who has been the worst offender, responsible for 17.75%).

A note of caution – disappearance of ‘human rights’ from the ‘Working Together’ guidance.

‘Working Together to Safeguard Children’ is very important government guidance for all professionals in this field. It was first published in 1999. The 2010 edition contained useful and explicit mention of human rights and reminded professionals that data protection principles often engaged individual human rights.

However, some commentators have noted with concern that the most recent edition of the guidance contains only one reference to ‘data protection’ and no reference whatsoever to ‘human rights’. There is legitimate concern that the boundary is becoming blurred between children who are ‘in need’ and require help and children who are ‘at risk’ and require protection and the ‘air brushing’ out of any reference to human rights in the guidance is thus regrettable.

As Allan Norman comments:

If social workers stop caring about human rights, isn’t that like doctors stopping caring about health or lawyers about justice?

Article 8 – Right to respect for private and family life

The two most frequently encountered Articles of the ECHR in care proceedings are Article 6 – the right to a fair trial – and Article 8. There is clearly some overlap between the two – if your right to a fair trial is compromised in care proceedings, this may have implications for your family life.

Article 8 provides:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Therefore, we can see that Article 8 rights are not ‘absolute’ but can be over ruled when:

  • it is lawful to do so;
  • it is necessary to do so, for example, to protect health or morals.

 

The ambit of Article 8 rights

In Pretty v UK (2002) 35 EHRR 1 at paragraph 61 the ECtHR made the following comment about the ambit of Article 8:

As the Court has had previous occasion to remark, the concept of “private life” is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of the person. It can sometimes embrace aspects of an individual’s physical and social identity. Elements such as, for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by Article 8. Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world. Though no previous case has established any such right to self determination as being contained in Article 8 of the Convention, the Court considers that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees.

With regard to the ambit of ‘family life’ Article 8 covers:

Article 8 ECHR provides that everyone has the right to respect for family life. The European Court of Human Rights interprets the term ‘family life’ autonomously. Forms of cohabitation or personal relationships which are not recognized as falling in the ambit of ‘family life’ in the jurisdiction of a contracting state can still enjoy protection by article 8; family life is not confined to legally acknowledged relationships. The Court is led by social, emotional and biological factors rather than legal considerations when assessing whether a relationship is to be considered as ‘family life’.

How do we decide if Article 8 rights should be over-ruled in a particular case?

This is where proportionality comes into play. It cannot be ‘necessary’ to breach someone’s rights if they way you propose to breach them is well in excess of what is needed to prevent harmful consequences.

For example, in some cases, there are worries that a parent is finding it hard to cope at home and this is having a bad impact on the children. The LA are considering care proceedings, but family and friends offer to help. In those circumstances it probably would not be ‘proportionate’ to demand that this parent give up his or her children for adoption or even  have the children go to live with foster carers for a short time.

A more proportionate response would be for everyone to meet and discuss what they could do to keep the children safe at home.

However, if a child is seriously injured at home and his parents can’t or won’t say what happened, then it probably will be proportionate to remove the child immediately from his parents’ care. 

See our post on interim removals and emergency protection orders.

The issue of proportionality was discussed by the Supreme Court in Re B in 2013 when considering an appeal against the trial judge’s decision that it was proportionate to remove a child for adoption.

115. Into all of this discussion, however, must come the question of proportionality. Significantly different considerations are in play when the proportionality of the decision is in issue. A decision as to whether a particular outcome is proportionate involves asking oneself, is it really necessary. That question cannot be answered by saying that someone else with whose judgment I am reluctant to interfere, or whose judgment can be defended, has decided that it is necessary. It requires the decision-maker, at whatever level the decision is made, to starkly confront the question, “is this necessary”. If an appellate court decides that it would not have concluded that it was necessary, even though it can understand the reasons that the first instance court believed it to be so, or if it considered that the decision of the lower court was perfectly tenable, it cannot say that the decision was proportionate.

For an example of a case where the Court of Appeal thought removing children was not a proportionate response, see K (Children) [2014].

 

Is the Children Act 1989 compatible with Article 8 of the ECHR?

Short answer – yes. For a recent example of when the UK was challenged by Latvia over the legitimacy of its care proceedings, see this post. 

When the Human Rights Act came into force, there was a lot of interest in testing the Children Act 1989 to see if it was compatible with the ECHR.

One challenge was to the fact that once  a care order is made, it is up to the LA to decide how to make it work and the court does not have any power to interfere with those decisions. The House of Lords (as they were then called; they are now the Supreme Court) considered whether or not this was compatible with Article 8 in the case of In re S [2002] UKHL 10. The lawyers argued that the court should continue to oversee what the LA was doing by way of ‘starred care plans’ – which identified issues in the care plan which should be kept under review and brought back to court if necessary.

The House of Lords rejected that argument and held that introducing this new supervisory role for the courts would go far beyond simply ‘interpreting’ the Children Act; it would be introducing a new role for the courts and only Parliament had the power to do that. To entrust a local authority with the sole responsibility for a child’s care, once the ‘significant harm’ threshold has been established, is not of itself an infringement of article 8.

53. The essential purpose of this article is to protect individuals against arbitrary interference by public authorities. In addition to this negative obligation there are positive obligations inherent in an effective concept of ‘respect’ for family life: see Marckx v Belgium (1979) 2 EHRR 330, 342, paragraph 31. In both contexts a fair balance has to be struck between the competing interests of the individual and the community as a whole: see Hokkanen v Finland (1994) 19 EHRR 139, 168-169, paragraph 55.

54. Clearly, if matters go seriously awry, the manner in which a local authority discharges its parental responsibilities to a child in its care may violate the rights of the child or his parents under this article. The local authority’s intervention in the life of the child, justified at the outset when the care order was made, may cease to be justifiable under article 8(2). Sedley LJ pointed out that a care order from which no good is coming cannot sensibly be said to be pursuing a legitimate aim. A care order which keeps a child away from his family for purposes which, as time goes by, are not being realised will sooner or later become a disproportionate interference with the child’s primary article 8 rights: see paragraph 45 of his judgment.

55. Further, the local authority’s decision making process must be conducted fairly and so as to afford due respect to the interests protected by article 8. For instance, the parents should be involved to a degree which is sufficient to provide adequate protection for their interests: W v United Kingdom (1987) 10 EHRR 29, 49-50, paragraphs 62-64.

56. However, the possibility that something may go wrong with the local authority’s discharge of its parental responsibilities or its decision making processes, and that this would be a violation of article 8 so far as the child or parent is concerned, does not mean that the legislation itself is incompatible, or inconsistent, with article 8. The Children Act imposes on a local authority looking after a child the duty to safeguard and promote the child’s welfare. Before making any decision with respect to such a child the authority must, so far as reasonably practicable, ascertain the wishes and feelings of the child and his parents: section 22. Section 26 provides for periodic case reviews by the authority, including obtaining the views of parents and children. One of the required reviews is that every six months the local authority must actively consider whether it should apply to the court for a discharge of the care order: see the Review of Children’s Cases Regulations 1991 (SI 1991 No. 895). Every local authority must also establish a procedure for considering representations, including complaints, made to it by any child who is being looked after by it, or by his parents, about the discharge by the authority of its parental responsibilities for the child.

57. If an authority duly carries out these statutory duties, in the ordinary course there should be no question of infringement by the local authority of the article 8 rights of the child or his parents. Questions of infringement are only likely to arise if a local authority fails properly to discharge its statutory responsibilities. Infringement which then occurs is not brought about, in any meaningful sense, by the Children Act. Quite the reverse. Far from the infringement being compelled, or even countenanced, by the provisions of the Children Act, the infringement flows from the local authority’s failure to comply with its obligations under the Act. True, it is the Children Act which entrusts responsibility for the child’s care to the local authority. But that is not inconsistent with article 8. Local authorities are responsible public authorities, with considerable experience in this field. Entrusting a local authority with the sole responsibility for a child’s care, once the ‘significant harm’ threshold has been established, is not of itself an infringement of article 8. There is no suggestion in the Strasbourg jurisprudence that absence of court supervision of a local authority’s discharge of its parental responsibilities is itself an infringement of article 8.

Reforms following this decision

However, although the House of Lords rejected the idea of ‘starred care plans’, they were troubled by the absence of any identified individual who would oversee and intervene if a LA were not offering good enough care to children after the court hearing was over. This could be particularly serious if a child had no parent who was willing or able to make complaints on their behalf and could lead to an infringement of the child’s human rights.

Lord Nicholls said at paragraph 106:

I must finally make an observation of a general character. In this speech I have sought to explain my reasons for rejecting the Court of Appeal’s initiative over starred milestones. I cannot stress too strongly that the rejection of this innovation on legal grounds must not obscure the pressing need for the Government to attend to the serious practical and legal problems identified by the Court of Appeal or mentioned by me. One of the questions needing urgent consideration is whether some degree of court supervision of local authorities’ discharge of their parental responsibilities would bring about an overall improvement in the quality of child care provided by local authorities. Answering this question calls for a wider examination than can be undertaken by a court. The judgments of the Court of Appeal in the present case have performed a valuable service in highlighting the need for such an examination to be conducted without delay.

The Independent Reviewing Officer

The Government responded with Section 118 of the Adoption and Children Act 2002 which amended section 26 of the Children Act 1989 and established the role of Independent Reviewing Officer (IRO).

The job of the IRO is to improve outcomes for looked after children by reviewing each child’s care plan and ensure that the child’s wishes and feelings are considered. They must:

  • monitor the local authority’s performance of their functions in relation to the child’s case
  • participate in any review of the child’s case
  • ensure that any ascertained wishes and feelings of the child concerning the case are given due consideration by the appropriate authority
  • perform any other function which is prescribed in regulations.
  • promote the voice of the child
  • ensure that plans for looked after children are based on a detailed and informed assessment, are up-to-date, effective and provide a real and genuine response to each child’s needs
  • identify any gaps in the assessment process or provision of service
  • making sure that the child understands how an advocate could help and his/her entitlement to one
  • offer a safeguard to prevent any ‘drift’ in care planning for looked after children and the delivery of services to them
  • monitor the activity of the responsible authority as a corporate parent in ensuring that care plans have given proper consideration and weight to the child’s wishes and feelings and that, where appropriate, the child fully understands the implications of any changes made to his/her care plan.

See our post about the role of the Independent Reviewing Officer for more information. 

 

Further reading/listening

June 2016 – Podcast from barrister David Bedingfield of 4 Paper Buildings ‘Proportionality and Public Law Children Cases’.