In 2012 I represented the boys in Mr Justice Jackson’s landmark decision A and S v Lancashire County Council [2012] EWHC 1689, [2012] Fam Law 1315. The two teenage brothers had been in care since their early childhood. The court found that Lancashire County Council and an IRO had breached the boys’ human rights. The children had experienced frequent moves and abuse by foster carers. Although they had been freed for adoption, adopters were never identified and the freeing orders remained in place for 11 years. Links to the boys’ families were severed. The IRO was held personally responsible as he had not challenged the local authority’s failure to implement its care plans and review decisions.

While the case, and the ensuing judgment, raised wider questions about the professional status of IROs, caseloads, training and access to independent legal advice it also raised wider issues, particularly as to the existence of more ‘statutory orphans’ and whether other children faced the same plight as A and S.

Having come into effect in January 1998, freeing orders remained available for 9 years, essentially extinguishing a child’s membership of his/her birth family, entrusting sole parental responsibility to the local authority as adoption agency. Suffice it to say, any child who remains freed today has been a ‘statutory orphan’ for more than 7 years. The freeing order cannot be an accurate reflection of their care plan.

On behalf of A, I made Freedom of Information Act requests to the 23 local authorities in the North West region to ascertain how many other children were in a similar position to the boys.

The Act, not frequently used by family law practitioners, confers the right to ask any public sector organisation for all recorded information on any given subject. There is no restriction on the category of person who can make such an application. In the family law arena this opportunity extends beyond local authorities to schools and other government departments. The process is straightforward and effective. There is provision for a response within 20 days and a request will only be turned down if the cost to deal with the request is more than £450. In those circumstances, there is a review procedure if the information is not provided and the Information Commissioner’s Office will assist if you remain unsatisfied.

Sadly, the responses to my requests made for alarming reading as A and S were not the only ‘statutory orphans’ in the North West. As a result, Mr Justice Jackson sent a copy of his judgment to the Children’s Commissioner, to the President of the Family Division and to all Designated Family Judges in the North-West. In addition, I was given permission to send a copy of the judgment to the Directors of Social Services in the North West region.

The Freedom of Information Act is certainly a little-used remedy that has served, in this case, to greatly assist ‘statutory orphans’.

By Antonia Love, Family Law Solicitor

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