This article originally appeared in the Association of Child Abuse Lawyers Newsletter – Issue 24 (November 2020).

A & S v Lancashire County Council

1. Background

I was approached some time ago to write an article about the case of A & S v LCC [2012] EWHC 1689. I acted for the Claimants in the case which resulted in a damages award of £9.6 million. This eclipsed the previous highest award in a claim of this nature and there were many interesting lessons to be learned from the case.

It is particularly apt that I write this in the same week as the Children’s Commissioner delivers her damning verdict on care provision for children in this country.

2. Thousands of children in care are still being failed by the State

This was the conclusion of Children’s Commissioner Anne Longfield in a report published this week. The report, entitled “The Children who no one knows what to do with” was prepared on the basis of research over a three-year period. A full copy of the report can be found at and is worth a read for anybody working in this area.

Key points from the report include:

• Children are being “systematically let down” by the care system

• There is a “deep rooted institutional ambivalence” to the plight of children in care

• Private carers are making substantial profits while children’s needs are not being met.

• There is a lack of stability with one in four children moving at least twice in a two-year period.

• The Government needs to move quickly to improve capacity, stability, quality and costs in residential care.

The reaction of Iryna Pona, policy manager at the Children’s Society particularly resonated with my own experience of representing clients like A and S.

“Being moved from placement to placement not only makes it more likely children will feel lonely, confused and isolated, it will also leave them increasingly vulnerable to sexual and criminal exploitation especially if they are placed out of their home area.”

I have represented many victims of paedophile gangs in Rochdale and elsewhere. Iryna’s comment is absolutely right. Children are often exploited as soon as they arrive into the care system. Sometimes they are introduced to gangs by an older child where they are living. Sometimes they are exploited because they are at their most vulnerable. The gangs know that a child in a care home is far easier to exploit than a child in a stable home environment.

It was, however, the reference by both Anne Longfield and Iryna Pona to the damaging effect of repeated placement moves that was particularly pertinent to the A and S case.

3. A and S v LCC 21 June 2012 High Court of Justice Family Division

The case of A and S v LCC actually began life with Antonia Love who heads our Family Department. On 21 June 2012 Mr Justice Jackson delivered a Judgment in the case of two brothers who had been terribly let down by the Local Authority. He pulled no punches in his criticism of Lancashire County Council.

A and S had been removed from the care of their parents as infants by the Local Authority. They were freed for adoption in 2001. They remained under the Freeing Orders for 11 years. They passed through multiple placements in that time. A was moved on 77 occasions. S moved 96 times. Mr Justice Jackson described them as “statutory orphans”.

The boys described to me how when they arrived in a new home they would not even unpack their bags because of the certainty that they would be moving on soon.

At paragraph 106 of the Judgment in the Family Court the Guardian is quoted as follows:

“S and A are profoundly damaged by their particular childhood journey through the care system symbolised in their Freeing Order status remaining in place all of ten years later.”

Mr Justice Jackson went on to make declarations that the Local Authority had acted incompatibly with the Rights of A and S as guaranteed by Articles 8, 6 and 3 of the European Convention on Human Rights in 10 respects. The claims were transferred to the Queens Bench Division to be heard alongside claims for breach of statutory duty and negligence.

I have acted for children who have suffered horrific sexual abuse sometimes at the hands of their own parents. I have acted for the victims of grooming gangs and children subjected to prolonged physical and emotional abuse. What I learned from A and S is that a lack of stability can be even more damaging than the more obvious types of abuse.

The evidence of the Child and Adolescent Psychiatrist in the Family Court had already hinted at the terrible damage done to these brothers. In A’s case the frequent moves and experiences of rejection caused emotional regulation problems – a feeling of being unwanted and an outsider belonging nowhere. S was described as having huge relationship problems again with very poor emotional regulation.

4. A and S v LCC 10 December 2018 High Court of Justice Queens Bench Division

Following transfer to the Queens Bench Division there followed six years of litigation before a negotiated settlement was approved in the sum of £9.6 million. This was on the day before a five-day Trial had been due to commence. Many interesting points arose from the litigation.

Impact of a lack of stability in childhood

A and S, like many other children, were removed from the care of their birth family and were left incredibly vulnerable. What they needed was good reparative parenting. What they received were multiple placement moves and a lack of any stability. They never experienced family life nor felt “wanted”.

As a result, they failed to learn the most basic of skills necessary to survive on their own. They are never likely to live independently and will always need some degree of care. They never learned basic social skills. The repeated moves had an inevitable impact on their education and development.

The case highlighted the profound effect a lack of stability can have on a child already vulnerable entering the care system.

Approach to litigation – experts

Unsurprisingly given the findings of the Family Court the Defendants initially adopted a reasonable and collaborative approach to the litigation. Experts in Child and Adolescent Psychiatry and care were instructed on a joint basis. The parties retained their own Educational Psychologist and Court of Protection experts. There were four separate Joint Settlement Meetings and the Queens Bench Division complemented the parties on the collaborative approach to litigation and settlement negotiations.

As the potential value of the claim became clearer however the Defendants attitude to the litigation changed. Unilateral desktop reports were obtained by the Defendants from Professor Declan Murphy (Psychiatrist) and Mark Willis of WPCM Services Care/Rehab). The Claimants objected to their involvement and Her Honour Judge Beech refused an eleventh-hour attempt by the Defendants to introduce this new evidence.

Approach to Litigation – liability

Whilst the Defendants were unable to undermine the Family Division’s findings in relation to HRA breach they did seek to challenge the negligence/breach of duty position.

The case was particularly interesting because of when it was decided. The Court of Appeal had already made their decision in CN and GN v Poole Borough Council and the case had progressed to the Supreme Court. The Supreme Court hearing had taken place but Judgment was awaited.

I do not propose to rehearse the facts of CN here – suffice to say that it deals with pre-removal failings on the part of a Local Authority and the extent to which a duty of care exists. The leading players in CN were also involved in A and S v LCC – Lizanne Gumbel QC for the Claimants and Lord Faulks for LCC.

It is interesting to note that the Defendant attempted to argue in A and S that CN may have relevance not only to pre-removal failings but also to failings when a child is in care.

An attempt was made to delay the Trial in A and S until the Judgment was handed down in CN.

In an application to vacate the Trial the Defendants argued;

“In summary the precise extent of duties owed by Local Authorities and in particular their Social Services Department to children “on their radar or within their care” is to be the subject to careful reconsideration in the Supreme Court in the very near future”.

This attempt to suggest that CN may impact on the duty owed by Local Authorities post removal was unsuccessful. Lord Reed’s Judgment subsequently makes it clear that Barrett v LBC remains the accepted position – a duty of care is owed by a Local Authority as to how the Authority manages a child in its care.

Damages level

Unprecedented damages awards were agreed for A and S because of the lifelong impact of the Defendants failings. In addition to significant awards for Pain, Suffering and Loss of Amenity and Past and Future Loss of Earnings the main damages were in relation to future care costs and the costs involved in managing the funds as both A and S lack capacity. A Case Manager was employed to coordinate care. The lack of care during childhood meant a need for significant care throughout adulthood.

5. Conclusions

A and S v LCC is an extreme example of many similar cases where a Local Authority has failed children removed from birth families.

A typical case involves a lack of a care planning and repeated moves.

Anne Longfield highlights in her report how we are continuing to fail children in care with a lack of stability and multiple placements.

A and S v LCC demonstrates the potential impact of these failings from a damages perspective.

Local Authorities are well advised to ensure that appropriate funding is available to give these children the stability they need. If they fail to learn the lessons from A and S the financial consequences will be significant.

This article originally appeared in the Association of Child Abuse Lawyers Newsletter – Issue 24 (November 2020).