WRITTEN SUBMISSIONS ON BEHALF OF SWITALSKIS CORE PARTICIPANTS IN THE INDEPENDENT INQUIRY INTO CHILD SEXUAL ABUSE IN LAMBETH
- These submissions are divided into the following sections:
- Summary on the Extent of Child sexual Abuse in Lambeth;
- The death of LA-B2;
- Michael John Carroll and North Wales;
- The position of children in care and recommendations;
- Criminal Justice System;
- Civil Justice System and the Lambeth Redress Scheme;
- Conclusions and Recommendations for Training, Regulation and Mandatory Reporting.
The Extent of Child Sexual Abuse in Lambeth
- The Inquiry has heard detailed evidence for 4 weeks followed by short oral submissions. The details of what happened to our Core Participants (“CPs”) are referred to in the Thematic Gist Table produced by the Inquiry legal team after consultation with Core Participant legal representatives. Its contents will not be repeated here, but below follows a summary of the conclusions that can be drawn from this and from the evidence before the Inquiry; and following that, written submissions on matters which came into focus during the Inquiry of particular concern to our CPs and included in each section, our recommendations for change.
- There can be no doubt that for decades the London Borough of Lambeth was beset by poor practice, corruption, racism, inadequate management and repeated failures to make the changes that were repeatedly highlighted as necessary. In this unhealthy environment the physical, psychological and sexual abuse that was already taking place, for example, to LA-A305 in the late 1950s/early 1960s was able to continue and then to flourish.
- From the time that Lambeth Council was created in 1965 the result was the widespread sexual abuse of Lambeth children over decades by multiple perpetrators, mostly males but sometimes female. Some older children also abused younger children, such as LA-A302, LA-A303, LA-A310 [Thematic Gist table E15], LA-A324, LA-A327 (who gave live evidence on 6 July 2020) and LA-A217.
- LA-A304, her brother and another boy were forced to engage in sexual activity with one another by the man who sexually and racially abused them [Thematic Gist table F35; H35]. In LA-A299’s case (who gave live evidence on 1 July 2020) his rape by an older boy was orchestrated by an adult who then watched him being raped.
- Even abuse which might at first appear to have been opportunistic (for example, the rape of LA-A305 in swimming pool changing area) can only have happened because the perpetrators had been informed of the availability of children to abuse and had been encouraged to do so. Even though the abuse was hidden from many at Lambeth it was coordinated, well-organised and so deeply embedded that it had become part of its culture.
- The abusive treatment of children began as soon as they entered care. Their abuse continued and their abusers became virtually untouchable. The damage done to those who suffered child sexual abuse has been long lasting and extensive, undermining their very identities, whether because they were told that their parents did not want them, that they were nothing or because they were racially abused.
- The sexual abuse affected not only them, but also their families. Children were removed from their homes, often without any or adequate explanation of what was happening. Many were separated from siblings, the only link they had to home, again, without any or adequate explanation.
- While there has been widespread reform in the procedures, rules and laws governing the care and protection of children, it is clear that even before they were abused, the most vulnerable in society were treated with total disregard for their mental and emotional health and well-being. What happened to the Core Participants we represent and many others, raises many questions about how Lambeth, as a corporate parent, and by logical extension, how the wider society of which it is a part, both as an institution and as a group of individuals responsible for the care of children, regarded such children.
- In summary, we say that the admitted failures by Lambeth in corporate parenting are, in part, a reflection of society as a whole. These children simply did not matter; they had no one to speak up for them. Their parents as a group did not have a collective voice: they were not members of an influential group who could necessarily use their votes to change the behaviour of those in their local government. They were not powerful people who had the ability to lobby or influence their local politicians. It is hardly surprising then, that the status of these “have nots” was: “out of sight, out of mind”. Their experiences of abuse situation were exacerbated by:
- Complex political structures;
- A lack of clarity about the responsibilities of senior management and the chain of command;
- A lack of any real interest by those who had the power and oversight over children’s services, with some exceptions;
- Very poor social work, again, with some exceptions.
- Historically, senior officers have been willing to admit to failures and to take credit for proposed remedial action and policies which were supposed to protect children but such admissions meant little because for decades Lambeth failed to implement the changes that were so urgently required. Too often, after Social Services Inspectorate or an Inquiry, senior people moved on and little or nothing was done. There have been too many missed opportunities.
- The attitude to the children in Lambeth was also characterised by a failure of imagination and empathy: you do not need to know about paedophilia and grooming as concepts to consider children are or may be at risk. The Sexual Offences Act 1956 contained a variety of offences against children so such concepts were not new. If anyone had cared to listen properly to these children at the time, for example, LA-A7 among (but there are many others) who complained to staff and police, Leslie Paul, whose prolific abuse included photographing and filming children could have been stopped from abusing more children. By the time he started work at South Vale Children’s Home on 3 September 1979, s1 of the Protection of Children Act 1978, which prohibited the taking of indecent photographs of children, had been in force for over a year and should have been fresh in the minds of those whose duty it was to look after children and protect them. In this case, the Local Authority and the Metropolitan Police. Instead, warning signs and complaints were ignored or not properly followed up.
- It is appreciated that there were many difficulties faced by those working for Lambeth, but those who have attended this Inquiry at SW and senior level and have said, by way of explanation or excuse that they were not aware of the risk or existence of sexual abuse insult those who suffered forms of abuse that were recognised by the law and punishable by sentences of imprisonment.
- Document OHY008782 is a Report to the London Boroughs Children’s Regional Planning Committee regarding a child sex abuse ring in Kilburn, North West London and part of the London Borough of Brent. The report dated 5 October 1989, was disclosed to CP legal representatives after the public hearing had concluded. It is not known whether any Lambeth Officers or elected members had seen this report, but it is reasonable to infer that this is likely. The report was to be circulated because the purpose of the meeting was to explore issues of child sexual abuse and there was a recommendation to share information with other London Boroughs which had previously been made by Peter Bibby on 12 July 1989, following a MPS investigation into a paedophile ring that had started in 1987.
- Those we represent want Local Authorities to be held to account and in as detailed below, ask the Inquiry to recommend changes to the law and current regulatory provisions.
THE DEATH OF LA-B2
- LA-B2 died between 17 and 18 October 1975, unnecessarily, as a result of compression of her neck just a few days before her first Birthday. The circumstances of her death suggest strongly that it was the result of neglect. While no evidence has been obtained to suggest that LA-B2 was sexually abused, her death is relevant to the issues before the inquiry because it is evidence of the general state of neglect of children’s homes in Lambeth at the relevant time; and the bleak outlook for children who were unfortunate enough to be placed in them.
- Regrettably, LA-B2’s inquest file, which would have included relevant evidence such as witness statements and the Coroner’s report, no longer exists (please see references to DI Simon Morley’s statement below) but a significant amount of relevant information is known about her death, some of which Counsel to the Inquiry put to DI Morley when he gave evidence on 22 July 2020:
- The identities of the staff on duty on the night/early morning LA-B2 died were known [INQ005873_05];
- A summary is available of the actions of each member of staff who had been at work at the time; and
- There was no justification for using the harness on LA-B2:
- It is unlikely or at least unclear that the harness, apparently a Clippasafe harness was being used for its intended purpose (either on LA-B2 or on the other children over the age of 3 on whom it was used – apparently to prevent them getting to the fire escape stairs) [Exhibit LA A243 1, p31 (internal p2): report of final meeting of the Social Services Committee as part of its Internal Inquiry into LA-B2’s death, dated 9 December 1975];
- LA-B2 was crying and it was felt better to place her in a bedroom on an upper floor with younger children from the age of 2 under the age of away from her sister and school age children as she might disturb them (even though the night of 17 to 18 October 1975 was a Friday/Saturday) [INQ005873_26];
- Even though she was a child under the age of 1 but still mobile, she was placed in an upper bunk and harnessed to the bunk bed when the risk of her slipping out of the harness either partially and completely and falling or entangling herself in the harness was or should have been obvious;
- LA-B2 was known to sleep on her stomach but was placed on her back when it was also known that she “sometimes tended to wake up again after being settled down” [INQ005873_27];
- It was known by the member of staff who put LA-B2 to bed that if a child in a harness tried to lie on its stomach, it would be in difficulty by getting tangled up [INQ005873_40];
- It was known that LA-B2 was or had been suffering from an upper respiratory tract infection (making it more likely she would become unsettled or wake during the night, even if Phenergan, a sedative, had been administered);
- There was no or no adequate supervision: there were no night staff at the Home. It was said that there was always an officer sleeping within hearing of the nursery, but on the night of LA-B2’s death the person who slept closest to the nursery was off duty at 3 p.m. on 17 October and returned at 8.15 p.m. then slept with her door closed. The member of staff on call slept downstairs on the floor below LA-B2 and could not hear the children. No checks were made between 9pm and the following morning when she was found dead. [INQ005873_05]; [INQ005873_27]; and
- It was accepted by the Social Services Committee that:
- the bunk bed and harness should not have been used;
- neither the lower nor upper bunk of a bunk bed should ever be used on a child of LA-B2’s age;
- a harness of this type should not be used on a child of this age, on a cot or on a bed [INQ005873_28].
- In his evidence to the Inquiry on 22 July 2020 DI Simon Morley agreed that there was clear evidence that a crime may have been committed and it should have been investigated as a crime by the police at the time [transcript p106-107].
- He agreed that it would be a reasonable starting point to say that if what happened to LA-B2 were to happen today, as well as an investigation into the acts and omissions of individuals, it would be appropriate given the appalling circumstances of LA-B2’s death, to investigate whether Lambeth, as a corporation, had committed corporate manslaughter. He then said that one would have to look at all of the details and the circumstances and that while this was his personal opinion, one would need to ask that question of a more senior and more experienced detective, possibly from one of our murder teams.
- DI Morey said he had not seen any of LA-B2’s files and could “get an opinion from one of our murder investigation teams, and I think that would be more benefit to the inquiry than me attempting to be helpful with my personal opinion and with my experience and my background.”
- DI Morley has provided a ninth witness statement to the Inquiry [MPS004574], dated 31 July 2020, in which he sets out the enquiries he made to obtain further information about LA-B2’s death. On behalf of the CPs we represent, we are grateful for DI Morley’s efforts. He found that, unfortunately, the Coroner’s file was held for 15 years before being destroyed (in 1990) and states that that the Metropolitan Police Service does not retain Coroners’ files so that details of the identities of the police officers involved at the time and copies of any witness statements taken no longer exist.
- It is plain that information relating to child abuse, including child sexual abuse continues to emerge years after the events themselves took place. To find that potentially relevant evidence no longer exists because it has been destroyed is highly unsatisfactory, although it is acknowledged that this situation might not arise today.
- Given that relevant original documents have been destroyed, DI Morley also indicated that without access to the relevant witness statements he is unable to say what information they contained, what other steps, if any, police took in investigating LA- B2’s death and therefore what evidence was available to the police in 1975. The MPS do not retain copies of Coroner’s files. As a result, he is unable as a result to comment on the quality of the police investigation at that time: witness statement MPS004574, page 13, para. 32.
- DI Morley acknowledged that if a death such as LA-B2’s death occurred today in a children’s home, he would expect the first police officers on the scene to secure it and arrange for the attendance of a Detective Sergeant or Inspector, who would in turn request the attendance of the Homicide Assessment Team. He commented that it is not unusual for the death of a young child to be disguised by those responsible as an accident and the assessment and investigation of such tragic incidents requires specialist expertise and experience [DI Morley’s 9th witness statement MPS004574 p13, para. 34(a)]. While thankfully rare, unexplained or suspicious deaths of children in circumstances which may not at first appear to be so, do occur. There is a recent example in which police failed to take the steps that DI Morley suggested were necessary would expect: London Borough of Southwark v US, also known as Re L (A Child)  EWHC 3707. This was a case in which a child was discovered dead in her bedroom in the family home, having died from compression of the neck. The police failed to treat the scene as a crime scene and the lead investigating officer closed his mind to the idea that her death could have been the result of a homicide.
- What happened to LA-B2 and indeed, the Re L case, suggest that even today, whenever a child dies, those responsible for investigating the cause of such a death must vigilant and keep their minds open to all possibilities, so that a full and thorough investigation can take place. Sadly, it does not appear that this was the case for LA-B2 and the jury’s open verdict is likely to have been a reflection of their concern about this.
- DI Morley is unable to provide a definitive answer to the question of whether the circumstances of LA-B2’s death provide grounds to investigate Lambeth Council on suspicion of corporate manslaughter, as it would depend upon the evidence available. He states that he would be happy to refer this matter to the Metropolitan Police Services Specialist Casework Investigations Team for further consideration and examination, should further information about the circumstances of LA-B2’s twos death be provided to him.
- Although DI Morley’s willingness to assist is appreciated, those who would wish LA-B2’s death to be investigated are left in an impossible position: without relevant evidence the police are apparently unable to comment or take matters further; but without further steps being taken by those with the ability to investigate such matters it is unlikely that it will be possible to obtain such evidence.
- The Metropolitan Police are therefore invited to reconsider the file exhibited to LA-A243’s statement, which contains details of the identities of the staff who were working at the time and to check whether there is any record of any investigation, perhaps stored or archived on microfilm. Efforts should be made to trace such people to see whether they are still alive and whether they have relevant evidence to give before any conclusions are drawn about the availability of relevant evidence and the MPS has the means and the ability to make such enquiries. Without such steps being taken, the injustice of LA-B2’s death will continue. The available information suggests that there is a clear case to answer for gross negligence manslaughter and every reasonable effort should be made to carry out a thorough investigation.
MICHAEL JOHN CARROLL AND NORTH WALES
- Michael Carroll abused children over many years. The Inquiry has heard detailed evidence of how this was able to happen and about his contact with political figures such as Lord Paul Boateng.
- We submit that there is insufficient evidence to suggest that any named political figure has been involved In child abuse, however the very fact that members of the political class and/or the establishment and/or the management of Lambeth Council would only have served to emphasise to Carroll’s victims, that he was untouchable and unaccountable.
- It is clear that Michael Carroll was able to perpetrate abuse for several reasons:
- Lambeth had no proper system in place for verifying declarations about the lack of any relevant previous convictions so it failed to uncover his deception in obtaining employment when he’d failed to disclose his Schedule 1 offence against a child; that was left to another LA, Croydon Council;
- He made himself indispensable and appears to have had a reputation for working with challenging children, becoming a “go to” man in Lambeth. In short, he made himself indispensable.
- He was one of several people who were utterly corrupt and most likely corrupted others.
- When concerns were raised about him, for example, by Anna Tapsell. This stifled the ability of others to speak out.
- Carroll was able to run Angell Road CH like a private fiefdom and in effect had free reign to abuse children. Even though senior management at the Council such as Robin Osmond visited the home, the children who lived at Angell Road were at that time beyond help and assistance.
- Thus, Carroll was easily able to groom and then attempt to care for (by either adopting or fostering) siblings LA-A181 and LA-A109 and to groom their father in the early 1980s. [LA-A109 witness statement, INQ005956, para 106-110; Thematic gist table F29]. If Lambeth had had an effective system to discover previous convictions in place, it would have known about this. Given that Lambeth negligently continued to allow Carroll to have contact with children when he attempted to foster two brothers in 1986, it is not possible to say that contact between Carroll and LA-A181 and LA-A109 would have ceased if his conviction had been discovered earlier, but he could have been prevented from grooming and abusing them.
- We submit that the social workers involved with LA-A181 and LA-A109’s family failed to consider whether it was appropriate for Carroll, who signed a written agreement indicating that he would be involved in supporting the family, to continue his involvement with the family.
- From document LAM030357, a Lambeth Officers Report regarding LA-!109 and LA-A181 dated 12 May 1981, disclosed to CPs on 21 August 2020, it is clear that the children, who were living at Highland Road Children’s Home, continued to visit Carroll, who had started work at Angell Road Children’s Home in January of the same year.
- It is at the very least surprising and concerning that the social workers involved, Simon French (deceased) and Chris Hussell, did not consider that a conflict of interest might arise between him supporting a family and at the same time working in a role that required him to safeguard and care for children. Questions should have been asked about the arrangement but instead, the proposed arrangement was met with bind acceptance by Lambeth staff.
- Once Michael Carroll’s conviction had been discovered and Lambeth had been notified of it, those at a senior level were either unable or unwilling to appreciate the significance of his offence and of his dishonesty; and the motivation for withholding such information. It is now known that the person presenting Carroll’s case on behalf of Lambeth was himself involved in dishonesty, but that does not explain why senior managers did not take even rudimentary steps to safeguard and check on children with whom Carroll was or had been in contact.
- Even after this was discovered in April 1986, Lambeth failed to take appropriate action at his disciplinary hearing and shockingly, certain people at Lambeth continued to support his application to foster.
- There was an unquestioning “carte blanche” acceptance of Carroll’s version of events of “horseplay” explanation: minutes of the SSI report, CQC000298 referred to in evidence by David Pope on 8 July 2020 [transcript p47].
- The approach of Lambeth contrasts to that of the London Borough of Wandsworth, which concluded that the Carrolls were not appropriate people to be foster parents and was concerned that Lambeth had allowed the children in question to effectively live with or stay with the Carrolls for long periods of time as their social uncle and aunt. [Transcript 8 July p57].
- Instead, the approach of those in power at Lambeth lacked rigour, (David Pope) and focused on the result it wanted to achieve (the Senior Children’s Homes Officer Mr Thomas): to keep Carroll employed and as far as some were concerned, to allow him to foster the children in question, rather than on the evidence before it. Overall, this was a superficial, corrupt (by Thomas) and “clubby”, “we’re all in this together” approach to the investigation and disciplinary process. No independent advice was sought and no effective scrutiny of the evidence took place. Mr Pope, who chaired the disciplinary process, did not even call for Carrol’s personnel file. The result was a foregone conclusion: Lambeth failed to dismiss Carroll and chose instead to only impose a final warning.
- The result was that Carroll was not dismissed for another 5 years until 31 August 1991, during which time he was in a position to continue to sexually abuse children.
- All of these matters are evidence of a lack of imagination, poor judgment, a somewhat arrogant attitude and amount to a shocking dereliction of duty.
- The Inquiry is by now aware of the consequences of such attitudes and failures in childcare. Much remains as yet, unknown but CPs have given evidence of what was, in effect, over years, commercialised child abuse that included the taking of photographs and the filming of abuse (Leslie Paul among others). Further, the networks spread much further than London and the South East.
The North Wales Connection
- On 23 July 2020 Helen Kenward of CHILE confirmed in her oral evidence that Carroll was linked to other known paedophiles around the country, who were also involved in the residential care of children [transcript 23 July 2020 p95]. Therefore, it is unlikely to be a coincidence that some children were treated as chattels and sent to homes in North Wales for the purpose of sexually abusing them or at least in the knowledge that this is what would happen. Serious child sexual abuse was already taking place there, as is known from the Waterhouse Inquiry.
- Ms Kenward also said in evidence that: “Carroll was a charismatic person who could be either dominant and bullying or seductive and charming. He was well known in Lambeth, but he was also known on the residential scene, and he was a member of the Residential Care Association. Now, that brought him into contact with a whole range of people, and I know, for instance, that people like Frank Beck were part of that organisation. Because of my previous experience in other investigations — Nottingham, Cleveland, and so on — I knew that that was a meeting place for many people, but also for paedophiles.” [transcript p95].
- Brothers LA-A109 and LA-A181 were taken on at least one trip to North Wales by John Carroll. LA-A181 was abused there and he suspects LA-A109 was too, although LA-A109 does not mention this [Thematic Gist Table F8; witness statement of LA-A181, INQ005683 paras 23 onwards].
- LA-A311 was sent to live in Ynys Fechan Hall in Gwynedd, a private children’s home in North Wales where he was subjected to excessive physical punishment/physical abuse; sub-standard food; poor supervision by staff, who drank alcohol and held parties; and used as in effect, unpaid slave labour under the guise of “work experience”. This was prioritised over very limited education from unqualified care home staff or associated of staff which took place only part time and consisted of copying things out from a blackboard
- LA-A311 witnessed his roommate being sexually abused in bed by a man in LA-A311’s presence and on another occasion LA-A311 was sexually abused by the same man [Thematic Gist Table E14, F14, H14, J14; witness statement INQ005591, paras 35-39].
- At the time Carroll was working, the oversight of placement of Lambeth children in private and voluntary accommodation was lamentably weak to non-existent. On 3 July 2020 transcript [transcript p84] Mr Osmond, the former Director of Social Services, was referred to paragraph 1 of LAM028400_3, a Placement Officer’s Report dated 17 November 1988 in which a Mr Byron said that:
“Monitoring and control systems …” (of children being placed in private and voluntary accommodation) “… simply did not exist. This state of affairs 3 did not result overnight but would appear to be the result of years of neglect and inefficiency.”
- Mr Osmond admitted he was not aware that there was ineffective monitoring of placements at of private or voluntary organisations but did not take responsibility for this and instead sought to place responsibility on Lambeth social workers (transcript pp85-86). Clearly, those in senior management roles at the Council, who should have been aware of the situation, were not. Nor did they at that time check that there was an effective system for monitoring in operation and Mr Osmond’s response to the questions about this demonstrate that not only was there a lack of oversight, but a lack of interest in such matters.
- Such failures had a direct effect on the CP’s we represent and undoubtedly on many others.
CHILDREN IN LOCAL AUTHORITY CARE
Children on the Cusp of Going into Care
- The evidence before the Inquiry shows that children in Lambeth were at risk as a result of poor social work practice and poor management both before, during and after they were in care.
- In Counsel to the Inquiry Ms Langdale QC’s opening on 29 June 2020 she referred to a Social Services Inspectorate report, the inspection of Child Protection and Planning and Decision Making for Looked After Children in May to June 2000 (LAM029179), [transcript pp99-100].
- The overall impression was of a Children and Families Division struggling under considerable and relentless pressure. In many areas, basic work systems were functioning poorly or had collapsed. This led to inefficient, fragmented and inconsistent work practices. The SSI noted:
“We were particularly concerned about potentially large numbers of children who had not properly been regarded as looked after. They had not been allocated a social worker, were not placed with approved carers and had none of the protection afforded by visiting, monitoring or statutory reviews. Urgent action was needed to trace these children and secure their safety.”
Furthermore, significant numbers of looked-after children and those on the Child Protection Register did not have social workers.
- In her evidence to the Inquiry on 21 July 2020, Annie Hudson, the now former Strategic Director of Children’s Services at Lambeth, acknowledged that children who were on the cusp of going into care and living with their families in high risk situations were not adequately protected by Lambeth.
- Children on the Child Protection Register were not allocated a social worker. Families that should have received intervention and support to see if it was possible to avoid children being taken into care, did not do so and as a result, children were left in potentially dangerous situations [transcript 21/07/2020 p4]. Such risks could have been exacerbated by because parents who presented a risk could have been encouraged by the lack of LA action to think that whatever they did, the LA would not interfere. With no monitoring and no social work visits, children were exposed to unacceptably high risks.
- Instead, a crisis would occur and a child would be taken immediately into care through the court process or as a voluntary reception into care now pursuant to under section 20 of the Children Act, which provides for children to be received into LA care, with the parent or parents having agreed to delegate parental responsibility without the LA sharing parental responsibility with the parents. This is likely to have been upsetting and traumatic for the children concerned.
- Later in her evidence Ms Hudson was referred to LAM029179 (the SSI from May to June 2000) which raised concerns about potentially large numbers of “hidden” looked after children who had not been allocated a social worker and had been placed with friends or family on an informal basis and who were supported by payments under section 17 of the 1989 Act or boarding out payments under Regulation 11 of the Foster Placement Children Regulations. No checks were made on their carers, so that the poor social work practice of the 1980s and 1990s appeared to be continuing a decade later. Lambeth was therefore repeatedly in breach of the statutory duties it owed to children under Section 1(1) the Child Care Act 1980 (repealed) and Section 17 of the Children Act 1989, to safeguard and/or promote their welfare.
- Today, there is evidence that similar problems continue to arise with the (mis)use of section 20, denying the child a voice because, without public law proceedings having been issued, no statutory reviews take place, no Child’s Guardian is be appointed and decisions about a child’s future are delayed. If placed by local authorities under informal arrangements which have not been assessed children continue to be at risk because of a lack of social worker intervention and support. The flowing cases provide some examples:
- Medway Council v M, T (by her Children’s Guardian)  10 WLUK 311, 13 October 2015 (judgment included with supplementary materials): 5 year old child placed in emergency foster care when her mother was detained in hospital with a serious mental order and there was no one else to care for her. The local authority failed to consider the mother’s capacity or the child’s legal status; It delayed involving the court (failing to issue proceedings for 2 years); did not explore permanence and had allowed the case to drift; it had neglected parental contact; it had been advised of the need to take legal proceedings but did not do so and therefore had no lawful basis on which to accommodate the daughter without an order under the 1989 Act.
- The local authority had displayed a “shocking” misunderstanding of the law and the limits on the exercise of its power, compounded by an arrogant and ignorant disregard for the advice provided by the looked after children review process. Damages was sought and paid for breaches of both the mother and child’s ECHR Article 6 and 8 rights to a fair trial and for a private and family life respectively.
- Kent CC v M  EWFC 28: the local authority had breached the child’s Art.6 and 8 rights when it: failed to properly assess her for 3 years and 4 months; failed, for the same period, to implement a care plan that met her needs, including ensuring that there were sufficient procedures in place to give effect to the recommendations of the Looked After Reviews; failed to provide her with a proper opportunity to secure a suitable long-term placement and a settled and secure home life; failed to issue proceedings in a timely manner from March 2012 to November 2015, depriving her of the protection afforded by the 1989 Act and of access to the court. Care proceedings would have helped significantly to provide the stability and security that the child so clearly needed. She would have had the benefit of a Children’s Guardian and a legal representative to give her an effective voice regarding the local authority’s failures. The issue of proceedings would also have enabled the local authority to share parental responsibility with the child’s mother. Harm had been caused to the child by the lack of security and stability any of her placements (other than her most recent one) were able to offer her. The evidence showed that she was acutely aware that her mother could remove her at any time. The delays by the local authority in taking the necessary steps that its own decisions provided for had had a negative effect on the child’s emotional health and development and contributed to multiple breakdowns of foster placements.
- Herefordshire Council v AB  EWFC 10: the local authority failures were described as “egregious”. There had been several occasions when care proceedings could have been issued but were not, and where legal advice should have been sought and was not. There was no clear explanation for many of these decisions and there had been “complete inertia” which was “inexplicable”. The teenage mother had been side-lined from her child’s life. She had needed the greatest possible advice, support and consideration, which she had not been given (paragraph 54).
- The Supreme Court has recently found it necessary to set out the principles governing the use of Section 20 after another case of its misuse, this time in the London Borough of Hackney Williams & Anor v London Borough of Hackney  UKSC 37.
- Worcestershire CC v AA (A Child)  EWHC 1855 (Fam) is a further example that came after and cites The local authority had serially and seriously failed to meet the child’s needs over a very prolonged period of time. The case had caused the local authority to undertake a root and branch review of its practices and procedures for the benefit of the children and young people whom it would be looking after in the future. The failure to:
- provide the child with therapeutic support;
- provide adequate or effective support to his foster carers;
- provide a stable and clear plan for his care, especially to ensure a responsible person or body had effective parental responsibility for him;
- institute public law proceedings in respect of him and to provide him with the protection of a judge-led process and the protection of a voice via a children’s guardian;
was egregious in the extreme.
- Although in living with committed and nurturing foster carers, the child had been left adrift in the care system. There was no consistent planning for him through a succession of 22 social workers. His future settled and stable care should have been arranged and approved many years ago. There was no excuse for that not being done. He was failed by the local authority. A separate claim had been made on the child’s behalf seeking damages for breaches of his human rights for which the local authority had admitted liability.
- It is acknowledged that there is high quality social work and management taking place, that there have been vast improvements in children’s services and that practitioners have to operate in accordance with local conditions and under financial constraints. Worryingly, all too often, children continue to be let down and to suffer harm as a result of poor social work, informal arrangements and the misuse of Section 20, exposing them to risks and leaving them to drift at the edges of the care system without a voice. The fact that it is often left to the courts to deal with the consequences of these problems, whether in individual care proceedings and/or in civil proceedings for personal injury or under the Human Rights Act 1998 is far from satisfactory.
Children in Care
- The Inquiry has heard extensive evidence about the huge disadvantages suffered by children in the care of Lambeth, including the CPs we represent. Their evidence will not be repeated here, a representative sample having been included in the thematic gist table and reference having been made to their experiences in the introduction.
- Core Participants have been invited to comment on the legal remedies available to children in care and in particular whether and how the voice of a child already admitted into care may be heard within legal proceedings in the event of the child’s disagreement with the corporate parent on an issue of real concern to the child.
- Core Participants have been referred by Solicitors to the Inquiry to the comments made by Baroness Stedman-Scott when she tabled an amendment to the Child and Families Bill, seeking to appeal restrictions to Section 8 order children in care:
- “Section 8 orders such as contact, prohibited steps and specific issue orders enable children to prevent their parents taking actions that are against their best interests. If a parent attempts to prevent a child seeing a family member or tries to move the child away from their home, the child may, through their solicitor and if that legal representative considers there to be sufficient grounds, ask a court to make a Section 8 order. Though rarely exercised or indeed necessary, the right to do this is a crucial protection for children in difficult situations.” [Hansard HL, Children and Families Bill, Vol 748, col 142, 14 October 2013].
- Ultimately the proposed amendment was withdrawn, possibly because Baroness Stedman-Scott was persuaded by Lord Nash, the Parliamentary Under-Secretary of State for Schools (Lord Nash) that to allow a child in care to apply for a Section 8 order would cut across the scheme of the Children Act and the local authorities’ duties towards and responsibilities for children.
- If care proceedings have not been finalised and the child is subject to an interim care order, the Children’s Guardian can voice any concerns that the child has, including those about the care plan and where he or she should live. In the event that the child’s views differ from her Children’s Guardian, as long as the child is competent to instruct a solicitor, that child may be represented by and instruct her own solicitor.
- Whether or not look final care order has been made it is clear that a child is prevented by section 9(1) one of the Children Act 1989 from applying for a prohibited steps or specific issue order. While this is rationalised as an avoidance of cutting across the local authorities’ responsibilities, a local authority is not fulfilling its responsibilities properly, such an apparent lacuna must raise concerns.
- There are potentially, other options for a child in care to raise issues of concern, but in a limited and indirect way.
- Section 9(3) of the 1989 Act provides that:
“A person who is, or was at any time within the last six months, a local authority foster parent of a child may not apply for leave to apply for a section 8 order with respect to the child unless—
- he has the consent of the authority;
- he is a relative of the child; or
- the child has lived with him for at least one yearpreceding the application.
- A foster carer who fulfils one of the subsection 3 criteria can apply for leave to make a Section 8 order application, but this will only give voice to the child’s concerns if the individual foster carer is able and willing to take such a step. This will be difficult if for example, if the child’s interests or views conflict with those of the foster carer or if the local authority, which will continue to hold parental responsibility, has advised the foster carer against taking such a step, particularly if it takes the view that the nature an application conflicts with the care plan for the child.
- Older case law from the Family Division of the High Court suggests that a child can obtain a Section 8 order for contact with siblings because such an order would be an order “with respect to” the child’s siblings rather than in respect of the child in care and would not therefore fall foul of section 9(1): Re F (Contact: Child in Care) 1995 1 FLR 510, FD. In reality, a child in care seeking such an order is likely to face obstacles. In the Re F case the application was made on behalf of the child, K, by the Guardian ad Litem (the correct nomenclature at that time) at final hearing of the care proceedings, relying on Section 34(2) of the Children Act 1989, which provides for an application for contact to be made by the local authority or by the child for contact between that child and any named person. The siblings of K were not in care and the parents wanted nothing more to do with K and objected to contact. They appealed the order successfully, the court finding that neither a person named in such an order (or the person who was living with and caring for them if the named person was a child) was obliged to have or permit the contact provided for.
- The exception to this would be if it was the local authority applying for a s.34(2) order; then, the court’s jurisdiction should only be used where the local authority was adopting an inappropriate stance in respect of contact between the child in care and another person. The compulsory effect of a s.34(2) order, providing for the contact which was to be allowed between the child in care and the named person, attached only to the local authority.
- The court also found that there was no need for a s.34(2) order requiring the local authority to permit contact between K and her siblings, as the local authority had a duty to promote contact. The court would not make an otiose order.
- Furthermore, whilst the child making such an application would be a party, she would not be the subject of the proceedings and so the welfare principle, requiring the court to consider the best interests of such a child, would not apply to the child applicant. Thus, if the court did not consider that contact with the applicant child, was in the subject child’s best interests, no order would be made.
The Inherent jurisdiction of the High Court
- As part of its general jurisdiction as a court of superior record and as a trustee of the Crown’s duty to protect all of its subjects, in certain circumstances, the inherent jurisdiction of the High Court may be used to supplement or fill gaps in statutory provisions where this is necessary in the interests of society but should not be exercised in a manner which cuts across the statutory scheme: the Family Court Practice commentary on Re B (A Child) (Habitual Residence: Inherent Jurisdiction)  UKSC 4.
- The High Court is prohibited by Section 100(2)(c) of the 1989 Act from making a child who is the subject of a care order a ward of court (vesting custody and control of the child in the Court) however, the duty of the Court under its inherent jurisdiction is to ensure that the child who is the subject of proceedings is protected and taken care of. In these limited and generally more extreme circumstances the Court may in exercising its inherent jurisdiction make any order or determine any issue in respect of a child unless limited by case law or statute. Such proceedings should not be commenced unless it is clear that the issues concerning the child cannot be resolved under the Children Act 1989: Practice Direction 12D, paragraph 1.1.
- As well as all of the orders that can be made in family proceedings the court may make a wide range of injunctions for the protection of a child: PD12 para. 1.2. Whilst the circumstances in which it would be appropriate for an application for an injunction to be made in relation to or by a child in care are likely to be very limited, an example can be found in Coventry CC v O (Adoption)  2 FLR 936, CA when the Court of Appeal upheld, in principle, a decision to grant an injunction, pending the final hearing, restraining a local authority from removing children from a placement with foster carers who had given notice of their intention to adopt the children (although the appeal by the local authority against the granting of the injunction was allowed on another ground).
- This option for the child’s voice to be heard is potentially useful, but in practical terms is likely to be of limited application: an application for an injunction would risk cutting across the statutory scheme under the Children Act and unless the behaviour of the local authority was egregious and harmful, the prospects of obtaining an injunction are unlikely to be high.
Independent Reviewing Officers
- Once a final care order is made and the Child’s Guardian no longer has a role to play, the Independent Reviewing Officer (“IRO”), who will have been appointed as soon as the child became subject to an interim care order, will have a continuing duty to review and monitor the child’s case on an ongoing basis and to ensure that the child’s voice is heard. This does not always happen. There has been criticism of IRO’s in the case law and by the judiciary on the basis that they have not always fulfilled their functions and have not had sufficient training to appreciate the importance of the proper legal order being in force, nor the potential importance of contact to children in long term foster care: A and S v Lancashire County Council  EWHC 1689 (Fam); https://niromp.org/2017/05/26/in-case-you-missed-it-independent-reviewing-officers-a-better-basis-for-change/.
- IROs provide information to children in care about their role and responsibilities, including information about advocacy support, which is not solely for the purpose of complaints but should also ensure the child has a voice.
- A serious case review in 2017 concerning the Croydon Safeguarding Children’s Board concluded that Over the years, a narrow focus on a handful of performance indicators has had a significant impact on the LAC (looked after children) Review process and resulted in diluting the core functions of the IRO in the life of the child. As a result, the potential for IROs to make a significant contribution to children’s care plans, and to service wide quality assurance and development, has not been sufficiently realised: Serious Case Review, “Claire”, Full Overview Report, Bridget Griffin, Croydon Safeguarding Children Board, 2017, pp60-64.
- Section 23ZB of the Children Act 1989 provides for local authorities to appoint Independent Visitors for a child where it would to be in the best interest of the child and where there has been infrequent communication between the child and their parent or the child has not been visited for a year. Although an Independent Visitor is not a substitute for an advocate or an IRO, such a person can provide friendship, support and advice. Access to an independent person is something several of our Core Participants have recommended. Ideally such Visitors should be readily available to children given that IROs have not consistently been able to fulfil their duties to children in care.
- At the time Baroness Stedman-Scott raised her concerns she also referred to the possibility of an application for judicial review, although there may be practical barriers to this due to the costs and complexities involved.
- A further possibility would be for the child to issue stand-alone proceedings under the Human Rights Act 1998 for breach of his or her Article 8 rights to a private and family life, subject to obtaining the assistance of a litigation friend (required for minors under the Civil Procedure Rules, in contrast to family proceedings, in which “Gillick competent” children can instruct a solicitor) and of course, subject to obtaining public funding.
- It is clear that children in care who wish to have a voice in legal proceedings face many difficulties.
- From the limited exploration of the issues set out above, it is submitted that children care face difficulties in being able to effectively voice their concerns in legal proceedings even if, when local authority is about to cease to looking after a child, the IRO must ensure that, having regard to the child’s age and understanding, the child has been informed of the steps he or she may take under the 1989 Act and in particular of the right to apply, with leave, for a Section 8 order and, where the child is in the care of the responsible authority, to apply for the discharge of the care order.
- The CPs who suffered childhood sexual abuse while in care faced difficulties after leaving the care system. Many were unsupported and left alone to manage day to day living arrangements, negotiating the benefits system; finding work; managing emotional and mental health problems as a result of their traumatic and/or neglectful experiences and managing substance misuse.
- Care leavers are now better supported, and there are support organisations to assist and support care leavers, but the support offered by local authorities is not necessarily always effective.
- In September 2017 Barnardo’s published Neglected Minds, a report which considered the mental health needs of care leavers and what could be done to better support them. The Report found that 46% of the Barnardo’s care leaver cases which were reviewed as part of the research involved young people who in the opinion of the personal adviser had mental health needs; 1 in 4 of the case files involved a young person who had faced a mental health crisis since leaving care; 65% of young people whom workers identified as having mental health needs were not currently receiving any statutory service.
- Adverse childhood experiences such as abuse, neglect, or witnessing domestic violence can all impact on a child’s developing brain and statistics show this results in much higher levels of mental health problems in this group than in the general population. 45% of looked after children (and 72% in residential care) have a mental health disorder – compared to 1 in 10 in the general population; and looked after children and care leavers are between four and five times more likely to attempt suicide in adulthood4. Despite these worrying statistics, changes specifically aimed at improving the mental health of looked after children have been slow to materialise.
- The report also found that despite the fact that the Government had issued statutory guidance aimed at promoting the health and well-being of looked-after children, evidence continues to suggest that assessment of the mental health needs of looked after children is patchy:
- In a pilot study carried between 2017 and 2018 by Dr Claire Baker, Head of theBright Spots Programme at Coram Voice, she specialises in research focused on the experiences and outcomes for young people in and leaving care. found that some struggled financially; some felt lonely. A third of care leavers did not feel their accommodation was right for them, yet official government statistics suggested that 84% were in suitable accommodation:
- Since this time the government has announced a further initiative: a Care Leaver Covenant Board, comprised of Secretaries of State from across relevant government departments who will meet three times a year to address the key barriers facing young care leavers. The Care Leaver Covenant, funded by the Department of Education, tackles the disadvantages that young people aged 16-25 face when leaving care and helps them to live independently as they adjust to independent life as adults: finding a suitable, safe place to live, supporting them to remain in education, employment or training, and helping them access appropriate healthcare. It will also look at how to support councils to employ adolescent mental health workers in every leaving care team in the country: https://www.gov.uk/government/news/vital-new-support-for-young-people-leaving-care
- What help will be offered to access appropriate health care and what is meant by looking at how to support councils to employ adolescent mental health workers in t clear.
- On 9 July 2020 Lord Herman Ouseley was asked about whether the restrictions on children set out in S9 should be removed and said:
“You have to have some statutory recognition that if there is a clear belief that children who are in care are almost second-class citizens, in that they have no right of expressing themselves, that that right should have provided to them so that it can be, with advocacy, expressed in a way that reflects their feelings, their experiences, their worries and concerns, in a manner that then can be addressed by those who make decisions, and continue to make decisions, which may have an adverse impact continuing on the lives of those children.” [Transcript p48]
- In order for children to have better outcomes after being in care, they need to be able to rely on local authorities to fulfil their duties towards them to a high standard. Regrettably, this was not and is not always the case. We submit that the only way to ensure that local authorities meet the high standards of care that children in their care deserve, then such standards should be enforceable by an overarching body with the power to compel action and impose sanctions for non-compliance.
THE CRIMINAL JUSTICE SYSTEM
- The criminal justice system is a very different to what it once was. Much has been done to improve the environment in which children give evidence and the multi-disciplinary and child-centred approach, including the suggestion that psychologists could conduct ABE interviews pioneered by the Lighthouse is very welcome, but for adult survivors, there continue to be real difficulties, The system suffers from underfunding and the CPS statistics published on 30 August 2020 on rape prosecutions does not give cause for optimism that the Criminal Justice system is working well for victims/survivors of sexual.
- After the close of the evidence, on 6 August, the CPs were provided with a letter dated 24 July 2020 and accompanying documents, which had previously been sent to the Inquiry. In the letter the CWJ expressed concern that CPS Gregor McGill’s evidence to the Inquiry on 10 July 2020 in respect of the current CPS practice in the prosecution of sexual offences was so selective as to have provided a misleading picture when he said, among other remarks, that the CPS that the HMCPSI report in December 2019 contained:
“an independent finding that our procedures and practices and how we approach these cases is much more successful than perhaps it was in the past.” (letter 24 July 2020, p1)
- Dame Vera Baird QC, Victims’ Commissioner for England and Wales wrote to Geoffrey Cox QC, Attorney General, MP, on 30 January 2020 setting out in details her concerns about the CPS approach and the HMCPSI review and stated that: “the simple fact is that the CPS are charging a much smaller proportion of those cases referred to them than previously was the case.” (Vera Baird QC’s letter, p6)
- On 14 November 2019 the Law Society Gazette published an article by Melanie Newman into a Gazette investigation into the CPS, which found that the CPS had a conviction rate ‘benchmark’ that had never been made public. Women’s rights organisations brought a legal action against the CPS in the autumn of 2019, alleging that a covert change in its internal practice was partly responsible. After an appeal (the legal action having initially failed), the application for judicial review is to proceed.
- Ms Newman noted that the CPS had previously denied any change in its approach to charging rape. But admitted to the Gazette that it imposed targets on staff between 2016 and 2018 that were ‘not appropriate’ and may have acted as a ‘perverse incentive’ on prosecutors, deterring them from charging less straightforward cases. Without wanting to state the obvious, historical cases of child abuse are not straightforward so are likely to have fallen foul of such target setting.
- The CPS stated that it had dropped all the conviction rate targets in April 2018, two years after their introduction and acknowledged that they were not an appropriate tool to measure its success in bringing the right cases to court – although the CPS’ inspectorate was still using them to measure the service’s performance in May 2019.
- Further proof that those who have suffered CSA face difficulties in the criminal justice system can be found in The London Rape Review (“the Review”), conducted by the mayor’s office for policing and crime (MOPAC) and the University of West London. This looked at 501 allegations of rape made across the city in April 2016, a time when the CPS’ questionable policy was in operation.
- The Review found that while 84% of allegations were classified as a crime by the police, in 58% of cases the victim withdrew the allegation. Only 6% of cases reached trial and 3% resulted in a conviction. The average length of time from the date of reporting to the trial outcome was 18 months.
- The review further found that a number of key factors exist in predicting whether a complainant will withdraw. The strongest predictors of victim withdrawal were procedural characteristics. For example, withdrawal was 6 times less likely in cases where the victim/survivor participated in a Video Recorded Interview, suggesting that such measures are having a positive effect in that they contribute significantly to rape complaints being carried forward towards a possible conviction. Another factor highlighted by the Review, which is highly relevant to survivors of CSA in Lambeth, is that victim/survivor mental health, when considered as the sole factor, was a significant predictor of the police deciding to take no further action; however, when controlling for victim/survivor inconsistent accounts, it lost significance, suggesting to the authors of the Review that the relationship between victim/survivor mental health and the police taking no further action was due to inconsistency in testimony (Review p26).
- The extent to which, if at all, the Review considered or was in a position to consider whether inconsistency was linked to traumatic experiences is not known, but on behalf of the Core Participants who have suffered traumatic abuse as children, it is submitted that inconsistency and mental health problems as a result of trauma are not necessarily mutually exclusive. An inconsistent account well be consistent with, linked to or caused by a mental health difficulties or perhaps simply the difficulty in recalling and reliving extremely traumatic experiences. Several CPs have described blocking or blanking out distressing memories: LA-A243 [Thematic Gist table F5]; LA-A323’s witness statement [INQ005688], para. 25; LA-A312 [Thematic Gist table I11].
- In giving evidence to this Inquiry on 1 July 2020 LA-A299 (who, after a course of bullying, was anally raped in the playground by an older care resident who appears to have been incited by a member of staff) said:
- “There’s a lot that I’ve blocked out. There’s a lot that I don’t want to – I’ve never really wanted to remember anything about Shirley, to be honest with you. I have spent a lot of my life trying to push that out.” (P63 Transcript).
- Such reluctance is also likely to be a factor in complainant decisions to withdraw complaints. The Review found that victims/survivors’ reasons for withdrawal were complex and often interrelated. There were typically multiple reasons given for withdrawal, one the most common being the stress and trauma caused or exacerbated by the investigation, particularly because of having to talk in detail about the incident (Review pp13-14).
- Ultimately, while improvements have undoubtedly been made, victims/survivors of CSA continue to experience difficulties in the criminal justice system.
- Emma Harewood, who gave evidence on 28 July 2020, referred to The Children’s Commissioner published report in September 2015 and arising from Ms Harewood’s research, commissioned by NHS England into INQ005455_001 and _004; INQ005454_001 and _003. The Children’s Commissioner said in the introduction:
“In England, it is estimated that only 1 in 8 victims of child sexual abuse are identified by the authorities. Children who disclose that they have been sexually abused face multiple interviews with social workers, the police and medical professionals in a variety of settings. Interviews are often the only source of evidence in sexual abuse cases, yet for many children the interviews led by the police do not enable 9 them to provide the best possible evidence. Repeat interviews can be confusing and cause children, particularly young children, to give inconsistent evidence which, in many cases, will lead to the perpetrator not being charged. Children can be traumatised by having to give an account of their abuse to multiple professionals in multiple locations. They can also then face long waiting lists to access specialist therapeutic support….The current system is not child-centred and does not achieve the best results either for the children or the criminal justice system.”
- For all of these reasons, the movement towards a multi-disciplinary one stop approach such as the Children’s House, emulated by the Lighthouse, is welcome and it should be properly resourced, and made available on a nationwide basis.
THE CIVIL JUSTICE SYSTEM AND THE LAMBETH REDRESS SCHEME
- Victims/Survivors of child sexual abuse are able to bring a claims in the civil courts against a local authority:
- in tort, on the basis of negligence and/or on the basis that it is vicariously liable for an assault/trespass to the person; or
- a claim under the Human Rights Act 1998 for Article 8 breaches (see cases referred to in the Children in Care section).
- Each type of claim presents a number of difficulties: in summary the Limitation Act 1980 sections 11 and 14 provide for a limitation period of 3 years from the time that the cause of action accrues or the date on which the Claimant knew that he or she had suffered a significant injury. Section 33 of the 1980 Act provides the court with a discretion to allow an action to proceed notwithstanding it is time-barred within the time permitted by ss.11 and 14 of the Act. The discretion is wide and based on the balance of prejudice to the parties but includes all the circumstances of the case. The checklist at s.33(3) provides a structure for guidance to which the court must have regard:
- the length of, and the reasons for, the delay on the part of the plaintiff;
- the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11…
- the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection…
- the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;
- the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;
- the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.
- Defendants in such cases are entitled and do raise the statutory limitation defence in such cases so that Claimants alleging historical child sexual abuse in almost all cases are required to seek the court’s Section 33 discretion and have the burden of proving that there were good reason for the delay in bringing a claim. This can present difficulties if for example a Claimant’s is inconsistent in his or her account or if the alleged perpetrator is dead, allowing the Defendant to plead that it would be unable to mount a proper defence to the allegation and thus it would not be in the interests of justice for the case to proceed. Section 33 cases can also be difficult if the damages to be obtained are relatively modest, as case law suggests that proportionality is a relevant factor to be considered as one of the circumstances of the case.
- CN v POOLE BOROUGH COUNCIL  UKSC 25 clarified and re-stated the law on negligence as it applies to local authorities dealing with children. A claimant must prove that he or she was owed a duty of care by the local authority. Where his or her case is based on alleged omissions by the local authority, the claimant must prove that the local authority assumed responsibility for him or her. For example, a local authority could be shown to have assumed responsibility for a child if it issues proceedings and obtains an interim care order and then fails egregiously to protect a child, causing damage. On the facts of the CN case, the local authority was not found to have assumed a responsibility actionable in negligence. It not applied for an interim care order. The children had been assessed as children in need under the Children Act 1989 and a local authority investigation relating to one of the children had taken place under Section 47 and the child was made subject to a child protection plan; but this was insufficient to form the basis for a duty of care.
- While CN is a recent decision which is yet to be tested extensively in the courts, claimants who, like many children in Lambeth were “hidden” looked after children; that is, with no interim care order in place, a private or voluntary arrangement in place and/or the child had been left at home in an unsafe situation, are likely to meet a defence that the local authority had not assumed a duty of care and therefore that the claimant has no cause of action.
- Human rights Act claims by contrast, do not require negligence to be proved in this way, but with a 1 year time limit for bringing claims (which can be disapplied in certain circumstances) and a damages regime which does not lead to very high awards, the availability for such claims is relatively limited.
- Similarly, a Criminal Injuries Compensation claim has a time limit of 2 years, which causes problems for adults who suffered abuse as children and the perpetrator was not convicted.
THE LAMBETH REDRESS SCHEME
- The CPs welcome the scheme as a positive step in their search for recognition and justice. This is the first local authority scheme of its kind in England. To date no other English local authority has offered such a scheme. Without it many victims/survivors would have no recourse to justice. Damages payments overall are roughly comparable to those that could have been received in a court award of damages, sometimes higher. It is also right to point out that in our submission there are some limitations to the scheme, of which Switalskis solicitors have extensive experience, at the most recent count representing approximately 26% of Applicants to the Scheme.
- The main issues of concern to our CPs are as follows.
- Mr Verdan QC, counsel to Lambeth Council, has acknowledged that Lambeth recognises that children from black and ethnic minority communities suffered disproportionately in Lambeth’s care. The Inquiry is by now aware that children from minority ethnic groups were subjected to racial abuse by not only other children, but those who had been entrusted with their care.
- The scheme recognises that racial abuse an aggravating factor: at para 2.12 it is stated that: “an award for Aggravated Damages seeks to compensate for distress and humiliation caused. This category of damages is awarded as compensation for an individual’s mental distress where the manner in which the abuse has been committed, or the motive for the abuse, has upset or outraged the individual. For example, issues of race or sexual orientation.”
- In practice aggravated damages for racial abuse are limited to a 10% uplift which is capped at £10,000. Whilst it is understood that the scheme must be financially viable for Lambeth, it should be recognised that the racial abuse suffered, which in many instances was horrific and linked to the sexual and/or physical abuse of children, caused damage that went far beyond causing upset or outrage. Although victims/survivors can be compensated under the scheme for long terms psychiatric injury, the effects of racial abuse, which, for many of our CPS undermined their very identities, do not fit neatly into a psychiatric diagnosis. The damage caused by racism is not necessarily psychiatric, but psychological and all pervasive.
- In the circumstances we submit that the cap of £10,000 does not offer sufficient compensation and that consideration should be given to increasing the cap.
- Scheme awards for aggravated damages are said to be assessed “in line with common law principles.”. Even if such payments are to be limited to aggravated damages , we submit that the cap is too low.
- Some cases below provide examples of the sort of awards that we submit would be a more appropriate starting point. They involve sexual abuse and not racial abuse, but the individual features of malevolence, cruelty, contempt for those being abused and breach of trust were very much part of the experience for those who suffered both racial and sexual abuse.
- AT & others v Dulghieru  EWHC 225 (QB) – a trafficking case involving trafficked women being forced into prostitution in Soho (their brutal treatment included beatings, intimidation and being forced in some cases into having sex with 30 or 40 men a day). General damages awards ranged from £82,000 (£113,535) to £125,000 (£173,000); aggravated damages of between £30,000 (£41,500) and £35,000 (£48,460) were awarded because the defendants’ conduct was appalling, malevolent, and utterly contemptuous of the claimants’ rights.
- We submit that CPs, who were of course children at the time, children were subjected to sexual and racial abuse, which was similarly appalling, malevolent, and utterly contemptuous of the claimants’ rights. LA-A309 is one example of this but her case is not unique.
- RAR v GGC  EWHC 2338 (QB): awarded £10,000 (£12,000) in aggravated damages after RAR had suffered “cruel and unusual” sexual abuse at the hands of her step-father between the ages of 7 and 12. This included threats to C, a vulnerable girl, to send her to a children’s home if she did not comply with his sexual demands, from which there was no escape as C was abused in her own home. The taking of photographs of the claimant in compromising positions caused her additional humiliation and distress. The judge made clear in her judgment that this did not represent a ‘double recovery’ with the general damages awarded at £70,000 (£84,300).
- GLB v TH  EWHC 3904 (QB). £67,500 (£79,800) was awarded in general damages for abuse C suffered at the hands of her grandfather between the ages of 11 and 16. £15,000 (£17,880) was awarded for aggravated damages because the abuse represented an abuse of trust and in recognition of the emotional upheaval caused by the conflict of emotions experienced; the claimant’s grandfather was on the one had nice and kind, and on the other, her abuser. There was also a loss of pride and self-esteem caused by the abuse that was not compensated by way of the general damages award.
- A child who was placed in a Lambeth home prior to being in foster care and then suffered abuse at the foster placement has included in his or her award the consequences of damage in both locations.
- Damage caused to a child who was in foster care before being placed in a Lambeth children’s home is not included. We submit that while there may be a rationale Behind this stance linked to causation issues , given the egregious and repeated failures by Lambeth to care for its children over decades 1 cannot be confident that the placement of such children Was well thought out and did not cause them damage. In the circumstances we submit that the redress scheme ought to compensate for abuse caused in foster placement whether this was before or after a child was placed in a Lambeth children’s home.
The Melting Pot
- We understand that this residential facility was managed and funded by Lambeth but was not a Lambeth home and that the Shirley Oaks Survivors’ Association is asking for it to be included in the scheme. We support SOSA’s efforts in this regard.
- We have referred to a number of CPs, for example, LA-A311 in the section dealing with Michael Carroll. The evidence before the Inquiry shows that ultimately, Lambeth was responsible for transferring any children out of the area to homes that were unregistered and where they were abused. We submit that consideration should be given to compensating call participants who, as a result of poor decision making on Lambeth’s part, suffered abuse in North Wales.
Loss of Earnings and Education
- This bracket is limited to £25,000. In many cases, is equivalent to a year’s earnings. We submit that whilst it is necessary to be mindful that public funds are involved, this amount is too low.
- The Inquiry has heard evidence and received witness statements to the effect that many CPs barely received adequate or any education. Some were unable to read. The effect on such applicants of such a poor experience of education is not easy to measure but is likely to have had lifelong consequences for their ability to work and earn.
- Any applicant who has a complex and/or high value loss of earnings claim is likely to fall outside the scheme and will then have a stark choice of having to stay within the scheme and accept a payment that does not adequately compensate their loss, or to take their chances in a civil claim which, in our experience, will be fought hard on behalf of the defendant, and no guarantee that the claimant will succeed in meeting a limitation defence.
- There is, we acknowledge, a support and loss of opportunity component in the scheme but we submit that this cannot possibly compensate for decades of difficulty faced by those who were left, as some were, barely literate.
- We therefore invite the Inquiry to consider making recommendations for the scheme to be revised accordingly so that loss of a CPs education is more suitably compensated.
Non-Financial Aspects of the Scheme
- This consists of counselling, and for Lambeth residents, advice about housing, benefits and education. Initially, the counselling offered was face to face in Woolwich, South East London and via telephone with the Oxleas Trust, with whom we understand Lambeth entered into a contractual agreement for the provision of counselling services.
- On behalf of our CPs we are grateful that, following a meeting attended by some CPs, their legal representatives and Lambeth Council at which Amy Clowrey of Switalskis Solicitors spoke, Lambeth to extend this arrangement and pay for face to face counselling for applicants who live outside Woolwich. There is a condition that they must show that they could not obtain counselling via their GP first. We submit that this is unfair because of the differential treatment of those applicants who do not live in the Woolwich area, which can result of many months’ delay as they seek a referral and wait to be referred by a GP. We invite Lambeth to provide for and fund face to face counselling to avoid such delays.
Social care records
- Under the schemeapplicants only receive redacted versions of their records. This contributes to a feeling among many CPs that Lambeth has something to hide from them and fosters feelings of mistrust. While we appreciate that Lambeth may have concerns about data protection, we submit that the approach to redaction of social care files should follow common law principles. In accordance with Dunn v Durham CC  EWCA Civ.1654 redaction should be limited to circumstances where Lambeth can show that this is strictly necessary. Further, provision can be made for undertakings to be given that applicants and their legal advisers will not disclose the documents and that they will be used solely for the purpose of the application. We invite the Inquiry to make recommendations accordingly.
CONCLUSIONS AND RECOMMENDATIONS FOR FURTHER TRAINING AND REGULATION
- The Inquiry has heard evidence that although qualified social workers are subject to regulation, care workers remain unregulated. In his oral evidence Lord Patel of Social Care England, acknowledged that Social Work England lacks the power to regulate such a group. It spears that the ability to do so lies between the Department of Health and Social Care and Department of Education [28 July 2020, transcript p63]. Lord Patel also said that he believed that around 30% of vulnerable adults who suffered abuse were abused by professional carers, so that there was an issue regarding who should regulate this.
- He also acknowledged that the data held on social workers was “very minimum, basic data” which would impact on this question [transcript p64]. We submit that it is essential that such workers, who are responsible for caring for the most vulnerable in society, are regulated.
- Councillor Edward Davie gave evidence to Inquiry that Elected Councillors have available to them but are not required to undertake training on Children’s Safeguarding and corporate parenting. They should be. Given what has happened at Lambeth, no person elected to a role which includes responsibilities for corporate parenting can ever be allowed to take on such a role without receiving proper training about their responsibilities, including the safeguarding of children.
Duty to Report Suspected Sexual Abuse
- There is inconsistency in this country regarding the duty to report child abuse. In England there is no statutory mandatory duty to report child sexual abuse. In Wales there is a statutory duty on certain public bodies to inform the local authority if they have reasonable cause to suspect abuse and neglect: Section 130 of the Social Services and Well-being (Wales) Act 2014. In England, certain regulated professionals such as doctors are required by their regulatory bodies to report abuse and government guidance Working Together to Safeguard Children 2018 provides for reporting of suspected abuse by those involved in working with children.
- By contrast, in both England and Wales there is a statutory obligation on all regulated health and social care professionals and teachers to report female genital mutilation on female children to the police: Section 74 of the Serious Crime Act 2015.
- We submit that these gaps and inconsistencies in the system leave children at continuing risk of sexual abuse and that there should be a statutory duty to report suspected and actual cases of the sexual abuse of children. For reasons that remain Inexplicable to the core participants we represent, many staff who were in a position to assess the risk of sexual abuse. We acknowledge that in the present day those working with children are more aware of the risk of sexual abuse, but there are recent examples (such as the Rotherham abuse) where the existence of a statutory mandatory requirement to report sexual abuse could have made a real difference to the victims/survivors of child sexual abuse.
- Had there been a statutory obligation to report cases of sexual abuse during the time that children were being sexually abused in Lambeth, we submit that it is likely this would have assisted those working with children to focus on and fulfil their safeguarding responsibilities, thereby preventing further abuse. We therefore invite the Inquiry to recommend that those involved in working with children should be subject to statutory mandatory reporting requirements.
- The Core Participants we represent remain concerned that over many years, despite repeated Inquiries and inspections, Lambeth continued to fail the children in its care and remained unaccountable for its failures. Such failures are not confined to the past or to Lambeth Council, as can be seen from the case law referred to earlier in these submissions and as the Inquiry has seen, children continued for years to be exposed to the risk of sexual abuse.
- Currently there is no overarching local authority regulator or national safeguarding body that is able to compel action and impose financial sanctions on local authorities who are in breach of their statutory duties towards and causing harm to children. For example, the Local Government and Social Care Ombudsman can make recommendations as to a remedy but cannot impose one.
- We submit that the time has now come for such regulation. Without this, given the history of repeated failures to protect children on the part of Lambeth and other local authorities, there is a real risk that already disadvantaged children in care or who are on the cusp of going into care will continue to be at risk and worse, to suffer damage.
COUNSEL FOR SWITALSKIS CORE PARTICIPANTS
7 BEDFORD ROW
LONDON WC1R 4BS
SOLICITOR FOR SWITALSKIS CORE PARTICIPANTS
21 August 2020
 The Coroners Rules 1984 (repealed), Rule 56 required such documentation to be retained for 15 years. Current practice appears to be similar but there is scope for some records to be archived. Source: The Surrey Council website link to policy on Registration and Coroners: https://www.surreycc.gov.uk/__data/assets/pdf_file/0020/121385/RS16-Registration-Services-and-Coroners.pdf
 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/221761/young_20peoples_20guide_20to_20the_20independent_20reviewing_20officers_20handbook.pdf (See para.3.14)
 Care Planning, Placement and Care Review (England Regulations) 2010, regulation 45.
 . (Frances Perraudin, The Guardian Newspaper, 31 July 2019). https://www.theguardian.com/law/2019/jul/31/only-3-of-rape-claims-london-result-convictions-study-says