A House of Lords judgement in 2002 concluded that a local authority that failed in its duties to a looked after child could be challenged under the Human Rights Act 1998, most likely under article 8 of the European Convention on Human Rights relating to family life. The judgement recognised that some children with no adult to act on their behalf may not have any effective means to initiate such a challenge.
In response, the Government made it a legal requirement for an IRO to be appointed to participate in case reviews, monitor the local authority’s performance in respect of reviews, and to consider whether it would be appropriate to refer cases to the Children and Family Court Advisory and Support Service (Cafcass). This is set out in section 26 of the 1989 Act, as amended by the 2002 Act.
Later, the Children and Family Court Advisory and Support Service (Reviewed Case Referral) Regulations 2004,5 made under section 26 of the 1989 Act, extended the functions of Cafcass so that on a referral from an IRO they could consider bringing proceedings for breaches of the child’s human rights, judicial review and other proceedings.
The 2008 Act extends the IRO’s responsibilities from monitoring the performance by the local authority of their functions in relation to a child’s review to monitoring the performance by the local authority of their functions in relation to a child’s case, as set out in sections 25A-25C of the 1989 Act (inserted by section 10 of the 2008 Act). The intention is that these changes will enable the IRO to have an effective independent oversight of the child’s case and ensure that the child’s interests are protected throughout the care planning process.
Together, the amended 1989 Act and the Regulations specify:
the duties of the local authority to appoint an IRO;
the circumstances in which the local authority must consult with the IRO;
the functions of the IRO both in relation to the reviewing and monitoring of each child’s case; and
the actions that the IRO must take if the local authority is failing to comply with the Regulations or is in breach of its duties to the child in any material way, including making a referral to Cafcass.