COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRIGHTON COUNTY COURT
HIS HONOUR JUDGE HAYWARD
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE WALL
| V (A Child), Re
Miss C Jakens (instructed by D J Quelch Solicitor) for the 1st Respondent
Miss M Lazarus (instructed by Stevens Drake Solicitor) for the 2nd Respondent
Mr P Bonner (Instructed by the Guardian)
Hearing date: 21st January 2004
Crown Copyright ©
Lord Justice Wall:
1. The provisions of the Children Act 1989 (the Act) generally, and Part IV of the Act in particular, are HRA 1998 compliant.
2. Articles 6 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) are to a lessor or greater extent engaged in each and every application issued by a local authority under Part IV of the Act. In every case where the threshold criteria under section 31 of the Act are established, the court, in deciding what (if any) order to make, is required to apply the welfare checklist under section 1(3) of the Act; to balance the competing Article 8 rights to respect for family life of the parties and the child; and to achieve a result which is both proportionate and in the best interests of the child.
3. Every court hearing proceedings under Part IV of the Act, (that is the Family Proceedings Court (FPC), the county court and the High Court) has a duty under HRA 1998 section 3(1) to give effect to the provisions of the Act in a way which is compatible with Convention rights.
4. Any allegation made in care proceedings pursuant to HRA 1998 section 6(1) that a local authority has acted in a way which is incompatible with a Convention right, including any allegation which involves a breach of a party's rights under either Article 6 or Article 8 of the Convention can and should be dealt with in the care proceedings by the court hearing those proceedings under HRA section 7(1)(b). It is neither necessary nor desirable to transfer proceedings to a superior level of court merely because a breach of Convention rights is alleged.
5. The level of court at which proceedings under Part IV are to be heard is governed by regulations. Transfer from FPC to the county court is governed by the criteria set out in paragraph 7 of the Children (Allocation of Proceedings) Order 1991 (as amended) and from the county court to the High Court by (ibid) paragraph 12, and Any decision about transfer must take into account the principle set out in section 1(2) of the Act that any delay in determining the question is likely to prejudice the welfare of the child. Any such decision must normally be taken at the earliest possible moment after the proceedings have been instituted.
6. Applications for the proceedings to be transferred to the High Court for discrete issues under HRA 1998 or the Convention to be determined by a High Court judge are to be strongly discouraged and may amount to an abuse of process.
7. Where, as here, an interim care order is in force, the court may, pursuant to section 38(6) of the Act give such directions, as it considers appropriate with regard to the medical or psychiatric examination or other assessment of the child concerned. If the court directs such an assessment by the local authority, the local authority is bound to undertake it and pay for it. This is a jurisdiction available to the FPC, the county court and the High Court.
8. Apart from section 38(6) (if it applies) there is no power in either the High Court or the county court (whether within proceedings under Part IV or under the HRA 1998 or otherwise) to compel a local authority to fund therapeutic treatment for the parents of the child concerned. The absence of that power does not render the Act non-HRA 1998 compliant.
In the instant case
9. The application to transfer either the proceedings or a discrete issue within the proceedings to the High Court was misconceived. The only HRA 1998 application reserved to a High Court judge by the President's direction of 24 July 2000 ( 2 FLR 429) is the making of a declaration of incompatibility under section 4 of HRA 1998. There is no question of such a declaration in this case, and equally no basis upon which the High Court could exercise its inherent jurisdiction.
10. Whether the refusal of the local authority to fund treatment for the parents on the facts of the instant case constitutes a breach of the parents' Article 6 or Article 8 rights is a matter for the circuit judge hearing the Part IV proceedings and falls to be determined by him in those proceedings.
11. The application to transfer the proceedings was made on the first day of the final hearing of the Part IV proceedings, for which three days had been set aside. To make the application at that stage is unacceptable.
12. The failure to refer the judge to the relevant case law was reprehensible. The whole application to transfer was misconceived and should not have been made.
1. Declarations that the local authority have breached the parents and MV's rights (as set out in the details of claim)
2. Orders or directions requiring the local authority to meet their duty to take steps towards a possible reunification of the family, either by interpreting the Children Act in a way compatible with the relevant Convention Rights or by using other powers available in the High Court.
3. If the court is unable to interpret the statutory powers available under the Children Act 1989 in a way compatible with the relevant Convention Rights, a declaration of incompatibility is sought.
The relevant provisions of HRA 1998 and the Convention
(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way, which is compatible with the Convention rights.
(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may—
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
(b) rely on the Convention right or rights concerned in any legal proceedings,
but only if he is (or would be) a victim of the unlawful act.
(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.
(2) But damages may be awarded only by a court, which has power to award damages, or to order the payment of compensation, in civil proceedings.
In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
The care proceedings in relation to A and C
In evidence he appeared entirely to be a man, in cricketing terms, playing on the back foot – permanently covering up…. He gave the overriding impression, however, that he was not really motivated towards change, despite the fact that he professed he was. His evidence was both unconvincing and evasive.
Any return to home life for these children with the mother and her husband or to the grandparents, without significant changes, would place both children in a vulnerable position.... For a period of over ten years there has been abuse and conflict within this dysfunctional family…. I find that there has been neglect of children, instability, violence and abuse within the birth mother's family…
I was left with the overriding impression that (the father) was still exercising an influence over her, which, in view of his Schedule 1 status, would be disastrous for the children, even after some form of therapy has been undertaken. Even if he, at last, obtains treatment from Ray Wyre, as he now claims that he will, Ray Wyre can offer him no permanent solution. To guarantee that the children (are) not to be at risk from him, or of those of a similar persuasion with whom he has associated and still does, is difficult and probably impossible.
The care proceedings relating to AV
The father has undergone a number of assessments in relation to his sexual offending over the years and the predominant view in the past is that he posed a very serious risk towards vulnerable young females and the risk of re-offending was high. I am satisfied on the evidence before me that although the risk to AV is low in nature, because the father still needs further treatment, he does of course still pose a serious risk to vulnerable females, and there is a risk of him re-offending. The risk will remain until he has undergone further treatment and that treatment has been successful.
There is no disagreement between the experts that both the mother and the father need further direct involvement by way of therapy and treatment. The only areas of disagreement…are the precise routes for the best way for that treatment to be given. It is the view of Dr. Baker that this is best done by way of individual and joint therapy or counselling sessions with the parents for one 10 week period with a pause and then a further 10 week period. It is the view of Miss Prince that this should be done by way of group therapy, and that it would be undertaken at the Shaftesbury Clinic and that would probably take the course of a year. Dr. Baker's view is that such work probably if you count breaks in the middle might be 6 to 9 months. So there is very little difference between them, and it is also right that I comment that it is the view of all the experts including Dr. Hibbert that at this stage it is not possible to give a prognosis as to the likely success of that treatment. One can only say that it is definitely needed.
What I do say to the parents is this: today they have taken probably the hardest decision they have ever had to take. That is a very material step forward, but they must take up the treatment that they both so desperately need, and they must take it up fully and fully co-operate with it. They tell me, and again I am pleased to hear it, that they will continue to fully co-operate with the authority ….I also hope that they will continue to co-operate in terms of trying to get this treatment, that will not be easy, I do not know how it can be funded, but they must take it up however difficult that may be. I cannot predict, nor do I attempt to, what may be the outcome for the unborn child in June, but what I do know and the parents I am sure will note this carefully, that from now on there must be total frankness by them as to all matters including co-operation. It needs three things, it needs frankness, it needs co-operation, and it is going to need a dedicated commitment to go through the treatment and the advice that is in future given to them. I cannot know the outcome of that work, nor can they, but they have taken a step today which may help change their future, and I hope that they will stay with that, and I hope also that those who are responsible for such funding do see if it is possible in a creative way to assist them and to meet the response the parents have given today in accepting the reality, which would have been very hard for them as to the right road for AV.
Events leading to the institution of the current proceedings
Cognitive behavioural therapy (CBT) was recommended in November 2002 and started with Margaret Henning, clinical psychologist. Five appointments were attended before the February 2003 hearing, but the two appointments offered in March, and an appointment in April were failed. The parents did not communicate with Margaret Henning and were discharged for non-attendance. They discussed the therapy with the social worker on 8 July 2003. The father said that he felt as if he was being punished. He stated: "I can't go on anymore. It is opening up old wounds and I can't go through it". He felt at the time that he was unable to do day-to-day tasks. The father described feeling very angry and depressed following the sessions and frightened that he would smack someone. The therapy resulted in rows between the mother and the father.
Following our meeting today, although you were both very keen to recommence therapy, I feel this is not appropriate at the moment. I do understand under what traumatic circumstances you did not attend your last appointments. Nevertheless as I had discussed with both of you and with your social worker, Linda Fairbanks, we had virtually completed our work together.
I understand that you will be seeing Dr. Baker, who, in any case, is more expert in forensic issues that I am. I feel that the exploration of your past trauma went as far as was possible for now and can only urge you to work as hard and as co-operatively with Dr. Baker's team as you did with me.
If in the future you felt there are any residual issues to be addressed, do see your GP for a re-referral.
The respective stances of the parties in the current proceedings
The conduct of the current proceedings
The local authority accepts that in the usual course, active consideration should be given to preserving the bond and links with the natural family. They assert, however, that this child's right to a safe, settled, stable and nurturing family within a reasonable time-scale must prevail over the rights of the adults to pursue yet further assessments, given the history of these parents and previous proceedings. The evidence as set out in the first statement (of the social worker) demonstrates that unfortunately, despite the opportunities offered for change through therapy / counselling, these have not been followed up by the parents. The risk of harm by sexual abuse and emotional and physical neglect remains the same and will predictably continue to do so as long as the fundamental difficulties remain unaddressed. These are not parents who have no experience of care proceedings or awareness of what needs to change and the need to co-operate and engage. Even in the context of the planning for this baby, they failed to do so.
It cannot reasonably be argued in the light of the above that the parents have not had every opportunity to meet and address the past concerns. The (local authority has) offered the parents numerous resources so that they might work towards change. On any interpretation of the expert evidence, even a successful and full engagement would take up to a year to bring about change, and the prognosis in February 2003 was uncertain. Most unfortunately the parents have failed to engage and in the absence of change, the risks to any child in their care remain unmanageable.
In my submission the most important outstanding work was that recommended by Dr. Baker and Dr. Prince. Dr. Baker recommends a 20-week course with a report and review at 10 weeks. I would ask that the parents are offered the opportunity to take this up. Dr. Baker is currently away on annual leave and would need to be contacted on his return. In the meantime an enquiry could be made of the Public Funding Board to see whether funding could b agreed. During the last set of proceedings, this work could not be taken up due to funding difficulties. At that time there had already been a number of assessments undertaken. In this new set of proceedings, involving a new baby, I would be hopeful that the local authority might be able to contribute to the funding. As there is a review at the 10-week stage if the parents were not making progress at that stage then the work could be brought to an end.
In conclusion, the parents would ask that the local authority discharge their duty to consider rehabilitation of MV to their care by allowing them to take up the work recommended by Dr. Baker and any other work thought appropriate by the court. It is submitted that this work could be carried out within MW's time-scales.
…. to see the parents and comment on the future care planning for MV, along with any recommendations for continued work / risk management with the parents and to comment on the usefulness or otherwise of intensive community / residential assessment.
The order made by Judge Lloyd on 31 July 2003
Taking stock at this point
The non-instruction of Dr. Baker
Dear Dr. Baker,
Care Proceedings MV
Please find enclosed a copy of a recent order in this case.
West Sussex Social services are not prepared to carry out any further assessments on (the mother and the father).
(The father) is separately represented.
The court has very reluctantly agreed that your organisation can carry out a further assessment on (the mother) and also on (the father)
You already know the case and have reported before. I urgently need a quote for the Work so that I and the solicitors for (the father) can make application for authority.
I look forward to hearing from you shortly,
Can you now confirm to me what stage your application for prior authority has reached; let me have a copy of the letter of instruction; and confirm to me Dr. Baker is still on track to report by 17 October. I would be grateful for an answer by return.
Thank you for your letter of the even date. Dr. Baker has not been instructed and my counsel is considering the position and it is likely that a directions hearing will be asked for very shortly.
Thank you for your letter. I have given this matter careful consideration. In my view, I do not think that any further meetings with me will change the view since my last assessment. I do not think there is anything further to add and I would consider such a further assessment to be redundant.
My view remains the same as it was regarding risk and risk management and my agency is competent to carry out the work with the parents in co-operation with the Local Authority Social Services.
I would be happy to assist the court in any way including being available, after a briefing, to address specific issues in relation to this matter in oral evidence / cross examination.
I am fully aware that the council is concern (sic) and wishes to see an end to this case in so doing my client's humane (sic) rights are being breached because the authority is not prepared to pay for the intensive treatment required. No further assessment can assist and the council is not prepared to spend the money on this family. The issue in this case is clear and concise.
Mr. Quelch's conduct
The hearing before Judge Hayward on 3 December 2003
…. is in breach of both Articles 6 and 8 of the ECHR, in that the parents cannot achieve a fair hearing as to their parents' rights if they cannot put before the court the evidence of the work done with them which could have been done if the local authority had pursued it, but which only the local authority (or in conjunction with the local health authority) could afford or initiate.
The father's case will be based upon the Human Rights Act and the power of the court to require the local authority to meet their duties thereunder and / or section 38(6) of the Children Act 1989.
As I understand the jurisdiction of this court, and this is all a bit of a chicken and egg argument in its way, and I put it this was for this reason: that we raise it as a human right point. The power of a county court judge, as I understand it, is that your Honour could make a declaration if you were to find that there was a breach and there could be the question of looking at damages at some future hearing, but as a county court judge this court does not have any injunctive or any other power which could require enquiry into why certain things have not been done and, indeed, in my view the law says that a High Court Judge can indeed make orders relating to expenditure of money, having enquired into the situation.
I do not think so, no. A High Court Judge can make a declaration of incompatibility, although all judges, of course, have to interpret the law in accordance with the requirement of the Human Rights Convention and the Act.
The argument that I advance on behalf of the mother, and I believe it is joined on behalf of the father, is that there are certain conducts by the local authority that may lead a court, when it has listened to the evidence and considered the authorities, to come to a conclusion that there is indeed a breach of Article 8 of the Human Rights Act. It is not a point I am asking your Honour to determine at this point; that cannot really be done until the whole case has gone through. What concerned me when I realised obviously it was not Judge Lloyd dealing with this case this morning but you Honour, is quite clearly we may go through a procedure of a trial, come to the end of that and the court find itself in a difficult situation.
I do not think so. I am perfectly entitled to find there has been a breach of Article 8. What I cannot find is that some statutory provision which is relied upon is incompatible with the Convention and the Act, but I can certainly find that there has been a breach of Article 6, if there has been, and as to the consequences of that breach, again I can deal with that. I can say: "Yes, it should follow that there should be some further assessment" or I can say "Well there has been a breach but it does not affect the position" and the parents will have to prove any damage they can as a result of that breach.
I think I can. If I think there has been a breach of your client's human rights I can adopt one of two course really. I can refuse to make the care order, first of all. I can say I find there has been a breach but I do not think it affects the position. As to whether I can order the local authority to fund the therapy I do not think I have that power, but I am not sure that a High Court Judge could order it either.
Judge: Are there any cases you would like me to look at?
Counsel: No particular case law. This matter really turns upon the jurisdiction of the county court to make orders that can assist the parents and MV in having an opportunity to have this work done.
Judge Do you want me to look at any textbook on the point, what the different powers of the court are?
Counsel I have the text with me. I will see if there are any particular elements that would be helpful and I will draw them to your honour's attention at ten past two. It is more that there is a stark difference in my understanding of the powers of the county court and High Court jurisdictions….
It is not under the Children Act, but under the Human Rights Act remedies available under section 8 are to order what is just and reasonable within the powers of that court. The High Court therefore has access to a number of other powers that are not open to the county court, including inherent jurisdiction, whereby the local authority can be enjoined.
Judge: There must be an authority that you can point to where the High Court has said: "Yes, we will order treatment and therapy and the local authority will have to pay for it.
Counsel Your Honour, I will see if there is a particular authority I can refer your Honour to. I had not anticipated that this particular part of the argument would be in issue. I do understand that there is this extra power to enjoin
Judge I think I have to be satisfied that there is this difference, because Judge Lloyd has a busy list this week and it may not be that easy just to swap cases.
There is no further reason for delay. We are not delaying for the sake of it, but in order to permit the court to be able to make really the only orders which would permit MV and her parents to be treated properly and have their rights properly met by the local authority, and we say the Human Rights Act does require that of them, that this court cannot require it of them, but there are various steps that the High Court can take, including summonsing various evidence, enjoining them to explain the absence of funding and possible even to actually order the funding and that is not open to this court, the county court.
Judge: You say that with great confidence. I would just like to be referred a bit more to ……
Counsel: I will certainly do my best to discover the specific authority. I had not anticipated that that element of the argument would be an issue.
I do not want to cut you off, but I think I can shorten this, although I am not, I have to say, at all happy about it. I have spoken to Judge Lloyd and there is a practice on the South Eastern Circuit that if a human rights point is raised and is to be persisted in, then that should be dealt with by a High Court Judge and not a section 9 judge, and what should have happened here is that an application should have been made for a declaration of a breach and for any ancillary orders, depending on that outcome. I am not suggesting that the whole case is transferred to the High Court, but as to whether or not there is a breach then that should be dealt with by a High Court Judge. That is what has been agreed between Judge Lloyd and Mr. Justice Johnson is the proper way forward where a human rights point is raised. The point that is raised is, on reflection, whatever the merits in this particular case are, quite fundamental. (Our emphasis)
Miss Lazarus: Absolutely
The parents will lodge their application within three days; the application will be transferred straightaway to the High Court and be listed as soon as possible and as a matter of urgency.
Thirdly, there is no basis for transferring a case up from the FPC to the county court or from the county court to the High Court merely because one of the parties seeks to raise a human rights argument or to rely on a European Convention right. I dissent entirely from any suggestion that the FPC or the county court is, as such, incapable of dealing with such points. Of course, a care case may raise some genuinely novel or complex human rights argument that can only be dealt with in the High Court. But that will not be so of the general run of such arguments. Most human rights claims in this area of the law involve no more than the application of principles, which are now not merely well established in the Strasbourg jurisprudence but also expounded in the increasing number of reported domestic cases, which have analysed and summarised this jurisprudence. The present case is a good example of the point. The FPC is, in my judgment, quite capable of determining by reference to the relevant domestic authorities - many of which, as it happens, I have referred to in this judgment – whether, as the mother alleges, the process here was flawed and unfair. Evaluating whether the local authority's care plan is wrong, as she asserts, is precisely the kind of exercise that every court hearing care cases – the FPC included – has to deal with every day of the week. The procedural issue to which the present case has given rise perhaps needed to be resolved by the High Court, but that I have done, I would hope once and for all. The substantive issues in the present case are quite within the capacity of the FPC or the county court. They do not, in my judgment, require a High Court Judge. ….
Even had the proceedings been well founded in law, the proper forum was to challenge the care plan in the care proceedings. There the full merits – as opposed to the bare lawfulness – of the decision fell for debate.
I hope that no court is again required so painstakingly to consider the lawfulness of a decision when the real issue is as to whether it best serves the child's interests.
The failure to cite Re L to the judge
"…human rights challenges to care plans and placements of children in care should be heard in the Family Division of the High Court, and, if possible, by judges with experience of sitting in the Administrative Court".
K and T v Finland
"the guiding principle whereby a care order should in principle be regarded as a temporary measure, to be discontinued as soon as circumstances permit, and that any measures implementing temporary care should be consistent with the ultimate aim of reuniting the natural parents and the child (see, in particular, the above-mentioned Olsson v Sweden (No 1) judgment paragraph 81). The positive duty to take measures to facilitate family reunification as soon as reasonably feasible will begin to weigh on the responsible authorities with progressively increasing force as from the commencement of the period of care, subject always to being balanced against the duty to consider the best interests of the child (our emphasis).
Declarations of incapacity and the exercise of the inherent jurisdiction
|In our judgment both propositions are unarguable in the light of the decision of the House of Lords in Re S (Minors) (Care Order: Implementation of Care Plan): Re W (Minors) (Care Order: Adequacy of Care Plan)  2 AC 291 (Re S; Re W) This was the first full blooded attempt to argue that the Act was not HRA 1989 compliant. It failed. The short message from Re S; Re W is that whatever its imperfections, the Act is HRA compliant.
It is, of course, the case that both Re S and Re W were cases in which care orders had been made, and the original care plans had not been implemented. However, applications for declarations of incompatibility were not pressed in the Court of Appeal, and the decision of the House of Lords on compatibility applies in our judgment to the operation of the Act both pre and post the making of a care order: see the speech of the former Lord Chancellor, Lord MacKay of Clashfern, one of the architects of the Act at  2 AC 291 at 327 (paragraph 109) and the speech of Lord Nicholls of Birkenhead at  2 AC 291 at 312 (paragraph 35) and 317-8 (paragraphs 57-59). As Lord Nicholls points out, a failure by the state to provide an effective remedy for a violation of article 8 is not itself a violation of article 8. So, even if the Children Act does fail to provide an adequate remedy, the Act is not for that reason incompatible with article 8. That, he said, was the short and conclusive answer to the incompatibility point.
The way forward