COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MR JUSTICE HEDLEY
IN THE HIGH COURT OF JUSTICE FAMILY DIVISION
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE TUCKEY
LORD JUSTICE WILSON
|C (A Child)|
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Mrs J Crowley QC & Miss E Hudson (instructed by South Gloucestershire County Council) for the Respondent
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Lord Justice Thorpe:
"Given the circumstances reported to the local authority and their long term knowledge of Nina, I am satisfied that they were entitled to meet in her absence and, as a matter of emergency, to remove C from her care."
"There was a significant procedural breach of her rights when they went on in the same meeting to decide to abandon the care plan."
" It would be it seems to me wholly unfair on the local authority, when the rules have not been complied with and that proper notice has not been given, and it is right to say that counsel for the local authority did her best, but was very much having to do it "on the hoof" it would be quite wrong of me to make any findings against the local authority of a breach of the European Convention on Human Rights and I do not propose to do so."
"(a) Failing to involve Mr Scott, the Families' First social worker
(b) Failing to involve C's social worker in Gloucester
(c) Going straight to the draconian intervention of removal
(d) Beyond the emergency, abandoning rehabilitation without fuller trials and consultations."
"Accordingly when the matter came before me, I had three effective distinct applications. First there was Nina's application under the 1998 Act whereby she sought injunctive relief compelling the local authority to place C with her under a rehabilitative care plan or for such further or other relief as the court might think just. Secondly there was Nina's adjourned application for contact possibly to be used as an alternative vehicle for securing rehabilitation. Then there was the local authority's freeing application which by virtue of the transitional provisions in the Adoption & Children Act 2002 still fell to be determined under the Adoption Act 1976. C has not yet been matched or placed, though the search for a placement is well advanced and is unlikely to cause delay.
C remains subject to a care order and it therefore necessarily follows that the jurisdiction of the court under the Children Act 1989 to determine his future is limited to discharging the care order (whether by a further application under Section 39 or by making a residence order which by Section 9(1) would discharge a care order) or defining contact under Section 34(2) of the Act. In reality (as Judge Rutherford had already held) discharging the care order was unrealistic for even were C to be placed with Nina his welfare would require the continuance of a care order; rightly that application was not renewed. Whilst technically an order under Section 34(2) could be used both to defeat the freeing application and to advance rehabilitation, that would be to use those powers for purposes which they were not intended i.e. going significantly beyond contact.
It follows that the application under the 1998 Act assumes an unusual degree of significance in this case because it offers to Nina the only possible route to C's rehabilitation with her. It seems to me therefore that the court should start with this application. That involves two questions:
a) has there been a breach of Nina's or C's human rights by this local authority and,
b) if so, what remedy should the court grant?
The case advanced on behalf of Nina is that her rights were breached both in the decision to remove C from her care on 5th January 2005 and in the execution of that decision the following day. Moreover, it is said that that breach is continuing in that C's welfare would now require a placement with his mother and the local authority refuse to take that step thus perpetuating a breach of Article 8(1) of the E.C.H.R. without having any justification for so doing under Article 8(2). In my judgment the court should start with a factual examination of the events of January 2005."
"In circumstances where he was not seeking the rehabilitation of the child to the mother the judge wrongly found that a declaration as to the breach of human rights suffered by the mother provided her with 'just satisfaction'. He should have held that an award of damages was necessary to afford just satisfaction within the meaning of section 8(3) of the Human Rights Act 1998 and, further, assessed the amount of such damages.
In not awarding damages the Judge wrongly failed to take into account the principles applied by the European Court of Human Rights in relation to the award of compensation, contrary to section 8(5) of the Human Rights Act 1998."
The Development of the Issue.
"Q. If you had known, say on Wednesday you'd been told, look Nina, there are real problems going on here and we are going to have a meeting on Friday to decide whether or not we're going to take C away from you, but it looks like he's going to be taken away from you but we want to hear, we want to have a meeting; you can come to the meeting where the decision is going to be made. What would you have done between Wednesday and Friday do you think?
A. Rang my solicitor.
Q. You would in all probability have tried to get away with C wouldn't you?
Q. Back to Gloucester where you wanted to be?
A. No. Believe me, if I wanted to do that I would have done it. I would have tried it by now. I'm not that stupid.
Q. You would have been furious wouldn't you?
Q. Because you were furious.
Q. You would have been furious wouldn't you, because you were furious on the Thursday when you knew that C was being taken?
A. Yes, but who wouldn't be?
Q. when you knew that C was being taken.
A. Who wouldn't be?
Q. You were violent weren't you?
A. Yes I was, but who wouldn't be?
Q. It was predictable that that would be how you would react wasn't it?
A. I don't know."
"I have no doubt that the mother is entitled to a declaration. I find damages more problematic; this is partly because of the lack of guidance as to quantum. The European jurisprudence suggests that reparation is secured by really quite modest awards. Partly, however, it is because I do not think that the concept of damages sits easily with the welfare jurisdiction of family law. In this case I have concluded that damages is not an apt remedy and that just satisfaction here can be made for this breach by a Declaration"
"(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
(3) No award of damages is to be made unless, taking account of all the circumstances of the case, including (a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and (b) the consequences of any decision (of that or any other court) in respect of that act, the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made
(4) In determining (a) whether to award damages, or (b) the amount of an award, the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention."
"If the Court finds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."
a) She would have been unlikely to have attended and
b) Even had she done so the outcome was unlikely to have been any different.
The exercise of this Court's discretion.
"In a number of cases, violations of Article 8 have been concerned with the taking of children into care by public authorities. In these cases, it is the manner of the decision, rather than the justification for the decision to place the children into care, which is the subject-matter of the dispute. For example, the Court has found violations of Article 8 on account of the undue length of proceedings, or for insufficient involvement of the parents in the decision-making process.
As has been noted, these cases seem to form a distinct category. The applicants, who are usually the parents of the children in question, have generally been successful in recovering substantial damages. In making such awards, the Strasbourg Court has acknowledged the considerable distress and in some cases the loss of opportunities suffered, and has shown a greater willingness to speculate than in other types of case. The Court has been prepared in some cases to compensate the applicant for a 'loss of relationship' with his or her child. Perhaps these features of the Court's treatment of the case-law in this area can be attributed to the importance of the right in question and the lasting impact that a decision to place children in care will have on both applicants and their children."
"The Court would recall in the first place that the principal judgment was in no way concerned with the justification for such matters as the taking into public care or the adoption of a child or the restriction or termination of the applicant's access to him. Violations were found solely on the following grounds: as regards Article 8, the applicant's insufficient involvement in the local authority's decisions to place S with long-term foster parents with a view to adoption (January or February 1980) and to terminate his and his wife's access to the child (April 1980), together, as a subsidiary point, with the length of the wardship proceedings (January to October 1981); and, as regards Article 6(1), the non-availability of a judicial remedy on the merits of the access."
"Nina was ambivalent about continuing to care for C, stating almost immediately upon arrival that she had been considering "quitting". She believed that C's removal was likely if not inevitable, that she was powerless and that the LA's intention had always been for C to be adopted. Nothing could convince her otherwise. By "quitting" she was effectively short-circuiting (my words) the process.
Nina made several global statements alluding to causing injury to anyone who tried to remove C from her care. She again directed a considerable amount of ire towards Janet Fraser, stating that she would "need a hospital bed". Nina also stated that anyone attempting to remove C would be "seriously hurt."
"I have been asked by my client department to write to ask for your assistance in speaking with Miss Palmer. Does she really not want to have any further contact with C? Is this just her initial reaction to the distressing recent events? We would be grateful for any input that you are able to give."
"Had proceedings been issued timeously (as they should have been) then in my view the highly probable outcome would have been the quashing of that decision and an order that the local authority should reconsider the whole matter in proper form. Had that happened it is difficult to say what the outcome would have been save that a re-affirmation of the original decision would have been distinctly probable, given the unlikelihood at that stage of Nina co-operating with the professionals, but not inevitable."
a) That the council gave Mr Foster every opportunity to issue a legal challenge
b) The appellant's circumstances and emotional state effectively precluded the option of an emergency application.
Lord Justice Tuckey:
Lord Justice Wilson:
"Our approach to awarding damages in this jurisdiction should be no less liberal than those applied at Strasbourg or one of the purposes of the HRA will be defeated and claimants will still be put to the expense of having to go to Strasbourg to obtain satisfaction."
"Where there is no pecuniary loss involved, the question whether the other remedies that have been granted to a successful complainant are sufficient to vindicate the right that has been infringed, taking into account the complainant's own responsibility for what has occurred, should be decided without a close examination of the authorities or an extensive and prolonged examination of the facts. In many cases the seriousness of the maladministration and whether there is a need for damages should be capable of being ascertained by an examination of the correspondence and the witness statements."
(a) In January 2005 the mother was aged only 16 and was herself in the care of the local authority. It behoved them to be punctilious in respecting her rights for it was clear that she would be likely to be unable effectively to assert them for herself.
(b) At the hearing on 14 December 2004 it must have been clear to the mother, represented by solicitors and counsel, that adherence to the care plan then drawn, and endorsed by the court, represented the last chance for C to be rehabilitated with her. In the plan it was expressly stated that "if it became necessary to remove C from [her] care, an adoptive placement would be sought". It was also stated to be "envisaged that the placement [of mother and child] in the Torquay area will continue for 3 - 6 months".
(c) When visited by Mr Scott on 4 January 2005, the mother presented, in the terms of his note, as "fatalistic in the sense that the imminent removal of C was a fait accompli"; she told him that she had been considering "quitting" and that she would not continue to accept assessment in Torquay.
(d) On the same day Mrs McCarthy, the local authority's lawyer, informed Mr Foster, the mother's solicitor, of the gravely deteriorating relationship between the mother and the foster mother in Torquay. In the light of the finality of the care order, he was probably then without immediate public funding; but, in the finest tradition of solicitors who have recently represented parents (and children) in care proceedings, Mr Foster declined on that basis to wash his hands of the emergency.
(e) On 5 January, pursuant to a request by the social services department, Mrs McCarthy informed Mr Foster that, in the light in particular of the mother's threats towards the foster mother, including to "do her in", they considered that the placement had broken down and that C should be removed immediately.
(f) Later that day Ms Fraser, one of the local authority's team managers, also spoke to Mr Foster and explained why the local authority proposed to remove C from the mother's care on the following day. It was only in that conversation that it was made clear to Mr Foster that the anticipated move of the mother and C to the new foster home in Torquay had already taken place.
(g) On 6 January, by letter sent by fax, Mrs McCarthy formally informed Mr Foster that the local authority would on that day remove C from the mother and explained their reasons for so doing.
(h) On the same day, when told that C was being removed from her care, the mother brandished a wine bottle at another of the local authority's team managers; threatened to kill her; grabbed her hair; kicked her; and later tried to punch her.
(i) On 7 January 2005, by letter sent by fax, Mrs McCarthy told Mr Foster that C had been removed into separate foster care; that the mother had said that, had it become the local authority's intention to cause him to be adopted, she did not wish to have further contact with him; that she was refusing to speak to anyone in the social services department; and that the local authority were therefore asking for his assistance in speaking to the mother.
(a) that on 14 December 2004 it was obvious to all, including the mother, that, were the local authority later to remove C from her care, the removal would, subject to the court's contrary order, be permanent;
(b) that the local authority believed that to invite the mother herself to a discussion on, or in the days or weeks after, 5 January 2005 about whether C's removal from her should be permanent was impracticable in the light of her uncooperative, aggressive and indeed violent attitude towards them;
(c) that they believed that instead, in order to safeguard her interests, it was sufficient, by about eight communications between 4 and 7 January, to inform the mother's solicitor about the development of the crisis, even though, as a result of the move of foster home in December 2004, he was initially unable to get into touch with her and so was dependent upon her getting into touch with him;
(d) that following the decision dated 5 January further proceedings in court in which the mother's voice would be heard, for example the application later issued by the local authority for an order that C be declared free for adoption, were inevitable; and
(e) that, as ultimately occurred when on 7 March she issued an application for discharge of the care order, it was open to the mother after 6 January, indeed more swiftly than in the event she did, to issue proceedings for discharge of the order or for an injunction under the Act of 1998 by way of challenge to the local authority's decision not only to remove C from her but to proceed to a permanent alternative placement of him. It was also open to her, by Mr Foster, to ask the local authority to convene an urgent meeting at which she and he, or more probably just he, could make representations about C's permanent future.