IN THE COURT OF APPEAL (CIVIL DIVISION)
(1) ON APPEAL FROM PLYMOUTH COUNTY COURT
(HER HONOUR JUDGE SANDER)
(2) ON APPEAL FROM LUTON COUNTY COURT
(HIS HONOUR JUDGE HAMILTON)
Strand, London WC2A 2LL
Wednesday, 23 May 2001
B e f o r e :
LORD JUSTICE SEDLEY
LADY JUSTICE HALE
| (1) W & B (Children)
|(2) W (Children)
(1) ANNA PAUFFLEY QC and CLAIRE ROWSELL (instructed by Torbay Council Legal Services of Torquay TQ1 3DS) appeared on behalf of the local authority.
(1) ROBIN TOLSON (instructed by Messrs Woolcombe Beer Watts of Newton Abbot TQ12 2QP) appeared on behalf of the guardian ad litem.
(1)+(2) NEIL GARNHAM and CAROLINE GIBSON (instructed by Office of the Solicitor, Department of Social Security of London WC2A 2LS) appeared on behalf of the Secretary of State for Health.
(2) IAN PEDDIE QC and SARAH FORSTER (instructed by Messrs Motley & Hope of Biggleswade SG18 0AT) appeared on behalf of the appellant.
(2) LEE ARNOT (instructed by Bedfordshire County Council Legal Services of Bedford MK42 9AP) appeared on behalf of the local authority.
Crown Copyright ©
LORD JUSTICE THORPE:
The Facts and the Submissions - W & B
"Rehabilitation of them to her care is at the heart of the plan. When this will happen depends, the local authority says, on mother's commitment to her permanent separation from Mr B and to the essential work on parenting and protection which to her credit she wishes to undertake. The parenting work will take place two days a week in Halswell House. Ms Frendo has agreed to undertake the therapeutic work recommended by Mr Herron. This will start in November, continue until March and a report will be prepared in April. Contact to M and J is to take place twice per week."
".... What confidence do you consider, as guardian of the overall picture here, that the court might have in the local authority properly now operating its amended care plan?
A - Obviously I have spoken to the local authority and the undertaking is that they will do this piece of work and I hear what you say that things were not done in the past, but the care plan as it stands now, if they keep to the care plan, there is no reason why all the work that is offered should not be done."
When pressed by Miss Duthie she said at the end of her next answer:
"You know, they have given an undertaking and we have to respect that the local authority will do their work."
"Q - Given the package of support, assessment and help and the local authority's view that these children should, if possible, be reunited with their mother, as the guardian ad litem you would be aware that there are a number of people who are going to help this mother are there not? They are an independent reviewing officer, practice supervisor, social worker, team manager, Nicky Frendo, Hillside, SATTS, and children and family guidance, so on top of that there would be you and the solicitor. She has a lot of support there anyway has she not?
A - There would not be me or the solicitor if there was a full care order.
Q - No, but what I am saying is that there being a full care order, that is a large packet of support for mother."
"I accept that the guardian ad litem will drop out of the picture however I am confident that Mrs Luscombe and Mrs Allen will carry out the care plan and will carefully review the work, therapy and progress that everyone hopes Miss S will make. It was unfortunate that both social workers were only appointed about the time of P's June interview so they had not had the opportunity to get to know the parties or the children before these proceedings got under way. However I am satisfied that they have both responded positively to the discussions before and during this hearing in amending the care plans and arranging for the agreed help and support for Miss S. I am sure they will ensure the work progress in the same spirit and review it in accordance with their statutory duty to do so.
Miss Duthie for mother referring to the Human Rights Act argued that a care order was not necessary or proportionate to the end to be achieved. I cannot agree with that submission. Sadly I have found that Miss S has shown that she is unable to parent or protect the children adequately. The future for M and J is uncertain at present and depends on Miss S's response to the programme of work and therapy the local authority have offered her in support of her wish for the children to be returned to her care. The local authority's plan, if it can be done safely, is to return the children to her care. At present it would not be safe to do so. In these circumstances I am satisfied having approved the care plan that it is necessary for there to be care orders, that it is proportionate to the needs of the children and that it is in the best interest of the children
Miss Duthie also submitted that Miss S would be prejudiced by the making of a care order in that she would have no remedy if the local authority did not adhere to its care plan. Were those circumstances to arise I believe that Miss S could restore the matter to the court either by an application for increased contact or by applying to discharge the care order. I do not see the difficulties which Miss Duthie put forward preventing Miss S from taking one of these courses of action which needless to say I hope will not arise."
i) Reunification within six to nine months. The appellants simply say nothing has happened. Miss Pauffley says that her clients remain committed to rehabilitation although she accepts that the prerequisites to ensure safety will take longer than stated to the judge. Mr Tolson enters his caveat to Miss Pauffley's response.
ii) The family therapy. The appellants point out that the SATTS work has not happened. Miss Pauffley says that since it is court directed work it will be afforded priority and should commence shortly. Mr Tolson points out that it is not court directed work.
iii) An adult social worker for the mother. This is perhaps the appellant's most serious illustration of breakdown. Only after the trial was it discovered that the mother did not meet the criteria set by the department for adult social services. Equally another department concluded that their learning disability service did not appear suitable for the mother's needs. Obviously it is unsatisfactory for services to be promised without a single enquiry to ensure that they are available.
iv) Hillside Family Centre. Here the appellant complains of gross delay which Miss Pauffley has to concede. However she states that the twelve week programme commenced on 5 March and there is no reason to suppose that it will be interrupted. Mr Tolson feels unable to share her confidence.
v) Therapy for the mother. Here the appellant points out that Ms Frendo cancelled her work with the mother because of the failure of the other necessary parts of the support package. Miss Pauffley says that now that the Hillside Family Centre programme has commenced Miss Frendo should be able to resume. Mr Tolson is doubtful and in any event says that a more extensive programme with Miss Frendo than was first budgeted may now be required.
i) the judge was clearly right to make the choice for a full care order;
ii) all the rights and remedies afforded to parents and children after the making of a full care order render the Act fully compliant with the European Convention on Human Rights; and
iii) the clear boundary drawn by this court between the powers and responsibilities of the trial judge and the powers and responsibilities of the local authority require no revision in response to the Human Rights Act 1998.
The Facts and the Submissions - W
"Can the boys go back yet? I ask the question deliberately in that form because, in my judgment, there is no question at all of ruling these parents out long-term. The evidence does not begin to justify it. I have to say that I can see some real hope for the future.
In J's case, and one has to consider this question both from the view of the context of the boys and also the parents, the answer sadly is plainly no. All the professionals are in agreement. J himself has said that he does not want to go back yet.
A has consistently said that he does want to go home but, until the very last letter, he has always qualified that wish with expressions of concern. The possibility of his separate return has been canvassed, but Dr Glaser, in particular, had reservations, as has been seen, and is firmly of the view that, as with J, A should not return yet .... It would be too much of a risk to allow the boys to return home on the basis of any phased return now. Certainly one would therefore have to say that, realistically, their return is ruled out for the next twelve months or so. Regretfully, therefore, I cannot order their return now. Possibly, or even probably, it may be appropriate in twelve to eighteen months, but not now."
"There are a number of wholly unanswered questions on the broader spectrum. For example:1. What is required by way of further assessment and eventual therapy for the boys? How long will it take? What are the chances of success? In particular, even Dr Glaser does not know what J might need. There will have to be a further assessment.
2. What will be the final outcome of the marital work for the parents? The progress that has been made is very encouraging. Will it go on to the stage where Mr Lafon will say, 'yes, the time has now arrived'?
3. What improvements can be made with the mother's personality trait.?
4. Will the S's be coming at all? (A practical question).
Although these questions of necessity remain unanswered, any objective view of further potential significant improvement, certainly so far as the parents are concerned, must, in my judgment, be a positive and optimistic one. The care plan can only be described as inchoate - at its height the submission of a search for the least bad alternative.
The local authority's objective in the proceedings is as clear as could be. As the social worker said, candidly and frankly in her evidence, the desire of the social work team is to get the court to make the decision for a care order now so that we can take a decision as to what is to happen if the S proposal breaks down, and not have to bring it back to court."
"Since, as I made clear during the hearing, the role of the court of first instance is to follow existing and binding authority until a higher court has reconsidered the position in the light of the Human Rights legislation. Accordingly, I have no choice, as I see it, but to follow the existing authority and in particular, Re J."
The Secretary of State
The Historical Background
"Next, the Children Act. One problem I identify is its failure to trust the judges sufficiently .... I understand that the court should not be an appeal tribunal on day to day decisions in relation to the care of the child, but the absolute refusal to permit the judge any say at all in the child's future may well be wrong. An incoming government will wish to give serious consideration to, and consult on, restoring to our judges the ability to tailor court orders to meet the justice of the particular case."
"Before I leave the Children Act, I should mention an aspect which, in the light of eight years experience, it may be right to re-visit. The Act was predicated on the view that where a care order is made the responsibility for the child's care is with the local authority rather than the court. I was of the opinion that it was wise to delineate clearly the boundary of responsibility in this aspect. However, I can see that experience may suggest that critically important aspects of the care plan may be worthy of supervision by the court and that, for example, if key dates in the plan are not attained, the local authority should be obliged to contact the guardian ad litem. If the crisis is not resolved, perhaps the guardian ad litem should be able to bring the matter to the court for consideration."
The Division of Powers
The ECHR and the Human Rights Act 1998
i) First it has been the subject of detailed interdisciplinary debate at the President's Interdisciplinary Conference in 1997 and some degree of more general consultation in the subsequent publication of Divided Duties.
ii) The number of judges with jurisdiction to make care orders throughout the jurisdiction is restricted to less than 200. Of course the professional judiciary decide the most difficult cases but the Family Proceedings Court take many cases not complex for the purposes of trial but requiring great care in the oversight of the care plan. In my opinion an application for directions following the failure to achieve a starred milestone should be made not to the Family Proceedings Court that made the care order but to a judge of the care centre to which its cases are transferred. Clearly there must be a considerable responsibility on the courts to ensure that any extension of function is used sparingly and collaboratively and not for the revival and perpetuation of adversarial issues.
iii) The number of cases in which the duty to report and the power to review will arise should prove to be comparatively rare, certainly in relation to the number of applications for care orders that are issued. Obviously there would be a need to monitor the advent of this development to test the reliability of the speculation that only 200 applications a year would result.
Outcome in the Appeal - W & B
Outcome in the Appeal - W
LORD JUSTICE SEDLEY:
"a change in the law so that the means by which an authority seeking a care order proposes to implement it is placed before the court in summary form and, if approved, is annexed to the care order so as to form part of it. If then any significant change is proposed it will require the authority of the court, given at a further hearing."
"[T]he court would point to the difference in the nature of the interests protected by Articles 6(1) and 8. Thus, article 6(1) affords a procedural safeguard, namely the 'right to a court' in the determination of one's 'civil rights and obligations; whereas not only does the procedural requirement inherent in article 8 cover administrative procedures as well as judicial proceedings, but it is ancillary to the wider purpose of ensuring proper respect for, inter alia, family life. The difference between the purpose pursued by the respective safeguards afforded by articles 6(1) and 8 may, in the light of the particular circumstances, justify the examination of the same set of facts under both articles."
LORD JUSTICE HALE:
' . . . "the child is not the child of the state" and it is important in a free society to maintain the rich diversity of lifestyles which is secured by permitting families a large measure of autonomy in the way in which they bring up their children. This is so even, or perhaps, particularly, in those families who through force of circumstances are in need of help from social services or other agencies. Only where their children are put at unacceptable risk should it be possible compulsorily to intervene. Once such a risk of harm to the child has been shown, however, his interests must clearly predominate.'
A care order is a serious interference with the right to respect for family life, not only of the parents, but also and more importantly of the child. It becomes more serious still if only minimal contact is permitted between them or if the local authority are given permission under section 34(4) of the 1989 Act to refuse it altogether. The most serious interference is an adoption order, which finally and irrevocably brings to an end, not only the parents' parental responsibility for the child but also the legal relationship between the child and the whole of his family of birth. On the other hand, not to interfere where interference is called for may also violate the child's Convention rights: see Z v United Kingdom, European Court of Human Rights, 10 May 2001.
i) It must be 'in accordance with the law'. This means more than that it must have a basis in domestic law; the domestic law must also be adequately accessible and formulated so that it is reasonably foreseeable; and there must be adequate and effective safeguards in that law to protect against arbitrary interference: see Sunday Times v UK (1979) 2 EHRR 245; Silver v UK (1983) 5 EHRR 347; Malone v UK (1984) 7 EHRR 14; and Halford v UK (1997) 24 EHRR 523. Subject to that, however, the need for flexibility and discretion are also recognised, particularly in child care cases: see Olssen v Sweden (No 1) (1988) 11 EHRR 259, para 61; Eriksson v Sweden (1989) 12 EHRR 183, paras 59, 60; Andersson v Sweden (1992) 14 EHRR 615.
ii) It must be in pursuit of one of the legitimate aims provided for in the Article: compulsory measures of care can be justified for the protection of health or morals or for the protection of the rights of the child. The rights of a child are not confined to his Convention rights and in this context include his interests: see Hendricks v Netherlands (1983) 5 EHRR 223; Andersson v Sweden (1992) 14 EHRR 615; Johansen v Norway (1996) 23 EHRR 33.
iii) It must be 'necessary in a democratic society': that is to say, the reasons given for the interference must be 'relevant and sufficient'. It must correspond to a 'pressing social need' and be 'proportionate' to the legitimate aim pursued: see Olsson v Sweden (No 1) (1988) 11 EHRR 259. Thus, at least where there is no question of adoption, the care decision should be 'regarded as a temporary measure, to be discontinued as soon as circumstances permitted, and any measures of implementation should have been consistent with the ultimate aim of reuniting the . . . family' (para 81). The more serious the intervention, the more compelling must be the justification: see Johanssen v Norway (1996) 23 EHRR 33. The most important question in most care cases is therefore whether the proposed interference with the right to respect for family life is proportionate to the need which makes it legitimate.
' . . . the object of the Article is "essentially" that of protecting the individual against arbitrary action by the public authorities. Nevertheless, it does not merely compel the State to abstain from such interference: in addition to this primary negative undertaking, there may be positive obligations inherent in an effective "respect" for family life.'
'The family life for which Article 8 requires respect is not a proprietary right vested in either parent or child: it is as much an interest of society as of individual family members, and its principal purpose, at least where there are children, must be the safety and welfare of the child. It needs to be remembered that the tabulated right is not to family life as such but to respect for it. The purpose, in my view, is to assure within proper limits the entitlement of individuals to the benefit of what is benign and positive in family life. It is not to allow other individuals, however closely related or well-intentioned, to create or perpetuate situations which jeopardise their welfare.'
'One of our guiding principles has been that the court should be able to determine major issues such as the transfer of parental rights and duties where there is or may be a dispute between parents and local authorities, while the management of the case should be the responsibility of the local authority.'
This followed the view of the House of Commons Social Services Committee, in its Report on Children in Care (Session 83-84, HC 360), at para 67, that
' . . . the courts should make long term decisions impinging directly on the rights and duties of children or their parents, and that the local authority or other welfare agency should make decisions on matters which, although they may be of equal or greater importance, are not susceptible to clear and unambiguous resolution.'
'The expertise of a court lies in its ability to hear all sides of the case, to determine issues of fact and to make a firm decision on a particular issue at a particular time, in accordance with the applicable law. It cannot initiate action to provide for the child, nor can it deliver the services which may best serve the child's needs. . . . It is not only important that the reviewing body should itself have the power to deliver the care which it considers best for the child: it is also necessary that the body with day to day responsibility for the child should have a positive duty to "take a grip on" the case and make firm and early decisions without the temptation to pass responsibility to another body. The encouragement of positive attitudes and practices, as well as subjecting them to informed scrutiny, is more important than what could only ever be a limited form of judicial review.'
'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, orb) 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.'
Under section 8(1) of the 1998 Act:
'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.'