England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRIGHTON COUNTY COURT
HIS HONOUR JUDGE HAYWARD

		Royal Courts of Justice Strand, London, WC2A 2LL
		4th February 2004

Lord Justice Wall:

Introduction

1. This is the judgment of the Court.
2. The appeal in this case raises two important questions of practice for all those engaged in the conduct of care proceedings under Part IV of the Children Act 1989. The broader question is the manner in which any claim under section 7 of the Human Rights Act 1998 (HRA 1998) and any issues arising under Articles 6 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) fall to be addressed in the context of care proceedings.
3. The specific question is whether, and if so in what circumstances, it is appropriate either; (a) to transfer care proceedings pending in the county court to the High Court to enable points arising under HRA 1998 and the Convention to be addressed in that jurisdiction; or (b) as in the instant case, to adjourn such proceedings to enable discrete issues arising under HRA 1998 and the Convention to be addressed in the High Court.
4. Although we propose to deal fully with the issues raised, they do not, in our judgment involve any points of law not already clearly covered by existing authority at first instance, most particularly in the decision of Munby J in Re L (Care Proceedings: Human Rights Claims) [2003] 2 FLR 160 (Re L) Moreover, the appropriate procedures identified by Munby J in that case for dealing with points arising under HRA 1998 and the Convention in proceedings under Part IV of the Act were shown to the President of the Family Division in advance of the judgment being handed down, and expressly endorsed by her: - see [2003] 2 FLR 160 at 170.
5. It is a matter of serious criticism in this appeal that neither Re L nor any of the other relevant authorities to which we will refer later in the judgment was drawn to the attention of the circuit judge whose decision is the subject of this appeal. Had they been, we are satisfied that he would not have adjourned the proceedings and made the orders he did.
6. It is well established that where there is a reported decision on a particular point of family law or practice by a High Court Judge, that decision is to be treated as binding on a circuit judge exercising a similar jurisdiction: see Gloucestershire County v P and others [2000] Fam. 1, at 4 B-C (per Thorpe LJ) at 10G (per Robert Walker LJ) and at 12G (per Butler-Sloss LJ). In the instant case, of course, Munby J's decision in Re L has the added authority of the President's endorsement.
7. It follows, in our judgment, that this appeal should not have been necessary. Moreover, it has caused avoidable delay in the resolution of the fate of the child concerned and has involved a substantial waste of public funds.
8. In these circumstances, we propose at the outset of this judgment to set out the law as we understand it to be, together with a summary of our conclusion: -

Generally

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 ([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.

The appeal

9. The case concerns MV, a female child born on 3 July 2003, and now rising 7 months. MV is the subject of an interim care order made in proceedings under Part IV of the Act, which were instituted by the West Sussex County Council (the local authority) on 7 July 2003, four days after her birth. The final hearing of those proceedings, for which three days had been set aside, began before HH Judge Hayward, sitting in the Brighton County Court on 1 December 2003. However, on the first day of the hearing, the judge adjourned the proceedings (including an application by MV's grandparents for a residence order relating to her and an application by her parents for an assessment under section 38(6) of the Act). He also made an order that: "The application by her parents, if made within 3 days, to be transferred to the High Court and be listed as a matter of urgency". It is to be noted that his order did not transfer the care proceedings to the High Court.
10. The "application by her parents" referred to was in fact an application by MV's father, subsequently formulated on 2 December 2003 by his counsel and seeking the following relief:

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.

11. The judge was not invited to give a judgment, and did not do so. His order emerged in the course of a discussion with the advocates before him, of which we have a transcript. He was not asked for permission to appeal. However, the local authority, which, with MV's guardian, had opposed the application to adjourn, made a prompt application to this court for permission, and on 16 December 2003, Thorpe LJ, on the papers, directed an oral hearing of the application on notice with appeal to follow if permission was granted. He directed that the hearing should be expedited to the first available date.
12. At the conclusion of the argument on 14 January 2004, we informed counsel that we were granting permission to appeal; that the appeal would be allowed; that the judge's order would be set aside, and that we were proposing to direct that Part IV proceedings be heard promptly in the county court by a different judge. Enquiries of the retiring Family Division Liaison Judge for the South Eastern Circuit, Johnson J, revealed that the final hearing of the care proceedings could be taken by HH Judge Lloyd between 23 and 25 February 2004. We ordered that the discrete proceedings issued by the father under the Human Rights Act 1998 be stayed. We also reserved the question of the costs thrown away by the successful application for the adjournment and the successful appeal to Judge Lloyd to consider at the conclusion of the hearing, and that he should, in particular, consider whether or not wasted costs orders should be made. We reserved our reasons, which we now give.

The relevant provisions of HRA 1998 and the Convention

13. Although these are very familiar, we will set them out. Section 3 of HRA 1998 is headed: Interpretation of legislation. Sub-section (1) reads as follows:

(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.

14. Section 4 gives the High Court the power to make a declaration of incompatibility in any proceedings in which a court determines that a provision of primary legislation is incompatible with a Convention right. It is, however, to be noted that by virtue of section 4(6) such a declaration (a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and (b) is not binding on the parties to the proceedings in which it is made.
15. Section 6 deals with the acts of public authorities and makes it unlawful for a public authority to act in a way, which is incompatible with a Convention right. Section 7 deals with proceedings, and reads, where relevant, as follows:

(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.

16. Section 8 deals with judicial remedies and provides: -

(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.

17. Article 6 deals with the right to a fair trial and provides that

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.

18. Article 8 deals with the right to respect for private and family live and provides that

(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 facts

19. We are very conscious that the care proceedings are to return to the county court very shortly to be heard by Judge Lloyd. In our judgment, the issues in the case are very clear. Self-evidently, nothing which we say in this judgment should be taken as expressing any view on the merits of the issues which Judge Lloyd will have to decide. Fortunately, as the chronology shows, Judge Lloyd is familiar with the parents' circumstances. Inevitably, however, the judge will be guided by our view of the law, which, in its limited application to the proceedings before him, will, we hope, be of assistance to him.
20. We wish to make it clear at the outset, however, that we see nothing in this case, which makes it in any way unusual or extraordinary. The facts, which follow, will be recognised by any family practitioner as sadly familiar. The outcome of the case is, of course, another matter, and is at large.
21. We take the background from the statement, which counsel for the local authority prepared as her opening for the hearing before the judge. Both MV's parents are disadvantaged people from deprived and abusive backgrounds. Her father, PV, is 41, and her mother AV is 23. The father is a Schedule 1 offender. He had a physically and emotionally abusive childhood. He has a number of criminal convictions for sexual offences between 1979 and 1994. He sexually abused the mother when he was 30 and she was 14. He also has convictions for violence including a violent assault on one of his former wives in 1997.
22. The father has been married three times. In 1985, he married CV. By that marriage there are three children now aged 18, 15 and 13. In September 1993, he married for the second time. By that marriage there are two children aged 9 and 7. There appears to be an issue on the papers as to whether or not he has any direct contact with those children.
23. The mother has an equally sad and abusive background. She was sexually abused by her half brother from the age of 6, and was also sexually assaulted by a neighbour. She met the father first when she was 12. She had her first child, A (not by the father) when she was 15. She then had a relationship with another man who was a Schedule 1 offender who also had a history of alcohol abuse and violent behaviour. By him she had a child, C, born in 1996 whom for a time both the mother and the father claimed was his child, although he declined a DNA test.
24. In 1997 the mother married another Schedule 1 offender, who also drank and was violent to her. They separated early in 1998. The same year, the father moved in with the mother, and they married on 3 September 1999.

The care proceedings in relation to A and C

25. The father has a history of self-harm, and made an apparent suicide attempt in September 1999. In October 1999, care proceedings were started by the Surrey County Council, the area in which the family was then living, in relation to A and C. Following an eight day hearing in the county court in March 2001, HH Judge Parry made care orders and approved the local authority's care plan for the two children, which was for adoption. In giving judgment, the judge recited the history of both parents. Of the father he said: -

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.

26. The judge found that the mother was still under the control and influence of the father. He said:

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

27. The parents' first child, AV was born on 25 December 2001. Care proceedings were instituted by the local authority (the family having moved to West Sussex) in relation to him immediately, and he was placed in foster care shortly after his birth. The care proceedings relating to AV were protracted. The parents underwent a number of assessments. There was a great deal of expert evidence about the parents. In the event, however, the final hearing in February 2003 before HH Judge Lloyd sitting at Brighton came to an end on the third day when the parents revealed for the first time that the mother was pregnant, and that she was expecting another child in June.
28. In these circumstances, the parents withdrew their opposition to the making of a care order in relation to AV, who has since been placed for adoption. The judge, did, nonetheless, and in our judgment correctly, give a short judgment explaining why he was making a care order in relation to AV. A number of his findings are material to the present appeal.

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.

29. The judge had before him a number of opinions from different experts. He summarised the position thus: -

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.

30. The judge also said: -

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

31. Judge Lloyd's references to the expert evidence before him are highly relevant both to the attitude which the local authority has adopted in the proceedings relating to MV, and to the criticism of that attitude advanced by the parents. In her opening summary for the hearing before Judge Hayward on 1 December 2003, counsel for the local authority, Miss Gemma Taylor, put the matter thus: -

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.

32. The parents went to see Margaret Henning again in August 2003. There is a letter to them from Ms Henning in the bundle, dated 19 August 2003, which reads: -

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.

33. The local authority also recorded in its opening to the judge that in 2000 the parents had undergone some treatment over 7 days with Mr. Derek Green of Ray Wyre Associates. There was a report dated 6 June 2000 in the papers. A Personal Relapse Prevention Plan (PRPP) had been drawn up. The local authority's case was that the father had either failed or been unable to apply the PRPP outside the therapeutic setting. The social worker had arranged for a four-way discussion of the father's sexual abuse of the mother involving the parents and the mother's parents. The local authority's case was that there was little evidence of dialogue or frank discussion of a type that would foster co-operation over MV's future care and safety.
34. The local authority's case was also that the mother's own history could only be addressed by CBT, which had not been continued. The mother had attended at a protective parent group for the partners of Schedule 1 offenders, but she had only attended one of the first three groups and the group leader had terminated her attendance.
35. The local authority's case was, further, that whilst the father in May 2003 had expressed the intention to get further assessment and treatment relating to his sexual offences, he had not made enquiries of the general practitioner because he feared that the waiting lists would be too long and because he had to telephone at 8.30am to get an appointment to see the GP, which was too early.

The respective stances of the parties in the current proceedings

36. Thus, when proceedings were issued in relation to MV, the local authority made it clear that it did not see the need for any further assessment of the parents, apart from a core assessment. Its case was that whilst it accepted that the parents' difficulties could only be addressed through therapy, the parents lacked the capacity to engage meaningfully in it. Furthermore, it said, the time-scale for any such therapy / treatment to be effective was inconsistent with the needs of MV, whose future required resolution as a matter of urgency. In addition, the local authority had other concerns about the parents' lifestyle and their capacity to protect and nurture MV, which will need to be investigated at the hearing, but which are not material to this appeal. The stance adopted by the local authority is supported by MV's guardian on behalf of MV.
37. The local authority's decision not to seek further treatment for the parents is criticised on their behalf as a breach of the local authority's obligations to the parents under Article 8 of the Convention, and is said to be contrary to the decision of the European Court of Human Rights in K and T v Finland [2001] 2 FLR 707. This is an assertion with which we will deal in due course.
38. The parents' case, as advanced in the skeleton argument prepared by Miss Mary Lazarus, counsel for the father, is that the local authority has a duty to take positive steps to attempt to reunify the family, and that it is in breach of that duty by "failing to fund or assist in the provision of treatment for this family as identified and recommended in the course of the previous proceedings". The parents' case, in a nutshell, is that they are ready willing and able to engage in further treatment and that they will be able to demonstrate through such treatment that it is safe for MV to be placed with them within an appropriate time-frame.
39. Miss Lazarus recognises that there appears to be no power under the Act 1989 to fund parental treatment in the way that the court can direct the local authority to fund the assessment of a child under section 38(6) of the Act. Her proposed remedy is that the proceedings should be transferred to the High Court for the High Court to grant the relief we have identified in paragraph 9 of this judgment.
40. In our judgment, for the reasons we give later in this judgment, that approach is wholly misconceived.

The conduct of the current proceedings

41. That Article 8 issues normally fall to be dealt with within pending Part IV proceedings is illustrated by what happened in this case. On issue, the proceedings were immediately and rightly transferred from the family proceedings court to the county court, and on 18 July 2003, HH Judge Norrie directed a half day hearing on 31 July to deal with directions, the father's applications for an assessment under section 38(6), and for contact with MV.
42. The directions appointment on 31 July was taken by HH Judge Lloyd. Skeleton arguments were placed before the judge by all the parties - the local authority, the parents and the guardian. Those three skeleton arguments identified the issues in the case very clearly.
43. The local authority's position was, in summary, that which we have already outlined. there was no point in any further assessments of the parents; there had been no change in the parents since the conclusion of the proceedings relating to AV on 20 February 2003. However, the skeleton continued:

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.

44. The skeleton went on to identify the failures to co-operate and to pursue treatment to which we have already referred. It pointed out that there had been a full parenting assessment carried out at a local Family Centre the result of which had been a report dated 4 December 2002 that the parents could only provide passive parenting and demonstrated a lack of empathy and curiosity about their children. The parents had also failed six arranged visits by the social worker and had not been available to meet them save on two occasions when the social worker had been able to see the mother on her own. The argument concluded: -

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.

45. The local authority's case could not have been clearer. Nor, on the available evidence, could it in any sense be described as irrational or improper. The question for the judge will be whether or not it is correct.
46. The skeleton presented to the court on behalf of the father on 31 July was settled by counsel, Miss Camilla Wells. It complained that the local authority had given no consideration to the re-unification of MV with her parents. She submitted, in our judgment correctly, that it was the duty of the local authority to consider re-unification (our emphasis). Miss Wells argued that it was not enough for the local authority to rely solely upon the fact that unsuccessful attempts had been made to rehabilitate AV to his parents' care. MV was a child with her own needs and her right to rehabilitation with her parents if possible.
47. Miss Wells took issue with the local authority over their assertion that no progress had been made. However, there had been funding difficulties and in the main the assessments were now a year old. Miss Wells also joined issue over the question of failed appointments. A number of admissions were made, and explanations put forward. Miss Wells argued that Article 8 imposed positive obligations on the state to act to protect the right to private and family life rather than just refraining from interfering with it. The parents wanted the opportunity of an assessment of their current situation. The local authority should carry out a core assessment and the previous assessment of parental capacity referred should be re-visited and updated.
48. In the light of subsequent events, the concluding paragraphs of Miss Wells' skeleton are significant: -

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.

49. In our judgment, this is a moderate, realistic and well reasoned skeleton argument. It correctly identifies the duty of the local authority to consider re-unification of MV with her parents. It invites the court to offer the parents the opportunity to re-instruct Dr. Baker. It expresses the hope that if treatment is offered, the local authority might be able to contribute to its funding. Everything is to be dealt with within the care proceedings in the county court. There is no suggestion either that the proceedings should be transferred to the High Court or that there are any discrete issues, which require to be dealt with in the High Court.
50. The mother put in a detailed skeleton to like effect. Particular criticism was directed to the decision of the local authority to undertake no assessments in the proceedings but to rely on the evidence filed in relation to AV. Considerable emphasis was placed on MV's rights under the Act, HRA 1998 and articles 6 and 8 of the Convention. It was said that the local authority had a positive duty to consider rehabilitation. A series of directions were sought, including a core assessment from the local authority, and permission jointly with the Guardian to instruct various experts, including Dr. Baker. The brief suggested for Dr. Baker was

…. 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.

51. The mother also sought a direction that the local authority pay one third of the costs of the proposed undated / expert assessments.
52. The guardian's skeleton argument for the hearing on 31 July 2003 pointed out that the judge in his judgment in the care proceedings relating to AV had commented that the risk posed by the father "will remain until he has undergone further treatment and that treatment has been successful". The guardian's view was that there had been no material change since the previous judgment. In the guardian's view there was presently no evidence that any assessments and further treatment would result in any reason for altering the present plan for the child to be placed for adoption.
53. These, accordingly, were the arguments placed before Judge Lloyd on 31 July 2003. The four skeleton arguments are, in our judgment, clear and entirely appropriate expositions of the positions of the competing parties. There was no suggestion that the case should be transferred to the High Court and no suggestion that the issues which arose under HRA and Articles 6 and 8 of the Convention could not be considered on their merits in the proceedings.

The order made by Judge Lloyd on 31 July 2003

54. The judge's order is prefaced by a recital that it was made "on the basis that the mother and the father will be making enquiries about the availability of experts which may lead to representations being made about the dates of the final hearing (the local authority and the guardian being anxious to expedite the final hearing)". On this basis, the local authority was directed to file and serve a core assessment and final care plan by 29 August 2003; the parents were given leave to file statements by 14 August 2003 dealing with the evidence filed by the local authority to date – that evidence to include their proposals for the instruction and availability of experts. A final hearing was fixed in the county court for 5,6 and 7 November 2003, and there was to be a further directions hearing before Judge Lloyd on 15 August 2003 to deal with the parents' proposals for obtaining expert evidence.
55. The hearing on 15 August 2003 was in fact taken by HH Judge Hayward. We do not know why that was. MV's maternal grandparents were joined as parties to the proceedings. Various dates for the filing of evidence were revised. The most important direction for our purpose, however, which was given, was that the parents were given permission to instruct Dr. Baker. The letter of instruction was to be "circulated with 10 days" and Dr. Baker's report was to be filed by 17 October 2003.

Taking stock at this point

56. As at 15 August 2003, the parents had achieved a modicum of success. The local authority had been directed to undertake a core assessment. They had achieved permission to re-instruct one of the experts of their choice. The case had been sensibly case managed to a hearing in November.

The non-instruction of Dr. Baker

57. Despite the order of 15 August, the parents did not instruct Dr. Baker. It is, we think, at this point that the case began to go wrong, and serious questions arise relating to the professional conduct of the mother's solicitor, Mr.D.J. Quelch.
58. Mr. Quelch wrote to Dr. Baker on 27 August. Contrary to the order of the judge, it does not appear that this letter was circulated to the other parties prior to despatch and the local authority solicitor, Ms Hollingsworth, only received it when it was sent to her, not by Mr. Quelch, but by the father's solicitor on 29 September 2003. The father's solicitors advised Mss Hollingsworth that Mr Quelch was taking the lead in instructing Dr Baker because Mr. Quelch had previously been involved. Mr. Quelch's letter of 27 August to Dr. Baker reads as follows (we give it in its entirety): -

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,

Yours faithfully

59. On 2 October 2003, having received a copy of this letter from the father's solicitors, Ms Hollingsworth wrote to Mr. Quelch telling him that if his letter of 27 August 2003 purported to be a letter of instruction, it was inadequate. We cannot but agree. Ms. Hollingsworth reminded Mr. Quelch that pursuant to the judge's order, the letter of instruction was to be circulated. She asked him to do this forthwith. Ms Hollingsworth went on to point out that the matter was now urgent as Dr. Baker was due to file his report by 17 October, and the local authority would strenuously oppose any application for an adjournment of the final hearing. The letter concludes:

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.

60. Mr. Quelch replied on the same day with a letter the entire text of which reads:

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.

61. Ms Hollingsworth replied on 9 October 2003 asking why Dr. Baker had not been instructed and what directions Mr. Quelch was going to seek. She also asked for the name of the mother's counsel. Mr. Quelch replied, unhelpfully, on 14 October 2003 identifying "Clare Jenkens" as his counsel and adding: "I will issue an application when I am ready". Miss Hollingsworth's question as to why Dr. Baker had not been instructed was ignored. Ms Hollingsworth's further and legitimate protest on 17 October 2003 that the letter of 14 October from Mr. Quelch was an inadequate response, and that she was entitled to know the relief Mr. Quelch was seeking, likewise went unanswered.
62. In our judgment, this behaviour on Mr. Quelch's part is bad enough, but it is compounded by the fact that he appears to have concealed from the local authority the reply which he received from Dr. Baker dated 8 September 2003. That letter from Dr. Baker to Mr. Quelch reads: -

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.

63. The local authority says it only found out about this letter because in late October the father told the social worker that Dr. Baker had written to his solicitors. On 28 October Ms Hollingsworth wrote to the father's solicitors asking for a copy of the letter as a matter of urgency and expressing dismay that she had not been kept informed. The guardian was also shown a copy of the letter by the mother in late October. On 28 October 2003, her solicitors wrote to Mr. Quelch asking for a copy. On 31 October the father's solicitors sent Ms Hollingsworth a copy of the letter, pointing out that it had been written to Mr. Quelch.
64. On 28 October 2003, Mr. Quelch wrote to Ms Hollingsworth. We set out the whole of the letter verbatim: -

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.

65. On 5 November 2003, the court, of its own motion, moved the date of the final hearing to 1 December 2003. On the same day, Ms Hollingsworth wrote to the other parties, and urgently sought a further directions appointment to clarify the position relating to Dr. Baker. Mr. Quelch replied on the same day to Ms Hollingsworth: "Thank you for your letter of even date. I on behalf of (the mother) will not be calling Dr. Baker. I take it that is a clear statement of the position."
66. The hearing of the directions appointment took place on 7 November 2003 before HH Judge Coates. No orders were made in relation to expert evidence, and it does not appear that any application for such evidence was made on the parents' behalf. The judge directed that proceedings to free MV for adoption, which had been issued by the local authority, were to be listed at the same time as the care proceedings. All the orders made on 7 November were practical and sensible and designed to ensure that the case was ready to be fully heard on 1 December 2003. Apart from the somewhat delphic reference to human rights in Mr. Quelch's letter of 28 October, the only other reference to human rights issues appears to be a statement in a letter dated 27 October 2003 from the mother's solicitors in which it is said: "we are currently in discussion with counsel in respect to Human Rights issues raised in this case".
67. On 14 November 2003, the father issued an application for a direction under section 38(6) of the Children Act 1989 asking that his ability to parent MV be assessed and that the local authority fund the assessment. We do not appear to have this document in our papers. There is also in the papers a "position statement" also dated 14 November and filed on the mother's behalf, which expresses her wish to parent MV. She accepts that substantial work remains to be done "and relies upon the report of Dr. Baker recently filed in the other proceedings together with the report of Dr. Hibbot (sic) and the other experts". She complains that neither the local authority nor the health authority is prepared to fund further work. She says her right to family life is being removed through a lack of state funding for the appropriate levels of treatment.

Mr. Quelch's conduct

68. Mr. Quelch was not present to instruct Miss Jakens at the hearing of the appeal. She was, accordingly, unable to take instructions on the matters set out in paragraphs 57 to 67 above. On the material available to us, however, the conduct of Mr. Quelch in the period between the making of the directions order by HH Judge Hayward on 15 August 2003 and the hearing of the case on 1 December is strongly to be deprecated. He disobeyed the judge's order of 15 August. He neither wrote nor circulated a letter of instruction as ordered. The letter he wrote on 27 August, whatever its purpose, was manifestly inadequate. He then failed to disclose the reply, which was highly relevant to the proceedings. It only emerged because the mother and the father showed it to the social worker and the guardian. His letter of 28 October to Ms Hollingsworth is discourteous and deliberately unhelpful, as is his letter of 5 November. He does not appear to have made any application to Judge Coates on 7 November for expert evidence to advance his client's case
69. Mr. Quelch's overall conduct strikes us as thoroughly unprofessional and wholly inconsistent with the spirit of purposeful co-operation long required of lawyers in the preparation for care proceedings, and now enshrined in the Protocol, to which we will return. We invite Judge Lloyd at the conclusion of the case, and after hearing Mr. Quelch, to consider whether or not Mr. Quelch's behaviour amounts to a breach or breaches of The Guide to the Professional Conduct of Solicitors (8^th edition, 1999) and in particular paragraph 16.02 (duty in proceedings under the Children Act to disclose experts' reports) and paragraph 21.01 (duty not to mislead the court).

The hearing before Judge Hayward on 3 December 2003

70. Miss Taylor, for the local authority, had prepared a very detailed written opening. There was also a position statement on behalf of the father, dated 14 November 2003 and prepared by Miss Lazarus of counsel who, we understand, had only been recently instructed. That statement complained of what it alleged was the complete failure of the local authority "to provide any form of work or assessment during the course of these proceedings" It argued that this:

…. 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.

71. The position statement argued that work at Dr. Baker's consultancy would fall within the ambit of section 38(6). There is nothing whatsoever in this document about any application for a declaration of incompatibility or a declaration that the local authority had breached the parents Convention rights.
72. We were told at the bar that it was expected that the hearing would be before Judge Lloyd, who is authorised to sit under Section 9 of the Supreme Court Act as a Deputy High Court Judge of the Family Division. Miss Lazarus attributes all the ills which subsequently befell the case to the fact that the advocates found themselves before Judge Hayward, who, to use the jargon, did not have a section 9 Family "ticket" We need to examine that proposition very carefully.
73. After Miss Taylor had explained the background, Mr. Quelch addressed the judge. Even allowing for the fact that we are looking at an uncorrected transcript, Mr. Quelch's submissions are very difficult to follow. He appears to be submitting that the case should be heard by a High Court Judge or a Judge with a section 9 Family ticket. We will, for present purposes, accept what Miss Taylor, for the local authority, tells us in her skeleton argument for this appeal, namely that the parents made an application for the case to be heard by Judge Lloyd.
74. Mr. Quelch began by pointing out that Judge Hayward did not have a section 9 Family ticket, whereas Judge Lloyd did. The judge readily agreed. Mr. Quelch then said:

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.

75. Mr. Quelch cites no authority for that extraordinary proposition, to which the judge, very properly, responded: -

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.

76. Mr Quelch then says: -

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.

77. Once again, the judge correctly refutes this suggestion. He says: -

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.

78. Mr. Quelch then changes tack and tries to argue that what the parents want is not any further assessment, but the funding of therapeutic work. He seeks to persuade the judge that the local authority should have at least considered funding therapeutic work and found out if it could have funded it. He seeks to make the point that the court, unless it was sitting as a High Court, could not make those findings. Once again the judge, correctly, disagrees with him. The judge says:

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.

79. Mr. Quelch says that point will be dealt with by Miss Lazarus. The judge points out, again correctly, that he is not just concerned with the parents' human rights but also with the rights of MV.
80. The first question, which the judge asks Miss Lazarus, is a highly pertinent one. It is: -

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….

81. Before the lunch adjournment, the judge enquired of Miss Lazarus what her authority was for the proposition that the High Court had the power to order therapeutic treatment and / or the payment for it. Miss Lazarus replied: -

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.

82. Miss Lazarus then makes it clear that she would be ready to start in front of Judge Lloyd that afternoon and then says: -

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.

83. At this point the judge asks both counsel for the local authority and the solicitor for the guardian if they agree with the point Miss Lazarus is making. Both emphatically express their dissent. Mr. Bonner, for the guardian tells the judge in terms that his understanding is that the High Court does not have the authority to order that treatment take place and be paid for by the local authority. That again, is plainly correct.
84. Miss Lazarus has a final word before the lunch adjournment as to her understanding of the law. The judge comment: "As you say: 'as you understand'. I want to see chapter and verse."
85. When the court sat again after lunch, Miss Lazarus began, somewhat curiously, with the phrase: "Your Honour, of course, I have not been able to drum up case law and authorities for your Honour to consider". She begins a submission on whether or not work with Dr. Baker could come within the section 38(6) assessment, recognising that, if it cannot, she is in difficulties under the current case law. The judge then comments that he thinks she is "dead in the water on the case law". However, the judge then interrupts the argument with this important paragraph: -

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

86. The judge then proposes that Miss Lazarus draft an application under the Human Rights Act that afternoon. He expresses regret at the delay. At this point, Miss Taylor for the local authority attempts to dissuade the judge from the course he has proposed. She points to the lack of any proper application; she points to the merits; she points to the delay. What she does not do, of course, is show the judge Re L. As a result the judge remains immovable, taking the view that he is bound by the local practice directions. The judge is plainly very unhappy about what he feels constrained to do. He goes as far as to say that he does not think much of the point, but adds that a High Court judge may think it an important one.
87. After further discussion, Mr. Bonner politely intervenes to point out that it might be of value for the High Court to know what the guardian's position was. Mr Bonner expresses the guardian's dismay, expresses the view that the court has been ambushed, and makes clear his opposition. However, he does not refer the judge to Re L.
88. We have already set out the order made by the judge, and the relief sought by the father in the application under the Human Rights Act. Before leaving the transcript, we have to say it seems to us very plain from the passage we have highlighted in paragraph 85 that the judge was not transferring the whole proceedings to the High Court. It seems to us clear that his understanding of the local practice direction was that a section 9 Judge like Judge Lloyd could not deal with the point: it had to be a High Court Judge.
89. In our judgment, this makes sense. If an application for a declaration of incompatibility under section 4 of HRA 1998 were to be made, the Practice Direction of 24 July 2000 [2000] 2 FLR 429 confines the hearing and determination of such an application to a High Court Judge. It would, in those circumstances, be perfectly sensible for any Family Division Liaison Judge to issue a local practice direction that such applications were to be transferred to the High Court to be heard by a High Court Judge. It should be noted that the judge's subsequent references are all to "a High Court Judge".
90. The impression that the judge was only transferring the parents' proposed application (if issued in time) is confirmed in later exchanges between the judge and counsel. For the local authority, Miss Taylor tries to persuade the judge to re-list the case. She complains that in reality a transfer to the High Court means considerable delay. The judge replies: "No, it is quite a short application. I am not inviting you to fix a five or six day hearing in the High Court over this; it is a fairly short application".
91. Further, when making his order the judge refers in terms to adjourning the proceedings. He then says: -

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.

The Law

92. With the important exception of the decision of the House of Lords in Re S; Re W (minors) (implementation of care plan) [2002] 2 AC 291, the authorities relevant to this case are all at first instance. We begin with the decision of Munby J in Re L (Care Proceedings: Human Rights Claims) [2003] 2 FLR 160 (Re L).
93. The facts in Re L were that whilst care proceedings were pending in the FPC, and before a final care order had been made, the local authority had changed its care plan for the child from placement within the wider family to adoption outside the family. The child's mother sought a transfer of the proceedings to the county court and then to the High Court, asking the latter to exercise its inherent jurisdiction to compel the local authority to change its care plan or to provide a remedy under HRA 1998. The order transferring the proceedings specified that the transfer applied only to the mother's application relating to the care plan: the care proceedings themselves remained listed for hearing in the FPC.
94. Munby J held that the High Court did not have jurisdiction to grant the relief, which the mother sought. Whilst it did have jurisdiction judicially to review the decision to alter the care plan, or to entertain an action under HRA 1998, the FPC had jurisdiction under section 7(1)(b) of HRA 1998 to give effect to the mother's rights under the Convention, and the matter should not have been transferred up.
95. Munby J drew an important distinction between cases in which a final care order had been made, and cases where it had not. In the former, the proceedings had come to an end, and the court had no powers under Part IV of the Act save in relation to contact with a child in care or an application to revoke the care order. Accordingly, a freestanding application under section 7(1)(a) of HRA 1998 was the appropriate remedy. In the latter, where the care proceedings were ongoing, section 7(1)(b) provided an appropriate remedy within the care proceedings themselves. It followed that HRA complaints which arose before the making of a final care order should normally be dealt with within the care proceedings and by the court seized of them. In particular, any point arising under HRA 1998 should not be treated as a discrete issue to be separated from the rest of the case for hearing in the Family Division whilst the care proceedings continued in the FPC or the county court. At paragraph 32 of his judgment ([2003] 2 FLR 160 at 169) Munby J observed that it would not only require a wholly exceptional case for this to be done, but also that he found it difficult to envisage a case.
96. Munby J added that the adoption of the appropriate procedure was essential in order to avoid applications under HRA 1998 leading to unnecessary delay in the trial of care cases. HRA arguments should be identified and brought to the attention of the court at the earliest possible opportunity, and if a care case was to be transferred up, that should also be done as quickly as possible and at the earliest possible stage. These observations have recently been reinforced by the provisions of the Protocol for Judicial Case Management in Public Law Children Act Cases [2003] 2 FLR 719.
97. In paragraphs 31 to 36 of his judgment, ([2003] 2 FLR 160 at 168-9), Munby J set out what he described as "appropriate procedures" designed to prevent the proper pursuit of applications under section 7 and 8 of HRA 1998 derailing or unnecessarily delaying the trial of care cases. It is, we think, worth reproducing in full his third proposition: -

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. ….

98. We respectfully agree. We have already noted that the "appropriate procedures" identified by Munby J were shown to the President of the Family Division, Dame Elizabeth Butler-Sloss P before the judgment in Re L was handed down. She endorsed them as the appropriate procedures, which should in future be adopted in such cases. We would also like to give them our whole-hearted endorsement. It is a matter of grave concern that they were not followed in the instant case.
99. We would also like to endorse the observations of Wilson J in paragraph 51 of his judgment in Re C (Adoption: Religious Observance) [2002] 1 FLR 1119 at 1134, which are cited with approval by Munby J in Re L: (2003] 2 FLR 160 at 167 paragraphs 26 and 27. In that case, the guardian of the child in question had sought judicial review of the local authority's decision in its care plan to place the child for adoption with a Jewish couple on the ground that they would not properly serve the needs of the child, who had a complex ethnic and cultural background. Dismissing the application, Wilson J described the guardian's application as, in retrospect, misguided. He added: -

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.

100. Having commented that the application for judicial review in Re C had delayed the resolution of the proceedings for over six months, Wilson J added:

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.

101. These cases are sufficient to dispose of any argument that it was not necessary to cite Re L to HH Judge Hayward. It is, however, of note that the case which follows Re L in the July 2003 issue of the Family Law Reports is Re M (Care Proceedings: Judicial Review) [2003] 2 FLR 171in which the parents of an unborn child sought judicial review of a local authority's decision to take proceedings for an Emergency Protection Order immediately following the birth of the child. Munby J rejected the application, stating that the parents' proper remedy was to defend the proceedings. And in a case published in the Times shortly before the hearing in the instant case Regina (S) v Haringey London Borough Council (2003) Times 27 November the same judge repeated the same message when dismissing an application in the Administrative Court for habeas corpus by a mother in relation to her children, stating that where care proceedings were on foot, the proper place to ventilate relevant issues was in the care proceedings.

The failure to cite Re L to the judge

102. Before us, Miss Lazarus sought to defend her failure to cite the case of Re L to the judge on the grounds that her submission to the judge was that that the care proceedings in toto should be transferred to the High Court. She was not arguing that discrete issues should be transferred. In these circumstances, she argued, Re L was not relevant.
103. We have no hesitation in rejecting that argument. Counsel has a plain duty to bring to the attention of the court any authority, which may be on the point, particularly if it is contrary to the argument which counsel is advancing. Re L, in the colloquial phrase was "bang on the point". Re L deals in terms with the fact that HRA 1998 issues fall to be dealt with in the pending proceedings, and makes clear that there is no basis for a the transfer to the High court because HRA 1998 or Convention arguments have been raised – see paragraph 33 of the judgment ([2003] 2 FLR 160 at 169).
104. Miss Lazarus also expressed some dismay that she had only recently seen the court's order and learned that the judge had not transferred the entire proceedings. She accepts that the judge's order as drawn (which, in our judgment, reflects the discussion in court) falls foul of the guidance given in Re L, but even allowing that there was a misunderstanding on Miss Lazarus' part of what the judge was intending, this does not, in our judgment, excuse the behaviour of the advocates, and Miss Lazarus and Mr. Quelch in particular. The apparent misunderstanding simply underlines and emphasises the serious error they made, compounded by the other advocates, in not citing Re L to the judge.
105. In our judgment the collective failure by the advocates in this case to cite Re L to Judge Hayward is exacerbated by the fact that, in the interventions which the judge made before the adjournment for lunch and which we have set out, it was clear he was alert to the point. His judicial instinct was plainly sound, and would have been reinforced by Re L. It is for this reason that we are confident that, had that case been cited to him, he would not have made the order he did.
106. For the mother, Miss Jakens sought in her skeleton argument to rely on the decision of Dame Elizabeth Butler-Sloss P in C v Bury Metropolitan Borough Council [2002] 2 FLR 868 (Re C). Such reliance is. in our judgment, manifestly ill placed. The President was dealing with a post care order HRA 1998 and Convention challenge to the implementation of changes to the care plan, which had been placed before the court and on the basis of which the care order had been made. The President dismissed the challenge. In the course of so doing, she remarked (at [2002] 2 FLR 868 at paragraph 55) that

"…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".

107. It is abundantly clear that in making this observation, with which we respectfully agree, the President was referring to post care order challenges under HRA 1998 and the Convention, and not to challenges in pending proceedings. A good example of what the President had in mind is the decision of Holman J in Re M (Care: Challenging Decisions by local authority [2001] 2 FLR 1300. Munby J readily appreciated this in Re L (see [2003] 2 FLR 160 at 166, paragraphs 23 and 24. Accordingly, Re C is of no assistance to the mother and the father in this appeal.
108. The collective failure of the advocates, and that of Mr. Quelch and Miss Lazarus in particular, to bring Re L (and the other cases) to the judge's attention demonstrates in our judgment an unacceptable departure from the standards of conduct expected of advocates in family proceedings. It is for this reason, amongst others, that we propose to invite Judge Lloyd to consider orders for wasted costs or the disallowance of fees, at the conclusion of this case.

Complexity

109. We further disagree with Miss Lazarus that the "matter", whether it is the whole of the proceedings or the discrete issue of a declaration of incompatibility, is one of legal complexity. It is nothing of the kind. Sadly, as we have already pointed out in paragraph 20, the facts of this case, and the dilemma with which they present the court are only too commonplace. Of course the case is of importance to MV and her parents, and is in that sense "grave", but nothing in the case in our judgment warrants it leaving the county court.

K and T v Finland

110. In support of her application that permission to appeal should be refused and the matter be listed urgently for directions in the High Court, Miss Lazarus, for the father, argued that it was a "fundamental point" that the local authority "appear to have failed to meet their duty to take positive steps to reunite the family" by deciding to remove MV at birth, and (inter alia) by failing to fund or assist in the provision of treatment for this family as identified and recommended in the course of the previous proceedings. She submitted that the family (mother, father and MV) is entitled to be considered as distinct from the parents' previous families formed of other children not subject to these proceedings. In this context she relies on the decision of the European Court of Human Rights in K and T v Finland [2001] 2 FLR 707.
111. In our judgment, K and T v Finland does not advance the argument in the instant case. The first and obvious point is that the case turns on its facts. The Chamber had found a breach of Article 8 on the ground that there was, on the facts "a lack of any effort to consider seriously the termination of public care despite evidence of an improvement in the situation which had prompted the care orders" (paragraph 177). In paragraph 178, the EctHR recalled

"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).

112. It will, accordingly, be for the judge taking the hearing to decide, on the facts, whether or not there has been a breach of the parents' Article 8 rights, and, if so, whether or not that breach was justified under Article 8(2). It is, however, worth pointing out, we think, that as paragraph 178 of the judgment in K and T v Finland itself recognises, the positive duty to take measures to facilitate family reunion is not, and cannot be an absolute duty. It is always to be balanced against the duty to consider the best interests of the child.

Declarations of incapacity and the exercise of the inherent jurisdiction

113. What we have said so far is sufficient to dispose of the appeal. Whilst we have some sympathy for Judge Hayward, and whilst he was plainly not given the assistance from the advocates he deserved, his decision to transfer the proceedings was plainly wrong. The issues raised by the parents were manifestly capable of being dealt with by the judge in the county court proceedings. The application to adjourn was misconceived, and should never have been made.
114. However, in the light of what happened below, we are anxious that there should be no more misunderstandings, and that no time should be wasted at the hearing before Judge Lloyd on points of law which are unarguable. Accordingly, although we have only stayed, and not struck out Miss Lazarus' claim that a declaration of incompatibility is appropriate in this case, we propose to deal briefly with it, as well as with the suggestion that there is some way in which the High Court could use its inherent jurisdiction to provide a remedy for the parents.

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) [2002] 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 [2002] 2 AC 291 at 327 (paragraph 109) and the speech of Lord Nicholls of Birkenhead at [2002] 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.

115. As to the exercise of the inherent jurisdiction in the context of care proceedings, the short answer, as Lord Nicholls states at paragraph 23 of his speech, ([2002] 2AC 291 at 309), is that while a care order is in force the court's powers, under its inherent jurisdiction, are expressly excluded: see section 100(2)(c) and (d). This, in our judgment, applies equally to an interim care order – see section 31(11) of the Act.
116. Judge Lloyd has a "Section 9 Family Ticket" but he will be sitting as a circuit judge. We do not mean any disrespect to him in so designating him. We do so to emphasise the point that, whilst the evidence and his analysis of it are matters entirely for him, there can be no question either of the exercise of the High Court's inherent jurisdiction in this case, or of any application being made by the parents to him for a declaration of incompatibility. Time should not, accordingly, be spent on either issue. Any HRA 1998 or Convention points under HRA 1998 section 6 can be raised before, and dealt with by Judge Lloyd in his capacity as a circuit judge under HRA 1998 section 7(1)(b).

The way forward

117. The matter will be returned to the county court to be heard by Judge Lloyd. It will be for Judge Lloyd to decide, on all the evidence, whether or not the threshold criteria under section 31 of the Act are satisfied, and, if so, whether the local authority's care plan should be implemented. He will have to decide, on all the evidence, whether or not there has been any breach of the parents' Convention rights, and, if so, what the consequences should be. He will also have to decide if it is realistic for MV to be returned to her parents' care within a time-scale, which is capable of meeting her needs, and if it is, what steps need to be taken to bring that about. He will have to adjudicate on the application under section 38(6) of the Act. No doubt, in the latter context, arguments will be addressed to him on the recent decision of the Court of Appeal in Re G (a child) [2004] EWCA Civ 24. These are all matter for him.

The Protocol

118. This case is not governed by the Protocol for Judicial Case Management in Public Law Children Act Cases [2003] 2 FLR 719, which applies to proceedings instituted after 1 November 2003. It is very much to be hoped that adherence to the Protocol will prevent any repetition of the unhappy events in this case. In particular, proper use of the Case Management Checklist set out at Appendix A/3 to the Protocol will enable issues such as those raised in the instant case to be picked up at the outset of the proceedings, and legislated for in the court's case management.

Footnote

119. Before parting from the case, we wish to emphasise that parents in the position of these parents, with all their disadvantages, have the same HRA 1998 and Convention Rights as anybody else, and in particular are entitled to a fair hearing under Article 6. We are satisfied that this is what they will receive from Judge Lloyd.
120. It is, however, in this context that Mr. Quelch's behaviour over the search for expert evidence is so reprehensible. Lawyers acting in care proceedings for parties in the position of these parents have a duty proactively to co-operate in obtaining the evidence which is required to address the issues in the case. It is simply not enough to argue that the local authority has a duty to fund treatment. If the local authority takes the view that further treatment will have no effect on the outcome, and if the parents disagree, the duty of their lawyers is to obtain the permission of the court to obtain evidence, which will contradict the local authority's stance. And equally, if an approach to an expert produces a negative result, as it did with Dr. Baker, it is wholly impermissible for a solicitor to conceal that result, announce that he is not calling the witness and seek to persuade the court that his client's human rights have been infringed because the local authority will not pay for treatment.
121. Mr. Quelch's behaviour has made the task of the judge more difficult. However, if he comes to the conclusion, having heard the evidence, that the local authority's care plan is premature, it will be open to him to explore avenues for treatment within a specified time-frame under interim care orders. If, however, on the other hand, he takes the view that there is no prospect of MV being reunited with her parents, the sooner that is decided the better. Whichever way the judge decides, we are satisfied that the parents will have a fair hearing in which the right to respect for their family life, and MV's identical right will be fully, fairly and properly considered.
122. In order to avoid any repetition of the unfortunate events demonstrated by this case, we are making arrangements, through the President, for copies of this judgment to be distributed to all the Family Division Liaison Judges, who can then confirm that any local arrangements are in conformity with it.