England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
HER HONOUR JUDGE ROBERTS
THE FAMILY COURT
SITTING AT CHELMSFORD

		The Royal Courts of Justice Strand, London, WC2A 2LL
		8 November 2017

LORD JUSTICE MOYLAN:

1. This is the hearing of the father's appeal from the dismissal of his application under section 47(5) of the Adoption and Children Act 2002 ("the 2002 Act") for leave to oppose the making of an adoption order in respect of his child, who I will call "R". The order was made by Her Honour Judge Roberts on 30^th March 2017 sitting in the Family Court.
2. At this hearing the father has been represented by Ms Obi-Ezekpazu. The First Respondent, local authority, has been represented by Mr Crawley and the Second Respondents, the prospective adoptive parents, have been represented by Ms  Cudby.
3. The appeal could be described as unusual in that the father has been refused permission to appeal to challenge the merits of the decision to dismiss his application for leave. He was given permission to appeal on two grounds only which are connected with an application he had made under the Human Rights Act 1998 ("the 1998 Act"). The grounds are to the effect the judge was wrong not to transfer the "case" to the High Court because the father was claiming that section 47 of the 2002 Act is incompatible with the European Convention on Human Rights ("ECHR"). Ms Obi-Ezekpazu argues alternatively that the judge was wrong not to adjourn or stay the determination of the father's application under section 47(5), and consequently the adoption application, pending the determination of his application for a declaration of incompatibility.
4. I make clear at the outset of this judgment that this case concerns and concerns only a claim for a declaration of incompatibility. Section 4 of the 1998 Act limits the courts which can make such a declaration to those set out in section 4(5). They include the High Court but do not include the Family Court. Family Procedure Rules 2010 PD29B, paragraph 3.1, provides that the hearing and determination of a claim for declaration of incompatibility are confined to a High Court judge. It also provides that claims can be heard and determined, I quote, "In the family court by a judge of high court level." At first sight, this would seem to conflict with the provisions of the 1998 Act but because this is not relevant to this appeal, that issue has not been further explored.

Background

5. Summarising the background briefly. A placement order was made in respect of R in August 2013. The father's application for permission to appeal that order was refused by the Court of Appeal. R was then placed with prospective adopters in June 2014. They subsequently made an application for an adoption order. The father indicated, it is not clear whether he ever made a formal application, that he sought leave to oppose the adoption application. He was directed to file a statement setting out the change or changes of circumstances on which he was relying. This was necessary because, before the court can give leave under section 47(5), the court must be satisfied that there has been a change of circumstances since the placement order was made (section 47(7)).
6. In his first statement dated January 2017, the father said, under the heading, "My change of circumstances", that "Not a lot has changed." The father filed a second statement just before the hearing fixed to determine his application. In that statement he said that he did, "Not see why I need to ask the court permission to oppose the adoption order". He also said that, until his claim for a declaration had been determined, he did not consider it appropriate to seek to demonstrate any change of circumstances.
7. On 28^th March 2017 the father issued a claim (under Civil Procedure Rules 1998, Part 8) for a declaration under the 1998 Act that sections 24 and 47 of the 2002 Act were incompatible with the ECHR.

30^th March 2017 Hearing

8. At the hearing on 30^th March 2017 the father was represented by Ms Obi-Ezekpazu and the local authority was also represented by counsel. An application was made on behalf of the father that his application for leave and the adoption application should be transferred to the High Court because of his claim that section 47 of the 2002 Act was incompatible with the ECHR. It was argued on his behalf that that claim had to be determined before his application for leave to oppose and the adoption application could be properly determined.
9. As the judge made clear in her judgment, the father's Part 8 claim under the 1998 Act was not before her and was not being determined by her. That was clearly, in part, because she had not even seen it. Her order makes no reference to that claim and, in her judgment, the judge correctly noted that it remained open to the father to proceed with his Part 8 claim. In saying this I recognise, of course, that the purpose of the father's Part 8 claim was to seek to make his application under section 47(5) unnecessary.
10. The judge considered whether she should transfer the adoption application to the High Court and/or should adjourn determination of that application and the father's application for leave pending the determination of his Human Rights Act claim. In that context, the judge considered the likely merits of that claim and the merits of adjourning the applications before her. The judge referred to Re CB (A Child) (No. 2) (Adoption Proceedings: Vienna Convention) [2016] 1 FLR 1286 in which Sir James Munby President said at paragraph 83:

"The second point is that, whatever the concerns that are expressed elsewhere in Europe, there can be no suggestion that, in this regard, the domestic law of England and Wales is incompatible with the UK's international obligations or, specifically, with its obligations under the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. There is nothing in the Strasburg jurisprudence to suggest that our domestic law is, in this regard, incompatible with the Convention. For example, there is nothing in the various non-consensual adoption cases in which a challenge has been mounted to suggest that our system is, as such, Convention non-compliant."

11. The judge considered, having regard to those observations made by the President sitting in the Court of Appeal, that the father's Human Rights Act claim was, to use the judge's word, "speculative".
12. The judge also referred to the provisions of section 47 and to cases addressing the approach which the court should take to an application for leave, namely Re B-S (Adoption: Application of s. 47(5)) [2014] 1 FLR 1035 and Re D [2015] EWCA Civ 703. The judge decided that delay in making decisions for R would not be in his best interests but would be likely to be "positively damaging".
13. The judge refused to transfer the adoption proceedings to the High Court and she also refused to adjourn the determination of the father's application. She then determined that there was no merit in the father's application for leave. There had been no relevant change of circumstances and R's welfare would be adversely affected by the grant of leave. Further, the judge assessed the father's proposed application as having no prospect of success.

Submissions

14. Turning now to the parties' submissions. I propose only to summarise them in this judgment but I have taken into account all the points raised on behalf of each of the parties, including, in particular, the appellant when determining this appeal.
15. Ms  Obi-Ezekpazu submits that the judge was "required" to transfer the adoption application and the application for leave to the High Court. In the course of her oral submissions, she submitted that the judge did not have the power to deal with the case until the father's Human Rights Act claim had been determined. In her submission, once a claim for a declaration of incompatibility has been made or raised in proceedings, the court has no choice but to transfer them. This, she submits, is the effect of guidance given by the court as to the manner in which Human Rights Act claims made in the course of other family proceedings should be determined. She relies, in particular, upon My Lord, Cobb J's decision of In re W (Children)(Convention Rights Claim: Procedure) [2017] 1 WLR 3451. Alternatively she submits that the court should have adjourned the adoption application and consequently the father's application for leave until the determination of his Human Rights Act claim.
16. In summary, Ms Obi-Ezekpazu submits that the court should not have determined the section 47(5) application prior to the determination of the father's Human Rights Act claim. Additionally she submits that the judge was wrong to rely on Re CB as though it had determined whether section 47(5) is compatible or incompatible with the ECHR.
17. The local authority and the prospective adopters oppose the appeal. It is submitted that the father's Part 8 claim was not before the court, the judge did not determine it and did not make any order in respect of it. Secondly, it is submitted that the judge was right not to transfer the adoption proceedings to the High Court and/or to adjourn those proceedings.
18. In the course of her submissions today, Ms  Cudby pointed to the structure of the legislative scheme. A parent is entitled to oppose the making of a placement order. In her submission, it therefore makes sense that a parent would need to show a change of circumstances when seeking to oppose a later adoption application because, otherwise, the court would be repeating the exercise it had already undertaken when making the placement order.

Discussion

19. Before determining the issues raised by this appeal, I propose to consider the guidance which has been given by the High Court and the Court of Appeal as to the manner in which, describing them loosely, human rights claims should be determined when made in the course of family proceedings. When considering these authorities it is, in my view, important to distinguish between, (i) arguments based on ECHR rights which are deployed in the substantive proceedings and, I would add, are deployed in substantive family proceedings on a daily basis; (ii) claims under the 1998 Act for a remedy or relief other than a declaration of incompatibility; and, (iii) a claim for a declaration of incompatibility.
20. Turning to the authorities. I start with Re L (Care Proceedings: Human Rights Claims) [2003] 2 FLR 160. Starting at paragraph 30, Munby J, as he then was, gave guidance as to how human rights arguments should be dealt with. They should be dealt with, he said, "Within the context of the pending care proceedings", paragraph 31. This was because there was, "no need for any separate, let alone any freestanding, application" because section 7(1)(b) of the 1998 Act enabled every court, "to give effect to the parties' European Convention rights." Self-evidently, in saying this, Munby J did not have in mind an application for a declaration of incompatibility because such declarations cannot be made by every court.
21. In Munby J's view, this applied equally if a party was relying on an ECHR right, paragraph 33. He also referred to the need to avoid delay in the determination of care proceedings, paragraph 29:

"It would be a terrible irony if the necessary pursuit of European Convention rights by unnecessary and inappropriate procedures was itself to add to the scourge of the delay – all too often the unnecessary and avoidable delay - that at present afflicts far too many care cases. Appropriate procedures must be adopted to prevent the proper pursuit of applications under ss 7 and 8 of the Human Rights Act 1998 derailing or unnecessarily delaying the trial of care cases."

22. The next case is the Court of Appeal's decision in Re V (Care Proceedings: Human Rights Claims) [2004] 1 FLR 944. In giving the judgment of the court Wall LJ, as he then was, approved what Munby J had said in Re L including that section 7(1)(b) provided an appropriate remedy within the care proceedings themselves for any 1998 Act "complaints". In that case it does not appear that any formal claim had been issued but it is clear that the relief sought in the informal application made by the parents included a declaration of incompatibility. This was advanced on the basis, or in the event, that the court was unable to interpret its statutory powers under the Children Act 1989 in a way which was compatible with the relevant Convention rights: see paragraph 10 of that judgment.
23. The Court of Appeal viewed that application as "unarguable", paragraph 115, because, in Re S (Minors)(Care Order: Implementation of Care Plan); Re W (Minors)(Care Orders: Adequacy of Care Plan) [2002] 2 AC 291, [2002] 1 FLR 815, the House of Lords had determined that the 1989 Act was "HRA 1998 compliant". Wall LJ also made a brief comment that the circuit judge due to hear the care proceedings, who was authorised to sit as a section 9 judge, could deal with "any HRA 1998 or Convention points under s 6 of the HRA 1998" under section 7(1)(b) of the 1998 Act, paragraph 118. In saying this, he was careful to note that there was, in that case, "no question" of any application being made to the circuit judge for a declaration of incompatibility.
24. The next case is Re H (A Minor) v Northamptonshire City Council [2017] EWHC 282 (Fam). In that case Keehan J was dealing with a claim for damages under the 1998 Act. At paragraph 115 he said:

"I respectfully agree with Munby J's general proposition that a court hearing public law proceedings should deal with any associated HRA claim brought by one of the parties to the care proceedings. His concern was to prevent the proliferation of satellite litigation in respect of HRA claims. The judgment should not be read, and was plainly not intended to be read, as requiring parties seeking HRA damages to issue his or her claim within the existing public law care proceedings. On this basis the decision in Re L and the decision in Re V may be distinguished from proceedings in which a HRA claim is pursued and damages are sought. Therefore, where the remedy sought in the HRA claim is not limited to injunctive or declaratory relief but includes a claim for damages, it is almost inevitable that those representing the claimant will be well advised to issue separate proceedings and to seek the issue of a separate public funding certificate because of the potential applicability of the statutory charge in respect of any HRA damages awarded."

25. The final case is, My Lord, Cobb J's, decision of Re W. In that case Cobb J made a number of general observations including that it was, "appropriate for HRA 1998 claims which arise in, and on the same facts as, CA 1989 proceedings to be considered by the court within the CA 1989 proceedings. Section 7(1)(b) enables every tier of the Family Court … to give effect to the parties' rights under the European Convention" paragraph 3(i). At paragraph 3(iii) he said:

"Applications for substantive relief (declarations and/or damages) under the HRA 1998 Act should be issued as civil proceedings by way of a CPR Part 8 claim and should not be issued on a form C2 (even if within existing CA 1989 proceedings. While FPR 2010, r 29.5(2) requires the party who seeks to rely on a European Convention right under the HRA 1998 to notify the court of this intention by way of "application or otherwise in writing", it is, in my judgment, important that claims for substantive relief such as declarations and/or damages should be issued formally, even if made within existing proceedings; if the party is seeking to "rely on the Convention right or rights" (s 7(1)(b)) within the CA 1989 proceedings to influence the manner in which the family court exercises its powers, a lesser degree of formality contemplated by r 29.5 may well be appropriate. In my judgment, an application for substantive and significant relief should not be "made" by a party's advocate merely introducing such a case (albeit in writing) in a skeleton argument for court, as happened here."

26. He also said in paragraph 28:

"Munby J in the passage emphasised above [2003] 2 FLR 160, para 25 advises that a Human Rights Act claim arising in the context of ongoing family proceedings can and should ordinarily be dealt with "by the court" dealing with the care proceedings and "within the context" of those proceedings. This is apposite where the relief to be awarded under section 8 of the 1998 Act coincides in large measure with the relief or orders which the court may wish to make in the Children Act proceedings. But where declarations of unlawfulness and damages are sought which do not have an impact on the outcome of the Children Act proceedings, there is much less justification for uniting them. There is a real risk that in doing so, the Children Act proceedings become bogged down. A Human Rights Act claim should never be permitted (as it has in this case, I believe) to prolong the Children Act litigation."

I agree with and, indeed, would emphasise the last sentence.

Determination

27. I now turn to my determination of this appeal. I deal first with the submission that the judge was required to transfer the adoption proceedings, including the father's application under section 47(5), to the High Court so they could be determined together. In my view, the simple answer is that the judge was not required to do this.
28. First, nothing that was said in the cases to which I have referred was specifically directed to claims for a declaration of incompatibility. Secondly, they give general guidance which has to be adapted to the particular circumstances of a case. Although a judge is not bound by the guidance or otherwise as to how to respond to such a claim being made, I recognise that, in accordance with the guidance, it may be appropriate for a claim for a declaration of incompatibility to be determined in the High Court within or with the substantive proceedings. However, whether this is appropriate depends on a number of factors including, critically, the likely impact on the duration of the substantive proceedings and on the child or children's welfare and the merits of the 1998 Act claim. The merits of the claim are a relevant factor because the court has to determine whether there is a sufficient prospect of that claim succeeding so as to create a real prospect of its determination impacting on the court's determination of the substantive proceedings or of any application made within them. However, to repeat, the court is not required to transfer the substantive proceedings.
29. It follows, in my view, that in this case the judge was equally not required to stay or adjourn the adoption proceedings or the father's application within them. The question which the judge had to determine was whether the father's claim, that section 47 was incompatible with the ECHR, justified transferring adoption proceedings to the High Court or the adjournment of those proceedings pending the determination of that claim. This required the judge to undertake the exercise to which I have already referred, namely to consider the relevant factors, including the likely impact on the duration of the adoption proceedings and on the child's welfare and the merits of the father's 1998 Act claim.
30. The judge in the present case, in my view, undertook this exercise and, again in my view, she reached the right conclusion, namely that it was not appropriate to transfer or adjourn the substantive adoption proceedings including the father's application for leave. In making that decision, the judge was right to consider the merits of the father's Part 8 claim and she was entitled to conclude that the father's claim was "highly speculative" having regard to what had been said by this court in Re C-B. The judge was also right to consider the welfare consequences of a transfer or an adjournment and, again in my view, was plainly entitled to conclude that delay would be "positively damaging" to R's welfare. Further, the judge concluded that there was no prospect of the father successfully opposing the adoption application. In those circumstances, in my view, the judge was not only entitled to decide not to transfer or adjourn the adoption proceedings, including the father's application, but would have been wrong to have decided otherwise.
31. I recognise that the father will see this outcome as having frustrated his purpose in bringing the claim for a declaration because his purpose has been to seek to ensure that his application under section 47(5) did not have to be made and the effect of this judgment is that his application under section 47(5) has been determined. However, as I have sought to explain in this judgment, that outcome, in my view, results from the proper application of what I consider to be the relevant principles applicable to the circumstances of this case.
32. I would also observe more generally that it is difficult to see how a claim for a declaration of incompatibility in respect of the provisions of either the Children Act 1989 or the 2002 Act would be likely to require the postponement of the determination of either care proceedings or of an adoption application. Accordingly, if my lord agrees, I propose that this appeal is dismissed.

MR JUSTICE COBB:

33. For the reasons given by Moylan LJ, I, too, would dismiss the appeal.