England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT AT WEST LONDON

IN THE MATTER OF THE CHILDREN ACT 1989
Re A (A Child)

		7 August 2015

The Application

1. On 2 July 2015 with the support of all parties I made a final care order in proceedings brought by the London Borough of Brent ("the local authority") in respect of one child AS, born on 26 May 2006 now aged 9. The care plan is for AS to remain in long term foster care with the carers with whom he has lived since December 2014. The placement was in accordance with AS's wishes.
2. This Judgment addresses the application by MS, AS's mother ("the mother") for

a. a declaration that AS's initial removal by the local authority and the delay in issuing proceedings were breaches of her (and AS's) human rights to respect for private and family life;

b. damages; and

c. costs.

The local authority asserts that the removal was lawful.

The circumstances of AS's removal

3. The following chronology does not appear to be in dispute.
4. A key concern in this case has been the parents' poor or fluctuating mental health. At the material times the father was detained in hospital under s3 Mental Health Act 1983 with a diagnosis of Paranoid Schizophrenia. During September 2014 the mother was admitted to hospital for treatment in relation to her mental health. Thereafter the key dates are as follows:-

a. After a period when he was accommodated in foster care, on 17 September 2014 AS was placed with his paternal grandparents. At this time the mother remained in hospital;

b. On 6 October 2014 at a discharge planning meeting the mother's treating Consultant Psychiatrist indicated that the current diagnosis was mild depression, and that the mother was fit for discharge into the community with support from the home treatment team and then the community recovery team. The mother was on home leave by this time, due to be discharged formally on 9 October 2014;

c. On 7 October 2014 the paternal grandparents arranged for a paternal aunt to take AS back to his mother;

d. On 9 October 2014

i. The mother suffered what appeared to be a relapse in her mental health. She called an ambulance asking to be collected;

ii. The mother had made arrangements with a neighbour to look after AS and take him to school;

iii. The Emergency Duty Team were informed. The social worker spoke to a Mental Health worker who reported that "the mother relapsed whilst she was on leave and that she lacked capacity at that time" [it is unclear the context in which capacity was discussed] and that AS needed to be cared for by "someone appropriate";

iv. The social worker spoke to the neighbour who said she was happy to look after AS for a day or two, however the social worker had significant concerns about the placement;

v. The social worker tried to arrange for AS to return to his paternal grandparents however they were not "unable to look after him for any length of time". There were no other available family members;

vi. The social worker concluded that "a placement was necessary outside of the family under s20 CA 1989 and Social Care management authorised placement for AS in foster care.

vii. AS was placed with foster carers.

e. On 10 October 2014 the mother was detained under s2 Mental Health Act 1989. Her current diagnosis was changed to Bipolar Affective Disorder;

f. On 13 October 2014 the mother's Responsible Clinician, Dr Singh stated that the mother currently lacks capacity to consent to accommodation of AS under s20 CA 1989;

g. On 13 October 2013 Brent held a legal planning meeting. The local authority asserts that the social worker had been in continuous communication with the Mental Health Unit where the mother was detained. The decision was made to issue care proceedings "as there was no parent available to exercise parental responsibilities [sic] for AS and it became apparent that the longer he was in the care of the local authority that the local authority would need to share parental responsibility, particularly as he had begun to present challenging behaviour";

h. On 16 October 2014 the mother received a letter from Brent informing her that AS was in foster care and that care proceedings were being issued. The mother reports that she first learned of the fact that AS was in foster care at some point a few days after his removal when she was informed by hospital nurses who had spoken to the social worker, however the letter was the first she had heard directly from the local authority;

i. On 22 October 2014 the social worker met the mother; she did not consistently accept the local authority concerns for AS;

j. On 27 October 2014 the mother's treating team informed the local authority that the mother's mental health had improved and they felt she had capacity to take part in the proceedings;

k. On 7 November 2014 the treating team informed the local authority that the mother's mental health had deteriorated and she was now detained under s5.2 Mental Health Act 1983 and that the mother no longer had capacity to consent to the accommodation of AS;

l. On 11 November 2014 the local authority applied for a care order;

m. On 13 November 2014 the court made the first interim care order.

The position of the mother

5. The mother asserts that her human rights were breached by the local authority in that they:-

a. Unlawfully removed the child from the mother's care and control on 9/10 October;

b. Failed to ask for the mother's consent for the child to be accommodated on 9/10 October;

c. Failed to establish in any event whether the mother had capacity to consent to the child being accommodated on 9/10 October;

d. Failed to consider that in the event the mother did not have capacity that any consent so obtained would be invalid and the removal unlawful;

e. Failed to issue proceedings in a timely manner;

f. Accommodated the child without the mother's consent between 9/10 October 2014 and 13 November 2014.

The position of the local authority

6. The local authority contends that as AS's mother was unable to care for AS, the local authority were not only able but under a duty to accommodate AS pursuant to s20(1)(c) Children Act 1989 and that a local authority accommodating a child under the duty imposed by this provision is not required to secure the consent of the child's parent.
7. The local authority further contends that it issued proceedings in a timely manner in that the period between 9 October and 11 November 2014 was taken up with the gathering of evidence about the mother's health and about AS's progress at school and in the foster home. "The immediate priority was to work with AS and once she had stabilised, his mother".
8. At all times the local authority has attempted to act in the best interests of AS and his mother. I emphasise that the mother does not challenge the good faith of the local authority.

The other parties

9. Neither the father not the Guardian played an active role on this issue.

The Law: Human Rights

10. The mother's claim is brought under s7(1)(b) Human Rights Act 1998 which states:-

(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)… 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.

11. As to the unlawful act, by s6(1) Human Rights Act 1998

Acts of public authorities.

(1)It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

12. As to remedies, by s8 Human Rights Act 1998

8 Judicial remedies.

(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.

(3)No award of damages is to be made unless, taking account of all the circumstances of the case, including—

(a)any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and

(b)the consequences of any decision (of that or any other court) in respect of that act,

the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.

(4)In determining—

(a)whether to award damages, or

(b)the amount of an award,

the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention.

13. "Just satisfaction" is defined in Article 41 ECHR 1950

If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.

The Law: Removal of a child

14. Under Part III Children Act 1989, Local Authority Support for Children and Families, the local authority provision of accommodation for children is defined in s20 CA 1989. I set out this section is full given its central importance to the competing positions in this case.

20 Provision of accommodation for children: general.

(1)Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of—

(a)there being no person who has parental responsibility for him;

(b)his being lost or having been abandoned; or

(c)the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.

(2)Where a local authority provide accommodation under subsection (1) for a child who is ordinarily resident in the area of another local authority, that other local authority may take over the provision of accommodation for the child within—

(a)three months of being notified in writing that the child is being provided with accommodation; or

(b)such other longer period as may be prescribed.

(3)Every local authority shall provide accommodation for any child in need within their area who has reached the age of sixteen and whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him with accommodation.

(4)A local authority may provide accommodation for any child within their area (even though a person who has parental responsibility for him is able to provide him with accommodation) if they consider that to do so would safeguard or promote the child's welfare.

(5)A local authority may provide accommodation for any person who has reached the age of sixteen but is under twenty-one in any community home which takes children who have reached the age of sixteen if they consider that to do so would safeguard or promote his welfare.

(6)Before providing accommodation under this section, a local authority shall, so far as is reasonably practicable and consistent with the child's welfare—

(a)ascertain the child's wishes [F1and feelings] regarding the provision of accommodation; and

(b)give due consideration (having regard to his age and understanding) to such wishes [F1and feelings] of the child as they have been able to ascertain.

(7)A local authority may not provide accommodation under this section for any child if any person who—

(a)has parental responsibility for him; and

(b)is willing and able to—

(i)provide accommodation for him; or

(ii)arrange for accommodation to be provided for him,

objects.

(8)Any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section.

(9)Subsections (7) and (8) do not apply while any person—

(a)in whose favour a residence order is in force with respect to the child; F2. . .

[F3(aa)who is a special guardian of the child; or]

(b)who has care of the child by virtue of an order made in the exercise of the High Court's inherent jurisdiction with respect to children,

agrees to the child being looked after in accommodation provided by or on behalf of the local authority.

(10)Where there is more than one such person as is mentioned in subsection (9), all of them must agree.

(11)Subsections (7) and (8) do not apply where a child who has reached the age of sixteen agrees to being provided with accommodation under this section.

15. There are two statutory routes to remove children considered to be in need of emergency protection, under Part V Children Act 1989: Protection of Children.
16. Where a police officer "has reasonable cause to believe that a child would otherwise be likely to suffer significant harm he may remove the child to suitable accommodation and keep him there: s46(1)(a) CA 1989. The police are under a duty to notify the local authority and the child's parents as soon as reasonably practicable of the step taken and the reasons. The local authority can apply for an EPO while a child is in police protection [s46(7) CA 1989] and a child cannot be kept in police protection for more than 72 hours: s48(6) CA 1989.
17. Where a local authority concludes that a child needs emergency protection, and satisfies a court that "there is reasonable cause to believe that the child is likely to suffer significant harm if he is not removed to accommodation provided by or on behalf of the local authority", then the court may make an Emergency Protection Order: s44(1) CA 1989. An EPO can be made for a maximum of eight days: s45(1) CA 1989.
18. There is provision for the court to make interim and full care orders under the provisions of Part IV Children Act 1989: Care and Supervision.
19. Where a local authority issues care proceedings and satisfies a court that "there are reasonable grounds for believing that circumstances with respect to the child are as mentioned in section 31(2) CA 1989" then the court may make an interim care order (or an interim supervision order): s38(2) CA 1989.
20. Where a local authority satisfies a court:

(a)that the child concerned is suffering, or is likely to suffer, significant harm; and

(b)that the harm, or likelihood of harm, is attributable to—

(i)the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or

(ii)the child's being beyond parental control.

the court may make a care order or a supervision order.

21. For the interpretation of s20 CA 1989, I have been referred to the cases of R(G) v Nottingham City Council [2008] EWHC 152 (Admin), R(G) v Nottingham City Council and Nottingham University Hospital [2008] EWHC 400 (Admin), and Coventry City Council v C, B, CA and CH [2012] EWHC 2191 (Fam). In each of these cases the court was required to consider whether the removal of a child from their parent was lawful in the absence of consent from a parent with capacity. The cases will be discussed in more detail below, however key principles to emerge from the cases are as follows:-

"section 20 appears in Part III of the Act…The emphasis in Part III is on partnership and it involves no compulsory curtailment of parental responsibility"…"…the use of s20 is not unrestricted and must not be compulsion in disguise. In order for such agreement to be lawful, the parent must have the requisite capacity to make that agreement. All consents under s20 must be considered in the light of ss1-3 of the Mental Capacity Act 2005. Moreover, even where there is capacity, it is essential that any consent obtained is properly informed and, at least where it results in detriment to the giver's personal interest, is fairly obtained." Per Hedley J @ paras 25 and 27.

"It is to be assumed (as was the fact in this case) that there were reasonable grounds for believing that the child and mother should be separated and that the officers of the authority honestly believed that there were such reasonable grounds. In those circumstances a removal could be lawfully effected in one of four ways under the Children Act: by agreement under s20, by emergency protection order under s44, by police under s46 or under an interim care order (ICO) pursuant to s38" per Hedley J @ para 30.

"…whatever the context, s20 agreements are not valid unless the parent giving consent has the capacity to do so…had she lacked capacity, that would have been the end of the matter: the agreement would have been invalid and the removal unlawful. " per Hedley J @ paras 37 and 42.

"..the law is perfectly clear but perhaps requires re-emphasis. Whatever the impression a casual reader might gain from reading some newspaper reports, no local authority and no social worker has any power to remove a child into care, unless they have first obtained an order from a family court authorising that step: either an emergency protection order in accordance with s44 or an interim care order in accordance with s38 or perhaps, in an exceptional case (and subject to s100 of the Act) a wardship order made by a judge of the Family Division of the High Court." Per Munby J in R (G) v NCC.

"..section 46 permits a constable to remove a child where he has reasonable cause to believe that the child would otherwise be likely to suffer significant harm, and that power can be exercised without prior judicial authority. But the powers conferred on the police by section 46 are not given to either local authorities or social workers." Per Munby J in R(G) v NCC.

The competing cases: discussion

22. For the mother, Miss James relies on the simple admitted fact that the social worker removed AS into foster care without any prior judicial authority and without the consent of the mother. The mother was not even told of the removal until some time afterwards.
23. For the local authority, Mr Poole valiantly asserts that the local authority acted lawfully despite the absence either of judicial authority or of parental consent – or knowledge. He asserts that there is a fundamental distinction to be drawn between a local authority accommodating a child under s20(1) CA 1989 and a local authority accommodating a child under s20(4) CA 1989. The latter, he submits, is a permissive power and requires the local authority to secure the consent of the parent. The former, he submits, creates an obligation to accommodate a child in respect of whom s20(1)(c) is satisfied. In that case, the issue of consent does not arise, and the local authority is not required to obtain it – or even to inform the parent of the proposed removal, though it is good practice to do so.
24. I reject the submissions advanced by Mr Poole. I accept that the removal of AS took place in good faith and that removal would almost certainly have been sanctioned by the court had the local authority applied for an EPO, however for the reasons that follow I conclude that the removal was unlawful.
25. The removal of a child from his parents by a local authority is a fundamental interference with the right of the parents and child to family life, and can only be carried out if the removal is "in accordance with the law". The framework for the removal of a child is set out in the CA 1989, and with apologies as the principles are so well established I have set them out above.
26. Both Hedley J and Munby J, as he then was, said clearly in the cases cited above that in the absence of consent, a child can be removed only in the circumstances set out in s38, s44 or s46 CA 1989. These provisions appear under Part IV and Part V, CA 1989. Each provision contains stringent safeguards intended to ensure that a removal is lawful. In particular:

a. Each section refers to the s31 threshold criteria, requiring either that there are reasonable grounds to believe that the threshold criteria are met or, in relation to emergency provisions, that there is reasonable cause to so believe;

b. Whilst removal under s46 (police protection) does not require prior judicial approval, the power to remove is strictly time limited to a maximum period of 72 hours. The police are under a duty to notify both the relevant local authority and the parents as soon as practicable of the steps taken;

c. Removal under either s38 or s44 requires prior judicial approval;

d. Even with prior judicial approval, an emergency protection order is strictly time limited so that any longer term sanction for continued removal follows an application for a care order and a further appearance before the court where all parties can be represented, where a Children's Guardian will have had time to make initial enquiries and where all parties will have had an opportunity to consider the relevant evidence and will be able to make full submissions to the court, which can hear evidence if necessary.

27. The provision of accommodation for children by the local authority is dealt with in Part III which, as Hedley J confirmed, addresses "Support for Children and Families". As already cited above, Hedley J made clear that the emphasis in this Part is on partnership and "involves no compulsory curtailment of parental rights". Self evidently the whole of s20 falls within Part III, and Hedley J made no distinction between the provision of accommodation under s20(1) and the provision of accommodation under s20(4). His judgment referred throughout to s20 as a whole.
28. In the case of R(G) v Nottingham City Council referred to above, the President re-emphasised the clear principle that save perhaps in exceptional wardship cases (where in any event a High Court Judge would need to give prior judicial authority) in the absence of the agreement of the parent, removal of a child could only be achieved by the statutory routes in ss38, 44 or 46. On the facts of the Nottingham case, the local authority plainly considered that the mother was prevented from providing her baby with suitable care, just as the London Borough of Brent considered that this mother was prevented from providing AS with suitable care. If Mr Poole were correct in his analysis of s20(1)(c), then Nottingham City Council would have been entitled lawfully to remove the baby under the same provision. The President concluded without hesitation that the removal was unlawful.
29. s20(1)(c) contains no requirement for the threshold criteria under s31(2) CA 1989 to be satisfied on any basis, even reasonable cause. If Mr Poole were correct, then a local authority could, on its own assessment of whether a parent was prevented from "providing a child with suitable care", remove that child without any reference at all to the threshold criteria. The parents would have no forum in which to contest that assessment, and there is no application open to them under the provisions of the 1989 Act to challenge the local authority and seek the return of their child. The child would have no Children's Guardian. There would be no parameters for the position after removal, there would be no requirement for the local authority to apply to court and there would be no time limit on the duration of the removal. In short there would be no safeguards to mirror those that are expressly included in ss38, 44 and 46. It would seem perverse if a local authority could more easily remove children from their parents in cases where the threshold criteria were not necessarily met than in cases where there were reasonable grounds to conclude that they were met.
30. There is no authority supporting the proposition advanced by the local authority in this case and, as I have already indicated, that proposition appears to be in direct contravention to the principles established in the cases relied on by the mother.
31. Finally, the structure of s20 itself is, I conclude, inconsistent with the proposition that parental consent is required where a local authority is acting under s20(4) but is not required where the local authority is acting under s20(1)(c). s20(7) prevents a local authority from accommodating a child if a parent objects and s20(8) permits anyone with parental responsibility to remove a child from accommodation. The important point is that both of these provisions apply to accommodation under "this section" ie s20 as a whole; they do not distinguish between accommodation under s20(1)(c) and s20(4).
32. For all of these reasons I find that the removal of AS from his mother was unlawful. I therefore do not need to go on to consider whether the removal was "necessary" and therefore in accordance with Article 8(2) ECHR].
33. If I find, as I have, that the removal of AS was unlawful, I am then asked to find that the local authority failed to issue proceedings in a timely manner, in breach of the mother's Article 6 ECHR rights. Since the initial removal of AS was unlawful, it follows that until the local authority issued proceedings on 11 November 2014 and secured judicial approval for continued separation on 13 November 2014, AS was being kept separate from his mother unlawfully. The local authority did not issue proceedings in a timely manner. I was unable to understand the reason for this delay, especially given that at the legal planning meeting held on 13 October 2014 the local authority decided to issue care proceedings and the application itself, though issued only on 11 November 2014 was actually dated 7 October 2014.

Just relief

Declarations

34. The mother is entitled to declarations in the following terms:-

a. The local authority breached the rights of the mother under Article 8 ECHR in that they

i. Unlawfully removed AS from her care on 9 October 2014;

ii. Failed to ask for the mother's consent for AS to be accommodated on 9 October 2014; and

iii. Accommodated the child without the mother's consent between 9 October 2014 and 13 November 2014.

b. The local authority breached the rights of the mother under Article 6 ECHR in that they failed to issue proceedings in a timely manner.

35. These actions were also in breach of AS's rights but I am not asked to make separate declarations to that effect or to award him separate relief.
36. As the local authority did not attempt to secure the mother's consent, and they did try and find out as much information about the mother's mental health as possible from her treating team, I do not make the declarations sought in relation to capacity [paragraphs 5(iii) and (iv) of the mother's skeleton argument].

Just relief

Damages

37. The local authority reassured the court that it had at all times acted and will continue to act in good faith and with AS's best interests at heart; no party suggested otherwise. Further the local authority submits that if I do find a breach, then the making of declarations together with the local authority's apology to the mother together amount to just satisfaction. The local authority resists any award of damages or costs.
38. For the mother, Miss James points to the terms of the apology and submits that it is not really an apology. The local authority, in counsel's position statement, says "the Local Authority does not accept that its actions breached the mother or AS's article 6 or 8 rights…The Local Authority offers a sincere apology to the mother for any upset that she feels LB Brent has caused her." Miss James makes, I find, a good point. Miss James further makes clear the fact that the mother did not bring these proceedings for financial reasons; she was and has throughout remained upset and distressed about the manner of AS's removal and she wants to make sure that this could not happen again to another child.
39. The starting point for an award of damages is s3 HRA 1998 which states

"No award of damages is to be made unless, taking account of all the circumstances of the case, including (a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court) and (b) the consequences of any decision (of that or any other court) in respect of that act, the court is satisfied that the award is necessary to afford "just satisfaction" to the person in whose favour the order is made."

40. The pre-conditions to an award of damages by a domestic court under s8, as set out in the case of Re H (A Child: Breach of Convention Rights: Damages) [2014] EWFC 38 are that: (1) a finding of unlawfulness should be made based on breach by a public authority of a Convention right; (2) the court should have the power to award damages in civil proceedings; (3) that the court should be satisfied, taking account of all the circumstances of the particular case, that an award of damages is necessary to afford just satisfaction to the person in whose favour it is made; and (4) that the court should consider an award of damages to be just and appropriate.
41. Whilst the approach of the courts was that the occasions when it could be necessary, and just and appropriate, to award damages were likely to be rare, that approach has "softened" over time. Noting this, in the case of Re C (A Child) [2007] EWCA Civ 2, Wilson LJ as he then was said

"64. In general the "principles" applied by the European Court, which we are thus enjoined to" take into account" are not clear or coherent…What is clear, however, is that the European Court generally favours an award of damages in cases in which local authorities have infringed the right of parents under Article 8 to respect for their family life by shortcomings in the procedures by which they have taken children into care or kept them in care, whether temporarily or permanently."

42. Further the courts have moved away from requiring a clear link between the breach and some manifestation of physical or mental harm to the claimants: see eg Northamptonshire County Council v AS and Ors [2015] EWHC 199 (Fam) where Keehan J approved an award of damages without any reasoning as to causation.
43. The local authority does not assert that any lack of causation stands in the way of an award in this case. Further the local authority has not asserted that the court lacks jurisdiction to make an award of damages, but simply asserts that it is not necessary for the court to do so.
44. I conclude that an award of damages is necessary in this case. Acknowledging the good faith of the local authority, I have found that AS was removed in exactly the circumstances that the President re-emphasised in the Nottingham case at paragraph [15] would [should?] not happen. The unlawful removal of a child amounts to interference with one of the most fundamental of rights, namely that of respect for family life. AS was removed not simply without lawful authority but without the mother even being told that it had happened until some days afterwards. Her poor health does not justify this sequence of events.
45. There is little guidance as to the proper quantum of damages, and neither counsel felt able to make submissions as to the proper award. Further Miss James highlighted the unfairness of a system where any award to the mother would, unless either it exceeded the costs incurred under the mother's funding certificate in the care proceedings as a whole or I awarded the mother costs in that full sum, be recouped by the Legal Services Commission in part repayment of her publicly funded costs. Since Miss James did not suggest that such a substantial award would be appropriate in this case, she recognised that an award of damages will not directly benefit the mother financially. It will be, in effect, a mark of the court's recognition of the mother's distress at the unlawful removal and subsequent unlawful retention of her son for over a month. It is vitally important that no removal of a child in similar circumstances should happen again.
46. Miss James rightly did not emphasise that the award would address the loss of relationship between the mother and AS since the mother's own mental ill health meant that she was not available to care for AS over the material period in any event.
47. Doing the best I can to balance these factors in the absence of clear guidance or focussed submissions (no criticism of counsel) I award the mother damages in the sum of £3,000.

Costs

48. Miss James attempted to separate the costs incurred by the mother in respect of the Human Rights element of her case from the far more substantial costs incurred in the substantive care proceedings. She identified some modest early costs, correspondence etc and the detailed skeleton argument presented to the court.
49. I conclude that the items identified by her amount, in rough terms, to around £750 and I make an award in that sum.

HHJ Rowe QC

7 August 2015