V (A Child) [2004] EWCA Civ 1575

Case No B1/2004/0900

[2004] EWCA Civ 1575

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM BRIGHTON COUNTY COURT

(HIS HONOUR JUDGE LLOYD)

Venue Royal Courts of Justice

Date Tuesday, 12 October 2004

Strand

London, WC2

B E F O R E:

LORD JUSTICE THORPE

LORD JUSTICE WALL

MR JUSTICE HOLMAN

V (A CHILD)

(Computer-Aided Transcript of the Stenograph Notes of

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MR STEPHEN COBB QC AND MISS GEMMA TAYLOR (instructed by Head of Legal Services, West Sussex PO19 1RQ) appeared on behalf of the Appellant

MR FRANK FEEHAN (instructed by Peter Bonner & Co, London SE13 5LQ) appeared on behalf of the Respondent

J U D G M E N T

LORD JUSTICE THORPE:

This

[1]is an appeal from an order of His Honour Judge Lloyd of 1 April 2004 in the Brighton County Court. His judgment culminated public law proceedings in relation to a child, M, who was born on 3 July 2003. The judge granted a care order and a freeing order to the local authority. Perhaps as a solace to the parents, he found that the pre-birth management of the local authority social worker amounted to breach of the parents' Article 6 rights and awarded each parent damages in the sum of £100.

[2]The local authority applied for permission to appeal that order, which the judge refused. He considered the application with care and delivered a reasoned judgment refusing it. Accordingly, the local authority applied to this court for permission by an application received on 22 April. By a paper order dated 20 May permission to appeal was granted and this today is the hearing of that appeal.

[3]The order made by the judge below is truly startling and it is not surprising in those circumstances that the respondent parents' public funding to oppose the appeal has been withdrawn. That is an inference that I draw from a letter written to the court by Mr Roger McCarthy QC, dated 29 September, in which he explained that in the circumstances of impending withdrawal of public funding he would not be filing a skeleton argument. He left open the question of whether his client, the respondent father, would nevertheless oppose the appeal as a litigant in person, but in the event when the appeal was called this morning there was no attendance by either of the respondents, although Mr Cobb QC, who represents the appellant, has made it plain that the local authority has gone to considerable lengths to ensure that the parents were well aware of the hearing of the appeal in this court this morning.

[4]It seems to me almost self-evident that the order which Mr Cobb challenges is unprincipled, but we have heard full submissions from him to enable us to deliver a judgment to discourage repetition of such an outcome in other cases. We have also heard from Mr Feehan for the Guardian ad litem, who warns us that as a consequence in part of the case of Re L(Care: Assessment: Fair Trial)

[2002] 2 FLR 730

long trials of alleged breaches of Articles 6 and 8 rights are beginning to encumber local authority applications for care orders, with consequential delay and expense that ultimately proves wasted.

[5]To focus then on the present appeal the essential chronology which Mr Cobb has laid before us is that there have been previous care proceedings in relation to older children of the respondent mother. Her first, born in 1994, and her second, born in 1996, were removed under emergency protection orders on 22 October 1999, approximately four weeks after the marriage of the respondents. Those first care proceedings terminated on 21 March 2001 when care orders were made in respect of both children in the county court. Her third child was born on 25 December 2001 and proceedings were immediately initiated, first for an emergency protection order and then subsequently for interim care orders. The proceedings culminated in an order of 20 February 2003 again granting care to the local authority and freeing the child for adoption. Those orders were made in the county court, and during the course of the trial the parents withdrew their opposition on the third day, indicating that the mother was expecting the birth of a further child.

[6]That led to a meeting between the social worker and the parents some eight days after judgment. The local authority was concerned obviously to manage the aftermath of the culminated proceedings in relation to the third child and advised that the mother should begin to engage professionals such as the local midwife. There was another meeting on 13 March 2003 when the social worker advised the parents as to their options and handed them a letter clearly setting out the local authority's intentions in relation to the unborn child. There was a pre-birth child protection case conference which the parents attended on 17 March, and I mention also on 19 March a letter from the guardian ad litem inviting the local authority to consider providing therapeutic help for the parents in their attempt to parent the anticipated fourth child.

[7]Unfortunately a pre-arranged visit set for 4 April was cancelled by the mother and thereafter five further visits prior to the birth of M also failed for the same reason. However on 10 April the mother did inform the social worker that she was considering separating from the father and putting herself forward as a sole carer. That development would of course have been carefully considered by the local authority, but in the event no more came of it and that option was not further investigated.

[8]I have already recorded that 3 July was the date of M's birth, and the application for a care order was issued almost immediately afterwards, on 7 July.

[9]It is not necessary to consider any of the subsequent stages in the development of the case other than to record, at what was intended to be a final hearing on 3 December 2003, that counsel for the parents persuaded Judge Hayward that the application should be adjourned and transferred to a judge of the Family Division on the grounds that only a judge of the Division would have sufficient power to determine a case that they wished to advance under the Human Rights Act 1998.

[10]That surprising outcome was properly challenged by the local authority and succeeded at a hearing in this court, the reasoned judgment of the court being delivered by Wall LJ on 4 February. At the conclusion of his judgment he gave clear guidance for the resumption and completion of the proceedings before the county court judge, and the case was thus listed before Judge Lloyd for three days commencing 23 February.

[11]At the outset counsel for the parents withdrew their cross-application for an assessment order under section 38(6) of the Children Act 1989. The three days that the judge was able to give to the trial were not sufficient to include submissions. Accordingly written submissions from all the parties were filed simultaneously at a later date in March, and led to the judge's reserved judgment handed down on 1 April. I have already recorded the subsequent steps that bring the case to this court today.

[12]We have established during the course of submissions that the intimation from the parents' counsel of breaches of rights arising under Articles 6 and 8 of the Human Rights Convention advanced before Judge Hayward did not in any shape or form indicate an intention to seek an award of damages. Obviously the rights were then asserted to buttress the cross-application for an assessment order under section 38(6).

[13]The tactic of seeking damages for asserted breaches of the Articles first emerged between the Court of Appeal hearing and the trial before Judge Lloyd. The explicit nature of the claim for damages only eventually surfaces in the parents' written submissions. In the written submissions of Miss Lazarus for the father there is only a heading "Implications of Article 6 and 8 breaches." Under that paragraph there is a subparagraph (6) which states:

"The father seeks remedies that are just and appropriate."

There then follow four bullet points, none of which make any reference to damages. However in the written submissions of Miss Jakens for the mother there appears a subheading:

"Damages", which reads: "

If the court finds that there has been a breach of Article 6 or Article 8 rights here, it may entertain an application for an award in this case of a sum equivalent to the cost of the treatment advocated by Dr B. That would enable the parents to re-present themselves as contenders on a fairer footing after a view of the progress of the work was reached." In the following paragraph the writer quantifies the cost of the treatment in the sum of £5,000.

[14]Thus, in the circumstances of this process of trial, it is to be emphasised that the application that found favour with the judge was not other than trailed during the course of the three days of evidence, and the local authority had no opportunity to respond, pointing out any impediments in fact or law to an award, since the final submissions were for simultaneous exchange.

[15]How then did the judge arrive at his conclusion? In a very full and careful judgment the judge turns to the parents' assertion of breach of rights arising under Articles 6 and 8 at page 60 of his judgment. He then directed himself by considering at length the reported judgment of Mumby J in Re L. He refers to the headnote and to various paragraphs of the judgment. The paragraph that impressed him was paragraph 154, which reads:

"154. If those involved in cases such as this are in future to avoid the criticisms which, understandably and, as it seems to me with no little justification, have been levelled against some of those involved in the present case they would be well advised to bear the following precepts in mind: (i) Social workers should, as soon as ever practicable: (a) notify parents of material criticisms of and deficits in their parenting or behaviour and of the expectations of them; and (b) advise them how they may remedy or improve their parenting or behaviour. (ii) All the professionals involved (social workers, social work assistants, children's guardians, expert witnesses and others) should at all times keep clear, accurate, full and balanced notes of all relevant conversations and meetings between themselves and/or with parents, other family members and others involved with the family. (iii) The local authority should at an early stage of the proceedings make full and frank disclosure to other parties of all key documents in its possession or available to it, including in particular contact recordings, attendance notes of meetings and conversations and minutes of case conferences, core group meetings and similar meetings. Early provision should then be afforded for inspection of any of these documents. Any objection to the disclosure of inspection of any document should be notified to the parties at the earliest possible stage in the proceedings and raised with the court by the local authority without delay. (iv) Social workers and guardians should routinely exhibit to their reports and statements notes of relevant meetings, conversations and incidents. (v) Where it is proposed that the social workers and/or guardian should meet with a jointly appointed or other sole expert witness instructed in the case (what I will refer to as a 'professionals' meeting', as opposed to a meeting of experts chaired by one of the legal representatives in the case - usually the children's guardian's solicitor): (a) there should be a written agenda circulated in advance to all concerned; (b) clear written notice of the meeting should be given in advance to the parents and/or their legal representative, accompanied by copies of the agenda and of all documents to be given or shown to the expert and notice of all issues relating to or criticisms of a parent, or a non-attending party, which it is intended to raise with the expert; (c) the parent, or non-attending party, should have a clear opportunity to make representations to the expert prior to and/or at the meeting on the documents, issues and/or criticisms of which he or she has been given notice; (d) a parent or other party who wishes to should have the right to attend and/or be represented at the professionals' meeting; (e) clear, accurate, full and balanced minutes of the professionals' meeting (identifying in particular what information has been given to the expert and by whom) should be taken by someone nominated for that task before the meeting begins; (f) as soon as possible after the professionals' meeting the minutes should be agreed by those present as being an accurate record of the meeting and then be immediately disclosed to all parties."

[16]The judge then went on to apply that authority to the facts as he found them. He commenced by reviewing the evidence, prefacing his review with this observation, which Mr Feehan has submitted misguided him to his ultimate conclusion:

"All the work of the local authority engages Article 6 rights, which cannot be qualified, and Article 8 rights, which have the proportionality point."

Mr Feehan has submitted that, in effect, the judge was directing himself that Article 6 constituted rights, which, similar to absolute statutory offences, once breached led inevitably to conviction.

[17]However, having assessed the facts of the case with some care

the judge stated his ultimate conclusion thus:

"... there are two areas where they can be criticised, and I make it clear that is the paragraph 1(a) and (b) [of paragraph 154 of the judgment of Mumby] about steps they must take. The social worker could have said more to mother and father about expectations and how to remedy or improve their parenting."

The second point the judge went on to consider to be groundless, and it therefore follows that his award must rest squarely on this first area of criticism.

The judge expanded slightly on the following page when he said:

"However, not seeing the parents to fully set out what they faced and their need to make every effort to arrange for treatment, especially as the social worker knew that that was going to be difficult because of her research in the A proceedings, was in my view a breach of their Article 6 rights. This is also especially so when the local authority had received the letter from the guardian which they had plainly failed to deal with."

The judge concluded this section of his judgment by saying:

"... since I consider it unlikely that the result would have been any different and damages under the Human Rights Act are usually of a lower value than in English courts, and I could find no authority on damages nor were counsel able to put one before me, I consider the right award to mark the court's concern for this breach is nominal damages of £100 to each parent."

[19]Mr Cobb's attack on the judgment is ranged under three heads. First, he says that the judge's finding that the social worker could have done more and said more to support the parents prior to the birth of M was evidentially unsound, and furthermore inconsistent on the face of the judgment. Mr Cobb says that it is evidentially unsound because any failure of communication lies squarely at the door of the parents, and he points to the chronology of meetings and missed meetings which I have already recorded. The internal inconsistency arises, says Mr Cobb, since the judge fully acknowledged that there had been the meeting in early April at which the parents' rights and opportunities had been carefully flagged up. It seems to me that there is considerable force in this submission. However I am cautious of finding for Mr Cobb on this first ground since we have heard no argument to the contrary and we have the disadvantage that Mr McCarthy is not able to be before us to present the respondent's case. I therefore pass to his second ground of attack, which is of more general interest and which is a point of law rather than one of fact.

[20]Mr Cobb says that even if the judge was right to conclude that there had been a failure of management on the part of the local authority it could not possibly amount to unlawfulness within the terms of the Act. It was not an Article 6 breach, since it pre-dated the birth of M and pre-dated the initiation of the proceedings; nor could it on any possible view make the proceedings as a whole unfair. Mr Cobb has taken us through the judgment of Mumby J in Re L, particularly paragraphs 86 to 106 in which he reviews all the relevant authorities that indicate what constitutes and what does not constitute a breach of Article 6. Mr Cobb has shown us that Munby J ultimately summarised the effect of all the cited cases in paragraph 129, when he said:

"Be that as it may, the essential principle is clear. At the end of the day fairness is something to be assessed - whether for the purposes of Art 6(1) or Art 8 - having regard to 'the particular circumstances of this case' (Re M - emphasis added). And one has to evaluate the process or the proceedings (as the case may be) 'considered as a whole' (Mantovanelli), assessing matters 'overall' (Scott) and 'having regard to all circumstances' (Buchberger)."

[21]So, says Mr Cobb, the judge could not possibly have focussed on one tiny part of the history and failed to review the proceedings as a whole. Had he carried out such a perspectival review he would at once have seen that whatever criticisms he was making of the local authority could not amount to unfairness in the proceedings as a whole. Mr Cobb points out that even in the case of Re L where the judge had found very substantial and significant breaches of the parents' Article 6 rights, nevertheless he concluded at the end of the trial and viewing the proceedings as a whole that those breaches did not amount to unfairness.

[22]These submissions from Mr Cobb are, in my view, unanswerable. The judge was simply misled into a conclusion that was unprincipled and wrong in law. I have every sympathy for him in that he did not receive the assistance that any judge is entitled to expect in a novel area of law. He was obliged to reach his decision at the conclusion of a trial process which had been abbreviated through pressure on the lists.

[23]He moved from that unsupportable conclusion to make an award of damages reasoned only by the brief passage that I have already cited. In a sense, it is not necessary for the purposes of this judgment to go on to consider that assessment. Suffice it to say that in my judgment it was as vulnerable as his decision on the issue of breach. He was not referred to section 8 of the Human Rights Act. Had he been expressly referred to that section, and particularly subsection (3) thereof, he would have seen what impediments there are to a proper and lawful award of damages. He was not referred to relevant authority in this jurisdiction, and I instance only KB v Mental Health Review Tribunal

[2003] 2 All ER 209

[24]I would conclude by suggesting that trial judges should be extremely cautious in reading too much into paragraph 154 of the judgment of Munby J, which misled the judge in this case. The paragraph is preceded by a judicial disavowal to formulate any statement of good practice. All he sought to do was to draw attention to certain principles of practice that deserved emphasis. It seems to me very important to recognise that what followed was directed as much to Article 8 as to

Article 6 of the Convention

. Thus, in paragraph 154(i), the paragraph on which the judge focussed, the guidance is offered to social workers alone. Paragraph 154(ii) offers guidance to all the professionals involved (social workers, social work assistants, children's guardians, expert witnesses and others). It is notable that all the professions there particularised do not include lawyers who have responsibility for the preparation and development of the litigation case.

[25]It seems to me difficult to postulate a case in which the acts or omissions of a social worker acting in that role exclusively at a period before the birth of the relevant child and at a period prior to the initiation of the proceedings could constitute a breach of Article 6 rights. I would add this too. In the end, Article 6 is written to ensure for the parents and for all parties a process of fair trial. It is for the parties themselves to assert, as the process develops, any respects in which they have experienced, or fear to experience, prejudice or disadvantage. Here at the end of the proceedings, the judge made final orders setting M on the road to permanent placement outside the family. If in arriving at that conclusion a judge is guilty of any unfairness to either of the parents this court is here to correct any such failing, either of the process or of the judgment itself. No complaint has been directed on behalf of the parents against the outcome recorded by Judge Lloyd on 1 April. Their only assertion of Article 6 rights was in an imaginative but not entirely convincing endeavour to buttress their application for a section 38(6) assessment order, an application which they then withdrew on the first day of the trial. I therefore conclude that Mr Cobb clearly succeeds on his second ground of appeal.

[26]The appeal should therefore be allowed and the order set aside.

LORD JUSTICE WALL: I agree that this appeal must be allowed for the reasons given by my Lord, Thorpe LJ, with whose judgment I am in full agreement.

[28]I have a short judgment of my own, firstly, because this is the second time that these straightforward care proceedings have gone wrong; and secondly, because of what I see as the importance of trying to ensure that what happened in the latter stages of this case are not repeated in care proceedings up and down the country.

[29]The mischief identified by the case, in my judgment, lies in the fact that the judge has isolated a sentence in the judgment of a judge of the Family Division dealing with issues of good practice, and elevated an alleged failure by the local authority to comply with the practice identified in that sentence into a breach of the parents' Article 6 rights and one, moreover, which warrants an award of, albeit nominal, damages to the parents. My Lord has already set out paragraph 154 of Mumby J's judgment in Re L and the passage in which Judge Lloyd had found an Article 6 breach in reliance on that paragraph. I will not, accordingly, repeat them.

[30]In my judgment both the finding of the Article 6 breach and the award of "nominal" damages by the judge were plainly wrong. It is crystal clear from the decision of the European Court of Human Rights in Mantovanelli v France

[1997] 24 EHRR 370

(para 34) and from other authorities conveniently cited by Mumby J in Re L at paragraphs 94-104, that in deciding whether or not there has been a breach of Article 6:

"... the court has ... to ascertain whether the proceedings considered as a whole, including the way in which the evidence was taken were fair..."

It is thus manifestly impermissible, in my judgment, to isolate one alleged incident and use it as a basis for a finding that there has been a breach of the parents' Article 6 rights. Moreover, even a cursory examination of the proceedings before Judge Lloyd shows any lack of Article 6 breach. There is no application by the parents for permission to appeal against the care order and the order freeing the child for adoption. The hearing before Judge Lloyd was manifestly fair within Article 6 and the judge equally manifestly took great care over the proceedings and his judgment.

[31]Even if the local authority had not followed the guidance given by Mumby J in paragraph 154 of Re L, both the history of the proceedings, which I set out at length in the judgment of this court in Re V (Care Proceedings: Human Rights Claims)

2004 EWCA Civ 54

at paragraph 41-56 and the hearing before Lloyd J himself, give abundant proof that parents' Article 6 rights have been observed. Since there was no Article 6 breach the judge was plainly wrong to award damages against the local authority. Making awards of damages in such circumstances is not only impermissible, in my judgment, its only likely consequence, were the practice to be repeated, would be to divert attention from the relevant issues in care proceedings into sterile and inappropriate applications under the Human Rights Act.

[32]This has now happened twice in this case. First, there was the misconceived application to Judge Hayward which led to the adjournment of the proceedings, and the first appeal to this court. There has now been a second application in which the parents sought damages under the Human Rights Act to pay for treatment for themselves said to be necessary to enable them to fulfil their parental responsibilities. In my judgment that application was equally misconceived.

[33]In my judgment judges and magistrates hearing care proceedings, whilst using the protocol to ensure that the proceedings are fairly conducted throughout, should be acute to identify and weed out barren issues and arguments under the Human Rights Act 1998 and ECHR which do not relate either to the identification of the threshold criteria under section 31 of the Act, or the ultimate welfare disposal of issues in the case.

[34]I would accordingly allow the appeal.

[35]MR JUSTICE HOLMAN: I agree with both judgments. I would merely add that, so far as I can discern, neither of the lengthy written submissions on behalf of the parents made any express reference to section 8 of the Human Rights Act 1998 under which their claim to damages fell to be considered; nor did the judge himself make any express reference to that section in any part of his judgment under appeal. It seems from passages both in the judgment itself and also in the judge's later judgment when he refused permission to appeal, that the judge considered that once he had found there had been a breach of a right under the Convention then he was bound in some way to mark that by an award of damages.

[36]A reading of section 8 makes plain that that is far from being the case. The grant of any remedy at all is discretionary. Under section 8(1) a court may only grant such relief or remedy or make such order within its powers "as it considers just and appropriate". By section 8(3), in relation specifically to damages, no award may be made unless, taking account of all the circumstances of the case, the court is satisfied "that the award is necessary to afford just satisfaction to the person in whose favour it is made."

[37]I venture to think that if the judge's attention had been properly drawn to the restrictive terms of that section he would not have made the award that he did.

[38]I further urge that if ever again any application is made within proceedings of this kind for an award of damages, very close attention is paid to the express provisions of section 8 before any court begins to consider making any such award. In my view, the occasions when it could be necessary and just and appropriate to make such an award will be very rare indeed. (Appeal allowed; detailed assessment of Respondent's costs).