Local Authority v MS [2003] EWHC 665 (Fam)

This judgment was handed down in private on 28 March 2003. The judge hereby gives leave for it to be reported under the title Re L (Care Proceedings: Human Rights Claims).Case No FD03C00123[2003] EWHC 665 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
PRINCIPAL REGISTRY
(In Private)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28 March 2003
Before
THE HONOURABLE MR JUSTICE MUNBY
Between
A LOCAL AUTHORITYApplicantMSRespondent
In the Matter of L (A Child)
The names of the parties’ legal representatives are omitted in the interests of anonymityHearing Hearing date : 19 March 2003
Judgment
[1]This is a case in which care proceedings were begun in the Inner London and City Family Proceedings Court on 11 March 2002 in relation to a little boy, L, who was born on 11 November 1998. His mother suffers from mental health problems. The local authority’s care plans are dated 11 March 2002, 13 June 2002 and 29 November 2002. Initially the local authority planned to place L within the wider family. That did not prove possible. The local authority then sought to assess whether mother might be able to look after L. Eventually, as its care plan dated 29 November 2002 made clear, it decided that L should be placed for adoption. This followed, and was presumably intended to implement, the decision to that effect which had been taken by the local authority’s Adoption and Permanency Panel at its meeting on 21 November 2002, though for some reason the local authority’s agency decision maker did not formally agree the Panel’s decision until 14 February 2003.[2]At a hearing in the FPC on 5 December 2002 the mother sought a further assessment. That application, which was resisted both by the local authority and by the guardian, was refused. Directions were given timetabling the matter through to a final hearing fixed for 28 and 29 May 2003.[3]On 20 December 2002 the mother sent to the FPC an application seeking the transfer of the proceedings to the County Court, and thence to the High Court. That was with a view to the High Court compelling the local authority, as it was put in the mother’s application, to “change the Care Plan, so that long-term fostering is the first long-term option … so that from now on they look for long-term foster carers instead of adoptive parents”. The mother’s application contains no reference either to the Human Rights Act 1998 or to the European Convention for the Protection of Human Rights and Fundamental Freedoms. It indicates that the mother will “ask the High Court to exercise its inherent jurisdiction in this matter.” A letter from the mother’s solicitors to the court dated 17 February 2003 says, however, that “we are asking the High Court to provide a remedy under the Human Rights Act by way of injunctive relief under its own inherent jurisdiction”.[4]The mother’s application was received by the FPC on 24 December 2002 but for some reason was not issued by the FPC until 30 January 2003, and then only because the mother’s solicitors had written to the FPC on 22 January 2003 enquiring as to what was happening. The application came before the FPC on 12 February 2003 when the matter was transferred to the Principal Registry of the Family Division. The order as drawn by the FPC refers to the “proceedings concerning the child” as having been transferred to the PRFD. But it is clear from the order itself that all that was intended to be transferred up was the mother’s application for relief under the inherent jurisdiction “to compel the local authority to change its care plan”. The order stated that the matter was to remain listed in the FPC for final hearing on 28 and 29 May 2003 and that “the transfer is to enable the High Court to consider the issue of the care plan only”. On 21 February 2003 the District Judge in the PRFD transferred “the application for a care order” to the High Court. That, of course, was not what the FPC had intended. On 24 February 2003 Black J gave standard directions in accordance with the President’s Direction (Judicial Continuity) [2002] 2 FLR 367, directing that the case was to be allocated to me and fixing the case management conference for hearing on 19 March 2003.[5]When the matter came on before me all parties were agreed that the only matters I should deal with were the mother’s applications under the Human Rights Act and the inherent jurisdiction. I was asked to give directions with a view to the mother’s applications being heard in the Family Division at some date prior to the final hearing in the FPC on 28 May 2003. I made it clear at the outset that I was far from persuaded that this was an appropriate way to proceed. In fairness to the parties and their legal representatives I should emphasise that this was not a point which had previously been raised, either by the FPC or by the PRFD or by Black J.[6]Counsel on behalf of mother submitted a skeleton argument which, supplemented by his oral submissions, summarised in outline the nature of her complaints. In essence they are four-fold: i) First, that the Panel’s decision-making process, culminating in its decision on 21 November 2002 that L should be adopted, was both flawed and unfair to mother. ii) Secondly, that the effect of the decision is to deny the mother a fair hearing, inasmuch as she will in reality be denied the opportunity to put forward at the final hearing the alternative case for long-term fostering which cannot, so it is said, be effectively mounted if there has in the meantime been a search only for potential adoptive parents and not also a parallel search for potential long-term foster-parents. iii) Thirdly, that the decision and the resulting care plan are simply wrong: adoption is not in L’s best interests. iv) Finally, that there has been unjustified delay on the part of the local authority in implementing the Panel’s decision: there has been as yet, so it is said, only an inadequate and so far fruitless search for adoptive parents.[7]In these circumstances mother seeks(a) a finding that the current care plan, the actions of the local authority and the Panel decision to pursue a care plan of adoption are unlawful and incompatible with her Convention rights and(b) an order that the local authority pursue a concurrent search between now and the final hearing for a long-term foster family. In effect the mother seeks to compel the local authority to alter its care plan. I express no views as to whether or not there is any substance in what mother is saying. All that is important for immediate purposes is to understand the nature of the complaints she is making, so as to assess the nature of the exercise which the Family Division is being invited to embark upon and which, so it is said, is either outside the jurisdiction of, or otherwise unsuitable to be dealt with by, the FPC.[8]The case as I have thus summarised it seems to me raise an important point of practice on which it is highly desirable that the profession should have clear guidance. There will, I do not doubt, be in future – there already are – increasing numbers of care cases in which parents seek to rely upon their Convention rights with a view to challenging either what the local authority is doing or the way in which it has gone about it. The question then arises as to how such Convention issues should most appropriately be dealt with – and by which court. The course adopted in the present case, though I do not doubt with the best of intentions, was, in my judgment, quite inappropriate. I think that I should explain why and, at the same time, indicate the way in which similar problems ought, as it seems to me, to be handled in future.[9]For clarity, even if at risk of appearing pedantic, I must distinguish at the outset between four different jurisdictions that may possibly be invoked in a situation such as this: i) The first is the statutory jurisdiction under Part IV of the Children Act 1989. This is exercisable by the FPC, by the County Court and by the Family Division of the High Court. When exercising this jurisdiction each court has exactly the same powers. The powers of the High Court under Part IV of the Act are no greater than the powers of the FPC. ii) Next there is the inherent jurisdiction of the High Court in relation to children, which jurisdiction is recognised and to an extent regulated by section 100 of the 1989 Act. This jurisdiction is normally exercised by the Family Division. iii) Thirdly, there is the supervisory jurisdiction of the High Court by way of judicial review, currently regulated by CPR Part 54. This jurisdiction is exercised by the Administrative Court. At present there are four judges of the Family Division (Wilson, Wall, Charles and Munby JJ) who are also nominated judges of the Administrative Court. iv) Finally, there is the jurisdiction under sections 7 and 8 of the Human Rights Act 1998 to grant relief where a public authority – and a local authority is, of course, a public authority for this purpose – either has acted or proposes to act in a way which is made unlawful by section 6(1) of the 1998 Act, that is, in a way which is incompatible with the Convention.[10]So much for the various jurisdictions that may be invoked. I turn now to consider the extent to which the court has power to grant the mother relief of the kind she is seeking.[11]It is clear that no court exercising only the statutory jurisdiction under Part IV of the 1989 Act – not even the High Court – has any power to grant mother the relief she is seeking. It is elementary that the only power of the court under Part IV is either to approve or refuse to approve the care plan put forward by the local authority. The court cannot dictate to the local authority what the care plan is to say: see Re S and D (Children: Powers of Court) [1995] 2 FLR 456, Re CH (Care or Interim Care Order) [1998] 1 FLR 402 and In re S (Minors) (Care[12]It is equally clear, in my judgment, that even the High Court when exercising its inherent jurisdiction in relation to children has no power to grant mother the relief she is seeking. That is made clear by Re S and D. There are, as it seems to me, two quite separate reasons why this must be so. In the first place – and this was the reasoning of the Court of Appeal in Re S and D – any jurisdiction which the court might otherwise have is barred by section 100(2) of the 1989 Act. But secondly, and in any event, it is fundamental that the High Court’s inherent jurisdiction cannot be used to compel a public authority to exercise its discretion in a particular way: see A v A Health Authority [2002] EWHC 18 (Fam/Admin), [2002] Fam 213 at paras [47]-[53].[13]So the relief sought by the mother cannot be granted by the High Court either under Part IV of the 1989 Act or even when the High Court is exercising its inherent jurisdiction in relation to children. There are, in my judgment, only two ways in which such relief can be obtained: by means of an application for judicial review or under the 1998 Act. I deal with each of these in turn.[14]Relief of the kind sought here by the mother can in principle be obtained by means of an application for judicial review: see Nottingham County Council v P [1994] Fam 18 at p 43E, A v A Health Authority at para [56], In re S at para [24] and Re G (Care: Challenge to Local Authority Decision) [2003] EWHC 551 (Fam) at para [48]. But this will usually be a remedy of last resort: see Re L (Care: Assessment: Fair Trial) [2002] EWHC 1379 (Fam), [2002] 2 FLR 730 at para [91]. Moreover, although the Administrative Court would plainly have power to quash a care plan which it was satisfied was unlawful in one or other of the ways referred to by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at p 410C (as to which see Re L at paras [61]-[64]), it does not follow that the Administrative Court would itself have power to re-write the care plan. Normally its power would be confined to ordering the local authority to reconsider the care plan: see Re L at paras [126]-[127]. Judicial review is not merely a remedy of last resort: in this type of case it is apt to be a blunt, and for that very reason an unsatisfactory, tool.[15]Relief of the kind sought here by the mother can also, in principle, be obtained under the 1998 Act. That, of course, is what the mother seeks here. The remedy under the 1998 Act is, in principle, the most appropriate and is likely to be the most satisfactory.[16]This last matter requires some elaboration. Section 7(1) of the 1998 Act provides that:
“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.” but only if he is (or would be) a victim of the unlawful act.”
[17]Section 6 provides in material part that:
“(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right … (3) In this section ‘public authority’ includes … a court or tribunal … (6) ‘An act’ includes a failure to act … ”
[18]Section 8 provides in material part that:
“(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.”
[19]Section 7(1)(a) of the 1998 Act enables a claimant to bring free-standing proceedings either in the County Court or in the High Court: see Re W and B, Re W (Care Plan) [2001] EWCA Civ 757, [2001] 2 FLR 582 at para [73], Re M (Care: Challenging Decisions by Local Authority) [2001] 2 FLR 1300 at p 1307F, Re L at para [91] and Re G at paras [39], [48]. (I do not need to consider here whether the FPC also has such jurisdiction.) But although both the County Court and the High Court have jurisdiction to hear such applications, the President made it clear in C v Bury Metropolitan Borough Council [2002] EWHC 1438 (Fam), [2002] 2 FLR 868 at para [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.”
[20]I entirely agree with and wish, with respect, to endorse what the President has said.[21]Quite apart from the free-standing jurisdiction under section 7(1)(a), rights arising under the Convention can also be relied on under section 7(1)(b) of the 1998 Act, by way of defence or otherwise, “in any legal proceedings”. That, in my judgment, must extend to cases – such as care cases – proceeding in the FPC. So, whether or not the FPC would have jurisdiction to hear a free-standing application by the mother under section 7(1)(a) – a matter on which I express no views – the FPC has jurisdiction under section 7(1)(b) to give effect to the mother’s rights under the Convention. Indeed, the FPC has a duty to do so under section 6(1), for the FPC is itself, of course, a public authority for the purposes of the 1998 Act: see section 6(3)(a).[22]The substantive and procedural protection afforded to parents by article 8 of the Convention applies at all stages of child protection: see Re L and Re G. So the substantive and procedural requirements of article 8 apply not merely during the period when the care proceedings are on foot (the issue with which I was concerned in Re L) but also after the care proceedings have come to an end and whilst the local authority is implementing the care order (the issue which Holman J was concerned with in Re M and the President in Bury and which I was concerned with in Re G).[23]There is, however, in my judgment, even if the point is not made explicitly clear in Bury, an important distinction to be drawn between(a) those cases in which a Convention issue arises whilst care proceedings are still on foot and(b) those cases in which a Convention issue arises after a final care order has been made and when the care proceedings have accordingly come to an end.[24]In the latter class of case – that is, where the care proceedings have come to an end – the appropriate remedy may well be a free-standing application under section 7(1)(a) of the 1998 Act. Such an application can be made either on its own or in conjunction with some other application, for example (as in Re M, in Bury and in Re G) an application under section 39 of the 1989 Act for discharge of the care order. In such a case, as the President emphasised in Bury, the application should be heard in the Family Division and, if possible, by a judge with experience of sitting in the Administrative Court. Bury, it should be noted, was a case where the care proceedings had come to an end.[25]In the other class of case – that is, where the care proceedings are still on foot – the position, in my judgment, is quite different. Here there is no need for any free-standing application under section 7(1)(a). Section 7(1)(b) will provide an appropriate remedy within the care proceedings themselves. Accordingly, Human Rights Act complaints arising before the making of a final care order can, and in my judgment normally should, be dealt with within the context of the care proceedings and by the court which is dealing with the care proceedings. I might point out that Re L is an example, albeit in the Family Division, showing just that procedure being adopted. In that case the mother’s complaints of numerous breaches of article 8 were litigated within the care proceedings and without any separate application being issued under the 1998 Act.[26]Powerful support for this approach is, I think, to be found in the analogous problem that may arise if, whilst care proceedings are still on foot, a challenge to the local authority’s decision-making is sought to be mounted by way of an application for judicial review. I refer in this context to what Wilson J said in Re C (Adoption: Religious Observance) [2002] 1 FLR 1119. That was a case in which, whilst care proceedings were pending, an application was made by the guardian for judicial review of the local authority’s proposed care plan. Both matters came on for hearing together by Wilson J, sitting simultaneously in both the Family Division and the Administrative Court.[27]Dismissing the application for judicial review, Wilson J said this at para [51]:
“ … the guardian's issue of proceedings for judicial review of the local authority's decision to match C with Mr and Mrs A was, in retrospect, misguided. 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. The guardian will, I am sure, be horrified to realise that, because of her issue of those proceedings, the decision in the care proceedings to approve C's placement for adoption has been delayed for over 6 months … had the guardian not issued her application, the care proceedings would have continued in the family proceedings court and been decided on 24 August 2001 or, if the court's time did not then permit full consideration of her objection to the care plan, soon thereafter. It seems to me that the issue about the suitability of particular adopters - or of a particular type of adopters - identified in a care plan is just as well suited to ventilation in a family proceedings court as to ventilation in the Family Division; and 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. The guardian argues that not even a judge of the Family Division has power to quash a local authority decision and that a damaging impasse can develop between a court which declines to approve their care plan and the authority which decline to amend it. The impasse is more theoretical than real: the last reported example is Re S and D (Children: Powers of Court) [1995] 2 FLR 456. For good reason, there are often, as in this case, polarised views about the optimum solution for the child: in the end, however, assuming that they feel that the judicial processing of them has worked adequately, the parties will be likely to accept the court's determination and, in particular, the local authority will be likely to amend their proposals for the child so as to accord with it. The event of their failure to make amendment in such circumstances would be the proper moment for a guardian to consider taking proceedings for judicial review. In Nottingham County Council v P [1994] Fam 18, sub nom Nottinghamshire County Council v P [1993] 2 FLR 134, a case where a local authority had adamantly refused to accede to the court's invitation to apply for a supervision order, some encouragement is given by the Court of Appeal at 43F and 148 respectively to the taking of such proceedings - but (as I infer) only at that ultimate stage. In the normal case let there be - in the natural forum of the family court - argument, decision and, sometimes no doubt with hesitation, acceptance: in other words, between all of us a partnership, for the sake of the child.”
(emphasis added)[28]I respectfully agree with and wish to associate myself emphatically with every word of that. I draw attention to two points in particular: first, Wilson J’s view, which I entirely share, that the proper place for such matters to be considered is within the care proceedings; and, secondly, his belief, which again I entirely share, that the FPC is often just as well suited as the Family Division to decide such matters.[29]In my judgment very similar principles apply to applications under sections 7 and 8 of the 1998 Act. It is, of course, of fundamental importance that full and proper effect is given to the Convention rights of any parent whose child the state seeks to have taken into care. But it must not be overlooked that the child also has rights under the Convention that have to be protected. Too many care cases already take far too long. The right to a speedy determination of such proceedings is a principle mandated not merely by section 1(2) of the 1989 Act but also by the Convention. As I have previously had occasion to observe, the Strasbourg jurisprudence calls for “exceptional diligence” in care cases: see Re L at para [249]. It would be a terrible irony if the necessary pursuit of 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 sections 7 and 8 of the 1998 Act derailing or unnecessarily delaying the trial of care cases.[30]What procedures do I have in mind?[31](1) In the first place, human rights arguments based on the Convention can, and should, be dealt with within the context of the pending care proceedings. They can, and should, be dealt with by the court which is dealing with the care proceedings. Where there are care proceedings on foot there is, in my judgment, no need for any separate, let alone any free-standing, application. Section 7(1)(b) enables every court – including the FPC – to give effect to the parties’ Convention rights.[32](2) The second point is this. Only in a wholly exceptional case – and I confess that at present I have difficulty in envisaging such a case – could it possibly ever be appropriate to follow the procedure adopted in the present case, of treating the human rights arguments as raising a discrete issue to be hived-off for hearing in the Family Division whilst the care proceedings continue in the FPC or the County Court. There is no justification for splitting a case up in this way. If the case really requires to be transferred up then the whole case should be transferred.[33](3) Thirdly, there is no basis for transferring a care 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 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 now done, I would hope for once and 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. (I note in passing that I have not been referred to a single decision of the European Court of Human Rights.)[34](4) Next I should like to emphasise two practical points. Human rights arguments should be identified and brought to the attention of the court at the earliest possible opportunity; and if a care case is to be transferred up that should also be done at the earliest possible opportunity and as quickly as possible. It is most unfortunate that in this case, where the point arose following a decision taken on 21 November 2002 and embodied in an amended care plan filed on 29 November 2002, and where the mother’s application was received by the FPC on 24 December 2002, it was not issued by the FPC until 30 January 2003, not heard by the FPC until 12 February 2003 and then not considered by the High Court until 19 March 2003. The National Protocol which is due to take effect later this year is going to require that, save in exceptional or unforeseen circumstances, every care case is to be determined not later than 40 weeks after it has first been commenced. In the present case the choice of what can now be seen to have been an inappropriate procedure has consumed almost four months – the period from 21 November 2002 to 19 March 2003 – and that in a case which started as long ago as 11 March 2002. Such delays are quite inconsistent with an overall timetable that requires care cases to be concluded within a little over nine months. I do not in any way criticise those involved in the present case, who were faced with a procedural problem to which the answer was not clear and who can be forgiven for deciding to proceed as they did. I hope that the position is now clear and that similar delays will not be allowed to occur in future.[35](5) Finally, there is, as I have pointed out, nothing to be gained by invoking the inherent jurisdiction of the High Court in relation to children if all that is in issue are claims arising under the Convention. There may, of course, be some other reason why it is necessary to invoke the inherent jurisdiction – for instance if some difficult question of medical treatment arises whilst a care case is on foot – but the existence of a human rights argument will not of itself require or justify the invocation of the inherent jurisdiction.[36]To summarise. Just as applications for judicial review are to be deprecated where there are pending care proceedings, so are separate applications under sections 7 and 8 of the 1998 Act in such cases. The proper forum for litigating these issues will almost always be the court – whether the FPC, the County Court or the High Court, as the case may be – where the care proceedings are being tried.[37]In the present case I directed that the proceedings – the whole of the care proceedings – should remain in and be heard in the Family Division. This was not because I felt that they were unsuitable to be tried in the FPC. It was simply because it emerged that the case would not in any event be ready for determination by the date fixed for the final hearing in the FPC and in these circumstances there would be even more delay if the case was now to be returned to the FPC.[38]I have shown this judgment to the President, Dame Elizabeth Butler-Sloss, in draft. She has authorised me to say that she agrees with and endorses everything that I say in paragraphs [31]-[36] above as to the appropriate procedures which should in future be adopted in such cases.

Order

Implementation of Care Plan) [2002] UKHL 10, [2002] 2 AC 291. So, as Balcombe LJ put it in Re S and D at pp 463C, 464B, the court may find itself faced with the dilemma of choosing what it considers to be the lesser of two evils.

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