Tag Archives: Article 6

Human Rights Act 1998

Claims against public bodies for breach of the Human Rights Act 1998

Introduction

The Human Rights Act (HRA) was passed to give direct effect to the Articles of the European Convention into domestic law. Prior to the HRA, if you wanted to claim that your human rights had been breached you had to take out an action in the European Court of Human Rights in Strasbourg. Now, it is unlawful for any public body – including the courts and local authorities – to act in a way which is incompatible with a Convention right, unless they have no choice because they have to obey current statute law.

However, applicants who are receiving legal aid will need to consider carefully the implications of the statutory charge on any award of damages – this is discussed below. It seems likely that in most cases, pursuing an HRA application is simply not commercially viable. However, there are some avenues worth exploring and these are discussed below.

The most likely Articles of the ECHR which are in play in regard to child protection cases are:

  • Article 8 – the right to respect for family and private life;
  • Article 6 – the right to a fair hearing.

For further consideration of Article 8 and its ambit see our post on Article 8 and proportionality. For further consideration of Article 3 in care proceedings, see this post. For a list of cases and amounts of money awarded, scroll to the end of this post. 

We will need to watch this space, particularly with recent Government proposals to ‘scrap’ the HRA and replace it with a ‘British Bill of Rights’..

 

The requirements of the Human Rights Act 1998

What is an unlawful act and what is a public authority?

‘Unlawful Act’ is defined under section 6 (1) of the HRA. It is unlawful for a public authority to act in a way incompatible with a ECHR right UNLESS it doesn’t have a choice because of the way the domestic law is written.

A ‘public authority’ includes a court/tribunal or any person who carries out functions of a ‘public nature’ BUT it excludes the Houses of Parliament.

Who can make an application under the HRA?

Section 7 provides that a person can bring proceedings if they are, or would be a ‘victim’ of the unlawful act.  There is a distinction between a ‘free standing’ application [section 7(1)(a)] and relying on your Convention rights in existing proceedings [section 7(1)(b)].

It is now clear that the court will expect formal applications made according to the Civil Procedure Rules NOT the FPR and this will have consequences for many issues, not least the role of the children’s guardian. For a clear analysis of the necessary procedural requirements, it is worth reading carefully the judgment of Cobb J in SW & TW (Children : Human Rights Claim: Procedure) (Rev 1) [2017] EWHC 450 (Fam) (08 March 2017).

 

What remedy can you get?

Section 8 of the HRA gives the court a discretion to remedy the breach of your human rights; the remedy must be ‘just and appropriate’.

This can include damages, if the court is satisfied this is necessary ‘to afford just satisfaction’. The court must take into account the principles applied by the European Court  about awards of damages – but the problem with this is that the jurisprudence from the ECtHR is deliberately opaque about what makes the quantum of damages ‘just satisfaction’. Each case will depend on its own facts. 

Article 41 of the ECHR

This sets out the requirement for ‘just satisfaction’ on violation of a ECHR right. For useful discussion about the application of Article 41, see paragraph 143 onwards of the judgment of the European Court in the case of P, C and S v UK [2002].

General principles about awards of damages pursuant to Article 41

See this Practice Direction  from 2007.

  • A clear causal link must be established between the damage claimed and the violation alleged. The Court will not be satisfied by a merely tenuous connection between the alleged violation and the damage, nor by mere speculation as to what might have been.
  • Compensation for damage can be awarded in so far as the damage is the result of a violation found. No award can be made for damage caused by events or situations that have not been found to constitute a violation of the Convention, or for damage related to complaints declared inadmissible at an earlier stage of the proceedings.
  • The purpose of the Court’s award in respect of damage is to compensate the applicant for the actual harmful consequences of a violation. It is not intended to punish the Contracting State responsible. The Court has therefore, until now, considered it inappropriate to accept claims for damages with labels such as “punitive”, “aggravated” or “exemplary”.

How have the courts approached damages under the HRA 1998?

The concept of ‘just satisfaction’.

The first case to consider damages under the HRA 1998 was Anufrijeva v London Borough of Southwark in 2003. At para 49 the court noted the conclusions of the Law Commission in its report on Damages under the Human Rights Act 1998 which suggested that the obvious analogy for a claim for damages under the HRA is a claim against a public authority in tort, such as negligence. But this analogy cannot be drawn too strictly as there are distinctions between the purpose behind an award of damages in tort and under the HRA.

  • damages are recoverable ‘as of right’ in a negligence claim (tort), but are at the court’s discretion in a HRA claim;
  • the purpose behind the damages claim is different; in negligence this is to put the claimant back in the position he would have been in without the negligent act, whereas in HRA claims the purpose is to provide ‘just satisfaction’;
  • That ‘just satisfaction’ may be provided by dealing with the HR breach, not necessarily compensating someone with money. The European Court has often found that in cases where there was a procedural, rather than substantive breach,  a simple declaration that the claimant’s human rights were breached is in fact sufficient ‘just satisfaction’.

In the case of H (A Child – Breach of Convention Rights: Damages) [2014] the court was very clear that in the circumstances of this case ‘just satisfaction’ would NOT be achieved by a simple declaration that the parents’ rights had been breached. See paragraph 82:

 It was not until June 2014 that these parents eventually managed to secure the return of their daughter to their care, exactly a year after she was placed with Mr and Mrs B. Whilst it is true that during that year the parents were having regular contact, supervised contact at a local authority contact centre is far removed from the joys of fulltime, unsupervised care of one’s own child. The residential assessment which began in June 2014 could have begun a year earlier. The cognitive assessment of the parents, not finally obtained until May 2014, could have been obtained months earlier. Unlike the parents in the Coventry case, these parents’ have suffered a loss of time with their daughter which was both unnecessarily lengthy and deeply distressing.

How should damages be assessed? And what is an appropriate award?

The difficulty is in situations where the harm suffered by the claimant is not one that can easily be measured in money – for example, loss of earnings is a lot easier to measure than being very upset or anxious about something.   There is little guidance from the European authorities, save that the court tends to look at the nature and seriousness of the breach complained about, and the claimant’s own behaviour.

The European Court has also recognised ‘loss of relationship’ as another form of intangible injury – that is the loss of love and companionship which occurs when a family relationship is disrupted by breach of Article 8.

This is a clear difference between the kinds of damages that may be awarded for breach of contract or tort in the domestic courts, which may not recognise many of these types of loss or would require much stricter proof to be satisfied they had occurred. Some types of loss are going to be much more easily quantified than others.

The court in H (A Child) noted that there was not much assistance from previous cases in determining what amount should be awarded. In this case, each parent was awarded £6,000. See para 87:

Whilst the authorities referred to are of some small assistance, there are too few to be able to be confident that they indicate the broad parameters for making an assessment. In any event, it must, of course, be remembered that every case is different. Every case turns on its own facts. The assessment of damages in these cases is highly fact sensitive.

The court in X, Y. & Z re (Damages: Inordinate delay in issuing proceedings) [2016] approved the identification of the relevant issues by HHJ Lazarus in the Medway case [2015]:

  • The length of the proceedings
  • The length of the breach
  • The severity of the breach
  • Distress caused
  •  Insufficient involvement of the parent or child in the decision making process
  • Other procedural failures.

WARNING: It is likely that the Court of Appeal decision in London Borough of Hackney v Williams  & Anor [2017] is a clear attempt to row back from what appears to be ever increasing amounts awarded in damages for HRA claims. The Court decided that there had been no breach in this case so no damages fell to be awarded – BUT if they had, the Court of Appeal were clear that the £10K awarded at first instance was simply too high. For further discussion of this case, see this post.

 

What did the Law Commission say?

The Law Commission report considered the damages awarded by the European court at paras 3.26 and 3.27 of its report:

The Strasbourg Court has made awards for non-pecuniary loss in respect of a wide range of intangible injuries. Non-pecuniary awards have included compensation for pain, suffering and psychological harm, distress, frustration, inconvenience, humiliation, anxiety and loss of reputation. There appears to be no conceptual limit on the categories of loss which may be taken into account, and the Strasbourg Court is often prepared to assume such loss, without direct proof…

The implication of the costs of proceedings

Guidance and warning from Anufrijeva 

Para 59 of Anufrijeva was cited with approval by the Court of Appeal in 2012,:

The fundamental principle underlying the award of compensation is that the court should achieve what it describes as restitution in integrum. The applicant should, in so far as this is possible, be placed in the same position as if his Convention rights had not been infringed. Where the breach of a Convention right has clearly caused significant pecuniary loss, this will usually be assessed and awarded. The awards of compensation to homosexuals, discharged from the armed forces, in breach of article 8, for loss of earnings and pension rights in Lustig-Prean and Beckett v United Kingdom (2000) 31 EHRR 601 and Smith and Grady v Untied Kingdom (2000) 31 EHRR 620 are good examples of this approach. The problem arises in relation to the consequences of the breach of a Convention right which are not capable of being computed in terms of financial loss.

The court in Anufrijeva suggested that in order to help work out what was an appropriate level of damages, guidance could be taken from levels of damages awarded in respect of torts, awards made by the Criminal Injuries Compensation Board and by the Parliamentary Ombudsman and the Local Government Ombudsman. But this guidance could only be ‘rough’. The court also sounded this note of caution:

The reality is that a claim for damages under the HRA in respect of maladministration, whether brought as a free-standing claim or ancillary to a claim for other substantive relief, if pursued in court by adversarial proceedings, is likely to cost substantially more to try than the amount of any damages that are likely to be awarded. Furthermore, as we have made plain, there will often be no certainty that an entitlement to damages will be established at all.

The court was alarmed at how expensive it had been to bring this action and set out guidance for future cases:

  • The courts should look critically at any attempt to recover damages under the HRA for maladministration by any procedure other than judicial review in the Administrative Court.
  • The claimant will need to explain why it isn’t more appropriate to use other routes of resolving the complaint, such as an internal complaints procedure or a claim to the Local Government Ombudsman.
  • other forms of dispute resolution are encouraged and it is hoped that any such future claims can be dealt with quickly by a judge reading the evidence.

These warnings have been repeated in later cases, most notably by Cobb J in SW & TW [2017], cited above.

Other issues regarding HRA applications

Limitation periods: You must make your claim within a year if its a ‘free standing’ application.

But the court does have discretion to extend that time. Section 7(5) provides that:

‘(5) Proceedings under subsection (1)(a) must be brought before the end of—
(a) the period of one year beginning with the date on which the act complained of took place; or
(b) such longer period as the court or tribunal considers equitable having regard to all the circumstances,
but that is subject to any rule imposing a stricter time limit in relation to the procedure in question.

Injunctions under the Human Rights Act

It is possible to apply for an injunction under the HRA 1998 to prevent a public body from acting unlawfully. See our post about the LA attempting to remove a child from home who was there under a care order. The court confirmed that the parents should apply for an injunction to prevent this.

 

If care proceedings are on going

The courts are clear that if human rights issues are raised during care proceedings, they should be determined within those proceedings, not by separate application to another court. See In the Matter of L [2003], approved at paragraph 58 in H (A Child – Breach of Convention Rights: Damages) [2014].

The court held further at paragraph 64:

I am satisfied that the Family Court has the power to make an award of damages under s.8(2) of the Human Rights Act 1998. I am equally satisfied that the authorities to which I have referred continue to apply and that where, in the course of care proceedings, relief is sought under section 8, that relief must be sought within the care proceedings pursuant to s.7(1)(b) of the 1998 Act and not by bringing freestanding proceedings under s.7(1)(a).

BUT note what was said by Keehan J in the Northamptonshire case (see below) about making a separate application to avoid the full impact of the legal aid statutory charge absorbing any award of damages. No doubt this area of law will continue to develop, so watch this space.

 

The impact of the legal aid charge – can it ever be worth making a claim?

It is now beyond doubt that the Legal Aid Agency will seek to recover its costs from the amount of damages awarded. This is set out in the Statutory Charge Manual  [2014].  Thus, if an application is made under the HRA in existing proceedings – as the court advises should happen – an applicant is likely to have already incurred significant legal costs which are likely to wipe out any award of damages.

The purpose of the Statutory Charge, as set out in the Manual is as follows.

  • put legally aided individuals as far as possible in the same position as successful non-legally aided individuals (who are responsible at the end of their cases to pay their own legal costs if their opponent in the litigation does not, or is unable, to pay them). The statutory charge converts legal aid from a grant into a loan. (See Davies v. Eli Lilly & Co [1987] 3 All ER 94 at 97 to 98).
  • ensure that legally aided individuals contribute towards the cost of funding their cases so far as they are able; and
  • deter legally aided individuals from running up costs unreasonably by giving them a financial interest in how much money is being spent.

There are exemptions from the charge – see page 31 onwards of the manual – but the HRA does not appear. The Manual itself runs to 108 pages which gives you an idea as to its complexity.

The issue of costs and the statutory charge was further considered in CZ (Human Rights Claim: Costs) [2017] EWFC 11.

The court dealt with this from para 46 onwards. The parents and the child were each awarded £3,750 as ‘just satisfaction’ after the child was removed at birth for about three weeks and the LA later conceded they had no evidence to justify this. However, the court was clear that the damages were likely to be eaten up by the statutory charge and was critical of the failure by the parties to adopt a proportionate approach to this issue.

For further commentary on this issue, see this post by The Transparency Project. 

Can anything be done to avoid the statutory charge?

Free Standing applications

It seems sensible to consider making a free standing application under the HRA which is not then linked to the costs incurred in any other proceedings, as this may help keep any costs at a lower level. However, applicants will need to be very careful of criticisms levelled by the courts at those who do not raise human rights issues in their existing proceedings.

This was the route taken by Keehan J in the Northamptonshire case in 2017. Its success will depend on the particular facts of each case.

See also the case of P v a Local Authority [2016] EWHC 2779 for a decision where the statutory charge was held NOT to apply to an award of damages. There is commentary on this case by suesspiciousminds who points out that this case probably won’t be a ‘road map’ for future cases as there were two major differences between this case and other HRA cases: namely that the HRA breach happened AFTER the Court hearing and not really in connection with the Court hearing at all and the LAA had been asked to fund a damages claim and had refused.

Section 17 of the Children Act 1989

Further discussion with colleagues suggests that the LA could pay money under section 17 of the Children Act 1989 which deals with the provision of services to children in need and their families; section 17(7) allows the LA to make payments in cash. There is also the general wellbeing provision of the Local Government Act 2000 – section 2(4) allows the LA to give financial assistance to any person.

However, payments made under either Act are unlikely to be an attractive option to LAs as they would come out of social work budgets whereas a court order to pay damages would be met by insurance. Nor is it enforceable, if the LA say they will pay but then go back on their offer.

Costs orders

Give consideration to asking the court to make a costs order against the other side. It is now clear that these applications are governed by the CPR and therefore the starting point for costs will be that the loser pays. However you will need to consider your own litigation conduct and attempt to make realistic and genuine attempts to settle.

Making a complaint pursuant to section 26 of the Children Act 1989

A colleague contacted me to say that in one of her cases, the LA offered the children £1,500 each by way of ex gratia payments following a complaint made under section 26 after the care proceedings had concluded. This money will be held in trust until the children are 18.

The only problem with this approach is that for those acting on behalf of the child there’s little room for negotiation over the amount of money offered, because once proceedings have finished the children’s guardian doesn’t have any standing to pursue a HR application 

Damages awarded in other cases

  • P, C, S v the UK [2002] the European court awarded each parent €12,000 for breaches of their Article 8 and 6 rights in a case which involved removal of a baby at birth. This case also has some useful commentary as to how damages should be assessed.
  • Northamptonshire CC v AS [2015] – damages £16K.
  • Ferrari v Romania in the European Court of Human Rights in April 2015 where a father was awarded €7,500 after the state failed to properly engage with Hague Convention proceedings and caused delay.
  • In re A (A Child) in August 2015,  the mother was awarded £3,000 for unlawful removal of her child.
  • Medway Council v M and T October [2015] awarded £20K to both mother and child for unlawful use of section 20 accommodation under Children Act 1989.
  • B (A Child) [2016] EWFC B10 January 2016 – £5K awarded for 3 year delay in revoking placement order that meant B lost out on developing a relationship with his siblings.
  • Case Soares de Melo c. Portugal (Application No 72850/14) [Feb 2016] award of €15,000 for decision to have children adopted without offering family sufficient support.
  • X, Y & Z re (Damages: Inordinate Delay in Issuing Proceedings) [2016] EWFC B44 (23 February 2016) – £65K awarded, highest level of damages known to date for misuse of section 20, and particular criticism of the failure of two IROs to act. 
  • BB (A Child) [2016] 27th June EWFC B53 £7,500 awarded for misuse of section 20.
  • GD & BD (Children) [2016] 10-18 October 2016 EWCH 3312 – example of very poor police, LA and legal practice, described by Suesspiciousminds as ‘the worst case of the year’. £10,000 awarded to the mother and £5,000 to each child.
  • London Borough of Hackney v Williams and Anor [2017] – Court of Appeal sound the warning that £10K awarded at first instance was too high (in the event the court did not find a breach of statutory duty so no damages were awarded at all)
  • CZ (Human Rights Claim: Costs) [2017] EWFC 11 – £3,750 to each parent and child for unjustified removal at birth for about 3 weeks. However, costs likely to be completely absorbed by the statutory charge – publicly funded costs in region of £100K.

Further reading

 

Response to Commentators #4

Don’t sacrifice justice on the altar of speed

This is written by Sarah Phillimore, a family law barrister in response to a comment from FASSIT who said:

I recollect this site lambasting our group for the following comment: Fassit are finding that social workers are removing hundreds of children from innocent parents each year through sheer incompetence and organisational failure what could best be described as blatant discrepancies between the evidence presented at Court by expert witnesses (social services; health; education etc.) and the actual events or material facts of the case..”
Well now you can lambast the High Court Judges as well who said today that Judges and social workers have been conspiring to remove children unjustly from their parents.
Read more: From the Daily Mail

This Daily Mail article is a response to the recent decision on appeal in the case of Re NL (A Child) heard on 28th January 2014 by Mrs Justice Pauffley in the High Court. 

The Daily Mail appear to share the view of FASSIT and John Hemming that this is yet more evidence of a network of corruption that taints the entire system.

The President of the Family Division has made it clear that all care practitioners should read this judgment. It is clearly an important case. But does it support any of the conspiracy theories?

 What happened?

This case involved a mother who gave birth to her eighth child in October 2013. She had a very sad and troubled background over 14 years, involving drink, drugs and violence. She had seven older children and she was not able to care for any of them.

In August the mother went to a specialist unit, which offers a therapeutic community to parents who have become dependent on drugs and alcohol. The unit’s aim is to try and keep families together.

The mother did well in her first few weeks in the unit and successfully completed a detox. When her baby was born he did not show any signs that he was affected by his mother’s previous drug use. The hospital where the mother gave birth had no concerns about her parenting.

In October the LA issued an application for a care order. It was clear they were relying on the mother’s very difficult past and their allegation that she had addressed her drug problems very late in the day.

The case came for its first hearing in the Magistrates court on 1st November 2013. The Magistrates made an interim care order and the baby went to foster care. Unsurprisingly, the mother objected to this and another hearing was listed on November 7th where more evidence could be available.

At that hearing the Magistrates heard evidence over the phone from a Dr. Van Rooyen, a chartered clinical psychologist, who was very negative about the mother and her ability to make and sustain changes to her lifestyle.

The Magistrates did not agree to reunite mother and baby and she appealed, arguing essentially that the decision was disproportionate – her baby would be safe with her at the unit while she continued to engage with work that might make her able to parent her son in the community at some point.

The LA and the Guardian did not agree that there had been any procedural or other irregularity and the Magistrates had carried out a proper balancing exercise and made a proportionate decision.

The Role of the Magistrates

Some further explanation of the role of the Magistrates will be useful at this point. Magistrates are volunteers; they do not have legal qualifications, they get some training and are assisted by legal advisers in court. Unlike other judges in family proceedings they therefore have to provide written ‘facts and reasons’ to support decisions they make about children. Sometimes this can take a long time – I have been at Magistrates courts until 8 or 9pm on numerous occasions – and a practice has developed whereby the Magistrates ask the lawyers to help them and speed up the process by writing a document which can be used as agreed ‘facts and reasons’.

As long as everyone has input into this document and it is agreed, this can be a sensible approach to limit the amount of time parents have to spend waiting at court.

Revised Guidance to the Magistrates

N.B. After some debate amongst practitioners as to whether or not this case applied to ALL hearings before the magistrates or only those where the parties wanted to argue about what order was the right one, the President of the Family Division confirmed on March 3rd 2014 that there are NO circumstances where is is permissible for the parties to contribute to the writing of facts and reasons.

This revised guidance was issued and approved by the President of the Family Division

A) Public Law

  • Under no circumstances should the local authority or any other party to the proceedings be involved in drafting Justices’ written Reasons. This prohibition applies irrespective of whether orders are said to be agreed or ‘not opposed.’
  • Henceforth, the court should never ask any party to supply draft Reasons or suggest that a draft be circulated amongst or consulted upon by the parties.
  • The practice of inviting parties to submit their own position statements in which they may set out analyses of the facts as well as their contentions in relation to resulting orders is unobjectionable.
  • It is entirely permissible for Justices’ Reasons to include references to documents filed by the parties – for example position statements, case summaries and chronologies. As appropriate, parts may be adopted e.g. ‘The background facts of the case are as set out in the case summary supplied by Miss A on behalf of X County Council’.
  • In all cases, as part of the case management process, the parties should provide written details of the agreed issues as well as those which are in dispute. It is acceptable and often helpful to record that information in the Justices’ Reasons.
  • Templates and / or pro forma Facts and Reasons documents may be used so long as they are created by the Justices in consultation with their Legal Adviser. If a template or pro forma is employed, the Justices must ensure that (a) case specific detail is incorporated to explain the key aspects of their decision and (b) they alone determine the content. Examples of key decisions recorded upon a template will be, how, if at all, the threshold criteria are established; and whether upon consideration of a child’s welfare interests, he should remain with or be separated from his parents at any stage of the proceedings.
  • The detail and length of the Reasons document will vary according to the complexity of the case; the stage reached in the proceedings and whether any of the facts, or the order sought, are disputed.  Where all or some aspects of the case are contested, the competing arguments and the reasons for preferring a particular course should be given.
  • In every case, even where the order is said to be agreed or where there is no active opposition, there is still a judicial task to perform. Justices must ensure not only that justice is done but also that it is seen to be done.

 

 

The Appeal hearing on 28th January 2014

There were obviously very serious problems in this case that led to Mrs. Justice Pauffley allowing the mother’s appeal and reuniting her with her son in the unit:

  • An expert being asked to prepare crucial report in very tight timeframe and without meeting the mother
  • Sending documents to the court without input from the other parties
  • Magistrates relying on ‘facts and reasons’ drafted by someone else
  • It took almost three months before the mother’s appeal against the orders in November could be heard

Lets look at these in turn.

Experts who report too quickly and don’t meet the parents.

The Judge said:

It simply cannot be right, fair or reasonable to commission an expert to provide what may turn out to be the pivotal evidence justifying separation of a neonate from his mother in the way that happened here.

It surprises and alarms me that Dr. van Rooyen was asked, and was prepared, to provide a report during the course of a single working day, a terrifyingly tight timeframe, and on the basis of papers supplemented by a telephone conversation with a LA professional who had never met the mother. I struggle to understand how Dr. van Rooyen’s apparently firm opinions, adverse to the mother, could have been formed given the complete absence of any kind of discussion with her or, indeed, any communication with [the unit – who were positive about the mother].

Sending documents to the court and not the other parties

The court relying on facts and reasons they didn’t draft.

With regard to the first hearing on 1st November, the LA lawyer wrote and emailed the ‘facts and reasons’ document before the hearing. The mother’s lawyer had no input into this document and was simply given a hard copy outside court on the morning of the hearing.

The document was then amended and included a reference to the expert’s report, which had been obtained only the day before and is discussed above. However, it did not contain any reference to the relevant law applying to removal at an interim stage

See our post about interim removal – what does it mean and how does it happen?

The Judge was told that this was ‘local practice’ and the Magistrates court expected every LA to provide draft ‘Facts and Reasons’ for every hearing in care proceedings. These documents were not routinely circulated to other parties.

Breach of Article 6 ECHR

The Judge was clear that this was an unacceptable breach of Article 6 of the ECHR, which provides for the right to a fair trial.

She said at paragraph 65:

Whilst I might be able to understand why such methods may have been developed, I am profoundly alarmed by their existence. Informal inquiries reveal, anecdotally, that the practices I have described are not confined to this are but are widespread across the country.

And further at paragraph 67:

Seemingly, there were process failures in this case, which significantly interfered with the most basic requirements for openness and transparency. There was, apparently, an established but largely clandestine arrangement between the LA and the court, which, to my mind, has considerable repercussions for justice and, equally importantly, the perception that justice will be done. It is fundamental that nothing is sent to the judge by one party unless it is copied simultaneously to ever other party

Equally and just as importantly, it is difficult to view the Justices as having been independent and impartial if, as happened here, they simply adopted the LA’s analysis of what their Findings and Reasons might comprise.

Lengthy delay in listing the appeal.

The Judge said at paragraph 81:

Three things should be emphasized. Firstly, appeals from interim care orders where separation has been sanctioned are amongst the most urgent of all public law hearings; time is of the essence and the court must do its utmost to list such appeals as a matter of urgency. By that I mean within days or at most a very few weeks. Second, that listing for the convenience of Counsel, whilst desirable, should not be a factor leading to a hearing date later than the court can accommodate. Third that the guardian’s ability to attend in person at the appeal hearing is of minor significance when weighed against the requirement for an early hearing’

Conclusions

This case went badly wrong and the Judge’s criticisms are well deserved. The removal of the mother’s baby on November 1st then became solidified as the ‘right thing’ by the second hearing on November 7th, the Magistrates even going so far as to say the baby might suffer disruption being removed from foster carers where he had lived for just one week!

The Judge commented at paragraph 55 of her judgment:

This case provides a good example of how once separation has occurred there can be a certain inevitability that it will be perpetuated. It is often and rightly said that the decisions taken about placement at the outset of public law proceedings are amongst the most significant. They can be and often are the most difficult. All the ore reason, I would say, for immense trouble to be taken so as to ensure those decisions are based upon good evidence and fully justified. Anything less would be to ignore that a child, as the result of what occurs at the beginning of proceedings, may be denied the opportunity, ultimately, of remaining within his natural family.

It was clear that the LA had ‘given up’ on the mother by August 2013 in light of her bleak previous history and had probably decided by then that they would seek removal of the baby once he was born.

But is this further example of systemic corruption in the family court system? I don’t think so. It is a horrible example of sloppy practice and a vivid illustration of something that often happens in these cases – professionals make a reasonable decision about the ‘likely outcome’ of a case but in so doing then lose sight of the need to constantly respect and observe due process.

Or, in other words, just because you are now dealing with the 8th child of a mother with very serious problems who has had all previous children removed from her care, you cannot for this reason alone fail to respect and apply due process and the requirements of the law.

There is a need in ALL cases to act openly and fairly at all times and to remember the positive obligations imposed on the State by Article 8 and to consider how to support the family to remain together.

Underpinning this jettison of good practice was clearly a fear that unless people acted speedily, the case would fall outside the very strict 26-week timetable which now operates in care proceedings.

Mrs. Justice Pauflley rejected this, loud and clear, stating that ‘Justice must never be sacrificed on the altar of speed’.

She cited Re B-S (Children) [2013] EWCA Civ 1146 at paragraph 38 of her judgment.

‘Critical to the success of the reforms is robust judicial case management from the outset of every care case. Case management judges must be astute to ensure that the directions they give are apt to the task and also to ensure that their directions are complied with. Never is this more important than in cases where the LA’s plan envisages adoption. If, despite all, the court does not have the kind of evidence we have identified, and is therefore not properly equipped to decide these issues, then an adjournment must be directed, even if this takes the case over 26 weeks. Where the proposal before the court is for non-consensual adoption, the issues are too grave, the stakes for all are too high, for the outcome to be determined by rigorous adherence to an inflexible timetable and justice thereby potentially denied’.

I do not think this case ‘proves’ that systemic corruption and state sanctioned baby stealing exist. It is unfortunate that once again the Daily Mail chooses to report matters of such importance in such a ham fisted and hysterical way.

It is however a very sobering reminder of how professionals must always be on guard not to slip into sloppy thinking and over reliance on past history, however bleak it may seem.

If FASSIT and others reject this analysis I hope they will at least accept that the clear and uncompromising words of Mrs. Justice Pauffley show that the tentacles of corruption have yet to reach the judiciary of the High Court.

What further debate could we be having?

We do need to stop wasting time over allegations of systemic corruption and look at the real issues these cases throw up. If we didn’t have the Magistrates as volunteer Judges who don’t require a big fat salary or even bigger judicial pension, the whole family justice system would grind to a halt. But the responsibility of decison making in these kind of cases is massive – are we giving our Magistrates enough support? Are we expecting too much of them?

The clarification on 3rd March 2014 from the President that there are NO circumstances in which any party to proceedings may assist in drafting the Facts and Reasons, even where everyone is agreed and happy to do this,  is a departure from what has been usual practice for many years. We will have to wait and see what the consequences of this will be.

Why does it take so long to list further hearings, particularly appeals? Is there really no money in the pot for more judges and more available court time so we can react with speed and urgency when it’s needed?