Author Archives: Sarah Phillimore

Achieving best evidence and use in Children Act cases

This post began life as a paper delivered by Sarah Phillimore at the St John’s Chambers conference on 4th December 2014: ‘Family Justice: universal access and fair process’. It has been updated to take into account more recent case law; most particularly the case of A (A Child) [2015] and Re BR (Proof of Facts) [2015]. No doubt the updating process will continue in light of our continued and collective inability to get to grips with this most essential issue. 

With thanks to Dr Harrington for the introduction to Sapir/Whorf

‘We have a system that places the proof of facts at the centre of care proceedings’

Baker J November 2013

Overview

  • The importance of good evidence
  • The consequences if we get it wrong
  • How can we do it better?

 

Why is evidence so important?

Mr Justice Baker addressed a family law conference in 2013 asking the question – how can we improve decision making in the family courts? He identified the twin evils of delay and cost which impact on the quality of decisions made. He commented on the alternatives to litigation, such as mediation or arbitration that might work to mitigate those evils. But he was also clear that alternatives to litigation could never be complete substitutes for litigation. There will always be a proportion of cases that will require the court to intervene.

He said this:

But there will always be a substantial number of disputes in which a forensic process is unavoidable, a process that involves consideration of allegations and cross-allegations made by the parties, a judicial analysis of the evidence, the makings of findings and an assessment of the consequences of those findings. There are some people who genuinely believe this can be done by some sort of committee without involving lawyers at all. Such views are profoundly mistaken.

Children cases are not fully adversarial because the court retains ultimate control of what is and is not litigated. The level of this control will vary. But fundamentally we have a system which puts proof of facts at its heart.

What do we mean by proof of facts in a court?

See Re BR (proof of facts) [2015]

Mr Justice Jackson commented:

It is exceptionally unusual for a baby to sustain so many fractures, but this baby did. The inherent improbability of a devoted parent inflicting such widespread, serious injuries is high, but then so is the inherent improbability of this being the first example of an as yet undiscovered medical condition. Clearly, in this and every case, the answer is not to be found in the inherent probabilities but in the evidence…

He set out some general principles:

  • The court acts on evidence, not speculation or assumption. It acts on facts, not worries or concerns. Evidence comes in many forms. It can be live, written, direct, hearsay, electronic, photographic, circumstantial, factual, or by way of expert opinion. It can concern major topics and small details, things that are important and things that are trivial.
  • The burden of proving a fact rests on the person who asserts it.
  • The standard of proof is the balance of probabilities: Is it more likely than not that the event occurred?
  • Neither the seriousness of the allegation, nor the seriousness of the consequences, nor the inherent probabilities alters the standard of proof required. Where an allegation is a serious one, there is no requirement that the evidence must be of a special quality. The court will consider grave allegations with proper care, but evidence is evidence and the approach to analysing it remains the same in every case.
  • Nor does the seriousness of the consequences of a finding of fact affect the standard to which it must be proved. The court takes account of any inherent probability or improbability of an event having occurred as part of a natural process of reasoning. But the fact that an event is a very common one does not lower the standard of probability to which it must be proved. Nor does the fact that an event is very uncommon raise the standard of proof that must be satisfied before it can be said to have occurred. Similarly, the frequency or infrequency with which an event generally occurs cannot divert attention from the question of whether it actually occurred. “Improbable events occur all the time. Probability itself is a weak prognosticator of occurrence in any given case. Unlikely, even highly unlikely things, do happen. Somebody wins the lottery most weeks; children are struck by lightning. The individual probability of any given person enjoying or suffering either fate is extremely low.”
  • Each piece of evidence must be considered in the context of the whole. The medical evidence is important, and the court must assess it carefully, but it is not the only evidence. The evidence of the parents is of the utmost importance and the court must form a clear view of their reliability and credibility.

What happens when we get it wrong?

A tottering edifice built on inadequate foundations…

Baker J said further:

It goes without saying that this process depends crucially on the skill and experience of a range of professionals – social workers, police, guardians, doctors, psychologists, lawyers and advocates. The judge is dependent on those professionals in coming to the right decision. In the end, judges can only decide the cases that are put before them.

 That last sentence is the crucial one and explains the court’s rage when they are faced with poor quality evidence and asked to make such serious decisions as whether or not a child should be adopted. No doubt the words of the President of the Family Division continue to ring in our ears from Re B-S (Children) [2013] EWCA 1146 at paras 39 and 40:

Most experienced family judges will unhappily have had too much exposure to material as anodyne and inadequate as that described here by Ryder LJ.

This sloppy practice must stop. It is simply unacceptable in a forensic context where the issues are so grave and the stakes, for both child and parent, so high.

When evidence is poor the risks are not simply just a stern dressing down from a senior judge but that the court is deprived of the evidence it needs to make the best decision for the child.

And it’s not just a burden on the lawyers who gather and present the evidence; the burden is also upon the Judge to carefully analyse the evidence, particularly in a finely balanced case.

See for example Re B (Children: Long Term Foster Care) [2014] when the Court of Appeal found that the Judge had not sufficiently analysed the evidence before him and in such a finely balanced case, he should have carried out “a detailed and critical review of the evidence, old and new, with each step of the way meticulously charted in the judgment.”  

Worst of all – lying in court by professionals

Or worse than all of this – when professionals lie on oath in court. The Judge commented that this case was ‘exceptional’, and I hope he is right about that. See this post by Suesspiciousminds for consideration of the case involving Hampshire CC.

So how can we do it better?

Active thought at the outset of a case about its evidential basis

I will examine some general propositions which hopefully will apply to any case. Particular groups of vulnerable witnesses, such as children, may have other quite specific needs and the interviewing/evidence gathering process will need further adjustment to make sure that these needs are taken into account and unfairness avoided.

There are three useful sources that highlight issues for us to consider:

  • Achieving Best Evidence guidance
  • Case law
  • Linguistic theory

From these sources we can derive the following general principles:

  • Watch out for the language you use;
  • Allegations which are denied or not proven are NOT ‘facts’
  • Test your hypothesis, don’t seek to confirm it
  • Distinguish ‘fact’ from the ‘processing of facts’
  • Be clear about what ‘facts’ are being challenged.

Watch out for the language you use

Allegations which are denied or not proven are NOT facts

I will examine these two principles together because they are closely inter-related. The language you chose to discuss the evidence can have a very powerful effect on how you think about that evidence and how you go on to treat it. You may also have a different understanding of the words you use than others do and can end up talking at cross purposes.

For example:

  •  if a child makes an allegation of sexual abuse there is a tendency to call this a ‘disclosure’. Disclosure means what it says – a secret fact that is made known. So you have assumed the truth of what is said at the outset. This can be very dangerous.
  • If you say you have ‘refuted’ an allegation, I understand that to mean that you have provided proof that the allegation is wrong. But many others would simply hear that you ‘disagree’ with an allegation
  • Use of the word ‘paedophile’ to describe a man who is attracted to girls aged 14-16 and the emotional reactions that word triggers.

Theories about linguistics can shine more light upon this.

The Sapir Whorf Hypothesis

Edward Sapir was an American anthropologist-linguist, who was born in Poland in 1884 and is widely-considered to be one of the most important figures in the early development of the discipline of linguistics. Benjamin Whorf was his student. To refer to a ‘hypothesis’ is a misnomer because the two never co-authored anything, and never stated their ideas in terms of a hypothesis. But their work has continued to intrigue many.

What people have taken from their work is the two concepts of linguistic relativity and linguistic determinism. i.e.:

  • that meaningful and distinct concepts in one language system are not necessary encoded in the same way or even at all when compared to another language system; and
  • speakers of a language are acculturated into particular ways of seeing the world and manipulated into it by the systems that are in place.

As Dr Kate Harrington of Exeter University says:

The words used to describe a reality can have a significant effect on how others perceive and categorise that reality. When this happens in a legal context then such language can have a serious impact on legal outcome.

There is also some very interesting research from a Yale Law School professor, Dan Kahan who wrote a research papers called ‘Motivated Numeracy and Enlightened Self Government’ in 2013. This examined the impact of political passion on people’s ability to think clearly.

I haven’t read the paper in full, but an article by Marty Kaplan of Alternet provides an interesting window into its conclusions:

partisanship “can even undermine our very basic reasoning skills…. [People] who are otherwise very good at math may totally flunk a problem that they would otherwise probably be able to solve, simply because giving the right answer goes against their political beliefs.”

In other words, say goodnight to the dream that education, journalism, scientific evidence, media literacy or reason can provide the tools and information that people need in order to make good decisions.

It turns out that in the public realm, a lack of information isn’t the real problem. The hurdle is how our minds work, no matter how smart we think we are. We want to believe we’re rational, but reason turns out to be the ex post facto way we rationalize what our emotions already want to believe

Therefore, it appears that given the influences that may be operating upon us without our full awareness, the best approach to any allegation from any source, is to treat it seriously and with respect BUT to try to avoid making firm assumptions about its strength or weakness – until of course you have had an opportunity to look at a wide range of evidence that both goes to support or challenge any particularly theory of the case.

Examples where this goes wrong in practice

I have unfortunately had experience of a great number of cases where achieving the best decision for the children was significantly delayed – or even utterly thwarted – by a failure to abide by these principles.

A particularly horrible example is D v B and others (flawed sexual abuse enquiry) [2006] EWHC 2987 (Fam). It is worth reading in full. For further useful commentary on the use of ‘veracity experts’, see this post by suespcioussminds.

The Judge in D v B commented on the development of the case in this way:

Thereafter, the therapist formed the view that the allegations that the father had abused EB were true and fed that belief into the social care system in Surrey. A social worker in Surrey was influenced by the therapist and accepted her view. Groups of professionals met in Surrey and debated wide issues about their beliefs about the allegations, some believing them, some not. There was discussion about a number of issues, which were simply floated without resolution… Information was kept from the father lest it should interfere with EB’s therapy…

The County court judge dealing with the matter in the beginning…however found ‘mother’s account of events truly extraordinary, well exceeding his comprehensive fifteen years experience’. The Judge hence directed further investigations and advises the father to upgrade his contact application to a fully-fledged residence application…The former social worker applied censorship and imposed non-disclosure of minutes of some professionals meeting by means of solicitor instructions. The reasoning given was that it ‘could compromise working relationship with mother’.

There then developed two systems running in opposition. The court in Taunton made orders requiring the mother to make TD available for contact. Orders were backed with penal notices directed at the mother. The NSPCC and the social worker in Surrey gave support to the mother on the basis that the allegations were true. The case was not returned to the court for a fact finding hearing. The opposing systems continued to run in counter-measure.

The Judge further commented:

I have read (and re-read) the relevant passages from the Cleveland report (pages 204 to 214) and the Orkney reports (pages 272, para 15.21 to 275, para 15.32) during the currency of my involvement in these proceedings. I am very well acquainted with the document called ‘Achieving Best Evidence’, which is an everyday working tool for those who practice within the family justice system…I find it very difficult to understand how the history that has emerged reflects that acquired learning.

 A (A Child) v Darlington Borough Council [2015]

Another horrible example of failure to get to grips with what are or are not ‘facts’ can be found in the case of A (A Child) in 2015 where the President of the Family Division did not hold back on fierce criticism of the LA handling of care proceedings. See for example paragraph 28 but the entire judgment should be read in full:

First, there was very little analysis, let alone any very rigorous analysis, of the factual underpinning of the local authority’s case. The truth is that the local authority’s case was a tottering edifice built on inadequate foundations.

The President identified 3 fundamental principles at paragraph 8 onwards of his judgment.  Failure to abide by these will have serious implications for the successful pursuit of an application in court

    • Facts must be drawn from evidence, not suspicion or speculation; LA must provide proper evidence, direct whenever possible and LA must not confuse the distinction between asserting a fact and the evidence needed to prove it
    • Facts must be linked to the case on threshold; WHY do these facts go to prove significant harm or risk of it?
    • Society must be willing to tolerate diverse standards of parenting… it is not the provenance of the state to spare children all the consequences of defective parenting… (Hedley J re L [2007] 1 FLR 2050 para 50)

An interesting aside: Sir Mark Hedley addressed the conference ‘Is the Child Protection System Fit for Purpose’  on 1st June 2015 and opined that whenever judges saw counsel citing this famous dictum ‘it was because they knew they were going to lose’ – I am not so sure he is right about this with the President’s continued endorsement.

It is depressing, to say the least that 9 years divides the two authorities cited above – yet it appears no ‘lessons have been learned’ about how NOT to conduct care proceedings.

See further the case of Re J (a Child) [2015] EWCA 222 where the Court of Appeal endorsed the President’s judgment in A (A Child).  It was held that it was ‘impossible’ to detect the process of analysis by the Judge, the threshold criteria contained very little by way of ‘fact’ but made very general observations which no one analysed to show the link between these generalities and the risk of significant harm.

 At the beginning – test your hypothesis, don’t seek to confirm it

This is useful guidance from Achieving Best Evidence. Good interviews don’t seek to ask questions to confirm an existing hypothesis but rather test it. Good interviews also encourage free narrative so that there is less risk of the interviewer imposing his or her own assumptions – which can be particularly dangerous when you are interviewing a child.

If you start to gather evidence operating from one perspective, its inevitably going to impact on the course of that process. Its probably inevitable that we will form a theory of a case at an early stage but be wary of allowing your theory to harden into fact without proper investigation and analysis.

For example, the police appear to now recognise the danger of proceeding with investigations on the basis that they ‘believe’ the complainant after many high profile investigations into historic child sex abuse allegations hit the buffers.

We need to distinguish between fact and the processing of facts.

We can also get some useful guidance from the courts. One such helpful overview is the case of P (A Child) [2013] EWCA Civ 963. This was a case that went wrong. A father appealed against the making of care and placement orders and the refusal to further assess him. The LA’s concerns were not about either parents ability to provide physical care for their child but rather the impact of issues around violence and conflict in the relationship.

The father complained that:

  • The LA assessment was so flawed to be unreliable
  • The nature of the father’s aggression was not reliably established
  • The judge had overstated the nature of the aggression

The Court of Appeal unanimously allowed the appeal and gave general comments about the need for active though at the outset of a case about its factual and evidential basis. These are set out from paragraph 112 of the judgment. The court stresses that these are not rules, but they are certainly useful guidance.

As the court considered:

Care cases involve “professional evaluation, assessment, analysis and opinion” brought to bear on facts. As the President said we need to distinguish clearly between what is fact and what falls into the other category…the processing of facts. The assessment and opinions of …professionals will only hold water if the facts upon which they proceed are properly identified and turn out actually to be facts’.

Be clear about what ‘facts’ are being challenged

This is another way the waters can get muddied quite quickly. If a parent says ‘I don’t accept that assessment’ we need to be clear exactly what they are objecting to. Are there mistakes about dates and times? Or is this a fundamental disagreement with the assessment’s conclusions? If so, what is the basis for this disagreement?

The PLO aims to assist with this process in care proceedings by creating different categories of LA material:

  • Evidential documents which are served with the application form; and
  • Decision making records which are only disclosed on request

Further, the early case management hearing should identify key issues and the evidence required to resolve those key issues. Its obviously essential that proper consideration is given to what alleged facts are actually relevant to a decision and which of those alleged facts are in dispute.

Further Cases

  • M (A Child: Failure to comply with Achieving Best Evidence) [2014] EWFC B141
  • Impact of ‘wholesale and serious’ breaches of the ABE guidelines Re W and F (Children) [2015] EWCA Civ 1300
  • W (fact finding) [2014] EWHC 4347 – almost everything that could go wrong with this case did, to the point that it defied credulity.
  • H (A Child) Analysis of Realistic Options and SGOs) [2015] EWCA Civ 460 – where non compliance with rules and practice directions meant a case was not fit to be tried and judge did not carry out the necessary analysis of the options.
  • 24th November 2015  the case involving Hampshire CC  – where social workers were found to have altered reports and lied about it in court.
  • E (A Child) [2016] EWCA Civ 473 The reasons for the appeal succeeding were summarised at para 98 of the judgment and included wholesale failure to acknowledge and analyse ‘numerous and substantial’ deviations from good practice with regard to interviewing children. 
  • AS v TH (False Allegations of Abuse) [2016] EWCH 532 – Where the Judge commented at the very outset of his judgment that it was disappointing that several witnesses appeared ignorant of the Cleveland report (and concluded at the end that hysteria had taken over)
  • J (A Minor) [2016] EWHC 2430 – ‘the boy forced to live as a girl’; another example of failure to evaluate what was actually happening to a young child and imposition of a particular narrative orthodoxy by professionals contributed to significant emotional harm.
  • Re V (A Child) [2016]-  poor decision making and botched assessments meant a child had no contact with his father for about 10 months.
  • GD & BD (Children) [2016] EWCH 3312 – example of very poor police, LA and legal practice, described by Suesspiciousminds as ‘the worst case of the year’.
  • H v D (Appeal – Failure of Case Management) [2017] – concerns about case management and the court’s approach to the cross examination of an alleged victim by alleged abuser.
  • L (A Child), Re [2017] EWHC 3707 (Fam) (22 December 2017) – significant failure of police investigation and guidance offered from para 110 about police disclosure.
  • M v Y (Children) [2018] Successful appeal against a finding of fact when trial judge did not properly assess credibility of child’s account in light of discrepancies in her evidence.
  • A (Children) [2018] EWCA Civ 1718 (25 July 2018) – failure by judge to properly consider all the evidence on a wide canvass (that previous genital injury made subsequent death of child by ligature much more likely to be a deliberate killing) and reliance on ‘pseudo maths’ to determine balance of probabilities. Also initial failures by police to secure evidence at the scene and then to disclose police evidence into family proceedings.

Further reading

Careless Talk and the Duty of Confidentiality

this post is by Sarah Phillimore, a barrister. 

Unbelievable having lunch at my usual cafe , 2 social workers discussin case at the next table laughing and joking , making me feel sick. This is private stuff and I’m not the only one who can hear there discussion.

Parent, posting on Facebook Group UK Social Services

Reading that comment from a parent made me feel very uneasy. It’s common for groups of lawyers and social workers who know each other well to take their discussions at court outside, for a coffee.

A frequent complaint made to me from parents is just how difficult it is for them to see lawyers and social workers laughing and chatting together; even if it isn’t a particular case they are discussing.

But its more than just insensitive to have these kind of relaxed ‘chats’ within ear and eyeshot of traumatised parents; it could also land you in very hot professional water if you carelessly breach confidentiality.

For example, it is one of the ‘Core Duties’ of the Barristers’ Code of Conduct that:

you must protect the confidentiality of each client’s affairs, except for such disclosures as are required by law or to which your client gives informed consent.

Further:

The duty of confidentiality is central to the administration of justice. Clients who put their confidence in their legal advisers must be able to do so in the knowledge that the information they give, or which is given on their behalf, will stay confidential. In normal circumstances, the information will be privileged and not disclosed to a court… Rule rC15.5 acknowledges that your duty of confidentiality is subject to an exception if disclosure is required by law.

The Professional Practice Committee (PCC) of the Bar Council considered the issue of what may or may not be disclosed by a barrister and advised that a barrister should tell the client as soon as possible about the broad ambit of his or her professional duty:

  • Counsel’s role is to represent the client and to present the client’s case to the best of his or her ability;
  • Counsel has a duty of “full and frank” disclosure in respect of relevant material that is disclosed by the client and which impacts upon the welfare of the child;
  • Counsel is not in a position to conduct a trial or proceedings whilst withholding or concealing relevant information from the parties and the Court;
  • The duty of confidentiality to the client owed by Counsel and contained in the Core Duties at CD6 may be overridden as permitted by law. In particular, any information which reveals a serious risk to the welfare of a child, or serious harm to a third party, may have to be disclosed even if Counsel’s instructions are discontinued.

The PCC consider that the duty on family lawyers to make ‘full and frank’ disclosure of issues that relate to the welfare of a child have given rise to a particular ‘culture’ in family proceedings that the client is advised to consent to disclosure of information that might be unfavourable to the client, because:

  •  that whilst the advocate has a duty to present the client’s case to the best of his or her ability, the advocate has a higher duty to the court to disclose relevant material to the court even if that disclosure is not in the interests of the client;
  • that full disclosure of relevant material will result in a fair and proper assessment of the child’s welfare and will assist the court in arriving at the best possible outcome for the child (usually their child);
  • that full and frank disclosure is more likely to result in parents’ and/or carers’ needs being properly identified, which in turn will have a positive impact upon the child if they are considered able to care for the child;
  • that if relevant information were to be withheld (such as a new relationship with an unsuitable partner), then almost invariably it would emerge during cross-examination or further investigation within the proceedings, and the client might then be heavily criticised and his or her case damaged because of his or her failure to be honest and open with the court at the earliest possible stage;
  • that in acting for a client counsel cannot mislead the court in any way.

The PCC make it clear that if a client doesn’t accept the advice that it is best to be up front about unfavourable information which relates to the welfare of a child,  the barrister will probably need to withdraw from the case, given the risks that this runs of misleading the court.

Privileged information

There are two types of ‘legal professional privilege’ which may operate to keep some information confidential, even taking into account the duty of ‘full and frank disclosure’.

  • Legal advice privilege covers communications between a client and his legal adviser and is available whether or not proceedings are in existence or contemplated;
  • Litigation privilege is wider, covering for example communications between a legal adviser and potential witnesses. These communications are privileged only where proceedings are in existence or contemplated.

The courts have decided that litigation privilege does not apply in care proceedings as they are meant to be non-adversarial. Thus all reports obtained from third parties should routinely be disclosed.

However information may still be privileged if the documents under scrutiny were prepared for the purposes of criminal proceedings (see S County Council v B [2000] 2 FLR 161 where the court held a parent could claim legal professional privilege in care proceedings in respect of communications with medical experts who had been instructed solely for criminal proceedings).

Communications between a client and his legal adviser remain privileged in family proceedings. This is considered a very important principle for the administration of justice –  a client must be free to consult his legal advisers without fear of his communications being revealed.

There is one exception to this – if the communications reveal a crime has been committed or is intended to further a criminal purpose.

 

A Barrister’s obligations to the court where there are concurrent care and criminal proceedings.

The court gave guidance in A Local Authority v PG [2014] EWHC 63 (Fam):

  • when a party to care proceedings is ordered to file and serve a response to threshold and/or to file and serve a narrative statement, that party must comply with that order and must do so by the date set out in the order;
  • the importance of parents or intervenors giving a frank, honest and full account of relevant events and matters cannot be overstated. It is a vital and central component of the family justice system;
  • a legal practitioner is entitled to advise a client of (i) the provisions and import of s.98 of the 1989 CA and (ii) the ability of the police and/or a co-accused to make application for disclosure into the criminal proceedings of statements, reports and documents filed in the care proceedings;
  • it is wholly inappropriate and potentially a contempt of court, however, for a legal practitioner to advise a client not to comply with an order made in care proceedings;
  • It is wholly inappropriate and potentially a contempt of court for a legal practitioner to advise a client not to give a full, accurate and comprehensive response to the findings of fact sought by a local authority in the threshold criteria document. This applies both where that advice is limited in time, eg until after a criminal defence statement has been filed and served and, worse still, the advice is given not to make such a response at all.

With regard to the risks parents might be running in giving statements in care proceedings that might go on to be used in criminal proceedings, see this post by suesspicious minds. 

There is also very useful discussion about the operation of section 98(2) and disclosure of documents to the police in the case of Re X and Y (Children: Disclosure of Judgment to Police) [2014].

What’s the difference between adoption and fostering?

But why have adoption at all? What is wrong with fostering? Then mistakes can be put right later.

A child in foster care will be placed with parents’ consent under section 20 of the Children Act or because a care order was made. The parents will retain their parental responsibility. Foster carers are trained professionals who are not providing a ‘family’ for a child in the same way adoptive parents would. That is the key distinction between adoption and fostering. 

In the case of Re V [2013]  the Court of Appeal decided that a Judge was wrong to agree that long term fostering would best meet the child’s needs. The Court of Appeal set out the key differences between the adoption and long term fostering.

  • Adoption makes the child a permanent part of the adoptive family to which he or she fully belongs.
  • Once an adoption order is made, it is made for all time.
  • Contact arrangements are different between fostered and adopted children. LA has a duty to allow reasonable contact with a child in care.
  • An adopted child is not subject to any further LA intervention and can live ‘normal’ family life without any ‘stigma’ of being child in care.

It is clear that adoption is currently seen and has been seen for some time by our domestic courts as the ‘gold standard’ of outcomes for children.  But this isn’t a view shared by all – we certainly seem to be out of step with the rest of Europe.

Mostyn J commented in Re D (a Child) [2014]

The proposition of the merits of adoption is advanced almost as a truism but if it is a truism it is interesting to speculate why only three out of 28 European Union countries allow forced or non-consensual adoption. One might ask: why are we so out of step with the rest of Europe? One might have thought if it was obvious that forced adoption was the gold standard the rest of Europe would have hastened to have adopted it. (NB However, Mostyn J has got this wrong – every European country permits adoption without the parents’ consent – see this post from the Transparency Project).

Critics of the current system further ask why there needs to be adoption at all, why can’t children go into foster care so they can return to their parents if it is later found that they shouldn’t have been removed from home in the first place or if the parents can make changes to the way they parent?

The problem that we have is the near universal agreement from child psychologists and other experts about the crucial importance to a child of finding a permanent home and being able to become securely attached to his or her adult carers. You can read here about some of the problems children face if they can’t develop a secure attachment to their adult carers.

If a child has been away from his or her birth parents for many months or even years and particularly if that child has now formed a secure attachment to an adoptive family, there is serious concern about the emotional harm that would be done to the child if he or she was removed from the adoptive family to return to the birth family.

Suggestions have been made that the birth families and adoptive families could ‘parent together’ in such cases but that would require a degree of emotional maturity and an ability to put bitterness and recrimination to one side, which may be beyond most people’s abilities.

This explains why very sadly, the Websters weren’t able to get their children back, despite a court concluding that they ‘probably’ were the victims of a miscarriage of justice because their child’s injuries may have been due to scurvy, but this wasn’t recognised at the time.

However, the Council of Europe reported in 2015 about different European countries and their attitudes to adoption and commented unfavourably about the UK’s refusal to reverse adoption orders in such circumstances; para 74:

My attention has been drawn to a handful of cases which are extremely tragic and concern miscarriages of justice. In several of these cases, an underlying medical condition of the child such as brittle- bone-disease or rickets was overlooked, and the children were placed for adoption (without parental consent). The tragedy is that even when the parents finally win in court, and can prove their innocence, they cannot get their children back, because a flaw in the English/Welsh legal system means that adoption orders cannot be reversed in any circumstances – in a misunderstanding of the “best interest of the child” who actually has a right to return to his/her birth family.

What does seem to be very clear is that we need more and better consideration of issues such as contact with birth families after an adoption order is made;  see Re W [2016] and the comments of McFarlane LJ in the Bridget Lindley Memorial lecture October 2016 (mentioned below).

The ‘push’ for adoption.

There are serious concerns that an ideological ‘push’ for adoption is masking proper consideration of statistical trends and that adoption is being over promoted as the best outcome for children. An example of how the best interests of the child got over looked in a quest to find her an adoptive placement, see this case involving the London Borough of Hillingdon. Family Law Week reported:

The LGO found that during her time in care the council has spent two years looking for a family to adopt the girl, who has autism and other developmental delays, but none was found. She has been living with her current foster family since May 2011. The council asked the current foster carers to become special guardians, which would mean a more permanent arrangement, but the family told social workers they would need the extra long-term support they would receive if she remained a looked after child, and declined to become special guardians.

Because of the family’s refusal social workers carried on looking for an alternative permanent family, despite all evidence that this was not in her best interest. This uncertainty about her future has caused the girl significant stress and anxiety, damaging her welfare, her emotional wellbeing and her ability to learn.

The girl’s advocate contacted the LGO complaining that the council was not listening to the wishes of the girl to stay with her foster family.

The Adoption Leadership Board was concerned by the significant reduction in the last 12 months of placement orders made and decisions by LAs to pursue plans for adoption. Lucy Reed discusses this in her Pink Tape blog:

So what sort of beast is the Adoption Leadership Board? Well, it’s terms of reference are here and are pretty unobjectionable. It is not a body designed to promote adoption as an end in itself : only for those children for whom it is the “best way of achieving permanence”. It is not “adoption is a good thing” dot com. And yet…it strikes me that the title “Adoption Leadership Board” somewhat loses the nuance of the terms of reference and tends towards the idea that adoption is a good generally to be promoted. And the impression created is important. Coupled with the plain assumption that a fall in adoption numbers must be “a bad thing” the impression ain’t great. If you wanted to feed the “adoption targets” / “babies for sale” conspiracy theories this would be a good starting point.

Further reading

Family Law Class at the Bristol Civil Justice Centre

 

 

The Bristol Civil Justice Centre is going to be trying different ways to help people involved in family law cases who can’t get access to legal representation or who want to understand more about what is going on .

One part of this initiative is the proposal for ‘Family Law Classes’  The first will be held on 4 December 2014 from 10:30 -12 noon.

HHJ Wildblood QC, some lawyers and some Court staff will hold a meeting for members of the public at which they will explain the law and procedure

The class will take place in Court 2, 2nd floor,

Bristol Civil and Family Justice Centre, 2 Redcliff Street, Bristol, BS1 6GR.

Please e-mail re************@***********ov.uk if you would like to attend the class.

 

Disclaimer

Please note that whilst we can give an overview of family law and explain court processes and forms, we cannot give legal advice on individual cases.

Care proceedings and children from other European Countries

What happens when a child has a particular connection with another European country but is in care proceedings in England?

Just as we must respect and trust the competence of other member states, so must they respect and trust ours.

EDIT May 2021 – the landscape of these cases will have shifted following Brexit. We need to see how law and policy respond to these changed circumstances and will update. In the interim, treat with caution any assertions about the applicability of European law as this post was mainly written pre Brexit. 

EDIT JANUARY 2025 Guidance from the President of the Family Division: Transfer of proceedings – Courts and Tribunals Judiciary

Article 8.1 of Council Regulation (EC) No 2201/2003 known as ‘Brussels II revised regulation’ or ‘BIIR’ sets out the primary rule that a child’s case should be heard by a court in the country where that child is ‘habitually resident’ (i.e. the country where the child is integrated into social and family life). BUT under article 15 the courts of the country of habitual residence can transfer the case to another country IF that court would be ‘better placed’ to deal with it and such a transfer is in the best interests of the child. 

This is an increasingly important issue for care proceedings in England as free movement of families within the European Union has led to many children living in countries which are not where their parents were born. Sometimes those children come to the attention of Children’s Services because there are concerns about how they are being parented. 

BIIR is discussed in more detail below, along with the two important cases of  Re E (A Child) [2014] EWHC 6 (Fam) and the Supreme Court decision in Re N [2016] which set out the principles an English court must use to determine if such a case should be heard in England or should rather be transferred to the European country from which the parents’ originate. 

The Court of Appeal considered the issues in Re N in 2015. See further our post with regard to the timing and content of that judgment

Brussels II revised – what is this?

Brussels II Regulation (EC) No 2201/2003 is a European Union Regulation setting out what should happen when there is a ‘ conflict of law’ between member states in family law; in particular those issues relating to divorce, child custody and international child abduction. It replaces Convention Council Regulation (EC) No 1347/2000 of 29 May 2000. It is usually referred to by the shorthand ‘BIIR’.

BIIR will be important to consider when the court deals with care proceedings involving people from different European countries who may not wish to accept the jurisdiction of the court of England and Wales.

The court has confirmed that it does NOT apply to adoption or measures preparatory to adoption, see paragraphs 19-23 of the judgment in  CB (A Child) [2015] EWCA Civ 888, a long running case involving direct intervention from the Latvian authorities as the LA had not informed them of the care proceedings in 2012, when they should have done.

The intent behind BIIR is that disputes about children should be dealt with in their country of habitual residence wherever possible. See Recital 12:

The grounds of jurisdiction in matters of parental responsibility established in the present Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity. This means that jurisdiction should lie in the first place with the Member State of the child’s habitual residence, except for certain cases of a change in the child’s residence or pursuant to an agreement between the holders of parental responsibility.

So when can the courts in England and Wales have jurisdiction?

The usual approach in the family courts used to be that if a child is habitually resident or even just physically present in England and Wales, the court had jurisdiction to deal with care proceedings about that child. (See Re R (Care Orders: Jurisdiction) [1995] 1 FLR 711, Re M (Care Orders: Jurisdiction) [1997] 1 FLR 456 and Lewisham London Borough Council v D (Criteria for Territorial Jurisdiction in Public Law Proceedings) [2008] 2 FLR 1449).

However, that has changed fundamentally with the application of BIIR.  The courts now hold that this applies even if the other country is NOT a member of the EU.

Article 8(1) of BIIR sets out that the jurisdiction will depend on habitual residence and this must be the starting point of any inquiry into jurisdiction. However, a court can make orders if the child is physically present but his habitual residence cannot be established  – see Article 13(1).

Habitual residence – what does this mean?

This will be decided looking at the principles set out in the case of A v A and Another (Children: Habitual Residence) [2013] UKSC 60. See paragraph 54 of the judgment. See also the Supreme court decision in Re B (A Child) [2016] UKSC4.

To be ‘habitually resident’ in a country you will require some degree of integration in that country, such as going to school there. Whether or not a child is ‘habitually resident’ in a particular country is essentially a question of fact:

  • habitual residence is a question of fact and not a legal concept such as domicile. There is no legal rule akin to that whereby a child automatically takes the domicile of his parents.
  • The test adopted by the European Court is “the place which reflects some degree of integration by the child in a social and family environment” in the country concerned. This depends upon numerous factors, including the reasons for the family’s stay in the country in question.
  • The test adopted by the European Court is preferable to that earlier adopted by the English courts, being focussed on the situation of the child, with the purposes and intentions of the parents being merely one of the relevant factors.
  • The social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned.
  • The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce.
  • It is possible that a child may have no country of habitual residence at a particular point in time.

Urgent cases

This is dealt with by Article 20 of the Regulation, which allows a court “in an urgent case” to take “provisional, including protective, measures” until the courts of the Member State with jurisdiction has taken the measures it considers appropriate.

See further Re B (A Child) [2013] EWCA Civ 1434,  where the mother’s appeal was allowed against a decision that a court had jurisdiction to make orders with regard to her child who was habitually resident in Sweden. Instead, the Court of Appeal made a declaration under Article 17 of BIIR that the court had no jurisdiction.

Article 15 transfer – Asking another country to get involved.

See paragraph 5 of the Supreme Court judgment in Re N. Even if the court does have jurisdiction under BIIR, article 15 allows it  to request the court of another Member State to take over the case, via its Central Authority IF:

  • the child has a particular connection with that other State – for e.g. the child is a national of another country.
  • the other court would be better placed to hear the case, and
  • it is in the best interests of the child – this is the crucial issue which was subject of argument before the Supreme Court in re N and is discussed further below.

The Vienna Convention – what is it?

The Vienna Convention on Consular Relations of 1963 is an international agreement that sets out  a framework for consular relations between independent countries. It is clear that prior to 2014, LAs and lawyers were not aware of their obligations under the Convention. Hopefully that situation is now remedied. In care proceedings no court should stand in the way of  free communication and access between a party who is a foreign national and the relevant consular authorities of that foreign state. A consul normally operates out of an embassy in another country, and performs two functions:

  • protecting the interests of their citizens who are in the host country; and
  • promoting the commercial and economic relations between the two countries.

Article 36 of the Convention is headed “Communication and contact with nationals of the sending State.” It states that:

(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;

(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;

(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

Guidance relating to the Vienna Convention in care proceedings

In particular, no injunctive or other order should be made which might interfere with such communication and access, nor should section 12 of the Administration of Justice Act 1960 be permitted to have this effect.

Further, whenever the court is sitting in private it should normally allow any request from either the foreign national or from the relevant consular authorities for an accredited consular official to:

  • be present at the hearing as an observer in a non-participatory capacity; and/or
  • to obtain a transcript of the hearing, a copy of the order and copies of other relevant documents.

Whenever a party, whether an adult or the child, who is a foreign national

  • is represented in the proceedings by a guardian, guardian ad litem or litigation friend; and/or
  • is detained

the court should ascertain whether that fact has been brought to the attention of the relevant consular officials and, if it has not, the court should normally do so without delay.

However the Vienna Convention does NOT impose a duty in all circumstances to inform the foreign state – see the case of Re O in 2021 for an example of a case where it would be directly contrary to the child’s welfare to give information about her to the DRC.

Re E 2014 – Slovakia

Re E involved a 12 year old boy of a Slovakian mother and a British father. E had lived in the UK all his life but had Slovakian citizenship. During the care proceedings, his mother went back to Slovakia.

The Slovakian Central Authority made a request to the English Central Authority seeking information pursuant to Article 55 of Brussels II Revised (BIIR). Article 55 provides that countries co-operate on matters relating to parental responsibility for children. The Central Authorities in Member States must collect and exchange information on the situation of the child, on any procedures under way, and on decisions taken concerning the child. Central Authorities must also help the courts in different countries communicate with one another.

The request referred to the fact that a media campaign had been started in Slovakia and that the case had become “extremely sensitive” and “a focus of attention”. It sought information about the outcome of a forthcoming court hearing.

The court ordered the LA to disclose information to the Slovakian Central Authority and the Head of the Consular Section of the Embassy of the Slovak Republic in London was allowed to be present in court as an observer.

The Central Authority in this case confirmed that it did accept the jurisdiction of the court. However, there have been other cases where the right of the English court to make orders regarding children from other European countries has provoked considerable controversy, particularly as a particular myth has grown up that only three countries in Europe permit ‘forced adoption, being the UK along with Croatia and Portugal. (This is untrue – every European country permits adoption without the parents consent. See further discussion in this post by the Transparency Project). Thus the President set out guidance with regard to the following issues:

  • Brussels II revised [BIIR]
  • Articles 36 & 37 of the Vienna Convention on Consular Relations of 24 April 1963.

The President stated at paras 13 and 14 of his judgment:

Leaving on one side altogether the circumstances of this particular case, there is a wider context that cannot be ignored. It is one of frequently voiced complaints that the courts of England and Wales are exorbitant in their exercise of the care jurisdiction over children from other European countries. There are specific complaints that the courts of England and Wales do not pay adequate heed to BIIR and that public authorities do not pay adequate heed to the Vienna Convention.

In the nature of things it is difficult to know to what extent such complaints are justified. What is clear, however, is that the number of care cases involving children from other European countries has risen sharply in recent years and that significant numbers of care cases now involve such children. It is timely therefore to draw the attention of practitioners, and indeed the courts, to certain steps which can, and I suggest from now on should, be taken with a view to ameliorating such concerns.

He made it clear that good practice will from now on require that in any care proceedings with a European dimension, the court must set out clearly in both its judgement and order:

  • the basis upon which it either accepts or rejects jurisdiction,  in accordance with the relevant provisions of BIIR;
  • If the court decides to exercise or refuse to exercise its powers under Article 15, what are the reasons for this.

The lesson for UK family practitioners – the ‘sins of insularity’.

The President repeated what he had said in an address at the International Hague Network of Judges Conference at Windsor on 17 July 2013:

Over the last few decades interdisciplinarity has become embedded in our whole approach to family law and practice. And international co-operation at every level has become a vital component not merely in the day to day practice of family law but in our thinking about family law and where it should go …

For the jobbing advocate or judge the greatest changes down the years have been driven first by the Hague Convention (now the Hague Conventions) and more recently, in the European context, by the Regulation commonly known as Brussels IIR. They have exposed us, often if only in translation, to what our judicial colleagues in other jurisdictions are doing in a wide range of family cases. They have taught us the sins of insularity. They have taught us that there are other equally effective ways of doing things which once upon a time we assumed could only be done as we were accustomed to doing them. They have taught us that, beneath all the apparent differences in language and legal system, family judges around the world are daily engaged on very much the same task, using very much the same tools and applying the same insights and approaches as those we are familiar with. Most important of all they have taught that we can, as we must, both respect and trust our judicial colleagues abroad.

It is so deeply engrained in us that the child’s welfare is paramount, and that we have a personal responsibility for the child, that we sometimes find it hard to accept that we must demit that responsibility to another judge, sitting perhaps in a far away country with a very different legal system. But we must, and we do. International comity, international judicial comity, is not some empty phrase; it is the daily reality of our courts. And be in no doubt: it is immensely to the benefit of children generally that it should be.

Re N [2016] – the real ‘best interests test’.

Interestingly, the Supreme Court took a rather more bullish approach to the issue of respect for other jurisdictions. As Lady Hale commented in para 4 of that judgment:

It goes without saying that the provisions of the Regulation are based upon mutual respect and trust between member states …. this principle goes both ways. Just as we must respect and trust the competence of other member states, so they must respect and trust ours.

The issue which was at the heart of the judgment was what exactly was meant by ‘best interests’ when looking to transfer a case to another country under article 15. The first judge to hear Re N decided that it should be transfered to Hungary as the country where the children’s parents came from. The local authority and the Guardian appealed as they thought it would be better for the children to be adopted by their current foster carers and they had lived in England all their lives. The Court of Appeal decided to uphold the first judge’s decision to order a transfer and thus a further appeal was made to the Supreme Court.

Lady Hale identified the key question at para 28 of her judgment:

What on the true construction of article 15 are the requirements before the English court can make a request to transfer a care case to another member state?

The court was critical of the development in the case law of the ‘attenuated welfare test’ which appeared to have arisen out of considering what ‘best interests’ meant in regard to a different article entirely (article 12.3). Lady Hale commented in para 44

The court is deciding whether to request a transfer of at the case. The question is whether the transfer is in the child’s best interests. This is a different question from what eventual outcome to the case will be in the child’s best interests. The focus of the inquiry is different but it is wrong to call it ‘attenuated’… there is no reason at all to exclude the impact upon the child’s welfare, in the short or longer term, of the transfer itself….

Therefore the Supreme Court were clear that the first Judge was wrong to accept that because he found the Hungarian court was better placed to hear the case, that it necessarily followed it would be in the best interests of the children to transfer it. He should have addressed the short and long term consequences of the transfer. The short term consequences of transfer were:

  • the children would be removed from where they had lived for most of their lives where they were happy and settled;
  • they would be transferred to a Hungarian foster placement about which the court knew nothing other than the carer spoke English;
  • The country, the language and the surroundings would be completely unfamiliar to them.

Also, when considering long term consequences, it was wrong to present the case as involving simply two options – foster care in Hungary or closed adoption in the UK. The Supreme Court noted that there were ‘several other options’ in between.

Will the CJEU (European Court of Justice) decide that article 15 apply to care proceedings where the care plan is for adoption?

This issue is yet to be determined by the CJEU who are currently considering a case referred by the Supreme Court of Ireland. But the Supreme Court took the view they would continue on the basis that article 15 does apply otherwise the considerable delay already incurred in these proceedings would continue. Watch this space.

Further Reading

For an example of what goes wrong if the issues of jurisdiction aren’t grappled with at an early stage, see the case of Re F (A Child) [2014] EWCA Civ 789.

See this post from the Transparency Project about the discussions at a workshop dealing with cross-border child protection issues, hosted by Dr Claire Fenton-Glynn and Dr Lamont in November 2015.

See the advice from the Department of Education in July 2014: ‘Working with foreign authorities: child protection cases and care orders’

This advice is non-statutory and is not meant to be a complete statement of the relevant law. It was intended to be reviewed before July 2015. It sets out:

  • a set of principles for social workers working on child protection cases and care orders, where the child has links to a foreign country;
  • a summary of the main international legislation;
  • guidance on agencies and organisations that social workers can seek help and advice from, or provide information to when working on these cases; and
  • sign-posts to other relevant guidance.

The International Child Abduction and Contact Unit (ICACU) has published a form and guidance notes where co-operation into and out of the jurisdiction under either Brussels IIa or under the 1996 Hague Convention is required in care proceedings.

For a case involving a ‘relinquished baby’ where the parents wanted an adoption in the UK but the Latvian authorities disagreed see in the Matter of RA [2016]. This case considers the impact of ‘limping adoption’, i.e. adoption orders recognised in the UK that may not be in other European countries.

Data Protection and Freedom of Information

Getting information from public bodies

Access to general information

The Freedom of Information Act 2000 (FOIA) provides the right of access to recorded information held by a public authority. It applies to all categories of information held, with the exception of your own personal data.

The What do They Know site is run by UK Citizens OnLine Democracy and help people access information about central government, local government, Parliament, the NHS, the armed forces, state funded schools and universities and other public authorities.

The blog ‘Information Rights and Wrongs’ has some useful discussion of data protection issues and disclosure. See this post relating to the ‘balancing of interests test’ when considering if personal data should be disclosed.

The Information Commissioner’s Officer sets out a clear guide to making requests for information. In particular you are advised to consider the following points before making your request:

 

  • Is the information you want already available, for example, on the authority’s website?
  • Is the information you want your own personal data? (If so, you will need to make a subject access request, which we discuss below)
  • Is the authority likely to have the information? Public authorities must give reasonable advice and assistance to anyone asking for information, so you should feel free to ask for help in making your request.
  • Is the information you want suitable for general publication. The aim of the Freedom of Information Act is to make information available to the general public. You can only obtain information that would be given to anybody who asked for it, or would be suitable for the general public to see.
  • Some information, such as records about a dead relative, or documents you need for legal purposes, may not always be available under the Act. However, you may have a right to see the information you want under other legislation. The public authority holding the information you want should advise you.

It is also a good idea to think clearly about how you are going to frame your request. For example, a FOI request asking a LA to confirm ‘how many corrupt social workers it employs’ is very unlikely to meet with any useful response as this is simply too broad and general a request.

The ICO advises as follows:

If your request does lack any serious or clear purpose or if it is not focused on acquiring information, then the FOIA and EIR are probably not an appropriate means through which to pursue your concern. You might do better to explore whether there are other more suitable channels through which to take up the issue with the authority.

You should also bear in mind that the FOIA includes a safeguard against requests which exceed the cost limits for compliance (Section 12). The equivalent provision in the EIR is once again [Regulation 12(4)(b)] – manifestly unreasonable requests .

Therefore, if you are planning to ask for a large volume of information, or make a very general request, you should first consider whether you could narrow or refocus the scope of the request, as this may help you get what you really want and reduce any unnecessary burden or costs on the authority. Alternatively, you could try approaching the public authority for advice and assistance to help you reduce the scope of your request and cut down the cost of compliance – they have a duty to consider what advice and assistance they can provide.

Although you don’t have to say why you want the information, if you are happy to do so it might avoid a lot of wasted time and be more likely to get you what you want.

 

Access to information about you

The Data Protection Act 1998 (DPA) provides you with the right to access information that relates to you personally.

Section 7 allows individuals to make requests for their personal information, which is defined as data that must relate to a living individual and allow that individual to be identified from it (either on its own or along with other information likely to come into the organisation’s possession).

Section 36 makes it clear that individuals do not need the consent of professionals to record meetings/visits, as the information being discussed in that situation is personal to them and therefore exempt from the data protection principles. There may be problems if the meeting is going to deal with issues relating to a third party. For further discussion about recording meetings between parents and social workers, see this post. 

Data Subject Access Request (DSAR)

Applying for information about yourself is called a Data Subject Access Request (DSAR). It can be helpful to ask the LA  for all documentation relating to your case, such as internal emails, if you are not happy with the way your case has been handled.

For further information, see the helpful Advice Sheet about access to records published by the Family Rights Group.

Children can also make requests, if they are considered to be sufficiently mature to understand what they are doing. To request your information, you should write to the Children’s Services department which is holding the information about you stating clearly what information you want and that you are asking for it under the Data Protection Act.

The Information Commissioner has provided a ‘Subject Access Code of Practice’ to help organisations deal with such requests for personal data by individuals. The maximum charge that can be made is £10 and organisations must respond within 40 days. 

 

How long can a LA hold information about you?

See this post from suesspicioussminds who discusses the case involving Northumberland County Council [2015] who were accused of acting unlawfully in holding on to data for 35 years. The claimant said he had been unfairly treated by the LA and he wanted his records destroyed. The Judge found that the LA were not acting unlawfully; there could be good reasons for holding on to such data – such as providing information to help later investigations into child abuse or malpractice.

Northumberland’s policy is:

… specifically to retain the records for 35 years after the case is closed, unless the child is or becomes looked after (in which case the retention policy is 75 years from the date of birth) or adopted (in which case the retention period is 100 years from the date of the Adoption Order).

Individual LA’s may have different policies and apply different time periods. What the Northumberland case makes clear is that this particular policy has survived legal challenge and found to be lawful. So it may be that information is retained for a considerable time.

 

Contact the Information Commissioner

The Information Commissioner’s Office is the UK’s independent authority set up to uphold information rights in the public interest, promoting openness by public bodies and data privacy for individuals. You can find out more here.

If you are not happy with the way a public body deals with your request for information,  you can make a complaint to the Information Commissioner.

Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF

Telephone: 0303 123 1113
Fax: 01625 524 510
Email the Information Commissioner: ca******@*********ov.uk

 

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.

Brexit does NOT have any impact upon the ECHR as this derives from the Council of Europe, of which we remain a member.

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’.

EDIT JULY 6th 2018 – there are still some significant issues about how such applications can be made and funded, particularly if they are made to benefit a child. Discussions with other lawyers are on-going and I aim to update this post as soon as possible. See discussions below for impact of the legal aid statutory charge on awards of damages.

Northamptonshire County Council & Anor v The Lord Chancellor(via the Legal Aid Agency) [2018], considers important new Guidance from the Legal Aid Agency. It confirms that it will no longer apply the statutory charge from care proceedings to Human Rights Act 1998 damages.

See this article by Will Tyler QC and Ben Mansfield in Family Law Week for further discussion.

Provided this guidance is followed then the LAA will not seek to recoup damages.  Parties must:

  • attempt resolution of the claim without issuing HRA proceedings. This may include seeking agreement from the Local Authority to pay the claimant’s reasonable costs of a Part 8 CPR infant approval hearing in the event settlement is reached, to be heard by the care proceedings judge, see H (A Minor).
  • If its necessary to go to court practitioners must:
    • seek a separate legal aid certificate for the HRA damages claim; and
    • issue separate HRA claim forms pursuant to s.7(1)(a), HRA, in accordance with Part 8 of the Civil Procedure Rules, to be listed and determined alongside the care proceedings.
    • seek early confirmation from the LAA that the care proceedings statutory charge will not apply to the prospective HRA award.
    • confirm that they will not and have not claimed HRA costs under the legal aid certificate covering the care proceedings.

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).

The main points are summarised here:

  • The Children’s Guardian cannot take on the role of litigation friend in the HRA claim. Section 12 of the Criminal Justice and Court Services Act 2000 sets out the functions of the officers of CAFCASS. They cannot be authorised to act as litigation friends to child claimants although they may give advice about the appropriateness of a child making a HRA 1998 claim. claims fall under the CPR and thus the regime of Part 36 CPR 1998 (‘Offers to Settle’) applies to them;
  • The full costs regime in Part 44 CPR 1998 also applies, including (in contrast to the position in family proceedings) the general rule that ‘costs follow the event’ (CPR, Part 44.2(2)(a): “(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party”; see also CZ v Kirklees MBC [2017] EWFC 11 at [61]));
  • The publicly funded claimant in a HRA 1998 claim who is also publicly funded in associated or connected proceedings – see section 25 Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO 2012) – is vulnerable to a claim for recoupment of the costs of proceedings by way of statutory charge from any award of HRA 1998 damages;
  • In HRA 1998 proceedings, the Legal Aid Agency may issue a publicly funded certificate for a claimant to pursue declarations only, and not damages. This has implications for:
    • entitlement to any public funded remuneration for the lawyers for the work done on seeking a damages award,
    • the extent to which the successful claimant can recover any costs referable to pursuit of the claim for damages from the Local Authority if they have not been authorised to expend costs in pursuit of the same, and/or
    • the ability of the LAA to recoup funds from the damages (applying the statutory charge) for work done in respect of which there was no public funding certificate.

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 statutory legal aid charge – new guidance from 2018

The previous position was that the Legal Aid Agency would seek to recover its costs from the amount of damages awarded. See the the Statutory Charge Manual  [2014].  Thus, it used to be that if an application was made under the HRA in existing proceedings – as the court advises should happen – an applicant was likely to have already incurred significant legal costs which were likely to wipe out any award of damages. This clearly had the potential to lead to very unjust results and the LAA have finally responded to demands for change.

Northamptonshire County Council & Anor v The Lord Chancellor (via the Legal Aid Agency) [2018], considers important new Guidance from the Legal Aid Agency. It confirms that it will no longer apply the statutory charge from care proceedings to Human Rights Act 1998 damages.

See this article by Will Tyler QC and Ben Mansfield in Family Law Week for further discussion.

Provided this guidance is followed then the LAA will not seek to recoup damages.  Parties must:

  • attempt resolution of the claim without issuing HRA proceedings. This may include seeking agreement from the Local Authority to pay the claimant’s reasonable costs of a Part 8 CPR infant approval hearing in the event settlement is reached, to be heard by the care proceedings judge, see H (A Minor).
  • If its necessary to go to court practitioners must:
    • seek a separate legal aid certificate for the HRA damages claim; and
    • issue separate HRA claim forms pursuant to s.7(1)(a), HRA, in accordance with Part 8 of the Civil Procedure Rules, to be listed and determined alongside the care proceedings.
    • seek early confirmation from the LAA that the care proceedings statutory charge will not apply to the prospective HRA award.
    • confirm that they will not and have not claimed HRA costs under the legal aid certificate covering the care proceedings.

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

Note that there still appear to be complications arising as to how lawyers will get paid if the LA does NOT agree to pay their costs. Also, the Official Solicitor appears to be the only likely ‘litigation friend’ for most children and that carries with it its own problems. Watch this space as discussions develop. 

EDIT July 12th 2018 The LAA have published a position statement here. 

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) – £45K awarded, (£20K for each child and £5K for the mother) 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.
  • Davies v British Transport Police [2018] UKIPTrib IPT_17_93_H (30 April 2018) – Case dealing with unlawful surveillance where police found to be in breach of their statutory duty and offered no apology, comment by the court at para 41: “The basic award of £25,000 is in line with the modest level of awards in cases under the Human Rights Act and with the jurisprudence of the European Court of Human Rights as well as the practice of this Tribunal. Indeed, the award may be said to be on the high side for breaches of Art 8 and that is to reflect our view of the serious failings of the BTP…”
  • BT & GT (Children : twins – adoption) [2018] EWFC 76 (29 November 2018). The LA agreed to pay each twin £20K in damages for their serious and serial failures regarding their separate placements. 
  • June 2021 – LA Ombudsman awards £7,500 to child after it was found the council exposed her to significant harm in its care and failed to consider her human rights.

Further reading

Negligence and Misfeasance

In this post we shall look at ‘private law’ remedies against public bodies, which contrast to judicial review which is a ‘public law’ remedy.

We shall examine the torts of misfeasance, breach of statutory duty and negligence.

 

Misfeasance in public office

‘Misfeasance in Public Office’ is a ‘tort’. A tort is a wrongful act or infringement of your rights that means you may be entitled to compensation for any harm caused by the wrongful act.

The requirements for a successful claim in misfeasance in public office were identified in Three Rivers DC v Bank of England (No. 3) [2003] 2 AC 1 by Lord Steyn at paragraph 191:

The case law reveals two different forms of liability for misfeasance in public office. First there is the case of targeted malice by a public officer, i.e. conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bad faith inasmuch as the public officer does not have an honest belief that his act is lawful.”

You may be able to claim damages if you have suffered harm as a result of misfeasance in a public office, but obviously this is going to be quite hard to prove as it requires that you establish the public official acted in bad faith.

The offence of ‘Malfeasance’ or misconduct in a public office is a criminal offence with a maximum sentence of life imprisonment. This involves wilful behaviour which is so serious that it is likely to cause a loss of public trust in the public office holder.

The tort of misfeasance is probably not an attractive route given the evidential difficulties of being required to prove bad faith or ‘targeted malice’. A more realistic route is likely to be a claim under the Human Rights Act 1998 as some judges have commented that by bringing the Human Rights Act into force, Parliament intended that the infringement of rights protected by that Act should be remedied under the Act, and not by any other parallel remedies.

A recent attempt to establish a claim of misfeasance against CAFCASS was rejected by the court in the case of FD v CAFCASS in 2014.

A further claim in Williams and Another v London Borough of Hackney [2015] also failed – but the parents did get damages under the Human Rights Act. In this case the LA thought wrongly, but genuinely, that they had lawful authority to remove children pursuant to section 20 of the Children Act 1989. Thus misfeasance could not be established.

 

 

Breach of Statutory Duty

A person may have an action in tort for damage they have suffered as a result of a breach of a statutory duty. The claimant must show:

  • that the breach of the statutory duty has caused the loss;
  • that the damage suffered was of a type the statute was designed to prevent;
  • that the claimant belonged to a class of persons the statute intended to protect; and
  • that the damage suffered is of a type the court recognises.

Some statutes set out explicitly whether or not there is an actionable case, but most legislation is silent and the courts therefore have to “discover” Parliament’s intention.

The distinction between breach of statutory duty and negligence (see below) is often blurred.

 

The tort of negligence.

‘Negligence’ is also part of the civil law called ‘torts’. It means a failure to exercise the kind of care that could reasonably be expected in all the circumstances; it is about acting carelessly, not maliciously.

The ‘Bolam test’ (Bolam v Friern Hospital Management Committee [1957] 1 WLR 583) is applied when there can be legitimate disagreements between professionals about what is the right course of action:

a medical professional is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art . . . Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.

In order to succeed in getting compensation because of a negligent act you will need to show:

  • you are owed a duty of care;
  • there has been a negligent breach of that duty of care;
  • damage has flowed as a direct result.
  • you bring your claim within 6 years of the negligent act, otherwise you may not be allowed to proceed – the court has a discretion to extend this in cases of personal injury (see The Limitation Act 1980).

This is a complex area of law and you will need specialist advice – which this blog post does not claim to be.

 

What is a ‘duty of care’?

A duty of care may arise in the following circumstances, which overlap to some degree:

  • is there a relationship of proximity between the parties?
  • was the harm you suffered foreseeable?
  • is it fair, just and reasonable to impose a duty? See Caparo Industries plc v Dickman [1990] 2 AC 605.

 

Does the LA owe a duty of care to parents and/or children that it works with?

The situation for parents as opposed to children is different. With regard to parents, It’s important to consider the difference between:

  • parents who complain of negligence in the course of an investigation in the child’s welfare
  • and negligence in other aspects of professionals work with a family.

At the moment, the law does not allow the existence of a duty of care towards parents who are under investigation for possibly harming their children. But a duty of care has been found to exist in other circumstances, such as when LA don’t give full information about the background of an adopted child.

 

When is a duty of care owed to parents by a local authority?

No duty of care: Parents who are part of an investigation into their child’s welfare.

Parents who are subject to investigation or assessment by social workers or health professionals would at first glance appear to merit a duty of care, given the obvious harmful consequences of a botched investigation. However, the current legal position is that parents are NOT owed a duty of care from child protection professionals when they carry out their statutory duties to investigate and assess children.

The reasons why professionals do not have a duty of care to parents was discussed at length before the House of Lords (now the Supreme Court) in the case of  JD (FC) v East Berkshire Community Health NHS Trust [2005] UKHL 23.

The case involved a number of appeals against decisions of the lower courts not to allow actions in negligence to proceed. Each case involved a child with a medical condition that was misdiagnosed and this misdiagnosis was assumed to be due to the failure by the the doctor or social worker to exercise the standard of skill and professional care that could reasonably be expected from such professionals.  The parents suffered psychiatric harm by being wrongly accused of harming their children, and in some cases losing the care of their children whilst an investigation was carried out.

The court were happy to assume that professionals in the health and social care systems may owe a duty of care to the child who is the subject of the investigation (see para 30 of East Berkshire cited above). However, in January 2018 the Court of Appeal over turned this and said that there was no duty to of care to a child who was not removed from home.  See CN v Poole BC 

BUT in a judgment handed down on 6th June 2019 The Supreme Court have now revisited the decision of the Court of Appeal and confirmed that it should not be interpreted to mean “an assumption of responsibility can never arise out of the performance of statutory functions ” [para 72] thus returning the law to the position it was in prior to the Court of Appeal decision in Poole.  The Supreme Court confirmed that the Court of Appeal were right to decide that no duty of care to the children arose in the circumstances of this particular case – but that doesn’t mean a duty of care could not be found in a different case.

See further discussion by The Transparency Project. 

But back to parents. It appears to be remaining good law that there was no duty of care to parents if a professional got it wrong about whether or not a child had been harmed.  Professionals were only expected to act ‘in good faith’  and could only be subject to legal action if they acted maliciously or recklessly.

An attempt to argue that a duty of care existed towards parents from CAFCASS was rejected by the case of FD v CAFCASS in 2014.

 

 

Why there should be no duty of care; arguments of public policy.

It is a very important legal principle that wrongs should be put right. We should only depart from this principle if there are powerful arguments in favour of doing so.  What have the courts decided are these  powerful arguments to explain why the parents couldn’t make a claim in these cases?

The child protection system is set up by statute to protect children from harm done to them by others. This gives professionals powers which they would not have without the authority of the statutes and the accompanying guidance. In many cases, their powers and duties may require them to act in a way that will bring them into conflict with the child’s parents; for example by removing a child from his or her home against the parents’ wishes.

Because professionals act under a statutory scheme where the welfare of the children is paramount, it would be against public policy to make professionals liable to pay compensation to the parents if they made mistakes in their decisions; they do not owe a ‘duty of care’ to the parents. They are only expected to act in ‘good faith’ – in other words, not make decisions maliciously or recklessly.

To expand on that general principle:

  • The child protection system involves lots of people from a variety of different roles, such as police, social workers, doctors and teachers who are obliged to work together and share information. At all stages the system involves joint discussions and joint decisions. Therefore it could be very difficult to identify precisely who was responsible for making the wrong decisions.
  • It can be very difficult to make decisions about children at risk and a lot of factors have to be taken into account.  The child’s welfare has to come first. If child protection professionals were at risk of being sued for damages it might mean that they would adopt a more cautious and defensive approach and would delay making necessary decisions and put children at risk. There would be two sets of interests to consider – the child’s and the parents – which are often in conflict, for example if the parent is the perpetrator of harm upon the child.
  • The relationship between the parents and the professionals can often be very difficult and one of conflict which could lead to vexatious and costly litigation.
  • There are other remedies for the parent, such as following statutory complaint procedures or seeking damages for breach of their rights under the European Convention.
  • Imposing a duty of care in these circumstances would be a big change for the law and therefore requires Parliament to intervene and draft the new law, rather than the Judges deciding it.

 

Lord Bingham’s disagreement.

However, it is interesting to note that one of the Law Lords, Lord Bingham did not agree with the majority decision in the East Berkshire case.  He pointed out at para 3:

But the law in this area has evolved very markedly over the last decade. What appeared to be hard-edged rules precluding the possibility of any claim by parent or child have been eroded or restricted. And a series of decisions of the European Court of Human Rights has shown that the application of an exclusionary rule in this sensitive area may lead to serious breaches of Convention rights for which domestic law affords no remedy and for which, at any rate arguably, the law of tort should afford a remedy if facts of a sufficient gravity are shown

He noted that it used to be the law that children couldn’t claim damages for breach of duty but this changed after the case of X (Minors )v Bedfordshire County Council in 1995.  5 children complained that they had been the victims of very serious neglect and maltreatment by their parents and the local authority had not acted to save them, even though it was well aware of what was happening.  The court held that the children had no remedy in English law.

The children took their case to the European Court of Human Rights, which accepted that Article 3 of the ECHR had been violated as the children had suffered inhuman and degrading treatment because of the LA’s failure to act.  The children were awarded damages of £320,000.

Lord Bingam further argued that it is wrong to give professionals a ‘blanket immunity’ and thus unjustifiably restrict a persons right to have his or her claim heard by a court.

He looked at the list of  common justifcations for not allowing a duty of care to parents and rejected the contention that recognizing such a duty would necessarily undermine the ability of professionals to work to protect children.  There was not automatically a ‘conflict’ between parents and professionals, even if the parents were the suspected perpetrators of the harm to the child.

This is because the parents were not complaining that there had been an investigation in the first place, but rather that the investigation had not been properly carried out and there had been a negligent failure to properly test the evidence.  Therefore, there is arguably no conflict between parents and professionals – every one should agree that investigations should be carried out properly, regardless of the identity of the perpetrator.

The fact that there was disagreement between very senior and respected lawyers about the whether or not a duty of care should be owed to parents who were under investigation,  shows that this is an area of law which could be open to challenge. However, the courts can probably go no further without some intervention from the government to explicitly change the existing law.

In the meantime, it seems that the Human Rights Act 1998 may provide the best avenue for those complaining about the actions of public officers; the Act came into force after the decision  in East Berkshire, so obviously was not considered by the court.

 

Parents who are not part of the investigation.

The courts have been prepared to find a duty of care existed between local authorities and parents when the parents complained that they had suffered harm due to a failure to protect their children or given the parents relevant information about their children.

The case of Merthyr Tydfil County Borough Council v C in 2010 gives a useful overview of the case law in this area.

In this case, the mother of two children sought damages for psychiatric injury she suffered due to the negligence of the LA to properly investigate the sexual abuse of her children by another child. The LA wanted to strike out her cause of action. However the court reviewed the relevant authorities and found that where a local authority owes a duty of care to a child this does not make them immune from owing a duty of care to the child’s parents.

For example, local authorities which did not give full information to adoptive or foster families about their children, have been held to have a duty of care when a child placed by them has caused physical and psychiatric injury to a family who were not told the whole story about the child’s previous history of aggression or a risk of sexual abuse. There is no ‘conflict’ here between the duties to the child and the duty to the family so the arguments in East Berkshire do not apply.

In such cases the courts must distinguish between ‘policy’ and ‘operational’ decisions.  So if the local authority has a statutory discretion to do or not do something under an Act, and the local authority decides not to act, this is a ‘policy’ decision which the court will not challenge in order to find a duty of care exists. But once a local authority decides to do something, this can become an ‘operational’ decision, which the court can look at and decide whether or not a duty of care exists between the parties.

 

Duty of care owed to children.

See discussions above about the twists and turns to the law following the Court of Appeal decision in Poole. The Supreme Court has confirmed that a duty of care can be owed to children, even if not taken into LA care.

We can trace the history of this developing position from the House of Lords decision in X v Bedfordshire CC [1995] 3 All ER 353] which did not survive challenge in the European Court, which found that the United Kingdom had breached Article 3 of the Convention (protection against torture, inhuman or degrading treatment and punishment) and Article 13 (effective remedy before a national authority). The children in that case had not been removed from their parents care and suffered very serious neglect and psychological harm as a result.

This was recognised in JD V East Berkshire, together with subsequent domestic cases, leading to the conclusion that it ‘could not now be plausibly argued that a common law duty of care may not be owed by a publicly-employed healthcare professional to a child with whom the professional is dealing’.

See paras 27-30:

The claim in W v Essex County Council [2001] 2 AC 592 was made not only by children (or those who had been children when they suffered abuse) but also by parents. The parents had fostered a child on an assurance that he was not a known sexual abuser when, to the knowledge of the local authority, he was, and during his placement with the parents he sexually abused their children. Hooper J struck out the parents’ claims but not those of the children: [1997] 2 FLR 535. The Court of Appeal (Stuart-Smith, Judge and Mantell LJJ) unanimously upheld the judge’s decision striking out the parents’ claim and by a majority (Stuart-Smith LJ dissenting) upheld his decision on the children’s claim, which was accordingly allowed to proceed: [1999] Fam 90 …

Phelps v Hillingdon London Borough Council [2001] 2 AC 619 was one of four appeals heard together by an enlarged committee of the House. In each case the plaintiff complained of allegedly negligent decisions concerning his or her education made by the defendant local authorities. The procedural histories of the four cases were different, but in three of them the Court of Appeal had struck out the plaintiff’s claim and in only one had it been allowed to proceed. The House unanimously dismissed the local authority’s appeal in that last case but allowed the plaintiff’s appeal in the other three. It was held to be clear in principle that a teacher or educational psychologist could in principle owe a duty of care to a child as well as an employing authority: pp 654, 665, 667, 670, 676. Valid claims in negligence were not to be excluded because claims which were without foundation or exaggerated might be made: pp 655, 665, 676. There was no reason to exclude the claims on grounds of public policy alone: pp 665, 672, 677. As my noble and learned friend Lord Nicholls of Birkenhead perceptively observed, “‘Never’ is an unattractive absolute in this context”: p 667.

In the case of Kirsty X v Oldham Metropolitan BC [2013] , a former care leaver brought an action against the LA for failing to remove her earlier from her parents and failing to provide her with effective therapy. This action failed. The Judge commented at paras 43 and 44:

Had the Defendant’s social workers decided to commence proceedings in November 1993, they could by no means be certain that the court would endorse the Claimant’s removal from her parents. Dr Dale acknowledged in cross-examination that an unsuccessful attempt to remove a child through court proceedings can often end cooperation with the parents. Professor Payne also referred to the difficulty of getting parents to cooperate in the absence of an order. After the assault, the records show that the parents were cooperating and there were some positive signs. Failed court proceedings at that stage risked undoing that. Accordingly any proper assessment of risk would not have been all one way. Those best placed to judge the risks were those on the ground working with the family at the time. There would be a range of reasonable responses from social workers acting in such circumstances. I accept that some would have sought removal at an earlier stage. However, having weighed all the evidence, I cannot say that the decision not to seek removal before September 1994 fell outside the ambit of decisions open to responsible social workers.

Professor Payne and Dr Dale have very different views as to the appropriate response in November 1993. I am satisfied that Professor Payne’s opinion accords with a responsible body of social work opinion at the relevant time. The Defendant’s social workers, including Mary Marrington, fitted into that body. Dr Dale’s view that the Claimant should have been removed from her parents at that time represents the view of an alternative body of social work opinion. The fact that the Defendant adopted one rather than the other does not lead to a finding that it acted negligently. In that respect, I cannot and do not accept Dr Dale’s opinion that no reasonable social worker would have failed to commence care proceedings in November 1993.

Liability of Local Authorities for abuse of children by foster carers

If a child is abused by a foster carer, in most cases it won’t be worth bringing legal action against the individual foster carers –  they are unlikely to have enough money to pay substantial damages. However, the local authority will have much ‘deeper pockets’ and therefore over the years various efforts have been made to bring actions against local authorities for harm and abuse caused by their foster carers. The legal discussions have turned on two issues – ‘vicarious liability’ and ‘non-delegable duties of care’.

The current position appears to be that local authorities CAN be vicariously liable for the damage caused by abusive acts carried out by their foster carers, but the discussion of the case law that follows shows clearly that this is certainly not a simple or easily identifiable issue and the Supreme Court remains split on the best way to handle it. You will certainly need specialist legal advice if you are considering legal action in this field.

 

Vicarious liability

In NA v Nottinghamshire County Council [2015] EWCA Civ 1139 the Court of Appeal held that the local authority was not vicariously liable for the actions of abusive foster carers and did not have a non delegable duty of care to the child concerned.

Vicarious liability is considered at paragraph 8 of that judgment, the court approving the approach of Lord Phillips of Worth Matravers in his judgment in Various Claimants v Catholic Child Welfare Society and Others [2012] UKSC 56, [2013] 2 AC 1.

Lord Philips identified as the relevant issue whether the relationship between the local authority and the foster parents was sufficiently akin to an employment relationship to be capable of giving rise to vicarious liability.

In the vast majority of cases, vicarious liability  arises between an employer and employee under a contract of employment.

The employer will be vicariously liable when the employee commits a tort in the course of his employment. There is no difficulty in identifying a number of policy reasons that usually make it fair, just and reasonable to impose vicarious liability on the employer when these criteria are satisfied: (i) the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability; (ii) the tort will have been committed as a result of activity being taken by the employee on behalf of the employer; (iii) the employee’s activity is likely to be part of the business activity of the employer; (iv) the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee; (v) the employee will, to a greater or lesser degree, have been under the control of the employer.”

However, the earlier cases considered foster carers to be very different from ’employees’; the essential element of ‘control’ that exists in relationship between employee and employer is not present here, as foster carers exist to provide experience of family life for children and must be able to exercise control of the day to day running of their homes.

The Court of Appeal cited approvingly an earlier Canadian authority:

 Foster families serve a public goal – the goal of giving children the experience of a family, so that they may develop into confident and responsible members of society. However, they discharge this public goal in a highly independent manner, free from close government control. Foster parents provide care in their own homes. They use their own ‘equipment’, to use the language of Sagaz. While they do not necessarily ‘hire’ their own helpers, they are responsible for determining who will interact with the children and when. They gave complete control over the organization and management of their household; they alone are responsible for running their home. The government does not supervise or interfere, except to ensure that the child and the foster parents meet regularly with their social workers, and to remove the child if his or her needs are not met.

Non-delegable duty of care

The expression “non-delegable duties of care” is used to refer to duties not merely to take personal care in performing a particular function but to ensure that care is taken. This involves a higher standard of care than the ordinary ‘duty of care’. Duties involving this higher standard of care are ‘non-delegable’ because you cannot argue you have discharged your duty just by taking reasonable care in selecting someone else to carry out the function in question.

With regard to the issue of whether or not the LA owed a ‘non-delegable duty’, the Court of Appeal in the Nottinghamshire case considered the factors identified by the Supreme Court in the case of  Woodland v Swimming Teachers Association and Others [2013] UKSC 66, [2014] AC 537 and decided it would not be right to impose such a duty on the local authority in this case.

Lord Sumption in Woodland identified two broad categories of case in which a non-delegable duty of care has been held to arise.

  • a large and varied class of cases where  the defendant employs an independent contractor to perform some function which is “either inherently hazardous or liable to become so in the course of his work”
  • cases where the common law imposed a duty which had three critical characteristics.
    • First, the duty arises because there is already a relationship between the defendant and the claimant.
    • Secondly, the duty is a positive one to protect a particular class of persons against a particular class of risks
    • Thirdly, the duty is by virtue of that relationship personal to the defendant (para 7).

Further decision of the Supreme Court in Armes

However, this issue of local authority responsibility for abusive foster carers was then considered in the case of Armes v Nottinghamshire County Council in 2017. As a child, the claimant was abused physically and sexually by two different sets of foster parents. The court did not find that the local authority were negligent in the selection or supervision of the foster parents. The Supreme Court examined both the issues of vicarious liability and the non-delegable duty of care.

At the first hearing of this case, the Judge rejected the argument of vicarious liability by relying on Lord Philips’ judgment as discussed above. With regard to the issue of non-delegable duty of care, the judge found it would not be fair or reasonable to impose a duty on the local authority:

  • it would impose an unreasonable financial burden on local authorities providing a critical public service. Funds used to compensate the victims of historical abuse would not be available to meet current needs.
  • There would also be a significant financial impact on local authorities in terms of recruitment practices, training requirements and supervision, all of which might become more intensive. Financial compensation was in any event an unsatisfactory form of recompense for abuse.
  • there was a real danger that the imposition of a non-delegable duty would discourage local authorities from placing children with foster parents, even where reasonable steps had been taken to ensure their suitability.
  • it was inherent in foster care placements that the local authority did not have the same control over the day to day lives of the children as they had over children in residential homes. That was a benefit to the children in foster care and was necessary in order to give them the experience of family life which was the purpose of fostering.
  • it would be difficult to draw a principled distinction between liability for abuse committed by foster parents and liability for abuse committed by others with whom a local authority decided to place a child, including her own parents.

The Court of Appeal agreed with the judge at first instance, but gave a variety of reasons why.

The Supreme Court looked at the issue of non delegable duty and considered at para 37:

The critical question is whether the function of providing the child with day-to-day care, in the course of which the abuse occurred, was one which the local authority were themselves under a duty to perform with care for the safety of the child, or was one which they were merely bound to arrange to have performed, subject to a duty to take care in making and supervising those arrangements.

The local authority were held NOT to owe a non delegable duty of care – local authorities are encouraged to maintain the child’s relationship with his family and a non delegable duty of care could lead to the local authority being strictly liable for any harm caused to the child when having contact with his parents. The law of tort would risk creating a conflict between the local authority’s duty towards the children to maintain their relationships with their parents, and the local authorities wish to avoid being exposed to such liability.

But when considering the issue of vicarious liability, the Supreme Court held that the local authority were so liable for the abuse carried out by the foster carers. See para 60:

Although the picture presented is not without complexity, nevertheless when considered as a whole it points towards the conclusion that the foster parents provided care to the child as an integral part of the local authority’s organisation of its child care services. If one stands back from the minutiae of daily life and considers the local authority’s statutory responsibilities and the manner in which they were discharged, it is impossible to draw a sharp line between the activity of the local authority, who were responsible for the care of the child and the promotion of her welfare, and that of the foster parents, whom they recruited and trained, and with whom they placed the child, in order for her to receive care in the setting which they considered would best promote her welfare. In these circumstances, it can properly be said that the torts committed against the claimant were committed by the foster parents in the course of an activity carried on for the benefit of the local authority.

The Supreme Court was unimpressed with the argument that the local authority should not be held vicariously liable for the abuse of the foster carers, in case this had financial implications due to costs of compensating child victims. See para 69:

…if, in other words, there has been such a widespread problem of child abuse by foster parents that the imposition of vicarious liability would have major financial and other consequences – then there is every reason why the law should expose how this has occurred. It may be – although this again is empirically untested – that such exposure, and the risk of liability, might encourage more adequate vetting and supervision. It is all very well to point to the cost of such precautions, and to the cost of compensating the victims, and to complain that this will divert the resources of local authorities from other channels. That is a point which might be made in relation to many claims against public bodies, including claims against local authorities arising from the abuse of children in residential homes.

But the debate is unlikely to end here. Lord Hughes agreed with the analysis with regard to non-delegable duty of care but NOT with the decision about vicarious liability:

But the extension of strict liability needs careful justification. Once one examines the nature of fostering, its extension to that activity does not seem to me to be either called for or justified, but, rather, fraught with difficulty and contra-indicated. Accordingly, I would uphold the decision of the Court of Appeal and dismiss this appeal.

No doubt more case law will be generated about this issue and it will be important to get specialist legal advice if you are considering making a claim.

 

Damages in Negligence and time limits on your claim.

The general aim behind an award damages is to put you in the position you were before the wrongful action happened. For a useful over view of what you can claim for in a negligence action against a professional, see the case of  Hamilton-Jones v David and Snape (a firm) [2004] 1 WLR 924. This is a complicated area of law and you are going to need some specialist advice.

With regard to how long you have to make a claim, the general rule for negligence claims is that they must be brought within 6 years of the date when the damage in question was suffered. This is not always an easy rule to apply as sometimes it is difficult to define when the loss was suffered.

However, under section 11 of the Limitation Act 1980 claims for personal injury arising out of negligence are subject to a three year limitation period. For a child, the 3 years starts running when he reaches adulthood.

This has the potential to cause injustice as the claimant might not even be aware of relevant facts at the time damage was suffered (such as sexual abuse suffered during childhood). In those kinds of cases,  it is possible to extend the limitation period by another 3 years from the date when the claimant knew (or ought reasonably to have known) about the relevant facts.

You may be able to ask the court to exercise its discretion to let your claim under section 11 proceed, even if you are out of time, by relying on section 33 of the Limitation Act. See the case of Ellam v Ellam [2015] EWCA Civ 287 for further discussion of this issue.

When considering extending the limitation period, the court shall have regard to all the circumstances of the case and in particular to:

(a )the length of, and the reasons for, the delay on the part of the plaintiff;
(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 [F34, by section 11A] or (as the case may be) by section 12;
(c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant;
(d )the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;
(e )the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;
(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.

Judicial Review

Ways to bring public bodies to account.

Public law remedy

 

‘Public law’ is that body of law which governs the operation of public bodies, such as local authorities. This contrasts with ‘private law’ which is the law governing activities between individuals.

Thus care proceedings are ‘public law proceedings’ because they involve an application by a public body, the local authority. But disputes between parents over where their child should live are called ‘private law proceedings’ because no public body is involved.

A remedy in public law is ‘judicial review’ (JR). You can apply to the court to ask that a public body, such as local authority is forced to do or to stop doing something because they are acting unlawfully, by being unreasonable or irrational.

It is defined under the Civil Procedure Rule 54.1(2)(a) as a claim to review the lawfulness of –

  • an enactment; or
  • a decision, action or failure to act in relation to the exercise of a public function.

There is a two stage process in applying for JR. At the first stage you will seek the court’s permission to make the application. Many applications will fall at this hurdle. If you get permission your application then goes before a judge who will hear arguments and decide what order, if any, to make.

 

Grounds of Judicial Review

There may well be some overlap between these grounds.

  • llegality or unlawfulness –  a failure to act within the law.  Did the decision maker understand the law they were applying? Did the decision making apply the correct law? Did the decision maker fail to take into account relevant issues?
  • Irrationality – did the decision maker reach a decision so unreasonable that no reasonable decision maker could have made the same decision?
  • Procedural impropriety – did the decision maker act fairly?  Was the decision maker biased?

 

Limitations of JR as a means of righting wrongs.

The first difficulties are practical ones:

  • JR is considered a remedy of ‘last resort’ – you will be expected to have tried other avenues to resolve your problems first and your application will not succeed if the court thinks you have failed to do this.
  • The time limits for making an application are very short and very strict. See CPR Part 54.5(1). You must make your application for permission to apply for judicial review promptly and in any event not later than 3 months after the grounds upon which the claim is based first arose.

JR is also not about ‘righting wrongs’ but is a way the judges check that the decision making process was fair.  So the judge will not be examining the merits of any particular decision by a public body, but only if they acted in accordance with the law.

Therefore, even if you are successful in your application for JR this is not a guarantee that the LA will ultimately make a different decision in your case – only that the court will tell them they need to think again. 

 

Remedies

  • You can get a declaration that a public body has acted unlawfully or an injunction to stop them from acting unlawfully.
  •  A claim for judicial review may include a claim for damages, restitution, or the recovery of a sum due, see CPR 54.3(2).

Damages as a remedy

There  is no right in judicial review to claim damages for losses caused by unlawful actions of a public body.  It is only possible to receive damages in judicial review claims if there is another established cause of action such as breach of statutory duty, misfeasance in public office or a private action in tort. We shall look at these in more detail below.

See section  31(4) of the Senior Courts Act 1981

 

You cannot use JR to try to prevent a LA issuing care proceedings

An important point to note is that parents cannot try to stop either EPO or care proceedings by making an application for JR – see the case of R v Gloucestershire CC [2003] heard by Munby J (as he then was).

  • JR Is a remedy of last resort and it should not be used when there is another effective and convenient remedy available – i.e. contesting the care proceedings in the family court;
  • JR is a blunt and unsatisfactory tool when the matters in issue are as sensitive and as difficult as they usually are in care proceedings;
  • the greatest possible caution is called for when the purpose of JR is to restrain the commencement of proper proceedings in a domestic court which has jurisdiction.
  • The family court should never feel inhibited from acting urgently to protect the interests of children.

But there are limited circumstances where you can apply for JR when care proceedings are ongoing

See the case of H, R (on the application of) v Kingston Upon Hull City Council [2013] EWHC 388. It is possible, but it will be rare:

There have not been – in so far that counsel and I have been able to determine – any reported case of judicial review proceedings in relation to ICO’s. It was felt by counsel – and I am inclined to agree – that challenges whilst care proceedings are in train are usually made within the confines of the family court when an application to revoke the ICO is made or a renewal application is made. Ordinarily, the Administrative Court will not countenance judicial review proceedings when there is an alternative remedy – especially so when that alternative is a judicial remedy. However, that does not mean that judicial review cannot apply to decisions made by local authorities whilst care proceedings are in train. I am of the view that there are limited – perhaps very limited circumstances – where an application can be made justly. This would be so when a person affected by a decision is not actually a party to the care proceedings and might not have a sufficiently good reason to be made an intervener in those proceedings. It might equally apply where (as here) a party (the mother) does not wish to challenge the basis of the ICO, but merely a decision made by the LA as to its implementation. It may be that a local authority has reached a conclusion in respect of which it refuses to alter (despite the request of the family court). All the family court can do is to exhort (it usually works – but it does not always) or revoke the ICO. The family court is not exercising the jurisdiction of the High Court in, the now infrequently used, wardship procedure where by the court makes all important decisions about all aspects of a child’s life as used to be the case. In my judgment the circumstances whereby judicial review is applicable whilst care proceedings are in progress (and there is an extant ICO) are likely to be rare and distinctly fact specific. The Administrative Court is very alive to the concept of an alternative remedy.

The Social Worker tells me my child needs medical treatment?

This post looks at the legal and practical difficulties parents may face if they disagree with doctors or social workers about the medical treatment their child needs.  Doctors cannot examine or treat anyone without getting consent, unless the situation is life threatening and urgent. Medical intervention can range from the trivial to the really serious and the further up the scale of intervention you go, the more likely you are to encounter disagreements about the best way forward. Who gets to decide and how?

The case of Ashya King

For more detail about Ashya King’s case see this post from the Transparency Project.

The  issue of managing disagreements between parents and doctors came to the fore in September 2014 with the case of Ashya King,  a five year old boy who was being treated for cancer in the UK. His parents and the hospital could not reach agreement about the best treatment options for Ashya; his parents removed him from the UK to seek treatment abroad and were then arrested after the hospital informed the police and the local authority (LA) of their disappearance.

The LA applied for Ashya to be made a ward of court, which meant that no decision could be taken about his treatment without permission from the court. Upon arrest, Ashya’s parents were kept apart from their son for several days. The case caused enormous concern both in the UK and internationally. Of particular concern is the parents’ view that they had no choice but to leave in the way they did as they were alarmed by the hospital suggesting that the LA would need to get involved, even to apply for an emergency protection order. It is clear that the working relationships between the parents and the doctors must have seriously deteriorated, if not broken down completely.

When the case came before Baker J on September 8th he discharged the wardship. He found that the earlier decision to make Ashya a ward of court was justified on the information that the court had before it. But now the position had changed; there was a clear treatment plan which was not opposed by either the LA or Ashya’s guardian. The Judge could not comment on the desirability of issuing a European arrest warrant which resulted in the parents’  detention, but commented that it was clearly not in Ashya’s best interests to have been separated from his parents.

So what happens if you disagree with the treatment proposed by professionals?

The importance of consent.

The fundamental principles of consent were discussed in the case of A (Children) [2000]. Every adult person of sound mind has the right to say what can and can’t be done to his body. Without consent, medical examinations or procedures are unlawful – they are either the criminal offence of assault or the civil offence of trespass to the person. Therefore it is very clear that consent must be given to any kind of treatment or examination unless its an emergency and doctors say they had to act out of ‘necessity’.

Consent is only valid if it is:

  • voluntary – given freely;
  • informed – understanding the implications of consenting;
  • and the person giving it has capacity – they are capable of making decisions.

Who does not have capacity?

A ‘child’ is defined in the Children Act as a person between the ages of 0-18 years, but it’s really important to distinguish between children who are 16 and older as 16-17 year olds can provide consent to treatment as if an adult.

  • Children under 16, unless found to be  ‘Gillick competent’  do not have the capacity to consent to treatment.  A child will have capacity only if he or she is able to understand the nature, purpose and possible consequences of the treatment proposed. For a useful discussion of issues that arise around understanding and capacity see the article about transgender children in Further Reading below. 
  • Adults or children over 16 years, may not have capacity as defined by the Mental Capacity Act 2005,  if they can’t make their own decisions because of some problem with the way their brain or mind is working. This could arise due to illness, disability or exposure to drugs/alcohol. It doesn’t have to be a permanent condition.

An example of a situation where an adult was found not to have capacity to consent to medical treatment, is the ‘forced C-Section’ case of 2013 (see P (A Child) [2013) where the pregnant mother was experiencing serious mental health difficulties and the hospital were concerned about the risks of a natural birth in such circumstances.

Who do doctors ask if the patient doesn’t have capacity?

They will need to get:

  • consent from someone who has parental responsibility (PR) for the child; or
  • permission from the court in the case of an adult who lacks capacity or where there is a dispute between adult carers of the child.

Parental Responsibility

Parental responsibility is defined at section 3 of the Children Act 1989. The British Medical Association (BMA) ethics guidance from 2008 describes PR in these terms:

  • Parental responsibility is a legal concept that consists of the rights, duties, powers, responsibilities and authority that most parents have in respect of their children. It includes the right to give consent to medical treatment, although as is discussed below, this right is not absolute, as well as, in certain circumstances, the freedom to delegate some decision-making responsibility to others. In addition, competent children can consent to diagnosis and treatment on their own behalf if they understand the implications of what is proposed (see below). Those with parental responsibility also have a statutory right to apply for access to the health records of their child, although children who are mature enough to express views on the issue also need to be asked before parents see their record. Parental responsibility is afforded not only to parents, however, and not all parents have parental responsibility, despite arguably having equal moral rights to make decisions for their children where they have been equally involved in their care.

In theory, doctors only need consent from one person with PR to go ahead with treatment. However this will rarely be a wise course of action if there are strong objections from others who have involvement in the child’s upbringing. The best ethical option in cases of dispute, is  to apply to the court  for an order to either allow or refuse the treatment in question.

An example of such application to court can be found in the case of Neon Roberts, whose parents disagreed about the best way to treat his cancer. Parents may also disagree about specific medical interventions, such as circumcision or blood transfusions on religious grounds.

While the parties are waiting for a court decision regarding treatment, doctors should only provide emergency treatment that is essential to preserve life or prevent serious deterioration of health.

If the doctors consider that by refusing consent to treatment you are not acting in your child’s best interests, they will need to raise this issue with the LA who may need to consider issuing care proceedings.

Further information for doctors and patients.

The British Medical Association (BMA) publishes guidelines and can be contacted for advice.

  • BMA members may contact: 0300 123 1233 or British Medical Association Medical Ethics Department BMA House, Tavistock Square, London WC1H 9JP Tel: 020 7383 6286 Email: et****@*****rg.uk.
  • Non-members may contact: British Medical Association Public Affairs Department BMA House, Tavistock Square, London WC1H 9JP Tel: 020 7387 4499 Email: in*********@*****rg.uk

What if I am sharing PR with the LA?

If a care order has already been made then you share PR with the LA. It is clear that it would be unwise for doctors to feel they need only seek permission from the LA, particularly if the proposed treatment is significant. Efforts should always be made to reach agreement, particularly if the proposed medical intervention is not going to involve significant impact on a child’s bodily integrity.

If you don’t feel able to agree to relatively simply medical procedures or assessments, that may raise question marks in the minds of the professionals about how you are discharging your parental responsibility. It is not difficult to see how such situations can spiral out of control (as in the case of Ashya King above) with parents being very suspicious of doctors and vice versa. As ever, good communication is the key; if you are worried about a particular procedure, say so and say why. Ask for further explanation and discussion.

If agreement just isn’t possible, again applying to court may be the only option. The LA cannot simply make any decision they like even when they do share PR under a care order. They can only act when it is ‘necessary’ to safeguard or promote the child’s welfare. See section 33(4) of the Children Act 1989 and considerations of proportionality under Article 8 of the ECHR. The LA also remain under a duty to consult parents before making any serious decisions about a child who is subject to a care order. 

See this case from 2013 where Kingston on Hull City Council were subject to a successful judicial review of their failure to consult parents. The Judge made clear at paragraph 58 his views about the duty to consult:

  • I have made it clear that there is a duty upon a local authority to consult with all affected parties before a decision is reached upon important aspects of the life of a child whilst an ICO is in force. I have been shown the guidance issued by HM Government to local authorities in 2010 [The Children Act 1989 Guidance and Regulations] where there is valuable material available to social workers about how to approach their difficult task in this regard. Paragraph 1.5 provides (inter alia): “Parents should be expected and enabled to retain their responsibilities and to remain closely involved as is consistent with their child’s welfare, even if that child cannot live at home either temporarily or permanently.” … “If children are to live apart form their family, both they and their parents should be given adequate information and helped to consider alternatives and contribute to the making of an informed choice about the most appropriate form of care.”

Principles of law when there is disagreement about the treatment a child needs.

If it is not possible to reach agreement, the court will have to make a decision about what kind of treatment/intervention is in the best interests of the child. Baker J set out the relevant principles to be applied in such cases (see para 29 of his judgment in September 2014):

  • The child’s welfare is the most important issue before the court ;
  • The court must also have regard to the child’s rights under the ECHR; most pertinently the right to life under Article 2 and the right to respect for family and private life under Article 8;
  • Responsibility for making decisions about children rests with the parents and the state should only interfere if the child is suffering or at risk of suffering significant harm.

For consideration of how the court should approach a case when doctors wish to stop giving life sustaining treatment to a seriously ill child, see the case of Kirklees Council v RE  [2104].

Further reading

Children of Jehovah’s Witnesses and adolescent Jehovah’s Witnesses: what are their rights? BMJ 2005

Girl of 13 allowed to refuse heart transplant – The Independent November 2008

Parents with child in care cannot object to the LA deciding to immunise their child, using section 33 of the Children Act – The Guardian April 2020

In Who’s best interests? The transitioning of preschool children – Sarah Phillimore October 2019

Transgender Children: limits on consent to permanent interventions Heather Brunskell-Evans January 2020

GIDS deploys three Gillick Competence criteria to assess whether a child under 16 can give informed consent.

The first criterion is that the child has the mental capacity to fully understand the likely consequences, both positive and negative, of her decision-making. However, she or he is not psychologically competent to assess the likely consequences of a complex and contested medical area whose future ramifications will have little or no meaning. Not only are all the long-term impacts of hormone therapy unknown to clinicians themselves, a child will have little or no cognisance of a future in which she or he will become a medical patient for life, may come to regret lost fertility (including, for example, the lack of breasts, ovaries and uterus), and the lack of organs for sexual pleasure.

Moreover, the information given by GIDS to children is simply not factual. For example, children are told that hormone blockers will make them feel less worried about growing up in ‘the wrong body’ and will give them more time and space to reflect. This reassurance is contradicted by GIDS’ own recognition that research evidence demonstrates that after one year young people report an increase in body dissatisfaction; rather than giving the opportunity to change their minds children almost invariably proceed to cross-sex hormones.