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NJ v Essex County Council and Another [2006] EWCA Civ 545

Mother’s appeal against care order, alleging infringement of human rights, dismissed.

Court of Appeal: Wilson and Richards LJJ and Bennett J (11 May 2006)

Summary
Mother's appeal against care order, alleging infringement of human rights, dismissed.

Background
In early 2005, the local authority started care proceedings in respect of the one-year-old child of a young mother. In August 2005, the local authority conducted a meeting in relation to the case, but the mother, her solicitor and a young person's advocate were permitted to attend only the last of the three stages of the meeting.

At the hearing of the application in October 2005, close study was given to the judgments of Holman J in Re M (Care: Challenging Decisions by Local Authority) [2001] 2 FLR 1300 and of Munby J in Re L (Care: Assessment: Fair Trial) [2002] EWHC 1379 (Fam), [2002] 2 FLR 730, which stressed that professionals, especially local authorities, engaged in care proceedings would infringe the rights of parents and other individuals under Articles 6 and 8 of the European Convention on Human Rights unless overall they conducted themselves with such integrity, transparency and inclusiveness as to satisfy their rights to a fair hearing and to respect for their private and family life. It had appeared to the judge that counsel for the local authority conceded that, in its conduct of the August meeting, the local authority had infringed the mother's rights under Articles 6 and 8. Ultimately, the judge made the care order, and the mother appealed.

The judge gave limited permission to appeal on the issue of 'how the court hearing an application for a final care order should deal with, or give effect to, a breach of a party's Article 6 and Article 8 rights consequent to the improper conduct of an antecedent meeting'.

On the appeal, the local authority (represented by different counsel) challenged the judge's assumption that any failure on their part in relation to the meeting to follow the precepts commended by Munby J in Re L amounted to a breach of the mother's rights under Article 6 or 8; and, in the event that their predecessor had conceded any such breach, they sought to withdraw her concession. The mother submitted that the conduct of the August meeting was substantially unfair to her, and that the judge, even on the basis of a more satisfactory legal analysis, was still entitled to conclude that her rights under Article 8 and, in particular, Article 6 had been infringed.

Judgment
Held, dismissing the appeal, that there was no infringement by the local authority of the mother's human rights, under either Article 6 or Article 8.

While the court identified two features of the manner in which the local authority reached and communicated its care plan which fell short of proper standards of fairness and transparency in a local authority's conduct of care proceedings, it was not appropriate to conclude that the mother's human rights had been infringed.

Furthermore, the court criticised the fact that none of the advocates in the court below, or on the appeal, had referred to the decision in Re V (Care: Pre-Birth Actions) [2004] EWCA Civ 1575, [2005] 1 FLR 627. In that case, a local authority appealed against an order at the conclusion of care proceedings that it should pay each parent damages of £100 for having infringed their rights under Article 6; the Court of Appeal set aside the award of damages, holding that there had been no infringement of the parents' human rights: first, because the matters which were the subject of complaint had pre-dated the child's birth and, thus, the initiation of proceedings; and, secondly, because, on any review of them as a whole, the proceedings could not be categorised as unfair.

Accordingly, if Re V had been brought to the judge's attention, he would have kept a tighter rein on the forceful attempts by the mother to divert the focus of the hearing towards the local authority's alleged failures to observe the precepts commended in Re L, he would more clearly have appreciated the distinction between non-compliance with those precepts and infringement of human rights, and he would not have granted permission to appeal.

Read the full text of the judgment here