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The Impact of the Human Rights Act on Public Law Children Act proceedings: An overview of the first decade

Deirdre Fottrell, Barrister, of Coram Chambers and Lecturer in Law at the Human Rights Centre, University of Essex, reviews the impact of the Human Rights Act in the field of Public Law Children Act proceedings

Deirdre Fottrell, Barrister, Coram Chambers

Deirdre Fottrell, Barrister, of Coram Chambers and Lecturer in Law at the Human Rights Centre, University of Essex

The Human Rights 1998 came into force on 2nd October 2000.  This article provides an overview of the first ten years of the HRA and considers its impact on public law Children Act proceedings in this jurisdiction. 

On any analysis the impact of the HRA on family law generally has been limited. This is striking given that the HRA introduced into UK law the right to respect for family life, which had not previously existed in actionable terms.   On one level the HRA has manifested itself in the expansion of the concept of the family life and the parameters of family life have been considered by the Courts. Thus for example in Re J ( Leave to Issue an Application for a Residence Order)  CA [2003]1 FLR 114 Thorpe LJ decided that the Article 6 and 8 rights of a grandmother required the court to conduct an appropriate inquiry into her application for leave and a failure to do so could be contrary to Article 8.  Similarly in Singh v Entry Clearance Officer [2005] 2 WLR 325 family life was found to exist between a seeking entry clearance to join his adoptive parents in the UK.  However in C v XYZ Council [2007] EWCA 1206, the Court of Appeal concluded that Article 8(1) did not impose a duty to inform a child's father of a proposed adoption if the father had no pre-existing relationship with the child.

Where the HRA has impacted most positively is in the development of procedural aspects of the right to family life and there has been a recognition of the importance of transparency and the participation of family members in the decision-making processes of public authorities which may interfere with their family life. 

A rights based approach?
There is an inherent tension between the provisions of the European Convention on Human Rights and its interpretation by the European Court of Human Rights, and the provisions of the Children Act 1989.  In particular s.(1) (3) of the CA 1989 and the 'paramountcy principle' have resulted in an hierarchal approach to the rights of the family members with the rights of parents being subordinated to those of the child.  The approach of the English courts has been shaped by the fact that the welfare of the child is treated as the sole and decisive consideration; thus for example in Re O (Contact; Imposition of Conditions) [1995] CA 1 FLR 124 Bingham MR noted:

"It cannot be emphasised too strongly that the court is concerned with the interests of the mother and the father only in so far as they bear on the welfare of the child." 

The Convention is more nuanced and it recognises all members of the family unit as rights holders and advocates a balancing of the competing rights subject to the principles of 'necessity' and 'proportionality'. So for example it was said in Johansen v Norway [1996] 23 EHRR 33 "in carrying out this balancing exercise, the Court will attach particular importance to the best interests of the child which depending on their nature and seriousness, may override those of the parents'.  However, the European Court of Human Rights did recognise in Yousef v Netherlands [2003] 1 FLR 210 that, all things being equal in the balancing act between competing interests of the parents and the child, the best interests of the child can trump the rights of parents.

'Business as usual'?
Prior to the HRA coming into force there were concerns that the courts would encounter difficulties reconciling the CA 1989 with the provisions of Article 8 (2) in the context of both public and private law proceedings.  The initial decisions of the courts sought to close down any arguments around incompatibility and determined that the HRA did not require a revision or change of approach.  Thus in Payne v Payne [2001] EWCA Civ 166, [2001] 1 FLR the then president Butler Sloss stated:

"The HRA requires some revision of the judicial approach to safeguard the parent's rights under the ECHR, it required no re-evaluation of the judge's primary task which was to evaluate and uphold the welfare of the child as the paramount consideration despite its inevitable conflict with the adult rights.' 

This was reiterated in Re B (A Minor) (Respondent) [2001] UKHL 70 by Lord Nicolls of Birkenhead who considered the approach to be taken in HRA cases and stated:

"There is no need to have recourse to s.3 of the HRA 1998…the balancing exercise required by Article 8 does not differ in substance from the like balancing exercise undertaken by a court when deciding whether, in the conventional phraseology of English law, an adoption would be in the best interests of the child.  The like considerations fall to be taken into account.  Although the phraseology is different, the criteria to be applied in deciding whether an adoption order is justified under Article 8 (2) lead to the same result as conventional test applied by English law.'

The determination that the HRA and the CA advocate a similar approach to the resolution of disputes is questionable and in particular it is arguable that such an approach is not compliant with ss.2 and 3 of the HRA. In particular, does Payne avoid confronting the compatibility of s.1(3) of the CA with the ECHR.  It is frustrating that by taking such an approach, the family courts avoid any examination of competing rights and largely ignore the principles of interpretation of the Convention rights developed by the European Court.  Compare the approach in Re B (above) to that of Lord Hope of Craighead in R v Shayler [2002] 2 WLR 754 when considering what principles should be followed to analyse the proportionality of an interference with a Convention right:

"The first is whether the objective which is sought to be achieved—the pressing social need—is sufficiently important to justify limiting the fundamental right.  The second is whether the means chosen to limit that right are rational, fair and not arbitrary.  The third is whether the means used impair the right as minimally as is reasonably possible.  As these propositions indicate, it is not enough to assert that the decision that was taken was a reasonable one.  A close and penetrating examination of the factual justification for the restriction is needed if the fundamental rights enshrined in the Convention are to remain practical and effective for everyone who wishes to exercise them." (par 60 and 61)

Academic commentators express concerns that the approach of the family courts to the HRA has in effect watered down the principles of the ECHR and subsumes them to the CA 1989.  It is remarkable that there is an absence of rights based reasoning in the family jurisdiction which confines the HRA largely to issues of procedure and process.  This can to an extent be explained by courts' recognition that sensitive issues of public policy, such as the legal regulation of family life, are perceived as a matter for determination by parliament rather than the courts.

HRA in care proceedings 
Notwithstanding the issues outlined above, the HRA has resulted in positive developments in five main areas which are examined below.

1) The procedural requirements of Article 8
There is a body of case law in which the HRA and Article 8 in particular have been interpreted as imposing strict procedural obligations on local authorities.   In the landmark decision of Re G (Care; Challenge to the Local Authority's Decision) [2003] EWHC 551, [2003] 2 FLR 42,  Munby J considered that the actions of a local authority in care orders were made with a plan for rehabilitation of the children to the parents.  A decision was taken at a meeting at which the parents were neither present nor represented to remove the children from the parents due to concerns about their care.  They subsequently experienced difficulties obtaining copies of the minutes of the meeting. Munby J noted:

"The procedural protection offered by Article 8 was not confined to the trial process but extended to all stages of the decision making process in child protection proceedings….the facts reveal what I can only call a 'mindset' and a 'culture' so seemingly oblivious to the imperative requirements of Article 8… and so unwittingly careless of the need to treat parents with fairness, that I cannot let the latter pass without comment"1

He went on to state:

"This as it seems to me is a classic example of the kind of case where, whatever may have been the case previously, the Human Rights Act 1998 gives parents treated as badly as the parents in this case appear to have been…effective remedies for breach by a local authority of either the substantive or procedural requirements of Article 8."

In Re G, Munby J elaborated on the nature of the local authority's duty to provide a full and frank disclosure of documents, including notes and minutes of conversations and meetings, and listed the following as important:

A similar approach was taken by Holman J in Re M (Care: Challenging Decisions by Local Authority) [2001] 2 FLR 1300 in which he found that a decision taken after a care order was made, to place children for adoption when the care plan had been for rehabilitation, was contrary to Article 8 primarily because the parents had not been present or represented at the meeting at which the decision was made.  In Re L (Care: Assessment: Fair Trial) [2002] 2 FLR 730 Munby J noted that the positive duty of disclosure on the local authority under Article 8 applied at all stages of the proceedings and imposed a wide obligation to adhere to the principles of procedural fairness.  However, when considering whether a failure to disclose information or to include parents in a meeting would breach Articles 6 and 8 such that the whole proceedings were flawed, he took the view, following ECHR case law, that the court had to look at the proceedings "as a whole" and that exclusion from a meeting may not render the entire proceedings unfair.

In Re V (A Child) (Care Proceedings; Human Rights Claims) CA [2004] EWCA Civ 54, [2004] 1 FCR 338 the Court of Appeal gave clear guidance as to the manner in which HRA issues are to be raised in care proceedings and in particular noted that a failure or absence of procedural fairness did not give rise to a breach of the Convention in all cases and in any event a breach of the Convention did not render the entire proceedings unfair.  Applications as regards breaches of s.6 (1) of the HRA should be raised in accordance with s.7 (1)(b) before the relevant tribunal seised of the matter and do not justify transfer up.2  In Re J (Care; Assessment; Fair Trial)  [2006] EWCA Civ 545, [2006] 2 FCR 107 the court considered whether a failure to follow the precepts of procedural fairness would constitute a breach of Article 8 and in particular the status of the precepts of laid down by Munby J in Re L (above).  The Court of Appeal broadly approved that approach while cautioning against imposing guidelines without any margin in the context of CA 1989 cases. In particular Wall LJ stated:

"Any actual infringement of parental human rights in the course of care proceedings, far from being brushed under the carpet, must in court be rooted out and exposed, the precepts must not be used as a bandwagon, to be drawn across the tracks of the case and to de-rail the proceedings from their prompt travel towards the necessary conclusions referable to, and in the interests of, the child….we here will support those who deal robustly with suggestions that of such minor non-compliance with the precepts commended by Munby J as could never sensibly be translated into an infringement of human rights."

2) Removal of children
A second area in which the HRA has had a particular impact on cases is where the court considers the removal of children from parents.  For example in Re H ( A Child) (Interim Care Order) CA [2002] EWCA Civ 1932, [2003] 1 FCR 350 Thorpe LJ cautioned against removal at interim hearings and reiterated the importance of Article 6 and Article 8 and the need to avoid a premature determination of the case, prior to a final hearing.3  In Re M (Care Proceedings) (Judicial Review) [2003] 2 FLR 571, Munby J noted obiter that care proceedings brought with the intention of removal of a newborn from its mother was a 'draconian and extremely harsh measure which demands an extraordinarily compelling justification' following the ECHR precedents in K and T v Finland [2001].

In R (on the application of G) v Nottingham City Council [2008] EWHC 400 (Admin) Munby J considered removal of a child from a mother without either court order or consent under s.20 of the CA 1989.  In finding that removal to be unlawful the Court relied on Article 8 of the HRA and concluded that the interference with the family life was not justifiable under Article 8(2) as a result.

3) Use of emergency protection orders
The general obligation for procedural fairness, which has been enhanced by the HRA provisions, has impacted considerably on the use of EPOs. 

In X Council v B (Emergency Protection Orders) [2004] EWHC 2015 (Fam), [2005] 1 FLR 342 Munby J reiterated the stringent nature of the obligation on the local authority when considering protective measures to comply with the obligation for procedural fairness and to respect the Article 8 right of the family generally and the parents in particular.  It was noted that ex parte applications for removal should be used only in the most urgent cases where no other steps could be taken to protect the child.4

In Langley v Liverpool City Council and Another  CA [2005] EWCA Civ 1173, [2005] 1 FLR 342 the Court of Appeal found that removal under PPO when an EPO was in place was unlawful.  A court could not therefore justify the removal under the PPO under Article 8 (2) as being proportionate because it was not 'in accordance with the law'.

4) Actions of the local authority post-care order
There are continuing difficulties as to the inability of the courts to supervise local authorities in their implementation of care plans once a full care order has been granted.  Thus in Re S [2002] UKHL, 2 WLR 720, the House of Lord stated that where a local authority failed to discharge its parental responsibilities properly and as a result the rights of parents were violated 'the parents may as a longstop bring proceedings against the authority under s.7 of the HRA….in this type of case the Article 8 rights of a young child may be violated by a local authority without anyone outside the local authority becoming aware of the violation.  In practice, such a child may not always have an effective remedy'.  In Re W (Children) CA [2005] 2 FLR 1022, Thorpe LJ noted that there may be circumstances in which an injunction could be granted under s.8 of the HRA to prevent removal of children from parents or family post-care order if this was shown to be contrary to Article 8 and in particular neither necessary.  The court did note also that to use s.7(1)(a) effectively an application should be made before, rather than after, removal. However there are difficulties obtaining funding for such applications which often results in an application to discharge the care order.

5) Remedies for breach
The HRA envisages a compensatory regime based on the concept of 'just satisfaction' which exists under the Convention.  Remedying the violation in and of itself is generally considered sufficient.  In P v South Gloucestershire Council [2007] EWCA Civ 2, [2007] Fam Law 393 the Court of Appeal found that an award for declaratory relief for breach of art 8 does not mean that damages will necessarily be given. In the case of Anufrijeva v Southwark LBC [2004] 1 ALL ER 833 the Court of Appeal gave guidance about the awarding of damages in HRA claims.  While it is generally expected that the Claimant should be able to demonstrate pecuniary loss, awards may be made for non-pecuniary loss if the consequences of breach are sufficiently serious and the damage is more than mere distress and frustration. 

Following the guidelines in this case it is unusual for damages to be awarded in cases although an unlawful removal of a child from her parents could conceivably give rise to an award of damages in some circumstances.

In assessing the impact of the HRA on public law Children Act proceedings it is clear that while the courts' approaches have been reductive there have been significant developments in the areas considered in this article.  There remains however a sense that the potential of the HRA is sometimes overlooked.  In its first decade the HRA did not result in the anticipated rights based revolution, but it has  incrementally expanded the parameters of rights protection in family law which must in itself be considered cause for optimism as we embark on the second decade of the HRA.

1  See further the decision of McMichael v UK [1995] 20 EHRR 205 at para 87 when the Court noted "Whilst Article 8 contains no explicit procedural requirements, the decision making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8."
2   See further C v Bury Metropolitan Borough Council [2003] 2 FLR 868, in which procedural irregularities were found but no remedy was granted to the mother because the court concluded that even if the mother had been adequately informed and involved the local authority would have reached the same decision.
3  See also Re B (A Child) (Interim Care Order) CA [2002] 1 FLR 545.
4  See also Re X (Emergency Protection Orders) [2006] EWHC 510.