This is a public children law update blog to give readers a snapshot of the important cases, issues and developments from May 2016 to August 2016. Please feel free to submit a comment below or send us an Ask query if you have any views on the cases, issues, or legal developments that are covered or if you think we have missed something that should be brought to the attention of child care law practitioners.
In this post, we look at the following:
- Damages and costs for European Convention on Human Rights breaches.
- Habitual residence and jurisdiction.
- Adoption issues.
- Transparency of judgments.
Damages and costs for ECHR breaches
Local authorities (LAs) should be aware that the courts are more willing to award damages and costs in cases where the family’s Article 6 and 8 rights under the European Convention on Human Rights (ECHR) have been breached. The majority of these cases will concern a delay in the LA taking action to progress a permanency plan for the child. Independent Reviewing Officers (IROs) are not immune and need to consider their power to refer cases to CAFCASS where satisfactory progress has not been made for a child.
Valid consent to section 20 accommodation cannot justify prolonged inaction (Kent County Council v M and others  EWFC 28)
The child (K) was accommodated, with K’s mother’s consent, under section 20 of the Children Act 1989 (CA 1989) for over three years before Kent County Council (KCC) issued care proceedings. It was agreed that the K’s long-term care plan should be foster care. However, during those three years, K exhibited emotional difficulties and experienced placement breakdowns, which were linked to her insecurity about her future care. KCC claimed that the delay was partly due to problems with commissioning assessments and therapy for K. The court found that KCC had breached K’s rights under Articles 6 and 8 of the ECHR and ordered KCC to pay £17,500 damages and costs.
LAs cannot rely on section 20 agreements as authority to take their time with permanency planning, where the child is 15 or younger. The principle that delay in determining a child’s long-term welfare is prejudicial to the child, applies equally to cases where there are no proceedings. The concept of the child’s timescales should be kept at the forefront of care planning.
IROs must take action if LA does not (Re X, Y and Z (Damages: Inordinate Delay in Issuing Proceedings)  EWFC B44)
Three children were put on a plane by their paternal aunt, who had been their primary carer following earlier care proceedings, from Jamaica to London Gatwick. The paternal aunt was telephoned, who stated that she could no longer cope with caring for the children and agreed for the children to be accommodated under section 20 of CA 1989. The LA later obtained the children’s mother’s oral and written consent to accommodation.
Contact between the children and their mother was not promoted. Recommended assessments of potential carers were not progressed. The children were separately placed after their placement broke down. The LA issued care proceedings after two and a half years. The LA made decisions without authority and consultation with the aunt or mother. The IRO took no action.
The court awarded each child £20,000 damages and £5,000 to the mother. The IRO was criticised for not fulfilling their role to “monitor, persuade, cajole, encourage and criticise” the LA’s actions or lack of action.
LA will pay costs to avoid legal aid statutory charge and allow child to benefit from awarded damages (Re BB (A Child)  EWFC B53)
The legal aid statutory charge takes effect if a party is successful in claiming damages for a breach of human rights. The LA did not issue care proceedings for 13 months after the child became accommodated under section 20 of CA 1989. The LA agreed declarations that it had breached the child’s Article 6 and 8 rights and agreed to pay the damages and costs for the human rights claim. The problem was that the statutory charge also applied to the child’s costs for the care proceedings, despite these being on a separate legal aid certificate. The care proceedings costs exceeded the agreed damages, which meant that the child would not receive any of the damages.
HHJ Murfitt considered that the effect of the statutory was neither just nor proportionate. She therefore followed the approach in Re B (A Child)  EWFC B10 and ordered the LA to pay the costs for the care proceedings. She recognized that this was against the approach taken in the High Court, which was to only award the costs for the human rights claim. LAs must be alert to the possible extra costs. It would be interesting to see if HHJ Murfitt’s approach can be considered reasonable if the case was considered to be a very high costs case.
Habitual residence and jurisdiction
The jurisprudence on habitual residence continues to grow, with different scenarios being placed before the court. In relation to public law children proceedings, the courts are demonstrating that the impact of the UK leaving the European Union on these cases appears to be slight.
Unaccompanied minors (London Borough of Hillingdon v DS and others  EWHC 1858 (Fam))
Two children (10 and 13) were sent from Pakistan to London unaccompanied. They were part of a sibling group of four. Their mother chose to send them, while the other two (one older and one younger) remained in her care. When contacted, the mother was clear that she was unable to care for them and agreed for them to be LA accommodated. Their father lived in Holland. He could not care for them and did not want to have contact with them.
Theis J concluded that the children had no habitual residence. There were abandoned by their mother and could not return to Pakistan. The children had not become integrated in the UK. She found that the English courts had jurisdiction based on the children’s presence in the UK. A care order was made to keep the children in long-term foster care.
1996 Hague Convention can be used in same way as Brussels II Revised (Re L (Habitual Residence: Domestic Abuse)  EWHC 1844 (Fam))
The case concerned a Ukrainian child, who came with his mother to the UK to join his British father. The mother regarded this move as a trial. The child was not registered with a local GP and the mother relied on her funds in Ukraine. The father socially isolated the mother and child. Care proceedings were issued after the father made allegations that the mother had shaken the child. The Ukrainian Central Authority was contacted, who requested a transfer of the child and the proceedings to the Ukraine.
Ukraine is a member of the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children of 19 October 1996. Any transfer of the child or the proceedings must be in compliance with this Convention. The relevant provisions are:
- Article 5 – Jurisdiction. This is based on the child’s habitual residence.
- Article 9 – Transfer of proceedings to the State better placed for the case.
- Article 11 – Urgent measures necessary for the child’s protection can be taken by the State where the child is present in.
The case provides practitioners with a reminder of the relevant provisions for cases where Brussels II Revised is not available.
The international element of children proceedings is likely to feature in cases involving relinquished children. How such cases should be dealt with is now clearer. The government’s drive to raise the importance level of prospective adopters is gaining momentum in the courts. Avoiding delay in determining the child’s long-term welfare is key.
Act promptly when a relinquished child is no longer adoptable (London Borough of Brent v C  EWHC 1335 (Fam))
Declarations were made against the LA and IRO that the child’s Article 8 rights had been breached by the LA’s delayed actions. The child was relinquished at birth. At six months old, the child was diagnosed with an inherited, progressively deteriorating disorder, which would lead to premature death. This made adoption no longer a realistic option for the child.
Care proceedings were not issued until the child was over four and a half years old, with the LA contacting the mother for consent to medical treatment. The IRO should have been alert to the delay and made a referral to CAFCASS if the LA continued to not act in the child’s best interest (section 25B(3)(a), Children Act 1989).
Birth family unknown to the child do not trump prospective adopters (Re W (A child)  EWCA Civ 793)
This case covers the common scenario where the wider family comes out of the woodwork when the child has been placed with prospective adopters. In this case, the child had been placed with the prospective adopters for nearly two years when the adoption application was issued. The paternal grandparents did not know about the child’s existence when the care proceedings were ongoing.
When the court is considering a wider family’s application to oppose adoption (by making an application for a child arrangements order), the nothing else will do analysis and the Adoption and Children Act 2002 (ACA 2002) welfare checklist requires the judge to consider the prospective adopters’ relationship with the child (section 1(4)(f), ACA 2002). There is no presumption in favour of the birth family. If the court is considering separating the child from their prospective adoptive parents, an expert report should be directed dealing with the harm that the child may suffer from breaking the relationship.
The court must remember that these applications are about the child. The best evidence about the child should be provided, which will come from the prospective adopters rather than a social worker, who visits the placement.
When can you deem a parent “cannot be found”? (West Sussex County Council v Alma  EWHC 2009 (Fam))
A placement order can be made if the child’s parents “cannot be found” (section 52(1)(a), ACA 2002). When the court can deem that parents cannot be found under the ACA 2002, has not been the subject of case law.
The case concerned a girl who was child-trafficked to the UK and taken into care. The LA launched a public campaign and tried to obtain information from different government departments and organisations to find the girl’s parents, to no avail.
Hayden J determined that a LA must take all reasonable steps within a reasonable time scale to find the parents before the court could conclude that the parents cannot be found. Even one available reasonable step would mean that the court cannot dispense with the parents’ consent.