NJ v Essex County Council & Anor

A mother, who was born on 11 September 1988 and so is only 17 years old, appeals against an order under which her daughter, C, who was born on 8 January 2005 and so is now 1 year old, was committed to the care of Essex County Council (“the local authority”) upon a plan that she should be adopted. The order was made by His Honour Judge Gypps in the Chelmsford County Court on 19 October 2005.

In that the identity of C’s father is unknown, the only parties to the local authority’s application for a care order were the mother and C acting by Mrs Lunn, her Children’s Guardian. The local authority and the guardian, as respondents to this appeal, both oppose it.

The appeal comes to us with the permission of Judge Gypps. He limited permission “to 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 8 rights consequent to the improper conduct of an antecedent meeting”. The issue is one which flows in particular from 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] 2 FLR 730. Those two judgments stress that professionals, and in particular local authorities, engaged in care proceedings will infringe the rights of parents and other individual parties to them under both Article 6 and Article 8 of the European Convention on Human Rights 1950 unless overall they conduct themselves with such integrity, transparency and inclusiveness as to satisfy their rights, necessarily to be construed in a wide sense, to a fair hearing and to respect for their private and family life.

In accordance with the ambit prescribed by the judge, the appeal centres upon a meeting conducted by the local authority on 10 August 2005, namely six months after the application for a care order had been issued and two months prior to its substantive despatch. The mother, her solicitor and a young person’s advocate admirably provided for the mother by the charity “MIND” were permitted to join the meeting only at the last of its three stages, at which the local authority informed the mother that they had resolved not to favour any residential assessment of her with C but instead to put before the court a plan that C should forthwith be placed for adoption. The mother’s reaction to the information was one of the utmost distress.

At the hearing before the judge considerable time was taken in considering the local authority’s conduct of the meeting on 10 August 2005. In particular close study was given to the guidance given by Munby J. in Re L at [151] and to the detailed “precepts” commended by him at [154]. In the event it seemed to the judge that in the course of her final submissions counsel then appearing for the local authority went so far as to concede that, in their conduct of the meeting, the local authority had infringed the mother’s rights under Articles 6 and 8. In that regard, I fear, confusion set in. For reasons which I will explain, I am clear (and indeed Miss Booth QC, who now appears for the mother, does not actively contend otherwise) that counsel for the local authority was conceding only that, in relation to the meeting, there had been a failure to observe some of the precepts commended by Munby J. and was not conceding that any such failure, when regarded in the context of the proceedings overall, amounted to infringement of any of the mother’s human rights. In that, however, he understood the concession to be that the mother’s human rights had been infringed, the judge clearly concluded that there remained no need to analyse in detail either what had occurred at the meeting or the wider jurisprudence set out in Re L. He proceeded on the simple footing that her rights had been infringed; and indeed such is the express premise behind his grant of permission to appeal.

By a respondent’s notice the local authority, represented upon this appeal by different counsel, wish to challenge the judge’s assumption that any failure on their part in relation to the meeting to follow the precepts commended by Munby J. amounted to a breach of the mother’s rights under Articles 6 or 8; and, in the event that their predecessor had conceded any such breach, they would have sought to withdraw her concession.

The mother’s childhood and in particular her adolescence have been chaotic; and the judge’s sympathy for her plight, which I share, shines across his judgment.

In 2002, when she was about 12 years old, the mother left her family home and became accommodated by the local authority. Thereafter she descended into a life of absconsions from the successive home placements provided by them; of non-attendance at school; of excessive drinking; of drug-taking; and of prostitution. In December 2003 she was accommodated in a foster home in Lowestoft but, although she remained there for ten months, her dysfunctional life continued. In April 2004, while under the influence of drink, she assaulted a police officer, for which she was later placed under supervision and curfew. In November 2004, by which time she was heavily pregnant with C, she moved around various placements and was found by her support worker in a crack house. In December 2004, after taking an overdose of anti-depressants, she was taken to a psychiatric hospital, where she was assessed, initially under section. While she was a patient there, she was removed to another hospital so that C might be born; and at once the care proceedings were instituted, by virtue of which C was moved to a short-term foster home. Following the mother’s discharge, late in January 2005, from the psychiatric hospital, her consultant psychiatrist wrote that she did not present with a mental or psychotic illness but that her behaviour was suggestive of a possible personality disorder.

There is no doubt that, following C’s birth and the institution of the proceedings, the mother for a time struggled hard to present as one who might in due course be able to be entrusted with C’s care. Contact between her and C took place virtually every day from January to July 2005; and the mother attended the contact sessions reliably and related to C excellently. It was as if her birth had ignited in the mother a spark to which she responded with a degree of responsibility never hitherto evident.

Supported lodgings in Chelmsford, found for the mother by the local authority, proved more enduring than many other placements in that she remained there from January to June 2005. During that time she became pregnant again and had an abortion. The evidence left doubt as to whether the reason for her departure from those lodgings was that the manager of the lodgings felt that she was uncontainable or that the manager had resolved altogether to cease provision of the service. Whatever the reason, the sequel was a variety of bed and breakfast and other such accommodation for the mother; unexplained absences on her part therefrom; and her growing failure to attend for periods of contact with C or for meetings with the guardian and other professionals. In relation to her failure to attend for a period of contact on 8 August 2005, the mother offered an elaborate explanation of family problems which was later discovered to be entirely untrue.

At an early stage of the proceedings the court had correctly identified the live question as being whether there was any real possibility that, within a time-frame apt to C’s needs, the mother could develop to a point at which C could safely be entrusted to her care in the community; and thus whether the court should invest time in some form of residential assessment of the mother with C. In that regard C’s short-term foster mother, apparently affected by the mother’s history of stunted opportunity, offered to become the foster mother of the mother as well as of C and thus, in effect, to host a residential assessment at her home. Notwithstanding the local authority’s concern that there was a kindly naiveté about the foster mother’s offer and that, were the mother to reside in her household, the potential for its overall disruption would be huge, her offer remained on the table for several months.

In order to aid its enquiry into the value of a residential assessment, the court permitted the adduction not only of psychiatric and psychological reports but also of a specialist assessment of the mother’s parenting capacity by the Rainbow Family Centre, which was a local authority resource. The psychiatric and psychological reports were guarded. The psychiatrist, who, though an adolescent as well as a child psychiatrist, focussed primarily upon the interest of C, reported that it was strongly in her interest for a decision as to her long-term future to be taken before she was about 8 months old; that the mother had cared for her very well during contact sessions; that a residential assessment was often most useful in the case of a parent who, while relatively stable, needed to demonstrate a basic level of competence in caring for a child; that therefore a continued assessment of the mother and C in the community, rather than a residential assessment, was preferable; and that it was probable that during C’s childhood the mother’s capacity to care for her would at times be significantly impaired. The psychologist, whose remit was to offer a psychological profile of the mother, at length explained the areas of difficulty confronting her in any attempt to construct a stable life for herself and C. By her report dated 21 July 2005 Ms Scott Doe, on behalf of the Rainbow Family Centre, referred to a surprisingly good emotional connection between the mother and C and noted that she had engaged very well in the process necessary for the compilation of the report. “Thus,” said Ms Scott Doe, “the evidence gathered does indicate some significant positive factors. Careful consideration would need to be given if these issues are to be discounted. For this reason, I am presenting the court with two options, to assist in final decisions relating to this very complex matter”. Thereupon Ms Scott Doe set out one option as being that C should immediately be placed for adoption and the second option as being that a period of residential assessment of the mother with C, perhaps in C’s current foster home, should be undertaken, to be followed by review within three months. Before the judge the report of Ms Scott Doe was referred to on behalf of the mother as containing a “recommendation” for further assessment; but, with the realism which has been the attractive hallmark of her conduct of the mother’s appeal, Miss Booth accepts that such was too strong a word.

Once Ms Scott Doe’s report was to hand, and in the light of the imminence of the substantive hearing fixed for October 2005, it was time for the local authority to identify the plan for C to be presented by them to the court. They resolved to oppose the option of a residential assessment of the mother with C and to favour a plan that, without further delay, C should be placed for adoption. As the allocated social worker was later to tell the judge, the meeting on 10 August 2005 was set up in order to communicate the local authority’s care plan rather than to gather further views prior to its evolution. The meeting was apparently divided into three stages: first a meeting only between the local authority social workers engaged in the conduct of the proceedings and their in-house solicitor; second a meeting between all of them and other interested professionals, in particular the social worker allocated to the mother, Ms Scott Doe and C’s guardian; and third, following the withdrawal of certain of the professionals in order that the mother should not be overwhelmed, a meeting between the remainder and the mother, with her solicitor and with the advocate provided for her by “MIND”.

Nothing is known of what was said during the first stage of the meeting, which clearly attracts legal professional privilege. The minutes of the remainder of the meeting show the second stage to have been the local authority’s presentation to the other professionals of their decision to present to the court a plan that C should immediately be placed for adoption. Although the minutes ultimately disclosed by the local authority pursuant to the judge’s direction do not make it clear, the following is not in dispute:

At the third stage of the meeting the mother was duly told that the local authority’s plan was that C should be adopted and, although conceptually she seems to have understood that the court would make the ultimate decision, she assumed that its decision in those circumstances would be in accordance with the local authority’s plan. At the meeting the mother was not told:

Following the meeting the mother went missing. In fact she went to Peterborough. Her sister, who is a heroin addict, was there. Initially the mother lived on the streets. She began to take drugs and later, unsurprisingly, refused to take a drugs hair test for the purpose of the proceedings. From Peterborough she went to Harlow and thence back to Chelmsford. For a few weeks she was out of communication with her solicitor and the guardian; and she was not attending for contact periods with C. On 26 September 2005 Ms Scott Doe wrote an addendum to her report to the effect that, in the light of the deterioration in the mother’s circumstances, she could no longer canvass, even as one option, a residential assessment. The guardian, for her part, reported that in her view the severity of the mother’s problems precluded any successful placement of C with her within a reasonable period of time.

In her report the guardian criticised the local authority’s handling of the meeting on 10 August 2005 in the following terms:

“It is of concern at the way in which the local authority conveyed to [the mother] their decision regarding the care plan. There was a Legal Planning Meeting on 10^th August 2005 to which all the professionals and the mother were invited. The meeting was divided. It appeared that there was a meeting first between the social services professionals and their legal adviser and then a meeting between them and all other professionals. [The mother] and her legal team were invited to meet with the local authority at the end, not for discussion, but for the local authority to convey their decision regarding [C’s] future care. I have discussed with the social services my concern at the way in which the meeting proceeded.”

Notwithstanding its inevitable conclusion, the hearing of the application proceeded before the judge for three days. With so little forensic ammunition available to her, Mrs Bettle, counsel for the mother, decided to seize upon and to seek to enlarge the criticisms made by the guardian of the local authority’s conduct of the meeting on 10 August 2005. She submitted:

Before I continue to chart the history of the proceedings before the judge, it is worthwhile for me briefly to reflect on the judgment in Re L. The facts were that the local authority and the guardian had, in the absence of the mother or her solicitor, conducted a meeting with a consultant psychiatrist who had been jointly instructed by all parties, including the mother, and who, following the meeting, withdrew his offer of a residential assessment of the mother with the child. Thus, although the guidance there given by Munby J. far transcends the fact of that case, it was a flagrant case of private access by only some of the instructing parties to the jointly instructed expert on a point of central importance. Furthermore at [122] Munby J. proceeded to point out that, in particular in light of the decision of the European Court of Human Rights in Mantovanelli v. France (1997) 24 EHRR 370, the requirement under Article 6 was to consider whether the proceedings, considered “as a whole”, were fair and that a parent’s exclusion from a meeting or from access to a document might or might not be so significant as to make the whole proceedings unfair. Ultimately, in light of the facts that the psychiatrist had already prior to the meeting resolved to withdraw his offer of an assessment and that he had resolved to do so for reasons which the mother had had the opportunity to challenge in court, the judge held that there had been no infringement of the mother’s human rights. As he said at [240], “overall, [the mother] has had the fair trial to which she is entitled under arts 6 and 8”.

When her turn came to make final submissions to the judge in the present case, counsel for the local authority did not draw any distinction between Ms Scott Doe and the joint expert in Re L; counsel expressly accepted that in her report dated 21 July 2005 Ms Scott Doe had made a “recommendation” in favour of residential assessment; and she stated that she could not even attempt to dissuade the court from the view that, in their conduct of the meeting on 10 August 2005, the local authority had failed to follow the precepts commended in Re L. Counsel, however, thereupon submitted as follows:

“What I would highlight … in Re L is that the procedural unfairness that was found in that case was not fatal to the decisions that were made, and I would submit that that is the case in this case … In Re L … the court clearly holds that the earlier unfairness in the decision-making process had been overcome …”

Although she should have argued more forcefully that a failure to follow the commended precepts did not, without more, entail breach of Articles 6 or 8, it is obvious that counsel was trying to oppose any conclusion, in the light of overall consideration, that the mother’s human rights had been infringed. This distinction, however, became lost. In his judgment the judge said:

“… [I]t is frankly conceded by the local authority that the August meeting … did not comply with the precepts set out so carefully by Munby J. in … Re L … The decision-making process therefore, leading to the trial, had been unfair. That failure is accepted without demur by [counsel for the local authority].”

Later in his judgment the judge returned to the mother’s human rights. He defined the breach of the precepts commended in Re L as having been in the exclusion at the meeting of “the mother and her solicitor from the discussions so they could hear the experts and they could take part.” The judge added, however, that it was in his view improbable that, even if the mother and her solicitor had participated in the prior discussions, the local authority’s care plan would have been different. He also said that he was not at all persuaded that the deterioration in the mother’s circumstances following the meeting had been caused by the local authority’s conduct of it; in that regard he referred to the signs of deterioration in the weeks prior to it. Importantly he also added that, if on 10 August 2005 he had been asked to direct a residential assessment, the strong probability is that, even at that stage, he would have declined to do so. In words which again betray his assumption that there had been not only a failure to follow the precepts commended in Re L but also a breach of article 6, he concluded that such remedy as the mother might have for breach of her human rights could not lie in taking the course for which her counsel had contended. As we have seen, it was his perplexity as to the nature of such remedy which led him to permit this appeal. He also directed that a transcript of his judgment be sent to the local authority’s director of social services in order that he could cause his staff to become aware of the precepts commended in Re L.

The submissions of Miss Booth are to the following effect: that the conduct of the meeting on 10 August 2005 was substantially unfair to the mother and, in that it led her to react in such a way as to damage her own case, proved doubly unfair to her; that, even had a more satisfactory legal analysis been placed before him, the judge should still have reached his conclusion that the mother’s rights under Article 8 and, in particular, Article 6 had been infringed; that parents with the hardest cases needed the best protections; that, although the mother’s right under Article 6 to a fair hearing was to be balanced against the analogous right of C, including to a conclusion of the proceedings referable to her within a reasonable time, a short adjournment for the purpose of a residential assessment, whether within her own foster home or otherwise, would have caused C no significant prejudice even if it had ultimately proved negative; and that, by refusing such an adjournment, the judge compounded the infringement of the mother’s right under Article 6.

The foundation for Miss Booth’s submissions is of course the decision in Re L; and inevitably the status of the precepts commended in [154] of the judgment and of the other principles set out in other paragraphs of it has been the subject of lively discussion before us. I readily accept that there is a danger in the articulation by any court, whether by this court or by a court of first instance, of principles of good practice in that a court lacks the facility for prior consultation with the relevant practitioners which is undertaken prior, for example, to the issue of governmental guidance to practitioners pursuant to the Children Act 1989. I also acknowledge that there are traps for any judge – so I will try to avoid them in what follows – who seeks to provide guidance upon a broader front than relates to the facts of the case before him. I have no doubt that on appropriate occasions this court will want to take a close look at a few of the precepts commended in Re L at [154], particularly at what one might call their margin, and will want to consider whether the principles derived by Munby J. from the decision in Mantovanelli and set out by him in [113] are fully applicable to care proceedings or whether their full application is limited to other types of proceedings for which are compiled technical reports not intended to be open to informed challenge at the hearing. Subject to those obvious caveats I regard the decision in Re L as an admirable and characteristically rigorous contribution by Munby J. to the raising of standards of fairness, and in particular of transparency, in the conduct of care proceedings so as to satisfy the human rights of those caught up in them.

How far, however, did the local authority’s conduct of the meeting on 10 August 2005 fall short of the precepts commended in Re L and, more importantly, did they amount to an infringement of the mother’s human rights? The local authority needed to decide upon the plan to be put before the court; and they needed to communicate their decision to the mother. As Mr Hughes QC on behalf of the local authority points out, there is no obligation upon a local authority to communicate such a decision to a parent in any particular way. Some local authorities no doubt favour the easy option of communicating any adverse decision by letter to the parent’s solicitors and letting the solicitors conduct the awkward task of relaying the unpleasant news to their client. But Essex, says Mr Hughes, favours a policy that, notwithstanding the awkwardness, it is generally preferable to relay an adverse decision face to face. Hence its arrangement of the third stage of the meeting. It should be stressed that the second and third stages of the meeting were not designed to be occasions at which the local authority would receive information and argument so as to enable them to reach their decision as to what their care plan should be: for they had decided upon their care plan at some point prior thereto. The exclusion of the mother from the second stage of the meeting reflected only their view that she was then a sixteen year old girl, largely beyond parental or other control, and could not be expected to receive the adverse news calmly; nor, as I accept, was it necessary to pile upon her the extra pressure generated by a large meeting attended by all relevant professionals. Furthermore, at the third stage of the meeting, the mother was attended by her solicitor and her advocate who, although making other criticisms of the local authority’s dealings with her, never felt impelled to protest there and then about the conduct of the meeting. Indeed, to my mind, it is a singular feature of the history that it was only seven weeks later, namely at a directions hearing on 27 September 2005, that it was first stated on behalf of the mother that the conduct of the meeting had been unlawful or even inapt.

All that said, however, I consider that there were two features of the manner in which the local authority reached and communicated their care plan which fell short of proper standards of fairness and transparency in a local authority’s conduct of care proceedings:

It is, however, one thing for me, following application of (let me confess) little more than my instinct for fairness and transparency, to criticise the local authority in the above two respects; it would be quite another for me to conclude that there was any infringement by the local authority of the mother’s human rights. On the contrary I am convinced that there was no such infringement of her rights, whether under Article 6 or under Article 8. Neither of the suggested departures from good practice was sufficiently substantial to infect the fairness of the proceedings. I am clear that there was nothing which the mother could have said to the local authority prior to their reaching their decision upon the content of their care plan which could reasonably have affected it; for the chance that a residential assessment would yield a sufficiently confident conclusion about the mother’s capacity to care for C was negligible and accordingly the investment of time in that regard was, from C’s perspective, manifestly unjustified. In relation to the manner in which the decision was presented to the mother at the meeting, it was surely part of the role of the mother’s solicitor, who, as it happens, was even present at the meeting itself, to rectify any such imbalance. It was for her to stress to the mother that it was for the court, rather than for the local authority, to decide upon C’s future and thus upon the request for a residential assessment; for her to point out to her that there was nothing to indicate that Ms Scott Doe had retreated from her view that such was a second option; and for her to explain that the guardian could not be expected to formulate her recommendation until a date closer to the hearing. Again, it was open to the mother’s solicitor at or soon after the meeting to articulate questions or complaints in these respects. Had questions or complaints been put to the local authority more quickly, they would no doubt have been addressed more quickly. When, however, complaints about the local authority’s conduct were articulated, albeit not with the limited focus which I would favour, they became the subject of intensive debate in the proceedings, disproportionate to their significance.

In Re V (Care: Pre-Birth Actions) [2005] 1 FLR 627 this court considered a local authority’s appeal against an order at the conclusion of care proceedings that they should pay each parent damages in the sum of £100 for having infringed their rights under Article 6. Three older children of the mother had been made the subject of care orders and, during her fourth pregnancy, the local authority had given careful consideration to whether, following the expected birth, they should apply for a care order referable to the baby. Following the birth such proceedings were duly issued and, prior to making the award of damages, the trial judge had made a care order referable to the baby. The basis of the judge’s conclusion that the local authority had infringed the rights of the parents under Article 6 was that, prior to the birth, they should more clearly have explained their concerns to the parents and indicated the manner in which they might seek to allay them. In setting aside the award of damages, this court held that there had been no infringement of the parents’ human rights firstly because the matters which were the subject of complaint had pre-dated both the child’s birth and thus, of course, the initiation of proceedings and secondly because, upon any review of them as a whole, the proceedings could not be categorised as unfair.

In Re V Thorpe L.J. said at [4]:

“It seems to me almost self-evident that the order which [counsel for the local authority] challenges is unprincipled, but we have heard full submissions from him to enable us to deliver a judgment to discourage repetition of such an outcome in other cases. We have also heard from [counsel] for the guardian, who warns us that as a consequence in part of the case of Re L … long trials of alleged breaches of Arts 6 and 8 rights are beginning to encumber local authority applications for care orders, with consequential delay and expense that ultimately proves wasted.”

He concluded at [24] “by suggesting that trial judges should be extremely cautious in reading too much into para [154] of the judgment of Munby J.”.

In Re V Wall L.J. said at [29]:

“The mischief identified by the case … lies in the fact that the judge has isolated a sentence in the judgment of a judge of the Family Division dealing with issues of good practice, and has elevated an alleged failure by the local authority to comply with the practice identified in that sentence into a breach of the parents’ Art 6 rights …”

He added at [33] that judges who hear care proceedings

“…should be acute to identify and weed out barren arguments under the Human Rights Act 1998 and the European Convention which do not relate either to the identification of the threshold criteria under s.31 of the Act or the ultimate welfare disposal of issues in the case.”

I am sorry to say that neither counsel then appearing for the local authority nor counsel for the mother nor the solicitor then representing C drew the attention of the judge to the authority of Re V notwithstanding that seven months earlier it had been both reported in the Family Law Reports and noted in the journal “Family Law”. Nor, for that matter, has any of the advocates in this appeal brought it to our attention: it is we who have brought it to theirs. In my view the authority is directly in point and I feel driven to say that, in that regard, the specialist advocates before the judge fell short of the standards of competence which are expected of them and which, I feel sure, they usually demonstrate. I believe that, had Re V been brought to his attention, the judge would have kept a tighter rein upon the forceful attempts on behalf of the mother to divert the focus of the hearing towards the local authority’s alleged failures to observe the precepts commended in Re L; would more clearly have appreciated the distinction between non-compliance with those precepts and infringement of human rights; and would not have granted permission to appeal. It is true that the appeal gives to this court the opportunity, from the foot of a different factual situation from that in Re V, to give further guidance as to the proper management of allegations of non-compliance with the precepts commended in Re L. In particular it gives us the opportunity to stress that, although 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. No doubt it is a difficult balance for trial judges to strike; but we here will support those who deal robustly with suggestions of such minor non-compliance with the precepts commended by Munby J. as could never sensibly be translated into an infringement of human rights. It is, unfortunately, C herself who has paid the penalty for the ignorance of Re V on the part of the advocates before the judge. Although it is apparently now possible that her current short-term foster parents might adopt her, if so obviating the need for any change of home, there is no escape from the uncomfortable fact that the pendency of this appeal has for seven months delayed implementation of the care plan referable to her.

I would dismiss the appeal.

I agree.

I also agree.