Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
Mr JUSTICE CHARLES
Between :
(1) DL (2) ML | Claimants |
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London Borough of Newham | Defendant |
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Secretary of State for Education | Interested Party |
R de Mello and Gina Allwood (instructed by Bhatia Best Solicitors) for the Claimants
Alexander Verdan QC (instructed by the local authority) for the Defendant
Hearing date: 7 July2011
Judgment
Charles J :
Introduction
I heard this case over three days in April and handed down a written judgment on 27 May 2011 (my earlier judgment). That judgment sets the scene for this one and the Interested Party no longer has an interest in the live issues.
As required by my earlier judgment the local authority has reconsidered the question whether K should be returned to the Claimants, and so be placed with them with a view to his adoption by them. The decision reached by the local authority is that K should not be so returned to the Claimants (the new decision).
The timetable for making the new decision was a fairly tight one and a result of this was that a report commissioned from an experienced social worker (Ms B) was not completed until 1 July 2011 and I was told by counsel for the Claimants, and accept, was only received by him the evening before the hearing.
In my earlier judgment, I raised the point that the procedure adopted in reaching the new decision needed consideration by both sides. This was done and there is no challenge to the procedure adopted. I comment that it seems to me that that procedure was a sensible one and it gave the Claimants a proper and fair opportunity to put their case to the relevant decision maker.
As mentioned during the hearing, in my view, during that process and the hearings before me the Claimants’ solicitors and counsel have identified and advanced all the relevant points in support of the Claimants’ case, and the relief they seek, in respect of (a) the giving of the s. 35(2) notice and the new decision, and thus (b) the Claimants’ view that K’s welfare would have been best promoted if he had not been removed from their care when he was and by his return to their care with a view to his adoption by them.
The challenge to the new decision
At the beginning of the hearing on 7 July 2011, the Claimants challenged the new decision and sought an order that K should be returned, on a phased basis, to their day to day care and so re-placed with them for adoption.
After the short adjournment, and after their counsel had completed his submissions on their behalf, I was informed through counsel that the Claimants no longer sought the return of K. The reason given for this was a point made by counsel for the local authority at the start of his submissions that the report of Ms B recorded that she had been told that a report was being prepared for the Adoption Panel of AFC with a recommendation that the approval of the Claimants as adopters for AFC should be removed.
As had appeared from my discussions with counsel for the local authority before the short adjournment, I agree that this was a relevant point because the uncertainty it introduced created a further difficulty concerning a possible return of K to the Claimants. However, as I had also pointed out, it seems to me that as I do not know the bases and evidence upon which any such recommendation would be made the point that it was, or was likely, to be made had little other relevance to the challenge being made to the new decision and the relief sought, if it was successful. This is because, I would have had to make my own mind up on those issue on the evidence and by reference to the arguments advanced to me.
This change of position of the Claimants gave rise to questions concerning whether, and if so to what extent, I should comment on the abandoned challenge to the new decision, not least because such comments might have an impact on issues arising as to whether or not the Claimants should remain as a couple who are approved as adopters by AFC, or should be approved as adopters by another body. The position concerning these questions is complicated by the fact that some of the matters that were relevant to the challenge to the new decision, and the relief sought in respect of it, are also relevant to the remaining live issues in the case. I heard submissions on these questions and gave counsel for the Claimants the opportunity to put in further written submissions thereon after they had had a further opportunity to read and consider the report of Ms B. Initially, I was informed that they wished to take up that opportunity, but later, I was told that the Claimants did not wish any further written submissions to be made on their behalf.
I have concluded that I should make the following comments on the abandoned challenge of the new decision:
As I mentioned during the hearing, having heard counsel for the Claimants on this challenge, and the relief sought if it was successful, I was unpersuaded by the Claimants’ arguments.
I had reached this view on the common ground in respect of the history set out in my earlier judgment, and on the assumption that, as they allege, the Claimants were victims and not perpetrators of the acts of harassment and abuse referred to in my earlier judgment.
In short, it seemed to me clear that the short, medium and long-term welfare of K would not be promoted by taking the risks that would now be involved in returning him to the Claimants with a view to his adoption by them.
The risks to K's welfare and the problems relating to a return were added to by the prospect that the approval of the Claimants as adopters would be removed even if the Claimants were able to successfully change that decision.
But, in my view, on the assumption that no such removal of approval had been in prospect the factors against a return of K to the Claimants clearly outweigh the factors in favour of such a return.
In my view, Ms B’s report is well reasoned and supports the new decision on the assumption and approach referred to in (ii) above, and on an approach that the disputed allegations referred to in it are treated as such and/or on the basis that the Claimants allegations are correct.
The remaining live issues
These are identified in my earlier judgment, and are:
whether the decision to give the s.35(2) notice to the Claimants constituted a breach of their (and K’s) substantive rights conferred by Article 8 as well as the procedural rights conferred thereby (and by the common law), and
whether in addition to declaratory relief, the Claimants should be awarded damages under the HRA 1998.
My answers are that:
there was no separate substantive breach, and
damages should not be awarded.
Substantive breach
As this has to be assessed at the time the notice was given, there is force in the point made on behalf of the Claimants that a public authority cannot avoid a finding (and a remedy) based on an earlier substantive breach because it has (as ordered on a fairness challenge) reconsidered relevant issues and its new decision is either not challenged, or the challenge to it fails. I agree that this applies whether or not the new decision leads to the same or a different result to the earlier decision that was successfully challenged on the basis that it was not made fairly.
I also accept that:
the determination of the placement of K and the family relationships, parental responsibility and rights that go with it can found a separate and additional breach of Article 8 to one based on an unfair process leading to such a result, and
breaches of Article 8 might well be more serious, and merit different relief (including higher compensation) if it can be shown that there was both a substantive and a procedural breach and/or that if the breaches had not occurred it is more likely than not that a different long term outcome would have occurred.
But, generally a fairness challenge is not a procedural challenge in a technical sense. This was the case here and, to my mind, in the circumstances of this case if a fair process around the time that the s. 35(2) was given would have had the same result (namely the removal of K albeit at a different time) such distinction as there is or might be between:
the breach of Article 8 founded on an unfair process that I concluded in my earlier judgment was established, and
a breach founded on the consequences of that 35(2) notice on the family lives of the Claimants and K,
does not found a separate substantive breach and, even if that is wrong, would at the most be an arid and technical one that does not warrant additional relief.
This is because, if a fair process at that time would have led to the removal of K the essential breach of Article 8 relates to the circumstances, process and fairness of the termination of the placement rather than its substantive impact.
That substantive impact and interference with Article 8 rights is the removal of K from the day to day care of the Claimants and thus the termination of the family life (together with its rights and responsibilities) enjoyed by a child and the persons with whom he is placed for adoption, and of the prospect of the adoption taking place. If a fair process had taken place, I acknowledge that any resulting removal of K from the Claimants would have taken place at a different (and later) time but in my view that timing point does not, of itself, found a substantive breach. Additionally, a removal has at least the potential for triggering the termination of the approval of the Claimants as adopters, but that impact is a longer term one and to my mind the timing point is irrelevant to it.
So, the following question is relevant, namely:
If the s. 35(2) notice that was given had not been given, is it more likely than not that K would have remained with and been adopted by the Claimants or that K would have been removed from and not adopted by the Claimants?
As I have indicated, in the circumstances of this case, I consider that to be a crucial question in determining whether there was a substantive breach and, in any event, whether (and if so what) damages should be awarded.
If the s. 35(2) notice had not been given I accept and proceed on the basis that K would have remained with the Claimants for a longer period of time. The length of that period, and the method of any removal of K, is a matter of speculation because there is a possibility that, after a short further investigation and/or discussion the removal would have been effected by an EPO or a s. 35(2) notice. But, having regard to the date on which the Claimants issued their application for an adoption order, I have proceeded on the basis that any removal would have been by court order (or with court sanction) in the Claimant’s adoption application.
It follows that the test and approach I have applied in considering the question set out in paragraph 17 above are those set out in s. 1 of the Adoption and Children Act 2002.
I have assessed what would have been more likely than not to have happened, and what should in my view have happened on that basis. Also, this has to be assessed by reference to a removal of K from the Claimants, as opposed to his return to them, and so on the basis:
that the likely impact on K of, and his likely reactions to, his removal from the Claimants have to be approached as matters of judgment and speculation rather than on the basis of the evidence of what did happen This distinguishes this exercise from that involved in respect of the new decision because there that evidence is relevant, and
that the additional issues and problems relating to the impact of a change or changes in placement on K’s stability and welfare as a result of a return to the Claimants (following the period away from them as a result of a removal based on a process that was unfair) are irrelevant.
In particular, it was strongly urged on behalf of the Claimants, and I accept, that by the time the s. 35(2) notice was given:
the Claimants had moved from Xtown,
there were a number of positive reports during the time that K was with them in Xtown,
there were positive reports after the move to Ytown,
K was a physically healthy and cared for child and this was confirmed by his medical examination after his removal, and
in reaching and defending the new decision the local authority have not sought to rely on the allegations that were the trigger to, although not mentioned in, the s. 35(2) notice (i.e. the allegations of domestic violence between the Claimants and chastisement of K based on what Ms K reported K had said to her).
It was submitted, and I accept, that all these point favour a conclusion that K’s welfare would and should have been best promoted by him remaining with and being adopted by the Claimants.
I also accept and acknowledge that the assessment of the merits of any decision to remove K at the time that the s. 35(2) notice was served (or thereafter) is less clear cut than those relating to his return now. This is because the consequences of the removal include the creation of additional problems in re-establishing appropriate relationships between the Claimants and (a) most importantly K, but also (b) social workers and others who would have to provide support and assistance to them.
But, I have concluded that the balance of the relevant factors falls firmly in favour of the conclusion that if the s. 35(2) notice that was given had not been given it is more likely than not that K would have been removed from and not adopted by the Claimants. Indeed, in my judgment this is what should have happened.
As was inevitably accepted by counsel for the Claimants, if K had been removed from their care before the move to Ytown it is difficult to see how that decision could have been effectively challenged as not being in K’s best interests. This is because it would have removed him from the difficult and damaging situation he and the Claimants were living in Xtown (whatever the causes for it were). As to that, there is clearly force in the proposition that K should not have been placed into, and/or should have been removed much earlier from, the living conditions to which he was subjected in Xtown.
By the time the s. 35(2) was served the local authority had decided to oppose the adoption but the situation was a dynamic one that, as it happened, fell to be considered, and now has to be considered, after the move to Ytown. Also, on the basis I am considering it, that dynamic situation would have been considered by the court in the light of further assessments and arguments in the changed and developing circumstances that existed in the Claimants’ adoption proceedings. Naturally, the history of the case would also have been relevant.
On my assumption and approach, within those adoption proceedings additional information along the lines of the reports and analyses carried out in respect of the new decision would have taken place. In my view, it follows that the approach and stance of the Claimants to those further investigations can be taken into account in determining what would and should have happened.
In my view, the matters set out in paragraphs 28 and 29 hereof are central and determinative factors founding the conclusion that if a fair process had been taken at the time the s. 35(2) notice was served and it had resulted in the issue whether K should be removed from or adopted by the Claimants being decided in their application for an adoption order K would and should have been removed.
It is, and in 2010 was, clear that K is a child who has a number of problems, difficulties and complex needs whose welfare throughout his childhood will be promoted by a calm, tolerant and child centred family setting and active and co-operative assistance from a range of persons outside the family. Effective promotion of K’s welfare through such a family life outside help will require parenting that recognises his problems and prioritises his needs.
The following factors:
the fact that the move from Xtown was the result of DL’s bail conditions and not a recognition of the harm and risk of further harm being suffered by K by reason of the hostility and anti-social behaviour he was subjected to in Xtown,
the lack of any or any proper recognition by the Claimants of that harm and risk of harm whilst they were living in Xtown and thereafter and by that and/or otherwise a recognition and demonstration by them that K’s welfare (and in particular his emotional welfare and stability) should be given priority over their own wishes, feelings and battle with neighbours and the authorities in respect of their assertion that they were being discriminated against, and
whatever the rights and wrongs of the background issues:
the high level of mistrust and confrontation that existed between the Claimants and a wide range of representatives of public bodies,
the history of a wide range of disputes between the Claimants and others, and
the number of matters which raise doubts as to the accuracy of assertions made by the Claimants
found the view that there is a high risk (if not an inevitability) that similar results would re-occur in other environments, together with the instability and problems they bring to the Claimants’ household, and their lack of any or any proper recognition of them.
The matters set out in paragraph 29 above found the conclusion that there is a high risk, if not an inevitability, that the Claimants will not be able to provide the care at home and the constructive and co-operative work with others referred to in paragraph 28 above which are needed to provide the best chance of K developing into a secure and balanced adult.
The nature and extent of the matters referred to in paragraph 29 above have the result that in my view there is no need for the court, or any other decision maker, to make findings or reach conclusions, on the disputed elements of the relevant background on which they are based, to found the conclusion set out in paragraph 30 above and thus before making a decision on, or a recommendation to a court as to, whether K should be adopted by the Claimants or be removed from their care.
Rather, in my view, on the basis of their undisputed product concerning the stance of the Claimants and their relationships with others, the relevant risks are established and can be taken into account without deciding the underlying disputes. In other words, the risks identified in paragraph 30 are founded on that effectively undisputed product and not on conclusions as to the underlying disputes that have led to it. Indeed, in the circumstances of this case, I have concluded that even on the basis that the Claimants’ assertions on the underlying disputes are correct, the product of them still founds the conclusion that K would and should have been removed from their care.
However, I should record that it was inevitably and properly accepted by counsel for the Claimants that:
the follow up referred to in paragraph 52 in my earlier judgment, concerning the assertion that DL obtained £15,000 damages and paid it to charity, indicates that that assertion of the Claimants was inaccurate, and
the Claimants’ account to Ms B that they were seeing and were in regular contact with a friend (D), who could and would give them support, was inaccurate.
Both of these assertions were self serving and investigation has shown them to be misleading. Their nature means that it is difficult to see how they could have been advanced by the Claimants on the basis of a mistaken belief that they were true.