G & Ors v Local Authority

Not for the first time, and I fear not for the last time, parents complain – with all too much justification – that they have been treated unfairly by a local authority seeking to remove their children.

This particular case has had a happy ending. But the facts reveal what I can only call a ‘mindset’ and a ‘culture’ so seemingly oblivious to the imperative requirements of article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and so unwittingly careless of the need to treat parents with fairness, that I cannot let the matter pass without some comment.

For the parents, of course, this case was one of the utmost gravity and significance: they were threatened with the loss of four of their children. But there was, in truth, nothing particularly difficult or out of the ordinary in this case. In many ways it was a very typical kind of care case involving a very typical local authority. This in many ways makes the ‘mindset’ and ‘culture’ to which I have referred all the more concerning. For it suggests that even some two years after the Human Rights Act 1998 came into force, and, as we shall see, despite no lack of relevant judicial authority, some very important and basic messages have still not worked their way through into day-to-day practice on the ground.

I do not wish to be too critical of the particular local authority involved in this case. The experienced children’s guardian suggested that what had happened in this case was not so very much out of the ordinary. I fear she may well be right, but whilst this indicates that it would not be right to single this particular authority out for special blame it does serve to re-emphasise the need for the message to be spelt out to the widest possible audience. Hence I am giving leave for this judgment to be reported, albeit on the usual strictly anonymous basis.

On 22 June 2000 after contested care proceedings the Circuit Judge made care orders in relation to four children in favour of a local authority which I shall refer to as Authority X. Though it was recognised that there were risks involved, the care plans which the judge approved provided for rehabilitation of the children to their mother and father. That took place in September 2000, by which time the parents were living in the area of another local authority which I shall refer to as Authority Y. Thereafter the care plans were supervised on a day to day basis by Authority Y. There were looked after children review meetings on 16 July 2002 in relation to each of the children. These were attended by the mother and by A, a senior practitioner in the social services department of Authority Y. The minutes of these meetings (which for some reason were not prepared until 16 September 2002) contain nothing to indicate that there were at that time any real areas of concern in relation to the children, let alone anything to suggest that the children might have to be removed.

On 15 August 2002 A wrote to Authority X expressing Authority Y’s concerns about the children. On 4 September 2002 a team manager at Authority Y contacted B, the relevant team manager at Authority X, to express Authority Y’s growing concerns about the children. It was agreed that there would be a meeting between A and B. On 5 September 2002 there was a discussion between B and C, the relevant service manager at Authority X, during which it was agreed that B would meet with A to ascertain further information. It was agreed between B and C that, should the concerns raised be significant, this information would be brought to a Pre Admission to Care Panel meeting so that it could be considered by senior managers within Authority X.

On 11 September 2002 there was a meeting between A and B. The information supplied by A was such as to lead Authority X to decide that it should be presented to the Pre Admission to Care Panel for its consideration.

On 12 September A visited the mother. She told the mother that she had met with Authority X and that, due to ongoing concerns, the option of the children being received into care had been discussed.

On 13 September 2002 D and E, two social workers with Authority X, became involved for the first time with the family. They visited the family the same day, according to D’s subsequent affidavit,

“to meet the family and explain the process of the Pre Admission Panel and the possible outcomes of this. It was made clear to both [father] and [mother] that a decision had not been made at that time and that only once the panel had considered the information would a decision regarding the possible re-accommodation of the [children] be made.”

On 18 September 2002 the Pre Admission to Care Panel met. The information passed on to Authority X by A was presented to “senior management”. Who those persons were I do not know. There appear to be no minutes or other written records of the meeting: certainly none have ever been produced, either to the parents or to the court. The meeting decided that the level of concern justified the children’s re-admission to care.

On 20 September 2002 D and E visited the parents to inform them of what had happened, to explain the decision of the meeting and to tell them that the local authority would now look to place the children in care, though there would be a delay whilst the local authority found appropriate placements.

On 3 October 2002 the parents’ solicitor wrote to Authority X saying that mother “is under the impression that you intend to remove the children from our clients’ care” and asking for urgent confirmation as to “whether or not these are your intentions”. Authority X’s head of legal services replied on 14 October 2002 saying that Authority X “is actively considering whether or not the [children] should be removed from your clients’ full time care”. That, I have to say, is a less than satisfactory statement, given that the decision to remove the children had in fact already been taken and, indeed, communicated to the parents. The letter went on to identify the local authority’s concerns as “including”:

“1

The appalling home conditions.

2

Your clients being evicted from their accommodation.

3

Your client’s inability to act on the advice of professionals.

4

A number of missed appointments with the Housing Department, LAC medical appointments.

5

[Father] continuing to drive without a licence/insurance which has previously led to him receiving a custodial sentence.

6

The [children’s] appalling attendance at school, which ranges from 29% to 77% …

7

The children’s sexualised behaviour.”

The letter said that a planning meeting would take place with the parents on 21 October 2002 “when plans for the children will be discussed”. In fact no such meeting ever took place.

On 29 October 2002 the parents’ solicitor wrote again to Authority X, asking for confirmation as to whether or not the children were to be removed and, if so, when. He also asked to be informed of the date of the next planning meeting. The letter referred expressly to the parents’ right to bring proceedings under either section 7 of the Human Rights Act 1998 or section 39 of the Children Act 1989. The response dated 31 October 2002 said that:

“the Department plans to remove the [children] from the full time care of your clients. No specific date has yet been fixed, as the Department is currently identifying suitable foster care placements. I will inform you of the planned date of removal of the children from your clients care when I receive that date from the Social Services Department.”

On 6 November 2002 the parents’ solicitor wrote again asking the local authority to “clarify what decision making process has led to your decision to remove the children and how far [the parents] have been involved in this.” He said that the parents were intending to apply for injunctive relief under section 7 of the 1998 Act. The reply dated 12 November 2002 read in material part as follows:

“I can confirm that your clients were informed of the level of concerns that professionals had for the care of the children. The social worker who is dealing with your clients from [Authority Y] informed your clients that should the level of concern persist, then this Authority would be informed.

I can confirm that the children’s social workers [D] and [E] have been a regular contact with your clients and have ensured that the parents have been involved in an open and honest information sharing process.

I can confirm that your clients will be invited to the planning meeting with professionals when foster placements have been identified for the [children].”

I do not know exactly what the author meant to refer to when he spoke of an “open and honest information sharing process”. The only relevant involvement of the parents in the process prior to the decision being taken in their absence at the meeting on 18 September 2002 was when they were visited by A on 12 September 2002 and by D and E on 13 September 2002.

On 15 November 2002 the parents’ solicitor responded, saying,

“we assume the meetings your Social Workers had with the clients were minuted and recorded and we would be grateful for copies of these together with copies of LAC Review minutes which took place subsequent to the children being rehabilitated to our clients’ care.”

That letter seems to have been in large measure ignored. Neither the parents nor the court have ever been supplied with any minutes or other written records of the meetings with the social workers. All that have ever been produced are copies of LAC Review minutes.

On 21 November 2002 the parents separately made applications seeking the discharge of the care orders pursuant to section 39 of the 1989 Act and orders under section 7 of the 1998 Act preventing the removal of the children from their care. On 2 December 2002 the Circuit Judge, having been referred to what the President had said in C v Bury Metropolitan Borough Council [2002] EWHC 1438 (Fam), [2002] 2 FLR 868 at para [55], transferred the application under the 1998 Act to the High Court. The parents filed affidavits sworn on 6 December 2002 and the social worker, D, an affidavit sworn on 12 December 2002. D’s statement set out the facts as I have summarised them in paragraphs [6]-[11] above.

The matter came before Singer J on 16 December 2002. The skeleton argument prepared by the parents’ solicitor set out their contention that the proposed removal of the children was unlawful because, inter alia, the decision to remove had been made by the local authority in breach of the requirement that, having regard to the circumstances of the case and the serious nature of the decisions to be taken, the parents be involved in the decision-making process to a degree sufficient to provide them with the proper protection of their interests. Not surprisingly, in that connection, reference was made to Holman J’s decision in Re M (Care: Challenging Decisions by Local Authority) [2001] 2 FLR 1300. Reliance was also placed upon the observation of Lord Nicholls of Birkenhead in In re S (Minors) (Care Order: Implementation of Care Plan) [2002] UKHL 10, [2002] 2 AC 291 at para [79] that decisions as to whether rehabilitation is still a realistic possibility “attract a high degree of judicial control”.

The local authority sought the dismissal of the parents’ application for an injunction, on the basis that, as it was put in the skeleton argument prepared by counsel who on that occasion was representing Authority X, “the application under the Human Rights Act 1998 is flawed on the basis that the parents are asking the court to interfere with the local authority’s statutory powers under the care order”. In support of this surprising submission reliance was placed on what Lord Nicholls had said in In re S at paras [23]-[28] and [42]. In the event the local authority agreed that it would not, except in a case of emergency, seek to remove the children pending the determination of the parents’ application. Singer J directed the matter to be listed for hearing before me and, amongst other directions, ordered Authority X to serve copies of the minutes of LAC reviews and planning meetings by 23 December 2002. The next day (17 December 2002) there was a planning meeting attended by both parents. On 23 December 2002 the local authority sent the parents copies of the LAC review minutes.

On 6 January 2003 the father’s solicitor wrote to Authority X’s head of legal services, referring to D’s affidavit and its mention of the decision taken at the Pre Admission to Care Panel meeting and continuing:

“Are there minutes of that meeting? and if so are you prepared to disclose them? I take it … that the parents were not invited to that meeting. Would you please confirm and if so explain why the parents were not invited. Would you please also advise why it was not possible to bring forward a LAC review to consider the decision about the children’s future placement.”

The reply on 8 January 2003 was as follows:

“Parents are not invited to the Admissions Panel. The Admissions Panel is a panel comprising of Managers within the Social Services Department of this Authority to consider, amongst other things, on whether children should come into the care system. I am not aware whether or not the Panel is minuted. Your clients were of course visited by Social Workers at their home on the 20^th September 2002 when they were told that the Local Authority would be placing their children in care therefore, it was not necessary for any LAC reviews to be brought forward.”

On 29 January 2003 the mother’s solicitor wrote, referring to that letter, and saying:

“We … would be grateful if you would clarify whether any notes were made of the meeting you speak of. If so, we would be grateful if they could be provided as soon as possible. We would also be grateful if you could provide us with a copy of the case recordings made by the Social Workers following their meeting with our client on the 20^th September 2002.”

So far as I am aware no documents of any sort were supplied to either parent’s solicitor in response to any of those requests. With the sole exception of the LAC Review minutes the local authority has neither volunteered disclosure of any of the relevant documents nor even disclosed those documents (assuming them to exist) for which, as can be seen, the parents had repeatedly been pressing.

The parents filed further witness statements on 10 February 2003. On 17 February 2003 Authority X filed care plans in relation to each of the children and on the same day D filed a further witness statement.

Those care plans provided for the continued rehabilitation of the children with their parents. The care plans were acceptable to the parents and to the guardian. When the matter came on for hearing before me on 3 March 2003 I was happy to approve them. In these circumstances the parents, having entirely achieved their fundamental objectives, had no need to pursue their applications. They sought, and obtained from me, leave to withdraw both their applications under section 39 of the 1989 Act and their applications under section 7 of the 1998 Act.

The principle of audi alterem partem, that no man or woman is to be condemned unheard, is one of the oldest rules of our administrative law. Well nigh four centuries ago it is to be found in Boswel’s Case (1606) 6 Co Rep 48b and Bagg’s Case (1615) 11 Co Rep 93b, where Seneca’s Medea (lines 199-200) is prayed in aid. It was what we would now think of as an article 8 case, for King Cleon of Corinth has ordered Medea to leave the country. She asks for permission to plead her case, only to be told by Cleon that it is always right to obey the orders of a king. She replies: Qui statuit aliquid parte inaudita altera, aequum licet statuerit, haud aequus fuit (He who decides something without hearing the other side, even if he makes a fair decision, has not himself been fair).

In R v Chancellor, Masters and Scholars of the University of Cambridge (Dr Bentley’s Case) (1723) 1 Str 557 at 567 Fortescue J founded the principle on the Biblical account (Genesis ch 3, vv 9-13) of the expulsion of Adam and Eve from the Garden of Eden: “even God himself did not pass sentence upon Adam before he was called upon to make his defence” – though as Oliver J once had occasion to observe (Midland Bank Trust Co Ltd v Green (No 3) [1979] Ch 496 at 512B) the common law has in relation to this famous incident been a trifle selective in its application of the biblical doctrine. Be that as it may, secular man at the threshold of the third millennium looks not to the sacred texts of a revealed religion but rather to article 6 and, in the present context, more particularly to article 8 of the European Convention. But the fundamental principle is the same: parents are not to be condemned unheard when the state, in the guise of a local authority, seeks to take their children away from them.

These are matters which I considered at some length in Re L (Care: Assessment: Fair Trial) [2002] EWHC 1379 (Fam), [2002] 2 FLR 730. I need not repeat what I there said. For present purposes the important point, and one which local authorities must appreciate, though too often it seems that they do not, is that article 8 affords parents who are involved in care proceedings not merely substantive protection against any inappropriate interference with their private and family life by public authorities but also significant procedural safeguards. As the Court said in McMichael v United Kingdom (1995) 20 EHRR 205 at para [87]:

“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.”

The fundamental rule was articulated by the Court as long ago as 1988 in W v United Kingdom (1988) 10 EHRR 29 at paras [63]-[64]:

“The decision-making process must therefore … be such as to secure that [the parents’] views and interests are made known to and duly taken into account by the local authority and that they are able to exercise in due time any remedies available to them … what therefore has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as “necessary” within the meaning of article 8.”

Moreover, and as I pointed out in Re L at para [105],

“article 8 imposes positive obligations of disclosure on a local authority”.

The local authority is under a duty to make full and frank disclosure of all key documents in its possession or available to it, including in particular attendance notes of meetings and conversations and minutes of case conferences, core group meetings and similar meetings. I recognise that this imposes a heavy burden on local authorities, but there are, as I pointed out in Re L at paras [140]-[151], good reasons why that should be so.

So procedural fairness is something mandated not merely by article 6 but also by article 8. To an extent – and whilst the care proceedings themselves are on foot – articles 6 and 8 march side by side. As I pointed out in Re L at paras [87] and [113],

“unfairness in the trial process may involve a violation not merely of a parent’s rights under article 6(1) but also of his or her rights under article 8 … unfairness at any stage of the litigation process may involve breaches not merely of article 8 but also of article 6”.

But in relation to the procedural requirements imposed by article 8, it is also important for local authorities to appreciate, as I said in Re L at para [88], that:

“the protection afforded … by article 8 … is not confined to unfairness in the trial process … article 8 guarantees fairness in the decision-making process at all stages of child protection.”

So article 8 requires that parents are properly involved in the decision-making process not merely before the care proceedings are launched, and during the period when the care proceedings are on foot (the issue which I was concerned with in Re L), but also – and this is what is important for present purposes – after the care proceedings have come to an end and whilst the local authority is implementing the care order (the issue which Holman J was concerned with in Re M and the President in Bury).

I make no apology for repeating here what I said in Re L at paras [149] and [151], because what has happened in the present case suggests that the full implications of article 8 are still not properly understood. Having referred at some length to the important observations of Charles J in Re R (Care: Disclosure: Nature of Proceedings) [2002] 1 FLR 755, I continued:

“Too often in public law proceedings both the level of disclosure and the extent of a parent’s involvement in the crucial phases of the out of court decision-making processes fall short not just of the well-established requirements of domestic law … but also of the standards which are now demanded by articles 6 and 8 of the Convention. The present case is in many ways an all too characteristic example of an all too frequent phenomenon. Not the least important of the many important messages which, as it seems to me, we all need to absorb from what Charles J has so clearly told us in Re R is the need for change in the prevailing culture – a culture of reluctant and all too often inadequate disclosure … The state, in the form of the local authority, assumes a heavy burden when it seeks to take a child into care. Part of that burden is the need, in the interests not merely of the parent but also of the child, for a transparent and transparently fair procedure at all stages of the process – by which I mean the process both in and out of court. If the watchword of the Family Division is indeed openness – and it is and must be – then documents must be made openly available and crucial meetings at which a family’s future is being decided must be conducted openly and with the parents, if they wish, either present or represented. Otherwise there is unacceptable scope for unfairness and injustice, not just to the parents but also to the children.”

There is one further matter to which I drew attention in Re L (see at paras [153]-[155]) and which requires emphasis. Social workers should at all times keep clear, accurate, full and balanced notes of all relevant conversations and meetings between themselves and/or with parents, other family members and others involved with the family. And where important meetings are held there should be a written agenda circulated in advance to all concerned. Clear, accurate, full and balanced minutes of the meeting (identifying in particular what information has been given to the meeting and by whom) should be taken by someone nominated for that task before the meeting begins. And, as soon as possible after the meeting, the minutes should be agreed by those present as being an accurate record of the meeting and then be immediately disclosed to all parties.

Every local authority involved in child protection is a “public authority” within the meaning of section 6 of the Human Rights Act 1998. Accordingly, section 6(1) of the 1998 Act, when read in conjunction with sections 1(1) and 6(6), makes it “unlawful” for a local authority whilst engaged in child protection to act (or fail to act) in a way which is incompatible with article 8. In accordance with section 7(1)(a), any parent who claims that a local authority has acted, or proposes to act, in a way which is made unlawful by section 6(1) can bring free-standing proceedings against the authority seeking relief under section 8 of the Act. So, as I pointed out in Re L at para [91], even if there are no care or other proceedings on foot, a parent who claims to have been the victim of unfair decision-making by a local authority has a remedy founded on breach of article 8 which can be vindicated either in proceedings for judicial review and/or by a free-standing application under the 1998 Act.

These principles quite plainly apply to the kind of situation with which I am here concerned. The leading case, as the parents correctly submitted to Singer J on 16 December 2002, is Holman J’s decision in Re M. My brother’s judgment is perfectly clear. In Re L I sought to emphasise its significance. But the present case would suggest that its true significance has still not been appreciated by local authorities and those who advise them. Let me try again.

In Re M a full care order had been made on 10 November 2000. The care plan dated 23 October 2000 which had been approved by the court contemplated rehabilitation of the child to the mother or, if that failed, and subject to assessment, to the father. At a meeting on 23 April 2001 – after the care proceedings had come to an end – the local authority decided fundamentally to change the care plan, abandoning all plans for rehabilitation with either parent and approving contingent plans for adoption. The parents were not invited to that meeting and, as Holman J found ([2001] 2 FLR 1300 at 1310F), would not have been permitted to attend if they had sought to do so. Holman J held that the local authority had acted unlawfully on 23 April 2001 because, as he put it (at 1311A):

“in the particular circumstances of this case, the decision-making process seen as a whole did not involve the parents to a degree sufficient to provide them with the requisite protection of their interests, and … it was objectively (but unwittingly) unfair.”

Quashing the local authority’s decision, he added (1311G, 1313C):

“the meeting on 23 April proved to be the decisive meeting in the decision-making process, and neither parent had any opportunity to address it, or to clarify any factual issues with the persons participating at the meeting … I have heard nothing at all to satisfy me that there was any necessity to deny each parent an opportunity to attend at, and address, this critical meeting.”

The fact that a local authority has parental responsibility for children pursuant to section 33(3)(a) of the Children Act 1989 does not entitle it to take decisions about those children without reference to, or over the heads of, the children’s parents. A local authority, even if clothed with the authority of a care order, is not entitled to make significant changes in the care plan, or to change the arrangements under which the children are living, let alone to remove the children from home if they are living with their parents, without properly involving the parents in the decision-making process and without giving the parents a proper opportunity to make their case before a decision is made. After all, the fact that the local authority also has parental responsibility does not deprive the parents of their parental responsibility.

A local authority can lawfully exercise parental responsibility for a child only in a manner consistent with the substantive and procedural requirements of article 8. There is nothing in section 33(3)(b) of the Act that entitles a local authority to act in breach of article 8. On the contrary, section 6(1) of the 1998 Act requires a local authority to exercise its powers under both section 33(3)(a) and section 33(3)(b) of the 1989 Act in a manner consistent with both the substantive and the procedural requirements of article 8.

In a case such as this, a local authority, before it can properly arrive at a decision to remove children from their parents, must tell the parents (preferably in writing) precisely what it is proposing to do. It must spell out (again in writing) the reasons why it is proposing to do so. It must spell out precisely (in writing) the factual matters it is relying on. It must give the parents a proper opportunity to answer (either orally and/or in writing as the parents wish) the allegations being made against them. And it must give the parents a proper opportunity (orally and/or in writing as they wish) to make representations as to why the local authority should not take the threatened steps. In short, the local authority must involve the parents properly in the decision-making process. In particular the parents (together with their representatives if they wish to be assisted) should normally be given the opportunity to attend at, and address, any critical meeting at which crucial decisions are to be made.

The local authority’s counsel, as I have said, sought to argue before Singer J on 16 December 2002 that the court was being asked to interfere inappropriately with the local authority’s statutory powers under the care order. Support for that submission was sought to be derived from what Lord Nicholls of Birkenhead said in In Re S. The submission, with all respect to counsel, was completely misconceived.

I accept, of course, as Lord Nicholls put it (see In re S at paras [23]-[28] and [42]), that it is a cardinal principle of the Children Act 1989 that, after a final care order has been made, the court is not empowered to intervene in the way the local authority discharges its parental responsibility under the care order and that the court retains no supervisory role monitoring the authority’s discharge of its responsibilities. But it is vital to appreciate that what Lord Nicholls was there referring to – and the only thing he was referring to – was the power of the court – the Family Division – when exercising its jurisdiction under the Children Act 1989 or in wardship.

Lord Nicholls was not disputing the power of the court – the Family Division or the Administrative Court – to intervene when exercising its powers of judicial review or when exercising its jurisdiction under the Human Rights Act 1998. He expressly acknowledged (see para [24]) that the High Court’s judicial review jurisdiction – the jurisdiction exercised by the Administrative Court – remains available. (See also in this connection what I said in Re F, F v Lambeth Borough Council [2002] 1 FLR 217 at paras [45]-[47] and [51] and in A v A Health Authority [2002] EWHC 18 (Fam/Admin), [2002] Fam 213 at paras [47]-[56].) Lord Nicholls recognised (see paras [54]-[57]) the continuing obligation of a local authority to comply with article 8 after a care order has been made and acknowledged (see paras [61]-[63], [72] and [81]) that breaches of article 8 could be remedied by an application brought under sections 7 and 8 of the 1998 Act. Indeed, he expressly approved Holman J’s decision in Re M, describing Holman J (para [46]) as “proceeding squarely within the extended jurisdiction conferred by sections 7 and 8” of the 1998 Act and as having “applied the provisions of the Human Rights Act in the manner Parliament intended, there in respect of a breach of article 8.” Moreover, and as the parents’ solicitor pointed out to Singer J on 16 December 2002, Lord Nicholls stated (at para [79]) that the decision “whether rehabilitation is still a realistic possibility” – and that was the very question raised in the present case –

“attract[s] a high degree of judicial control. It must be doubtful whether judicial review will always meet this standard, even if the review is conducted with the heightened scrutiny discussed in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532.”

Quite plainly, in my judgment, Lord Nicholls was accepting that parents who find themselves in the kind of position in which the parents in Re M and the parents in the present case found themselves have an effective remedy available to them in the Family Division under the Human Rights Act. Lord Mackay of Clashfern took precisely the same view (see para [109]).

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

I should add that my analysis of Re M and In re S accords entirely, so far as I can see, with the analysis of the President in Bury at paras [41]-[57], an analysis with the whole of which I respectfully agree. I draw attention to what the President said at para [56]:

“The approach of the court to a challenge to the procedures followed and the care plan adopted by the local authority which is being criticised has to be broader and more investigative than prior to the implementation of the Human Rights Act 1998 and the court must apply the requirements of article 8(2) of the Convention. As Holman J said in Re M at 1313 there is a heavy responsibility and wide discretion placed on the court in considering, after the event, the lawfulness of a local authority decision-making process.”

So much for the law. I return to the facts of the present case.

I can take the matter quite shortly. Two things are, in my judgment, quite apparent if one assesses the history of events as I have described them against the benchmark of the law as I have set it out.

First and foremost, the parents were simply not sufficiently involved in the relevant decision-making process as to provide them with the requisite protection of their interests. Having regard to the gravity of the matters in issue, the way in which they were treated was unfair. No doubt what happened was done unintentionally and unwittingly but it was nonetheless unfair. The parents were not given sufficient notice of the precise causes of the local authority’s concerns. They were not given any adequate opportunity to make proper representations. They were not given the opportunity to attend the decisive meeting. They were, in reality, simply presented after the event with a fait accompli. There was a breach of article 8.

The local authority contends – and in this it is supported by the guardian – that, given the state of affairs in September 2002, the decision to remove the children into care was a proportional response to the very real concerns that had emerged and was thus justifiable under article 8(2). I am quite content to accept for present purposes that this is so, but it does not meet the point. Article 8, as I have sought to emphasise, imposes both substantive and procedural requirements. The fact, if fact it be, that the circumstances are such as to justify intervention by the state, acting here in the guise of the local authority, does not absolve the state of its duty nonetheless to act fairly. It is not enough for the state to make a fair decision: the state must itself act fairly in the way in which it goes about arriving at its decision.

The other cause for concern is the local authority’s failure to disclose a number of obviously relevant documents – crucially, of course, A’s notes of her meeting with the mother on 12 September 2002, D and E’s notes of their meeting with the parents on 13 September 2002 and, most significant of all, the minutes or other records of the decisive meeting on 18 September 2003. The local authority is, as it seems to me, necessarily impaled upon one or other of the prongs of Lord Chancellor Morton’s well-known fork: either the documents exist, in which case they should have been disclosed; or they do not, in which case the authority’s record-keeping procedures are gravely deficient. Either way, the parents and the court have been seriously disadvantaged.

I referred at the outset to a certain ‘mindset’ and ‘culture’. I do not wish to be overly critical of the social worker D, who after all operates in a setting where it is for others to determine and maintain what that ‘culture’ is to be. But D’s evidence illustrates perfectly – I suspect unwittingly but for that very reason all the more revealingly – just how pervasive that mindset is. In his affidavit he tells us that “following the decision being made by … Social Services on the 18^th September the decision was shared with [the parents]”. He also tells us that the parents had been “reassured that they would be consulted regarding the process of moving the [children] in to foster care ie, which day may be more appropriate, times, venues, etc”. He adds that the local authority “feels that since the decision to remove the children from home was made that every effort has been made to keep the family informed of progress and that the family have been able to talk about the concerns leading to the decision being made.” Precisely so. The local authority takes a decision and then it “shares” it with the parents. That, I am afraid, is not good enough: what it should have been doing was to involve the parents much more centrally in, and throughout, the process which led up to the decision being taken.

Before leaving the case there are two final points I should make. The first is this. There may be occasions of emergency or extreme urgency when, for one reason or another, it is not possible for a local authority to involve parents as fully in the decision-making process as would normally be appropriate. Circumstances necessarily change cases. But I would expect such cases to be rare. Certainly the point did not arise in the present case. The letter dated 31 October 2002 demonstrates beyond contradiction that there was nothing in the circumstances of the present case remotely urgent enough as to justify any abbreviation of the procedures that article 8 would normally mandate in a case of this kind.

The other matter is this. Parents who find themselves involved in cases such as this are often themselves vulnerable, sometimes very vulnerable: they may suffer from physical or mental disabilities or be educationally, economically or socially disadvantaged. They are often ill-equipped to cope with those whom they understandably see as “them”. The parents in the present case are both somewhat limited and largely illiterate. Mother functions within the mid part of the low average range (IQ 80-89) and has a reading age of about 7 years. Father functions within the mid to upper part of the borderline range (IQ 70-79) and also has a reading age of about 7 years. The evidence suggests that they had difficulty accepting and understanding the local authority’s reasons for concern and that the local authority had difficulty in getting them to understand the legal basis on which it was intervening. The local authority, I am sure, did its best. I mention the matter only to emphasise that article 8 imposes positive obligations on a local authority to ensure that parents are properly involved in the decision-making process. Part of that obligation, as I have indicated, is the obligation to ensure that the local authority’s decision-making process is properly documented and that there is proper and timely disclosure to parents of relevant documents. But in appropriate cases – and given the parents’ limitations this is such a case – the local authority’s obligations will go further. Where for whatever reason – whether physical or mental disability, illiteracy or the fact that English is not their mother tongue – parents cannot readily understand the written word, the local authority must take whatever ameliorative steps are necessary to ensure that the parents are not for that reason prevented from playing a full and informed part in the decision-making process.

I concluded my judgment in Re L with a comment which remains apposite (see para [290]):

“Before parting with this case one final comment is, I think, in order. This is not the first case, and I doubt it will be the last, to reveal the extent to which there are still on occasions more or less serious shortcomings in the decision-making processes in public law cases, shortcomings which on occasions deny parents the openness and fairness in procedure which articles 6 and 8 guarantee them. There are painful lessons to be learned by the various professions from Holman J’s judgment in Re M, from Charles J’s judgment in Re R and, I dare to think, from my own judgment in this case.”

Those lessons still require to be learned. They must be learned. If they are not, local authorities will inevitably find themselves facing actions for damages under the Human Rights Act.