ABC v Derbyshire County Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Hill |
| Judgment Date | 28 April 2023 |
| Neutral Citation | [2023] EWHC 986 (KB) |
| Docket Number | Case No: G90MA144 |
| Court | King's Bench Division |
[2023] EWHC 986 (KB)
Mrs Justice Hill
Case No: G90MA144
IN THE HIGH COURT OF JUSTICE
MANCHESTER DISTRICT REGISTRY
Manchester Civil Justice Centre
1 Bridge Street West
Manchester
M60 9DJ
Marc Willems KC, Peter Edwards and Patrick Gilmore (instructed by R. James Hutcheon Solicitors) for the Claimants
Steven Ford KC and Rose Harvey-Sullivan (instructed by Browne Jacobson LLP) for Derbyshire County Council
Dijen Basu KC and Matthew Holdcroft (instructed by East Midlands Police Legal Services) for the Chief Constable of the Derbyshire Constabulary
Hearing dates: 31 January, 1, 2, 3, 6, 7, 8 and 9 February 2023
Oral closing submissions: 3 March 2023
Further written submissions: 8, 15 and 21 March 2023
Approved Judgment
This judgment was handed down remotely at 14:00 on 28 April 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
The First and Second Claimants are the parents of the Third and Fourth Claimants. The First Defendant (“D1”) and Second Defendant (“D2”) are, respectively, the local authority and Chief Constable responsible for the area in which the Claimants live.
All four Claimants bring claims against the Defendants under the Human Rights Act 1998 (“ HRA”) for breaches of their rights under the European Convention on Human Rights (“ECHR”), Article 8. GHI and JKL also bring claims against both Defendants for negligence and ABC and DEF bring claims against D2 for false imprisonment and a breach of their rights under the EHCR, Article 5.
The claims arise out of events which took place in 2017. There was a concern about possible Fabricated or Induced Illness (“FII”) in both children. This is a rare form of child abuse, which can include the fabrication of signs and symptoms, the falsification of medical records, samples and correspondence and the induction of illness by a variety of means.
The Defendants decided that it was not appropriate to discuss the concerns with ABC and DEF and work with them under child protection procedures, but instead to seek removal of the children from their parents' care. This occurred on 24 May 2017 when D2's officers removed GHI and JKL into police protection, using the emergency police power under the Children Act 1989 (“the CA 1989”), s.46. Earlier in the day ABC and DEF had been arrested on suspicion of child cruelty offences. On 26 May 2017 at D1's application, the Family Court made an Interim Care Order (“ICO”) removing of the children. This was renewed on several occasions until June 2018 when the care proceedings were withdrawn. D2 took no further against ABC and DEF in respect of criminal proceedings.
Both liability and quantum elements of the claims were listed to be heard over 10 days commencing on 30 January 2023. On 8 February 2023, for the reasons given in an ex tempore judgment on that day, I ordered a split trial. Accordingly, the hearing proceeded to deal with liability issues only. I heard from sixteen witnesses of fact and two experts. Several other statements were read. The trial bundles, containing a large number of contemporaneous documents, ran to almost 6,000 pages, following which extensive written and oral closing submissions were made. I requested further written submissions on particular issues which were promptly provided. During this process Mr Willems KC indicated that it was not necessary for me to determine any issues related a further pleaded claim of a breach of Article 6, as this added nothing substantive to the Article 8 claims. I was greatly assisted by all the representatives in what is a factually and legally complex and sensitive case.
It is not possible in this judgment to refer to all the evidence and all the arguments advanced. I have given careful consideration to all the material placed before me, but only refer herein to that which is necessary to resolve the key issues. I have reminded myself throughout that, save as otherwise specified, the Claimants bear the burden of proof.
The Claimants were granted anonymity in the proceedings given the age of the Third and Fourth Claimants and the sensitive and intensely personal nature of the subject-matter. I have withheld from this judgment biographical details that would unnecessarily increase the risk of them otherwise being identified by jigsaw identification. As this case involves detailed consideration of issues that have been considered in the Family Court, I have followed the Practice Guidance issued by the President of the Family Division in December 2018 on the avoidance of the identification of children in judgments. The parties assisted in this task.
This judgment is structured as follows:
Section 2 : The evidence and issues in overview;
Section 3 : The factual background;
Section 4 : The legal framework and relevant guidance;
Section 5 : The expert evidence;
Section 6 : The negligence claims against D1;
Section 7 : Limitation on the HRA claims;
Section 8 : The Article 8 claims against D1 and D2;
Section 9 : The negligence claims against D2;
Section 10 : The false imprisonment and Article 5 claims against D2;
Section 11 : The Children Act 2004, s.11 and Article 3; and
Section 12 : Conclusion.
The evidence and issues in overview
ABC and DEF gave evidence in person at the trial and were extensively cross-examined. GHI and JKL gave evidence before the trial, by way of pre-recorded questioning with a court intermediary, in accordance with agreed ground rules. Both ABC's sisters, her brother-in-law, her mother and her father gave evidence. Witness statements from three family friends were read as (largely) agreed evidence. Initially, the Claimants relied on expert social work evidence from Shaun Barratt. However, for the reasons explained in section 5.1 below, when serving the closing submissions on behalf of the Claimants, Mr Willems indicated that he no longer did so.
D1's principal witness was Cheryl Hayward, the Team Manager in the relevant child protection team in May 2017. She was cross-examined at length as to how the professionals from different agencies had approached the task of deciding how best to respond to the safeguarding concerns raised about GHI and JKL. D1 also called evidence from Louis Hughes, the relevant Head of Service and Lucy Shirtcliffe, the social worker who had been allocated to the Claimant family from 15 August 2017 to September 2018. The social worker allocated to the family prior to 15 August 2017, Hannah Scott, was unwilling to give evidence at the trial. The Claimants contested an application to rely on her evidence as hearsay, which was ultimately withdrawn. Instead D1 relied on the evidence she had provided during the Family Court proceedings. D1 also relied on expert social work evidence from Felicity Schofield.
D2's main witness was Detective Superintendent (“DSI”) Kerry Pope who, while a Detective Sergeant (“DS”), had attended the strategy meetings with D1's social workers. She provided a detailed account of the factors leading to the decisions to arrest ABC and DEF and to invoke the police powers under s.46. D2 also called former DC Jane Meadows (who arrested ABC), former DC Julie De Nardo (who arrested DEF) and PS Matthew Ansell (the custody officer who authorised the detention of ABC and DEF).
The Claimants concede that concerns about FII had been raised which required D1 to take some action and provided D2's officers with reasonable suspicion that criminal offences had been committed. However, the key complaints underpinning their claims are that (i) ABC and DEF should have been notified of the concerns; (ii) the evidence available on 24 May 2017 did not justify D2's use of the draconian power under s.46 or D1's application for an ICO, as there was no immediate risk to the children and would not have been even if ABC and DEF had been informed of the concerns; (iii) there were alternatives to removal of the children from the parents' care available which were not explored, including placement with other family members; (iv) D1 failed to disclose key documents during the Family Court proceedings until 11 October 2017; and (v) it was not necessary to arrest or detain ABC and DEF. The Claimants claim they have all suffered personal injuries, loss and damage as a result.
The Defendants agree that there was no imminent risk to the children prior to the parents becoming aware of the professionals' concerns. However, their case, based on the relevant guidance, is that (i) once that occurred, the risk to the children would increase; (ii) this justified the decision not to engage with ABC and DEF; (iii) it was necessary to arrest the parents; and (iv) D2's use of s.46 and D1's application for an ICO with removal were justified. D2 also argued that the Children Act 2004 (“the CA 2004”), s.11 and the ECHR, Article 3 necessitated the officers' actions. Both Defendants rely on the principle derived from R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2012] 2 AC 245, arguing that notwithstanding the use of s.46, the children would have been removed from their parents' care by the Family Court in any event.
The factual background
The safeguarding referral, 3 March 2017
GHI and JKL were born in 2006 and 2011 respectively. They lived with ABC and DEF in the family home, with ABC's two sisters and their families living nearby. They were a close family and regularly shared the school runs, social events and holidays with each other and the wider family.
Both children were regularly seen by medical professionals within the NHS and...
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Edwin Afriyie v The Commissioner of Police for the City of London
...4The legal framework 6 The relevant legal principles were recently set out in ABC & Ors v Derbyshire County Council & Anor [2023] EWHC 986 (KB) at [22]–[36], to which I 7 The key principles for the purposes of this case are as follows. 8 CPR r 44.16(2)(b) makes provision for “mixed claims”......