DL and Another v London Borough of Newham Secretary of State for Education (Interested Party)

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeCharles J
Judgment Date27 May 2011
Neutral Citation[2011] EWHC 1127 (Admin)
Date27 May 2011
Docket NumberCase No: CO/12757/2010

[2011] EWHC 1127 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

M R JUSTICE CHARLES

Case No: CO/12757/2010

Between:
(1) DL
(2) ML
Claimants
and
London Borough of Newham
Defendant

and

Secretary of State for Education
Interested Party

R de Mello and Gina Allwood (instructed by Bhatia Best Solicitors) for the Claimants

Hilton Harrup – Griffiths (instructed by the local authority) for the Defendant

Samantha Broadfoot (instructed by TSol) for the Interested Party

Hearing dates: 4 th, 5 th 6 th April 2011

Charles J

Overview and summary of my conclusions

1

K was placed by the Defendant with the Claimants with a view to his adoption by them. In these proceedings for judicial review the Claimants challenge:

i) the decision of the Defendant to give them a notice under s. 35(2) of the Adoption and Children Act 2002 (the 2002 Act), the effect of which was to require them to return K to the Defendant, and

ii) the decision of the Defendant not to return K to their day to day care with a view to his adoption by them.

The Claimants' ultimate aim is to adopt K.

2

The Claimants assert that:

i) either s. 35(2) of the 2002 Act is incompatible with Articles 6 and 8 of the Convention, or to avoid that incompatibility, words should be read into it, pursuant to s. 3 of the Human Rights Act 1998 (the HRA 1998) to ensure that once a child has been placed for adoption, he cannot be removed from the prospective adopters:

a) other than pursuant to an order of the court (which, if such words are read in would be the Family court exercising jurisdiction under the 2002 Act), or

b) without the prospective adopters being able to obtain from that court an order preventing such a removal,

and further or alternatively

ii) the two decisions of the Defendant breach both procedural and substantive parts of the Article 8 rights of the Claimants and K.

3

It is accepted that Article 8 is engaged and, at the heart of the arguments on incompatibility and construction based on s. 3 HRA 1998, is the Claimants' assertion that unless the issues relating to the removal of K from, and the refusal to return K to, their day to day care is determined by a court exercising jurisdiction under the 2002 Act their Article 8 rights (and those of K) will not have been determined by an independent and impartial tribunal.

4

It is common ground that the starting point for this argument exists because, in my view correctly, it is agreed that, absent the addition of words pursuant to s. 3 HRA 1998, the 2002 Act does not give jurisdiction for a challenge to, or an appeal from, the decisions of the Defendant relating to the termination of K's placement for adoption with the Claimants.

5

It follows that, any such challenge has to be based on either or both the court's jurisdiction:

i) relating to the review of the decisions of public authorities, and

ii) under ss. 6, 7 and 8 of the HRA 1998, and thus an assertion that the Defendant has breached the Claimants' Convention rights.

At the heart of the arguments, are the propositions that the determination of the relevant issues founding the decisions involve and necessitate:

a) the determination of factual disputes, and

b) the application of the welfare test set by s. 1 of the 2002 Act,

and, in exercising those jurisdictions, the court cannot resolve such factual issues, apply such a test and so provide an adequate remedy.

6

I reject those arguments, and thus the Claimants' challenge based on incompatibility and the application of s. 3 HRA 1998 for the following reasons:

i) adoption agencies (here the Defendant) in making the relevant decisions must apply s. 1 of the 2002 Act,

ii) they are public authorities, and so must also not act in breach of Convention rights,

iii) the statutory scheme, regulations and supporting guidance, have proper regard to points (i) and (ii) in both a substantive and procedural sense,

iv) the review jurisdiction can therefore provide remedies if the adoption agency fails to take that statutory test and Convention rights into account,

v) the possibility of there being a breach of Article 8 rights does not found the contention that the relevant legislation is incompatible,

vi) Article 6 relates to civil rights and obligations. The civil rights focused on in argument were the Article 8 rights of the Claimants and K. But the placement of K with the Claimants gave them parental responsibility for him and I have proceeded on the basis that the Claimants have other civil rights and that the decisions they challenge have an impact on those civil rights. This approach is analogous to that taken in Re S; Re W (see below) to the Article 8 and other civil rights of birth parents and their child,

vii) recent decisions of the House of Lords and the Supreme Court have decided that the court is the decision maker on whether or not a Convention right has been breached and, in reaching that decision, the court can if it is appropriate to do so, determine disputed issues of fact. In my judgment, this applies whether the issue of whether there has been such a breach of a Convention right arises in judicial review proceedings, in other proceedings issued in reliance on ss. 6 and 7 of the HRA 1998, or in existing private law proceedings,

viii) in my judgment, in the circumstances of this case that fact finding jurisdiction and ability has the consequence that the court can (and if appropriate) will determine the relevant disputed facts for the purposes of determining the impact of the decisions of the Defendant local authority on the Claimants' other civil rights,

ix) alternatively, in my judgment the intensity of a Daly review of such decisions is sufficient to satisfy Article 6 in respect of such other civil rights, and

x) in proceedings for judicial review and/or proceedings issued under ss. 6 and 7 HRA 1998 the court can grant interim relief to stay the operation of a s. 35(2) notice, and thus the return of a child to an adoption agency and with it the termination of the parental responsibility of a prospective adopter with whom a child is placed for adoption, and thus ensure that at a final hearing it can grant an effective remedy.

7

So, in my judgment, the Claimants' arguments on incompatibility and the need to add words to s. 35 of the 2002 Act to render it compatible with Convention rights fail.

8

It is clearly established that Article 8 confers rights (a) to a fair procedure and (b) substantive rights after (and whether or not) such a procedure has been carried out.

9

In my judgment, the Claimants have established that the Defendant:

i) acted in breach of (a) the procedural rights conferred by Article 8, and (b) the common law principle that a decision maker should act fairly, and

ii) failed to take into account a relevant factor.

10

Recent cases in the House of Lords and the Supreme Court provide authority for the view that in some cases such procedural breaches should not give rise to an order that the decision maker is to reconsider its decision if (a) the court decides that it should determine whether the relevant decision has resulted in a substantive breach of the relevant Convention rights, and (b) the court determines that it has not. But those cases do not relate to a dynamic situation and, in particular, to the placement of a child.

11

I have concluded that at this stage I should not determine whether the decisions under challenge breached the substantive rights conferred of the Claimants (and K) by Article 8, and their other civil rights, but should (a) quash those decisions and the decision to revoke the match between the Claimants and K, (b) stay the original decisions to match and place K with the Claimants, and (c) direct the Defendant to reconsider, in the present circumstances, whether pursuant to its duties and powers under the existing placement order K should be returned to live with the Claimants with a view to his adoption by them.

Background

Introduction

12

In November 2007, a care order and a placement order was made in respect of K who was born in 2006. He was then aged one. As the making of the placement order shows the care plan was for adoption. He is a mixed race child.

13

Also and coincidentally in November 2007, the Claimants who are married were approved as prospective adopters. DL (the male Claimant) is white and ML (the female Claimant) is black. They are in their forties and have been married for about 14 years.

14

In March 2009, the Defendant's Adoption Panel recommended that K be placed with the Claimants for adoption, and this was done in early April 2009 on the basis that the Defendant and the Claimants would share parental responsibility. This placement triggered the reviewing process governed by Part 6 of the Adoption Agencies Regulations 2005 (the 2005 Regulations) and statutory Guidance relating to it (and other matters) (the 2005 Guidance). This review process, together with other communications between, amongst others, the Claimants, the Defendant, the local authority for the town in which the Claimants lived (Xtown), and the police informed the Defendant of a number of matters to which I will return.

15

In the light of such matters, in August 2010, the Defendant instructed an independent social worker (Ms K) to conduct a home visit and assessment of the placement. She was instructed to address the following issues (amongst others):

" Assess and evaluate the adoptive parents' understanding of the nature of their relationship with their neighbours and the impact on K's physical and emotional well-being

Assess and evaluate K's understanding of what has been going on between his prospective adoptive parents, their neighbours and the involvement of the Police

Assess the nature and quality of attachment between K and either of his prospective adoptive...

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