London Borough of Hackney v John Williams and Another
| Jurisdiction | England & Wales |
| Judge | Sir Brian Leveson P,Lord Justice McFarlane,Lord Justice Burnett |
| Judgment Date | 26 January 2017 |
| Neutral Citation | [2017] EWCA Civ 26 |
| Docket Number | Case No: A2/2015/3251 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 January 2017 |
[2017] EWCA Civ 26
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Sir Robert Francis Q.C. sitting as a deputy High Court Judge
HQ13X03397
Royal Courts of Justice
Strand, London, WC2A 2LL
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
( Sir Brian Leveson)
Lord Justice McFarlane
Lord Justice Burnett
Case No: A2/2015/3251
Ali Reza Sinai (instructed by Dawn Carter-McDonald, Legal and Democratic Services, London Borough of Hackney) for the Appellant
Christine Cooper and Eirwen Pierrot (instructed by Sky Solicitors, Ilford) for the Respondents
Hearing date: 23 November 2016
Judgment Approved
Between 5 July and 6 September 2007, the London Borough of Hackney ("Hackney") took the eight children of Mr John Williams and his wife, Mrs Adenike Williams, and, by keeping them in foster care, looked after them. Using different means of complaint, in the 9 years that have followed, the Williams have pursued Hackney though its complaint procedures, the Local Government Ombudsman (which itself involved an application for judicial review) and, thereafter, by means of civil litigation claiming misfeasance in public office, race discrimination, negligence and breach of duty owed pursuant to s. 6 of the Human Rights Act 1998 ("the 1998 Act") and Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("ECHR"). After a trial lasting some 6 days before Sir Robert Francis Q.C., sitting as a deputy judge of the High Court, he dismissed the actions for misfeasance, discrimination and negligence but found that Hackney had failed to comply with its statutory duty under the Children Act 1989 ("the 1989 Act") and were liable to pay damages for breach of Article 8 of the ECHR. Hackney now appeal to this court.
Before embarking on an account of the facts or the issues, it is worth introducing the issues in the case by echoing an observation made by Sir Robert in these terms:
"If ever there was a case illustrating the challenges that face children, parents, public authorities, and the courts when concerns are raised about safety and welfare of children, it is this."
The Facts
Mr and Mrs Williams were married and lived in a modest three-bedroom flat with their eight children, aged 14, 12, 11, 9, 7, 5, 2 years and 8 months old: their identities are protected by order of the court. On 5 July 2007, one of the older children was arrested on suspicion of shoplifting chocolate bars. The child told the security guard that he needed money for food; when seen by the police, he said that he had been beaten by his father with a belt, and that this was the explanation for a bruise on his face. Not surprisingly, the police interviewed Mr Williams about what they had been told. At the same time, as the relevant social services department, Hackney, was informed and a social worker attended the police station.
As a result of what they had learned, the police visited the Williams' home. The flat was in a poor, unhygienic state, with accumulations of dirt, an absence of food in the fridge, and an extremely dirty toilet; the children appeared dirty and unkempt. Sticks or twigs were found bound together which, at the least, suggested that they may have been used for the purposes of (or to threaten) corporal punishment. In the light of the Sir Robert's findings (not challenged in this court although the subject of contest at trial), it is unnecessary to outline the full extent of what the police and Hackney saw (reflected in photographs taken at or around that time) although it is important to underline the finding that the condition of the flat had not arisen suddenly or only as a consequence of recent difficulties. There is now no suggestion that urgent and immediate action was not merited and, indeed, required.
When interviewed, Mr Williams disputed the allegation of violence initially made to the police. He admitted that he did smack his children, but, in the case of three of them, on a few occasions only. He said that he never smacked or used a belt to hit the face of the child who had complained that he had done so; further, responding to a later allegation made by the same child to doctors, Mr Williams said he "did not recollect" punching this child in the face. In relation to a row that had previously occurred, Mr Williams said that he could not remember if the child had any resulting injuries. In a later interview, Mr Williams made no comment, but Mrs Williams stated that there was food for the children in the freezer.
In the light of what they had seen, the police decided that the home was not in a fit state to be accommodation for the children, and as a result, they took all eight children into police protection under s. 46 of the 1989 Act. As to the initial complaint, Sir Robert heard the evidence of another child (now adult) who agreed that Mr Williams had hit his children. He concluded:
"17. … There was, however, evidence before me that he did hit his children in the course of disciplining them. One of the adult children who gave evidence before me agreed that this was so …
18. I am satisfied on the evidence before me that Mr Williams did administer what he believed to be justifiable discipline to his children, which included on occasion the use of a belt. It is distinctly possible that a belt was used on or shortly before 5 July, although the circumstances and the extent to which it was used cannot now be reliably established …"
Sir Robert also expressed himself satisfied that the children presented as possibly neglected, and that the home (described by a social worker as "extremely dirty and unhygienic") was not a suitable environment in which to accommodate children of any age and clearly in an unsuitable state to do so, even if an adult to care for them had been identified. Although the children had a 100% attendance and punctuality record at school, Sir Robert went on that this could not outweigh the strength of the evidence of the actual observations which he considered to have been substantially accurately described by the social worker. He concluded:
"Further, it was clearly reasonable for her and her colleagues to believe that such a state of affairs could not have come about during a few days or even weeks previously."
Thus, the action of the police pursuant to s. 46 of the 1989 Act (which expired after 72 hours) was not and is not criticised. Neither was the fact that both Mr and Mrs Williams were granted bail to return to the police station at a later date, after further inquiries had been undertaken. It is common ground that it was a condition of bail for each parent that no unsupervised contact was permitted with any of the eight children (explained in the order "to prevent interference with victims"). No doubt because of their distressed state at the time, in each case, the bail form was unsigned but marked "incapable" (consistent, Sir Robert concluded, with their evidence that they were in a "dazed state" when they left the police station).
Hackney then took all eight children into foster care and Sir Robert found that it was justified in considering that the allegations were evidence of a risk to the safety of the children which social services could not ignore in determining whether to exercise their statutory powers. He went on to say that, throughout the period with which he was concerned, there were no realistic alternatives available and that Hackney had "probably take[n] sufficient steps on 5 July 2007 to satisfy themselves of that position at the time". Over the next three days (before the 72 hour period of police protection expired), Hackney had to decide whether to commence proceedings for an emergency protection order or interim care order (under ss. 44 and 38 of the 1989 Act respectively) or whether to try to work with the parents to resolve the problems that had clearly arisen informally and without bringing statutory powers into play. They decided on the latter course, doubtless because it was less intrusive and more likely to bring about an early resolution of the issues which had generated concern.
The next morning, on 6 July, Mr and Mrs Williams went to Hackney and met the involved social workers. Following discussion (the nature and extent of which was itself subject to considerable evidence and challenge), on the face of it, the parents agreed to work with Hackney and signed a form of "safeguarding agreement" which purported to authorise Hackney to continue to accommodate the children away from their parents. The relevant provisions of the document are as follows:
"This document was drawn up on Friday 6 th of July 2007 and is a Safeguarding Agreement concerning the child mentioned above.
This Safeguarding Agreement was drawn up in relation to all of the children. Although the agreement is not legally binding, it may have significance, should there be any court procedures in the future.
We, Mr & Mrs Williams parents to all the above children, agree to the following:
1. That all the children will remain in their foster placements for the present time.
2. When contact takes place you will encourage the children to return to their placements and ensure [sic] them that this is a safe place.
3. That we will behave appropriately while contact is taking place, ie assure the children that we love and care for them, show them affection.
4. That we will not discuss with any of the children what has happened.
5. To continue to comply with Hackney Children's Social Care."
In addition to this "agreement", Mr and Mrs Williams signed forms for each of their eight children containing consent for medical treatment, should that be required.
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