Mr John Williams and Another v London Borough of Hackney
| Jurisdiction | England & Wales |
| Judgment Date | 17 September 2015 |
| Neutral Citation | [2015] EWHC 2629 (QB) |
| Docket Number | Case No: HQ13X03397 |
| Court | Queen's Bench Division |
| Date | 17 September 2015 |
[2015] EWHC 2629 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Robert Francis QC sitting as a Deputy High Court Judge
Case No: HQ13X03397
Christine Cooper (instructed by Dotcom Solicitors) for the Claimant
Ali Reza Sinai (instructed by Dawn Carter-McDonald, Legal and Democratic Services, London Borough of Hackney) for the Defendants
Hearing dates: 7, 8, 9, 10, 13 July 2015
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The identity of the children referred to
At the beginning of the trial an application was made for an order that the names of the children not be reported and that all reference to them in reports of these proceedings should be anonymised. CPR 39.2 provides a general rule that hearings should be in public but that the court may order that the identity of any party or witness must not be disclosed if it is in the interests of that party or witness. There is a strong presumption that justice should be done publicly and that there should be freedom to report court proceedings. The reasons for this are well known and need not be rehearsed here. However the court is obliged to have regard to the legitimate rights of children and in particular the right to respect of their family life under Article 8 of the ECHR. In this case it was submitted by Ms Cooper for the claimants, with no opposition from Mr Sinai for the defendants, that the issues in the case involved reference to sensitive matters from their early childhood life and that public association of their identities with these matters would not only be embarrassing but could risk causing damage to them. I agree, and would add that they are not parties to these proceedings, and that the legitimate public interest in the case does not extend to knowledge of the children's identities. The disclosure of their identities would be counter to the protective purpose of the legislation under which the defendant purported to take the various actions which I have to consider in this case. Accordingly, I made an order that the names of the children referred to in these proceedings shall be kept private and not disclosed. Subject to any submissions the parties may wish to make I am now minded for the same reasons to continue the order indefinitely and further to order that no part of any witness statement or other document which might otherwise be open for inspection which discloses the names of the children will be open for that inspection [CPR 32.13].
In this judgment where it is necessary to refer to the children, I have done so without disclosing their names.
Introduction
If ever there was a case illustrating the challenges that face children, parents, public authorities, and the courts when concerns are raised about the safety and welfare of children it is this. A relatively trivial incident on 5 July 2007, followed by an allegation made by a young child in potential trouble, led to the exposure of issues about the upbringing of a large family in respect of whom there had been no previous concerns. Eight children, including a young baby, were removed from their parents' care and distributed to foster homes. A swift consideration of the welfare issues concluded that if some simple improvements were made to their home, the children could return home. Yet it was some 2 months before the children returned to their parents, after experiencing a variety of foster placements, some of which were of dubious quality. A criminal investigation led to a 20-count indictment against the parents, but in the end, 2 years later, no evidence was offered and the parents were acquitted. The parents' complaints about the handling of their case by the defendants were considered in a complaints process over a period of nearly six years culminating in a final decision of the Local Government Ombudsman, issued on 22 April 2013. In spite of their complaints being upheld in part, and the exoneration of their character in the Crown Court, the claimants believe their grievances have not been properly addressed and therefore bring these proceedings, ending in this trial, eight years after this unfortunate incident started. Fortunately it is not my task to adjudicate on more than a small fraction of what has occurred, but the overall picture is not a happy one.
The claimants bring this claim against the London Borough of Hackney ["Hackney"] in their own right, and not on behalf of any of their children. They accept that the authorities acted lawfully in the initial action of taking their children into foster care under the authority of what has been described as police protection order. However, they claim damages for what they say were the unlawful actions of the defendant authority and its officers in keeping the children of the claimants in authority controlled foster care after the expiry of the effect of the police order. The causes of action alleged are misfeasance in public office, breach of statutory duty, negligence, religious discrimination and breach of the parents' Article 8 human rights. The defendant denies liability in any of these causes of action.
Summary of what happened
The claimants, John and Adenike Williams, have been married for 24 years. They have 8 children whose ages at the time of the matters about which they complain ranged from 8 months to 14 years. All the children lived at home, and no concerns were raised about the manner in which their parents were caring for them until one of them was arrested on suspicion of shoplifting on 5 th July 2007. This child was said to have told the police that he had been beaten by his father with a belt, as an explanation for a bruise on his face. The police visited the family home and were of the opinion that it was not in a fit state to be accommodation for the children. They alerted the defendant to their concerns. The police also initiated a Police Protection Order under section 46 of the Children Act 1989, and the defendants made emergency arrangements to accommodate them in foster homes. The police order authorised these arrangements for 72 hours. On 6 th July, in circumstances I will have to examine in some detail, the parents signed a form of agreement which the defendants assert authorised them to continue to accommodate the children away from their parents, an assertion the claimants dispute. The children did not in fact return to live with their parents until 11 th September 2007. It is right to record at the outset of this judgment, that, although the claimants were eventually charged with various offences relating to their treatment of the children, following strong observations made by a Crown Court judge, no evidence was offered, and a not guilty verdict was entered on all the charges.
The application to strike out the claims in negligence and discrimination
By a notice dated 16 June 2014 Hackney applied for an order striking out the claims in negligence and discrimination. On the same date Master Yoxall ordered that the application be considered on the first day of the trial. In relation to the negligence claim the ground for the application was that as a matter of law no duty of care is owed by a local authority to parents when exercising its statutory function to protect children. In relation to the discrimination claim the ground was that the claim was insufficiently particularised.
CPR 3.4 (2) provides in so far as relevant:
The court may strike out a statement if case if it appears to the court
(a) that the statement of case discloses no reasonable grounds for bringing … the claim.
Practice Direction PD 3A.1.4 offers examples of cases where the court might conclude that particulars of claim fall within the rule:
(1) those which set out no facts indicating what the claims are about…
(2) those which are incoherent and make no sense
(3) those which contain a coherent set of facts but those facts even if true, do not disclose any legally recognisable claim against the defendant.
Paragraph 1.7 states
A party may believe that he can show without a trial that an opponent's case has no real prospect of success on the facts, or that the case is bound to succeed or fail, as the case may be, because of a point of law (including the construction of a document), In such a case the party concerned may make an application under rule 3.4 or Part 24 (or both) as he thinks appropriate
Paragraph 5 draws attention to Part 23 and PD23A requiring all applications to be made as soon as possible and before allocation if possible. It also suggests that applicants consider whether facts need to be proved and if so whether evidence in support should be filed and served.
Reference to the note in Civil Procedure para 3.4.2 shows that it has been held to be permissible to strike out on the ground in CPR3.4(2) where the case is "unwinnable", where continuance would bring no possible benefit to the relevant party: Harris v Bolt Burdon [2000] LTL February 2 2002, or as a matter of law Price Meats Ltd v Barclays Bank Plc [2002] 2 All ER (Comm) 346 ChD. However it is not appropriate to strike a case out in an area of developing jurisprudence in the law: Farah v British Airways The Times January 26 2000; Barrett v Enfield BC [1980] 3 WLR 83 HL. An application to strike out should not be granted unless the court is certain that the claim is bound to fail: Hughes v Colin Richards & Co [2004] EWCA Civ 266.
At the outset of the hearing I decided to defer argument and a decision on this application to the end of the evidence. I did so for two reasons. Firstly, the statement of case...
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