Re C (Care Proceedings: Disclosure of Local Authority's Decision-Making Process)

JurisdictionEngland & Wales
Judgment Date2002
Date2002
Year2002
CourtFamily Division

Care proceedings – Care plan – Local authority care plan recommending adoption of child – Decision making process carried out in mother’s absence – Mother seeking declaration for assessment in residential home – Whether local authority in breach of good practice – Whether mother denied fair opportunity to present case – Whether adoption in child’s best interests – Children Act 1989, s 38 – Human Rights Act 1998, Sch 1, Pt I, arts 6, 8.

Human rights – Fair trial – Privacy – Family life – Local authority decision-making process carried out in mother’s absence – Whether mother denied right to fair trial – Whether mother and child denied right to family life – Human Rights Act 1998, Sch 1, Pt I, arts 6, 8.

The mother’s first child, M, was born in June 1997 and died in November 1997. In April 2001, the mother gave birth to a boy, L. The father never married the mother and he took no part in the present proceedings. Due to the circumstances in which M had died, the applicant local authority decided that L should be placed on the child protection register at birth. Care proceedings were started shortly after L’s birth. As a result of an interim care order, L was placed with foster parents. The authority’s care plan had been for the mother to undertake a residential placement with a view to a possible rehabilitation of L to her care. At a threshold hearing in November 2001, the mother submitted to a consent order which was made on the basis that she had caused M’s death. A number of professional meetings had taken place, which had been attended, inter alia, by a consultant child and family psychiatrist, who had been jointly instructed by the parties, the authority’s social worker and L’s guardian. The mother had not been present at those meetings nor had she been represented. Following a three day assessment of the mother and unfavourable reports from the consultant psychiatrist, which stated that the mother had failed to acknowledge responsibility for M’s death, the authority’s care plan was terminated. The psychiatrist had expressed grave reservations about pursuing the initial plan for rehabilitation. An assessment of L’s grandmother and her partner recommended against a placement with them. The authority’s amended care plan dated 7 May 2002 was accordingly for adoption. The guardian essentially endorsed the care plan but only on the basis, inter alia, that L’s present foster carers would be considered as potential adopters. The mother opposed the authority’s plan. She

complained of wholesale breaches of good practice by the authority which she claimed had denied her any adequate involvement in the decision-making process and any proper or fair opportunity to present her case in court. In particular she complained that she had never been told of the necessary pre-condition for reunification with L, namely a greater acknowledgement of her responsibility for having harmed M. In support of her complaint, the mother sought to rely on her rights to a fair hearing and to family life under arts 6 and 8 respectively of the European Convention on Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998). She sought a direction under s 38(6) of the Children Act 1989 for an assessment of her ability to care for and protect L as had previously been the plan envisaged by the parties.

Held – (1) The right to a fair trial guaranteed by art 6 of the Convention was not confined to the ‘purely judicial’ part of the proceedings. Unfairness at any stage of the litigation process might involve breaches not merely of art 8, but also of art 6. Whereas rights under art 8 were inherently qualified and could be, and often had to be, balanced against other rights, including other rights under art 8, a parent’s right to a fair trial under art 6 was absolute. It could not be qualified by reference to, or balanced against, the child’s or anyone else’s rights under art 8. The right to a fair trial under art 6 could not be compromised or watered down by reference to art 8. Where a jointly instructed or other sole expert’s report, though not binding on the court, was likely to have a preponderant influence on the assessment of fact by the court there might be a breach of art 6 if a litigant was denied the opportunity, before the expert report was produced to (a) examine and comment on the documents being considered by the expert, and (b) cross-examine witnesses interviewed by the expert and on whose evidence the report was based. It could not be proper for a single jointly instructed expert to have a conference with the applicant in the absence of the respondent. Fairness was something that had to be assessed, whether for the purposes of art 6(1) or art 8, having regard to the particular circumstances of the case.

(2) In the instant case, assessing matters as they stood before the final hearing, the decision-making process seen as a whole had not been such as to involve the mother to a degree sufficient to provide her with the requisite protection of her interests. Her treatment by the authority and in particular, the events surrounding, and her exclusion from the professional meetings, were unwittingly and unintentionally unfair on any objective view. There was no justification for such exclusion. Given the centrality of the psychiatrist’s role and the fact that his opinion was likely to be determinative both of the authority’s stance and of the ultimate decision the court was required to make, there was a clear failure to meet the standards of fairness mandated by arts 6 and 8. However, despite the breaches, it remained evident that the consultant psychiatrist had been entirely justified in placing the emphasis that he had on the enhanced acknowledgement of responsibility as a pre-requisite to any possible move towards rehabilitation. Although, before the hearing, the mother had been unaware of the documents and criticisms of her at the various meetings she could have been left in no doubt as to what her assessment was about and what was expected of her. But she had

been either unable or unwilling to accept such responsibility. There was simply an insufficient acknowledgment by the mother to justify moving on to the next stage. Moreover, the authority’s plan for adoption forthwith was in the child’s best interests. The delay caused by a further assessment of L might well have imperiled his interests and would almost certainly have created a false hope in the mother’s mind. Accordingly, assessing matters overall, at the end of the final hearing the earlier unfairness in the decision-making process had been overcome. The mother had, overall, been involved in the decision-making process to a degree sufficient to provide her with the requisite protection of her interests. Despite the very serious shortcomings in the process as matters stood immediately before the hearing, the court was satisfied that, overall, the mother had had the fair trial to which she was entitled under arts 6 and 8 of the Convention. It followed therefore that the authority’s care plan dated 31 May 2002, would be endorsed subject, inter alia, to L’s present foster carers being assessed as potential adopters. The mother’s application under s 38(6) of the 1989 Act would be dismissed and a care order made in relation to L.

Mantovanelli v France (1997) 24 EHRR 370 considered; Re M (care: challenging decisions by local authority) [2001] 2 FLR 1300, Re B (disclosure to other parties) [2002] 2 FCR 32 and Re R (care: disclosure: nature of proceedings) [2002] 1 FLR 755 applied.

Cases referred to in judgment

A v A Health Authority, Re J [2002] EWHC 18 (Fam/Admin), [2002] 1 FCR 481, [2002] 3 WLR 24, [2002] 1 FLR 845.

B (disclosure to other parties), Re[2002] 2 FCR 32, [2001] 2 FLR 1017.

Buchberger v Austria [2001] ECHR 32899/96, ECt HR.

C (a minor) (adoption notice: local authority), Re[1994] 2 FCR 839, [1994] 1 WLR 1220, [1994] 2 FLR 513, CA.

C (a minor) (application for residence order), Re[1995] 2 FCR 276, [1995] 1 FLR 617, CA.

C (adoption: religious observance), Re [2002] 1 FLR 1119.

C (child cases: evidence and disclosure), Re[1995] 2 FCR 97, [1995] 1 FLR 204.

CB (access: attendance of court welfare officer), Re [1995] 1 FLR 622.

CB and JB (minors) (care proceedings: case conduct), Re[1998] 2 FCR 313, [1998] 2 FLR 211.

Clibbery v Allan[2001] 2 FCR 577, [2001] 2 FLR 819; affd[2002] EWCA Civ 45, [2002] 1 FCR 385, [2002] 1 All ER 865, [2002] 2 WLR 1511, [2002] 1 FLR 565.

D (infants), Re [1970] 1 All ER 1088, [1970] 1 WLR 599, CA.

D (minors) (adoption reports: confidentiality), Re[1996] 1 FCR 205, [1996] AC 593, [1995] 4 All ER 385, [1995] 3 WLR 483, [1995] 2 FLR 687, HL.

Dombo Beheer BV v Netherlands (1993) 18 EHRR 213, ECt HR.

Douglas v Hello! Ltd[2002] 1 FCR 289, [2001] 2 All ER 289, [2001] 2 WLR 992, [2001] 1 FLR 982, CA.

Elsholz v Germany[2000] 3 FCR 385, [2000] 2 FLR 486, ECt HR.

G (childrens cases: instruction of experts), Re[1994] 2 FCR 106, [1994] 2 FLR 291.

Golder v UK (1975) 1 EHRR 524, [1975] ECHR 4451/70, ECt HR.

H v UK (1987) 10 EHRR 95, [1987] ECHR 9580/81, ECt HR.

H, Re (22 March 2002, unreported), Fam D.

J (children) (residence: expert evidence), Re[2001] 2 FCR 44, CA.

Johansen v Norway (1996) 23 EHRR 33, [1996] EHRC 17383/90, ECt HR.

K and T v Finland[2001] 2 FCR 673, ECt HR.

M (care: challenging decisions by local authority), Re [2001] 2 FLR 1300.

M (social work records: disclosure), Re [1990] FCR 485, [1990] 2 FLR 36.

Mantovanelli v France (1997) 24 EHRR 370, [1996] ECHR 21497/93, ECt HR.

McGinley and Egan v UK (1998) 4 BHRC 421, ECt HR.

McMichael v UK (1995) 20 EHRR 205, [1995] EHRC 16424/90, ECt HR.

Peet v Mid Kent Healthcare NHS Trust (Practice Note) [2001] EWCA Civ 1703, [2002] 1 WLR 210.

R (care: disclosure: nature of proceedings), Re [2002] 1 FLR 755.

R (P) v Secretary of State for the Home Dept, R (Q) v Secretary of State for the Home Dept[2001] EWCA Civ 1151, [2001] 3 FCR 416, [2001] 1 WLR 2002.

R v Hampshire CC,...

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