Re L (Care Proceedings: Human Rights Claim)
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Munby,Mr Justice Munby |
| Judgment Date | 28 March 2003 |
| Neutral Citation | [2003] EWHC 665 (Fam) |
| Docket Number | Case No: FD03C00123 |
| Court | Family Division |
| Date | 28 March 2003 |
[2003] EWHC 665 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
PRINCIPAL REGISTRY
(In Private)
The Honourable Mr Justice Munby
Case No: FD03C00123
In the Matter of L (A Child)
The names of the parties' legal representatives are omitted in the interests of anonymity
Hearing date : 19 March 2003
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.
This judgment was handed down in private on 28 March 2003. The judge hereby gives leave for it to be reported under the title Re L (Care Proceedings: Human Rights Claims).
This is a case in which care proceedings were begun in the Inner London and City Family Proceedings Court on 11 March 2002 in relation to a little boy, L, who was born on 11 November 1998. His mother suffers from mental health problems. The local authority's care plans are dated 11 March 2002, 13 June 2002 and 29 November 2002. Initially the local authority planned to place L within the wider family. That did not prove possible. The local authority then sought to assess whether mother might be able to look after L. Eventually, as its care plan dated 29 November 2002 made clear, it decided that L should be placed for adoption. This followed, and was presumably intended to implement, the decision to that effect which had been taken by the local authority's Adoption and Permanency Panel at its meeting on 21 November 2002, though for some reason the local authority's agency decision maker did not formally agree the Panel's decision until 14 February 2003.
At a hearing in the FPC on 5 December 2002 the mother sought a further assessment. That application, which was resisted both by the local authority and by the guardian, was refused. Directions were given timetabling the matter through to a final hearing fixed for 28 and 29 May 2003.
On 20 December 2002 the mother sent to the FPC an application seeking the transfer of the proceedings to the County Court, and thence to the High Court. That was with a view to the High Court compelling the local authority, as it was put in the mother's application, to "change the Care Plan, so that long-term fostering is the first long-term option … so that from now on they look for long-term foster carers instead of adoptive parents". The mother's application contains no reference either to the Human Rights Act 1998 or to the European Convention for the Protection of Human Rights and Fundamental Freedoms. It indicates that the mother will "ask the High Court to exercise its inherent jurisdiction in this matter." A letter from the mother's solicitors to the court dated 17 February 2003 says, however, that "we are asking the High Court to provide a remedy under the Human Rights Act by way of injunctive relief under its own inherent jurisdiction".
The mother's application was received by the FPC on 24 December 2002 but for some reason was not issued by the FPC until 30 January 2003, and then only because the mother's solicitors had written to the FPC on 22 January 2003 enquiring as to what was happening. The application came before the FPC on 12 February 2003 when the matter was transferred to the Principal Registry of the Family Division. The order as drawn by the FPC refers to the "proceedings concerning the child" as having been transferred to the PRFD. But it is clear from the order itself that all that was intended to be transferred up was the mother's application for relief under the inherent jurisdiction "to compel the local authority to change its care plan". The order stated that the matter was to remain listed in the FPC for final hearing on 28 and 29 May 2003 and that "the transfer is to enable the High Court to consider the issue of the care plan only". On 21 February 2003 the District Judge in the PRFD transferred "the application for a care order" to the High Court. That, of course, was not what the FPC had intended. On 24 February 2003 Black J gave standard directions in accordance with the President's Direction (Judicial Continuity) [2002] 2 FLR 367, directing that the case was to be allocated to me and fixing the case management conference for hearing on 19 March 2003.
When the matter came on before me all parties were agreed that the only matters I should deal with were the mother's applications under the Human Rights Act and the inherent jurisdiction. I was asked to give directions with a view to the mother's applications being heard in the Family Division at some date prior to the final hearing in the FPC on 28 May 2003. I made it clear at the outset that I was far from persuaded that this was an appropriate way to proceed. In fairness to the parties and their legal representatives I should emphasise that this was not a point which had previously been raised, either by the FPC or by the PRFD or by Black J.
Counsel on behalf of mother submitted a skeleton argument which, supplemented by his oral submissions, summarised in outline the nature of her complaints. In essence they are four-fold:
i) First, that the Panel's decision-making process, culminating in its decision on 21 November 2002 that L should be adopted, was both flawed and unfair to mother.
ii) Secondly, that the effect of the decision is to deny the mother a fair hearing, inasmuch as she will in reality be denied the opportunity to put forward at the final hearing the alternative case for long-term fostering which cannot, so it is said, be effectively mounted if there has in the meantime been a search only for potential adoptive parents and not also a parallel search for potential long-term foster-parents.
iii) Thirdly, that the decision and the resulting care plan are simply wrong: adoption is not in L's best interests.
iv) Finally, that there has been unjustified delay on the part of the local authority in implementing the Panel's decision: there has been as yet, so it is said, only an inadequate and so far fruitless search for adoptive parents.
In these circumstances mother seeks (a) a finding that the current care plan, the actions of the local authority and the Panel decision to pursue a care plan of adoption are unlawful and incompatible with her Convention rights and (b) an order that the local authority pursue a concurrent search between now and the final hearing for a long-term foster family. In effect the mother seeks to compel the local authority to alter its care plan. I express no views as to whether or not there is any substance in what mother is saying. All that is important for immediate purposes is to understand the nature of the complaints she is making, so as to assess the nature of the exercise which the Family Division is being invited to embark upon and which, so it is said, is either outside the jurisdiction of, or otherwise unsuitable to be dealt with by, the FPC.
The case as I have thus summarised it seems to me raise an important point of practice on which it is highly desirable that the profession should have clear guidance. There will, I do not doubt, be in future – there already are – increasing numbers of care cases in which parents seek to rely upon their Convention rights with a view to challenging either what the local authority is doing or the way in which it has gone about it. The question then arises as to how such Convention issues should most appropriately be dealt with – and by which court. The course adopted in the present case, though I do not doubt with the best of intentions, was, in my judgment, quite inappropriate. I think that I should explain why and, at the same time, indicate the way in which similar problems ought, as it seems to me, to be handled in future.
For clarity, even if at risk of appearing pedantic, I must distinguish at the outset between four different jurisdictions that may possibly be invoked in a situation such as this:
i) The first is the statutory jurisdiction under Part IV of the Children Act 1989. This is exercisable by the FPC, by the County Court and by the Family Division of the High Court. When exercising this jurisdiction each court has exactly the same powers. The powers of the High Court under Part IV of the Act are no greater than the powers of the FPC.
ii) Next there is the inherent jurisdiction of the High Court in relation to children, which jurisdiction is recognised and to an extent regulated by section 100 of the 1989 Act. This jurisdiction is normally exercised by the Family Division.
iii) Thirdly, there is the supervisory jurisdiction of the High Court by way of judicial review, currently regulated by CPR Part 54. This jurisdiction is exercised by the Administrative Court. At present there are four judges of the Family Division (Wilson, Wall, Charles and Munby JJ) who are also nominated judges of the Administrative Court.
iv) Finally, there is the jurisdiction under sections 7 and 8 of the Human Rights Act 1998 to grant relief where a public authority – and a local authority is, of course, a public authority for this purpose – either has acted or proposes to act in a way which is made unlawful by section 6(1) of the 1998 Act, that is, in a way which is incompatible with the Convention.
So much for the various jurisdictions that may be invoked. I turn now to consider the extent to which the court has power to grant the mother relief of the kind she is seeking.
It is clear that no court exercising only the statutory jurisdiction under Part IV of the 1989 Act – not even the High Court – has any power to grant mother the relief she is seeking. It is elementary that the only power of the court under Part IV is either to approve or refuse to approve the care plan put forward by the local...
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