X, Y and Z v West Sussex County Council
| Jurisdiction | England & Wales |
| Judge | HHJ Farquhar |
| Judgment Date | 23 February 2016 |
| Neutral Citation | [2016] EWFC B44 |
| Court | Family Court |
| Docket Number | Case No: SD15C00558 |
| Date | 23 February 2016 |
[2016] EWFC B44
IN THE BRIGHTON FAMILY COURT
His Honour Judge Farquhar
Case No: SD15C00558
Gemma Taylor (Instructed by McMillan Williams Solicitors Limited) for the Children X and Y
Susan Healy (Instructed by Edward Hayes LLP) for the Mother, Z
Robert Cameron for the Local Authority
Hearing dates: 17 th December 2015
This is an application for declarations and damages pursuant to the Human Rights Act following the two children X and Y being subject to a (purported) s.20 agreement to be accommodated by West Sussex County Council for a period from 19 th January 2013 until 15 th July 2015 when an interim care order was granted. The application is brought by the mother, Z, and by the Guardian on behalf of the children. The Local Authority state that there has been no breach of their Human Rights and consequently no declarations should be made or damages awarded. The father has played no part in the care proceedings or the application for declarations and damages.
The facts of the case are not in dispute and as such I have heard no evidence. The care proceedings themselves were finalised on 17 th December 2015 when care orders were made in relation to both children with care plans of long term fostering in separate placements. It was only at the very tail end of those proceedings that the issue of declarations and damages was raised and the applications are actually dated 14 th December 2015 on behalf of the children and 16 th December 2015 on behalf of the mother although directions were made prior to that in order to ensure that the appropriate evidence was before the court in anticipation of the applications being filed. This relates to disclosure of all of the Children's Services records in order to understand what had occurred and the filing of statements by the Principal Manager of Children's Safeguarding and the Service Manager for Children Looked After both employed by the Local Authority.
I have heard oral submissions by counsel for the three parties and have read all of the documents prepared by counsel. In particular I must praise the comprehensive skeleton argument produced by Mr Cameron on behalf of the Local Authority as well as the detailed chronology prepared by Ms Taylor on behalf of the Guardian, both of which I have found particularly helpful.
Factual Background
The children are a brother and sister, the boy (X) now being aged 12 and the girl (Y) aged 11. They were subject to care proceedings from 2006–2008 (it being noted that the Guardian in the original proceedings criticised the Local Authority (Newham) for delay and leaving the children in s.20 accommodation for too long) and the outcome of those proceedings was that the children were placed with their paternal aunt in Jamaica under a residence order. The mother remained in the UK.
On 19 th January 2013 the children arrived at Gatwick Airport with a friend of the paternal aunt with whom they had been placed. The aunt had written a note stating that the children are to be sent home to their mother (in fact it was their foster carer in the previous proceedings, W) and that she could not care for them. A police protection order was granted on 19.1.13 which expired on 22.1.13.
There was a telephone call between the paternal aunt and a social worker on 21 st January 2013 in which it is said that the aunt stated that she could not manage the children, she may die soon, would agree to accommodation and was clear that she wanted the children to be cared by their previous foster carer, W. This is the conversation which the Local Authority states provided a s.20 agreement for the children to be accommodated. The children were placed in foster care, and then moved to a second placement on 2 nd February 2013.
The mother was contacted by mail on 6 th February 2013 and replied two days later asking to see the children. There was a LAC review on 13 th February 2013 and the report prepared for that review included the following: " They said that they did not really remember Z. When Y was out of the room, X said that he would like to go back to his birth mother but that he hasn't spoken to her for a long time'… 'W has expressed a wish to have the children back in her care and is considering applying for an SGO. X has been unclear about whether he would like to live with her, and in fact revealed that he remembers very little of her. This is to be explored further with a view to at least starting some phone contact between them first. Z has now contacted us to say that she is very keen to see the children. We are mindful of the fact that we do not have a care order and their mother still has PR, but also that Newham stopped all contact between them before they moved to Jamaica as they were not positive. A legal meeting is being arranged to discuss this further.' My emphasis is added and I set it out fully to set out what the parties positions were at the outset of all of this.
I do not intend to set out the rest of the history in detail but the highlights are:
i) The mother, Z, provided a purported oral s.20 agreement in June 2013
ii) There was a 'Meeting Before Proceedings' on 24 th June 2013 and from that date onwards the mother was legally represented.
iii) The s.20 agreement by the mother was put in writing in November 2013
iv) The children were placed with W, the former foster mother on 22 nd July 2013
v) The first contact between the children and their mother occurred on 18 th February 2014
vi) A report was obtained from a psychologist in April 2015 – this report related to the mother and the children but was predominantly in relation to the mother.
vii) Allegations made against X which resulted in him being removed from the care of W and placed in an emergency placement
viii) X moved to final (and fifth) placement in June 2015
ix) Care proceedings issued on 23 rd June 2015
x) ICO granted on 15 th July 2015
Care proceedings concluded on 17 th December 2015 with Care Orders made in relation to both children. The Care Plans are for separate long term foster placement for each child. At present there is no contact between the children and no contact between either of the children and their mother. X is in a placement that does not match his cultural identity.
The Law a) Human Rights Act
There have been a number of recent authorities dealing with issues of damages and declarations for breaches of Article 6 & 8 rights in relation s.20 agreements to which I have been referred. As is well known Article 6 relates to the right to a fair trial and the allegation is that by the extraordinary length of the s.20 agreement then the mother and children were denied that right. Article 8 relates to the right to respect for private and family life and the interference with that is obvious in a case such as this as there are three members of the family and none of them is having contact with the other two. The remedy for a breach of an individual's Convention Rights is set out in ss.7 & 8 Human Rights Act 1998:
S.7 states — (1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may (b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act.
S.6 states — Acts of public authorities. (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right
Remedies are covered by s8 Judicial remedies (1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate. (2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings. (3) No award of damages is to be made unless, taking account of all of the circumstances of the case, including – (a) any other relief or remedy granted or order made, in relation to the act in question (by that or any other court) and (b) the consequences of any decision (of that or any other court) in respect of that act, the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made. (4) In determining — (a) whether to award damages or (b) the amount of an award, the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention
Article 41 ECHR 1950 defines "just satisfaction" as; If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting party concerned allows only partial reparation to be made, the court shall, if necessary, afford just satisfaction to the injured party.
In order to be able to bring such a claim the mother and children will have to prove (and it is important to note that the burden is upon them) the following:
i) The Local Authority has acted in a way which is incompatible with a Convention Right;
ii) The Applicant is a 'victim' of that unlawful act;
iii) In order to succeed in a claim for damages, that it is necessary to make such an award to afford just satisfaction.
The Law b) S.20 Agreements
The ability of a Local Authority to accommodate a child is provided for within s.20 Children Act 1989 the relevant provisions of which are as follows:
S.20 (1) Every Local Authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of …(c) the person who has been caring for him being prevented from providing him with suitable accommodation...
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