Judgments - In Re S (FC) In Re S and Others In Re W and Others (First Appeal )(FC) In Re W and Others (Second Appeal) (Conjoined Appeals)

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    40. Up to this point there is no difficulty. The area of real difficulty lies in identifying the limits of interpretation in a particular case. This is not a novel problem. If anything, the problem is more acute today than in past times. Nowadays courts are more 'liberal' in the interpretation of all manner of documents. The greater the latitude with which courts construe documents, the less readily defined is the boundary. What one person regards as sensible, if robust, interpretation, another regards as impermissibly creative. For present purposes it is sufficient to say that a meaning which departs substantially from a fundamental feature of an Act of Parliament is likely to have crossed the boundary between interpretation and amendment. This is especially so where the departure has important practical repercussions which the court is not equipped to evaluate. In such a case the overall contextual setting may leave no scope for rendering the statutory provision Convention compliant by legitimate use of the process of interpretation. The boundary line may be crossed even though a limitation on Convention rights is not stated in express terms. Lord Steyn's observations in R v A (No 2) [2002] 2 AC 45, 68D-E, para 44 are not to be read as meaning that a clear limitation on Convention rights in terms is the only circumstance in which an interpretation incompatible with Convention rights may arise.

    41. I should add a further general observation in the light of what happened in the present case. Section 3 directs courts on how legislation shall, as far as possible, be interpreted. When a court, called upon to construe legislation, ascribes a meaning and effect to the legislation pursuant to its obligation under section 3, it is important the court should identify clearly the particular statutory provision or provisions whose interpretation leads to that result. Apart from all else, this should assist in ensuring the court does not inadvertently stray outside its interpretation jurisdiction.

    42. I return to the Children Act. I have already noted, as a cardinal principle of the Act, that the courts are not empowered to intervene in the way local authorities discharge their parental responsibilities under final care orders. Parliament entrusted to local authorities, not the courts, the responsibility for looking after children who are the subject of care orders. To my mind the new starring system would depart substantially from this principle. Under the new system the court, when making a care order, is empowered to impose an obligation on an authority concerning the future care of the child. In future, the authority must submit a progress report, in circumstances identified by the court, either to the court or to the Children and Family Court Advisory and Support Service (CAFCASS). This is only the first step. The next step is that the court, when seised of what has happened after the care order was made, may then call for action. If it considers this necessary in the best interests of the child, the court may intervene and correct matters which are going wrong. In short, under the starring system the court will exercise a newly-created supervisory function.

    43. In his judgment Thorpe LJ noted that the starring system 'seems to breach the fundamental boundary between the functions and responsibilities of the court and the local authority': see paragraph 31. I agree. I consider this judicial innovation passes well beyond the boundary of interpretation. I can see no provision in the Children Act which lends itself to the interpretation that Parliament was thereby conferring this supervisory function on the court. No such provision was identified by the Court of Appeal. On the contrary, the starring system is inconsistent in an important respect with the scheme of the Children Act. It would constitute amendment of the Children Act, not its interpretation. It would have far-reaching practical ramifications for local authorities and their care of children. The starring system would not come free from additional administrative work and expense. It would be likely to have a material effect on authorities' allocation of scarce financial and other resources. This in turn would affect authorities' discharge of their responsibilities to other children. Moreover, the need to produce a formal report whenever a care plan is significantly departed from, and then await the outcome of any subsequent court proceedings, would affect the whole manner in which authorities discharge, and are able to discharge, their parental responsibilities.

    44. These are matters for decision by Parliament, not the courts. It is impossible for a court to attempt to evaluate these ramifications or assess what would be the views of Parliament if changes are needed. I echo the wise words of Cooke P in the New Zealand case of R v Stack [1986] 1 NZLR 257, 261-262:

    'It would amount to amending the Act by judicial legislation. In a sensitive and controversial field which the New Zealand Parliament may be said to have taken to itself, we do not consider that this court would be justified in such a course. If the Act is to be amended it should be done by Parliament after full consideration of the arguments of policy.'

In my view, in the present case the Court of Appeal exceeded the bounds of its judicial jurisdiction under section 3 in introducing this new scheme.

Sections 7 and 8 of the Human Rights Act

    45. Sections 7 and 8 of the Human Rights Act have conferred extended powers on the courts. Section 6 makes it unlawful for a public authority to act in a way which is incompatible with a Convention right. Section 7 enables victims of conduct made unlawful by section 6 to bring court proceedings against the public authority in question. Section 8 spells out, in wide terms, the relief a court may grant in those proceedings. The court may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate. Thus, if a local authority conducts itself in a manner which infringes the article 8 rights of a parent or child, the court may grant appropriate relief on the application of a victim of the unlawful act.

    46. This new statutory power has already been exercised. In In re M (29 June 2001, unreported) a local authority reviewed its care plan for a child in its care. The authority finally ruled out any further prospect of the child returning to live with her mother or of ever going to live with her father. In proceedings brought by the parents Holman J set aside the decision. The decision making process was unfair by not involving the parents to a degree sufficient to provide their interests with the requisite protection. In so ordering Holman J was proceeding squarely within the extended jurisdiction conferred by sections 7 and 8. The court applied the provisions of the Human Rights Act in the manner Parliament intended, there in respect of a breach of article 8.

    47. In the present case the Court of Appeal seems to have placed some reliance on sections 7 and 8 for the extension of the court's powers envisaged by the starring system. Thorpe LJ said, in paragraph 32 of his judgment:

    'The responsibility on the courts in the exercise of extended or additional powers is of course to ensure that they are used only to avoid or prevent the breach of an article 6 or article 8 right of one of the parties. If no actual or prospective breach of right is demonstrated the power does not arise.'

    48. I do not think sections 7 and 8 can be pressed as far as would be necessary if they were to bring the introduction of the starring system within their embrace. Sections 7 and 8 are to be given a generous interpretation, as befits their human rights purpose. But, despite the cautionary words of both Thorpe and Hale LJJ, the starring system goes much further than provide a judicial remedy to victims of actual or proposed unlawful conduct by local authorities entrusted with the care of children.

    49. Section 7 envisages proceedings, brought by a person who is or would be a victim, against a public authority which has acted or is proposing to act unlawfully. The question whether the authority has acted unlawfully, or is proposing to do so, is a matter to be decided in the proceedings. Relief can be given against the authority only in respect of an act, or a proposed act, of the authority which the court finds is or would be unlawful. For this purpose an act includes a failure to act. But the starring system would impose obligations on local authorities in circumstances when there has been no such finding and when, indeed, the authority has committed no breach of a Convention right and is not proposing to do so. Unless an authority is acting in bad faith, the possibility or prospect of non-fulfilment, for example, of a placement for a child cannot by itself be evidence that the authority is 'proposing' to act unlawfully contrary to section 6. Nor can the non-fulfilment of a starred event, when the obligation to report arises, necessarily be equated with a breach or threatened breach of a Convention right. Failure to adhere to a care plan may be due to a change in circumstances which, in the best interests of the child, calls for a variation from the care plan which was approved by the court.

Statutory incompatibility

    50. Thus far I have concluded that, even if there is incompatibility between the Children Act and articles 6 or 8 of the Convention, the introduction of the starring system is beyond the powers of the court under section 3 of the Human Rights Act. Moreover, sections 7 and 8 of the Human Rights Act do not provide a legal basis for the introduction of this new system.

    51. The mother of the children in the Torbay case contended that if the Children Act does not permit the introduction of the starring system, the Act is incompatible with articles 6 and 8. She claims to be a victim of an infringement of her rights under these two articles. Save for the intervention of the Court of Appeal matters might well have gone even more seriously wrong. She seeks a declaration of incompatibility pursuant to section 4 of the Human Rights Act. I now turn to consider whether the Children Act is incompatible with either of these articles of the Convention. I start with article 8.

Compatibility and article 8

    52. Article 8 of the Convention provides:

    '1. Everyone has the right to respect for his private and family life, his home and his correspondence.

    2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health morals, or for the protection of the rights and freedoms of others.'

    53. The essential purpose of this article is to protect individuals against arbitrary interference by public authorities. In addition to this negative obligation there are positive obligations inherent in an effective concept of 'respect' for family life: see Marckx v Belgium (1979) 2 EHRR 330, 342, paragraph 31. In both contexts a fair balance has to be struck between the competing interests of the individual and the community as a whole: see Hokkanen v Finland (1994) 19 EHRR 139, 168-169, paragraph 55.

    54. Clearly, if matters go seriously awry, the manner in which a local authority discharges its parental responsibilities to a child in its care may violate the rights of the child or his parents under this article. The local authority's intervention in the life of the child, justified at the outset when the care order was made, may cease to be justifiable under article 8(2). Sedley LJ pointed out that a care order from which no good is coming cannot sensibly be said to be pursuing a legitimate aim. A care order which keeps a child away from his family for purposes which, as time goes by, are not being realised will sooner or later become a disproportionate interference with the child's primary article 8 rights: see paragraph 45 of his judgment.

    55. Further, the local authority's decision making process must be conducted fairly and so as to afford due respect to the interests protected by article 8. For instance, the parents should be involved to a degree which is sufficient to provide adequate protection for their interests: W v United Kingdom (1987) 10 EHRR 29, 49-50, paragraphs 62-64.

    56. However, the possibility that something may go wrong with the local authority's discharge of its parental responsibilities or its decision making processes, and that this would be a violation of article 8 so far as the child or parent is concerned, does not mean that the legislation itself is incompatible, or inconsistent, with article 8. The Children Act imposes on a local authority looking after a child the duty to safeguard and promote the child's welfare. Before making any decision with respect to such a child the authority must, so far as reasonably practicable, ascertain the wishes and feelings of the child and his parents: section 22. Section 26 provides for periodic case reviews by the authority, including obtaining the views of parents and children. One of the required reviews is that every six months the local authority must actively consider whether it should apply to the court for a discharge of the care order: see the Review of Children's Cases Regulations 1991 (SI 1991 No. 895). Every local authority must also establish a procedure for considering representations, including complaints, made to it by any child who is being looked after by it, or by his parents, about the discharge by the authority of its parental responsibilities for the child.

    57. If an authority duly carries out these statutory duties, in the ordinary course there should be no question of infringement by the local authority of the article 8 rights of the child or his parents. Questions of infringement are only likely to arise if a local authority fails properly to discharge its statutory responsibilities. Infringement which then occurs is not brought about, in any meaningful sense, by the Children Act. Quite the reverse. Far from the infringement being compelled, or even countenanced, by the provisions of the Children Act, the infringement flows from the local authority's failure to comply with its obligations under the Act. True, it is the Children Act which entrusts responsibility for the child's care to the local authority. But that is not inconsistent with article 8. Local authorities are responsible public authorities, with considerable experience in this field. Entrusting a local authority with the sole responsibility for a child's care, once the 'significant harm' threshold has been established, is not of itself an infringement of article 8. There is no suggestion in the Strasbourg jurisprudence that absence of court supervision of a local authority's discharge of its parental responsibilities is itself an infringement of article 8.

    58. Where, then, is the inconsistency which is alleged to exist? As I understand it, the principal contention is that the incompatibility lies in the absence from the Children Act of an adequate remedy if a local authority fails to discharge its parental responsibilities properly and, as a direct result, the rights of the child or his parents under article 8 are violated. The Children Act authorises the state to interfere with family life. The Act empowers courts to make care orders whose effect is to entrust the care of children to a public authority. But the selfsame Act, while conferring these wide powers of interference in family life, omits to provide any sufficient remedy, by way of a mechanism for controlling an erring local authority's conduct, if things go seriously wrong with the authority's care of the child. It is only to be expected, the submission runs, that there will be occasions when the conduct of a local authority falls short of the appropriate standards. An Act which authorises state interference but makes no provision for external control when the body entrusted with parental responsibility fails in its responsibilities is not compatible with article 8. The extensive supervisory functions and responsibilities conferred on the Secretary of State in Part XI of the Act, including his default powers under section 84, are not sufficient in practice to provide an adequate and timely remedy in individual cases.

    59. In my view this line of argument is misconceived. Failure by the state to provide an effective remedy for a violation of article 8 is not itself a violation of article 8. This is self-evident. So, even if the Children Act does fail to provide an adequate remedy, the Act is not for that reason incompatible with article 8. This is the short and conclusive answer to this point.

    60. However, I should elaborate a little further. In Convention terms, failure to provide an effective remedy for infringement of a right set out in the Convention is an infringement of article 13. But article 13 is not a Convention right as defined in section 1(1) of the Human Rights Act. So legislation which fails to provide an effective remedy for infringement of article 8 is not, for that reason, incompatible with a Convention right within the meaning of the Human Rights Act.

    61. Where, then, does that leave the matter so far as English law is concerned? The domestic counterpart to article 13 is sections 7 and 8 of the Human Rights Act, read in conjunction with section 6. This domestic counterpart to article 13 takes a different form from article 13 itself. Unlike article 13, which declares a right ('Everyone whose rights … are violated shall have an effective remedy'), sections 7 and 8 provide a remedy. Article 13 guarantees the availability at the national level of an effective remedy to enforce the substance of Convention rights. Sections 7 and 8 seek to provide that remedy in this country. The object of these sections is to provide in English law the very remedy article 13 declares is the entitlement of everyone whose rights are violated.

    62. Thus, if a local authority fails to discharge its parental responsibilities properly, and in consequence the rights of the parents under article 8 are violated, the parents may, as a longstop, bring proceedings against the authority under section 7. I have already drawn attention to a case where this has happened. I say 'as a longstop', because other remedies, both of an administrative nature and by way of court proceedings, may also be available in the particular case. For instance, Bedfordshire council has an independent visitor, a children's complaints officer and a children's rights officer. Sometimes court proceedings by way of judicial review of a decision of a local authority may be the appropriate way to proceed. In a suitable case an application for discharge of the care order is available. One would not expect proceedings to be launched under section 7 until any other appropriate remedial routes have first been explored.

    63. In the ordinary course a parent ought to be able to obtain effective relief, by one or other of these means, against an authority whose mishandling of a child in its care has violated a parent's article 8 rights. More difficult is the case, to which Thorpe LJ drew attention in paragraph 34, where there is no parent able and willing to become involved. In this type of case the article 8 rights of a young child may be violated by a local authority without anyone outside the local authority becoming aware of the violation. In practice, such a child may not always have an effective remedy.

    64. I shall return to this problem at a later stage. For present purposes it is sufficient to say that, for the reason I have given, the failure to provide a young child with an effective remedy in this situation does not mean that the Children Act is incompatible with article 8: failure to provide a remedy for a breach of article 8 is not itself a breach of article 8.

Compatibility and article 6

    65. The position regarding article 6(1) is more complicated. Article 6(1) provides:

    'In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.'

    66. The starting point here is to note that article 6(1) applies only to disputes ('contestations') over (civil) rights and obligations which, at least arguably, are recognised under domestic law. Article 6(1) does not itself guarantee any particular content for civil rights and obligations in the substantive law of contracting states: see W v United Kingdom (1987) 10 EHRR 29, 54, paragraph 73. The European Court of Human Rights has recently reiterated this interpretation of article 6(1), in TP and KM v United Kingdom [2001] 2 FLR 549, 573-574, paragraph 92.

    67. The case of McMichael v United Kingdom (1995) 20 EHRR 205 illustrates this limitation on the scope of article 6(1). Under Scots law the natural father of a child born outside marriage did not automatically have parental rights in respect of the child. Since Mr McMichael had not taken steps to obtain legal recognition of his status as a father, article 6(1) had no application to his complaint that he had not been allowed to see the confidential reports submitted in the care proceedings.

    68. On the other side of the line is the well known case of W v United Kingdom (1987) 10 EHRR 29, concerning parental rights of access. This case pre-dated the Children Act. The European Court of Human Rights considered that a parental rights resolution did not extinguish all parental rights regarding access to a child in care. The court held that when a parent claimed access to his child the determination of a parental right was just as much in issue as when a parent applied for the discharge of a parental rights resolution or a care order. Accordingly, a substantial dispute over access fell within article 6(1).

    69. Thus, when considering the application of article 6(1) to children in care, the European Court of Human Rights focuses on the rights under domestic law which are then enjoyed by the parents or the child. If the impugned decision significantly affects rights retained by the parents or the child after the child has been taken into care, article 6(1) may well be relevant. It is otherwise if the decision has no such effect.

    70. I pause to note one consequence of this limitation on the scope of article 6(1). Since article 6(1) is concerned only with the protection of rights found in domestic law, a right conferred by the Convention itself does not as such qualify. Under the Convention, article 13 is the guarantee of an effective remedy for breach of a Convention right, not article 6(1). Article 6(1) is concerned with the protection of other rights of individuals. Thus, a right guaranteed by article 8 is not in itself a civil right within the meaning of article 6(1).

    71. Although a right guaranteed by article 8 is not in itself a civil right within the meaning of article 6(1), the Human Rights Act has now transformed the position in this country. By virtue of the Human Rights Act article 8 rights are now part of the civil rights of parents and children for the purposes of article 6(1). This is because now, under section 6 of the Act, it is unlawful for a public authority to act inconsistently with article 8.

    72. I have already noted that, apart from the difficulty concerning young children, the court remedies provided by sections 7 and 8 should ordinarily provide effective relief for an infringement of article 8 rights. I need therefore say nothing further on this aspect of the application of article 6(1). I can confine my attention to the application of article 6(1) to other civil rights and obligations of parents and children.

    73. In this regard a further aspect of the phrase 'civil rights' should be noted. The Strasbourg case law interprets this expression as directed essentially at rights which English law characterises as private law rights. This does not mean that administrative decisions by public authorities, characterised by English law as matters regulated by public law, are outside the scope of article 6(1). The Strasbourg jurisprudence has brought such decisions within article 6(1), on the basis that such decisions can determine or affect rights in private law: see, for instance, Ringeisen v Austria (No. 1) (1971) 1 EHRR 455, 489-490, paragraph 94.

    74. In taking this step the jurisprudence of the European Court of Human Rights has drawn back from holding that article 6(1) requires that all administrative decisions should be susceptible of, in effect, substantive appeal to a court, with the court substituting its views for the decision made by the administrator. Article 6(1) is not so crude or, I might add, so unrealistic. Article 6(1) is more discerning in its requirements. The extent of judicial control required depends on the subject matter of the decision and the extent to which this lends itself to judicial decision. This area of the law has recently been discussed by Lord Hoffmann in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389, 1413-1425, paras 77-122.

    75. This principle, that the required degree of judicial control varies according to the subject matter of the impugned decision, is important in the context of the Children Act, to which I can now turn. There is no difficulty about the making of a care order. The effect of a care order is to endow a local authority with parental responsibility for a child. Accordingly, the making of a care order affects the 'civil rights' of the parents. The making of a care order affects their rights as parents, and article 6(1) applies. In this regard English law, expressed in the Children Act, accords with the requirements of article 6(1). A care order is made by the court, in proceedings to which the parents are parties.

    76. Likewise, the question whether a care order should be continued or discharged affects the parents' civil rights. Here also, the Children Act is in harmony with article 6(1). Under the Act the parents may apply to the court for the discharge of the care order.

    77. The position regarding decisions taken by the local authority on the care of a child while a care order is in force is not quite so straightforward. By law a parent has rights, duties, powers and responsibilities in relation to a child. This is recognised in the definition of parental responsibility in the Children Act, section 3(1). Under the Children Act the parental responsibility of a parent does not cease when a care order is made. The subject matter of decisions made by a local authority acting under its statutory powers while a care order is in force range widely, from the trivial to matters of fundamental importance to parents and children. Hence the extent to which decisions by an authority affect the private law rights of parents and children also varies widely. Some affect the continuing parental responsibility of a parent, others do not.

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