(Court of Appeal, Sir Brian Leveson, President of the Queen’s Bench Division, McFarlane, Burnett LJJ, 26 January 2017)
Public law children – Emergency protection order – Parents brought proceedings against local authority – Whether there had been a breach of the duty under s 6 of the HRA 1998
The local authority appeal from a decision finding it had breached s 20 of the Children Act 1989 was allowed.
The parents, of 8 children placed in local authority care, pursued the local authority, claiming misfeasance in public office, race discrimination, negligence and breach of duty owed pursuant to s 6 of the Human Rights Act 1998 and Art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. After a 6-day hearing the judge dismissed the actions for misfeasance, discrimination and negligence but found that the local authority had failed to comply with its statutory duty under the Children Act 1989 and were liable to pay damages for breach of Art 8 of the European Convention. The parents were each awarded £10,000 in damages. The local authority appealed.
The appeal was allowed. The Court of Appeal held that the claim brought under s 6 of the Human Rights Act 1998 should have been dismissed.Insofar as breach of statutory duty under s 20 was concerned it was necessary for the claimants to go further than establishing that the actions of the local authority fell short of what, subsequently identified, good practice might require; the authority must be seen to have acted in breach of the terms of the statute. Furthermore, on the basis that the lawfully imposed bail conditions on the parents (not to have unsupervised contact with the children) prevented the parents from providing accommodation for the children, the finding that the retention of the children in police protection after the period of 72 hours was unlawful and, equally, that such retention constituted a breach of the parents' Article 8 rights should be reversed. The interference was in accordance with the law and necessary for the protection of the health or the rights and freedoms of others. It followed that there was no breach of s 6 of the 1998 Act and damages should not have been awarded under s 8.