V (A Child)

Article 6 fairness is assessed by examining the proceedings as a whole, including how evidence was taken and all relevant circumstances. A court should not isolate one alleged omission in pre-proceedings social-work management and treat it as establishing an Article 6 breach. Practice guidance about notifying parents and supporting improvement does not create an automatic Convention breach. Under the Human Rights Act 1998, section 8 remedies are discretionary. Damages require necessity to afford just satisfaction and will be rare in care proceedings.

The local authority appealed an order of His Honour Judge Lloyd in the Brighton County Court. The order made a care order and a freeing order concerning the child and awarded each parent £100 for an alleged Article 6 breach arising from pre-birth social-work management.

The parents had initially relied on Articles 6 and 8 to support an application for an assessment order under section 38(6) of the Children Act 1989. A damages claim emerged only in written submissions. The trial judge relied on paragraph 154 of Re L [2002] 2 FLR 730. The central issues were whether pre-birth, pre-proceedings conduct could breach Article 6 and whether damages were justified.

The appeal was allowed unanimously and the order was set aside. Thorpe LJ considered the factual challenge to the finding of inadequate communication but declined to determine it in the absence of an opposing case. The legal ground was decisive.

1. Article 6. Fairness must be assessed by considering the proceedings as a whole and all relevant circumstances, including the way evidence was taken. It is impermissible to isolate one alleged incident and treat it as establishing a breach. A social worker’s acts or omissions, undertaken exclusively before the child’s birth and before proceedings began, could rarely constitute an Article 6 breach. Article 6 protects the fairness of the trial process. The hearing before Judge Lloyd was fair, and the parents did not challenge the care or freeing orders.
2. Practice guidance. Paragraph 154 of Re L [2002] 2 FLR 730 was practical guidance, not a freestanding statement of good practice or a legal standard whose breach automatically violated Article 6. The guidance was directed as much to Article 8 as to Article 6. The trial judge had therefore elevated a practice point into an unjustified Convention finding.
3. Damages. The judge had failed to consider section 8 of the Human Rights Act 1998. Under section 8(1), any remedy must be just and appropriate. Under section 8(3), damages may be awarded only where necessary to afford just satisfaction, taking all the circumstances into account. A finding of breach does not require damages, and such awards in care proceedings should be very rare. Wall LJ added that damages awards in these circumstances risk diverting care proceedings into sterile human-rights applications.
4. Practical direction. Judges and magistrates should ensure fair procedure but identify and remove barren Human Rights Act and ECHR issues unrelated to the threshold criteria under section 31 of the Children Act 1989 or the ultimate welfare disposal. The respondent’s costs were subject to detailed assessment.

• Court of Appeal (Civil Division): In the present appeal, [2004] EWCA Civ 1575, the local authority’s appeal was allowed and the county court order was set aside.
• Court of Appeal (Civil Division): An earlier appeal, [2004] EWCA Civ 54, successfully challenged the transfer of the care proceedings to the Family Division and directed their resumption before the county court.
• Brighton County Court: On 1 April 2004, His Honour Judge Lloyd made care and freeing orders and awarded each parent £100 for an alleged Article 6 breach.