V (A Child), Re

Human-rights complaints arising during pending care proceedings should ordinarily be determined by the court already seised of those proceedings. A claim that a local authority has acted incompatibly with Convention rights may be raised under section 7(1)(b) of the Human Rights Act 1998. It does not ordinarily justify transferring the case, or a discrete issue, to the High Court.

In a Part IV case, the court must balance the parties’ Article 8 rights with the child’s welfare and reach a proportionate outcome. The duty to facilitate family reunion is not absolute. It is always qualified by the child’s best interests. A court cannot compel a local authority to fund parental therapeutic treatment, save for its power to direct assessment of the child under section 38(6) of the Children Act 1989.

The local authority began Part IV care proceedings shortly after MV’s birth. At the first day of the final hearing, the Brighton County Court adjourned the proceedings and directed that an urgent application by the parents to transfer human-rights issues to the High Court be listed.

The father then sought declarations that the local authority had breached the parents’ and child’s Convention rights by failing to fund treatment intended to support possible family reunification. The local authority and guardian opposed the adjournment. The local authority appealed, contending that the county court could determine all relevant human-rights issues within the care proceedings.

The central issue was whether an allegation under the Human Rights Act 1998, including an Article 6 or Article 8 complaint, required transfer of pending care proceedings or a discrete issue to the High Court.

Appeal allowed. The judge’s adjournment and direction for an urgent High Court application were set aside. The care proceedings were to return promptly to the county court before a different circuit judge. The father’s freestanding human-rights proceedings were stayed.

1. The ordinary statutory scheme for care proceedings under Part IV of the Children Act 1989 is compatible with the Convention. Articles 6 and 8 are commonly engaged, but every court hearing such proceedings must give effect to the legislation compatibly with Convention rights under section 3(1) of the Human Rights Act 1998.

2. Where proceedings remain pending, a complaint that a local authority has acted unlawfully under section 6(1) may and should be raised in those proceedings under section 7(1)(b). The court applied and endorsed Re L, [2003] 2 FLR 160. A transfer merely because a party raises a human-rights or Convention issue is neither necessary nor desirable, and applications to transfer discrete issues to the High Court should be strongly discouraged.

3. Transfer remains governed by the allocation rules and must be considered at the earliest stage, consistently with the statutory principle that delay is likely to prejudice the child’s welfare. The county court was fully able to decide whether the refusal to fund treatment breached Article 6 or Article 8, and what consequences followed.

4. The local authority had to consider reunification. However, the positive Article 8 obligation to facilitate reunion as soon as reasonably feasible is not absolute. As explained from K and T v Finland, [2001] 2 FLR 707, it must always be balanced against the child’s best interests.

5. Section 38(6) permits any court hearing care proceedings to direct medical, psychiatric or other assessment of the child; a local authority directed to undertake such an assessment must fund it. It does not provide a power to compel funding of therapeutic treatment for the parents. Nor did the High Court’s inherent jurisdiction supply that power: while an interim or final care order is in force, that jurisdiction is excluded. In light of Re S; Re W, [2002] 2 AC 291, the absence of that power did not render the statutory scheme incompatible with Article 8.

The remitted judge was to determine the threshold, welfare, any Article 6 or Article 8 breach, the section 38(6) application, and whether reunification was realistically achievable within the child’s timescale. Costs, including possible wasted costs, were reserved to that judge.

• Court of Appeal (Civil Division) — allowed the local authority’s appeal in [2004] EWCA Civ 54, set aside the adjournment and direction for a High Court application, stayed the father’s freestanding human-rights claim, and remitted the care proceedings for a prompt county court hearing.
• Brighton County Court — HH Judge Hayward adjourned the final hearing and directed that a proposed parental application to transfer human-rights issues to the High Court be listed urgently.