NJ v Essex County Council & Anor

In care proceedings, failure to follow local-authority good-practice guidance on fairness, transparency and participation does not by itself breach Articles 6 or 8. The court must assess the proceedings as a whole. Only a departure sufficiently substantial to infect overall fairness constitutes a human-rights infringement. Where professional evidence leaves significant options open, the authority should invite the parent’s comments before selecting its care plan and should disclose any material lack of professional assent when communicating it. Those standards do not require a particular method of communication, and minor non-compliance must not derail timely welfare decisions.

The appellant, a 17-year-old mother, appealed against a final care order made by His Honour Judge Gypps in the Chelmsford County Court on 19 October 2005. The order placed her daughter in the care of Essex County Council on a plan for adoption.

Permission was limited to whether the local authority’s conduct of an antecedent meeting breached the mother’s rights under Articles 6 and 8, and how any breach should be addressed when determining the care application. The local authority and the child’s guardian opposed the appeal. The central issue was whether failures to follow the good-practice guidance in Re L amounted to an infringement of human rights when the proceedings were considered as a whole.

The appeal was dismissed unanimously. Lord Justice Wilson gave the principal judgment. Lord Justice Richards and Mr Justice Bennett agreed.

1. The guidance in Re L was an important contribution to fairness and transparency in care proceedings, but non-compliance with its precepts did not automatically amount to a breach of Articles 6 or 8. The court had to assess the fairness of the proceedings as a whole. The possible full application of principles derived from Mantovanelli v France to care proceedings remained open for future consideration.
2. A local authority should, before selecting a care plan for immediate adoption where the professional evidence leaves material options open, invite the parent to comment on the concerns inclining it towards that plan. When communicating the decision, it should also make clear where relevant professionals have not expressly assented to it. These requirements concern proper standards of fairness and transparency.
3. There was no obligation to communicate a care plan in any particular way. On the facts, the two shortcomings identified were insufficiently substantial to infect the fairness of the proceedings. Nothing the mother could reasonably have said would have altered the care-plan decision, and her solicitor could have corrected any imbalance by explaining the court’s independent role and the continuing options.
4. Re V was directly in point. Human-rights complaints must be identified and addressed, but the guidance in Re L must not become a vehicle for minor procedural arguments that cause disproportionate delay and expense or divert care proceedings from the threshold and welfare issues identified under Children Act 1989 section 31.

The care order and adoption plan therefore remained undisturbed.

1. Court of Appeal (Civil Division) — On 11 May 2006, dismissed the appeal: [2006] EWCA Civ 545.
2. Chelmsford County Court — On 19 October 2005, His Honour Judge Gypps made a care order placing the child in Essex County Council’s care on a plan for adoption.