C (a child) , Re

Under Human Rights Act 1998 section 8, damages for a procedural breach of Article 8 are not automatic. The court must consider all the circumstances, other remedies, the consequences of the breach and the principles applied under Article 41, asking whether damages are necessary to afford just satisfaction.

Failure to involve a parent when moving from rehabilitation to permanent alternative placement may breach Article 8 even where the child’s removal was lawful. A declaration may nevertheless suffice where the parent was kept informed through a solicitor, could challenge the decision, the outcome would probably have been unchanged, and no separate loss of opportunity or injury was proved.

The appellant, a young mother, challenged a local authority’s decision to abandon a court-endorsed rehabilitation plan after her child had been removed from her care. Hedley J found a procedural breach of her Article 8 rights and granted a declaration, but refused monetary damages. He also concluded that renewed rehabilitation was not in the child’s interests.

Permission to appeal was limited to whether the declaration afforded just satisfaction or whether damages were necessary under sections 8(3) and 8(4) of the Human Rights Act 1998. The central issue was the appropriate remedy for a procedural Article 8 breach where the underlying removal was lawful.

1. The appeal was dismissed unanimously. The court exercised its remedial discretion afresh because the damages issue had not been fully developed before Hedley J.
2. Under sections 8(3) and 8(4) of the Human Rights Act 1998, read with Article 41, damages are payable only where necessary to afford just satisfaction, taking account of all the circumstances, other remedies and the consequences of the unlawful act. The domestic approach should be no less liberal than that applied in Strasbourg: Anufrijeva v Southwark L.B.C. [2004] QB 1124.
3. The breach was procedural. The local authority should have invited the mother herself to participate before deciding that the child’s removal from her should be permanent. The breach concerned the failure to consult, not the lawful emergency removal or the decision to pursue adoption. It was therefore principally an Article 8 breach rather than an Article 6 breach.
4. Thorpe LJ rejected the claimed loss of opportunity. The evidence showed that the local authority had kept the mother’s solicitor informed, had enabled a legal challenge, and had acted in circumstances in which the mother was unlikely to participate constructively. The probable outcome would have been unchanged, and there was no evidence that exclusion from the decision caused an independent injury.
5. Wilson LJ emphasised that Strasbourg generally awards damages for serious failures to involve parents in care decisions, including in W v United Kingdom (1987) 10 EHRR 29, R v United Kingdom (1987) 10 EHRR 74 and Venema v The Netherlands [2003] 1 FLR 552. Those authorities required the infringement to be placed on a spectrum of seriousness. This breach ranked near the low end, and the declaration already granted afforded just satisfaction.

1. Court of Appeal (Civil Division): dismissed the appeal against the refusal of damages.
2. High Court of Justice, Family Division: Hedley J declared that the local authority had breached the mother’s Article 8 rights by abandoning rehabilitation without proper participation, but held that a declaration was sufficient and refused damages.