DL & Anor v London Borough of Newham

A fair-process breach does not necessarily create a separate substantive breach of Article 8. Where a fair process would probably have produced the same removal decision, any difference in timing may be insufficient to establish an additional substantive breach or justify further relief.

The court must assess whether, on the balance of probabilities, the child would have remained with and been adopted by the claimants or would have been removed. In applying the welfare principle, the court may rely on established risks arising from the parties’ conduct and relationships without determining every disputed allegation underlying those risks.

Following an earlier judgment, the local authority reconsidered whether a child, K, should be returned to the claimants with a view to adoption. It decided that he should not be returned. The claimants initially challenged that decision and sought K’s return, but abandoned that challenge during the hearing.

The remaining issues were whether the earlier s. 35(2) notice breached the claimants’ and K’s substantive Article 8 rights, in addition to the procedural breach previously established, and whether damages should be awarded under the Human Rights Act 1998.

1. The challenge to the new decision was abandoned. Having heard the claimants’ arguments, the court stated that it was unpersuaded by them. The evidence supported the conclusion that returning K to the claimants for adoption would involve unacceptable risks to his short-, medium- and long-term welfare.
2. A public authority cannot avoid the consequences of an earlier substantive breach merely because it later conducts a fair reconsideration and reaches the same or a different decision. The determination of placement and family relationships can, in principle, engage a separate substantive Article 8 breach. A combination of substantive and procedural breaches may also justify more serious relief.
3. However, in this case a fair process at the relevant time would have led to K’s removal, although potentially later and by a different route. The essential interference therefore lay in the circumstances and fairness of terminating the placement. The difference in timing did not itself establish a separate substantive breach. Any separate breach would in any event have been arid and technical and would not warrant additional relief.
4. The crucial question was whether, absent the s. 35(2) notice, K was more likely than not to have remained with and been adopted by the claimants, or to have been removed and not adopted. Applying s. 1 of the Adoption and Children Act 2002, the court concluded that removal would and should have occurred.
5. The court relied on the child’s complex needs, the claimants’ failure properly to recognise the harm and risks arising in their previous environment, their lack of demonstrated priority for K’s welfare, high levels of mistrust and confrontation with public bodies, and the risk that similar instability would recur. Those risks could be considered without resolving the underlying disputed allegations, because the relevant product of the claimants’ conduct and relationships was effectively undisputed.
6. There was no separate substantive breach of Article 8 and damages should not be awarded.