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(Court of Appeal; Thorpe, Tuckey and Wilson LJJ; 3 January 2007)
Although the removal of the child was held to have been lawful, the judge granted the mother a declaration that the local authority had breached the mother's human rights by abandoning the care plan for her rehabilitation with the child without giving the mother an opportunity to participate in the decision-making process. However, he refused the mother damages on the basis that the declaration provided just satisfaction, suggesting that the concept of damages was alien to the welfare jurisdiction of public law proceedings. It had been established that at the time of the decision-making, the mother was threatening serious if not fatal harm to others and possibly to herself and the child.
A failure to consult by a local authority in the shift from one track to the other in a concurrent planning case was essentially a breach of the parents Art 8 right to respect for their family life under the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (European Convention). It was clear that the European Convention generally favoured an award of damages in cases in which local authorities had infringed the rights of parents under Art 8 by shortcomings in the procedures by which they had taken children into care or kept them in care. The judge had failed adequately to explain his refusal to award damages. However, the breach in this case was purely procedural, and damages would not be awarded. The evidence strongly suggested that the mother had not had the capacity to participate at the material time. The mother's emotional outrage either preceded the removal or flowed from it; there was no evidence that exclusion from the decision-making process was the cause of any independent or additional injury to the mother.
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