Recently, Deputy High Court Judge Sir Robert Francis QC ruled in the case of Williams & Anon v London Borough of Hackney. In this landmark judgment, a husband and wife took the local authority to court for wrongly placing their eight children in foster care and sought damages.

In the judgment, it was determined that the couple’s children were unlawfully removed by the local authority and, as such, the Judge awarded them £10,000 each in damages for a breach of their right to a family life. This case is one of the first in which damages have been awarded under the Human Rights Act in childcare proceedings and, as such, it poses a number of interesting questions and issues.

Hackney Council said that the parents had given their consent under section 20 of the Children Act 1989 for their children to be kept in care for longer than the 72 hours, the time allowed for children to be held under police powers. The Judge however found that no valid consent was given, as there was no evidence that the parents were told to seek legal advice, or sought it. Because of their distressed state, they believed they would never see their children again unless they signed the agreement.

The judge said that although the initial separation was justified, it was unlawful for the authority to keep the children beyond 72 hours.

Arising from this is the need for the Local Authority to ensure that the parents seek legal advice and it cannot pressurise parents into signing a Consent Order. Nevertheless, given the time constraints in obtaining advice, it is appreciated that there remains a fine line for the Local Authority and Court to tread.

Moreover, any Local Authority must be aware that, if it fails to act appropriately and without criticism throughout, it could be liable for damages. In fact, if it doesn’t do so, it may be in breach of a fundamental human right to a private and a family life. This clearly places the Authority at risk of damages and costs, if it fails to take these fundamental Human Rights Act principles into account.

Of equal relevance is the side issue, contained in paragraphs 114-117 of the judgement. The Judge held that a delay in bringing proceedings by 6 years does not make it inequitable to allow the claim to proceed. Clearly, in this situation, Judge Francis felt that this was a loving family, wronged by the Local Authority, and overwhelmed by the law. In his judgment, he stated, “If ever there was a case illustrating the challenges that face children, parents, public authorities and the court when concerns are raised about the safety and welfare of the children it is this.”

In conclusion, it must be noted that Local Authorities need to be mindful of the circumstances and understanding of the parents against who they are seeking to proceed. And, if they fail to do so, the Authority is at clear risk on costs. A modern-day application of the ‘thin skull rule’ was seldom more relevant.