Breaches, procedures, remedies & lessons learned

Transcription

1 HUMAN RIGHTS ACT CLAIMS Breaches, procedures, remedies & lessons learned Karl Rowley QC Frances Heaton QC St John s Buildings March 2017 St John s Buildings 1

2 Introduction Applications for breaches of children s and parent s Human Rights in the context of care proceedings are becoming increasingly prevalent. The aim of this talk is to set out the circumstances that give rise to applications of this nature, the procedure, the remedies, and lessons to be learned. There are a number of recent cases which are recommended reading: Medway Council v M and T (by her Children s Guardian) [2015] EWFC B164 (13th October 2015) X, Y, Z v West Sussex County Council [2016] EWFC B44 (23 rd February 2016) Kent County Council v M and K (by her Children s Guardian) [2016] EWFC 28 (13 th May 2016) SW & TW (Human Rights Claim: Procedure) (No1) [2017] EWHC 450 (Fam) (8 th March 2017) Breaches Generally it is breaches of Article 6 (right to a fair trial) and/or Article 8 (right to respect for private and family life) rights that provide the basis for such applications. The aim of a local authority s intervention in a minor s and her family s life is to secure a better outcome for her in a proportionate and timely manner to rectify problems (so far as they are able) and so that a child has a better chance of achieving her potential. Breaches generally affect a child s emotional and/or physical wellbeing, her lack of security and stability and on-going uncertainty surrounding her placement and care arrangements. Significant delay in issuing court proceedings (e.g. where a child/young person has been accommodated pursuant to section 20 CA 1989 or an unachievable placement order remaining in place when a decision has been made that the care plan must change to long term fostering) naturally impedes a minor s role in decision making by depriving her of a voice through a Children s Guardian to safeguard their interests and the ability of the court to oversee the care planning and secure a long term outcome at an early stage. The protection provided by Article 8 extends to each stage of the decision making process in child protection and is not confined to steps undertaken within proceedings. Claims most often arise under the following broad headings: March 2017 St John s Buildings 2

3 1. Failures by a local authority to follow fair and proper processes and procedures - e.g. Northamptonshire CC v AS and Ors [2015] EWHC 19; 2. Removal of children e.g. H (A child Breach of Convention Rights Damages) [2014] EWFC 38; 3. Use of EPOs - e.g. Langley v Liverpool City Council and Another [2005] EWCA Civ 1173; 4. Actions of LAs following the making of final care and placement orders - e.g. A & S v Lancashire County Council [2012] EWHC 1689 Fam. Jackson J found the LA had breached the children s article 3, 6, and 8 rights. Placement orders had been granted but they had never been placed for adoption and their family ties had been cut. The case helpfully considers the role of the IRO and IRO service at Examples of acts (including failures to act) which the higher courts have declared to be unlawful include: a. A failure to conduct and/or update proper assessments of the needs of a child in its care for an unacceptable period of time; b. A failure to formulate and to implement proper and robust care planning for a child in its care for an unacceptable period of time; c. A failure to meet the assessed needs of a child in its care in a proactive manner for an unacceptable period of time; d. A failure to identify and put in place appropriate support (including therapeutic intervention) for a child in its care; e. A failure to issue court proceedings in a proper and timely manner for a child in its care - see Re N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ The President criticised the LA for delaying issuing proceedings for 8 months and said at 157: section 20 may, in an appropriate case, have a proper role to play as a short-term measure pending the commencement of care proceedings, but the use of section 20 as a prelude to care proceedings for a period as long as here is totally unacceptable. It is in my judgment, and I use the phrase advisedly and deliberately, a misuse by the local authority of its statutory powers ; f. A failure to promote contact between a child in its care and his parents and/or siblings; March 2017 St John s Buildings 3

4 g. A failure to keep the parents of a child in its care informed and sufficiently involved in its decision making process; h. A failure on the part of the IRO to challenge the conduct of the LA and to promote the issue of court proceedings. For example in A & S v Lancashire Jackson J considers the role of the IRO and IRO service at to monitor, persuade, cajole, encourage and criticise fellow professionals in the interests of the child. See also Re X, Y and Z (Damages Inordinate delay in Issuing Proceedings) 2016 EWFC B44 on HR breaches by IRO; i. A failure to properly analyse evidence, to review decision-making in proceedings, and to make timely disclosure. Procedure An application for declaratory relief and the possible award of damages for breach of an individual s rights under the Convention is governed by sections 6, 7 and 8 of the Human Rights Act Section 6(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.. S.6(6) An Act includes a failure to act Section 7(1) A person who claims that a public body has acted in a way which is made unlawful by.s6(1) may:- (a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act. Munby J (as he then was) in Re L (Care Proceedings; Human Rights Claims) [2004] EWCA Civ 54, provided procedural guidance: There is no need for any free-standing application. Claims under HRA 1998 should be heard within proceedings, whichever court they are being heard in. And see Re V (A Child) (Care Proceedings; Human Rights Claims) [2004] EWCA Civ 54 applications March 2017 St John s Buildings 4

5 for breaches of s.6(1) HRA should be raised in accordance with section 7(1)(b) before the tribunal seised of the matter.] There is no need for cases in which a HRA argument is being advanced for the case to be transferred to the High Court - only where they are genuinely novel or complex points. HRA issues should be raised as soon as possible in proceedings and if they give rise to a need for a transfer to the High Court the whole case should be transferred. If a claim is raised after the proceedings have concluded it should be issued in the High Court. The inherent jurisdiction is not the appropriate vehicle by which to argue a claim. This guidance has been importantly supplemented by Cobb J in SW & TW (Human Rights Claim: Procedure) (No1) [2017] EWHC 450 (Fam) this month. It is of course appropriate for HRA 1998 claims which arise in, and on the same facts as, CA 1989 proceedings to be considered by the court within the CA 1989 proceedings. Section 7(1)(b) enables every tier of the Family Court, including the magistrates, to give effect to the parties' Convention rights (see Re L (A Child) v A Local Authority and MS [2003] EWHC 665 (Fam) at [31]); Applications for substantive relief (declarations and/or damages) under the HRA 1998 should be issued as civil proceedings by way of a Part 8 CPR 1998 claim, and should not be issued on a Form C2 (even if within existing CA 1989 proceedings). While rule 29.5(2) FPR 2010 requires the party who seeks to rely on a convention right under the HRA 1998 to notify the court of this intention by way of "application or otherwise in writing", it is important that claims for substantive relief such as declarations and/or damages should be issued formally, even if made within existing proceedings; if the party is seeking to "rely on the Convention right or rights" (section 7(1)(b)) within the CA 1989 proceedings to influence the manner in which the family court exercises its powers, a lesser degree of formality contemplated by rule 29.5 may well be appropriate. An application for substantive and significant relief should not be 'made' by a party's advocate merely introducing such a case (albeit "in writing") in a skeleton argument for court, as happened in the instant case; A child claimant in HRA 1998 proceedings requires a litigation friend appointed under Part 21 of the CPR 2010; the appointment of a guardian or litigation friend for this type of claim is not effected under rule 16 FPR While Cafcass accepts that Children's Guardians appointed in 'specified proceedings' may give advice about the March 2017 St John s Buildings 5

6 appropriateness of a child making a HRA 1998 claim, Cafcass cannot authorise its officers to act as litigation friends to children claimants, having regard to its functions, which are set out, inter alia, in section 12 of the Criminal Justice and Court Services Act 2000 (CJCSA 2000) moreover, Cafcass does not, as a matter of policy, support Children's Guardians acting as litigation friends in HRA 1998 proceedings; It is therefore not appropriate for a Children's Guardian who has been appointed in specified CA 1989 proceedings to act as an informal litigation friend, or 'front' the claim as if he/she is a litigation friend, in a related HRA 1998 claim. The status of litigation friend can only be bestowed following one of two recognised formal processes either the filing of a certificate of suitability under CPR Part 21.4(3)/Part 21.5(3) or pursuant to court order (Part 21.6); Such applications under the HRA are governed by the Civil Procedure Rules, not the FPR Thus the regime of Part 36 CPR 1998 ('Offers to Settle') applies to them. The full costs regime in Part 44 CPR 1998 also applies, including (in contrast to the position in family proceedings) the general rule that 'costs follow the event' in HRA 1998 claims (CPR, Part 44.2(2)(a): "(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party"; see also CZ v Kirklees MBC [2017] EWFC 11 at [61])); Insofar as it is not clear from CZ v Kirklees, from P v A Local Authority [2016] EWHC 2779 (Fam) (Keehan J), or from H v Northamptonshire County Council & the Legal Aid Agency [2017] EWHC 282 (Fam) (Keehan J), the publicly funded claimant in a HRA 1998 claim who is also publicly funded in associated (or 'connected': section 25 Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO 2012)) proceedings, is vulnerable to a claim for recoupment of the costs of both sets of proceedings by way of statutory charge from any award of HRA 1998 damages; In HRA 1998 proceedings, the Legal Aid Agency may issue a publicly funded certificate for a claimant to pursue declarations only, and not damages, as it did in the instant case, for the father; if this is so, this may have implications for (a) entitlement to any public funded remuneration for the lawyers for the work done on seeking a damages award, (b) the extent to which the successful claimant can recover any costs referable to pursuit of the claim for damages from the Local Authority if they have not been authorised to expend costs in pursuit of the same, and/or (c) the ability of the LAA to recoup funds from the damages (applying the statutory charge) for work done in respect of which there was no public funding certificate; March 2017 St John s Buildings 6

7 The instant case illustrated once again that the cost of pursuing relief under the HRA 1998 can very swiftly dwarf, or indeed obliterate, the financial benefits sought. Many such cases are surely suitable for non-court dispute resolution (NCDR), and the Judge enthusiastically recommended that parties divert away from the court to mediate their claims. In order to bring such an application the applicant has to prove that: a. The local authority has acted in a way which is incompatible with a Convention right; b. The applicant is a victim of the unlawful act; c. In order to succeed in a claim for damages that it is necessary to make such an award to afford just satisfaction. As is clear from the above, the award of damages is discretionary i.e. a declaration that there has been a breach does not automatically lead to the making of an award of damages. Therefore an award of damages is only made where the court considers it to be necessary in order to provide the person whose rights have been breached with just satisfaction. That will plainly depend on the court s overall assessment of: a. the seriousness of the breaches, and b. the consequences to the victim of those breaches. In each of the cases set out in the introduction the court found an award of damages was necessary. Often in cases where an application is made on behalf of a child those representing parents and/or siblings pursue a similar claim in respect of their rights (e.g. where they have been denied contact with a child in care and/or excluded from participation in decision making). Where a local authority unsuccessfully opposes an application the court has a discretion to award costs against it and that is exemplified in a number of such cases which have come before the court in recent times. March 2017 St John s Buildings 7

8 Remedies Section 8 HRA 1998: (1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate. (2) But damages may be awarded only by a court which has the power to award damages, or to order the payment of compensation in civil proceedings. (3) No award of damages is to be made unless, taking into account of all the circumstances of the case, including (a) (b) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and the consequences of any decision (of that or any other court) in respect of that act, (4) (5).. the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made. Although the HRA envisages a compensatory regime based on just satisfaction remedying the violation in and of itself is generally considered sufficient. Remedies include quashing the LA s decision in care planning for a child where there has been a breach of the child and/or parents rights, granting an injunction preventing a child being removed from a placement or removal from a parent pending a full hearing. The Court of Appeal in P v South Gloucestershire Council [2007] EWCA Civ 2, where there were breaches of Article 8, found that an award of declaratory relief for breaches does not mean that an award of damages will necessarily follow. Until more recent times there has been a reluctance to award to damages in care proceedings. However that appears to have changed evidenced by an increasing willingness to make such awards. March 2017 St John s Buildings 8

9 In Medway Council v M and T (by her Children s Guardian) [2015] EWFC B164 (13th October 2015) Her Honour Judge Lazarus suggested some factors to be taken into account when calculating the level of damages:- i) The length of the proceedings ii) iii) iv) The length of the breach The severity of the breach Distress caused v) Insufficient involvement of the parent or child in the decision making process vi) Other procedural failures This table was produced in the Medway case and provides a useful summary of the awards made. Case Summary Actual Award Adjusted Award Today in Sterling W v UK (1987) 10 EHRR 453 Art 8 insufficient involvement in decision making, termination of contact and length of proceedings. Art 6 non-availability of remedy 12,000 each parent 30,534 H v UK (1991) 13 EHRR 449 TP & K v UK [2001] 2FLR 549 P, C, & S v UK [2002] 2 FLR 631 Breach of Art 6 length of proceedings unreasonable (Nov 1978 to Jun 1981); failure of local authority to notify parties of placement for adoption for 5 months Breach of Art 8 delay in proceedings Consideration of Damages adjourned. 12,000 28,000 Breach of Art 6 not found. Breach of Art 8 on basis of failure to involve in decision making by not disclosing relevant information/documents 10,000 each Breach of Art 13 non-availability of remedy to parent determine allegations of local authority breach of Art 8. 1 year period of breach. Breach of Art 6 lack of representation Breach of Art 8 removal of child shortly after birth,; lack of involvement in decision making 12,000 each applicant 14,845 13,115 March 2017 St John s Buildings 9

10 Venema v The Netherlands [2003] 1 FRC 13 Breach of Art 8 non-involvement in decision making; separation of 5 months, distress and anxiety 15,000 both parents 16,153 (c. 8,000 each) Re H (a child: Breach of Convention Rights: Damages) [2014] EWFC 38 Birth ; Application ; Placement Agreement ; Final Order Effect on parents [paras 41-46]; Declarations [paras 49 & 50] Quantum [para 86] 11 month period of breach. 12,000 total 6,000 each parent Northamptonshire CC v AS,DS, & DS [2015] EWHC 199 (Fam) S20 accommodation (when child 15 days old); Decision to commence Proceedings ; Application ; Family Placement ; Final Hearing local authority failure to comply with directions 10 month period of breach 12,000 to parent 4000 to child (NB agreed settlement figures, not award) 12, Williams v LB of Hackney [2015] EWHC 2629 (Fam) Multiple Cause of Action most dismissed. However, court found that section 20 agreement was not validly obtained or, in any event, was subsequently withdrawn. Police Protection ; Agreement ; Withdrawal ; children returned month period of breach. 10,000 each parent 10,000 Unlawful removal. C into foster care Re AS (unlawful removal of a Legal planning meeting decides should issue s31 child) [2015] EWFC B150 proceedings Letter sent to Mother first (Brent) informing her of foster care and intended issue Proceedings issued month period of breach costs 3000 March 2017 St John s Buildings 10

11 Also attached is the ALC s helpful schedule produced last year. Since then, there have been a number of further decisions: In Re X, Y and Z (Damages Inordinate Delay in Issuing Proceedings) [2016] EWFC B44 the court found the LA had acted unlawfully and in violation of the children s HR by: Exercising PR for X and Y for 2 ½ years when they did not hold PR; Failing to promote contact between the children and their mother; Failing to issue proceedings for almost 2 ½ years, failing to conduct proper assessments and allowing the children s permanence to drift; and IRO failed to challenge the LA s conduct sufficiently robustly. Damages were found to be required, and set at 20,000 for each child and 5,000 for the mother. In Kent County Council v M and K [2016] EWFC 28. Theis J found the child s Article 6 and 8 rights had been breached because the LA had: 1. Failed to assess K from March 2012 to July 2015; 2. Failed to implement a care plan that met K s needs from March 2012 to July 2015 including ensuring there were sufficient procedures in place to give effect to the recommendations of the LAC Reviews; 3. As a result of 1 and 2 the LA failed to provide K with a proper opportunity to secure a suitable long term placement and settled home life; and 4. Failed to issue proceedings in a timely manner from March 2012 to November 2015 depriving K of protection under CA 1989, access to court and procedural protection of a children s guardian. Theis J found an award of damages under section 3 HRA 1998 to be necessary, and so, having considered all the specific circumstances, noting quantification is highly fact specific, awarded 17,500. In addition, finding that where the breaches continued for such a long period of time, made an order for K s costs limited to the HRA application to be paid by the LA. March 2017 St John s Buildings 11

12 In P v A Local Authority [2016] EWHC 2779 (Fam) Keehan J had to determine whether the Legal Aid Agency's statutory charge applied in respect of a sum of damages paid to the applicant (P) by the respondent local authority. P was a 17-year-old. He had been born female but had been referred to a gender identity clinic after deciding that he wanted to change his identity to be male. His relationship with his adoptive parents had broken down because of their difficulties in coming to terms with his decision. P was moved to live with foster carers under s.20. He did not want his adoptive parents to be involved in his life. During wardship proceedings, the court ordered that the local authority should not share with the parents any information regarding P's medical treatment or his well-being without P's express consent. An employee of the local authority disclosed personal information about P to third parties who were friends of his adoptive parents. P's mental health was severely compromised by that disclosure. He made a number of suicide attempts and self-harmed several times. He issued a letter before action, indicating an intention to bring a claim against the local authority under the HRA. Before it became necessary to issue proceedings, the local authority admitted liability, conceding that it had breached P's right to respect for his private and family life under Art.8. It agreed to pay damages of 4,750 to P, and the court approved that award under CPR Pt 8. Although P received legal aid during the wardship proceedings, the agency refused to grant legal aid for the proposed damages claim. When the human rights issue came before the court, it was clear that if the statutory charge applied, P would receive no damages from the human rights claim because the entire award would be clawed back on account of the costs incurred by P's legal team during the wardship proceedings. However, the agency declined to waive the statutory charge because it was not satisfied that the "wider public interest" test in the Civil Legal Aid (Statutory Charge) Regulations 2013 reg.9 was met. The agency submitted that for the statutory charge to be waived, the two conditions in reg.9 had to be satisfied at the time when the application for funding was made and the agency director made the determination that the applicant qualified for funding. Keehan J held that the Lord Chancellor, through the director of the agency, had no power or discretion to waive the statutory charge, if it was applicable in the instant case. The preconditions set out in reg.9 had to be satisfied at the time when the determination of funding was made, and a decision to waive the statutory charge had to be made at the same time. That had not happened in the instant case and the preconditions were therefore not satisfied. It was not clear why the Regulations placed that limitation on the time when a decision about waiver had to be made. The court was not aware of any public interest or policy reasons for that. It was regrettable that the discretion to waive the statutory charge was fettered in that way. March 2017 St John s Buildings 12

13 The agency's decision on the issue of the significant wider public interest test was plainly wrong and/or unreasonable. P's case was especially significant and important for two principal reasons. First, the breach resulted from the acts of a person in the employ of a local authority to which P's accommodation and day-to-day care had been entrusted. Second, local authorities held a very significant amount of personal, private and sensitive information about the children and young people with whom they were involved. In the instant case, the manner in which the agency had made determinations on public funding was extremely unfortunate. In some aspects, its decisions were plainly wrong or unreasonable and in others, its reasoning was difficult to understand, if not incomprehensible. It would be extremely regrettable if P were to be denied the benefit of the damages awarded to him as a result of the wrongful conduct of an organ of the state. However, given that the agency had refused to fund a human rights claim for damages, it appeared that the damages awarded to P had been recovered in a claim which did not have the benefit of a public funding certificate. There was no legal or factual connection between the wardship proceedings and the human rights claim. The latter, together with quantum of damages had been settled before a claim was issued. CPR r and Pt 8 set out the appropriate procedure when a settlement was reached concerning a child or young person prior to the issue of proceedings. There was no reason why P should not be permitted to issue a claim form, as required by r.8.2, and in due course proceed to have the agreed award of damages approved. Damages awarded to P in such Pt 8 proceedings would not be recovered in proceedings in connection with which civil legal services were provided for the purposes of LASPO s.25. Accordingly, the statutory charge could not apply to them. In GD, BD (Children by their Children s Guardian) & MD v FD, Wakefield MDC, West Yorkshire Police & Ian Shiels [2016] EWHC 3312 (Fam) Cobb J heard a case in which claimants brought proceedings under HRA. The claimants were two children and their mother. Their claims arose from the conduct of two public authorities, namely the respondent local authority and the intervener police authority, in public law proceedings under the CA 1989 Part IV.. In February 2015, the local authority obtained an interim care order in respect of the children following the arrest of their parents on suspicion of assaulting a girl under the age of 13 and possession of multiple indecent images of children. The following month, the police received information exonerating the mother but the local authority was not advised that she had been "eliminated" from enquiries until 9 July On 10 July, the parents stated that they were separating "out of necessity, not because they want to" which was relevant to the issue of the continuing potential risk posed by the mother to the children irrespective of her role as possible perpetrator. On 24 August, the father pleaded guilty to a number of charges of downloading indecent images of children. The children returned home to the mother's care on 13 December March 2017 St John s Buildings 13

14 The declarations sought were that the local authority and the police authority had acted in a way which was incompatible with the claimants' rights pursuant to ECHR art.6 & 8, and had acted unlawfully. The claimants' case was that the question of rehabilitation of the children back to the mother's care should have been considered and/or advanced by no later than 21 August. Significant concessions were made by both public authorities which, to a large extent, established the grounds for the declarations. Damages were agreed. The declarations sought were made. There was no dispute that the art.6 and art.8 rights of the claimants were breached by the public authorities concerned in a number of significant respects during the course of the joint investigation. The breaches were profound, obvious and wide-ranging. For a period of time, all contact between the children and their parents was suspended and, when restored, was heavily circumscribed. While there might have been sound reasons for that initially, the local authority should have been proactive in testing the police's decision-making at an earlier stage. The failures of the police authority to comply with its duty of disclosure were extensive. They pervaded the entire course of the case, extended the litigation, and ultimately influenced its outcome. There were repeated failures on behalf of both public authorities to effect disclosure of relevant documents and information which compromised the ability of the claimants' legal teams to prepare their cases. If a more conscientious approach had been taken by both public authorities, and had disclosure been made in a timely and appropriate way, the claimants' solicitors would have been able to press for the local authority to re-evaluate its case, potentially by restoring the matter before the court for early determination of the appropriateness of continued care orders. The local authority's case management was rudderless, lacking in supervision, hampered by a lack of clear information and almost always reactive rather than proactive. There was, however, no evidence of professional misconduct or negligence on the part of the local authority lawyer or social worker, nor was there any loss of objectivity. Local authorities and police child investigation teams carried a heavy burden of responsibility in the discharge of their safeguarding duties and in the joint investigation of offences involving children. The culpability identified in the instant case was both individual and systemic. The damage was significant: for many months two children were separated from their mother against whom allegations of the most serious form of abuse were levelled, when all the while evidence was available to exonerate her. The claimants were subjected to a largely inexcusable failure of professional good practice with serious consequences for them all. The claimants were entitled to receive an award of damages pursuant to s.8(3) of the 1998 Act to afford just satisfaction to them. In each case the claims for damages were agreed with the public authorities each agreeing to pay one-half of the agreed sum: 10,000 for the mother, and 5,000 for each child. The agreed awards were both reasonable and proportionate and were approved. March 2017 St John s Buildings 14

15 The judgment included a section on "Lessons Learned" which was designed to remind the professionals involved, and others who read the judgment, of some cardinal principles of good practice. There was no need for new guidance; there was, however, a need for those engaged in such investigations and proceedings to familiarise themselves with all the guidance available, understand it and implement it. In Re H (A Minor) v Northamptonshire County Council & Anor [2017] EWHC 282 (Fam), during the course of care proceedings in relation to the 8-year-old boy an application for declarations and damages was made under the Human Rights Act 1998 against the local authority. The HRA claim was settled and the local authority agreed to pay 18,000 in damages. An issue arose as to whether the Legal Aid Agency would contend that the statutory charge would attach to any damages awarded to the child in respect of the costs incurred under the public funding certificate issued in respect of the care proceedings. Ultimately the LAA decided the statutory charge would not apply to any HRA damages awarded to him. The process by which the LAA came to that decision gave rise to the local authority seeking an order for costs against the Lord Chancellor. Keehan J held that the court did have the power to make a costs order against the Lord Chancellor and in the circumstances of this case it was fair, just and reasonable to do so. Costs payable were summarily assessed at 10, In Re CZ (Human Rights Claim: Cost) [2017] EWFC 11, before Cobb J, a child and his parents applied for declarations that the respondent local authority had violated their rights under Art.6 & 8 in the purported fulfilment of its safeguarding duties. They also claimed damages and costs. When the child was a week old and still in hospital following his birth, the local authority had issued an application seeking public law orders out of concern about his parents' longterm parenting capacity. At a hearing on the same day, at which the parents were neither present nor represented, an interim care order was made. The baby was removed from the parents' care and placed with the paternal grandparents. The separation lasted 11 weeks. The applicants obtained legal aid to pursue human rights claims. The local authority conceded that it had breached art.6 in failing to inform the parents of the hearing. That breach was compounded by its repeated, and incorrect, assertions to the court that the parents and CAFCASS had been notified. It also conceded a breach of the family's art.8 rights. It agreed that if damages awards were necessary to afford the applicants just satisfaction, the sum of 3,750 each would be appropriate. It also agreed to pay the applicants' costs in both the care proceedings and the human rights claim, limited to certain periods. March 2017 St John s Buildings 15

16 The issues were (1) whether damages were appropriate; (2) if so, whether the costs award should cover the whole period of litigation so as to spare the damages awards from being subject to the legal aid statutory charge. The applicants argued for a full costs award (a) under the court's discretion in the HRA s.8(1) so as to receive a "just" outcome under s.8(3); (b) on the basis of the local authority's unreasonable conduct; (c) because, in order to be an "effective" remedy under ECHR Art.13, the compensation had to be received by them in full, which meant that they had to recover their costs in full. Cobb J held that a damages award was appropriate. Separation of a baby from its parents represented a very substantial interference with family life. A without-notice application had not been justified and it was questionable whether there was a proper case for separation at all. The failure to notify the parents of the hearing was particularly egregious. However, there were factors which moderated the seriousness of the local authority's conduct. An award of 3,750 per applicant was appropriate to give just and fair satisfaction. The discretion in s.8(1) of the 1998 Act did not oblige the court to make a costs award simply in order to achieve a "just" outcome under s.8(3). Damages under s.8(3) for nonpecuniary loss were likely, in cases such as the instant one, to be reasonably modest. If Parliament had intended them to be exempt from the statutory charge, it would have made express provision in the Civil Legal Aid (Statutory Charge) Regulations It would be unprincipled to increase a damages award to reflect the cost of the proceedings, because it would require the court to ignore or forgive reckless, wasteful or profligate costs just to ensure that claimants received their damages, which could not be right. Furthermore, Pt 3 para.17 of the practice direction issued by the president of the ECtHR entitled "Just Satisfaction Claims" referred to costs awards being upheld "only in so far as they are referable to the violations it has found". That guidance supported a conclusion that costs were restricted to the period in respect of which the local authority had already offered to pay. Human rights claims arising within the same facts covered by proceedings under the CA 1989 had to be considered within the latter. Section 7(1)(b) of the 1998 Act enabled every tier of the Family Court to give effect to the parties' Convention rights. The costs incurred in the care proceedings were determined by reference to the court's wide discretion in the FPR 2010 r.28, whereas those incurred in the human rights claims were determined under CPR r.44.2(2)(a), where the general rule was that the unsuccessful party would pay the successful party's costs unless the court made a different order, having regard to the parties' conduct and other factors. The applicants were the successful parties, but their litigation conduct meant that they had forfeited their entitlement to claim costs for the whole litigation period: they had not conscientiously tried to settle their claims, whereas the local authority had genuinely tried to do so. P v A Local Authority, supra, was not followed. In relation to the care proceedings, the applicants failed to establish that the local authority had acted unreasonably or reprehensibly. March 2017 St John s Buildings 16

17 The applicants had had effective access to the court, and had received declarations and damages. While they might feel that the case outcome was unfair, it was not absurd. The trade-off for receiving public funding to pursue a case was that the statutory charge would apply, thereby enabling the Legal Aid Agency to recoup its costs. The 1998 Act should not be interpreted so as to by-pass the LASPO regulations. In the most recent case before Cobb J, SW & TW (Human Rights Claim: Procedure) (No1) [2017] EWHC 450 (Fam), there were two children, SW and TW. Their parents had separated in 2012 and, following private law proceedings, the mother made a number of allegations about the father's conduct towards the children which included allegations of sexual abuse. The resulting investigation led to a lengthy suspension of contact between the father and the children and invasive medical examinations which were later accepted to have been disproportionately intrusive. Subsequently, in a child protection conference, the decision was made by the police and social services to formally investigate the allegations. At no time was the father involved in, or able to contribute, to this decision-making or to the investigation. There was a lack of strategic planning of the investigation, and a further subsequent examination of TW under general anaesthetic which revealed no signs of sexual abuse. It was later acknowledged by the local authority that the mother, in her pursuit of the allegations, had caused the children significant harm. In July 2015, the children's mother died unexpectedly and the children were placed with the maternal grandmother. Their father was not informed of her death but learned of it some time later from a third party. A number of applications had been made to the court in respect of the children. There were cross-applications for private law orders by the children's father and maternal grandmother, an application for a public law order by Luton Borough Council and applications by the children and the father under section 7 of the Human Rights Act for declarations and damages in respect of the way in which the local authority had dealt with the matter prior to proceedings being issued. Incorrectly, the guardian acted for the children in the HRA application. She was discharged and the OS invited to act as litigation friend. Though acting in good faith, the guardian s legal team had improperly agreed a quantum of damages with the LA. The Judge will consider whether this position can be rectified at a further hearing. The LA conceded, in September 2016, that the father was entitled to a number of declarations concerning breaches of his rights over the LA s failure to inform him of and involve him in the child protection investigation. These breaches were ongoing until the issuing of proceedings, a total of about 9 months. The father initially sought damages of ,000. In the event, the sum was compromised at 15,000. March 2017 St John s Buildings 17

18 In its Part 36 letter, the LA offered to pay the father's costs of the HRA 1998 claim; the father did not accept that offer within the allotted time. Both parties submitted detailed argument on costs at this hearing, ranging across the full gamut of issues. Overshadowing those arguments was the identifiable likelihood that the Legal Aid Agency will successfully recoup from the award of damages the sums which it has expended on the father's public funding certificate for the CA 1989 and/or the HRA 1989 proceedings. On the second day of the hearing, the Local Authority proposed a pragmatic solution, which was that the Local Authority would contribute the sum of 1,000 towards the father's HRA 1998 costs. Given that the father was unlikely to benefit from the damages or costs, the Judge agreed. Lessons learned Parents should expect to know and understand at each stage what is expected of them by a LA Great care taken when section 20 CA 1989 is used as a means of accommodating a minor do the parents understand, it should be a short term arrangement prior to court proceedings, adequate clear co-operative planning during accommodation. S20 does not give a LA PR. Proper (timely) assessments and updated assessments of the child s needs and of parents. Is there a need for the LA to conduct a review of children accommodated under section 20? Parents must be effectively communicated with, their views canvassed and properly considered. Court orders and directions must be complied with. Meaningful contact between parents and siblings should be maintained wherever possible. Recognition of errors an apology lessons learned set out by the particular LA. CPR governs; so focus on settlement offers. Consider non-court resolution. Guardian cannot act for child. Costs. The LAA is likely to recoup: cui bono? March 2017 St John s Buildings 18

19 Conclusions The award of damages underlines that LAs hold significant powers and duties. With those come significant responsibilities to ensure that procedures are followed, that families are properly informed and involved in decision-making, and that their actions are fair, proportionate and necessary. LAs should be aware that monetary awards are perhaps more likely to be made, and punishes them for their failures; though children and families may not actually benefit from much more than declarations unless the HRA proceedings are conducted with a close eye on costs. Karl Rowley QC Frances Heaton QC St John s Buildings March 2017 clerk@stjohnsbuildings.co.uk March 2017 St John s Buildings 19

20 SCHEDULE OF CASES DAMAGES IN HRA CLAIMS INVOLVING CHILDREN WITHIN CARE PROCEEDINGS Important points to note: 1. This document has been created by the Association of Lawyers for Children (ALC). It remains the property of the ALC. The ALC will be responsible for maintaining the document and updating it from time to time. 2. The ALC invites practitioners to download, print, circulate and use the document but it should not be amended or changed without prior written permission of the ALC. 3. The document does not purport to be a comprehensive schedule of all cases and should not be relied on as such. The ALC hopes that the document serves as helpful reference tool. The ALC cannot regularly check that the schedule consists of all relevant cases, nor can the ALC be responsible for the accuracy of information supplied by practitioners for inclusion in the schedule. 4. The ALC, its officers and members, and contributors to this schedule do not accept liability for its contents. Use of the information contained within the schedule constitutes agreement by the user to this provision in respect of liability. 5. Practitioners are invited to contribute cases, whether reported or otherwise (including settlements reached outside of proceedings), to the schedule. To refer a case for inclusion, please provide the information that the headings of the table require to: admin@alc.org.uk. 6. For cases which already feature in the schedule, if a practitioner recognises the cases as their own and is happy for their contact details to be included in the further contact details column, please the ALC. 7. The ALC is very grateful to Mr Gordon Reed (Consultant Solicitor at Messrs Sternberg Reed and Chief Assessor of the Law Society s Children Law Accreditation Scheme) for producing a schedule of cases which the ALC has been able to lift from in order to create this schedule. Case Summary Award / Name and web link settlement figure W v UK Art 8 insufficient involvement in decision-making, termination 12,000 each P Issues re: legal costs Further contact details

21 (1987) 10 EHRR 453 of contact and length of proceedings. Art 6 non-availability of remedy Adjusted for 2016: 30,534* H v UK (1991) 13 EHRR 449 TP & K Mother v UK [2001] 2 FLR 549 P, C, & S v UK [2002] 2 FLR 631 Venema v The Netherlands [2003] 1 FRC 13 Coventry CC v C [2012] EWHC 2190 (Fam) H (A Child - Breach of Convention Rights - Damages) [2014] EWFC 38 Breach of Art 6 length of proceedings unreasonable (Nov 1978 to Jun 1981); failure of LA to notify parties of placement for adoption for 5 mths. Breach of Art 8 delay in proceedings. Consideration of damages adjourned Breach of Art 6 not found. Breach of Art 8 on basis of failure to involve in decision-making by not disclosing relevant info/docs. Breach of Art 13 non-availability of remedy to determine allegations of LA. Breach of Art 8. 1 yr period of breach Breach of Art 6 lack of representation; Breach of Art 8 removal of C shortly after birth,; lack of involvement in decisionmaking Breach of Art 8 non-involvement in decision-making; separation of 5 mths, distress and anxiety Quantum of damages under s.7 agreed between recipient M and LA. Quantum not set out in transcript although there is reference to it being utilised to provide long needed therapy for M. Birth ; Application ; Placement agreement ; Final order Effect on P [paras 41-46]; Declarations [paras 49-50]. Quantum [para 86]. 11 mth period of breach 12,000 Adjusted for 2016: 28,000* 10,000 each P Adjusted for 2016: 14,845* 12,000 each applicant ( 13,115) 15,000 collectively to Ps ( 16,153 - c 8,000 each) Unknown 6,000 each P Northamptonshire S.20 accommodation (when C 15 days old); Decision to 12,000 to C

22 County Council v AS & Ors (Rev 1) [2015] EWHC 199 (Fam) Williams & Anor v London Borough of Hackney [2015] EWHC 2629 (QB) CoA decision: [2017] EWCA Civ 26 commence proceedings ; Application ; Family placement ; Final Hearing LA failure to comply with directions. 10 mth period of breach Multiple cause of action most dismissed. However, court found that s.20 agreement was not validly obtained or, in any event, was subsequently withdrawn. Police protection ; Agreement ; Withdrawal ; children returned mth period of breach Note: decision of High Court was successfully appealed by the LA to CoA. CoA held the claims should have been dismissed and allowed the appeal 4000 to each P (NB agreed settlement figures, not award) 10,000 each P Re AS (unlawful removal of a child) [2015] EWFC B150 Unlawful removal. C into foster care Legal planning meeting decides should issue s.31 proceedings Letter sent to M first informing her of foster care and intended issue Proceedings issued mth period of breach 3000 to M 750 costs Medway Council v M & T [2015] EWFC B164 Worcestershire CC v mother and B (a Breach of Art 6 by: - Failure to issue care proceedings in a timely manner delay of 2 yrs, 3 mths AND breaches of Art 8 by: - Unlawful removal from M s care; - Failure obtain capacitous s.20 consent; - s.20 without consent 2 yrs, 3 mths; - Failure inform M / involve her in decision making; - Failure adequately address issues re: M and C relationship and contact; - delay in addressing the above Breach of Arts 6 and 8 by: - delay in issue of proceedings (app to revoke placement order) for 3 yrs; - Failure to consider properly 20,000 each for T & M Costs adjourned, then later awarded in full against LA including costs of care proceedings (no report or transcript available) 5,000 to C LA to pay entire costs (care and Kate Makepeace Grieve, Counsel for M: (E): kgrieve@36family.co.uk

23 child) [2016] EWFC B10 Kent CC v M & K [2016] EWFC 28 contact between C and M (and maybe F) and the possibility of sibling contact Breaches of Arts 6 and 8 by: - Failure issue care proceedings in a timely manner delay of 3 yrs, 8 mths; - Failure properly assess C for 3 yrs, 4 mths; - Failure to implement care plan including failure give effect to recommendations of LAC reviews, 3 yrs, 4 mths; - As result of above, failure secure long-term placement and settled home life HRA proceedings). 17,500 to C LA to pay costs of HRA application only Thurrock BC v CW & BB 2016 Unreported Royal Borough of Greenwich v C 2015 Unreported (permission given to publish on BAILII not yet published) Breach of Art 6 by delay in issuing care proceedings 13 mths from commencement of accommodation to issue of proceedings. Breach of Art 8 by: - Failure to promote contact with M; - Failure to promote sibling contact; - Failure to promote contact with extended family; - Failure to provide counselling Application by respondent M within care proceedings. M s application included an application for awards of damages for two C (CG did not apply). The DJ declared: 1) LA had caused the C not to be returned to M in the interim without proper evidence or cause; and 2) LA, having become aware that the evidence upon which it had relied in achieving interim separation was unreliable, failed for a period of about 7 wks to notify the court or the parties 7,500 to C (agreed between parties and approved by court) 1,000 to M which took into account ex gratia payment of 3,000 offered by LA and accepted by M prior to determination of quantum of HRA award. Awards of 2,500 to each C LA to pay entire costs (care and HRA proceedings). PTA to LA on issue of costs, but no appeal lodged at LA to pay M and C s costs of an earlier hearing Solicitor for the child: Gordon Reed (E): Gordon.Reed@sternber g-reed.co.uk Nicholas Horsley, Counsel for M: (E): Nicholas.Horsley@cora mchambers.co.uk

24 * Note: for these very old and / or European cases the updated figures were arrived at using the Kemp & Kemp inflation calculator but those figures are not necessarily reliable as the calculator is a blind inflation tool. Remedies (2016) edited by David Emmet (Publisher: OUP) states at para : Generally speaking, awards more than ten years old are of little practical help. First published: Updated: