Trenchant comments from Cobb J in two decisions about Human Rights Act claims in care proceedings
Need for practitioners to review new or pending human rights claims attached to care proceedings
There are now two decisions of Cobb J that all care practitioners need to read to avoid pitfalls.
One is CZ v Kirklees Council  EWFC 11 and the other is SW & TW (Human Rights Claim: Procedure) (No.1)  EWHC 450 (Fam).
They show that:
- Damages awards to date may have been too high.
- Sums paid in damages will be reclaimed by the LAA under the statutory charge to recover the costs not only of the human rights claim but also of the care proceedings.
- The effect in significant extended disputes has been that damages awards may have been swallowed up by the statutory charge.
- Claims for declarations and damages may have been litigated under certificates which only authorise claims for declarations.
- Human rights claims on behalf of children may have been brought which overlook the provisions of the Civil Procedure Rules which require that a human rights litigation friend be appointed specifically for that claim. Hence proceedings may have been brought which do not comply with the ban on the conduct of civil proceedings in the absence of a litigation friend. In all civil claims a litigation friend has to give an undertaking as to costs.
- Children's guardians have since April 2016 been required by Cafcass not to accept appointment as a human rights litigation friend on the basis that this is an unlawful appointment. They are required to refer such claims onto the Official Solicitor.
- Human rights claims are civil proceedings so that the Civil Procedure Rules and not the Family Procedure Rules apply.
- The provisions of CPR 36 apply so that its mandatory provisions apply to compliant offers to settle.
- All HRA claims for a separate remedy (ie not just to present a defence to a local authority's actions in the care proceedings) should be brought under separate proceedings.
- HRA claims (certainly for damages) should all be referred by the parties to alternative dispute resolution.
The result is that all practitioners involved in new or pending human rights claims attached to care proceedings need to review the case and ask themselves the following questions:-
- Has the parental claim for damages been authorised by the LAA?
- Are the children represented in the HRA claim by a CPR 21 appointed litigation friend who is not a children's guardian?
- Has the children's claim been referred on to the Official Solicitor?
- Has the court required the parties to participate in ADR?
- Are the anticipated costs of the HRA claim proportionate to the sum which is likely to be awarded?
- What is that sum if the approach of the Court of Appeal, House of Lords, Supreme Court and ECtHR is followed?
On a point of information practitioners need to be aware that the LAA approach (although it may not be universal) is to give separate consideration to HRA claims for declarations and HRA claims for damages. The former may be authorised much more easily but the LAA is intending increasingly to treat damages claims as subject to the "exceptional cases" regime so that they are subject to a stringent merits tests and a means test.
Roger McCarthy QC, Coram Chambers