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Re D (Children) [2006] EWCA Civ 625

Father’s applications to appeal against interlocutory orders in residence order proceedings, and to seek damages for breaches of human rights, dismissed.

Court of Appeal: Wall LJ (23 March 2006)

Summary
Father's applications to appeal against interlocutory orders in residence order proceedings, and to seek damages for breaches of human rights, dismissed.

Background
This case concerned a father who was seeking residence or shared residence of his two children. The judge had made a number of interlocutory orders, including two in November 2005 and one in January 2006 against which the father sought permission to appeal.

The father wished to introduce into the proceedings alleged breaches of his rights under the Human Rights Act 1998 (the Act) and the European Convention on Human Rights (the Convention), but the judge had hitherto resisted that course, taking the view that she was hearing proceedings under the Children Act 1989, and her function was limited to an investigation of the children's welfare in those proceedings; alternative proceedings under the Act would need to be started separately.

On the application for permission to appeal, the father asserted that: first, he had not had a fair hearing from the judge under Article 6 of the Convention; secondly, the local authority's conduct historically had been in breach of his rights; and, thirdly, he was a victim of the local authority's behaviour and was entitled to damages.

The court referred to the current debate about the role of actions under the Act in the context of family proceedings, as discussed in Re V (Care: Pre-Birth Actions) [2004] EWCA Civ 1575.

Judgment
Held, refusing the applications for permission to appeal, that any claim for damages under the Act in family proceedings had to be considered in the context of the proceedings overall; but these proceedings were still in progress, and the father's applications were therefore premature.

While this decision followed Re V (above), where the Court of Appeal had said that the judge must view the proceedings as a whole before damages could be awarded for any breach of Article 6 of the Convention, there was a second question that was not fully or finally addressed in Re V, namely whether it was appropriate for the court to make orders for damages in proceedings that were not specifically instituted under sections 7 and 8 of the Act. Since this question remained open, the judge's view that the father should commence separate proceedings was one that she was entitled to take.

Read the full text of the judgment here