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The Rise and Rise of Damages in Human Rights Claims

Julie Stather, barrister of Westgate Chambers, considers the development of claims for damages arising from breaches of human rights in care proceedings.

Julie Stather, barrister, Westgate Chambers

Julie Stather, barrister, Westgate Chambers

The world of family law is becoming more litigious. The Human Rights Act of 1998 which caused so much consternation to practitioners when it first became law turned into what was widely regarded as a damp squib. However, the squib is now rather more incendiary. The recent decisions in H (A Child - Breach of Convention Rights - Damages) [2014] EWHC 38 and Northamptonshire County Council v AS and Ors (Rev 1) [2015] EWHC 199 (Fam) highlight the increasing willingness of the court to award damages where care proceedings have involved a breach of any of the parties' human rights.  This article examines the route to bringing claims for damages for alleged breaches of human rights in public law proceedings, some examples of cases where awards have been made, and the likely quantum of damages in the event that they are awarded.

The procedure for bringing a claim under the Human Rights Act 1998
Perhaps the best judicial guidance as to how to launch a claim for a breach of human rights was given by Munby J (as he then was) in Re L (Care Proceedings: Human Rights Claims) [2003] EWHC 665 (Fam). In that case the mother sought, amongst other things, a finding that the local authority's care plan for adoption was unlawful, and an order compelling the local authority to conduct concurrent searches for a long term foster placement and an adoptive placement. The mother's case was that the current care plan, and the manner in which arrangements were being made to implement that plan whilst proceedings were ongoing, constituted a breach of her Convention rights. Those applications were transferred to the High Court whilst the substantive proceedings remained in the family proceedings court (as it then was). Munby J, on dealing with the application, took the opportunity to provide guidance for what he saw as the likely increase in parents seeking to rely on Convention rights in care cases. He identified four possible jurisdictions in which such a claim could be launched:

  1. The statutory jurisdiction under Part IV of the Children Act 1989, under which the three tiers of court at that time (the family proceedings court, the county court, and the Family Division of the High Court) all had identical powers.
  2. The inherent jurisdiction recognised by s100 of the Children Act 1989 which would normally be exercised by the Family Division of the High Court.
  3. The supervisory jurisdiction by means of judicial review exercised by the Administrative Court.
  4. The jurisdiction under sections 7 and 8 of the Human Rights Act 1998 to grant relief where a public authority has acted unlawfully as defined by s6(1) of that Act.

The judgment dealt succinctly with the statutory and inherent jurisdictions, stating that neither gave the courts power to compel a public authority to exercise its discretion to put into place a particular care plan. As to judicial review, Munby J indicated that this was a possible route but that it would achieve little in that the Administrative Court had the power to quash an unlawful care plan, but not to substitute its own care plan (Re L (Care Assessment: Fair Trial) [2002] EWHC 1379 (Fam)). The Administrative Court under judicial review was said to be a remedy of last resort, a blunt tool whose effect was only to direct local authorities to reconsider the care plan. Later in the judgment Munby J refers to Re C (Adoption: Religious Observance) [2002] 1 FLR 1119 in which Wilson J refuses an application for judicial review stating that the likelihood of a local authority's declining to act on a court's views about a proposed care plan was very low (the last instance having been in Re S and D (Children: Powers of  Court) [1995] 2 FLR 456), and that it is only at the point of impasse, of outright refusal of the local authority to amend a care plan, that judicial review should be contemplated.

The fourth option, a claim under the Human Rights Act 1998, was approved by Munby J as being the appropriate method of seeking the relief sought by the mother.

The statutory scope of the protection and remedies which implement the Convention rights in UK legislation is made very clear in the 1998 Act.

Section 7(1) sets out the parameters of the protection of the Act:

"A person who claims that a public authority has acted (or proposes to act) 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."

Sections 6(1) and 6(6) of the Act define an unlawful act as an act or failure to act which is incompatible with a Convention right.

Section 6(3) defines a public authority against which proceedings can be brought as including a court or tribunal.

Finally, s8 sets out the remedies for a breach of the Convention rights:

"(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 only be awarded by a court which has 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 account of all the circumstances   of the case, including - (a) any other relief or remedy granted, or order made, in    relation to the act in question (by that or any other court), and (b) the consequences   of any decision (of that or any other court) in respect of that act, the court is satisfied   that the award is necessary to afford just satisfaction to the person in whose favour   the order is made.

(4) In determining - (a) whether to award damages, or (b) the amount of the award, the   court must take into account the principles applied by the European Court of Human   Rights in relation to the award of compensation under Article 41 of the Convention."

Returning to Re L [2003], Munby J began his guidance on claims under the 1998 Act by considering the manner in which they should be brought before the courts. In essence he states that the timing of the application determines the place of issue. Where proceedings are ongoing (ie at any point before the making of the final order), an application should be made under s7(1)(b) within those proceedings. He made clear that any court including, as in this case, the FPC as it then was, has jurisdiction to hear the application and indeed must hear that application to fulfil its own duty as a public authority not to breach the applicant's Convention rights. Here again Munby J relied on Wilson J in Re S and D [1995] drawing the analogy between a judicial review application being brought separately to the substantive application in that case, with the possibility in this case of making a separate application under the Human Rights Act whilst the case is still live. Quite apart from the delay occasioned by running two separate applications (that point now being of crucial importance in the 26 week world), Wilson J in Re S and D [1995] made the point that to bring proceedings merely to consider the "bare lawfulness" of an issue was wrong when the real function of the court was to consider the welfare of the child based on the full merits of the case. These comments are, of course, limited to situations in which the remedy sought is a change of care plan either in whole or in part, and do not assist on the issue of damages, but they have made it abundantly clear that where a case is ongoing, any subsidiary applications should be brought within those proceedings.

Where the proceedings have ended and a final order has been made, the court has jurisdiction to hear separate claims issued under the 1998 Act by virtue of s7(1)(a). In discussing which is the appropriate court or tribunal for the purposes of s7(1)(a), although such claims could have been brought in the county court or High Court as they then were, Munby J relied on the then President (Butler-Sloss P) in C v Bury Metropolitan Borough Council [2002] EWHC 1438 in advising that they should be heard in the Family Division of the High Court and preferably by judges with experience of sitting in the Administrative Court.

Munby J then concludes his judgment in Re L [2003] with a list of procedures to encourage good practice and minimise delay. These are summarised as follows:

  1. Claims under the 1998 Act should be heard within the proceedings, whichever court that may be in. There is no need for any separate or free-standing application.
  2. The raising of a human rights argument is not sufficient for the case to be transferred from the then FPC or county court. Only genuinely novel or complex human rights points will require to be dealt with in the High Court. 
  3. Human rights points should be raised at the earliest opportunity. If a transfer to the High Court is required, the transfer of the whole case (rather than that issue alone) should take place as soon as that need is identified. 
  4. Where a claim under the 1998 Act is issued after the substantive proceedings have concluded, this should be issued in the High Court.
  5. The inherent jurisdiction is not the appropriate vehicle by which to argue human rights claims.

As early as 2002 therefore, Munby J was setting out that claims under the 1998 Act should be handled in the most simple, streamlined and time efficient manner: arguments should be raised at the earliest opportunity and heard within the substantive proceedings. The input of the High Court was reserved for those few cases involving novel points which required the entire case to be transferred across, and for cases in which a separate 1998 Act claim was brought after the making of the final order.

Damages for breaches of Convention rights
The first reported instance of damages being litigated in the UK courts is in the Court of Appeal in V (A Child) [2004] EWCA Civ 1575. In that case the breach was a failure of the social worker to set out clearly for the parents before the birth of their child what was expected of them. This was argued as a claim under Articles 6 and 8 at first instance, and the judge, having found the breach of Article 6 made out, went on to award damages of £100 to each parent. He arrived at that sum because he found that the outcome of the case was likely to have been the same whether or not the breach had occurred, but he awarded nominal damages to mark the fact of the breach. The local authority appealed the decision, and Thorpe LJ in the leading judgment labelled it "truly startling". The Court of Appeal held unanimously that the entire proceedings needed to be assessed for fairness when considering whether they were compliant with Article 6, and that examining an act or omission in isolation to see whether it constituted a breach was wrong. The appeal was therefore successful in that there was found to be no breach and therefore no damages were awarded. Holman J in that case warned that courts should pay very close attention to the provisions of s8 of the 1998 Act before considering the award of damages, because the restrictions set out within that section render the occasions upon which monetary sums are appropriate to meet the justice of the case "very rare indeed".

In Re C (A Child) [2007] EWCA Civ 2 damages were considered and found not to be necessary to provide just satisfaction of the claim. In that case a mother and child had been placed together under a final care order in a foster placement. There was an agreement that the child would be removed only in the case of an emergency or in the event of a general failure to progress in which case clear warnings and opportunities for change would be given. Sadly progress was not made, and although a written warning was given, the situation continued to deteriorate until the placement reached breaking point. At that stage the local authority held an in-house meeting at which it was decided to terminate the placement, and the child was removed the following day without warning to the mother and when she was not present (although it is important to note that her solicitors had been informed). The mother made an application for, amongst other things, the discharge of the care order. That application was dismissed by the county court, and in closing submissions the mother's counsel sought to rely on breaches of Article 8. The judge, whilst critical of the local authority, held that the mother was not entitled to relief under the 1998 Act because she had not issued a claim nor had she complied with the Family Proceedings Rules.

The mother appealed the substantive decision not to discharge the care order and issued various applications including one under the 1998 Act for an order compelling the local authority to return the child to her care under a rehabilitation plan, or to grant such other relief as it thought to be just. The Court of Appeal refused permission to appeal and transferred the remaining issues, including the 1998 Act application, to the High Court. The applications were heard by Hedley J. He determined that whilst the removal of the child had been essential, there had indeed been a significant procedural breach in making the decision to abandon the rehabilitation plan without the input of the mother. He then went on to consider what the remedy should be and concluded that the declaration that there had been a breach was sufficient to deal with the mother's claim justly. He stated that his reasoning was "partly" that the concept of damages did not "sit easily" with the welfare jurisdiction of family law, and therefore no monetary compensation was required to provide just satisfaction of the claim. The mother appealed the decision not to award damages, and Thorpe LJ gave the leading judgment in the Court of Appeal. He used his judgment to set out the type of breaches for which damages may be awarded. He relied on the report of the Law Commission No 266, Cm 4853 entitled "Damages under the Human Rights Act 1998" presented to Parliament in October 2000 in which the Strasbourg approach is set out at paragraph 6.159 onwards:

"In a number of cases, violations of Article 8 have been concerned with the taking of children into care by public authorities. In these cases, it is the manner of the decision, rather than the justification for the decision to place the children into care, which is the subject-matter of the dispute. For example, the Court has found violations of Article 8 on account of the undue length of proceedings, or for insufficient involvement of the parents in the decision-making process.  As has been noted, these cases seem to form a distinct category. The applicants, who are usually the parents of the children in question, have generally been successful in recovering substantial damages. In making such awards, the Strasbourg Court has acknowledged the considerable distress and in some cases the loss of opportunities suffered, and has shown a greater willingness to speculate than in other types of case. The Court has been prepared in some cases to compensate the applicant for a 'loss of relationship' with his or her child."

Thorpe LJ was clear that the breach was purely procedural in that the mother had not been involved in the decision making process, and it was a breach that he could not categorise as significant given that the evidence strongly suggested that the mother did not have the capacity to participate at the material time. In his consideration of damages, Thorpe LJ added that the mother's emotional difficulties and suffering were likely to be been caused by the fact of the removal itself rather than the fact of not being involved in the decision making, and that it was impossible to state that any injury to her wellbeing was caused by the lack of involvement. Indeed many of her concerning presentations were evident prior to the removal and in fact were contributory factors in the decision to remove. Having reached those conclusions, he found that the declaration of a breach of rights was sufficient to meet the justice of the case and that an additional financial reward was not therefore necessary. Wilson LJ, concurring with Thorpe LJ, stated that there was no loss of real opportunity occasioned by not being involved in the decision making process as the outcome was highly likely to have been the same, and that it was impossible to apportion any part of the mother's anguish to that lack of involvement, given her considerable emotional difficulties at that time. 

In Coventry City Council v C, B, CA, CH  (neutral citation CA (A Baby) [2012] EWHC 2190 (Fam) ) damages for breaches of Article 8 were approved by the court, having been negotiated by the parties before the commencement of the hearing. This is one of the first recorded decisions of a domestic court in which damages have been awarded, and unfortunately there is very little in the judgment about the reasoning. The claim for damages was made because the mother's consent to s20 was obtained after a very difficult and life-threatening birth and after she had been given morphine. The preamble to the agreed order set out that s20 consent should not have been sought when it was, and that removal was not in any event proportionate to the risks which existed at the time. It must therefore follow that the actions of the local authority were unlawful. The local authority admitted breaches of Article 8, the parties agreed the quantum of damages to provide just satisfaction of the claim in line with s8(3) of the 1998 Act (the amount not being specified in the judgment), and the court specifically approved the settlement of the claim.

The judgment in the recent decision in H (A Child - Breach of Convention Rights - Damages) [2014] EWFC 38 sets out in full the application of the 1998 Act to the new family court system, and examines in detail the issue of damages and quantum. The judgment was given by HHJ Bellamy sitting as a Deputy High Court Judge. The case concerned the removal of a child from hospital under s20 from parents with learning disabilities. The unfortunate circumstances of the removal were compounded by the fact that the case was beset with significant delay on the part of the local authority (by way of example, proceedings were issued almost a whole year after the birth), and by the later overwhelmingly positive assessment of the parents. When the matter came before the court the threshold was agreed, as was a twelve month supervision plan with rehabilitation to the parents. The local authority admitted 14 breaches of Articles 6 and 8 which can be summarised as follows:  its failure to explain to the parents the legal nature of the child's placement out of their care and the consequences of not agreeing to it; its lack of examination of the parents' ability to understand and give consent to an agreement for the child to be removed; its allowing significant delay and uncertainty in the assessment process; and its allowing the child to be cared for away from her parents against their expressed wishes, without an order of the court, and thereby depriving at least the father of the experience of living with his child for the first year of her life. The local authority made these concessions, which became declarations of the court, and the disposal of the matter was agreed. All that was left for the court to decide was the issue of whether damages should be payable to the parents in just satisfaction of their claim. The local authority objected on a number of grounds which HHJ Bellamy dealt with in turn: 

1. It was said that the relatively newly established family court did not have jurisdiction to award damages. HHJ Bellamy relied on Munby J in Re L [2003], Wall LJ and Holman J in Re V (A Child)  [2004], and Hedley J in CA (A Baby) [2013] for authority that claims, including those for damages, under the 1998 Act should whenever possible be brought within existing proceedings under s7(1)(b) of the 1998 Act. He then relied on s31E of the Matrimonial and Family Proceedings Act 1984 (as inserted by para 1, Schedule 10 to the Crime and Courts Act 2013) which provides that:

(i) "(1) In any proceedings in the family court, the court may make any order:

(a) which could have been made in the High Court if the proceedings were in   the High Court, or
(b) which could have been made in the county court if the proceedings were in  the county court."

(ii) Clearly, the county court can award damages in civil proceedings, and HHJ Bellamy therefore found that the Family Court had power to award damages.

2. The local authority attempted to argue that the applicants had not followed the process set out in the Civil Procedure Rules 1998, but HHJ Bellamy dismissed this on the basis that the parents had followed the correct procedure as set out in Rule 29.5(2) of the Family Procedure Rules 2010 which provides that the parties must inform the court in writing of their claim under the 1998 Act and the relief sought. In this case the applicants had issued a C2 form in compliance with Part 18 of the FPR 2010 and this was found by HHJ Bellamy to be the correct procedure.

3. Reliance was placed by the local authority on s7(5) of the 1998 Act which provides that any claim under s7(1)(a) of the Act (ie a freestanding claim) must be brought within one year of the act complained of, or within such period as the court considers just having regard to the circumstances subject to any rule providing a stricter time limit. This argument failed owing to the earlier finding by the judge that this claim had rightly been issued under s7(1)(b) (which does not time-bar applications) and was therefore not relevant.

4. Finally, the local authority argued that the award of damages was not justified in this case. Attention was drawn to older authorities which set out that in most cases the making of a declaration provided just satisfaction for a claim under the 1998 Act, but HHJ Bellamy relied on the more recent decision in CA (A Baby) [2013] in which the agreement reached between the parties for damages to be paid was expressly approved by the court. The judge commented that the assessments of the parents could have begun a year earlier, and that whilst they had been having contact, that was "far removed from the joys of full-time, unsupervised care of one's own child". He stated that the parents' loss of time with their daughter was "unnecessarily lengthy and deeply distressing" and that in addition to the agreed declarations, an award of damages was necessary to afford just satisfaction to the parents. In assessing quantum the judge was mindful of the delay occasioned by the local authority, the fact that when the parents were assessed it was very positive and the separation of parents and child for over a year. However, a particularly important feature of this case was that it was argued that the impact on the parents of the proceedings, the separation and the delay were identifiable and had been a direct cause of a deterioration in their well-being. This argument was, on behalf of both parents, supported by evidence from experts that the increase in the stress under which they found themselves had led to a deterioration in their physical symptoms. HHJ Bellamy awarded each parent £6,000 in just satisfaction of their claims.

It would seem that the feature of this case which distinguishes it from the earlier authorities is that the harm occasioned to the claimants was definable. In CA (A Baby) [2013] the court was not called upon to determine damages – it merely approved an agreement between the parties – but in the other cases in which damages have been sought, the court has felt unable to define any feature of the claimants' suffering as being caused by the breach (for example in Re C (A Child) [2007] it was held that the mother's presentation had at least in part been evident before the removal, and that any decline in her presentation was caused by the fact of the removal rather than the breaches which the court declared to have occurred). Therefore, at the time of HHJ Bellamy's decision it seemed that being able to prove causation was an essential feature, and expert evidence on the point was clearly invaluable.

There has until very recently been a paucity of awards of damages in the domestic courts. the damages of £100 awarded at first instance in V (A Child) [2004] were perhaps testing the waters and in any event the overturning at appeal of the declaration meant that quantum was not considered at a higher level. The quantum of damages in CA (A Baby) [2013] was not reported, damages were not held necessary to provide just satisfaction in Re C [2007], and therefore by the time of the hearing in H in 2013 much of the guidance placed before the court was from Strasbourg.  Most claims pursued to the European Court of Human Rights have relied on delay and lack of involvement in the decision making process and have been made under Articles 6 and 8, with on occasion a claim under Article 13. Examples of awards are: £8,000 in R v United Kingdom [1988] ECHR 11, £12,000 in W v United Kingdom [1988] ECHR 12 (Articles 6 and 8), £10,000 to each parent in TP and KM v United Kingdom [2001] 2 FLR 549 (Articles 8 and 13),  €12,000 per parent in P, C and S v United Kingdom [2002] 2 FLR 631 (Articles 6 and 8), and €15,000 to the parents jointly in Venema v The Netherlands [2003] 1 FCR 153 (Article 8).

However, on 30 January 2015 Mr Justice Keehan handed down his judgment in Northamptonshire County Council v AS and Ors (Rev 1) [2015] EWHC 199 (Fam). In this case the local authority had made what Keehan J called "egregious failures" at just about every turn of the case. They obtained a s20 consent without the assistance of a interpreter, did not issue care proceedings until nine months after the child (a newborn) had been accommodated, and delayed at every conceivable juncture with the filing of documents. At the conclusion of proceedings the child was living with his grandparents in Latvia and was thriving. The local authority conceded breaches of the Article 6 and 8 rights of the mother and of the child. The breaches admitted by the local authority and recorded by the court were:

1. The local authority failed to take any protective action to safeguard the child despite having concerns that he was at risk of suffering significant harm between 15 and 30 January 2013, in breach of his article 6 and 8 rights.

2. Whilst the child was accommodated pursuant to section 20 CA on 30 January 2013, a decision to initiate proceedings was not made until 23 May 2013 and an application for a care order was not made until 5 November 2013. Over this period of 11 months the child was without access to any independent representation of his welfare interests and had no access to any remedy or recourse and no person was exercising parental responsibility for him, in breach of the child's article 6, 8 and 13 rights.

3. The local authority, by its acts or omissions, caused or contributed to a series of delays in the filing of necessary evidence during the course of the care proceedings and the final evidence filed for hearing in October 2014 was inadequate and incomplete, in breach of the child's and mother's article 6 rights.

4. The delays and general mismanagement of the case by the local authority has been seriously prejudicial to the child's welfare and the child's and mother's ability to enjoy a family life with a member of his extended family prior to November 2014, which may have irredeemable consequences for the child's future welfare and development. Such failures were in breach of the child's article 8 rights.

5. The child and mother were subject to a high turnover of social workers and locum social workers with conduct of his case file leading to a lack of cohesive, comprehensive management and care for a significant period of time and in breach of the child's and mother's article 6 rights and prejudicial to their article 8 rights.

6. The local authority failed to organise contact between the child and his mother in accordance with an explicit order of the court and the advice of the Children's Guardian for a significant period of time and poor organisation and communication by the local authority led to various sessions of contact being cancelled. Such failures were in breach of the child's and mother's article 8 rights.

The parties had also agreed damages totalling £16,000. These comprised £12,000 for the child and £4,000 for the mother. In addition a payment of £1,000 was approved for the maternal grandparents to assist them in their care of the child. Having reviewed a number of authorities in which damages had been awarded against local authorities who had acted in breach of a child's and/or a parent's human rights, Keehan J was satisfied that the damages offered by the local authority were appropriate.

This is interesting on a number of levels. Firstly, it is far higher than previous domestic awards; most notably it is very similar on the facts to the H [2014] decision of HHJ Bellamy in terms of the local authority breaches and the timescales involved. Secondly, it approves an award of damages without any reasoning as to causation, which does not follow the line of previous authorities where a link between the breach and some manifestation of physical or mental harm to the claimants was set out clearly. Of course any separation must cause harm, but the previous authorities seemed to suggest that just satisfaction for a claim of that nature could be provided by a declaration of the court in the absence of harm which could be clearly identified as being caused by the breach. Whether the judgment does not set out causation because the principle of damages was agreed is unknown, but there is certainly nothing in the judgment to reflect evidence of psychological harm to the mother or child, or any physical manifestation of such harm. The lack of such evidence was fatal to the claim in C [2007], whilst the existence of such evidence was central to the reasoning in H [2014]. Indeed Keehan J's closing remarks state quite clearly that the existence of harm to the child, who received the bulk of the damages, was something which was not known now and would only become known in the future:

"I trust that the events of the first 23 months of DS's life will not have a detrimental impact on his future development and his emotional and psychological well being. There is a real risk they will do so."

Finally, and perhaps most interestingly, this is the first reported domestic award of damages for a  child in care proceedings. It is perhaps surprising that no such claim was made in the earlier cases, but this is clearly an area of law which is developing very quickly and no doubt many more such claims will soon be before our courts.