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Children: Public Law Update (March 2017)

John Tughan QC of 4 Paper Buildings focuses on recent decisions relating to claims for damages (and other relief) under the Human Rights Act 1998.

John Tughan QC, 4 Paper Buildings

John Tughan QC, 4 Paper Buildings

In this update I am going to focus on the run of recent decisions that relate to the claim for damages (and other relief) under the Human Rights Act 1998.  The four recent decisions are:

P v A Local Authority [2016] EWHC 2779 (Fam), Keehan J on 4 November 2016

CZ (Human Rights Claim: Costs) [2017] EWFC 11, Cobb J on 16 February 2017

H (A Minor) v Northamptonshire County Council & Anor [2017] EWHC 282 (Fam), Keehan J on 17 February 2017

SW and TW (Human Rights Claim: Procedure) [2017] EWHC 450 (Fam), Cobb J on 8 March 2017.

P v A Local Authority
involved a declaration within wardship proceedings to the effect that the 17-year-old applicant's details could be withheld from his adoptive parents.  He was estranged from his adoptive parents and suffered harm when the LA, in breach of the declarations, disclosed some personal information in relation to him.  The HRA damages claim settled for £4,750.  The Legal Aid Agency argued that it was entitled to claw back the costs of the wardship proceedings, thereby leaving P with none of his damages.  Keehan J agreed that the Court had no power to waive the statutory charge, if applicable.  The Court went on to conclude:

"In light of the fact, however, that the LAA refused to fund a HRA claim for damages it appears to me that the damages to be awarded to P under the Part 8 procedure were recovered in a claim that did not have the benefit of a public funding certificate.  Further I am wholly satisfied that any damages awarded to P in Part 8 proceedings were not recovered "in proceedings in connection with which [civil legal] services were provided." Accordingly, however erroneous or muddled the LAA's decision making was on this issue, in my view, for the reasons I have given above the statutory charge is not and cannot be applicable to P's award of damages."

On the specific facts of that case and based (partly) on the actions and decisions of the Legal Aid Agency in determining the status of the public funding within the proceedings, the Court ruled that the statutory charge was not applicable.

CZ (Human Rights Claim: Costs)
involved a breach of the parties' human rights as a result of the way in which the LA presented an interim care order application to the Court.  The parents and children applied for declaratory relief and damages under the HRA.  The issue before the Court was whether the LA should pay all of the costs of the claimants in the care and HRA proceedings, on the understanding if that the costs applications of the claimants failed they would be likely to receive none of their damages for the admitted breaches of their Convention rights.  Cobb J was critical of the unrealistic approach to the litigation and the running up of costs in the proceedings. 

He drew attention to the following important points:

"i)  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]);

ii)  While each case must be considered on its own facts, any award of damages for non-pecuniary loss made under section 8(3) of the HRA Act 1998 is likely in this class of case to be reasonably modest;

iii)  Where a public funded certificate is granted to a party to pursue a claim under the HRA 1998 for declaration and damages arising within care proceedings, the statutory charge (section 25(1)(a) LASPO Act 2012) will apply (i.e. the damages will represent "property recovered or preserved by the individual in proceedings, or in any compromise or settlement of a dispute, in connection with which the services were provided"), and the Legal Aid Agency has the ability to recoup its costs (or a proportion of them) from any damages award;

iv)  Costs of the care proceedings under the CA 1989 must be considered by reference to rule 28 of the Family Procedure Rules 2010, and with specific regard to the judgments of the Supreme Court in Re T (Children: Care Proceedings: Serious Allegations Not Proved) [2012] UKSC 36) and Re S [2015] UKSC 20;

v)  Costs of the declaration and/or damages claim under the HRA 1998 claim are awarded under the Civil Procedure Rules 1998; these rules provide (per CPR 44.2 (2) (a)) that within the court's discretion, 'the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party', subject to the provisions set out elsewhere in that rule; the provisos within Part 44 are important, and include consideration of litigation conduct;

vi)  The decision of Keehan J in P v A Local Authority [2016] is particular on its facts and in my view provides little assistance to the majority of potential claimants in HRA 1998 cases which arise in the context of family proceedings under the CA 1989 or otherwise."

Cobb J rejected the claimants' argument that the sought costs order was the only way to grant just satisfaction to the claimants as a result of their damages being swallowed up by the statutory charge.  He noted that Mostyn J had rejected that argument in R (o.t.a. Faulkner) v Director of Legal Aid Casework [2016] EWHC 717:

"If it was so obviously a violation of the human rights of Mr Faulkner for his award of damages to be encroached by the statutory charge then one would have thought that it would have been listed as an exemption from the statutory charge within Regulation 44 of the 2000 Regulations [i.e. predecessor regulations to those currently in force], but it is not. The fact that something is not mentioned there does not necessarily answer the question. But it does demonstrate to me that Parliament must have decided not to expand the list of exempt items beyond those which have been in existence for many years.

"It is a feature of our costs regime, particularly so in civil proceedings but perhaps less so in family proceedings, that an award of costs is never in the full amount. The reason for this is to provide a deterrent to litigation, so it is said. That is why an assessment of costs on a standard basis rarely achieves more than 70 pence in the pound. The consequence of that is of course that even where there is an award of costs in favour of a successful party, the consequence of the assessment process may see a large part - perhaps even all - of a modest award of damages eliminated.

"I do not accept that because [the damages] are awarded to Mr Faulkner as a victim of human rights violation that they should be subjected to a process of immunisation in the way that perhaps damages for personal injury or an award of damages for, say, the loss of an eye or a leg would not."

Cobb J rejected the argument that the full costs should be paid by the LA and applied the costs principles from family proceedings.  The LA had not behaved reprehensibly or unreasonably and the ECHR principle was that the costs award should relate to the violations established.

Cobb J also rejected the argument that the claimants would be denied an effective remedy under article 13 if the costs order was not made.

"....Section 8(1) and section 8(3) are not ambiguous or obscure; while the adult Claimants may feel that the outcome is not fair, it is not absurd.  In any event, I am wholly satisfied that the Claimants have been able to access a court effectively, and have a remedy in the form of a declaration and an award of damages.  The fact that the damages award is vulnerable to recoupment by operation of a statutory charge for costs arises because Parliament, in devising a scheme for assisting litigants to bring legal claims, has also devised a method of recoupment; the significant benefits of public funding to enable litigants to prosecute legitimate claims do not come without some trade-off.  It seems to me that I should not interpret the provisions of the HRA 1998 (particularly by reference to a Convention right which has not found its way into English law), in such a way as to create what would swiftly become a dual-carriageway by-pass around the provisions of LASPO 2012...."

H (A Minor) v Northamptonshire County Council & Anor [2017] EWHC 282 (Fam)
involved the breach of human rights being established at a time prior to the care proceedings but not during those proceedings, which were properly brought.  In this case the child issued a separate claim under the HRA, achieved a separate public funding certificate for the HRA claim and those proceedings had a separate case number.  However, in accordance with practice, they were listed to be determined alongside the care proceedings.  The Legal Aid Agency was asked to clarify whether the statutory charge in the care proceedings was applicable to the (much more straightforward and cheaper) HRA proceedings.  The Legal Aid Agency reserved its position on whether there was likely to be a connection and therefore a full recoupment but then confirmed (two days prior to the final hearing) that it accepted there was no such connection.  The LA sought costs against the Legal Aid Agency on the basis that the proceedings had been delayed while the Agency clarified its position.

Keehan J held that the Court did have power to make a third party costs order against the Lord Chancellor.  The procedure for a party to dispute the statutory charge issue with the Legal Aid Agency is set out in paragraph 12, on page 101, of The Statutory Charge Manual (April 2014 edition).  The provisions of paragraph 12 are:

"At the end of a case the regional office will decide whether in its view the statutory charge applies and how it is to be quantified. A decision about the charge is not the exercise of discretion. It is a legal decision to which (in theory) there is only one right or wrong answer. Where providers or clients disagree with regional office's view about the charge they should:

a) First, take the matter up with the regional office. If the certificate is still in force querying the charge will usually be within the scope of the certificate. If there is no certificate the provider will either have to undertake the work privately, free of charge, or as legal help if the client qualifies;

b) Where disagreement persists about the charge and the case raises novel or complex questions (so that the decision is borderline or out of the ordinary), the regional office may refer it to the Central Legal Team to reach its own decision. Until this further has been taken, it would not be reasonable for providers to commence proceedings about the charge and the Lord Chancellor would raise these procedures on the question of costs;

c) Where the matter cannot be resolved without proceedings, the legally aided individual may take proceedings under Part 8 of the Civil Procedure Rules (the alternative procedure for bringing a claim) against the Lord Chancellor seeking a declaration as to whether the statutory charge arises, and if so, its extent."

That procedure was not followed in this case by the Legal Aid Agency.  Keehan J recognised that the situation would be quite different in a case in which there was a significant factual dispute in either the care or the HRA proceedings as the Agency would be entitled to know the outcome of those disputes.  But the Court did not accept that the same applied where there was agreement:

"In these circumstances, I am at a loss to understand why the LAA cannot make a determination of whether the statutory charge is applicable to any award of damages.....I go further. It is essential, in my judgment, that a court determining the quantum of a claimant's HRA damages, where liability is admitted on an agreed basis, and determining any consequential orders for costs, must and should know the stance of the LAA on the applicability of the statutory charge."

Keehan J went on to give guidance on the correct procedure to be adopted:

"117.  Where damages are sought in just satisfaction of a HRA claim during the currency of public law proceedings, I provide the following guidance:

(a)  alleged breaches of Convention rights by a local authority must be set out with particularity in a letter before action as soon as ever possible;

(b)  every effort should be made by the claimant and the local authority to settle the issues of liability and the quantum of damages before and without the need to issue proceedings;

(c)  where liability and quantum are agreed prior to the issue of proceedings, it will invariably be in the interests of the child to issue a Part 8 claim to secure the court's approval of the proposed settlement pursuant to CPR r 21.10;

(d)  the local authority should, save in exceptional circumstances, pay the reasonable costs of the claimant's HRA claim/proceedings;

(e)  where is it necessary for a party to issue a formal HRA claim, proceedings should be issued separately from the care proceedings and a separate public funding certificate should be sought from the LAA in respect of the same;

(f)  well in advance of the final hearing of the HRA claim the LAA should be invited to make a decision on whether it asserts that the statutory charge will be applicable to any award of HRA damages. Where

(i) the basis of threshold and the material facts of the case are agreed or the court has made findings of fact and given a judgment establishing the factual matrix of the public law proceedings; and

(ii) liability is agreed and the material facts relied upon to establish the breach or breaches of the claimant's Convention rights are agreed or have been determined by the court,

I see no reason in law or on public policy grounds or in practical terms why the LAA could not and should not notify the court and the parties of its decision on the applicability of the statutory charge prior to the final hearing and well in advance of the submission of the claimant's solicitor's final bill(s); and

(g)  with the benefit of the LAA's decision, the court should have all the necessary information to assess the quantum of damages or, as the case may be, to approve the settlement, and to consider what are the appropriate orders for costs."

As a postscript to the decision, Keehan J also entirely agreed with the decision of Mostyn J in Faulkner (mentioned above).

SW and TW (Human Rights Claim: Procedure)
involved allegations of serious breach of the human rights of the parties, the intimate examination of a child, the refusal to issue proceedings and an absence of proper planning for the children on the part of the LA.  Further guidance was given by Cobb J on the correct procedure to be adopted in such claims, as they run alongside care proceedings.  The Court clarified that the CPR apply to such claims and not the FPR.  There was also a problem with the settling of the claim as the Guardian had taken on the role of litigation friend for the claimant children.  CAFCASS cannot authorise its officers to act as litigation friends to children claimants as this is not one of its functions. Cobb J summarised his further guidance in this way, expressly building on the decision in CZ v Kirklees Council:

i)   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]);

ii)  However, HRA 1998 claims – whether they are made under section 7(1)(a) or section 7(1)(b) – are governed by the Civil Procedure Rules 1998 (CPR 1998) and not the Family Procedure Rules 2010 (FPR 2010);

iii)  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, in my judgment, 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.  In my judgment, 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 here;

iv)  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 2010.  While Cafcass accepts that Children's Guardians appointed in 'specified proceedings' may give advice about the 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;

v)  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 Part 21.4(3)/Part 21.5(3) or pursuant to court order (Part 21.6);

vi)  Given that the CPR 1998 applies to these claims, the regime of Part 36 CPR 1998 ('Offers to Settle') applies to them;

vii)  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]));

viii)  Insofar as not clear from CZ v Kirklees, from H v Northamptonshire County Council & the Legal Aid Agency, 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;

ix)  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 this 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;

x)  This case illustrates 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 I enthusiastically recommend that parties divert away from the court to mediate their claims; I am led to understand that many Court of Protection disputes with similar characteristics are resolved away from the court room.  This is a case which could/should have been self-referred for NCDR. Parties in cases of this kind would do well to remind themselves of the comments of the Court of Appeal in Anufrijeva v LB Southwark & others [2003] EWCA Civ 1406 [2004] 1 FLR 8 at paras 79-80:

"… we were concerned that, even if the proceedings were conducted as economically as possible, the cost of the proceedings would be totally out of proportion to the damages likely to be awarded. This has proved to be the position… The costs at first instance of each party were totally disproportionate to the amount involved. When the total costs of both sides are looked at including the appeal, the figures are truly horrendous, and the situation is made even more worrying by the fact that all the parties are funded out of public funds.

[80]   The reality is that a claim for damages under the HRA in respect of maladministration, whether brought as a free-standing claim or ancillary to a claim for other substantive relief, if pursued in court by adversarial proceedings, is likely to cost substantially more to try than the amount of any damages that are likely to be awarded. Furthermore, as we have made plain, there will often be no certainty that an entitlement to damages will be established at all."

It follows from these cases, and practitioners need to be aware, that commencing a civil application "in writing" as per rule 29.5 FPR 2010 is not enough.  Separate civil proceedings should be issued.

Some conclusions
Given the recent clarification of the law, what follows may be closer to political rather than legal analysis, but no apology is made for that

(i) Children are vulnerable.  Children entering the care system are more vulnerable than most.  Children within the care system whose human rights are egregiously breached are arguably the most vulnerable section of society.  They have the disadvantages of being in the care system to start with and are then significantly harmed by that system;

(ii) A child harmed by the system who establishes that just satisfaction requires an award of damages under the HRA should actually receive those damages;

(iii) The basis for the quantification of the award is said to be equitable (Anufrijeva [2003] EWCA Civ 1406).  Of course that is an illusory device in circumstances where costs swallow the award;

(iv) The family justice system requires that any claim for relief under the HRA 1998 should run alongside the family proceedings, though that claim involves civil proceedings;

(v) The comparison with personal injury compensation is arguably not a fair one, for the following reasons:

(a) there is no legal aid for personal injury cases;

(b) a personal injury claimant is not forced by court rules to issue their proceedings and have them travel alongside other, separate, proceedings thereby potentially running up costs;

(c) conditional fee agreements are available in personal injury cases to meet the shortfall in legal aid;

(d) there is an entire system of insurance and civil procedure built around the costs provisions within such claims.  There is no such insurance in HRA claims. Yet.

(vi) It seems to be currently within the gift of the Legal Aid Agency to recoup both the HRA costs and the care proceedings costs from the claimant child (or adult);

(vii) The rule that requires the proceedings to be heard together (or the administrative decision to list them together) might in some cases seriously prejudice the receipt of the award by the claimant, if the Legal Aid Agency chooses to claw back the maximum open to them.  Anecdotal evidence based only on experience suggests it will seek to do so;

(viii) The answer is either for Parliament to ring-fence the damages paid to claimants under the HRA so that the Legal Aid Agency cannot claw back the awards or for there to be a new court system devised to deal with HRA claims arising separately.  The obvious answer is the ring-fence;  

(ix) If claims are to be separate (as opposed to ring-fenced) consideration will have to be given to legal aid being extended to allow vulnerable claimants to be represented.  Or a conditional fee system is necessary, with the uninsured LA facing an uplift in costs as part of those CFA principles.  If civil principle is to be imported into these cases per the Faulkner case, then why should the defendant party, which has breached the human rights of those it should protect, not pay? 

(x) Finally, a question for practitioners.  If a legal adviser is asked to advise a potential claimant under the HRA as to how to best make a claim, is that adviser potentially negligent to advise that the claim is made within the current care proceedings knowing that the Legal Aid Agency might seek to claw back the whole of the costs thereby depriving a successful claimant of their damages?  And, if so, is it right to advise that the current procedure for such claims be ignored?

I said above that these points might be political rather than legal.  Time to write to our MPs?