“Do we have to?” - Ordering and Avoiding Disclosure by Third Parties

The starting point for ordering disclosure against organisations that are not party to proceedings is rule 21.2 of the Family Procedure Rules 2010(FPR). Rule 21.2(3)requires that the court can order such disclosure “only where [it] is necessary in order to dispose fairly of the proceedings or to save costs.” Necessary is the operative word.

Often the third-party organisation is given express permission to apply to vary or discharge the order. Even if that isn’t explicitly set out then the third-party organisation can apply to the Family Court under rule 21.3 FPR 2010 for an order permitting them to withhold disclosure on the ground that disclosure would harm the public interest. This ground (the public interest immunity or PII) is sometimes a third-party organisation’s last chance for withholding disclosure in care proceedings.

The approach for asserting a public interest immunity is set out in the leading House of Lords case -v- Chief Constable of West Midlands Police, ex parte Wiley; R. -v- Chief Constable of the Nottinghamshire Constabulary, ex parte Sunderland[1995] 1 AC 274, [1994] 3 All ER 420. In his speech (at p.424) Templeman LJ gives us the foundation of a three-stage test for building a PII argument:

  1. Whether the information is sufficiently relevant and material to require disclosure in the interests of justice; if so,
  2. Whether there is a real risk that disclosure would cause “real damage” or “serious harm” to the public interest; and if so,
  3. Whether the public interest in non-disclosure is outweighed by the public interest in disclosure for the purposes of doing justice in the proceedings.

You can see that the FPR thematically follows Templeman LJ’s point (i) and although Wiley originated in police complaints proceedings, the full approach has been adopted for disclosure in other areas. This includes disclosure ordered in care proceedings (see, for example, Re C (A Child) [2016]EWHC 3171 (Fam), [2017] 1 FLR 1665and Re C (A Child) No.2 (Application For Public Interest Immunity) [2017] EWHC 692 (Fam), [2017] 2 FLR 1342).

While successful public interest immunities are rarely established on the grounds of real damage or serious harm to the public, disclosure orders are often made out in (unavoidable) haste and with an abundance of (well-intentioned) enthusiasm. In those circumstances it’s often easier to vary or discharge an order under the first limb of the test. If you can argue that the information is simply not necessary, relevant, or material to the issues in the case then try that first.

Typically third-party disclosure orders are made against the police, social services, and health trusts but orders are also made against schools, community mental health or substance misuse organisations, charities, offender management/support services, and independent social services. The same tests for and against disclosure apply to any of these.

Members of Chambers have recently acted on behalf of an independent school that found itself (and its student records) caught up in care proceedings. In that case the order for disclosure was successfully varied to limit disclosure to relevant information only (crucially making the actual disclosure exercise a much more manageable task for the school office).

by Sam Prout

£625 raised for London Legal Support Trust

Team New Court hit the streets on 21 May 2018, along with over 13,000 other members of the legal community, to help raise funds for the London Legal Support Trust. For more information on some very worthy causes please visit the London Legal Support Trust website here.


London Legal Walk 2018

The 2018 London Legal Walk is fast approaching and once again New Court will be pounding the streets with thousands of other lawyers in support of legal advice centres. We would love to beat last year’s total of £1640. If you would like to sponsor us please visit Virgin Money Giving page.

For more details on the charities supported by the London Legal Walk, please visit the London Legal Support Trust.

March 2018 Newsletter

The February 2018 edition of the New Court Newsletter is now available. Alyssa Howard provides a comprehensive update on recent private law children cases, while pupil Meredith Major considers some of the pitfalls of FDR hearings. Robert Wilkinson rounds up the latest news from chambers including reported cases, charitable exploits, parties and new babies!

Welcome to Jemimah Hendrick


Chambers is delighted that Jemimah Hendrick has accepted an offer of tenancy after successful completion of her pupillage with New Court.

Jemimah practices in all areas of family law including public and private law children proceedings, financial relief and TOLATA. Jemimah also undertakes work in the Court of Protection. Jemimah appears for local authorities, parents and children’s guardians and has appeared in front of all levels of tribunal from Magistrates to the High Court.

We wish her the very best in her career with us.

September 2017 Newsletter


The September 2017 edition of our Newsletter, New Court News, is now available.

To download your copy, just click the link below:

New Court Chambers Newsletter September 2017

This edition includes the following articles:

  • New Court News by Robert Wilkinson
  • Nisa-Nashim, Sisters in Law by Elissa Da Costa-Waldman and Raisa Saley
  • Ehlers-Danlos Disease – A Unique Case Study by Giles Bain
  • The Evolution of the Human Rights Claim in Part IV Proceedings by Laura Harrington

To subscribe to our newsletter and receive a copy by email, just fill in your details here.

Welcome to Matthew Burman, Amelia Evans and Amie Smith

The Summer has seen Chambers strengthening in terms of members of chambers and within the clerks' room.

Matthew Burman has joined us from St Albans Chambers continuing our strong links with work in the Luton and Bedford areas, and Amelia Evans has joined us from 1 Gray’s Inn Square.

We have also added to our ranks in the clerks' room and we are very pleased to welcome Amie Smith who joins us as Third Junior clerk.

We wish Matthew, Amelia and Amie great success in their new chapters at New Court.

The Evolution of the Human Rights Claim in Part IV Proceedings

By Laura Harrington

In the course of the past two years, claims under the Human Rights Act 1998 (‘HRA 1998’) have become a regular consideration for practitioners involved in section 31 Children Act proceedings. Pre 2015 there was very little in the way of domestic case law and as such the only guidance at the time was from Strasbourg.

In this article I will provide a summary of the most recent case law which has provided helpful guidance in respect of procedure; whether damages should be awarded; quantum of damages and costs.

Section 7 HRA 1998 sets out the parameters of the protection provided under the Convention and section 8 HRA 1998 sets out the remedies for a breach of the Convention rights.

When considering any Human Rights Claim practitioners need to keep in the forefront of their mind three principles.  Firstly, whether the court should make a declaration that X Local Authority has breached Y’s right(s); Secondly, if X Local Authority has breached Y’s right(s) should Y receive damages, if so how much; and lastly what costs, if any should become payable.

In Re L (Care Proceedings: Human Rights Claims) [2003] EWHC 665 Munby J provided guidance regarding procedure, which is summarised as follows:

  • when care proceedings are ongoing any Human Rights Claim should be made under section 7(1)(b) HRA 1998. Such an application should be heard within the care proceedings;
  • when proceedings have concluded a separate claim should be issued pursuant to section 7(1) (a) HRA 1998 and such a claim should be issued in the High Court;
  • the raising of a human rights argument is not sufficient for the case to be transferred to the High Court;
  • any Human Rights Claim should be raised at the earliest opportunity; and
  • the inherent jurisdiction is not the appropriate vehicle by which to argue human rights claims.

In Medway Council v M & T [2015] EWFC B164 HHJ Lazarus considered in detail damages and quantum [See paragraphs 82 – 103]. In particular, HHJ Lazarus sets out at paragraph 90 a table of previous awards for damages. She noted there is no clear guidance to assist with the assessment of the quantum of damages; in this particular case the parties agreed the following factors should be taken into account when considering quantum [paragraph 89]:

  • length of proceedings;
  • length of breach;
  • the severity of the breach;
  • distress caused;
  • insufficient involvement of parent or child in the decision making process; and
  • other procedural failures.

Re P v A Local Authority [2016] EWHC 2779 (Fam) is a case which involved wardship proceedings rather than section 31 Children Act proceedings. Keehan J considered in detail the provisions for the statutory charge arising out of Legal Aid. Keehan J found the child’s Human Rights Claim had nothing to do with the declaratory relief granted to the child in the wardship proceedings and therefore he was satisfied that the damages resulting from the Human Rights Claim should not be subject to the statutory charge.

In 2017 there have been a number of cases which practioners need to be alert to and I would urge all practioners to consider each judgment in full.

The first case which I would invite you to consider is London Borough of Hackney v Williams & Anor [2017] EWCA Civ 26. Whilst this judgment focuses more on Section 20 Children Act 1989 it is worth practitioners considering. Sir Brian Leveson P found that the parents in this instance failed to satisfy the court that the local authority had breached the terms of the statute [paragraphs 76-77]. He emphasised that nothing in his judgment is intended to, or should be read as, altering the content and effect of the guidance in family cases in respect of good practice around section 20 agreements [paragraph 77]. Sir Brian Leveson P went on to find that the parents should not have been granted an extension of time in which to bring the proceedings pursuant to section 7(5)(b) HRA 1998 [paragraphs 78 - 86] and further he remarked that had there had been a breach he would not have awarded a sum even approaching £10,000 to the parents [paragraph 87].

In H (A Minor) v Northamptonshire County Council and another [2017] EWHC 282 Keehan J provided guidance on how claims for damages under section 7 HRA 1998 should be brought during the course of ongoing proceedings [paragraph 117]:

  • the alleged breaches of the Convention rights by a local authority must be set out with particularity in a letter before action as soon as possible;
  • every effort should be made to settle the issues of liability and the quantum of damages before and without the need to issue proceedings;
  • where liability and quantum are agreed prior to the issue of proceedings, it will invariably be in the interest 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;
  • the local authority should, save in exceptional circumstances, pay the reasonable costs of the claimant’s HRA claim/proceedings;
  • where it is necessary to issue a formal claim, proceedings should be issued separately from the care proceedings and a separate public funding certificate should be sought from the Legal Aid Agency in respect of the same;
  • before the final hearing the Legal Aid Agency should be invited to make a decision on whether it asserts that the statutory charge will be applicable to any award of HRA damages; and
  • the Legal Aid Agency should inform the court and the parties of its decision before the final hearing.

In Re CZ (Human Rights Claim: Costs) [2017] EWFC 11 Cobb J remarked “A careful and realistic eye has to be kept on proportionality of the process by which relief is sought, and on outcome” [paragraph 9]. Cobb J confirmed the following guidance [paragraph 9]:

  • every tier of the family court, including Magistrates can consider HRA claims;
  • each case must be considered on its own facts, any award for damages for non-pecuniary loss made under section 8(3) HRA 1998 is likely to be reasonably modest;
  • where a public funded certificate is granted to a party to pursue a claim under HRA 1998 for declaration and damages arising within care proceedings the statutory charge will apply and the Legal Aid Agency has the ability to recoup its costs from any damages award;
  • costs of the care proceedings under the Children Act 1989 must be considered by reference to Rule 28 Family Procedure Rules 2010; and
  • costs of the declaration and/or damages claim under the HRA 1989 claim are awarded under the Civil Procedure Rules 1998;

Cobb J was of the view the decision in of Keehan J in P v A Local Authority [2016] EWHC 2779 (Fam) provides little assistance to the majority of potential HRA claims which arise in the context of family proceedings under the Children Act 1989.

Cobb J went on to consider quantum of damage; he endorsed the test that any award must be determined by reference to what is “equitableRegina v Secretary of State for the Home Department (respondent) ex parte greenfield [2005] UKHL 14 and having considered the comparable awards made by the English Courts he considered the figure agreed between the parties represented an appropriate sum to give “just and fair satisfaction” to each of the claimants.

He went on to consider the issue of costs and how, if at all, this should affect the quantum awarded for damages. Cobb J found it was unprincipled and against Parliament’s intention to significantly increase the damages award to avoid the effect of the statutory charge. The award for damages are awarded to reflect the infringement only. He stressed that when considering the issue of costs, the court must have regard to the parties’ litigation conduct and whether costs are reasonably or not reasonably incurred. Costs incurred in respect of the care proceedings should be determined under the Family Procedure Rules and costs incurred in respect of the Human Rights claim should be determined under Part 44 Civil Procedure Rules 1998.

 In Re SW and TW (Human Rights Claims: Procedure) (No. 1) [2017] EWHC 450 (Fam) Cobb J again provided guidance on the procedure in bringing Human Rights Claims, [See paragraph 3]:

  • all tiers of the Family Court, including Magistrates, considering Children Act Proceedings can consider a claim brought pursuant to HRA 1989;
  • the Civil Procedure Rules 1998 govern Human Right Act claims which must be issued using the Part 8 CPR 1998 claim procedure and not by issuing a Form C2;
  • a children’s guardian cannot act as litigation friend for a child in any Human Rights Act Claim. The Official Solicitor may be invited to act as the litigation friend for the child;
  • As the Civil Procedure Rules apply to Human Rights claims the regime of Part 36 (offers to settle) and Part 44 (costs) apply;
  • The Legal Aid Agency may apply the statutory charge to any damages awarded;
  • Non court disputes must be considered and encouraged;
  • A Human Rights Act claim should never be permitted to prolong the Children Act proceedings; and
  • He agreed with guidance offered by Keehan J in H v Northamptonshire County Council & the Legal Aid Agency [2017] EWHC 282 (Fam) at paragraph 117.

In the past five months the guidance provided in respect of procedure, costs and the statutory charge is incredibly helpful.  Unfortunately, there still remains scant guidance in respect of quantum for damages, which is left to the discretion of the court; this will no doubt continue to be litigated in due course.

London Legal Walk 2017

With leg muscles (and a few sore heads) now fully recovered, we are delighted to have raised £1639.75 in support of advice centres which help thousands of people including the homeless, housebound elderly, victims of domestic violence and people trafficking and many more. Thank you to everybody who donated and supported us along the way. We'll see you for next year's walk!

February 2017 Newsletter

The February 2017 edition of our Newsletter, New Court News, is now available.

To download your copy, just click the link below:

New Court Chambers Newsletter February 2017

This edition includes the following articles:

  • New Court News by Robert Wilkinson
  • Spotlight on Finance by Elissa Da Costa-Waldman
  • The Effective Participation of 'P' in COP Proceedings by Jemimah Hendrick
  • Child Proceedings Involving the Child of Deaf Parents by Sam Wallace

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