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

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

President Updates Guidance on Duration of Ex Parte Orders

By Robert Wilkinson

The President of the Family Division has issued updating guidance in respect of the duration of ex-parte orders in the Family Court. The Guidance can be found here, but is also summarised below.

"The relevant principles, compliance with which is essential, are as follows:

(i) An ex parte (without notice) injunctive order must never be made without limit of time. There must be a fixed end date. It is not sufficient merely to specify a return day. The order must specify on its face and in clear terms precisely when it expires (eg, 12 noon on 20 March 2017).

(ii) The order must also fix a return day. The order must specify the date, time and place of the hearing on the return day. The return day should normally be no more than 14 days after the date when the order was made. How long the hearing on the return day should be listed for must be a matter for the discretion of the judge. However, having regard to paragraph 6, often a very short listing may well be appropriate.

(iii) Careful consideration needs to be given to the duration of any order made ex parte (without notice). Many orders will be of short duration, typically no more than 14 days. But in appropriate cases involving personal protection, such as non‐molestation injunctions granted in accordance with Part IV of the Family Law Act 1996, the order itself can be for a longer period, such as 6 or even 12 months, provided that the order specifies a return day within no more than 14 days. This must be a matter for the discretion of the judge, but a period longer than 6 months is likely to be appropriate only where the allegation is of long term abuse or where some other good reason is shown. Conversely, a period shorter than 6 months may be appropriate in a case where there appears to be a one‐off problem that may subside in weeks rather than months.

(iv) The order must make it clear that (a) it was made in the absence of the respondent and that the court has considered only the evidence of the applicant and (b) the court has made no finding of fact. Where the evidence is written, it must be identified in the order. Where, exceptionally, the court has received oral or other evidence (eg, a photograph) that evidence should be recorded on the face of the order or reduced to writing and served with the order.

(v) Where the order has been made in accordance with Part IV of the Family Law Act 1996 it must recite that the court has had regard to sections 45(1) and (2) of the Act.

(vi) The order (see FPR 18.10(3)) ‘must contain a statement of the right to make an application to set aside or vary the order under rule 18.11.’ The phrase ‘liberty to apply’ is not sufficient for this purpose. The order must spell out that the respondent is entitled, without waiting for the return day, to apply to set aside or vary the order.

(vii) If the respondent does apply to set aside or vary the order the court must list the application as a matter of urgency, within a matter of days at most.

6 Experience suggests that in certain types of case, for example, non‐molestation or other orders granted in accordance with Part IV of the Family Law Act 1996, the respondent frequently neither applies to set aside or vary the order nor attends the hearing on the return day.

(i) When, in such cases, there is no attendance by the respondent and the order, having been served, does not require amendment there is no need for re‐service. The order made on the return should however record that the respondent, although afforded the opportunity to be heard, has neither attended nor sought to be heard.

(ii) If, however, variation of the original order is sought by the applicant (eg by extending the ambit or the duration of the order) then:

(a) Paragraphs 5(i), (iii)‐(v) must be complied with in relation to the new order and the new order will need to be served.

(b) Unless, before the return day, the respondent was given proper notice of the proposed amendments, either in the application or in the initial order, (a) the new order must specify a new return day, and (b) paragraph 5(ii) must be complied with in relation to the new order.

7 I remind all practitioners and judges of the principle, which applies to all ex parte (without notice) injunctive orders made by the Family Court or by the Family Division, irrespective of the subjectmatter of the proceedings or the terms of the order, that a without notice application will normally be appropriate only if:

(a) there is an emergency or other great urgency, so that it is impossible to give any notice, however short or informal, or

(b) there is a real risk that, if alerted to what is proposed, if 'tipped off', the respondent will take steps in advance of the hearing to thwart the court's order or otherwise to defeat the ends of justice. In an appropriate case this can justify the grant of a non‐molestation injunction without notice, lest the respondent, having been served with an application, further molests his (or her) victim or exerts pressure on her (him) to abandon the proceedings."

Welcome To Julia Feely

Chambers is delighted to announce the arrival of Julia Feely as a tenant in chambers. Called in 2009, Julia joins us with immediate effect. Julia previously practised at 1 Gray’s Inn Square where she established a strong and successful family practice focusing on private children, financial remedies and public law children work. Julia’s broader legal background includes periods working for a Magic Circle firm and a boutique litigation firm giving her a broad experience in many aspects of commercial litigation.

We wish Julia every success in her career at New Court.

Chambers & Partners 2017

We are delighted that New Court Chambers has been ranked in Band 4 as a leading Family/Children set in the latest edition of the Chambers & Partners directory.

Christopher Poole and Giles Bain retain their Band 3 rankings for Children and Sally Jackson remains in Band 4 for Children and Money.


"Specialist family set acting on the London and South Easter Circuits in cases across the gamut of family finance and children law. The chambers is noted for its strength in public children law work, and handles complex matters involving serious abuse and injury to vulnerable children and adults."


"The clerks, led by Paul Bloomfield, are very accommodating and will bend over backwards to get something done. They are extremely well organised."



"Handles the whole spectrum of children-related issues, from international adoption to abuse and neglect cases. He acts as co-head of chambers and is commended for his work on behalf of guardians and local authorities in serious matters."

Strengths: "I think he's a supremely confident advocate who certainly knows his stuff in public law. He has a quiet, authoritative manner that gets to the heart of things." 



"Co-head of chambers who focuses on complex public law children cases, representing parents, children, local authorities and third parties. His practice sees him engaged in serious matters including those relating to sexual abuse and non-accidental injury."

Strengths: "He's a very calm, measured and intuitive advocate. He's very easy to work with in a high-pressure environment and his technical ability and client manner are very good. He's enormously well respected by judges."



"Covers the full range of family cases, from complex children proceedings to high-value divorce disputes. Her public law practice sees her representing all parties, including parents, children and local authorities."

Strengths: "She has a meticulous mind and her advice is second to none. She's ver clear with the clients when explaining quite technical stuff relating to the law. She goes above and beyond her brief."

Anne Lehane

All members of New Court were greatly shocked and saddened by the news of Anne Lehane's sudden and unexpected passing last week.

Anne was well known to many at New Court, initially in connection with her responsibilities as Senior Solicitor for the Royal Borough of Kensington and Chelsea and subsequently as part of the Tri-Borough.

She was a highly valued and respected colleague and she will be sorely missed by all who knew her.

We wish to extend our condolences to Anne's immediate family, close friends and colleagues.

October 2016 Newsletter

The October 2016 edition of our Newsletter, New Court News, is now available.

To download your copy, just click the link below:

New Court Chambers Newsletter October 2016

This edition includes the following articles:

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


New Pupils Join Chambers

We're very pleased to welcome Jemimah Hendrick and Chantelle Barker to chambers as pupils for the next 12 months. Jemimah and Chantelle will be supervised by Giles Bain and Elissa Da Costa-Waldman for their first three months. From April 2017 Jemimah and Chantelle will be able to accept instructions themselves. We wish them both the very best of luck over the next year.