The evolution of the Human Rights claim in part IV proceedings

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 “equitable” Regina 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.