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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> SW & TW (Children : Human Rights Claim: Procedure) (Rev 1) [2017] EWHC 450 (Fam) (08 March 2017) [2017] EWHC 450 (Fam) (08 March 2017) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2017/450.html Cite as: [2017] WLR(D) 190, [2017] EWHC 450 (Fam), [2017] 1 WLR 3451, [2017] WLR 3451, [2017] 2 FLR 1609 |
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FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
LUTON BOROUGH COUNCIL |
Applicant |
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- and - |
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PW MT SW & TW (Children by their Children's Guardian in the Children Act 1989 proceedings) |
Respondents |
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PW SW & TW (Children, by their yet-to-be appointed litigation friend in the Human Rights Act 1998 proceedings) |
Claimants |
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-and- LUTON BOROUGH COUNCIL |
Respondent |
____________________
QC
and Mai-Ling Savage (instructed by Local Authority Solicitor) for Luton Borough Council
Andrew
Bagchi
QC
and Sylvester McIlwain (instructed by Edward Hayes LLP) for the Father (PW)
Barbara Connolly QC
and Samantha Reddington (instructed by Northants Family Law Group) for the Maternal Grandmother (MT)
Alison Grief QC
and Michael Edwards (27/28 February) John Tughan
QC
(2 March) (instructed by Reeds solicitors) for the Children (SW and TW)
Hearing dates: 27 & 28 February, 2 March 2017
____________________
Crown Copyright ©
The Honourable Mr. Justice Cobb :
i) They are the subjects of cross-applications issued under Part II Children Act 1989 (CA 1989) separately by their father and maternal grandmother for 'private law' orders; these applications were issued in August 2015;
ii) They are subjects of, and respondents to, an application issued by Luton Borough Council on 29 September 2015 under Part IV of the CA 1989, for 'public law' (care or supervision) orders;
iii) They are co-claimants (with their father, PW) in applications brought under section 7 of the Human Rights Act 1998 (HRA 1998) for declarations and damages; the father's application was brought formally (albeit on the wrong court form) on 8 March 2016. The children's application was advanced in August 2016 within the body of a Skeleton Argument prepared for a court hearing at that time. The Claimants all seek relief against Luton Borough Council under section 8(3) HRA 1998.
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]); (I made this point expressly in CZ v Kirklees at [9](i), but repeat it as it sets the context for the sub-paragraphs which follow);
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 P v A Local Authority [2016] EWHC 2779 (Fam) (Keehan J), or from H v Northamptonshire County Council & the Legal Aid Agency [2017] EWHC 282 (Fam) (Keehan J) ("H v Northamptonshire"), 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."
i) I give my brief reasons for endorsing the final agreed orders reached in the CA 1989 proceedings;
ii) I consider and give my reasons for approving the terms of settlement of the father's claim under the HRA 1998 and make the relevant award of costs;
iii) I give directions for the final hearing of the children's applications for relief under the HRA 1989.
Essential background
Children Act applications:
i) Contact between the children and their grandmother shall be supervised by the father or another member of the family as arranged by the father. Such contact shall be for a period of no less than 4 hours on each occasion and unless presented otherwise by the father, shall take place in his home town, or in that of the maternal grandmother;
ii) The need for ongoing supervision by the father or another member of his family shall be kept under review and determined by the father;
iii) Such additional direct contact both in terms of frequency and/or duration as shall be determined by the father;
iv) Indirect contact (cards and/or presents to the children on or around their birthdays, Easter and Christmas).
Human Rights Act claims: Procedural Regime
(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(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.
….
(5) Proceedings under subsection (1)(a) must be brought before the end of—
(a) the period of one year beginning with the date on which the act complained of took place; or
(b) such longer period as the court or tribunal considers equitable having regard to all the circumstances,
but that is subject to any rule imposing a stricter time limit in relation to the procedure in question.
(6) In subsection (1)(b) "legal proceedings" includes —
(a) proceedings brought by or at the instigation of a public authority; and
(b) an appeal against the decision of a court or tribunal.
i) The role and/or or status of the Children's Guardian (appointed under rule 16 of the FPR 2010 in the public law "specified" proceedings), and her ability to act for the children as litigation friend for the children in the HRA 1998 claim; or whether Part 21 of the CPR 1998 is engaged;
ii) The status of the Part 36 offer (Part 36 CPR 1998) made in this case in the HRA 1998 claim in November 2016, and the costs implications of the same.
i) That the claim was being considered under section 7(1)(b) HRA 1998 in the context of 'family' (CA 1989) proceedings;
ii) That Munby J (as he then was) in Re L had emphasised the importance of HRA 1998 claims being heard with the CA 1989 claims, which are undoubtedly governed by the FPR 2010;
iii) That no free-standing HRA 1998 application had been issued by the children.
i) Unless the context otherwise appears, the FPR 2010 apply only to "family proceedings" (rule 2.1 FPR 2010);
ii) The CPR 1998 apply to all proceedings in the High Court, County Court and Civil Division of the Court of Appeal but not (per part 2.1(2) CPR 1998) inter alia to 'family proceedings';
iii) Therefore, while there are many similarities (and indeed there is a degree of overlap) between the CPR 1998 and the FPR 2010 (including most obviously the key features of the 'overriding objective' in their respective rule 1) they actually operate a mutually exclusive regime;
iv) The FPR 2010 govern "the practice and procedure to be followed in family proceedings" (section 75(1) Courts Act 2003); "Family proceedings" means (a) proceedings in the family court, and (b) proceedings in the Family Division of the High Court which are business assigned by or under section 61 of (and Schedule 1 to) the Senior Courts Act 1981, to that Division of the High Court and no other (see section 75 ibid.); this does not refer to HRA 1998 claims;
v) "Family Proceedings" are defined in section 32 of the Matrimonial and Family Proceedings Act 1984 as "family business", which itself is defined (ibid.) as "business of any description which in the High Court is for the time being assigned to the Family Division" under section 61 and Schedule 1, para.3 of the Senior Courts Act 1981; Schedule 1, para.3 provides a long list of family proceedings assigned to the Family Division, but these do not include HRA 1998 claims;
vi) "Family proceedings" for the purposes of the CA 1989, are those conducted under the inherent jurisdiction of the High Court, or as set out in the long list of enactments in section 8(4) CA 1989; the HRA 1998 is not included on that list;
vii) It is clear that a free-standing application under the HRA 1998 (section 7(1)(a)) which has no connection with family proceedings should be brought by a Part 8 CPR 1998 claim, and be governed by the CPR 1998; it would be procedurally disruptive, not to mention illogical, if a claim brought "in any [existing family] legal proceedings" (section 7(1)(b)) followed a different set of procedural rules.
"[21] Quite apart from the freestanding jurisdiction under s 7(1)(a), rights arising under the European Convention can also be relied on under s 7(1)(b) of the Human Rights Act 1998, by way of defence or otherwise, 'in any legal proceedings'. That, in my judgment, must extend to cases – such as care cases – proceeding in the FPC. …
[23] There is, however, in my judgment, … an important distinction to be drawn between: (a) those cases in which a European Convention issue arises whilst care proceedings are still on foot; and (b) those cases in which a European Convention issue arises after a final care order has been made and when the care proceedings have accordingly come to an end.
[24] In the latter class of case – that is, where the care proceedings have come to an end – the appropriate remedy may well be a freestanding application under s 7(1)(a) of the Human Rights Act 1998. Such an application can be made either on its own or in conjunction with some other application, for example (as in Re M (Care: Challenging Decisions by Local Authority) [2001] 2 FLR 1300, C v Bury Metropolitan Borough Council [2002] EWHC 1438 (Fam), [2002] 2 FLR 868 and Re G (Care: Challenge to Local Authority Decision) [2003] EWHC 551 (Fam), [2003] 2 FLR 42 an application under s 39 of the Children Act 1989 for discharge of the care order. In such a case, as the President emphasised in C v Bury, the application should be heard in the Family Division and, if possible, by a judge with experience of sitting in the Administrative Court. C v Bury, it should be noted, was a case where the care proceedings had come to an end.
[25] In the other class of case – that is, where the care proceedings are still on foot – the position, in my judgment, is quite different. Here there is no need for any freestanding application under s 7(1)(a). Section 7(1)(b) will provide an appropriate remedy within the care proceedings themselves. Accordingly, Human Rights Act complaints arising before the making of a final care order can, and in my judgment normally should, be dealt with within the context of the care proceedings and by the court which is dealing with the care proceedings. I might point out that Re L (Care: Assessment: Fair Trial) [2002] EWHC 1379 (Fam), [2002] 2 FLR 730 is an example, albeit in the Family Division, showing just that procedure being adopted. In that case, the mother's complaints of numerous breaches of Art 8 were litigated within the care proceedings and without any separate application being issued under the Human Rights Act 1998."
"I respectfully agree with Munby J's general proposition that a court hearing public law proceedings should deal with any associated HRA claim brought by one of the parties to the care proceedings. His concern was to prevent the proliferation of satellite litigation in respect of HRA claims. The judgment should not be read, and was plainly not intended to be read, as requiring a party seeking HRA damages to issue his or her claim within the existing public law care proceedings. On this basis the decision in Re L, and the decision in Re V, may be distinguished from proceedings in which a HRA claim is pursued and damages are sought. Therefore, where the remedy sought in the HRA claim is not limited to injunctive or declaratory relief but includes a claim for damages, it is almost inevitable that those representing the Claimant will be well advised to issue separate proceedings and to seek the issue of a separate public funding certificate because of the potential applicability of the statutory charge in respect of any HRA damages awarded" (emphasis by underlining added).
Representation of the Children in the HRA 1998 claims
"… the legal advice given to Cafcass is that it is outside its statutory functions to act outside of family proceedings… A Cafcass officer acting in a professional capacity would therefore be acting ultra vires if they were acting as a litigation friend in civil proceedings".
"Cafcass cannot act as Litigation Friend in proceedings in which the welfare of the child is not in question, although it is within the scope of the guardian's role to advise on pursuing a claim and if this is not resolved without making an application it must be the Official Solicitor (if there is no alternative) who should act for the child".
Interestingly, although section 15 of the CJCSA 2000, permits Cafcass to authorise "an officer of the Service" to "conduct litigation" in relation to "any proceedings" in "any court", this can only be done "in the exercise of his functions" (i.e. as defined in sections 12-14) and do not capture this type of claim.
"There is a jurisdictional difficulty for the guardian in making the human rights application for K, in that such an application does not appear to come within the duties of a guardian." (emphasis added)
""Any step taken before a child or patient has a litigation friend shall be of no effect, unless the court otherwise orders." (emphasis added).
Given the large measure of apparent agreement as to substantive outcome for the children in this case, it is surely right that I should endeavour to salvage the proposed settlement in order to save the considerable expense of a rerun of the proceedings, provided only that this can be done "justly" (Part 1 CPR 1998), and that such an outcome is supported by the children's yet-to-be appointed litigation friend. Such an approach was recognised in Masterman-Lister v Brutton & Co. [2002] EWCA Civ 1889, [2003] 1 WLR 1511, in which the Court of Appeal (Kennedy LJ giving the lead judgment) noted that rule 21.3(4) is capable of delivering a solution to a problem similar to that which arises here:
"… a court can regularise the position retrospectively, and that was also possible under the Rules of the Supreme Court (see Kirby v Leather [1965] 2 QB 367). Provided everyone has acted in good faith and there has been no manifest disadvantage to the party subsequently found to have been a patient at the relevant time I cannot envisage any court refusing to regularise the position. To do otherwise would be unjust and contrary to the overriding objective of the Civil Procedure Rules, but in any given case the ultimate decision must depend on the particular facts … finality in litigation is also important, and the Rules as to capacity are not designed to provide a vehicle for re-opening litigation which having apparently been properly conducted (whatever the wisdom of the individual decisions in relation to it) has for long been understood to be at an end".
Human Rights Act: the father's claim
i) there was no communication with the father in respect of the Child Protection Conference process, and he was not enabled to take any part in the Child Protection Conference on 1 December 2014. Luton Borough Council's failure to engage with the father was in breach of his rights;
ii) the Child Protection Conference on 1st December 2014 recommended the appropriate and necessary step of "formal investigation" and Luton Borough Council failed to put in place any detailed and time-limited plan as to how that investigation was to be conducted. The absence of any such plan gave rise to a breach of the rights of the father;
iii) it is accepted that the breaches occurring at the time of the Child Protection Conference on 1.12.14 were continuing breaches that continued to be operative until the issue of proceedings on 28.9.15. The issue of proceedings marked an end to the breaches.
Conclusion
"… a careful and realistic eye has to be kept on proportionality of the process by which relief is sought, and on outcome."
As I alluded to above, I am concerned that a realistic eye was not maintained on the proportionality of the claim or its process throughout this litigation. At the hearing before me, I am satisfied that the advocates took a realistic, economical and proportionate stance in relation to the outcome, with the consequence that the case has been completed in three days, with a considerable saving of additional cost.