CASE No: LE14CO 0441
Before
His Honour Judge Clifford Bellamy
(sitting as a Deputy High Court Judge)
Re H (A Child: Breach of Convention Rights: Damages)
Mr Mark Roscoe for the Applicant local authority
Miss Claire Howell for the First Respondent mother
Miss Emma Burden for the Second Respondent father
Miss Alison Humphrys for the child.
Judgment
This judgment was delivered in private. The judge has given leave for it to be reported on the strict understanding that (irrespective of what is contained in the judgment) in any report no person other than the advocates or the solicitors instructing them and any other persons identified by name in the judgment itself may be identified by name or location and that in particular the anonymity of the child and the adult members of her family must be strictly preserved.
JUDGE BELLAMY:
On 29th April, 2014 Leicester City Council (‘the local authority’) applied to the court for a care order in respect of a little girl, H. H is now aged 17 months. She was born on 16th May, 2013. Her mother is J (‘the mother’). Her father is D (‘the father’). The case now comes before the court for final hearing. Most issues are agreed. The parents agree that the threshold set by s.31(2) of the Children Act 1989 is satisfied on the basis set out in an agreed threshold document. All parties agree that the appropriate welfare outcome is that there should be a supervision order for a period of 12 months. A supervision support plan has been agreed. Final orders can now be made, thus completing the case within 26 weeks as required by s.32(1)(a) of the Act.
The parents assert that the way the local authority dealt with this case before proceedings were issued gives rise to a breach of their rights under Article 6 and Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Their claim is brought pursuant to s.7(1)(b) of the Human Rights Act 1998. Pursuant to s.8 they seek relief in the form of declarations and damages. The local authority accepts that by its conduct it has breached the parents Article 6 and Article 8 rights. It agrees to most of the declarations sought by the parents. It does not agree that the parents are entitled to damages.
The background history
The mother is aged 31. The father is aged 38.
Both parents spent much of their childhood in local authority foster care, the mother in the care of Leicestershire County Council and the father in the care of Leicester City Council.
During her childhood the mother was made the subject of a statement of special educational needs. She received help from a play therapist. She subsequently had counselling. She was considered to be extremely vulnerable. She is assessed as having a learning disability.
In 1987 the father was admitted to hospital with viral encephalitis. This left him suffering from temporal lobe epilepsy which caused complex partial seizures. He continues to suffer from seizures. He, too, is assessed as having a learning disability.
The parents began their relationship in 2010. In 2012 the mother became pregnant. She did not seek any antenatal care. She did not come to the attention of medical professionals until H was born. It was unclear whether this was a concealed pregnancy or whether, as the mother claimed, she was genuinely unaware that she was pregnant.
H was born at 42 weeks gestation. She was in a poor condition at birth. She was placed on life support. She was not expected to survive for more than 24 hours.
A week after H was born the hospital made a referral to Children’s Social Care expressing concern about the circumstances in which the mother had given birth, the parents’ learning needs, the father’s epilepsy and H’s medical condition.
The local authority conducted an investigation pursuant to s.47 of the Children Act 1989. The assessment was completed on 29th May. The local authority considered that the parents had concealed the pregnancy. The local authority concluded that H was at risk of significant harm from her parents due to the concealed pregnancy, the parents’ learning needs and their limited support networks and that it would therefore be unsafe to discharge H into her parents’ care at that time.
During the course of the assessment the local authority social worker noted that the parents’ learning difficulties were evident during discussions and that the parents appeared to have difficulty in understanding and processing information. She discussed her concerns with her manager. She did not take any steps to explore this issue further.
On 29th May the social worker met with the mother on the neonatal ward to discuss the outcome of the local authority assessment. The local authority proposed that there should be what it described as an ‘informal’ mother and baby placement or a placement of H with family or friends. The social worker records that the parents were visibly upset by this plan.
During her childhood, the mother’s foster carers were Mr and Mrs F. They had a daughter, N. The mother grew up with N. N is now married to JB. I shall refer to them as Mr and Mrs B.
On 31st May the local authority had further discussions with the mother about the local authority assessment and the need to identify potential family or friends as suitable carers for H on discharge. The parents were still concerned about not being able to take H home, but were equally concerned about H being placed in care with strangers. They therefore put forward the names of Mr and Mrs B as people they trusted to care for H. The social worker accepted this information as an indication of the parents’ consent to the placement of H with Mr and Mrs B and then contacted Mrs B to discuss the situation and arrange a visit.
On 3rd June the allocated social worker visited Mr and Mrs B and their extended family. They indicated that they were unable to offer a mother and baby placement due to lack of space but that they could offer a single placement for H.
The social worker proceeded to map out contact and financial arrangements. These arrangements were incorporated into a working agreement. The social work records state that the mother signed the working agreement on 3rd June 2013 and that the agreement detailed her consent to H being cared for by Mr and Mrs B.
There is no record of the parents having been provided with an explanation of all of the available options or of the consequences if they did not consent to H being cared for by Mr and Mrs B or of there having been any discussion about how long this ‘informal’ placement might last. They were advised to seek legal advice if they were unhappy with this plan and were provided with a complaints leaflet. The parents did not seek legal advice.
H was discharged into the care of Mr and Mrs B on 7th June 2013. The local authority considered this placement to be an ‘informal arrangement’. It is clear that the local authority initiated contact with Mr and Mrs B, made all the necessary arrangements and physically took H to their home.
The case was transferred to the local authority’s long-term childcare team in August 2013. The social worker later raised concerns with her manager about the lack of progress in completing an assessment of the parents. She suspected that this may be linked to what she believed to be the parents’ learning disability. The social worker was also concerned that the parents appeared not to have fully understood what they were agreeing to when H was placed with Mr and Mrs B. The parents were anxious to know when H would be returned to their care.
In October 2013 the Team manager sought advice from senior management. This led to a legal planning meeting being convened. The meeting took place on 12th November 2013. The meeting recognised that the placement of H with Mr and Mrs B was not a private fostering arrangement and yet was clearly a ‘placement’ as it was initiated by the local authority. The meeting decided,
that the parents should be asked to give their retrospective consent to the placement of H in the voluntary care of the local authority pursuant to s.20 of the Children Act 1989 with effect from the date she had been with Mr and Mrs B (7th June 2013);
that there should be an urgent cognitive functioning assessment of both parents in order to inform the local authority assessment and how best to work with the parents.
that if the parents refused to consent to H being accommodated under s.20 and placed with Mr and Mrs B and/or to co-operate with arrangements for a cognitive functioning assessment, then the local authority would commence care proceedings.
It was also agreed that the social worker would meet with the parents to discuss the decisions made by the legal planning meeting. It was accepted that H, her parents and Mr and Mrs B had been subjected to unacceptable delay and uncertainty and that the need for conversation with the parents was now urgent.
The social worker met with the parents on 18th November to discuss the outcome of the legal planning meeting and to invite them to consent to H being accommodated under s.20. The social worker says that she carefully explained the decisions of the legal planning meeting and what those decisions meant. She informed them that they did not have to consent to H being accommodated; that if they gave their consent they were entitled to withdraw consent at any time; and that if they did withdraw their consent then the local authority would commence care proceedings.
The social worker believed that although the parents’ understanding was basic, they had understood the information given to them. They asked appropriate questions linked to the information she had shared with them.
On 22nd January 2014 the local authority held a Looked After Children review meeting. The meeting confirmed the plans agreed at the legal planning meeting held on 12th November.
There was significant delay in arranging the cognitive functioning assessment. The local authority’s explanation of the reasons for that delay is highly unsatisfactory. According to its Service Manager, the delay was due ‘to sickness and re-structuring within Legal Service, which resulted in a number of different solicitors involvement’.
Dr Helen James was instructed to undertake the cognitive assessment. It is unclear precisely when she was instructed but as her first meeting with the parents did not take place until 1st April 2014 I assume that she was not instructed until March.
It is appropriate to set out Dr James’ conclusions at this stage in the narrative though she did not, in fact, report until 27th May 2014.
With respect to the mother, Dr James says that all of her scores fell within the borderline range, indicating consistently limited functioning across all areas. With respect to the father, Dr James says that:
‘While [the mother’s] scores give a consistent picture of Borderline abilities, the distribution of [the father’s] scores, ranging as they do from Learning Disability, through Borderline to Average, is unusual, and presents a complex picture. As a result of this intellectual profile, [the father’s] ability to understand, process and use verbally mediated information and concepts is significantly below what might be expected, given his ability in other areas. This is likely to present a very real limitation for him in everyday life. The most likely explanation for this very specific impairment is that it is related to his epilepsy.’
Dr James gave advice on how the parents should be approached. With respect to the mother, Dr James said that:
‘As far as information and advice presented verbally are concerned, [the mother] has a reasonable ability to understand this, and I would expect her to be able to cope well with the kind of discussion likely to take place during a parenting assessment. She will seem at times to be a little slow to respond to what is said, but if you wait for an answer she will give it in a way which shows that she has understood the question.’
With respect to the father, Dr James advised that:
‘Allowance will need to be made for [the father’s] specific difficulties with verbal comprehension…Of particular importance in the course of the assessment will be not expecting him to portray verbally what he is capable of, since he can evidence this more effectively through practical means. In other words, his behaviour rather than his descriptions will be the best guide to what he can achieve.’
In a subsequent letter, Dr James gave the following further guidance so far as the father is concerned. She said that,
‘The following guidance is intended to help his Solicitor to support him to have full capacity in the Proceedings. At the beginning of an appointment, [the father] can present with rushed speech, and a jumbled account of recent events. He needs a little time to settle down, after which he will become more coherent, and can be systematically led through the information he wants to convey. He responds well to direct questioning. Advice given to him should be expressed carefully to avoid ambiguity. Ideally, each sentence should contain one idea only, with a pause at the end of the sentence for this to be absorbed, before offering the next piece of advice or information. It can also be helpful to specifically remind him to listen carefully to important points.’
In addition to the difficulties identified by Dr James, as I noted earlier the father also has to contend with the fact that he suffers from epilepsy. A letter from his treating consultant neurologist, dated 7th April 2014, states that:
‘[The father] is a 37-year old man with long-standing epilepsy. The cause of this was a viral infection of the brain (herpes simplex encephalitis) suffered in infancy, which caused scarring on the left side of the brain in the temporal lobe. Previously, he was reasonably well controlled on a combination of drugs and prior to May he could go a week or two between seizures. According to his partner, during his seizures he goes stiff, his eyes flicker, he screams and [he] may foam at the mouth. He is unaware during these attacks but they are brief, lasting less than a minute. They can occur asleep or awake and are what are called “complex partial seizures”.’
The consultant ends his letter by saying:
‘As far as I know, [the father] is living independently with his partner but, clearly, the seizures are sufficiently disruptive that it would not be safe for him to be the sole carer of a young baby. I am not aware that anything precipitates the seizures but my impression is that he has previously recovered quite quickly from them. I’m afraid I could not comment on what support is required for him to live independently.’
Given that the father was in the care of this local authority during his own childhood, much of this information about his presentation and functioning should have been contained in the local authority’s earlier case file and should, therefore, have been available to the local authority when it became involved with the father again following the birth of H.
The local authority finally issued these care proceedings on 29th April, 2014. H was born on 16th May, 2013. She was, therefore, fast approaching her first birthday when these proceedings were issued. It took this local authority almost a year to issue these proceedings. That delay was unjustified and inexcusable.
The case was listed for a case management hearing before a District Judge on 21st May. As a result of his concerns about the history of this child’s placement away from her parents he immediately referred the case to me. I shall refer later in this judgment to the steps I took to address those concerns. For the moment I confine myself to continuing my chronological review of the history.
The local authority’s initial care plan began with the following paragraph:
‘The Local Authority seeks an Interim Care Order for H in order to progress the care plan. This is to share parental responsibility in order to safeguard her whilst further assessments are completed with her being placed with her parents in a residential unit under placement with parents regulations.’
The case first came before me on 6th June. By then the local authority had changed its position and no longer proposed that there should be a residential assessment. The parents made their own application for a residential assessment. The application was contested. I allowed the application.
The residential assessment began on 20th June. The parents moved into the residential assessment centre with H. That was the first time they were able to be together as a family since H’s birth more than a year earlier.
The residential assessment lasted for 12 weeks. It was completed on 12th September. The final assessment report was overwhelmingly positive. The report recommended that the parents be allowed to care for H in the community ‘alongside a tight package of universal support that will promote their understanding as H’s need change’.
The assessment report has informed the local authority’s final care plan. H is to remain in the care of her parents with an appropriate package of support which includes a twelve month supervision order. Mr and Mrs B have agreed to play a part in supporting the parents. For this family, the ultimate outcome is a very happy outcome. However, the happy ending must not be allowed to mask or diminish this local authority’s serious failings in the way it has dealt with this case and the impact that has had on these parents.
Impact on the parents
The parents have not filed statements describing the impact on them of the local authority’s admitted breaches of their Convention rights. However, there is within the material filed in connection with the care proceedings clear evidence that the way the local authority has dealt with the case has had a significant impact on them.
In a letter from the father’s consultant neurologist to his GP dated 14th October 2013, the neurologist says that the father
‘thinks that his upsurge in seizure frequency is due to the stress involved in the question of the upbringing of his daughter, and I’m sure he’s right’.
In the final report at the end of the residential assessment, the author says that,
‘It is well documented that [the father] feels that his seizures can be stress induced, for instance his seizures have tended to worsen and become more frequent around court dates. Undoubtedly, the last 14 months have been a very stressful time for both parents.’
So far as concerns the mother, the interim residential assessment report gives some insight into the impact on her. The report notes that the mother
‘has a history of self harm and anxiety, she currently picks and scratches at a number of scabs on her arm as a form of stress/anxiety relief.’
A similar point is made by Dr James in her assessment of the mother. She records that the mother,
‘has a habit of picking at the skin on her arms when she is distressed. Much of the skin on her arms carries marks from this, some old, some recently healed, and some current. When I first saw the couple before they went [into the residential assessment], they told me that in general she had done this less since being with the father, but that it had increased because of the situation with H being in foster care.’
In my judgment the nature and extent of the poor practice admitted by the local authority is such that an adverse impact on these parents was inevitable. They would have needed great fortitude to be able to take such an experience in their stride. Far from having great fortitude it is clear that these are vulnerable learning disabled parents who had no-one to speak up for them.
It is appropriate to note, in passing, the impact which the local authority’s conduct has had on Mr and Mrs B. On 17th September 2014 they filed a written statement which contains the following passage:
‘The situation of H being placed with us by the Local Authority and abruptly moved has been emotional for us. We became bonded to H as her main carers. We put out own priorities on one side whilst we took on her care alongside the care of our own children. It was the first experience we had of caring for a child temporarily (we were initially told by social services we would only be caring for 2 weeks). We were then told it was unlikely she would ever be returned to her parents and we believe we became more deeply attached to her. It has been hard for [Mrs B] in particular to overcome the personal feelings of sadness that H’s move has evoked.’
One can only feel immense sympathy for the position that Mr and Mrs B find themselves in. They have taken H into their home and into their hearts. They have had expectations that have not been fulfilled. In the same way that this local authority now says to these parents that it accepts that it has breached their Article 6 and Article 8 rights, it is to be hoped that an appropriate apology will be given to Mr and Mrs B and from a senior level of management.
The declarations
Such was my concern when this file was referred to me by the district judge that I immediately made an order in these terms:
‘By 4 pm on 4th June, 2014, the local authority shall file and serve a social work statement addressing the following issues:
the circumstances surrounding the obtaining of the mother’s consent to placement of H with Mr and Mrs B;
the circumstances surrounding the obtaining of the mother’s consent to the child being accommodated pursuant to section 20 of the Children Act 1989 and, in particular, addressing the issues set out in the guidelines 1-10 in the decision of Hedley J. in Coventry City Council v. C, B, CA and CH [2013] 2 FLR, 987.’
Sonia Grant, Service Manager in the local authority’s Children In Need Service, filed a written statement. Most of the narrative set out above is based on Ms Grant’s evidence. Ms Grant concedes that in this case the performance of this local authority has fallen below acceptable standards. She says,
The local authority’s review of the events surrounding both situations has identified serious practice issues relating to the identification of [the mother’s] capacity to give consent, particularly in respect of the placement with Mr and Mrs B in June 2013.
The parents’ capacity to consent was not fully considered or explored at all the key stages of the assessment and decision-making process…
The placement with Mr and Mrs B was clearly a ‘Section 20 placement’ made by the local authority, who would have had to place H in foster care and possibly initiate care proceedings if Mr and Mrs B could not care for her. The Legal Planning Meeting held on 12th November attempted to bring the matter back on track to avoid further delay, but there was a significant delay in arranging the cognitive functioning assessment which only added to the delays within the case.
The local authority accepts that the social work judgments and decision-making within this case fell below what was required at key points, and failed to fully take account of the combined complexities of the parents and H’s competing needs in a timely and child-centred way.
The issues about parental capacity to give consent that occurred within this case have highlighted the urgent need to ensure social workers are aware of their responsibilities in this area. Therefore, the local authority intends to urgently address this training issue to avoid this happening again.’
It is against that background that the local authority accepts that it has breached the parents’ rights under Article 6 and Article 8 and that it is appropriate for the court to make declarations. With respect to the declarations sought by the mother, the local authority concedes that it has acted in breach of the mother’s Article 6 and Article 8 rights in that it:
failed to issue proceedings in a timely manner;
failed to involve the parents in the decision making process;
failed to take steps to explore concerns regarding the mother’s lack of understanding [though making the point that at the meeting on 18th November 2013 the social worker was satisfied that the parents were able to provide informed consent to s.20 accommodation at that stage];
should not have sought the parents’ consent on 31st May 2013 or taken their proposals of alternative carers as consent to the placement with Mr and Mrs B;
placed insufficient weight on the parents’ clearly expressed wish to care for H themselves;
failed to explain all available options, timescales and the consequences if they did not consent to H being cared for by Mr and Mrs B;
should not have asked the mother to sign an agreement on 3rd June 2013 consenting to placement away from the parents;
permitted H to be cared for away from her parents against their expressly stated wishes;
failed to acknowledge that they had placed H with Mr and Mrs B or to undertake a written viability assessment of Mr and Mrs B [though noting that it did undertake routine checks, interviews and a review of the accommodation in the process of making a decision that it was a safe arrangement for H]; and
significantly delayed in assessing the parents’ capacity to parent H.
With respect to the declarations sought by the father, the local authority concedes that it acted in breach of the father’s Article 6 and Article 8 rights in that it:
failed to provide him with appropriate information as to the consequences of not consenting to s.20 accommodation;
failed to consider or explore his capacity to consent to s.20 accommodation before removing H from his care;
permitted unacceptable delay and uncertainty in the assessment process; and
by its flawed procedures, deprived the father of living with H for the first year of her life [though being of the view that both parents have complex histories and difficulties and that H’s removal pending assessment of the parents was necessary to ensure her safety].
In light of the local authority’s concessions I shall make those declarations.
The parents’ claim for damages
In addition to the declarations the parents also seek an order for damages. That application is opposed by the local authority. In particular, the local authority submits (1) that the Family Court does not have jurisdiction to make an order for damages, (2) that the parents have adopted the wrong process by which to pursue their claim, (3) that they have delayed for more than a year in making their claim and a separate claim for damages would therefore be out of time and (4) that in the circumstances of this case it is not appropriate for the court to make an award of damages.
Jurisdiction
The relevant statutory provisions are to be found at sections 7 and 8 of the Human Rights Act 1998. So far as is material, s.7 provides that:
‘(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 —
bring proceedings against the authority under this Act in the appropriate court or tribunal, or
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…
In subsection (1)(b) “legal proceedings” includes—
proceedings brought by or at the instigation of a public authority…’
So far as is material, s.8 provides that:
‘(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.
But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings.
No award of damages is to be made unless, taking account of all the circumstances of the case, including—
any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and
the consequences of any decision (of that or any other court) in respect of that act,
the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.
In determining—
whether to award damages, or
the amount of an award,
the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention.
Article 41 of the Convention provides that:
‘If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.’
In Re L (Care Proceedings: Human Rights Claims) [2003] 2 FLR 160 Munby J (as he then was) considered the mechanism by which a parent involved in proceedings under Part IV of the Children Act 1989 should seek relief in respect of the enforcement and/or breach of that parents’ human rights. He said:
‘[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…
[31] …human rights arguments based on the European Convention can, and should, be dealt with within the context of the pending care proceedings. They can, and should, be dealt with by the court which is dealing with the care proceedings. Where there are care proceedings on foot there is, in my judgment, no need for any separate, let alone any freestanding, application. Section 7(1)(b) enables every court – including the FPC – to give effect to the parties’ European Convention rights…
[38] I have shown this judgment to the President, Dame Elizabeth Butler-Sloss, in draft. She has authorised me to say that she agrees with and endorses everything that I say in paras [31]–[36] above as to the appropriate procedures which should in future be adopted in such cases.’
Not only did that judgment have the endorsement of the then President, Dame Elizabeth Butler-Sloss, it was subsequently approved by the Court of Appeal. In Re V (A Child) [2004] 1 FLR 944, giving the judgment of the court, Wall LJ said that:
‘8.4 Any allegation made in care proceedings pursuant to HRA 1998 section 6(1) that a local authority has acted in a way which is incompatible with a Convention right, including any allegation which involves a breach of a party’s rights under either Article 6 or Article 8 of the Convention can and should be dealt with in the care proceedings by the court hearing those proceedings under HRA section 7(1)(b). It is neither necessary nor desirable to transfer proceedings to a superior level of court merely because a breach of Convention rights is alleged.’
It is in my judgment implicit in those two authorities that the requirement that Convention issues raised within ongoing care proceedings should be dealt with within those proceedings includes the right to seek relief (including damages) within those proceedings. If further support is needed for that proposition, it can be found in Re V (A Child) [2004] EWCA Civ 1575 (the sequel to the case referred to earlier) and in Coventry City Council v C, B, CA and CH [2013] 2 FLR 987.
Re V (A Child) concerned an appeal against a finding by a Circuit Judge within care proceedings that there had been a breach of the parents’ Article 6 rights. The judge awarded damages of £100 for each parent. The Court of Appeal allowed the appeal against the finding that there had been a breach of Article 6. The award of damages therefore fell away. However, it is in my judgment again implicit in their Lordship’s judgments that where the court in care proceedings finds that there has been a breach of a Convention right it has the power to make an award of damages under s.8 of the Human Rights Act 1998. The position is made most clear in the judgment of Holman J:
‘35. I agree with both judgments. I would merely add that, so far as I can discern, neither of the lengthy written submissions on behalf of the parents made any express reference to section 8 of the Human Rights Act 1998 under which their claim to damages fell to be considered; nor did the judge himself make any express reference to that section in any part of his judgment under appeal. It seems from passages both in the judgment itself and also in the judge's later judgment when he refused permission to appeal, that the judge considered that once he had found there had been a breach of a right under the Convention then he was bound in some way to mark that by an award of damages.
A reading of section 8 makes plain that that is far from being the case. The grant of any remedy at all is discretionary. Under section 8(1) a court may only grant such relief or remedy or make such order within its powers “as it considers just and appropriate”. By section 8(3), in relation specifically to damages, no award may be made unless, taking account of all the circumstances of the case, the court is satisfied “that the award is necessary to afford just satisfaction to the person in whose favour it is made.”
I venture to think that if the judge's attention had been properly drawn to the restrictive terms of that section he would not have made the award that he did.
I further urge that if ever again any application is made within proceedings of this kind for an award of damages, very close attention is paid to the express provisions of section 8 before any court begins to consider making any such award. In my view, the occasions when it could be necessary and just and appropriate to make such an award will be very rare indeed.’
In Coventry City Council v C, B, CA and CH, at the final hearing of care proceedings the court had to consider the parents’ claim under s.7(1)(b) of the Human Rights Act 1998. It was not until the parties were at the door of the court that the local authority conceded that there had been a breach of the parent’s Convention rights. Hedley J noted that,
‘24. …The parties have agreed the payment of damages and other provisions which all accept amount to “just satisfaction” of both these claims.’
That analysis of the relevant authorities accurately sets out the position as it was prior to the 22nd April 2014 when the Family Court came into being. Has the creation of the Family Court altered the position? For the local authority, Mr Mark Roscoe, submits that it has.
Mr Roscoe’s argument runs as follows. Section 8(2) of the Human Rights Act 1998 provides that damages ‘may be awarded only by a court which has power to award damages or to order the payment of compensation in civil proceedings’ (emphasis supplied). Whereas the County Court (where these proceedings would almost certainly have been conducted prior to 22nd April) is a ‘court which has power to award damages…in civil proceedings’, the Family Court does not have that power. It is no part of the function of the Family Court to make orders for compensation or damages.
In my judgment there is no substance in that point. Section 31E of the Matrimonial and Family Proceedings Act 1984 (inserted as a result of paragraph 1 of Schedule 10 to the Crime and Courts Act 2013 which came into force on 22nd April 2014) provides that:
‘(1) In any proceedings in the family court, the court may make any order—
which could be made by the High Court if the proceedings were in the High Court, or
which could be made by the county court if the proceedings were in the county court.
Subsection (1) is without prejudice to, and not limited by, any other powers of the family court.’
I am satisfied that the Family Court has the power to make an award of damages under s.8(2) of the Human Rights Act 1998. I am equally satisfied that the authorities to which I have referred continue to apply and that where, in the course of care proceedings, relief is sought under section 8, that relief must be sought within the care proceedings pursuant to s.7(1)(b) of the 1998 Act and not by bringing freestanding proceedings under s.7(1)(a).
Process
That last finding effectively disposes of the point made by Mr Roscoe in respect of process. In his skeleton argument he submits that:
‘The Applicants ought to have issued a civil claim under CPR Pt 8. If such a claim had been issued in a timely manner then it could then have been tried with the final hearing of the LA’s Children Act applications.’
It is clear from the authorities to which I have referred that that submission is misconceived. Compliance with the formalities required by the Civil Procedure Rules 1998 is not required in circumstances such as those with which I am concerned.
Rule 29.5 of the Family Procedure Rules 2010 is headed ‘The Human Rights Act 1998’. Rule 29.5(2) provides that:
‘A party who seeks to rely on any provision of or right arising under the 1998 Act or seeks a remedy available under that Act must inform the court in that party's application or otherwise in writing specifying –
the Convention right which it is alleged has been infringed and details of the alleged infringement; and
the relief sought and whether this includes a declaration of incompatibility.
This does not prescribe any particular formality save that the party making the claim must inform the court. The court must be informed ‘in that party’s application or otherwise in writing’. In this case the parents have used the procedure set out in FPR 2010 Part 18. So far as is material, rule 18 provides that:
The Part 18 procedure is the procedure set out in this Part.
An applicant may use the Part 18 procedure if the application is made –
in the course of existing proceedings;
An application notice must state –
what order the applicant is seeking; and
briefly, why the applicant is seeking the order.
FPR 2010 PD5A provides at paragraph 2.2 that
‘Where an application under the Part 18 procedure is to be made by application notice, the forms to be used are –
Form C2 where the application is made in the course of or in connection with proceedings under Part 12…’
Both parents have made their applications in Form C2. Each parent confirms at paragraph 1 of their Form C2 what is being applied for – ‘Relief for breach of Article 6/7 rights’. Each sets out at paragraph 6 the details of their application and makes clear that damages are being sought and the grounds upon which the application is being made. In my judgment this adequately complies with the requirement of rule 29.5 to ‘inform the court in that party's application or otherwise in writing’.
I am satisfied that the parents have presented their claims in an appropriate and acceptable manner and in particular in a manner which is compliant with rule 29.5. Both the court and the local authority are clear what relief is being applied for and on what grounds.
Delay
On behalf of the local authority, Mr Roscoe submits that the parents’ application for relief is out of time. Section 7(5) of the Human Rights Act 1998 provides that:
‘(5) Proceedings under subsection (1)(a) must be brought before the end of—
the period of one year beginning with the date on which the act complained of took place; or
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.’
This submission is premised upon the correctness of his earlier submission that the parents should have issued a freestanding application under s.7(1)(a). Having found against him on that submission his argument that the parents’ application is time barred falls away.
For the reasons set out earlier in this judgment, the parents’ claims have been brought, correctly, under s.7(1)(b). Section 7 does not impose any time limit on applications made under s.7(1)(b). Whilst it may be the case that circumstances could arise in which the court would be entitled to take account of delay when determining an application under s.7(1)(b) it is clear that delay is not, of itself, a bar to making an application under that subsection.
Justification
In support of his submission that an award of damages is inappropriate in this case, Mr Roscoe refers to the decision of the Court of Appeal in Anufrijeva v London Borough of Southwark [2003] EWCA Civ 1406 and in particular to the following passages from the judgment of the Lord Chief Justice, Lord Woolf:
The sections of the HRA cited above establish a code governing the award of damages which has to be applied with due regard to the Strasbourg jurisprudence. However, as we shall show, the assistance to be derived from that jurisprudence is limited. The remedy of damages generally plays a less prominent role in actions based on breaches of the articles of the ECtHR, than in actions based on breaches of private law obligations where, more often than not, the only remedy claimed is damages…
The code recognises the different role played by damages in human rights litigation and has significant features which distinguish it from the approach to the award of damages in a private law contract or tort action. The following points need to be noted:
the award of damages under the HRA is confined to the class of unlawful acts of public authorities identified by section 6(1) - See sections 8(1) and (6).
the court has a discretion as to whether to make an award (it must be "just and appropriate" to do so) by contrast to the position in relation to common law claims where there is a right to damages - See section 8(1).
the award must be necessary to achieve "just satisfaction"; language that is distinct from the approach at common law where a claimant is invariably entitled, so far as money can achieve this, to be restored in the position he would have been in if he had not suffered the injury of which complaint is made. The concept of damages being "necessary to afford just satisfaction" provides a link with the approach to compensation of the ECtHR under Article 41.
the court is required to take into account in determining whether damages are payable and the amount of damages payable the different principles applied by the ECtHR in awarding compensation.
exemplary damages are not awarded.
In considering whether to award compensation and, if so, how much, there is a balance to be drawn between the interests of the victim and those of the public as a whole…’
Two years after the Anufrijeva case the approach to s.8 was considered by the House of Lords in R (Greenfield) v Secretary of State for the Home Department [2005] UKHL 14. In the speech of Lord Bingham, with which the other Law Lords agreed, he made it clear (at paragraphs 3 and 9) that,
‘The primary aim of the European Convention was to promote uniform protection of certain fundamental human rights among the member states of the Council of Europe’ and that, ‘The routine treatment of a finding of violation as, in itself, just satisfaction for the violation found reflects the point already made that the focus of the Convention is on the protection of human rights and not the award of compensation.’
However, he later acknowledged (paragraph 15) that although,
‘In the absence of a clear causal connection, the Court's standard response has been to treat the finding of violation without more as just satisfaction.’
the Court had now
‘softened this response where it was persuaded that justice required it to do so.’
He set out the criteria which must be fulfilled before damages will be awarded:
‘4. …It is evident that under article 41 there are three pre-conditions to an award of just satisfaction: (1) that the Court should have found a violation; (2) that the domestic law of the member state should allow only partial reparation to be made; and (3) that it should be necessary to afford just satisfaction to the injured party. There are also pre-conditions to an award of damages by a domestic court under section 8: (1) that a finding of unlawfulness or prospective unlawfulness should be made based on breach or prospective breach by a public authority of a Convention right; (2) that the court should have power to award damages, or order the payment of compensation, in civil proceedings; (3) that the court should be satisfied, taking account of all the circumstances of the particular case, that an award of damages is necessary to afford just satisfaction to the person in whose favour it is made; and (4) that the court should consider an award of damages to be just and appropriate. It would seem to be clear that a domestic court may not award damages unless satisfied that it is necessary to do so, but if satisfied that it is necessary to do so it is hard to see how the court could consider it other than just and appropriate to do so. In deciding whether to award damages, and if so how much, the court is not strictly bound by the principles applied by the European Court in awarding compensation under article 41 of the Convention, but it must take those principles into account. It is, therefore, to Strasbourg that British courts must look for guidance on the award of damages.’
I noted earlier the view expressed by Holman J in 2004 in Re V (A Child), ‘the occasions when it could be necessary and just and appropriate to make such an award will be very rare indeed’. Yet three years later, in Re C (A Child) [2007] EWCA Civ 2, Wilson LJ (as he then was) suggests a softening of that approach. He said:
"I do not think", said Hedley J., "that the concept of damages sits easily with the welfare jurisdiction of family law". The instincts of most family lawyers will be likewise. But, by his conspicuously thorough and energetic submission, Mr Tolson has persuaded me that, as a result of the advent of the Human Rights Act 1998, such instincts are misplaced.
In determining whether to award damages for infringement by a public authority of a person's rights under the Convention of 1950 and, if so, the amount of the award, the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41…The kernel of both [s.8(3) of the Act and Article 41 of the Convention] is that satisfaction to the person whose right has been infringed must be "just" and that, if but only if such be "necessary" in order to afford just satisfaction, an award of damages should be made.’’
In general the "principles" applied by the European Court, which we are thus enjoined to "take into account", are not clear or coherent…What is clear, however, is that the European Court generally favours an award of damages in cases in which local authorities have infringed the right of parents under Article 8 to respect for their family life by shortcomings in the procedures by which they have taken children into care or kept them in care, whether temporarily or permanently…’
A recent example of just such a case is to be found in the decision of Hedley J in Coventry City Council v C, B, CA and CH to which I referred earlier. In that case a baby was removed from the care of her mother at birth in reliance upon her purported consent to the child being accommodated under s.20 of the Children Act 1989. The manner and circumstances in which the local authority obtained the mother’s consent gave rise to a claim for damages for breach of the mother’s Convention rights, a claim which was eventually settled at the door of the court.
In that case the baby concerned was the mother’s fourth child. Her older three children had all been removed from her care, made the subject of final care orders and placement orders and had been placed for adoption. Similar orders were made by Hedley J in respect of this her fourth child.
In the case with which I am now concerned H is these parents’ first child. Whilst it may be the case that had the local authority issued care proceedings soon after H was born an interim care order would have been made, the fact is that proceedings were not commenced promptly. They were not issued until shortly before H’s first birthday. It was not until June 2014 that these parents eventually managed to secure the return of their daughter to their care, exactly a year after she was placed with Mr and Mrs B. Whilst it is true that during that year the parents were having regular contact, supervised contact at a local authority contact centre is far removed from the joys of fulltime, unsupervised care of one’s own child. The residential assessment which began in June 2014 could have begun a year earlier. The cognitive assessment of the parents, not finally obtained until May 2014, could have been obtained months earlier. Unlike the parents in the Coventry case, these parents’ have suffered a loss of time with their daughter which was both unnecessarily lengthy and deeply distressing.
I am in no doubt that, bearing in mind the guidance given in the authorities to which I have referred, this is a case in which merely to make the declarations set out earlier in this judgment would not provide just satisfaction for all that these parents have had to live through as a result of the conduct of this local authority. I am satisfied that an award of damages is ‘necessary to afford just satisfaction’ to these parents.
Quantum
The final issue is to determine the appropriate quantum of damages. There is little guidance in the authorities on the approach to be taken when quantifying an award of damages under s.8(2). If one looks at the authorities for appropriate comparators, again there is relatively little assistance.
Miss Burden draws the court’s attention to the report of The Law Commission and The Scottish Law Commission, Damages Under the Human Rights Act 1998, published in October 2000. Under a section headed ‘Children in Public Care’, at paragraph 6.160 the report says that,
‘…these cases seem to form a distinct category. The applicants, who are usually the parents of the children in question, have generally been successful in recovering substantial damages. In making such awards, the Strasbourg Court has acknowledged the considerable distress and in some cases the loss of opportunities suffered, and has shown a greater willingness to speculate than in other types of case. The Court has been prepared in some cases to compensate the applicant for a ‘loss of relationship’ with his or her child. Perhaps these features of the Court’s treatment of the case-law in this area can be attributed to the importance of the right in question and the lasting impact that a decision to place children in care will have on both the applicants and their children.’
Counsel have referred to a number of authorities which provide examples of the awards that have been made in other cases. In particular, I been referred to TP And KM v United Kingdom [2001] 2 FLR 549 (damages of £10,000 per parent awarded for a local authority’s breach of the parents rights under Articles 8 and 13); to P, C and S v United Kingdom [2002] 2 FLR 631 (damages of €12,000 per parent awarded for a local authority’s breach of the parents’ rights under Articles 6 and 8), and to Venema v The Netherlands [2003] 1 FCR 153 (damages €15,000 awarded to parents jointly for breach of their Article 8 rights). Miss Burden points out that by reference to the Retail Price Index each of those three awards would be worth significantly more in 2014.
Whilst the authorities referred to are of some small assistance, there are too few to be able to be confident that they indicate the broad parameters for making an assessment. In any event, it must, of course, be remembered that every case is different. Every case turns on its own facts. The assessment of damages in these cases is highly fact sensitive.
In this case I have in mind each of the declarations conceded by this local authority and the background facts upon which those declarations are founded. I also have in mind the discussion earlier in this judgment concerning the impact of the local authority’s breaches on these learning disabled parents. I have in mind in particular that these parents were separated from their daughter for over a year.
I also have in mind that the local authority delayed unreasonably in issuing proceedings thereby denying the parents the opportunity to apply to the court for an order for a residential assessment. I consider this point to be particularly significant given that when the parents were finally able to make such an application their application was successful and so, too, was the assessment which followed. Indeed, it was that assessment which has led to the rehabilitation of H to the care of her parents.
On behalf of the parents Miss Howell (for the mother) and Miss Burden (for the father) submit that an appropriate award would be £6,000 for each parent. For the local authority, Mr Roscoe submits that if an award of damages is appropriate (and he contends that it isn’t) the sum of £1,000 for each parent would be appropriate.
Taking into account all of the factors to which I have referred, I am satisfied that an award of damages of £6,000 for each parent would achieve ‘just satisfaction’ in all the circumstances of this case.