On 3 June in the course of the panel discussion at the #CPConf2016 I suggested it was only a matter of time before we would see a Human Rights claim succeed not just against a local authority, but also against an Independent Reviewing Officer.
I didn’t have to wait long : Holman J has done it in London Borough of Brent v C [2016] EWHC 1335 (Fam) (28 April 2016).
This is a real issue. In this case, no doubt partly because of the terminal illness of the child and the fact that damages would have afforded no benefit to him, no damages were sought or ordered. But I think that is only a matter of time.
It remains the case of course that just satisfaction in terms of a remedy in damages is currently not something that can in most cases be achieved because the legal aid regulations in respect of the statutory charge apply and will act in almost all cases to entirely extinguish damages before they reach the intended beneficiary. I suspect that although it was not Theis J’s intention in the recent case of Kent CC v M and K (Section 20: Declaration and Damages) [2016] EWFC 28 (13 May 2016) the stat charge will have precisely this effect, notwithstanding her partial award of costs (the stat charge will bit on ALL the costs of the care proceedings not just the HRA aspect).
It is notable that the vast majority of HRA claims coming through on BAILII still have a s20 aspect to them.
PS Damn. Suesspicious Minds correctly, but irritatingly, reminds me that Mr Justice Peter Jackson made declarations of Human Rights breaches against an IRO as long ago as 2012, in the awful case concerning 2 siblings who were left as statutory orphans and who had no less than 77 different placements whilst floating in care (which the IRO appears not to have noticed) – see A & S (Children) v Lancashire County Council [2012] EWHC 1689 (Fam) (21 June 2012) here and here. I can’t quite work out what happened vis a vis damages, because that aspect of the claim was hived off and sent to the Queen’s Bench Division, and I can’t find any reported judgment on it. Suesspicious Minds thinks possibly damages were settled but I can’t find any report of that in the legal / social work press. At any rate, this slightly takes the shine off my confident “I told you so”. *grits teeth* Thanks Andrew.
I think that there’s going to be a collision fairly soon between a Judge who reasonably wants to give the damages to the people who suffered damage and the Supreme Court decisions in Re S and Re T about costs of care proceedings.
It seems inherently wrong to make to make the stat charge bite on proceedings that are non means non merit funded. If, two millionaires were in care proceedings, they’d get free legal advice. But a parent on benefits who gets compensation for being badly treated would have to pay for the costs of care proceedings out of that compensation. It makes no sense.
Having problems with WordPress. Disregard this.
er….ok. *turns back*
It’s not just the Family Court.
We’re now seeing organisations steering complaints of various types, almost by default, to Ombudsmen and Independent Assessors, in the sure knowledge that most individuals will not have the means to challenge even the most obviously skewed decisions because of the costs associated with judicial review. That makes access to a fair trial impossible for all but the most wealthy.
How long until the processes themselves are subjected to an HRA / Article 6 ECHR challenge?