Human Rights Act Claims in Family Proceedings – the costs catch 22 resolved?

This case just published : Re BB (A Child) [2016] EWFC B53 (26 June 2016), HHJ Murfitt.

In brief :

A Circuit Judge case, so not binding authority.

Care proceedings following s20 drift (1 yr +).

Child’s legal rep brought HRA claim – conceded by LA and damages £7,500 and declarations agreed.

BUT : the LAA would recoup from the damages not only the costs of the HRA claim (separate certificate) but also the care proceedings before any benefit were received by the child – so given the size of HRA damages awards this would mean basically no net benefit to child in this (and most other cases), meaning that the requirement for the court to provide “just satisfaction” or an “effective remedy” would not be achieved.

What to do?

Theis J dealt with a similar claim in Kent County Council v M & K (by her children’s guardian) [2016] EWFC 28, but it did not seem from that judgment as if this issue was fully aired, and possibly neither the advocates nor the court had appreciated the full breadth of the LAAs power (and duty) to recoup costs against damages through the statutory charge provisions – having looked into this it is pretty clear that the recoupment provisions and guidance mean that there is limited scope for the LAA to turn a blind eye to damages recovered where any costs remain outstanding – the costs of care proceedings are likely to swallow whole most HRA awards.

Annoyingly on a personal level, another Reed (no relative) got to argue a point I’ve been lining up twice now (but my HRA cases have gone off in other directions so it has not happened): that you either have to up the damages to cover the costs that will be recouped by the LAA OR make an award of costs of both the care proceedings AND HRA claim so there is nothing to recoup. In this instance (for various reasons some of which were specific to this case) the court preferred the latter course of action, by proper reference to what was permissible under the rules and authorities on a costs application – the LA’s pre-issue conduct (i.e. the HRA breaches) had not been blameless so it was conduct that could properly be taken into account AND the conduct of the litigation was also said to be not entirely reasonable (actually this is oddly expressed in the judgment as “I have not found that Thurrock Borough Council has behaved entirely reasonably in the litigation” which sounds a little bit like an improper reversal of the burden).

Anyway, is this a case of “happy days – a solution to the conundrum”? Yes, in this case at least. I’m not sure however that this case necessarily represents an answer to all such cases. As the court rightly points out this is an expensive business for cash strapped LAs – why should they have to pay the full costs of care proceedings even where the case they brought is justified and the orders they sought have been made? One answer of course is that they should not breach a child’s human rights in the first instance, and that any pain they feel in having to stump up is frankly not the child’s problem, who has an entitlement to proper redress regardless. But the regulations applicable to one public body (the LAA) and the need for a LA to preserve funds to meet the needs of other children are in real tension – and an award of costs should not be made simply because a receiving party is publicly funded or because the paying party is a public body.

In this instance, the culpable conduct of the LA in allowing drift, in failing to issue, in compelling the G to issue a HRA claim through its actions – were sufficient to found a costs order. In other cases it will be necessary for the court to look at the conduct which is said to have preceded the HRA claim and it is likely that this will be fact specific exercise rather than some sort of semi-automatic award of costs – the costs rules do not include a “costs follow the event” presumption that can be easily applied to every HRA claim or that can be easily transposed to connected but distinct care proceedings where the merits and “winners” may be different.

It seems to me that any LA advocate will be duty bound (in the absence of specific instructions to concede) to resist an application for a costs order of this magnitude, so these costs applications will need to be argued, and a proper balancing exercise / analysis carried out in each case. It is likely to be only a matter of time before such a case goes on appeal – which would be welcome if it produces some clear and binding guidance on the proper approach to take. Circuit Judge decisions are illuminating and helpful in terms of sharing ideas and thinking through possible approaches and pitfalls – but they are not precedent.

Also worth noting, although again not binding – this particular judge leaves open the possibility of an argument in other cases that the damages should simply be uplifted by an amount equivalent to the costs sting that will come in due course. That wasn’t appropriate in that case because the matter had been settled for a specific sum subject to costs, but it could still be run in other cases (and cases could be settled on the basis that damages include a notional figure for the statutory charge although I think it is unlikely any LA will agree such a package unless and until the High Court or appellate court has looked at this and it has been fully argued).

Apologies for any typos and the lack of graceful construction – wanted to blog about this but am racing against approaching zonking out having just spent 3 days “doing London” with the kids (gosh, isn’t Trafalgar square much nicer without the pigeon sh*t everywhere?).

7 thoughts on “Human Rights Act Claims in Family Proceedings – the costs catch 22 resolved?

  1. I cannot believe the child could find itself with absolutely nothing to show for the breaches to their Human Rights from the conduct of the Local Authority. I sincerely hope this is clarified very soon, how else are we supposed to hold the Local Authority to account on behalf of children? Children and advocates will not be motivated to place these matters before a court, leaving the Local Authority unchallenged for poor practice and decision making.

    • well in this case Maggie this hasn’t happened but I suspect the risk it will all be pointless is one of several reasons we are not getting even more of these claims coming through.

  2. Respectfully think that para 32 is wrong, but we’re certainly going to get some litigation on it. I think you have to discount the Munby J decision in 2003 because it pre-dates the stat charge changes and people have to look properly about separating out Care proceedings and HRA claims.

    It really hinges on this bit in the Supreme Court in Re T on costs

    44.For these reasons we have concluded that the general practice of not awarding costs against a party, including a local authority, in the absence of reprehensible behaviour or an unreasonable stance, is one that accords with the ends of justice and which should not be subject to an exception in the case of split hearings.

    Does that relate, as I would read it to such behaviour WITHIN the proceedings? A Court considering a costs order in ancillary relief (or private law proceedings) would look at the conduct WITHIN the proceedings, not the conduct that led to the issue of proceedings.

    If it relates to ‘reprehensible behaviour’ before the proceedings, then we have the peculiar situation in which this would be relevant to an LA who delayed in issuing proceedings but NOT to the behaviour of say a Ben Butler in establishing the threshold to issue. (I know there are issues with men of straw and parental resources, but that’s a separate matter to whether in PRINCIPLE the conduct prior to the start of proceedings is a relevant issue for litigation cost orders on a Re T basis)

    Para 33 saves this particular case from appeal, in that there was some litigation conduct (though it seems pretty flimsy to claim that this was anything much more than parties having a disagreement that needed the Court to resolve it)

    Really, what’s needed here is some meaty litigation in which the authors of the stat charge policy are brought in as intervenors. It is clearly a nonsense that a parent who is entitled to free legal representation has to repay the costs of that back if, and only if, the Court determine that the State has trampled on their human rights.

    I also note that the social worker went twice to the Panel that gatekeep care proceedings to ask to issue, and was twice refused. So this is markedly different to the other reported cases where there was a lack of thought or effort – the social worker here wanted to issue and was unable to do so because the gatekeeping panel decided not to do so. That ought to have had an impact on quantum.

    We are of course seeing the huge increase in care proceedings as a result of the s20 case law and damages cases, and I’m really not sure that the system or those working within it can sustain such an increase at the current time. I’m also not sure that care proceedings have a lot to offer 11 year olds who have nobody within the family seeking to care for them – the family Courts are wildly over-stating the life-affirming benefits to these children of having a Guardian appointed.

    [If not having a Guardian appointed because of delay in issuing proceedings is worth £8k, then what about all those cases post Baby P where we were IN care proceedings and didn’t get a Guardian until pre-hearing review or not at all? Where were THOSE HRA claims?]

  3. Could a parent or child not make a claim to the LA Ombudsman for compensation as an alternative measure, therefore avoiding these costs?

    • Yes they could, although the ombudsman doesn’t award damages for human rights breaches per se and the awards tend to be quite low – even lower than HRA damages (although higher in real terms than an HRA award which disappears in the LAA’s pocket before reaching the beneficiary). The process is very different and no lawyers / legal aid is involved. This is one recent example which sounds as if it could have potential to be couched as a HRA claim but which here led to a small award of £2,000 to the mother (but nothing for the child) :

      • Blimey. That’s quite shocking.

        No amount of money would ever compensate for the pain and irreversible impact the separation of my son and I has had (and will have) on us both…. but how else can professionals be held account.,….In a way that a parent can at least on some level, relate to?

        Adoption targets …budget cuts….all issues which muddy the waters & inevitably influence , hopefully the local authorities involved ‘learn’ from their mistakes and make ‘changes’ etc….but from a personal perspective that just doesn’t seem ‘enough’.

        Wouldn’t it be lovely if the money was instead spent offering families that need it, worthwhile & genuine support before serious action (unless EPO is warranted) is taken.

        I would have welcomed it….parents in care proceedings needed support long before court.

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