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Public children law digest (January – February 2017) Part 1

This is part one of the public children law update blog to give readers a snapshot of the important cases, issues and developments from January to February 2017. Please feel free to submit a comment below or send us an Ask query if you have any views on the cases, issues, or legal developments that are covered or if you think we have missed something that should be brought to the attention of child care law practitioners.

In this post, we look at the following:

  • Claims under the Human Rights Act 1998.
  • Secure accommodation orders in Scottish law.

Human Rights Act 1998 claims

Claims under section 7 of the Human Rights Act 1998 (HRA 1998) are becoming more frequent. Parents and the child (by their Children’s Guardian) usually claim for breaches of Articles 6 and 8 of the European Convention on Human Rights for the unlawful removal of the child from their parents’ care. The difficulties with these claims have usually not been in relation to whether a breach has occurred, but in respect of the quantum of damages and costs to be awarded, and how any award will be affected by the legal aid statutory charge. In previous digests, the difference in approach from the judiciary has been highlighted.

The issue of limitation in such claims is also forgotten. Claims should be made within one year of the alleged breach.  The court can grant an extension, if it considers it equitable to do so (section 7(5), HRA 1998).

Increase in damages to avoid statutory charge is unprincipled (Re CZ (Human Rights Claim: Costs) [2017] EWFC 11)

The local authority (LA) conceded that they had breached a family’s Article 6 and 8 rights for removing a baby under an interim care order when there were insufficient concerns and the parents were not given notice of the hearing. The baby was placed with the maternal grandparents and was later returned to the parents’ care.

Before the parents and the child issued a claim for declarations and damages under section 7 of HRA 1998, the LA attempted to meet with the parties and sent without prejudice letters with offers to settle the claim. The parties were alerted through correspondence that settling the claim would avoid the legal aid statutory charge taking effect. The parties were unresponsive to the offers and issued their claims. The LA continued to make settlement offers during the course of the HRA proceedings, but the parties did not respond to the offers. However, the quantum for damages was eventually agreed at £3,750.

The parties sought their full costs, which when combined came to an estimated sum of £120,000. They argued that their full costs must be awarded. The effect of the statutory charge would negate the benefit of the damages.

Cobb J approved the damages agreed. There was no formula for calculating damages, but “just satisfaction” meant that they had to be enough to compensate the infringement and show the court’s disapproval. In relation to costs, making significantly increased awards to avoid the statutory charge was unprincipled and against Parliament’s intention. Even if the court were to make an award for the full costs, these could still be reduced on assessment. When assessing costs, the court should consider the parties’ litigation conduct. The parties’ lack of response towards the LA’s efforts to settle the claim caused Cobb J to limit the costs to the period that related to when the infringement occurred.

One year limitation period not extendable if another route for redress chosen (London Borough of Hackney v Williams [2017] EWCA Civ 26)

The case mainly concerned the need for formal express consent to the accommodation of children under section 20 of the Children Act 1989 in circumstances where the parents had mental capacity to consent, had legal advice and representation and were subject to a police bail condition to not have unsupervised contact with their children. The Court of Appeal concluded that section 20 of the Children Act 1989 did not require express consent if the parents were unable to care for the children and had no alternative plan for the children’s care.

The LA argued that the claim for damages under section 7 of the HRA 1998 was time barred. The facts that gave rise to the claim took place nine years before the claim was issued. Claims under section 7 of the HRA 1998 are subject to a one-year limitation period. During the nine years, the parents, who had legal representation, decided to pursue redress through a complaint to the Local Government Ombudsman (LGO) and pursued judicial review (JR) proceedings against the LGO. The Court of Appeal considered that the choice between issuing a HRA 1998 claim and making a complaint to the LGO depends on what would be proportionate action to the facts of the case. Once the parents chose to pursue the LGO and JR proceedings, it became inequitable to grant an extension to the one year limitation period allowed.

LAs should be more alert to the one-year limitation period, which may be argued in cases where the claimants had the opportunity to bring a claim earlier.

One year limitation period not extendable because the claimant lacks mental capacity (AP v Tameside Metropolitan Borough Council [2017] EWHC 65 (QB))

The claimant was an adult with disabilities and lacked mental capacity. The HRA 1998 claim was in relation to him being deprived of his liberty, having been placed in a residential home. The placement was made after his mother, who was his carer, was alleged to have abused his aunt, who was also in her care. The claim was made 18 months after the one-year limitation period had expired.

King J rejected the argument that there was a presumption that to grant an extension of the limitation period if the claimant lacks mental capacity to litigate. The claimant had representation throughout from family, an advocate and specialist solicitors. The claimant’s representatives had the necessary information to bring the claim much earlier on, which did not justify the delay. The court also had to bear in mind the prejudice to the LA to present a case, if the claim was allowed to proceed.

Secure accommodation in Scotland

The urgent need for more secure accommodation placements within England and Wales has been described as a national scandal. If children in England and Wales are placed in Scottish secure accommodation, there is no legislation that allows automatic recognition and enforcement in Scotland of English or Welsh secure accommodation orders. While there was a plea for urgent legislation to be brought in to fill this lacuna, there is no movement by the government to do so.

Scottish Court of Session exercise Nobile Officium to recognise and enforce English secure accommodation orders (Re X, J, L & Y [2016] ScotCS CSIH 92)

The Scottish Court of Session (CS) had four applications from three English LAs who had orders made under the English High Court’s inherent jurisdiction that permitted them to place children in secure accommodation placements in Scotland. The non-recognition and lack of enforcement powers in Scotland meant that any placement could be unlawful and a deprivation of the children’s liberty. One possible route to remedy this was for the CS to exercise its nobile officium.

The CS examined the problem and agreed that there was no legislative power that allowed automatic recognition. In circumstances where the English High Court has decided that the child requires secure accommodation, the CS would exercise the nobile officium to recognise and enforce the order. The restriction of a child’s liberty must have legal authorization. Interim orders were made for each of the children.

LAs must make individual applications to the CS instructing a Scottish advocate while the legislation is not amended.

Part two will be available on 1 March 2017, which will discuss developments with vulnerable witnesses and adoption issues.

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