Zenith Family Current Awareness

Procedural considerations in HRA 1998 claims: SW & TW (Human Rights Claim: Procedure) (No1) [2017] EWHC 450 (Fam)

14 March 2017

Peter Yates

In SW & TW (Human Rights Claim: Procedure) (No1) [2017] EWHC 450 (Fam), Cobb J added to the guidance he had previously given in CZ v Kirklees Council [2017] EWFC 11 on the procedural considerations surrounding Human Rights Act 1998 claims arising out of Children Act 1989 proceedings.

In short, SW and TW were the subjects of cross applications by their father and maternal grandmother for private law orders. They were also the subjects of, and respondents to, an application by Luton Borough Council for public law orders. They and their father had also made applications, pursuant to the Human Rights Act 1998, for declarations and damages. The father’s application was made using the wrong court form, and the children’s applications were made within a skeleton argument produced for a hearing.

In paragraph 3, Cobb J set out what he described as “essential procedural points” about claims of this kind. They bear repeating in full:

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."

These paragraphs provide a useful guide for practitioners considering or advising on such claims. In general terms the case provides a reminder of the need always to consider the proportionality of a claim. On the more specific procedural points the judgment throws into sharp relief a number of assumptions which no longer appear safe (consider, for example, Cobb J’s suspicion “that many Children's Guardians in CA 1989 proceedings, and their legal teams, may have strayed into roles in HRA 1998 proceedings for which they have no formal status under the rules”). Ongoing and anticipated claims should be scrutinised carefully to ensure compliance with the detailed guidance set out in this case.

Current Awareness

By the Family team