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Category Archives: judicial review

LAA LAA land (or judicially reviewing the legal aid bods and winning)

Ooh, exciting.  I am grateful to M’learned friend Miss Eleanor Battie of counsel for highlighting this case to me.

T, R and Legal Aid Agency 2013

http://www.bailii.org/ew/cases/EWHC/Admin/2013/960.html

Miss Battie has done a very good summary of the case here, on the UK Human Rights blog

http://ukhumanrightsblog.com/2013/05/02/laa-must-give-reasons-about-funding-expert-assessments-in-care-proceedings-eleanor-batty/

In essence, you may recall that the Legal Aid Agency (previously the Legal Services Commission, previously the Legal Aid Board) implemented, with the express authority of Parliament, a series of measures aimed at reducing the burgeoning costs of expert assessments.  That was a fairly laudable aim, there could be no doubt that we had reached a point where the demand for expert reports was so exceeding supply that there was almost a housing-style bubble with experts being able to name their fee if you wanted them to do the work.

Unfortunately, and in classic State grasping control of an issue style, the baby was thrown out with the bathwater.

Almost every case involving an expert became embroiled in a battle of bureaucracy  (I am reminded of A P Herbert’s beautiful expression “I have been engaged in exhaustive, if one-sided correspondence”) where solicitors got the Court to agree the expert assessment that was needed to fight for their client but then it couldn’t happen because the LAA wouldn’t agree to pay for it.

This culminated in the issue coming before the then President of the Family Division, Wall LJ, who found that his request for a representative of the LAA/LSC to attend and clarify things wasn’t complied with, and when he telephoned, was told more or less (and this isn’t really an exaggeration) Oh, we don’t attend court hearings when we’re ordered to, we get so many of those orders, we just ignore them.

But the President reluctantly concluded that the power to order assessments and order that they be paid for (arising from section 38(6), the Family Procedure Rules and the Calderdale case) had evaporated, and it was now the LSC/LAA who had the final say, not the family Court.

This was in A Local Authority v D S and Others 2012 http://www.bailii.org/ew/cases/EWHC/Fam/2012/1442.html

where the President wove a fairly cunning trap for the LSC, although told them up front that this was a trap, and they should be ready for it, that a careful judicial decision that a report was necessary, coupled with careful analysis of why and why the costs were proportionate, would probably pave the way for a judicial review of an unreasonable refusal.

And so we arrived at a mountain of preambles in every single case involving an expert, just in case anyone was going to judicially review the LSC.

We also, in the interim, had Ryder LJ determine that the LSC had the power to say no to paying the costs of an expert assessment where the Court had decided one was needed but the parents had no funding and no money to pay for it.

So, we arrive now at this case, where once again, the Judge asked the LSC to attend/communicate with her and they declined to do so.

The judgment and order directing the expert assessment was very careful and completely D S and Others compliant, yet the LSC refused the assessment.

In the judicial review, Collins J, who accepts from the outset that he is not a family Judge (and thank heavens for that, given that he actually seemed prepared to put the child first, rather than the LAA’s interest), makes it plain that the LSC /LAA have the power to refuse or partly refuse the costs of an assessment ordered by the Court, but that if they do so, they HAVE to give reasons, and the reasons have to take into account that a Judge who knows the case and all of the issues gave a careful judgment saying that the report was necessary.

 [I’m a bit saddened that Collins J, in an otherwise magnificent judgment, resisted the temptation to say “The LAA have great power, but as Spiderman could tell us, with great power, comes great responsibility”.  This is why I will never, ever be made a Judge]

The LAA plead the impossibility of this, saying effectively that they say no so often that they don’t have the resources to give reasons each time.

Collins J rolls up his sleeves, takes firm hold of the baseball bat, and knocks that one clean out of the park.

  1. While there is no statutory requirement for reasons to be given by the defendant, the law has developed to require reasons where fairness so dictates. Cases such as these where children may be removed from parental care involve Article 8 of the ECHR and the welfare of the child which is paramount. There is an obvious requirement that all proper steps are taken to enable a judge to reach an informed decision when dealing with those rights. The parties and the court are in my view clearly entitled to understand why a refusal to allow what the court has considered necessary has been made so that it can, if appropriate, be challenged speedily.
  1. The letter of 19 March 2013 gives no reasons to explain why the full sum put forward is not approved. Since the defendant appeared through its representative, Mr Michael Rimer, at the hearing of S it was clearly aware of the President’s guidance. Guidance in this field from so authorative source as the President, in a reserved judgment after hearing submissions from, amongst others the LSC, gives rise to a public law duty upon the LSC, capable of being enforced, as the President said, by judicial review. Ms Hewson has sought to rely on the real difficulties faced by the defendant in dealing with the increasing number of applications for prior approval. In the S case it had been shown that following the new funding order in October 2011 introduced as part of the legal aid reform programme designed to save costs applications for prior approval of experts increased from 216 in November 2011 to 1855 in April 2012. That increase has, I was told, continued. Ms Hewson said that 4 employees in an office in Wales now had to deal with some 100 applications each week. That I suspect was something of an exaggeration but the point she was seeking to make was that the burden on those responsible for making the decision was such that they did not have the time to enter into any discussion nor to give any substantial reasons. Attempts to save costs in one way can have an effect which increases costs in another. If as a result of the new rules introduced in October 2011 greater pressure is imposed resources must be provided to meet that pressure. In R(H) v Ashworth Hospital Authority [2003] 1 WLR 127 at paragraph 76 Dyson LJ said this:-

“I absolutely reject the submission that reasons which would be inadequate if sufficient resources were available may be treated as adequate simply because sufficient resources are not available. Either the reasons are adequate or they are not and the sufficiency of resources is irrelevant to that question.”

These observations apply a fortiori where there is an absence of reasons when reasons are required.

I have to say, that I am delighted with the outcome, but rather surprised that the facts of this case got it. The expert assessment was for 180 hours, and the LAA originally agreed 130.

Given that their guidance figures for assessments are FAR FAR FAR below that, and the assessment costs as a whole were over £31,000 when the usual cost of an assessment has now come down to under £5,000 , the LAA would have had, I think, a decent case (had they (a) given reasons and (b) you know, bothered to file a skeleton argument in the JR case) for saying that the costs in this case were wildly disproportionate   (those costs are rather more akin to the residential assessment that the LAA suspected this was in disguise)

 

So, if you do get a cost of an expert declined, make sure you get the reasons from the LAA, and remember that scarcity of resources to give good reasons don’t make inadequate reasons adequate…

“The driver cannot ignore the passengers”

 The judicial review case of H R v Kingston Upon Hull 2013  – where the Court found that a failure to consult with parents BEFORE making a decision to move children under an ICO was unlawful

 The case is here

 http://www.bailii.org/ew/cases/EWHC/Admin/2013/388.html

 This is, I think, the pivotal passage from the judgment (hence the title)  – underlining mine

 When an ICO is made the local authority and the parent share parental responsibility for the child – albeit the local authority is usually the one in the driving seat particularly when removal has been sanctioned. This plainly does not mean the parents or others are of little or no consequence. Although the local authority may be driving the vehicle, on a journey approved by the court, it does not mean it is able to ignore the views of the passengers as to the route to follow. There needs to be consultation; and concurrence (if possible). The consultation must be genuine and not merely a process whereby decisions are merely the subject of information to parents. I repeat a parent with parental responsibility does not surrender that when an ICO is made, nor when removal is permitted by the court. The weight to be attached to the views of parents and others is a different question. A local authority must always work in a carefully calibrated manner and act in a proportionate way commensurate with the issues involved and those involved… A sense of reality and a sense of proportion are key to the concept of consultation; however, consultation there must be, save in exceptional circumstances where child safety or other pressing reasons are present. I should also add that proper records are an essential aspect of consultation and decision-making.

In this case, the Local Authority had initially sought to remove the children from the parents, and at Court (as is often the way) a compromise was reached, whereby the parents agreed to an Interim Care Order if the children were placed with grandparents, and the LA agreed to place the children with grandparents. As often is the way with compromise, regrets followed.

 Thereafter, the LA had doubts about whether that was the right placement, and they conducted their fostering assessment, which became available on 30th January. This was very negative, and it considered that the grandparents attitude towards the concerns about the parents care was worrying. Sufficiently worrying for them to decide on 31st January that they would seek to move the children into foster care.

 They met with the parents on 1st February, and told them that this was the plan. The parents reacted badly, particularly the father, who said (inadvisably) that he would kidnap the children.

 The LA then moved the children, earlier than they had intended to.

 The parents made an application for judicial review, seeking to overturn two decisions :-

  1. That the decision on 31st January that the children would be moved was unreasonable, it having taken place without consultation
  2. That the decision on 1st February to move them forthwith was unreasonable

The parents triumphed on ground 1, but lost on ground 2  – the Court determining that the events of 1st February (although they had arisen purely because of the LA’s failure to properly consult) did legitimately give rise to a reason to implement a move.

 The LA had claimed that they had not MADE a decision on 31st January to move the children, but the Court rejected that.

  1.  I gave a short judgment announcing my decision in which I set out the following:

(1) The decision made by the LA on 31st January 2013 to remove the children was unlawful.

(2) The LA was the author of the very unhappy events of 1st February 2013 (the Riverside Incident); and, had they acted lawfully, those events may have been avoided.

(3) Having created that situation, as a result of that unlawful decision, the LA acted reasonably in taking the immediate action to remove the children during the afternoon of 1st February 2013. The LA are much to be criticised for creating the situation (due to an unlawful decision); but having created it, acted in a way that many other local authorities would have acted.

(4) The proposal to remove the children is one that would have received the support of the guardian providing appropriate planning had been undertaken (it was not). In consequence the children entered foster care in a rushed and unseemly manner. The guardian was not in fact consulted.

(5) At no stage did the decision of the LA have the approval of any court. The decision not to refer the case back to the FPC or any family court was unlawful.

 The Court placed quite a lot of emphasis on the LA not consulting with the Guardian (perhaps working on the basis of five years ago, when  all Guardians communicated much more regularly with social workers and would give a view on events) , and in this case the children were between Guardians, leaving responsibility solely with CAFCASS.  Nonetheless, this LA did not notify CAFCASS or the Court, or the child’s solicitor that a move was afoot.

 The Court summed up the human rights position in relation to interim care orders, and this is a helpful summary.  Underlining again mine, for emphasis.

  1. An interim care order is exactly what it says – interim; and does not bring in its wake all that flows from a final order. An ICO may only be made when a court is satisfied that there are reasonable grounds for believing the basis for making a care or supervision order are present. In short terms the full case for a care order does not have to be established – simply reasonable grounds for believing that position exists. A wholly separate question arises in many cases whether removal from the parent is justified. There is much Court of Appeal authority upon that which I have no intention of setting out, but essentially the court considering such a course must: (i) only do as much as is really necessary to secure the safety of a child; (ii) only decide what really needs to be decided at the interim stage (as the concept is purely to hold the ring until the full hearing); and (iii) only remove a child if it appears truly necessary to do so in the interests of the child’s safety.

The interim care proceedings are not a dress rehearsal for the final hearing. An ICO is an interim protective order and requires renewal from time to time under the present statutory arrangements. That does not mean regular reappraisal of the living arrangements, but it does mean the court is keeping a watchful eye on developments. The interim process of care proceedings is judicially controlled and the more so with the advent of recent family justice reforms. I feel it always needs to be remembered that the removal of any child from a parent is a very serious step that should never be made lightly. That similarly applies to the removal of a child from another family member to a foster carer. These observations are particularly significant when such a course is postulated prior to full investigation at a final hearing.

  1. There can be no doubt that Articles 6 and 8 of the European Convention on Fundamental Freedoms and Human Rights 1951 (the Convention) are engaged when an application for an ICO is made – and all the more so when removal is in issue. This issue was addressed by the Court of Appeal in Re S (Care Proceedings: Human Rights) [2010] EWCA Civ 1383 [2012] 2 FLR 2009, where Sir Nicholas Wall P (with whom Arden LJ and Wilson LJ, as he then was, agreed) said that a useful formulation of the test to be applied in questions of removal was: whether the removal or continued removal of the child from the care of his or her parent(s) is proportionate to the risk of harm to which he or she will be exposed if the child is allowed to remain or return to parental care [see paragraphs 8 and 9 of the judgment]. The articulation of the test by the President in Re S is a valuable lodestar for courts deciding whether an ICO should be made and removal countenanced. It will be understood that making an interim order when not all is known about the family dynamic is one of the most difficult decisions a family court is asked to make (particularly when removal of a child from a parent or other family member is proposed). There is a volume of Convention jurisprudence which emphasises the invasive and draconian nature of an ICO and removal of a child from the family.
  1. When an ICO is made the local authority and the parent share parental responsibility for the child – albeit the local authority is usually the one in the driving seat particularly when removal has been sanctioned. This plainly does not mean the parents or others are of little or no consequence. Although the local authority may be driving the vehicle, on a journey approved by the court, it does not mean it is able to ignore the views of the passengers as to the route to follow. There needs to be consultation; and concurrence (if possible). The consultation must be genuine and not merely a process whereby decisions are merely the subject of information to parents. I repeat a parent with parental responsibility does not surrender that when an ICO is made, nor when removal is permitted by the court. The weight to be attached to the views of parents and others is a different question. A local authority must always work in a carefully calibrated manner and act in a proportionate way commensurate with the issues involved and those involved. Calibration and proportionality are highly fact specific. The level and manner of consultation with one family will inevitably differ to that of another family depending on the issues and circumstances. The weight to be attached to the views of a father who murdered the mother of his child is likely to be rather less (if any) to be attached to the views of grandparents who are looking after a child in a difficult family situation. A sense of reality and a sense of proportion are key to the concept of consultation; however, consultation there must be, save in exceptional circumstances where child safety or other pressing reasons are present. I should also add that proper records are an essential aspect of consultation and decision-making.
  1. During the course of argument I was referred to the case of Re G (Care: Challenge to Local Authority Decision) [2003] EWHC 551 (Fam) which was a decision of Munby J (as he then was: now the President) involving a challenge to a decision of a local authority to remove a child from parents after a final care order was made. Munby J reviewed the convention cases and domestic law in a comprehensive judgment which has continuing relevance. He drew attention to the fact that social workers (in 2003 when the Human Rights Act 1998 was still in comparative infancy) needed to be more aware of its terms and import (see paragraph 3 of the judgment). Given the events of this case that is a paragraph that needs repetition. Let there be no misunderstanding: the convention applies to local authorities in respect of their decision making in care cases and all social workers need to be alive to its provisions and import; moreover they must apply the convention. The texture of decision-making needs to have the weave of the convention visible and palpable.
  1. In my judgment it is possible to distil the relevant law in the following way by reference to the expansive and helpful judgment of Munby J in Re G which has resonance today in this case. I particularly call attention to paragraphs 28 to 55 of the judgment which I say, with profound respect, were both learned and graphical – making it all the more readable. The distillation of relevant considerations applicable to the facts of this case are:

(1) It is always important (usually vital) for any decision-maker to consult with all relevant parties to be affected by the proposal before making the decision. The weight (or none) to be attached to the responses is a matter for the decision-maker providing the decision is legally rational.

(2) In the context of the removal of a child from a parent (and I would add any other family member) should not be countenanced unless and until there has been due and proper consultation and an opportunity to challenge the proposal.

(3) Article 8 not only provides substantive protection for parents and other family members, but requires procedural safeguards too.

(4) Article 8 is not something that applies simply to the judicial process, but to other decisions made by the local authority too.

  1. The passage of the judgment at paragraph 36 is apposite to this case:

“So Article 8 requires that parents are properly involved in the decision-making process not merely before the care proceedings are launched and during the period when care proceedings are on foot (the issue I was concerned with in Re L), but also —- after care proceedings have come to an end and whilst the local authority are implementing the care order.”

This is interesting – there are occasions, when representing a Local Authority that the concerns the LA have are so high that care proceedings are certain to be commenced. In those circumstances, it is traditional to send the Letter Before Action, making it plain that care proceedings will be commenced.  [Though of course, the parent is able to obtain legal advice and contest the ICO application]

Is the upshot of this judgment that it is unlawful to DECIDE to commence proceedings before consulting with the parent about this?   It seems to me that it probably is.    

The Court then went on to consider the interplay between interim care orders and judicial review – mindful that there is of course a remedy in the care proceedings (to challenge the ICO, or to appeal a court decision to continue it)

56. There have not been – in so far that counsel and I have been able to determine – any reported case of judicial review proceedings in relation to ICO’s. It was felt by counsel – and I am inclined to agree – that challenges whilst care proceedings are in train are usually made within the confines of the family court when an application to revoke the ICO is made or a renewal application is made. Ordinarily, the Administrative Court will not countenance judicial review proceedings when there is an alternative remedy – especially so when that alternative is a judicial remedy. However, that does not mean that judicial review cannot apply to decisions made by local authorities whilst care proceedings are in train. I am of the view that there are limited – perhaps very limited circumstances – where an application can be made justly. This would be so when a person affected by a decision is not actually a party to the care proceedings and might not have a sufficiently good reason to be made an intervener in those proceedings. It might equally apply where (as here) a party (the mother) does not wish to challenge the basis of the ICO, but merely a decision made by the LA as to its implementation. It may be that a local authority has reached a conclusion in respect of which it refuses to alter (despite the request of the family court). All the family court can do is to exhort (it usually works – but it does not always) or revoke the ICO. The family court is not exercising the jurisdiction of the High Court in, the now infrequently used, wardship procedure where by the court makes all important decisions about all aspects of a child’s life as used to be the case. In my judgment the circumstances whereby judicial review is applicable whilst care proceedings are in progress (and there is an extant ICO) are likely to be rare and distinctly fact specific. The Administrative Court is very alive to the concept of an alternative remedy.

 

The Court also covered the duty to consult – and made it plain that there is a spectrum of consultation, not merely ‘agreement’ at one end, and ‘informing the parents of the decision’ at the other  – there has to be a genuine dialogue which allows for the potential for a parent or other interested party to bring something to the conversation which might result in a different outcome.

  1. I have made it clear that there is a duty upon a local authority to consult with all affected parties before a decision is reached upon important aspects of the life of a child whilst an ICO is in force. I have been shown the guidance issued by HM Government to local authorities in 2010 [The Children Act 1989 Guidance and Regulations] where there is valuable material available to social workers about how to approach their difficult task in this regard. Paragraph 1.5 provides (inter alia):

“Parents should be expected and enabled to retain their responsibilities and to remain closely involved as is consistent with their child’s welfare, even if that child cannot live at home either temporarily or permanently.”

Further:

“If children are to live apart form their family, both they and their parents should be given adequate information and helped to consider alternatives and contribute to the making of an informed choice about the most appropriate form of care.”

  1. Whilst it is not spelled-out quite as starkly as perhaps it should, there is contained therein a plain message that a local authority must consult and, in my judgment, that is even more crucial during the interim phase of proceedings when final decisions as to the threshold criteria and outcome have not been made by a court. The question as to whom the local authority needs to consult is distinctly fact specific. In my judgment that should ordinarily include the parents. If capacity is in issue or there are safety issues or other genuinely powerful reasons not to embrace them, then different considerations apply. It should also embrace the guardian (if appointed and available). It should also embrace any other family member who has a material interest in the children. This would include a family member who may be caring for a child or otherwise closely concerned with the child. This frequently involves grandparents who step-in to help.
  1. The weight to be attached to the input of parents and others is for the local authority to judge – it may be no weight at all may be attached depending on the circumstances – but there needs to be consultation about fundamental decisions. Moreover, the concept of consultation does not mean concurrence at one end of the spectrum; nor information at the other. The “others” who need to be consulted may have a valuable contribution that might alter the proposal of the local authority. It does not mean the parents and other parties must concur with the proposal before it can be implemented. There can be no veto or casting vote. Equally, the parents and other parties are not mere vassals to whom information is given and nothing more.
  1. It has to be acknowledged that there will be decisions to be made in some cases where it is impossible to engage with parties or even to consult where the local authority must act speedily in the interests of child safety and protection. When this is done there must be clear reasons for this and the decision must be objectively reasonable and justifiable. Such a decision needs careful justification and calibration. A full note of the reason for such an exceptional course must be made.
  1. During the pre-final hearing stage (the interim phase of the case) the family court will be monitoring developments and where there is a fundamental disagreement as to an important decision, the parties need to have the issue adjudicated upon. This is of critical importance where the court has made an ICO upon a particular premise and that is to be changed, and changed where there is no agreement. Unless there a real need for an urgent decision (on proper grounds of child safety or protection) the family court should ordinarily be involved. The interim phase of care proceedings is now under even tighter judicial control than hitherto. I cannot emphasise enough the local authority is not allowed to act unilaterally upon important matters affecting a child in its interim care without proper consultation save in exceptional circumstances. There must be proper consultation and judicial input when there is a contested proposal. It must be equally emphasised that local authorities must act speedily and without express approval if exceptional circumstances obtain. The weight to be attached to the views of those consulted is a matter for the judgment of the local authority in whom trust for the management of the ICO has been reposed by the court.

 

Whether you represent a parent, or child, or Local Authority, this case has some important information, and reminders.  I think that most Local Authorities would have had the case before the Court before the children were removed, but conversely, that most would probably have made the DECISION that they intended to remove once that negative viability report arrived. This case reminds us that the duty to consult goes far deeper than simply telling the parents that a decision has been reached, but actually to be a genuine discussion about the situation and the options available PRIOR to a decision being reached.

Pindown revisited?

 

The Court of Appeal decision in  The Childrens Rights Alliance v Secretary of State for Justice 2013

 

 

This was an appeal against refusal for judicial review of the Secretary of State’s refusal to provide the Childrens Rights Alliance (or the children concerned) with details of which children were the subjects of illegal restraint methods whilst held in Secure Training Centres in the UK.  That disclosure would obviously have been a prelude to advice about, consideration of, and possibly issue of civil claims on behalf of those children.

 

 

The case can be found here:-

 

http://www.bailii.org/ew/cases/EWCA/Civ/2013/34.html

 

 

The Childrens Rights Alliance lost the appeal, and thus won’t get access to the information that is required. That may have been the right decision on a strict formulation of the law on judicial review, but on reading the case I felt that it is a state of affairs that deserved a bit more attention, and perhaps some of my readers might be in a position to do something.

 

 

At the Secure Training Centres, which “accommodate persons who either have been sentenced to custody or have been remanded in custody by a court. Their population contains males aged between 12 and 14; females aged between 12 and 16; and males aged between 15 and 17 and females aged 17 who are classified as vulnerable.”

 

Until about July 2008, there was fairly widespread practice at the four Secure Training Centres, which held about 250 young people, of using restraint techniques that staff genuinely (but mistakenly) believed to be lawful

 

  1. it is first convenient to describe the nature of the techniques with which we are concerned. They took two forms. First there is restraint, or physical restraint, properly so called. This includes a number of holds (such as the Double Embrace, the Figure of Four Armlock, the Wrap Around Arm Hold, the Double Wrap Around Arm Hold, and the Double Embrace Lift) designed to enable up to three members of staff to obtain physical control over an inmate; they were not intended to inflict pain. On 19 April 2004 a 15-year old trainee at Rainsbrook STC, Gareth Myatt, was asphyxiated while being restrained in one of these approved holds. Secondly, there are “distraction techniques”. The PCC Training Manual for 2005 (PCC stands for “physical control in care”) describes three such techniques: nose, thumb and rib distraction. These involve the measured application of pressure on those parts of the body in order to cause a short, controlled burst of pain administered to distract a trainee who is seriously misbehaving in order to bring the incident to a swift and safe conclusion. The nose distraction technique had been applied to a 14-year old called Adam Rickwood, who committed suicide at Hassockfield STC on 8 August 2004. His mother was the applicant in the Pounder case.
  1. At the core of this appeal is the fact that officers at the STCs who applied these various restraint techniques at the material time genuinely but mistakenly believed that the law entitled them to do so for the purpose of maintaining good order and discipline (GOAD). It was definitively established that there was no such entitlement only after the deaths of Adam Rickwood and Gareth Myatt: see paragraphs 14 and 35 of the judgment of the Divisional Court in C ([2008] EWHC Admin 171).

 

 

 

It was clear, and not disputed that these techniques were used on children who were very vulnerable.

 

 

  1. 9.       “It is unequivocally accepted by the Defendant that children in custody are amongst some of the most vulnerable and socially disadvantaged and that they have specific needs which may not be common to the wider population of young people.”

 

 

And it was clear that this happened to a significant number of ‘trainees’ in these institutions

 

  1. 15.   “76… [I]t is highly likely that a large number were indeed the subject of unlawful force at times during their detention, probably from the beginning of the STC regime until at least July 2008. Whilst the use of restraint for GOAD after July 2008 could, of course, have occurred, it is probable that no-one sought formally to justify the use of restraint for such a purpose after the judgment of the Court of Appeal in C.

77… [T]here can be little doubt that a large number of detainees were treated unlawfully at various times during this period. There is no reason to suppose that the situation was materially different at any other time in the history of the STCs at least until July 2008. There is other evidence in the material before me (that I do not need for this purpose to set out in detail) that distraction techniques… were also used as a regular part of the repertoire of force used in STCs. It is, as I have suggested before (see paragraph 14), difficult to see how a distraction technique would ordinarily be used in isolation from a restraint technique. If used as part of a restraint for GOAD, a painful (and often injury-producing) technique would have been used for an unlawful purpose.

78. Leaving aside any conclusion that may be drawn in due course about what the court could or should do about all this, it is, to say the least, a sorry tale…”

 

 

 

The telling and difficult thing for the Childrens Rights Alliance, which is why they invited the Secretary of State to take steps to inform the particular children that they had been illegally restrained and when, was that many of the individual children would not have known at the time that what was happening to them was illegal and would give rise to a claim now

 

  1. At the end of paragraph 91 Foskett J stated that very few, if any, of the trainees appreciated at the time that what was done to them was unlawful. Earlier he had said this:

“88… I do not think that there can be any doubt that in the vast majority of cases the detainees made the subject of a restraint technique would simply have accepted it as part and parcel of the routine in an STC. Furthermore, at least during the period with which this case is concerned, it is likely that if a complaint had been made, the substantive answer to it would have been that the officers who used the restraint techniques were justified in using the force considered necessary at the time.”

 

 

 

Following through the judicial review principles (which is pretty dry and beyond my interest in this piece), the Court of Appeal concluded that there were no grounds for judicially reviewing the Secretary of State’s refusal to carry out this exercise and therefore the court at first instance had not been plainly wrong to refuse it.

 

 

Of course, and the Court hint at this – there is nothing within this judgment which prevents or would inhibit any individual child who had been detained at an STC in asking for information about their records and whether they had been subject to illegal restraint.  But what the Childrens Rights Alliance had wanted was not for the individual children to be obliged to “Pull” to get their rights, but for the Secretary of State to “Push” and be obliged to notify them that they had been treated illegally.

 

 

It is a sobering experience to read of these things happening to children in custody, and reminded me vividly of the Pindown crisis.

 

That might well be ancient history for some of my readers, so I will elaborate.

 

In the 1980s, in Staffordshire, a method of discipline was introduced in children’s homes for children in care who were being difficult or hard to manage, involving locking them in rooms on their own for periods at a time, this method of discipline being called Pindown. It lasted for various periods, but for one child, it lasted for 84 consecutive days. It caused a scandal when it came to light, with World in Action doing a documentary on it, and was the subject of a significant public enquiry.   (In large part, it led to the construction of the legal principles in the Children Act 1989 about “secure accommodation”)

 

 

Very sadly, I have struggled to find a copy of the Pindown report which was written by Allan LevyQC (sadly no longer with us) and even Amazon  say  “Currently unavailable. We don’t know when or if this item will be back in stock.”

 

 

Perhaps this is an example of George Santayana’s well worn remark that those who fail to learn from history are doomed to repeat it.  And for the modern era, those who hide away public enquiries and don’t ensure that access to them is easily found online shouldn’t be surprised that people don’t know the contents.

 

 

Of course I understand that staff on the ground in a Secure Training Centre are doing a difficult job, one that I wouldn’t want to do, and that the children detained there are not little Peter Pan figures full of cheeky (but ultimately harmless) mischief, but incredibly disturbed and challenging young people.  I do understand that managing them is hard and that if guidance was given to those staff that “figure four armlocks” were okay, they were going to follow that guidance.  It is the people who gave them that guidance who let the children down.

 

 [As an incidental detail, I note that in Russia, this armlock technique is known as the ‘militia’ armlock because it is used by the Russian militia and police…. ]

Ghosts in the judicial review machine (or, “I think it’s going to be a long, long time”)

 

A discussion of the decision of R and Naureen Hyatt and Salford City Council 2012   (which relates to judicial reviews, costs disputes and accommodation under section 21 of the National Assistance Act 1948 as it pertains to failed asylum seekers, so I hope you will forgive me for a flight of fancy and digression to liven it up)

 

I once read that the screen-writing Coen Brothers use a particular technique in creating tension in their films. They write a scene, and box the character into a corner, a predicament that there is no possible way out of.  They bat around possible solutions until they exhaust all possible exits that they can think of.

 

Then they leave the script for a week, a month, however long it takes, until they have hit upon an escape mechanism for that predicament – the idea being that if they are genuinely stumped at how to escape the scene, the audience won’t be likely to be able to second guess in a few moments the solution that took them months to hit upon.

 

 

In Ancient Greece, when playwrights constructed their plays, usually involving a combination of philosophy, fine wordplay and frogs, they often found that they had boxed themselves into a corner. The hero was faced with a situation that could not possibly be resolved.  A grisly death, a broken heart, an unsolveable dilemma, was all that lay ahead.  How to deliver a happy ending?

 

And their solution to this was the deus ex machina, the ghost in the machine. A crane type device would be used to lower an actor into the stage or arena, the actor playing a God. Of course, the God could solve any problem in an instant, resolve any dilemma, any drama.  That was a boon to the playwright, but of course robs the scene of any dramatic tension.

 

Imagine if you were watching an episode of 24 and Jack Bauer was trapped inside a volcano  in Hawaii that’s about to erupt, he is handcuffed to  the steering wheel of his car, and the ignition keys are in the beak of a paramilitary parakeet who we have just watched fly away, and then he learns that a nuclear bomb is about to go off at the Hoover dam in just two minutes and only his fingerprint can stop the bomb and then the credits roll. Tense, or what?   

 

volcano

 

If you tune in the following week, to see God fly down into the volcano, stop time and instantly transport Jack to the Hoover damn and unlock his handcuffs, you might feel disappointed by this resolution.  The next time there is a cliffhanger, you won’t feel apprehensive and nervous about how Jack will get out of it, you’ll just think “Ah, God will come down and sort it out”    – in short, the cheap device used to get the writers out of a tough spot will just make you feel cheated.

 

[The way I did when watching the black and white serial Rocket Man aged 12, when a “cliffhanger” showed a car in which Rocket Man was locked in the trunk plummet off a cliff, clearly showing that it went over the edge and that nobody got out of it so he was undoubtedly dead, and next week’s episode began  with completely different footage of him jumping out before it went off the cliff.   I remain bitter about this, to this very day, and I never watched another episode]

 

rocket man 

 

 

Curse you Rocket Man! !!

 

So, deus ex machina became frowned on as a narrative device, and to this day are viewed as a bit of a cop out, or cheap flimsy storytelling.

 

 

Anyway, on to the case,

 

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1795.html

 

 

Essentially, the claimant was a failed asylum seeker and wanted the Local Authority to provide him with accommodation under section 21 of the National Assistance Act 1948.

 

  1. Section 21 of the 1948 Act provides:

“(1) Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing —

(a) residential accommodation for persons who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them; and

(aa) residential accommodation for expectant and nursing mothers who are in need of care and attention which is not otherwise available to them

(1A) A person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies may not be provided with residential accommodation under subsection (1)(a) if his need for care and attention has arisen solely —

(a) because he is destitute; or

(b) because of the physical effects, or anticipated physical effects, of his being destitute.”

 

So, his being a failed asylum seeker makes it very hard for him to get accommodation under s21, and he claimed his need was not as a result of destitution or physical effects of destitution, and the LA claimed that it was.

 

 Various demanding and defying letters were exchanged and a judicial review was issued.

 

By the time the case got into a substantive hearing, the claimant had managed to overturn the immigration authorities decision that his asylum claim was refused. That then gets rid of s 21 (1A) as a relevant factor.

 

Accord was reached that he would be provided with accommodation and the claim was withdrawn.

 

There then followed a debate about costs – the Claimant claimed that he should win his costs because he had achieved his desired result but had had to bring a JR case to do it, the LA claimed that costs should not be paid as the issue had not been litigated and the Claimant might well not have been successful if it had been.

 

The Judge decided that it was not possible to determine which side would have won had the issue been litigated, and made no order as to costs.

 

The Claimant appealed.

 

The relevant legal authority on this vexed issue of where costs fall in a JR case where the matter is settled rather than litigated is set out in  Re M  v Croydon LBC  2012

 

 

  1. On 8th May 2012 the Court of Appeal handed down its decision in R (M) v Croydon London Borough Council [2012] EWCA Civ 595, [2012] 1 WLR 2607. The claimant in that case was an asylum seeker, whose age was in dispute. The claimant brought judicial review proceedings to compel the defendant local authority to reassess his age. The action ultimately settled in the claimant’s favour, leaving only the question of costs to be determined by the court. Lindblom J decided that there should be no order for costs. The Court of Appeal allowed the claimant’s appeal and ordered the defendant to pay the claimant’s costs.
  1. Lord Neuberger MR gave the leading judgment, with which Hallett and Stanley Burnton LJJ agreed. At paragraphs 47 to 64 Lord Neuberger gave general guidance as to how costs should be dealt with following a settlement. In the latter part of that passage he dealt specifically with cases in the Administrative Court. He identified three different scenarios. The first scenario is a case where the claimant has been wholly successful whether following a contested hearing or pursuant to a settlement. The second scenario is a case where the claimant has only succeeded in part following a contested hearing or pursuant to a settlement. The third scenario is a case where there has been some compromise which does not actually reflect the claimant’s claims.
  1. At paragraph 63 Lord Neuberger gave the following guidance in respect of the third scenario:

“In case (iii), the court is often unable to gauge whether there is a successful party in any respect and, if so, who it is. In such cases, therefore, there is an even more powerful argument that the default position should be no order for costs. However, in some such cases it may well be sensible to look at the underlying claims and inquire whether it was tolerably clear who would have won if the matter had not settled. If it is, then that may well strongly support the contention that the party who would have won did better out of the settlement, and therefore did win.”

 

[This is a pain in the neck decision, since now when you settle a JR, you have to have an argument about who would have won, if you’d fought the whole thing, which is nearly as cumbersome as just fighting the whole thing] 

The Claimant argued that effectively, having settled the case and obtained his desired outcome, the original Judge ought to have determined that he had succeeded or would have succeeded had the case been litigated, and that costs should have followed.

 

The Court of Appeal disagreed , and you will see from my underlining, that they considered that the reason for the favourable settlement was the intervention of a third party – the immigration authority reversing their decision – a deus ex machina, and where that was the cause of the favourable settlement, one could not determine that the Local Authority were to blame.

 

  1. The second ground of appeal is that when one looks at all the factors which ought to have been taken into account, the judge should have been driven to the conclusion that the defendant should pay the claimants’ costs. The factors upon which the claimants rely are the following:

i) The claimants achieved the substantive benefit which they were seeking, namely long term housing and welfare support.

ii) The claimants achieved an immediate benefit, namely interim relief, which they could not have achieved without litigation.

iii) The claimants complied with the pre-action protocol and sent appropriate letters to the council before commencing proceedings.

iv) The conduct of the council was unreasonable. It resisted the claimants’ claim at every stage. It brushed aside the letters from the claimants’ solicitors. It did not provide interim accommodation for the claimants until it was ordered to do so.

v) The claimants’ case was strong. If the litigation had gone to trial, it is very likely that they would have won.

  1. Let me deal with those factors in the order set out above. As to the first factor, it is undoubtedly correct that the claimants have achieved their ultimate objective, namely long term housing and welfare benefits. On the other hand they have achieved that objective not because of any court order or concession by the council. The claimants have achieved that objective because of the Secretary of State’s decision to grant exceptional leave to remain. As Moore-Bick LJ observed in argument, this came as a deus ex machina. In my view the favourable intervention by a third party not involved in the litigation cannot be a reason to order the defendant to pay the claimants’ costs.
  1. I turn now to the second factor. The claimants applied for interim relief. The council opposed the application. The court granted interim relief. If the claimants had applied on 10th December 2010 for the costs of the interim relief application, Judge Waksman may have ordered the council to pay those costs. Alternatively, he may have ordered that the claimants’ cost of the application be costs in the cause. In the event, however, with the agreement of both parties Judge Waksman reserved the costs of the interim relief application, without any discussion of the basis on which costs were reserved.
  1. Since the underlying dispute between the parties never came to trial, I do not see any basis upon which Judge Stewart on 12th April 2012 could have ordered that the costs reserved by Judge Waksman on 10th December 2010 be paid by the council. Indeed in their lengthy written submissions on costs dated 30th March 2012 the claimants did not ask for an order that they be awarded the reserved costs of the interim application. I am therefore quite satisfied that Judge Stewart cannot be criticised for failing to make any separate and specific order in respect of the reserved costs.
  1. Mr. Wise relies upon the claimants’ success in obtaining interim relief as one of the reasons why Judge Stewart should have awarded to the claimants the entire costs of the action. He points out that the claimants got what they wanted in the teeth of the council’s opposition.
  1. The difficulty with this argument is that Judge Waksman was not adjudicating upon the substantive dispute between the parties. He began his judgment by saying that for the purpose of the current application the claimants had “a fairly modest task”. They only had to show their case was “prima facie arguable”. He did not even decide whether the claimants’ case was strong enough to merit the grant of permission to proceed. He simply made an order for interim relief to protect the claimants’ position until there could be a “rolled up” hearing.
  1. In my view, the fact that the claimants obtained interim relief does not mean that they were successful in the action. It is not a reason for awarding to the claimants the costs of the action.
  1. I turn now to the third factor. The claimants are to be commended for complying with the pre-action protocol. If following the commencement of proceedings the council had conceded the relief sought without admitting liability, they would have had difficulty in resisting an order for costs. The present case, however, is different. There has been no substantive decision by the court and no concession by the council. In these circumstances the fact that the claimants complied with the protocol is not a reason for awarding to them the costs of the action.
  1. I turn next to the fourth factor, the conduct of the council. The council, like the claimants, have been consistent. They have carried out assessments as required by 1990 Act. They concluded that they were not obliged to provide accommodation for the claimants pursuant to section 21 of the 1948 Act. This was the council’s position both before and after the issue of proceedings. Whether the council were right in their assessment of the position is a matter which has not been judicially determined. In my view, the council’s conduct in this case is not such as to attract an adverse costs order.
  1. I come finally to the fifth factor, the strength of the claimants’ underlying case. We have heard submissions from Mr. Wise as to why the claimants would probably have won. We have heard submissions from Mr. Howell as to why the claimants’ case was unfounded and they would probably have lost.
  1. It is not the function of this court on a costs appeal to give a substantive decision about litigation which never came to trial. Suffice it to say that both Mr. Wise and Mr. Howell put forward formidable arguments.
  1. For present purposes, it is necessary to focus on the material which was placed before Judge Stewart in April 2012. This comprised the parties’ written submission on costs and the court file. The court file would have included the pleadings and the evidence previously lodged. On reading and re-reading this material, I am not surprised that Judge Stewart was uncertain as to who would have won if the action had come to trial. I find myself in a similar state of uncertainty. In my view, it cannot possibly be said that the judge’s conclusion in this regard was either wrong or perverse.
  1. On reviewing all the circumstances of this case, I do not believe that the judge’s costs order can be faulted. The judge made no error of law or error of principle in the exercise of his discretion under rule 44.3 which would warrant intervention by this court

 

 

I know, this rambled about a bit *, but come on, you never thought you’d get Jack Bauer, volcanoes, Rocket Man, Greek theatre and parakeets in a law article on costs orders in judicial reviews, did you?

 

[* a lot ]

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