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Category Archives: costs

When I’m sixty-four (bundles)

 

A permission to appeal hearing in the Court of Appeal. Where the parents did not have legal aid and

 

(A) There were Court orders that said that they couldn’t have a copy of the judgment ; and

(B) There were sixty four Court bundles  (and even whittling it down for the appeal there were still 27 just to decide the permission application)

 

Re A and B (Children) 2016

http://www.bailii.org/ew/cases/EWCA/Civ/2016/1101.html

 

 

 

The impact of confidentiality on the appeal process

 

  • For sound reasons, which are not challenged in the course of these two applications for permission to appeal, Theis J imposed a highly restrictive regime aimed at maintaining total confidentiality as to the content of her fact finding judgment and the subsequent welfare determinations that she made. In short terms mandatory orders are in place which prevent any of the lay parties from having a copy of the judgments, or any part of them, in their possession at any time. The solicitors acting for the various parties, and indeed the other professionals in the case, were required to retain any copies of the judgments securely in their possession and not to pass a copy of a judgment, or any part of it, to any of the lay parties.
  • The three applicants for permission to appeal no longer have the benefit of legal representation funded by Legal Aid. They appear before this court as litigants in person. The difficulties that they face as litigants in person attempting to challenge the judge’s highly detailed and sophisticated analysis of the factual evidence is, sadly, compounded by the fact that Mr A and Miss B in particular and, to a lesser extent, Mrs A are said to suffer from learning difficulties.
  • I considered the applicants’ applications for permission to appeal on paper soon after they had been issued. The difficulties facing each one of the three applicants was plain. The suggested “Grounds of Appeal” put forward with respect to each of the two applications was, understandably, in the most general and superficial terms. The challenge for this court and for the parties was to consider how each of these three individuals, with their limited intellectual resources and acting as litigants in person, could possibly present an effective application for permission in circumstances where they were denied personal access to copies of the judgment. The applications were therefore listed on notice to the local authority for hearing before me on 19th May 2016 so that attempts could be made to enable each of the applicants to present their proposed applications for permission through a process which was as fair and as effective as could be achieved within the parameters set by the confidentiality orders made by Theis J.

 

That would make it impossible for the appellants to run their case. For those reasons, the Court and the other parties helped the appellants to liaise with the Bar Pro Bono Unit.

However, the sheer volume involved made that difficult  – doing legal work for nothing is one thing, but reading 64 bundles of evidence  is quite another (that by the way amounts to reading 21 books as long as War and Peace or The Stand. Or reading the entire Harry Potter series SEVEN times. No, I wouldn’t do that for nothing either. They did eventually find someone, but given that they were doing all of this reading for free, in between their paid job it took a little longer)

 

 

 

28th July 2016 hearing

 

  • Unfortunately, the timetable leading to a hearing on 7th July slipped, despite the apparent best efforts of all concerned, and the matter was listed once again before me on 28th July. At that hearing a number of matters were apparent. Firstly, despite the genuine endeavours of the Bar Pro Bono Unit, to whom I am most grateful, it had not been possible to engage a barrister who was willing and able to take on the very substantial task of familiarising themselves with the details of this case. To put the matter in perspective, Theis J had no fewer than 64 lever arch files of documents for the fact finding hearing and this court has already been provided with 27 lever arch files of material simply to support the decision at the pre-permission stage.
  • It was also apparent that the limited time that had been available to the applicants at their respective solicitors’ offices had been insufficient for them to engage with the detail of the judge’s judgment so as to be able to identify potential grounds of appeal.
  • In the event the court was therefore obliged to adjourn the matter further on the basis that the applicants would have additional time to consider the judgment at the various solicitors’ offices and the hope was that they would be supported in that process by an advocate or other support service. On that basis the case was adjourned until September.

 

9th September 2016 hearing

 

  • The final hearing of the permission to appeal applications took place before me on 9th September 2016. By that time the paperwork submitted by the applicants indicated that they had each spent sufficient time with a copy of the judgment to enable them to draw up a list of grounds of appeal. That the applicants and the court were able to achieve that state of affairs is undoubtedly due to a good deal of hard work on their part and, at the same time, a good deal of support and goodwill shown to them by their former solicitors and the advocates who have assisted them. So far as the former solicitors are concerned, I do not anticipate that the facilities and staff that they have made available to the applicants will be remunerated in any way and I am therefore particularly grateful to them for their contribution to this process which, without their help, may well have failed to achieve its target of enabling the applicants to engage with the detailed substance of Theis J’s decision.
  • It is also right to record that throughout this process the court has been very significantly assisted by the thorough, calmly presented and well informed submissions of Miss Sally Stone, counsel for the local authority. Having undertaken the professionally taxing role of presenting the local authority’s case before Theis J, Miss Stone was well placed to assist this court in understanding the various issues raised by the applicants. I am also grateful to the legal services department of the local authority who have provided the court with very well prepared bundles to support this process. That the applications for permission to appeal have taken over six months to determine is, understandably and rightly, a source of great frustration to those who are required to focus upon the welfare of the children. Despite that high level of professional frustration, Miss Stone has presented the local authority’s case in careful and measured terms, as opposed to taking a confrontational stance towards the applicants, in a way which has displayed insightful professionalism of the highest order and which is in the best traditions of the family Bar. Both the local authority and the children’s guardian submit that there are no arguable grounds of appeal.
  • At the conclusion of the 9th September hearing I announced my decision which was to refuse permission to appeal to all three applicants on all grounds. I reserved this judgment in order, firstly, to explain the reasons for that decision and, secondly, to do so in the form of a judgment which will be publicly available so that the details of this process can be made known. In order for the judgment of this court to be public, but at the same time in order to protect the confidentiality of the content of the proceedings before Theis J, it is necessary for this judgment to do no more than refer to the detailed allegations and the circumstances of the family members in the most general of terms. In the event, as I shall explain, because my conclusion is that the potential grounds of appeal do not really engage with the scale of the findings made against these three applicants by Theis J, it is not necessary to descend to fine detail in explaining my reasons for determining the applications as I have done.

 

The appeal itself is not that absorbing – you can read about it in the linked judgment if you wish, but this case really does throw up in a very sharp way just how daunting the task of appealing is for litigants in person and how much fairness in our system is now depending on amounts of goodwill and charity that just wouldn’t be expected in any other line of work.

If you imagine that three bundles is about average (some High Court cases go more than that), then the barrister advising these parents did the equivalent in man hours of working twenty cases for free. Can you concieve of us expecting a heart surgeon to do twenty operations for free? The Pro Bono Bar Unit and the people who help out do remarkable and extraordinary work and it is worth thinking about someone giving up their free time to do the equivalent of twenty normal cases for absolutely no money. Worth thinking about that the next time you read a Daily Mail piece on fat cat legal aid lawyers.

 

 

Human Rights claims and statutory charge – an answer? Sort of

In the words of Erik B and Rakim

 

It’s been a long time, I shouldn’ta left you, without a strong rhyme to step to

 

But now, to paraphrase the one-hit wonder gangster rapper from Leicester,  “Return of the Pack – oh my god, Return of the Pack, here I am, Return of the Pack, once again, Return of the Pack, Pump up the world”

 

Which is a more heavy rap-related intro than intended, but basically, now I’m back, to show you…

 

P v a Local Authority 2016

High Court y’all.  Keehan J in da House.

http://www.bailii.org/ew/cases/EWHC/Fam/2016/2779.html

This one is actually a Keehan J shout out to the old skool, if by old skool, you mean (and I do),  the return of a case from March 2016

Child in care wanting parents to have no information or involvement

 

That was the case where the young person did not want his adoptive parents to know anything about the process of gender reassignment, and the LA went to Court to ascertain whether that was in conflict with their duties under the Children Act 1989 to consult with parents when they are looking after a child.

Unfortunately, this happened

 

Background

 

  • In September 2015 P moved to a local authority unit for semi-independent living. Although there were concerns about his mental well being and general welfare, P settled in to this accommodation. He was and is a vulnerable young person with a history of repeated episodes of self harm, taking overdoses and extremely poor mental health.
  • On 11 January 2016 an employee of the local authority disclosed personal information about P, including his forename and transgender status, to third parties who are friends of P’s adoptive parents. P was originally told that the address of the unit where he was living had also been disclosed: this later appears not to have been the case.
  • The impact of this wrongful disclosure on P was immediate and dramatic. He felt unsafe at the unit and left. He first stayed with his girlfriend and then at a number of residential units provided by the local authority. P’s mental health was very severely compromised: he made a number of suicide attempts and there were several episodes of self harm.
  • In more recent months P’s mental health has stabilised. I was very pleased that he was well enough to attend the last court hearing on 26 August 2016.
  • Although the local authority promptly told P of the disclosure of his personal information, I regret that it was slow in (a) giving P a full account of what had happened and (b) giving P a full and unreserved apology. In February the then Director of Children and Family Services wrote a letter of apology to P and offered to meet with him to answer any questions he may have had. P did not take up the offer of a meeting.
  • The member of staff who made the wrongful disclosure was suspended by the local authority and a formal investigation was undertaken pursuant to the council’s disciplinary policy. I do not know the outcome of that process.
  • Regrettably, and notwithstanding that P is a ward of this court, the local authority did not bring this breach of P’s privacy to the attention of this court. The matter was raised with the court by P’s lawyers.
  • The local authority, very sensible and rightly, decided to concede it had, by the inexcusable actions of one of its employees, breached P’s Article 8 rights to respect for his family and private life. They agreed to pay P damages in the sum of £4750. I am satisfied that in light of the very considerable distress suffered by P and the immediate adverse impact on his mental health, this appears to be an appropriate level of damages to be awarded to P.

 

That all seems straightforward. The LA messed up, and they agreed a sum of compensation to pay to P and P was content with that sum, and the Judge felt it was the right amount.

So why is this even a thing?

Well, it is because the Legal Aid Agency (having by the way refused to give P funding to make a claim for damages) wanted to take that £4750 and use it to repay the legal aid that P had had in the original wardship proceedings. This is called the Statutory Charge, and it comes up most often in divorce cases about money. The point there is that if you get legal aid (or ‘free’ legal representation paid by the taxpayer and you win money out of the case, you have to pay the legal aid back out of that money. ) That makes sense with divorce. It doesn’t make a lot of sense here.

It was P’s legal rights that were breached, and the £4,750 is compensation for that breach. Obviously he should get the money.

 

But no, the statutory charge bites on the compensation and P would get nothing.

That’s because of our dear old friend LASPO, the Statute that keeps on giving (if by giving you mean stealing pennies from the eyes of corpses)

 

  • Its current statutory basis is set out in s. 25 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’) which provides:

 

“Charges on property in connection with civil legal services

(1) Where civil legal services are made available to an individual under this Part, the amounts described in subsection (2) are to constitute a first charge on—

(a) any property recovered or preserved by the individual in proceedings, or in any compromise or settlement of a dispute, in connection with which the services were provided (whether the property is recovered or preserved for the individual or another person), and

(b) any costs payable to the individual by another person in connection with such proceedings or such a dispute.

 

And the killer words her are “in connection with”  – basically the Legal Aid Agency position is that the statutory charge bites (and thus they can take the compensation and take all of the legal aid costs spent on other stuff and P just gets anything left over) if there’s a connection between the cases at all.

There’s one exception in the LASPO Act (none of which apply to compensation from Human Rights claims) and the Lord Chancellor has power to exempt the statutory charge in certain cases

 

 

  • The Lord Chancellor has authority to waive the statutory charge, in whole or in part, where she considers it equitable to do so and two conditions are met.

 

Those conditions are:

(a) the Director was satisfied, in determining that a legally aided party qualified for legal representation, that the proceedings had a significant wider public interest; and

(b) the Director in making the determination took into account that there were other claimants or potential claimants who might benefit from the proceedings:

see regulation 9 of the CLA(SC)R 2013.

 

  • The phrase ‘significant wider public interest’ is defined as being a case where the Director of the LAA is satisfied that the case is an appropriate case to realise real benefits to the public at large, other than those which normally flow from cases of the type in question, and benefits to an identifiable class of individuals, other than the individual to whom civil legal services may be provided or members of that individual’s family: see regulation 6 of the Civil Legal Aid (Merits Criteria) Regulation 2013 (the ‘LA(MC)R 2013’).
  • The LAA asserts that the two conditions set out in regulation 9 of the CLA(SC)R 2013 must be satisfied at the time the application for funding is made and the Director makes the determination that the application qualifies for funding. The purpose of the waiver is to allow legal aid to be granted for a single test case without disadvantaging the applicant should he or she fail to secure damages and/or all of their costs.

 

 

The Lord Chancellor and the Legal Aid Agency were both represented in these proceedings and were clear that Reg 9 had not been sought at the time the application for funding was made (of course it hadn’t, because the breach hadn’t happened at that point)  and so it couldn’t now be applied.

Their very reasonable solution was that P would get his damages, provided that his solicitors, silk and junior counsel agreed to waive all of their fees from the wardship case (i.e having represented P in a very complex and legally difficult case and got everything that he wanted and advanced the law in a way that will help others in similar circumstances, they should not get paid for any of it)

 

 

  • In taking a broad and pragmatic approach leading counsel for the local authority submits that the adverse consequence of the statutory charge, that P will receive not a penny in damages, is unfair and makes no sense. I have a very considerable degree of sympathy with those sentiments.
  • In this context I deprecate the stance taken by the LAA that the issue of P receiving any of the awarded HRA damages would be alleviated if his leading counsel, junior counsel and solicitor simply waived their professional fees for acting in this matter.

 

 

The Judge mooted the idea that if there was a break between the two cases (this is my solution so I’m interested in it)  i.e

  1. The solicitors and counsel deal with the wardship or care proceedings on legal aid

2. Separately and without charging for it, they write to the LA about human rights breach and ask for compensation

3. LA settles the HRA claim (and possibly pays the costs of step 2 into the bargain)

 

Then why is the money recovered as a result of step 2 ‘in connection with’ step 1?  And why should the LAA get their money back from step 1 if step 2 is nothing to do with it, and no legal aid money was spent in getting step 2 achieved?

I think this is a damn good point (immodestly, because I’ve been saying it for ages). The LAA unsurprisingly disagree

 

 

  • The principal supplementary submissions of the LAA may be distilled into the following 10 points:

 

(a) it was common ground between the parties at the hearing on 26 August 2016 that any damages recovered in relation to the breach of P’s Article 8 rights (the ‘HRA claim’) would be damages recovered in the wardship proceedings;(b) the creation of new proceedings avowedly for the purpose of avoiding the statutory charge would not be an appropriate use of the court’s powers. It would be wrong to seek to bring about the disapplication of the statutory charge by changing the previously contemplated approach to the scope of this judgment or disapplying certain rules of civil procedure.

(c) The issues raised by the court about the application of the statutory charge cannot be resolved in a factual vacuum.

(d) Even if P’s damages were awarded in freestanding proceedings which were not funded by the LAA, the statutory charge would still apply to those damages if they were recovered in “proceedings in connection with which the [civil legal] services were provided.” The language of ‘in connection with’ is obviously very wide. I was referred to the case of Cassidy v. Stephenson [2009] EWHC 1562 (QB) where Holman J. held that money recovered from the settlement of professional negligence proceedings brought as a result of a failed clinical negligence (which was funded) was not property recovered in a dispute “in connection with which” the legal services for the clinical negligence claims were provided.

(e) The propositions set out in paragraphs 7 to 10 of the email of 20 October 2016 are correct, save that the LAA is not privy to the full background to this case (eg the local authority’s response to P’s letter before action).

(f) The HRA claim cannot be said to be ‘wholly unconnected’ to the subject matter of the wardship proceedings. The LAA asserts that:

“As the LAA understands the position, the Court considered P’s circumstances and the extent to which information about him and his whereabouts should be disclosed in the inherent jurisdiction proceedings. The HRA Claim arose, as the LAA understands it, as a result of conduct by the LCC that was not consistent with the way in which that issue was resolved, with the Court’s assistance, in these proceedings. It was therefore reliant on matters determined in RA’s favour in the wardship proceedings, for which funding for civil legal services was provided.

Civil legal services were provided for the wardship proceedings, in which RA was made a ward of the Court, and restrictions were imposed on disclosure of information in relation to RA. It was the fact that LCC acted contrary to the resolved position that has given rise to the HRA Claim. The LAA funded the wardship proceedings, including for a declaration that there had been a breach of the injunction imposed by the Court. “

(g) It would be artificial to say than any recovery of damages was not made in the wardship proceedings.

(h) Even if the award of damages was made or approved outwith the wardship proceedings, the damages were still recovered in proceedings in connection with which “legal services were provided” (i.e. the wardship proceedings). The LAA relies on the assertion by P’s counsel that the authorities state that HRA claims should be brought within wardship proceedings viz. Re L(Care Proceedings: Human Rights Claims) [2003] 2 FLR 160.

(i) The answer to the question posed in paragraph 15 of the email of 20 October 2016 is “yes” there are reasons why the court should not permit the issue of a freestanding HRA claim. Such a device would be inappropriate and would not result in the disapplication of the statutory charge because, as asserted above, the damages would be recovered in (unfunded) proceedings which were “in connection with” the (funded) wardship proceedings.

 

 

The Judge decided otherwise and ruled that in this case steps 1 and 2 were not ‘connected with’ each other and the statutory charge did not arise on the compensation payable to P. Hooray!

 

 

 

  • It is appropriate for me to deal with each of those points in turn. First, the court is neither bound nor fettered in its determination of the legal issues or the factual matrix of a case by the submission of counsel. In any event counsel were afforded the opportunity to agree or disagree with the alternative analysis proposed by the court and to make submissions. P and the local authority have decided to agree with my propositions and questions. The LAA have had a full opportunity to respond and I can discern no procedural or substantive unfairness in the course I have adopted.
  • Second, to characterise the alternative analysis the court has suggested is ‘avowedly for the purpose of avoiding the statutory charge’ is quite wrong. Rather my objective is to secure, if at all possible, by any legitimate and lawful route P’s receipt of the damages he maybe awarded for the breach of his Article 8 Rights by an organ of the state.
  • Third the factual matrix of this case should be well known to all parties including the LAA. The same is comprehensively set out in the parties’ written submissions and in a detailed chronology prepared on behalf of P. I do not accept the court is considering the legal issues in this case in a factual vacuum.
  • Fourth, with reference to paragraph 64(d) above, I accept the phrase “in connection with which the [civil legal] services were provided” can be given a very wide interpretation. I was not referred to any authority to support a submission that I must give it a very wide interpretation.
  • Fifth, with reference to paragraph 64(e) above, I do not understand the submission that the “LAA is not privy to the full background to this case.” For the purposes of this judgment I have not taken account of nor have I been furnished with material not available to all counsel, save perhaps for one matter which I refer to in the next paragraph.
  • Sixth, with reference to paragraphs 64(f) and (g) above, the LAA appears to have proceeded and proceeds on the basis of a fundamental misunderstanding of the order I made in August 2015: see paragraph 46 above. I did not make an injunction or other order prohibiting the local authority from disclosing personal or private details about P to other persons, save against the local authority disclosing information to P’s adoptive parents: see paragraph 8 above. I made a declaratory order that the local authority was relieved of its statutory duty to give information about P to or to consult with P’s adoptive parents about P or his welfare. The LAA has proceeded and proceeds on the following assumptions:

 

(a) that I made an injunctive order against the local authority;(b) that the employee of the local authority breached the terms of that injunction;

(c) and that P’s claim against the local authority was based on a breach of that injunction.

None of the foregoing assumptions are factually correct. The LAA’s mistake does explain the funding decision of 8 February 2016, set out at paragraph 38 above, to permit P to bring a claim for a declaration for breach of an injunction.

 

  • P’s claim is and was always based upon his Art. 8 Convention right to respect for his private and family life. The claim had nothing to do with the declaratory relief granted to P in the wardship proceedings. This court was not notified of that alleged breach (now admitted) by an employee of the local authority which it should have been because P is a ward of this court and because of the adverse consequences of the wrongful disclosure on P. Furthermore the wrongful disclosure, insofar as it is relevant, was made to third parties and not to P’s adoptive parents. The local authority asserts that the third parties did not, in fact, pass on the disclosed information to P’s adoptive parents.
  • Seventh, with reference to paragraphs 64(h) and (i) above, in light of the correct factual matrix set out above I am not satisfied that the (unfunded) HRA claim in which damages are sought could be said to be “recovered in proceedings in connection with which legal services were provided” (i.e. the funded wardship proceedings). I go further, I am wholly satisfied that the damages resulting from the HRA claim are not “recovered in proceedings in connection with which legal services were provided”. There is no legal or factual connection between the wardship proceedings and P’s HRA claim.
  • The mere fact that P’s counsel in submission referred to the case of Re L(Care Proceedings: Human Rights Claims) [2003] 2 FLR 160 which advises that HRA claims may or should be made in existing proceedings, does not require this court to conclude that P must or may only make a HRA claim in ongoing wardship proceedings. No claim form was issued. The HRA claim and the quantum of damages were settled before a claim was issued. As referred to in paragraphs 58 and 59 above, rr. 21.10 and 8 of the CPR set out the appropriate procedure when a settlement is reached concerning a child or young person prior to the issue of proceedings.
  • I can discern no legal impediment or other reason why I should not permit P by his solicitor to issue a claim form as required by r. 8.2 of the CPR and upon that basis, in due course, proceed to approve the agreed award of damages to P in respect of his HRA claim in those proceedings. The approval of damages can be submitted by email and be dealt on the papers without the need for a hearing. I am confident that the local authority would agree to pay the costs of that process incurred by P’s legal team.

 

Conclusions

 

  • I am bound to find that the Lord Chancellor, by the director of the LAA, has no discretion or power to waive the statutory charge, if applicable, in this case. The preconditions set out in regulation 9 of the CLA(SC)R 2013 must be satisfied at the time the determination of funding is made and a decision to waive the statutory charge must be made at the same time. That did not happen in this case and thus the preconditions are not satisfied.
  • I do not understand why the CLA(SC)R 2013 regulations placed that limitation on the time when a decision whether to waive the statutory charge must be made. I am not aware of any public interest or policy reasons for the same. It is regrettable that the discretion to waive the statutory charge is so fettered.
  • The manner in which the LAA has made determinations on public funding in these proceedings is extremely unfortunate. In some aspects the decisions are plainly wrong and/or unreasonable and in others the reasoning of the LAA is difficult to understand, if not incomprehensible.
  • In my view it would be extremely regrettable if P were to be denied the benefit of the damages awarded to him as a result of the considerable emotional distress and harm to his mental well being he has suffered as a result of the wrongful conduct of an organ of the state.
  • In light of the fact, however, that the LAA refused to fund a HRA claim for damages it appears me that the damages to be awarded to P under the Part 8 procedure were recovered in a claim that did not have the benefit of a public funding certificate. Further I am wholly satisfied that any damages awarded to P in Part 8 proceedings were not recovered “in proceedings in connection with which [civil legal] services were provided.” Accordingly, however erroneous or muddled the LAA’s decision making was on this issue, in my view, for the reasons I have given above the statutory charge is not and cannot be applicable to P’s award of damages.

 

 

Is this the end of it? Not really. Whilst the Judge here paints a route-map for others to follow, there are two major differences from other HRA cases notably the s20 damages cases.

 

  1. The HRA breach happened AFTER the Court hearing and not really in connection with the Court hearing at all. P’s rights would have been breached by what the rogue member of staff did, whether or not there had been a Court hearing. (The Court hearing made it sharper and more vivid and allowed P to easily tap into legal advice from his legal team whom he already knew, but the breach was a breach regardless. It was  a breach of his article 8 rights, NOT as the LAA mistakenly thought a breach of a Court injunction)
  2. The LAA had been asked to fund a damages claim and had refused. That is a material factor in the Judge being able to rule that there was no connection between the two cases.

 

(On the plus side for children and parents, this case probably makes it more likely that the LAA will STOP refusing to fund such damages cases, since if they do, they leave the door open to not being able to recover their original costs out of any winnings, but that in turn means that they will argue that this case doesn’t have broader application)

 

I suspect this is an issue that only the Court of Appeal or Parliament can resolve. It simply can’t be right that where a child or parent has their human rights breached by the State and compensation is paid that they will not get a penny of it. Equally it can’t be right that where the HRA claim is accepted and settled swiftly, that the LA get hit with costs of care proceedings which would be massively more than the legal costs of dealing with the HRA claim itself (and that is a collision course with Supreme Court decisions in Re S and Re T about where costs orders can be made in care proceedings)

Not for the first or last time, the answer is that LASPO is badly drafted and poorly constructed and unfair to real people, and it needs to be reworked.

 

section 20 and human rights damages (£17,500 award)

 

Kent County Council v M and K (section 20 : declaration and damages) 2016

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/28.html

 

The judicial trend for curbing the worst excesses of section 20 continues (see for example  https://suesspiciousminds.com/2015/10/21/fast-and-the-furious-tunbridge-wells-drift/ )

Apologies to the people of Kent, I know some of you are readers, and it is nothing personal, I just report the cases as they happen.

In this case, there was NO issue as to whether the original section 20 consent was lawful (the parents had capacity, and the principles laid down by Hedley J had been properly followed), but the drift and particularly here the failure to issue care proceedings in a timely fashion were what led to the human rights claim, and later damages.  Most of the s20 drift cases involve very young children – in fact infants, but this one involved an older child whose difficulties were significant and got worse over time.  This one is unusual in that it was not the parent complaining that drift and delay had impacted negatively on them, but the child arguing that although the mother had granted valid s20 consent and was not seeking rehabilitation of the child, the LA’s failure to issue care proceedings had harmed the child.

 

 K was placed in the care of the LA pursuant to section 20 Children Act 1989 (CA 1989) on 14 December 2011, the LA issued these proceedings on 16 November 2015. The HRA claim is put under three headings: the failure of the LA to assess K; failure to meet K’s needs and the failure to issue court proceedings. The LA deny this claim. K’s mother supports the claim. 

 

Just shy of four years of s20, that does seem like a long time – from a child’s perspective it is a massively long time, more than a fifth of their total years of childhood.

The Judge sets out the background prior to proceedings being issued. It is long, but I’ll put it in full, because it shows clearly the missed opportunities for the case to be seized and the drift put right. Many many LAC reviews.

  1. K was accommodated by the LA, pursuant to s 20 CA 1989, on 14 December 2011. Prior to that she had been living with her aunt, as her mother was unable to cope with her care. K has a younger sister who remains in her mother’s care. Her father has taken no active part in her care, or these proceedings.
  2. The LA had had prior involvement with K. They had completed a core assessment in April 2011 when K was living with her aunt. The assessment recorded the need for M to address her own mental health needs, K’s relationship with her M was difficult which ‘will certainly impact on her emotional and behavioural development’, and ‘[K] may well need some intervention from the primary mental health team to support her with the difficult feelings and interactions she has with her mother and sister’. The recommendations in the assessment included M to give parental responsibility to the aunt.
  3. On 5 December 2011 K’s aunt informed the LA that she was unable to continue to care for K. K’s mother, M, gave her consent to K being accommodated by the LA by telephone that day. There is no issue that this was a valid consent.
  4. The documents show a placement plan was formulated on 14 December, providing that the period of accommodation pursuant to s 20 was for an initial period of four weeks, pending the convening of a family group conference (FGC), to consider whether any alternative family placements could be explored. This plan recorded ‘It is a concern that [K’s] emotional needs has not been addressed in an appropriate way during her short life’. This care plan was signed by M.
  5. At the Looked After Review (LAC Review) on 6 January 2012, it records K needing a referral for therapy/counselling and a referral had been made to the Lenworth Clinic (next meeting 25 January). The care plan is recorded as being ‘Eventual return to birth family’. And under the ‘Assessment’ sub heading, it states a core assessment ‘to be updated’. Under ‘Emotional and Behavioural Development’ it states K is ‘known to CAMHS and plan is that once [K] is settled fully they will start working with her’. These LAC Review minutes are signed by M.
  6. On 11 January 2012 the family met at the FGC, and all agreed that it would be better for K to stay in foster care as none of the family were able to have K live with them. M signed this document, signifying her agreement to this plan.
  7. At the next LAC Review on 27 March 2012 there is a record of a meeting at the Lenworth Clinic on 25 January 2012, an acknowledgement that K needs a referral for therapy/counselling. It records the referral to the Lenworth Clinic and notes ‘no work will be undertaken with her until current foster placement would be confirmed for long term’. The acute difficulties between K and her M at contact are noted. Importantly, this record notes the change in care plan for K to long term foster placement with foster carers, but acknowledges K has not been informed. It records the core assessment has been completed (although no updated core assessment has been produced) and notes it recommends that it would be ‘advisable to convene a legal planning meeting for the [LA] to seek advice regarding [K’s] care status and issue of parental responsibility’. This advice is repeated in the care planning section, where it records ‘legal advice needs to be sought re long-term fostering as permanency for [K] and Parental Responsibility issue’. This topic is recorded in the decisions and recommendations section as ‘Legal advice to be sought re Parental Responsibility Issue By whom – Social Worker and her manager Timescales – 27/04/12′. This document is not signed by M.

 

 

Quick break in the background – the chronology there shows that by April 2012, there had been a decision that there needed to be a legal planning meeting to discuss the child’s legal status and plans for the future. In the next section we learn that some form of meeting with legal happened in June 2012.  We know that care proceedings were not issued until November 2015. Let’s continue.

  1. The advice from CAMHS of K being unable to benefit from individual therapy until she is ‘firmly ensconced within a family unit’ is confirmed in a letter copied to the LA from the Lenworth Clinic. The LA urge CAMHS to reconsider their position in a letter dated 2 May, stating that K is ‘settled down and doing exceptionally well in the foster placement’. In June CAMHS respond to say they have sent the foster carers a questionnaire and when it is returned the referral will be discussed further.
  2. K’s placement broke down on 5 July, in circumstances where her behaviour was so difficult the police had to be called.
  3. At the next LAC Review on 12 September 2012 there is reference in the record of the meeting to a legal planning meeting on 25 June 2012, but no other detail about this meeting has been disclosed. As regards the CAMHS referral it notes K has moved placements and another questionnaire will be sent to her new foster carer. The record repeats that K needs a referral for therapy/counselling and notes the concerns regarding K’s emotional well-being caused by her wish to live with her mother, why her sister lives with her mother and she can’t, and her mother’s inconsistent behaviour at contact. It continues ‘[K] has been emotionally and psychologically affected by her experiences. She does require psychological support as soon as possible…It is hoped that once this [questionnaire] has been received by CAMHS appointments will be set up’. Under the section entitled ‘Legal’ it states ‘A legal planning meeting needs to be pursued with regard to care proceedings’. There is reference to the core assessment and care plan to be updated. Under ‘Decisions and Recommendations’ is recorded ‘Care proceedings to be pursued in order to give this child some stability and long-term placement. The referral to CAMHS to be pursued and the questionnaire to be completed by the previous and present foster carer.’ M did not sign this record.
  4. On 27 September the LA were informed by the Lenworth Clinic that as K was no longer placed in their catchment area they were referred to the CAMHS resource in the area of the new foster placement.
  5. The next LAC Review was on 5 December 2012. There is a repeated reference to a legal planning meeting on 25 June 2012. As regards the CAMHS referral there is reference to Ms A (the LAC Mental Health Specialist in CAMHS) requesting a meeting with the foster carer, which was still outstanding. The record notes ongoing concerns about K’s emotional well being, that she struggles in her relationship with M and M being unable to empathise with K and what she is going through. K has been ’emotionally and psychologically affected by her experiences’ and requires psychological support as soon as possible. The record of the meeting refers to the care plan, stating that the case is twin tracked ‘but the mother is clear that she could not care for her daughter and will therefore not consider rehabilitation home. Given the situation, the local authority needs to pursue long-term plans for [K]‘. M does not sign these minutes.
  6. In April 2013 there is a letter from Ms A to the LA setting out the CAMHS meeting with the foster carer and the social workers. It is accepted by Ms King, for the LA, that K was not present.
  7. The LAC Review meeting on 16 May 2013 refers to the CAMHS meetings being with the foster carer, but then records K ‘has been emotionally and psychologically affected by her experiences. She is currently receiving psychological support via [Ms A] at CAMHS’, later on referring to Ms A as now ‘working with [foster carer] and [K] to advise on strategies to manage behaviours and support the placement’. The CAMHS referral has been noted to have been ‘actioned’. M does not sign the minutes, but is recorded as having been seen on 21 March.
  8. On 16 July 2013 there was an emergency breakdown of the foster placement, there was an alleged assault by K on the foster carer requiring a late night home visit by the LA.
  9. The LAC Review meeting on 5 September 2013 refers to K attending the meeting. The record notes there had been no updated core assessment, no life story or direct work done with K and that this had left her ‘confused and unclear why she could not remain in the care of her mother. This is further exacerbated by a younger half-sibling remaining in the care of [M].’ It continues ‘LA do not hold PR for [K] and no other family members have been identified. The LA needs to give further consideration to this given [K’s] young age and potential difficulties in the future if they do not hold PR…The LA have not been able to safeguard [K’s] emotional well being given the breakdown in placements and the fact that Permanency has not yet been achieved for her…She [K] has previously had intervention and support from CAMHS – it was unclear as to whether this is being offered at present….Legal: Section 20. LA will need to give this further consideration in view of securing stability and security for [K]’.
  10. In January 2014 there is a signed letter from M confirming her consent for the foster carer to sign for day trips abroad and emergency medical treatment. This is followed in February 2014 with a health consent form signed by M.
  11. There is a report from an educational psychologist, following a consultation with K on 6 November 2013 regarding her behaviour at school which is reported to have improved.
  12. Undated LAC Review minutes indicate a meeting took place in January 2014. There is reference to Ms A working with K in January 2013, which it is accepted is incorrect as no direct work was done with K. The minutes refer to Life Story work being started, but not completed. There is no entry in the box regarding consideration of any new legal orders. Under the section entitled ‘Is this the preferred placement option for this child/young person?’ it says ‘No’, when asked why, it states ‘It is preferred that [K] return to a Local Authority Foster Placement’, when asked about alternative plans it states ‘An assessment is being undertaken to fully identify [K’s] needs’.
  13. In May 2014 there is a letter from SM (Senior Systemic Psychotherapist CAMHS) to the social worker confirming the four professional meetings and their conclusion that ‘the uncertainty about her future is affecting [K’s] emotional well-being and since [the foster carer] is similarly unable to provide reassurance to [K] this is having an impact upon [K’s] attachment to the [foster carer] and the [foster carer’s] attachment to [K]. [the foster carer] must, by virtue of not knowing, withhold some aspects of ”normal’ family life as such as planning for the future. It could be that this is, in part, why [K] believes she may still return home, and why she has seemed confused in her thinking. Other issues notwithstanding, it would seem that [K] is positioned between two families and needs to know who she is going to live with long term. It must be borne in mind that multiple moves (such as have occurred for [K]) can only increase her sense of loss and reduce her hope that there is someone and somewhere she can feel safe and secure. It is not surprising that she displays very challenging behaviours, she must feel enraged and despairing.’
  14. At around this time M writes a letter to K, to explain why she can no longer care for her.
  15. In the LAC Review minutes for 18 June 2014 K is noted as attending. They note that the LA have not pursued to change the legal status for K as work was being undertaken with M and she is supporting the care plan. It notes that the social worker has ‘undertaken and completed much overdue life story work’ which M has supported so K has a clear message she is not returning home. Under ‘Legal’ the minutes record ‘[K] remains accommodated under s 20. Whilst Mum continues to give consent and work with the LA in care planning for [K] there are no indications to change this.’ In July 2014 M gave her consent for K to go on holiday with the foster carer. In another record of this meeting it notes ‘[K’s] emotional and physical behaviour continues to be of concern within the placement and this is felt to be due to the level of uncertainty she still has in regards to her placement due to being told she may be moving placements/is staying and the confusion this has caused her….a plan of permanency has not been agreed for the IFA placement due to Kent’s current policy on IFA placements..’.
  16. In September 2014 the foster placement broke down due to K’s disruptive behaviour and in October she moved to her fourth placement.
  17. At the LAC Review on 20 November 2014, which K attended, the minutes confirm that individual support from CAMHS has yet to be offered. As regards the care plan meeting the need for permanency it records ‘Yes – if stability of Placement is achieved. Consideration also needs to be given to [K’s] Legal Status which is s20 and has been since December 2011’. A little further on under ‘Legal’ it records ‘IRO has asked that LA give consideration as to how her Legal Status could be more secured.’ Under ‘Decisions and Recommendations’ the minutes note that the social worker is to request senior managers to write to CAMHS to secure appropriate level of service including a definite date for State of Mind Assessment. Also the social worker is to raise with managers K’s legal status and advise IRO of outcome. One record of this meeting refers to concerns about the increased use of restraint and sedatives in her previous foster placement, with no further reference to how this was dealt with or whether M was informed.
  18. A file note dated 7 December records discussions with the out of hours social worker. K had told the foster carer that ‘she could go back to her mum any time’. The record ends with the following ‘K needs to be spoken to urgently by her social worker tomorrow as she needs to feel validated and listened to and clearly needs an explanation about her current status in care and why she is not in her mother’s care. It seems she has some unrealistic expectations about return to her mother’.
  19. On 5 January 2015 there is an out of hours file note with the foster carer seeking to end the placement due to K’s behaviour. K moves to her fifth placement on 16 January.
  20. A file record on 18 March 2015 notes that CAMHS have not yet made any contact with the foster carer, although the school have made contact for K with another project.
  21. In around June 2015 the LA make a referral to Great Ormond Street CAMHS where they note K has ‘been passed around services for the last 18 months with no real support or assessment in place. The [LA] feel this in unacceptable for K and she needs a professional team to take responsibility for completing an assessment and putting a plan in place to address her needs’. The referral records it has the support of the service manager, Ms Ransley.
  22. K’s behaviour deteriorates again and the police are called. She moved to her sixth placement on 10 June 2015 for one night, before being placed with Mr and Mrs M her current carers on 11 June 2015. They are her seventh foster carer in four and a half years.
  23. The LAC Review minutes for the meeting on 7 July 2015 record the attendance of Ms Ransley and K and M’s apologies. The referral to GOSH is noted. Under ‘Legal’ it records ‘[K] remains accommodated under s20. Discussions have been ongoing outside of the CIC Reviews with LA regarding this. NB Subsequent to this Review Service manager advised via email that Care Proceedings will be filed in first week of September’.
  24. A psychological report dated 6 August 2015 details the number of moves K has had and recommends a referral to GOSH, which had already taken place.

 

 

This is very tricky. On the one hand, this child was clearly uncertain about her future and getting very mixed up by it. On the other hand, the Local Authority had a mother who was genuinely consenting to the child being in foster care and accepting that she was not able to care for her. There’s at least an argument that in keeping this outside of care proceedings, although the length of s20 was unusual, the LA were observing the least interventionist approach which is the spirit of the Children Act 1989. Bear in mind that the Court can only make an order if it is better for the child than not making one, and here we had a mother who was working with the Local Authority and in agreement with the foster placement and accepting that she could not resume care of K.  I can understand the LA doubt about whether an application for a Care Order could have resulted in a Care Order being made, given that mum was working with the LA and giving valid s20 consent.   It is the unusual position of it really being the child who was unhappy with the s20 rather than the parent.

 

It was the Guardian, on behalf of K, making the Human Rights Act claim. Here are the Guardian’s arguments as to why there was a breach of K’s human rights.

  1. On behalf of K it is submitted that when K was received into care in 2011, at the behest of the LA, they were already aware from their own core assessment in April 2011 of her considerable difficulties in her relationship with her mother, and that she may need some intervention from the primary mental health team. Despite this knowledge in their own assessment the LA failed to;
    1. (i) Update her core assessment for over 2 years, despite repeated recommendations at LAC Reviews to do so.

(ii) Seek a psychological assessment of K’s family. The LA had recommended this should be done at a meeting in January 2005.

(iii) Seek a psychiatric or psychological assessment of K until 2015, despite that being recommended in LAC review meetings from March 2012. It is acknowledged she did see an educational psychologists in November 2013, but this concerned her behaviour at school. Some of the LAC reviews appeared to proceed on the basis that she was seeing someone from CAMHS, but the report dated 6 August 2015 from the trainee psychologist VT makes it clear she had not met K.

(iv) Life story work, although repeatedly recommended in LAC reviews did not start until over 2 years after she was received into care.

  1. In her statement the Guardian deals with the lack of assessment in the following way; ‘If such an assessment was sought many years ago work could have been done on the mother/child relationship which may have prevented the need for [K’s] permanent accommodation. In any event work could have been carried out on attachment and behavioural issues and therapeutic intervention could have assisted [K’s] development which suffered by this not happening…This is an assessment that the LA could have commissioned itself, if CAMHS would not agree to undertake it’. Mr Hall rejects any suggestion in the LA evidence that they recognise, with the benefit of hindsight, they may have acted differently. He submits the need for assessment was obvious from the time K was placed with foster carers in 2011. K’s attachment difficulties with her mother needed urgent assessment, and then effective support put in place. That was repeatedly recommended, but not done.
  2. Turning to his second heading, Mr Hall recognises that it is inter-linked with the failure to assess. In the record of the LAC review meeting on 5 September 2013 the LA candidly recognise they have ‘..not been able to safeguard [K’s] emotional wellbeing given the breakdown of placements and fact that permanency has not been achieved for her.’
  3. There have been 7 placement breakdowns, often at short notice and in upsetting and distressing circumstances for K. The records have many references to the extent the placement breakdowns have caused K emotional harm. In their referral for a psychological report in 2014, some three years after K has been in the LA’s care, the reason for a different picture at school emerged. As the record of the meeting notes ‘…[K] has learnt to cope by withdrawing emotionally and functioning independently whilst maintaining control over her environment. This works well at school and when she first enters into a new placement. However, this coping strategy breaks down at home as she starts to settle and get close to the foster carer…’ To illustrate this Mr Hall relies on the report to the LA review in January 2014 concerning K’s third foster placement with Mr and Mrs T. The social work report for the review notes that K was happy and beginning to form an attachment to the foster carer, but as it was an agency placement the LA, as a matter of policy, were unable to sanction this placement as a long term placement. The report notes that this lack of certainty in the placement was impacting on K’s emotional well-being. This view was endorsed in a letter dated 15 May 2014 from CAMHS and it went further in stating ‘It must be borne in mind that multiple moves (such as have occurred for [K]) can only increase her sense of loss and reduce her hope that there is someone and somewhere she can feel safe and secure. It is not surprising she displays very challenging behaviours, she must feel enraged and despairing.’
  4. Between December 2011 and February 2016 Mr Hall submits the LA have not ensured K has received appropriate therapy; had they done so the Guardian considers K’s family life is likely to have been very different. At the LAC review on 4 February 2015 it was recorded ‘…It is imperative that therapeutic support is offered to [K] to enable her to become more stabilised to reduce the risk of further placement breakdowns’.
  5. Under the third heading, the failure of the LA to issue court proceedings, Mr Hall also recognises is linked to the first two. He submits on the LA’s own records K suffered from instability from spending so long in foster care, with only her mother having parental responsibility and no clear direction. K’s current social worker Ms A sets out in her statement in support of these proceedings ‘It is envisaged that a care order will also support [K] in terms of feelings of security and stability, as she has historically struggled to understand the decisions made by her mother, and therefore she will know that there will be a level of oversight to her care planning’.
  6. Mr Hall submits if proceedings had been issued there is every likelihood they would have made a difference. The repeated failures by the LA to follow through their own decisions would have been subject to effective scrutiny, by the guardian, her legal representative and the court. The issue was repeatedly flagged up by the LA from March 2012, but not followed through. Had K been represented in court proceedings, there would have been proper oversight, the plans would not have been allowed to drift and assessments would have been undertaken when required. Whilst K’s mother did not raise any complaints at the time about how K was cared for by the LA, she had not been able to provide consistent and predictable care for K before 2011, K’s mother had her own mental health difficulties, she was inconsistent in her attendance at LAC reviews and her contact was gradually reduced to the extent she was only seeing K once during each school holiday. Mr Hall submits it is difficult to see how she could be regarded as someone who was proactively exercising her parental responsibility in relation to K.
  7. As regards any suggestion by the LA that s 20 is not time limited and/or is not always a prelude to care proceedings Mr Hall submits the LA’s own records point in the other direction. In particular,
    1. (i) On 12 September 2012 the LAC review records that a legal planning meeting needs to be pursued with regard to care proceedings noting ‘care proceedings to be pursued in order to give this child some stability’ and long-term placement’.

(ii) On 16 May 2013 the LAC review records that the LA are to review current legal status within next 3 working weeks and advise IRO of outcome.

(iii) 5 months later on 5th September 2013 the records note the LA does not hold PR for K and ‘the LA needs to give further consideration to this given [K’s] young age and potential difficulties in the future if they do not have PR…the LA have not been able to safeguard [K’s] emotional wellbeing given the breakdown of the placements and the fact that permanency has not been achieved for her’.

(iv) 14 months later on 20 November 2014 the LAC review notes ‘IRO has asked that LA give consideration as to how her legal status could be more secured…Sally to raise with managers [K’s] legal status and advise IRO of outcome’.

(v) 4 months later on 4 February 2015 the LAC review records similar concerns being expressed by the IRO as to K’s legal status.

  1. The LA issued care proceedings on 16 November 2015. Mr Hall submits the fact that care proceedings were finally issued conclusively responds to any suggestion by the LA as to their necessity. Otherwise, he asks rhetorically, why did they issue them? He submits that the failure to issue the proceedings soon after K was placed in care has denied K the opportunity to be properly assessed and access appropriate support at a much earlier stage as, he submits, it would be inconceivable that a court would have permitted care plans to be made without a proper assessment of K’s needs. As a result K has lost the opportunity to have the input of a Guardian, a legal representative and planning for her care to be properly and robustly based on sound assessment.
  2. Mr Hall submits the detrimental effect on K of the LA’s failure to secure emotional, practical and legal stability for her is clear from the LA records and the Guardian’s evidence.

 

The point here on the delay in issuing care proceedings that it is not merely the making of a Care Order that is achieved within care proceedings – having judicial and Guardian scrutiny of the care PLANS is a vital part of the process and if this had happened, K would have had a better care plan much sooner and suffered less disruption and harm in care.  The journey through care proceedings, says the Guardian, is just as significant as the ultimate destination.

 

What did the LA say?

 

  1. Ms King on behalf of the LA does not dispute the LA records. She submits there is no issue about the validity of the consent given by K’s mother, either at the start or during K’s placement with foster carers. She submits neither statute nor any guidance stipulate s 20 is a short term measure only. In this case, unlike the reported cases, there was not any dispute about the LA’s care plan for K. So, she submits, the starting point is very different and distinguishes this case on the facts.
  2. Ms King submits the documents show there was considerable involvement by K’s mother, such as the number of written consents provided by her for the foster carers to sign forms for her, the letter she wrote to K about why she was placed with foster carers. The submission on behalf of K that they should have issued care proceedings earlier does not amount to a breach of her article 6 and 8 rights.
  3. She submits there is no evidence of a failure to plan for permanency in that the LA investigated the options with the family first, when this was not possible their plan for K was to be placed with long term foster carers. They acknowledge the high number of placements, but state being within care proceedings was unlikely to have made any difference to the efforts made by the LA to secure a permanent placement. Ms Ransley, the service manager for the area at the relevant time, states ‘Providing children with stability within foster care is often a challenge (this is irrespective of their legal status) and this sadly was the theme for [K]. [K] experienced numerous foster care breakdowns within both the in house provision and the commissioned private foster care sector, which is regrettable but not unusual within a care system which operates a 30 per cent disruption rate. Finding the right match where it clicks, can often evade even the most meticulous professional.’ Ms King submits no link has been established that the situation would have been any different if care proceedings had been issued earlier than they were.
  4. Ms King refutes the submission that the LA failed to assess and/or provide therapeutic support for K. She submits the papers demonstrate the appropriate referrals were made to CAMHS but CAMHS concluded they should provide a service to the carers, not directly with K until she was settled in her placement. Whilst Ms Ransley in her statement acknowledges the LA’s frustration with the position taken by CAMHS that is the service provided to meet the mental health needs for children by the NHS, which is what the LA commissions for children in their care. Ms King relies on the fact that the Guardian has not sought an independent assessment within these proceedings.
  5. Ms King submits the submission on behalf of K that as a result of the LA breaches K’s welfare has been harmed, is speculative. Given the harm K suffered prior to coming into care and the extent to which that has been the root cause of her placement breakdowns and the uncertainty over CAMHS support due to placement uncertainty, such harm as might be found proved cannot be attributed directly to the failings of the LA to the extent of a breach of K’s article 6 and 8 rights.
  6. Finally, Ms King submits K’s mother has exercised her PR in a way regarding K’s accommodation that was and is consistent with her welfare. There were no alternative carers for her and K had an IRO. Ms King states in her written skeleton argument ‘Whilst the LA accept that it is better for [K] that a care order is made so that her position as a child in care is formalised by way of an order which signals permanency and confers PR onto the LA, none of those advantages mean the LA has acted unlawfully and/or breached [K’s] Article 6 rights. Her mother exercised her PR in a free and informed manner. Her mother decided that [K] was best looked after by the LA. She was entitled to take that decision and the LA was entitled to act on it’.

 

I think that those are good points – somewhat weakened by the number of placements and the child being at times sedated in care, which is a very unusual set of circumstances, but on the whole, the Local Authority had a decision to make as to whether care proceedings would achieve something for the child that could not be achieved without it.  I have certainly had cases (with the child not having such a bumpy ride in care) where with an adolescent in a settled foster placement I have advised against care proceedings where the parents are giving long-term and capacitous section 20 consent with no prevarication.  For a significant part of that four year period,

We know from the headline though that the LA lost here, so let us cut to the chase.

 

Discussion and decision

  1. There is some force in the submission made by Ms King that the facts in this case are different than those in many of the reported cases concerning the misuse of s20. A common feature of those cases was an issue over the parent’s consent to their child being accommodated and the lack of agreement with the care plan; neither of those matters featured in this case.
  2. Ms King builds on that position as, whilst acknowledging what the President said in Re N (ibid) about s 20 having a role as a short term measure, she seeks to rely on the fact that there is nothing specific in the section, or guidance, to found that view.
  3. The difficulty with Ms King’s position is that the documents produced by the LA paint a picture of
    1. (i) A mother who has to a large extent abdicated her parental responsibility to the LA. Whilst she has some involvement in the decision making after K is placed with foster carers, the fact that she doesn’t seek to challenge the LA inactions in the context of what is taking place demonstrates her inability to exercise her parental responsibility proactively for the benefit of K.

(ii) The LA on the documents decided repeatedly there should be a further/updated core assessment, mental health assessment/therapeutic support and legal advice about K’s status; but the same documents demonstrate repeated failures to follow through these decisions.

(iii) Repeated and worsening placement breakdowns, which were deeply damaging to K’s emotional well-being.

  1. Whilst there is no time limit on providing s 20 accommodation in the statute, each case has to be considered on its own facts, with active consideration being given as to whether proceedings should be issued. In this case care proceedings would have helped significantly to provide the stability and security that K so clearly needed. K would have had the benefit of a guardian and legal representative to give her an effective voice regarding the LA failures and enabled the LA to share PR with M. As the LA accepted in the middle of 2015 K had been ‘passed around services for the last 18 months with no real support or assessment in place’. This is hardly a ringing endorsement by the LA of their own care planning for K.
  2. A common thread in the records is the harm being caused to K by the lack of security and stability any of her placements (other than the current one) were able to offer her. The evidence demonstrates K was acutely aware that her mother could remove her at any time.
  3. I am satisfied that the LA have acted unlawfully, in my judgment their actions have been incompatible with K’s article 8 and 6 rights. I have reached that conclusion for the following reasons:
  1. (1) The failure by the LA over a period of over three years to conduct or update the core assessment done in April 2011 meant the LA had not properly assessed K’s needs during the period she was placed with them from December 2011 to November 2015 to provide a secure foundation for care planning for her, in order to protect her article 8 right to family life. The care plan for long term fostering lacked any detailed foundation that such an assessment would have given it.

(2) The LA’s failure to secure appropriate mental health assessments and/or therapeutic support meant her continued placement breakdowns over that period were unsupported. Reliance on inconsistent CAMHS referrals together with the repeated misunderstanding of what CAMHS support was being provided permeated the decision making and the delay in seeking an assessment until 2015, when a referral was made to GOSH. This all contributed to the increased risk of repeated placement breakdown.

(3) The suggestion that the LA were not able to commission independent private providers on an ad hoc basis does not stand up to scrutiny. In her statement Ms Ransley states ‘Commissioning independent, private providers on an ad hoc basis does not happen. Local Authorities only generally fund these types of arrangements within care proceedings’. Yet this is what the LA did when they made a referral to GOSH in July 2015, prior to issuing proceedings. No explanation is given as to why this could not have been done earlier, other than an acknowledgement in Ms Ransley’s statement that ‘this should have happened sooner with hindsight.’

(4) The repeated failure by the LA to act on its own decisions for over three years to seek legal advice to secure K’s legal position, including consideration of the issue of proceedings and the advantages that would bring for K, together with the LA having PR through a care order. On their own admission in the evidence the LA filed in 2015 in support of the care proceedings, a care order would provide the stability that K clearly required. The delay of over three years in doing so is not justified in any way. That delay meant K was denied access to an independent guardian and her own legal representation, in circumstances where the LA were not implementing their own decisions about her and the only person with PR was not exercising it in a proactive way. K’s article 6 and 8 rights were compromised by this significant delay.

(5) Whilst K’s mother was entitled to exercise her PR for K in the way she did, that does not absolve the LA from actively considering whether it should secure its legal position in relation to the child concerned. Here K’s mother was, at most, after November 2011 reactive rather than proactive in exercising her PR. She responded to requests from the LA and attended some, but not all, meetings. Probably due to her own vulnerabilities she was not in a position to challenge the actions, or inaction, by the LA in relation to K.

(6) Reliance by the LA on the unlimited term of s 20 simply cannot be justified in a factual vacuum. The circumstances in this case demanded for K’s article 8 and 6 rights to be protected, for the LA to secure their legal position regarding K. The LA’s own records repeatedly make decisions of the need to get such advice, those decisions were repeatedly not acted on and when they were care proceedings were issued, nearly three and a half years after they should have been. It is unattractive for the LA to now submit that there was no obligation on them to issue such proceedings. The President’s words in Re N (ibid) could not be clearer.

(7) I am satisfied that if proceedings had been issued earlier the assessments that the LA failed to do are more likely to have been ordered by the court. Reliance by the LA on the fact that within these proceedings the Guardian has not sought any further assessment is a realistic recognition by her of the current position, that with a settled placement and a report from GOSH further assessment is not justified. That does not absolve the LA from responsibility of its failure to issue proceedings earlier, as it should have done, over three years ago.

(8) I agree that in considering this application the court should guard against making decisions with the benefit of hindsight. In her statement Ms Ransley observes ‘With the benefit of hindsight criticism can be formulated. Is the service and support provided to [K] optimal, [K] has been given what all children in care are, but for [K] like 30 percent of young people, her experience has been sub-optimal due to issues inherent in the care system. These issues are experienced by children subject to an order and those who are not.’ What this does not acknowledge are the facts of this case; the unacceptable delay in issuing proceedings, the consequent uncertainty which increased the risk of placement breakdown and the failure to properly assess and support K.

 

The Judge assessed the appropriate level of damages for K as being £17,500.

 

Statutory charge

 

The statutory charge is not very exciting, but I need to talk about it here, because it is important. The statutory charge is the term given where as a result of  free legal representation, someone obtains money through a Court order, and has to use that money to repay the cost of their legal aid. It usually occurs in divorce, and makes a lot of sense. If someone racks up a legal aid bill of £20,000 and as a result of their divorce gets £250,000 it makes perfect sense that the legal aid should be repaid out of that money, rather than the taxpayer footing the bill.

Up until fairly recently, this didn’t affect people in care proceedings. Legal aid for care proceedings is non-means non-merit  (which means that even a millionaire would be entitled to free legal advice and representation) and parents didn’t get any money back at the end.  But now that Human Rights compensation for bad behaviour by a Local Authority is a thing, the change to the Statutory Charge which means that it applies to such compensation is a big deal.

£17,500 of compensation for K is a decent amount of money, and intended to be compensation for what she has gone through in her life as a result of the human rights breaches the Court has found. But before she gets any of that money, she has to pay back the legal aid agency for the cost of her care proceedings AND the cost of her human rights claim.  That’s probably going to leave her with nothing.

Many of us were hoping that you could box off the human rights claim separately, which would be much less, and possibly an amount of money that the Court might order the Local Authority to pay. A human rights claim probably costs about £2,000, compared to the £10-20,000 of care proceedings  (remember that the legal aid bill covers barrister’s fees and expert fees too).

So, here are the options that the Court has :-

  1. Make no orders about costs, and know that almost the entire compensation package goes to the legal aid agency rather than the child or the parents.  Michael Gove is the person who benefits, not the person who actually suffered the human rights breaches.
  2. Make an order that the Local Authority pay the costs of the care proceedings AND the human rights claim. That means that the LA are paying out double the amount of compensation. It also makes it difficult to fit with the Supreme Court’s decision on costs in care proceedings, which are that there shouldn’t be costs orders unless the LA’s conduct WITHIN the proceedings has been egregiously bad. The conduct here is BEFORE the care proceedings, so there’s a strong chance that the LA would appeal. That racks up the costs even more, potentially swallowing up ALL the compensation, since really only the Supreme Court can decide how this affects their previous decisions.
  3. Make an order that the LA pay the costs of the human rights act claim. That’s a well-founded costs order and doesn’t cause legal problems. However, it is a small amount compared to the costs of the care proceedings, and may still end up with the child getting only a small amount of compensation.

 

 

The Judge in this case took the third option.

Costs

  1. Mr Hall seeks an order for the LA to pay the costs of the proceedings. He submits the HRA claim has succeeded, the court should be mindful of the impact of the statutory charge and in the circumstances of the case the court should make an order for the LA to pay the cost of the proceedings.
  2. Ms King resists this application. She submits the court should not depart from the general position in family cases that costs are not usually awarded in family proceedings (see Re S (A Child) [2015] UKSC 20 paras 15 and 29). She submits the LA have not taken an unreasonable stance. In any event, the LA should not be responsible for the cost of the proceedings, merely as a device to avoid the full impact of the statutory charge. She submits there are discrete costs concerning the HRA application.
  3. I recognise the financial pressures on the LA and that it is unusual for the court to make a costs order in care proceedings. Against that I have determined that the HRA claim succeeds, I rejected the submissions of the LA and made an award of damages. In the circumstances of this case, where the breaches continued for such a long period of time, I have reached the conclusion the LA should pay K’s costs of the HRA application only, but which will include the full costs of the hearing on 29 March 2016, as the only reason that hearing could not proceed was due to the late disclosure by the LA on that day of relevant documents. I will make no order for costs as between M and the LA.

 

 

 

I do have a fourth solution, but it is hard to use when a human rights act claim has already actually been made. Effectively, if a lawyer believes that the client has had their human rights breached and that compensation might be payable, they open up a brand new pro bono file. This is kept ENTIRELY separate from the care proceedings. Ideally another lawyer deals with the case so there’s no overlap at all.  Not a penny of publicly funded/legal aid money is spent on that file, so any compensation achieved is nothing to do with legal aid at all. The money would only go to legal aid if the care proceedings ended with a “Lottery order” about costs (that’s an order that says in effect, K had free legal aid and would only have to pay for it if she came into a huge sum of money, say a lottery win. These are NEVER made in care proceedings, because legal aid for them is non-means, non-merit – even a millionaire qualifies)

Ideally, under this pro bono file, the lawyer writes to the LA a pre-action protocol letter setting out the alleged breach and giving a figure that their client would be prepared to settle for. If the case settles, the costs are minimal and could be bundled into the settlement. The client gets the money, the lawyer gets paid for the work they’ve done, the LA don’t incur a costs order of tens of thousands.  If the case doesn’t settle, the lawyer has to decide whether to run it as effectively no-win no-fee, or to make an application for public funding knowing that the stat charge will bite on their client.

None of this should be necessary BECAUSE the Statutory Charge just plain and simple should not apply to human rights compensation cases, and particularly not to ones that arose out of care proceedings. Making someone pay out of their compensation for care proceedings that a millionaire would have got for free, and they only have to pay a penny BECAUSE their human rights were breached is just plain unfair and wrong. I don’t see that changing until the Press get outraged about the unfairness of it  or Michael Gove gets JR-ed on it.  Or perhaps a LA appeals a costs order for the entireity of the costs and the Minister gets added as an intervenor on the appeal.

 

 

*Addendum, solution number 5.

 

Judge smiles very clearly and obviously at counsel who had been making the HRA claim and invites them to withdraw it. If so, delivers judgment and says within it that IF had been asked would have found breaches and IF asked about quantum, would have said £x. Pauses after judgment, gives parties a small adjournment for discussions to see if any applications need to be made arising from the judgment, or whether for example an offer might be made an accepted. If Judge told that nothing arising, simply makes no order for costs. Stat charge doesn’t bite because no order for compensation made, and any compensation was achieved in that short adjournment for which nobody charges the Legal Aid Agency a penny for their time. If Judge is told that an application to revive the HR claim is made, then so be it, the LA will likely feel the full force of a costs order because they were too dumb to take a hint.

Wasted costs orders against everyone!

I don’t think I’ve ever seen anything quite like this. It raises some massive points of financial implications for solicitors, particularly when agreeing to take on a case involving medical or police disclosure.  It places on them a financial risk that might very well not be worth taking, given the narrow margins on which businesses are currently operating. The Judge did not, it seems to me, take proper account of the public policy implications of this decision.

A public law case was listed for a 2 day finding of fact hearing. The Local Authority had been ordered to obtain police and medical disclosure. It appeared that some things which clearly by close reading of other documents were known to exist within the police possession had not found their way into police disclosure. When this came to light, the hearing had to be adjourned.

The Court then embarked on an exercise to see who was responsible and considered the making of costs orders.

Re L (Case Management : Wasted Costs) 2016

http://www.bailii.org/ew/cases/EWFC/OJ/2016/B8.html

 

What makes it quite remarkable is that in most wasted costs cases what happens is that one side is assessed to be responsible for the mix-up or failure, and the other parties get their costs paid by them. Here, the Judge determined that whilst the Local Authority was chiefly to blame, all of the parties had to bear some of the blame.

 

Non-compliance with case management directions – who is at fault?

 

  • In this case,[2015] 1 FLR 1092 case management orders were made promptly (on day 14) for the disclosure of medical records and police records. The medical records were disclosed promptly save for the photographs. The failure to disclose the medical photographs was not identified by any party until 20th January 2016.
  • The police responded promptly to the disclosure order but failed to disclose the audio recordings of the parents’ police interviews. The first approach to the police for ‘further disclosure’ was made by the local authority on 14th October. The first time the lack of this material was raised by any other party was in an e-mail from the mother’s solicitor to the local authority on 2nd November.
  • Who is responsible for these failings? Is the failure to disclose the medical photographs the responsibility of the hospital or of the local authority for not going back to the hospital to ask where the photographs were, or of the other parties for not raising this issue either with the local authority or with the court? Is the failure to disclose the audio recordings of the parents’ police interviews the responsibility of Leicestershire Police (who were ordered by the court to disclose ‘witness statements, interviews, photographs and medical reports in respect of the injuries’), or of the local authority (to whom the police were ordered to make disclosure and upon whom was laid the obligation of disclosing the police material to the other parties), or of the other parties for their delay in raising this issue either with the local authority or with the court?
  • Leicestershire police were ordered to make disclosure to the local authority. The local authority was ordered to disclose to the other parties the material received from the police. It was also ordered to obtain and disclose medical records. Is the scope of the local authority’s duty limited to forwarding on to the other parties the material received from the police and the hospital? In my judgment, it is not so limited. The local authority is not providing a postal service. It is under a duty not only to disclose what it receives but also,

 

(a) to consider with care the material received from the police and hospital;

(b) to satisfy itself that the disclosure complies with the terms of the relevant case management direction; if it does not comply then,

(c) to identify any documents or categories of document that appear to have been omitted;

(d) to contact the police/hospital promptly seeking immediate disclosure of the missing documents; and if disclosure of the missing documents is not made promptly then,

(e) to inform the court and seek urgent directions; and

(f) to keep the other parties informed.

 

  • Whilst the primary duty for obtaining and disclosing police and medical records rests with the local authority, it is clear from the rules to which I have referred that the other parties also have a responsibility. They, too, are under a duty to assist the court in the process of active case management and to inform the court of any non-compliance. With respect to police and medical disclosure there is a duty,

 

(a) to consider with care the material disclosed by the local authority;

(b) to satisfy itself that the disclosure complies with the terms of any case management direction relating to that disclosure;

(c) to identify any documents or categories of document that appear to have been omitted;

(d) to inform the local authority promptly with respect to any gaps in the disclosure; and, if the missing documents are not provided promptly,

(e) to inform the court and seek urgent directions.

 

  • In my judgment it is clear from the rules and authorities to which I have referred that these duties exist. They are a necessary part of the process of enabling and assisting the court to comply with its duties to further the overriding objective and to complete care cases within 26 weeks.
  • In the circumstances of this case I am satisfied that the responsibility for the failure identified rests primarily with the local authority. However, I am equally satisfied that the solicitors for the parents and the guardian also bear some responsibility.

 

Well, that’s all lovely in an ideal world, but do solicitors have the time to inspect each and every document with a fine-toothed comb, particularly in a case where counsel are instructed? They certainly don’t get paid for such a task.

So what happens then? Well, one sensible approach would be for the LA to pay some of the costs but not all of them, given that there were failings on the part of the other parties. That’s not what happened here.

 

The Court was actually considering punishing the solicitors involved by disallowing a share of their costs. The Legal Aid Agency were strongly suggesting that this was not a power open to the Court unless they were carrying out their function of assessing the public funding certificates by way of taxation (which would come at the end of the case)

 

Disallowing costs payable to a legally aided solicitor

 

  • Navigating one’s way around the labyrinthine complexities of the current legal aid scheme is a significant challenge. For present purposes it is necessary to have regard to the Legal Aid Agency’s Standard Civil Contract 2013 specification: General Rules (section 1-6) (July 2015 amendment), to the Standard Civil Contract 2013 specification: Family category specific rules (section 7) (July 2015 amendment), to the Civil Legal Aid (Remuneration) Regulations 2013 and to the Civil Legal Aid (Remuneration) (Amendment) (No2) Regulations 2014.
  • The solicitors for the legally aided parties contend that disallowing part of a standard fee payable to a legally aided solicitor pursuant to the provisions of s.51(6) is not simply inappropriate but that it is not possible. The basis of that submission is that the standard fee for legal representation is a fixed fee payable irrespective of the amount of work undertaken (subject to the right to ‘escape’ from the standard fee to which I referred earlier). It follows, therefore, as a matter both of logic and of law, that so far as concerns the costs of any solicitor entitled only to the standard fee there cannot have been any ‘wasted costs’. In this case, even if a solicitor entitled only to the standard fee undertook work on 20th, 21st and 22nd January which would not have been necessary had the failure of police disclosure been identified at the time it arose, that solicitor will receive no extra payment for that work but will simply receive the fixed fee to which he or she would in any event have been entitled. A letter to the court from the LAA supports that argument,
  • The position would appear to be different so far as concerns the costs of a solicitor who ‘escapes’ the standard fee. As I noted earlier, that solicitor is entitled to be paid for the work undertaken on an hourly rate basis (the hourly rate being that prescribed in the Civil Legal Aid (Remuneration) Regulations 2013 as amended). In those circumstances it is clear that the argument set out in the previous paragraph does not apply. Even if the court does not have the power to make a wasted costs order against a solicitor entitled only to the standard fee (a proposition about which I am doubtful) there would seem to be no reason why the court could not make a wasted costs order against a solicitor who ‘escapes’ the standard fee.
  • However, the LAA raises a second issue and that relates to its power to act on an order made by the court under s.51(6) disallowing all or part of a legally aided solicitor’s entitlement to remuneration. In its letter to the court, the LAA asserts that,

 

‘The court could only disallow a solicitor’s costs under their contract with the LAA where the court is performing a detailed assessment pursuant to that contract (see paragraphs 6.37 – 6.38 of the Standard Contract Specification…) However, you could make observations to help the assessing authority (whether that is the LAA or the Court) in its assessment.

‘Where legally aided work falls under one of the Standard Fee Schemes, the LAA usually would have no choice but to pay the standard fees, unless the claim is not true, accurate and reasonable. The nature of the standard fee scheme is that in some circumstances a legal aid provider may receive a relatively high payment for not necessarily doing a large amount of work, whilst in the circumstances of a different case, the same standard fee may be considered to be relatively low. However, if you do make any observations on the amount of costs claimed and suggest that some costs should be disallowed, the possibilities, within the fixed fee scheme would be as follows:

1. Claims can ‘escape’ the fixed fee where, if paid at hourly rates the solicitors would be paid more (i.e. for Legal Representation, where costs on an Hourly Rate basis would exceed twice the Standard Fee, the solicitors would be paid at hourly rates). If in the circumstances of this case the solicitors have escaped the fixed fee and are to be paid at hourly rates, any disallowance (or recommended disallowance) of costs on assessment could reduce the amount payable to the solicitors;

2. The costs of the case can be disallowed in full, which would lead to a nil payment to the provider irrespective of the fixed fee scheme;

3. If the solicitors have breached some term of the contract, such as the requirement to carry out all contract work in a timely manner and with all skill and care, and as a result caused the LAA a loss (for example if a further hearing were required because of the solicitor’s default which has led the LAA to make further payments), then the LAA could set off the loss it has been caused against any payment due to the solicitors (i.e. the fixed fee they would be due to receive)’

 

  • Paragraphs 6.37 and 6.38 of the Standard Contact Specification provide that:

 

Court assessment

6.37 Except where:

(a) it is or may be necessary for the court to carry out a detailed assessment of costs payable to the Client by another party to the proceedings; or

(b) having regard to interests of the Client and public funds, the weight or complexity of the case and all the other circumstances, we consider it appropriate to direct that the costs be subject to detailed assessment,

your Claim for payment for Licensed Work will be assessed by us.

6.38 A direction under Paragraph 6.37(b) may relate to an individual case or to any class of case, identified by the level of costs to be assessed or otherwise. In cases where costs are to be subject to assessment by the court, detailed assessment proceedings must be commenced within the time specified in the Civil Procedure Rules.

 

  • If the LAA’s submissions are correct then that would seem to represent a significant narrowing of the scope of s.51(6) in a case involving a legally aided solicitor. It would mean that although under s.51(6) the court could order a legally aided party’s solicitor to pay another party’s wasted costs, the court would have no power to disallow any wasted costs incurred by that same solicitor.
  • I note that neither the Standard Civil Contract 2013 specification: General Rules (section 1-6) (July 2015 amendment), or the Standard Civil Contract 2013 specification: Family category specific rules (section 7) (July 2015 amendment) refer to the court’s powers under s.51(6). With all due respect to the LAA, it seems to me that the key to understanding paragraphs 6.37 and 6.38 of the Standard Contract Specification is to be found in the heading: ‘Court assessment’. Those paragraphs deal with the question ‘who should assess my costs’. Section 51(6) addresses a completely different issue. Section 51(6) provides a power to penalise a solicitor as a result of whose conduct ‘wasted costs’ are incurred (whether another party’s costs or his/her own costs).
  • It is my preliminary view that the court’s power to make a wasted costs order is not confined in the way suggested by the legally aided solicitors and by the LAA. However, I am satisfied that in this case it is possible to dispose of the wasted costs issue without determining those points. That said, in my judgment the LAA’s arguments do raise important issues which need to be authoritatively addressed.

 

This disallowing of costs to a publicly funded solicitor can easily move a case from barely profitable to making a loss for the firm. Not to mention the absolute headache with the Legal Aid Agency in recovering the money. Does anyone actually benefit from this at all? Haven’t we just spent a huge amount of money arguing about this issue? Not to mention any costs of a potential appeal, given the wider implications for solicitors across the country?

In a concluding paragraph, the Judge bemoans the increase in demand by additional care proceedings on the Court service and that no additional resources have been provided, whilst ignoring that the very same thing applies to all of the other parties to the case.

 

Conclusion

 

  • Statistics show that in recent months, nationally there has been a significant increase in the number of new care proceedings issued. Cafcass statistics show that over the ten months from 1st April 2015 to 31st January 2016 the number of new care proceedings issued was up by almost 13% on the previous year. During that same period The Family Court in Leicester experienced a 39% increase in new care cases – three times the national average. That increase in workload has not been matched by any increase in court resources. I make that point simply to underline the fact that court time is a precious resource. The court can ill-afford contested hearings being vacated because of the failure of one or more of the parties to comply adequately with the obligations placed upon them by the rules and by case management orders made by the court.
  • In this case I am satisfied that the solicitors for all four parties are responsible for the errors identified. All four were responsible for the wasting of court time and for the wasting of costs. I have identified wasted advocacy costs incurred by the legally aided parties amounting to £5000. I shall make a wasted costs order against the local authority requiring it to pay 50% of that sum, £2,500. I have also identified that the local authority has incurred wasted advocacy costs of £1950. I shall make wasted costs orders against the solicitors for the legally aided parties jointly to pay 50% of those costs (£975 i.e. £325 per solicitor).

 

Of course there were failings here, and it would have been markedly better had the Local Authority involved raised with the Court and the parties their concerns that the police disclosure was incomplete and missing important documents. Was this, however, a proportionate response to the difficulty? I am sure that all lawyers have experience of arriving at Court for a final hearing with time and money spent in preparing a case only to find that the case is double-listed or insufficient time is available – the parties in those cases – of which there were very very many, did not attempt to demand that the Court Service pay their wasted costs.

 

I note that the Judge here refers to the Norgrove report on Family Justice.  Perhaps it is useful to bear in mind this passage of the report.

 

Our recommendations are intended to restore the respective responsibilities of courts and local authorities. But to change the law does not tackle the root cause
of the difficulties. This stems we believe from a deep rooted distrust of local authorities and unbalanced criticism of public care, as discussed in paragraphs
3.21 – 3.26 above. This in turn fuels dissatisfaction on the part of local authorities with the courts, further damaging relationships.
3.46.The result is that the relationship between local authorities and courts can verge on the dysfunctional. For the system to work better it is not acceptable for each
group to sit on the sidelines and criticise the other. A failure in one part of the system must be seen to be a failure of all. Courts and local authorities, and other
professionals, should work together to tackle this at a national and local level.
The report was published in 2011.  When one reads the judgments over the last few years, 2011 starts to look like a golden era of co-operation and trust between the different stakeholders in Family Justice. I would gladly roll the clock back to 2011 in that regard.

[I would also deprecate the habit in this judgment of the use of (sic) for what are clearly utterly minor typographical errors in emails sent by the Local Authority – emails are documents which are typed in haste, particularly when trying urgently and desperately to resolve a pressing problem and (sic) is an uncalled for dig. I also note that the Judge did not apply the same (sic) standard to emails received from counsel, which had similar minor typographical errors.  I also note that this case was listed for a fact finding hearing despite the allegations being substantially short of the Court of Appeal guidance as to when a separate fact finding hearing should be heard…]

 

 

 

The ‘evidence of domestic violence within 2 years’ Regulation found unlawful

I am struggling to think of a piece of legislation that has had as many successful challenges to the legality of Regulations issued under it as the much-beloved LASPO  (Legal Aid, Sentencing and Prosecution of Offencers Act 2012)

The particular Regulations here are Regulation 33 of the Civil Legal Aid (Procedure) Regulations 2012

LASPO sets out that being a victim of domestic violence can be a reason for the provision of free legal representation.  The sense of this is that where someone has been the victim of domestic violence, it would be abusive and damaging for the State to make them face the perpetrator in Court without a lawyer to represent them.  [Note that this provision still only applies within financial limits – below a specified income and capital the State should pay for that, above that and the individual would have to pay for it themselves, regardless of whether the legal representation is actually genuinely affordable on that income]

There is, of course, an entirely separate debate about whether someone who is accused of perpetrating domestic violence should be entitled to free legal representation to defend the allegations (at least until the Court has determined the truth of the allegations), but that’s beyond the scope of this case.  [For my part, I think that LASPO should have provided for that, but it doesn’t]

Regulation 33 sets out that in order to show that you are a victim of domestic violence, you need some documentary evidence of that to get legal aid, and that the evidence must be within the last 24 months.

This 24 month rule was challenged.  [Note that although the application was brought by a group lobbying for women’s rights, men of course can also be the victims of domestic violence and abuse, and this case applies to men as well]

Rights of Women, R (on the application of) v The Lord Chancellor and Secretary of State for Justice [2016] EWCA Civ 91

http://www.bailii.org/ew/cases/EWCA/Civ/2016/91.html

 

Whilst the judgment is fairly long and involves some rather nuanced discussions about Padfield unfairness versus Wednesbury unreasonableness, the case can be condensed into these short passages

 

  1. Ms Lieven submitted that the evidence shows (as practitioners in the Family Division know from their own experience) that there are many situations in which victims of domestic violence find themselves at the receiving end of legal proceedings not merely more than 24 months after incidents of domestic violence have occurred but more than 24 months after it is practical to obtain the kind of verification required by regulation 33. Examples of such cases are:-

    i) the perpetrator may have been in prison; once he (it is almost always he) is released, he may initiate proceedings for child contact or divorce and financial settlement; regulation 33(2)(a) can only be relied on if the conviction preceding the prison sentence is a relevant conviction for a domestic violence offence and if it is unspent; if the sentence is a fine or a community order, the conviction will be spent after only 12 months from the date of conviction or from the last day the order is to have effect;ii) there may have been a non-molestation order (or other form of injunction) which has kept the parties apart for 2 years but has expired before legal proceedings are begun;

    iii) a similar period of separation may have occurred for other reasons such as the receipt of a police caution or other police involvement; criminal proceedings may have been instituted which do not result in a conviction; such non-convictions occur for many reasons other than that the alleged perpetrator is innocent;

    iv) there is no time limit for the initiation of proceedings for child contact; a refusal of child contact does not prevent a re-initiation of proceedings which can therefore be served again on the victim of domestic abuse after the expiry of the two year period. Additionally, the court can direct, pursuant to section 91(14) of the Children Act 1989, that no such proceedings shall be begun without permission of the court for a period until the expiry of the two year period in which domestic abuse could be verified in accordance with the Regulations; if the Court also directs that any application for permission is not to be served on the respondent, a victim of domestic abuse may receive no notice of prospective proceedings within the relevant period in which she may otherwise take steps to obtain verification;

    v) The main priority of any victim of domestic violence will be to make immediate arrangements for her personal safety and that of her children; this may take a considerable time particularly if the abuse was prolonged or the marriage was originally a forced one; any proceedings sought to be brought by the victim for divorce or financial relief may well be more than 24 months after any practical ability to obtain verification has passed;

    vi) although the definition of domestic violence extends beyond physical abuse to psychological or emotional abuse, the verifications required by regulation 33 are much more easily satisfied where there has been physical abuse than where there has been psychological or emotional abuse. This means that even though signs of psychological or emotional abuse may persist longer than sign of physical abuse, there is considerable difficulty for the victim in obtaining the necessary verification after any lapse of time; and

    vii) victims of financial abuse will not be able to obtain any of the verifications required by regulation 33 at all. (The only answer Mr Sheldon could give to this last point was the inadequate one that victims of financial abuse could always be expected to show evidence of psychological abuse).

  2. This is a formidable catalogue of areas of domestic violence not reached by a statute whose purpose is to reach just such cases. But does it go so far as to show that the 24 month requirement has no rational connection with the statutory purpose?
  3. In my judgment it does. There is, as Ms Lieven submits, no obvious correlation between the passage of such a comparatively short period of time as 24 months and the harm to the victim of domestic violence disappearing or even significantly diminishing. No doubt the 24 month requirement serves the purposes of the statute as the Divisional Court considered them to be but as I have said those purposes are not the only purposes of the statute. Once it is accepted that part of the statutory purpose is to ensure that legal aid is available to (at any rate the great majority of) sufferers from domestic violence, one has to ask why it is that so many of them are excluded by virtue of the 24 month rule. Mr Parsons’ assertion that “the time limit provides a test of the on-going relevance of the abuse” does not justify the many excluded instances or the lack of any opportunity for victims of domestic violence to explain why it would be unjust to apply the time limit to their particular case. It operates in a completely arbitrary manner

 

And then

 

I would therefore allow this appeal and, subject to any further argument about the detail of the form of order, in principle declare that regulation 33 is invalid insofar as it

a) requires verifications of domestic violence to be given within a 24 month period before any application for legal aid; and

b) does not cater for victims of domestic violence who have suffered from financial abuse.

A cynical person might say about LASPO that Parliament when considering this Act were rightly very troubled by the original legislation and the lack of protection for certain vulnerable groups, which was why some safeguards were inserted into the final version of the Act, and that the Legal Aid Agency and Ministry of Justice have systematically attempted to erode those safeguards by Regulations (which have been successfully challenged) and guidance on implementation (which has also been successfully challenged).

In effect, Parliament agreed to trade in the car that they owned for a greatly inferior but still safe model to save cash, and agreed to let the Minister have a copy of the car keys, in case he or she needed to tune up the car or valet the inside at any time (the power to make Regulations).

 Then the Minister snuck off in the night, used the keys and removed the brakes, seatbelts, speedometer, and airbags that would make the inferior car still safe to drive.

The Courts have ordered these safety measures to be reinstalled. But so far, each individual bit of ministerial pilfering has had to be dealt with one at a time. I hope that MPs are keeping up to date with the bad-faith approach to LASPO and will approach any future legislation with a much more cynical eye on giving Ministers the car keys in the future.

Payment of a contact supervisor – private law

This may crop up again in private law cases, and is important therefore for Judges, lawyers, parents and very importantly Independent Social Workers and contact supervisors to know about.

In Re D (Children) 2016

http://www.bailii.org/ew/cases/EWCA/Civ/2016/89.html

There was a decision at an interim stage that father’s contact needed to be supervised. An order was made for six sessions of supervised contact and that the father should pay for an ISW to supervise this contact. When the bill arrived, father considered it excessive and only paid some of it, leaving an amount outstanding.

As part of the appeal on other issues, the Court of Appeal had to consider the Judge’s final order in the private law proceedings which was that father must pay the ISW’s bill in full.  The father argued that the family Court had no jurisdiction on that issue, that this was a contractual dispute between him and the ISW and would have to dealt with as a contractual dispute, not within the family Court.

The legal argument was whether s11 (7) of the Children Act 1989 which allows a Court to set conditions about contact is sufficiently broad to allow a Court to rule that not only must contact be supervised, but who is to pay for the supervision, and how much.

 

 

  • Finally, I turn to the issue of the outstanding invoice submitted by Ms Barrett, the ISW, for services in connection with the supervision of contact pursuant to the order of 10th January 2014.
  • By that order, in which she directed the initial six sessions of supervised contact, the recorder ordered that the costs of the instruction of the ISW should be borne by the father, adding (“for the avoidance of doubt”) that the relevant costs would cover time spent in reading the relevant documents (identified by her as all the judgments save that as to costs, and the reports of all the professionals and experts in the court bundle); the cost of supervision; the cost of preparing sessional contact reports; and the costs of attending the subsequent review hearing if required by any party. Following that order, Ms Barrett was instructed and a letter of instruction sent by NYAS. As already described, contact duly took place, although the arrangements subsequently broke down. On 7th August 2014, Ms Singleton of NYAS forwarded the ISW’s invoice to the father. He replied the following day raising objections to a number of items on the invoice, and proposing that the sum payable should be reduced by £355. At the hearing on 14th November 2014, the recorder directed that the issue in respect of the outstanding invoice be adjourned to and dealt with at the final hearing. In respect of the two further contact sessions then ordered, the recorder directed that the father was to be responsible for meeting the ISW’s costs “which, in relation to these 2 contact sessions only, are to be limited to the supervision of 4 hours of contact (8 hours in total), the ISW’s travel time, and 1 hour of contact report writing in respect of each session (total 2 hours)”. The recorder further directed that NYAS was to be responsible for invoicing the father in respect of these further costs by 1st December; that the father was to pay the further invoice by 5th December (i.e. in advance of the contact); that upon receipt of the cleared funds NYAS was to inform both parties at once so that contact could take place as directed; and that, if the father failed to comply with the directions as to payment, the mother was to be released from her obligation to make the children available for contact. Following these tightly-drafted directions, a further invoice was duly submitted and paid in advance, and as already described the further contact sessions took place as directed.
  • At the hearing in February 2015, the recorder heard evidence and submissions from the parties (though not from the ISW, who did not give oral evidence at the hearing) on the disputed invoice. She dealt with this issue in the following brief passage towards the end of her judgment at paragraphs 105-6:

 

“105. The father has paid some but not all of the costs. In my judgment, he should pay all of Ms Barrett’s outstanding fees. Having been invoiced, [the father] took on the role of taxing master (a judge who decides on which costs in a case have been reasonably incurred), he told me he didn’t think that Ms Barrett was ‘cooking the books’ but that in relation to some items she had for example claimed an excessive amount of travel time, or for time spent writing her report. The invoice was rendered in August 2014 in the sum of £812.80, [the father] has paid £197.80. The balance to be paid within 28 days.

106. I have been told that Ms Barrett made no charge for all the work she undertook in trying to set up the contact on the 28th July 2014. I don’t mention that because it affects my decision in the slightest, but I think this reflects on the sort of person Ms Barrett is and why it is especially sad that she has withdrawn from being the supervisor.”

 

  • In his skeleton argument for this hearing, Mr. Rowbotham submitted that the recorder’s order that the father should pay the ISW’s costs was wrong and outwith her jurisdiction. Unless the ISW fell within the category of expert (which he submitted she did not), the obligation to pay her was purely contractual and therefore only enforceable in the county court. He submitted that the powers conferred by statute on the family court do not include the power to make orders for payment for services by a party to a non-party. In the alternative, he submitted that, even if the family court had such powers, the recorder was wrong to dismiss the father’s objections summarily. The concerns raised by the father were legitimate, and in declining to deal with them, the recorder failed to act in a way that was just or proportionate.
  • In reply, Mr. Wilkinson for the mother submitted that the order was no more than enforcement of previous orders; that the court’s powers under s.11(7) of the Children Act 1989 to attach conditions to a s.8 order are broad enough to encompass a requirement to pay the costs of contact supervision, and that, as the order was made at a hearing at which the father was present and where he did not object to such payment, he could not now be heard to say that he should not pay a sum which has been assessed as reasonable by the court. On behalf of the guardian, Mr. Fitzpatrick acknowledged that the recorder did not address the issue of jurisdiction to make the order, but submitted that a prospective appellant should first seek elaboration from the judge as to the jurisdictional basis for the decision. He further submitted that, in all the circumstances, including the fact that she was required by the order of 10th January 2014 to write a report as to each contact session, that the ISW was acting as an expert so that her remuneration fell within the court’s jurisdiction under Part 25 of the Family Procedure Rules. He further suggested that the court might think it a “grossly inequitable outcome” if the ISW were out of pocket as a result of the father’s non-payment or if NYAS, as a registered charity, felt obliged to reimburse the ISW from its income.
  • I have much sympathy with the recorder having to deal with this comparatively minor issue at the conclusion of another difficult hearing in these long-running proceedings which she has handled adroitly and sensitively. On this occasion, however, I consider that she fell into error. It seems that she was not addressed on the question of jurisdiction and it is not clear from her judgment exactly what jurisdiction she thought she was exercising. Her disapproving reference to the father taking on the role of a taxing master suggests that she proceeded on the basis that he was obliged to pay the invoice without demur. Given the father’s conduct throughout the proceedings, her approach was perhaps understandable but in my view mistaken. As the basis on which the ISW was to be remunerated was not precisely specified by the terms of her instruction, the father was entitled to challenge her invoice if he considered it excessive and, unless the dispute can be resolved by some other means, he is entitled to have his challenge judicially determined by a court with jurisdiction rather than summarily dismissed.
  • I reject the submission that the ISW was acting as a court-appointed expert. Although an ISW is capable of acting in that capacity, Ms Barrett was not doing so in this case. Accordingly, any power the family court may have under Part 25 to determine issues as to the payment of experts is irrelevant. S.11(7) of the Children Act provides inter alia that a section 8 order may contain directions about how it is to be carried into effect, impose conditions which must be complied with by any person in whose favour the order is made, or who is a parent of the child concerned, and make such incidental, supplemental or consequential provisions as the court thinks fit. The broad terms of this subsection enable a court to lay down precise and comprehensive terms concerning the payment of costs of supervising contact. That is indeed what the recorder did in her subsequent order of 14th November in which she not only fixed the number of hours for which the ISW could charge but also provided for payment in advance to avoid any further issue arising after the event. The earlier order of 10th January, however, whilst containing a number of details, did not specify precisely the hours to be taken on each item, and therefore left open the possibility of a dispute if the party responsible for paying the costs objected to the number of hours taken by the ISW. Although s.11(7) enables the court, when making an order for contact, to specify conditions as to payment of the costs of supervision, it does not in my judgment invest the court with jurisdiction to resolve a subsequent dispute about those costs, at least when the dispute is with a non-party.
  • I accept Mr. Rowbotham’s submission that the obligation to pay the ISW was contractual, but although this court was shown the letter of instruction, the information contained therein was insufficient to identify with confidence the terms of, or parties to, the contract. I also accept Mr. Rowbotham’s submission that the family court’s jurisdiction, as defined in s.31A of the Matrimonial and Family Proceedings Act 1984, and schedules 10 and 11 of the Crime and Courts Act 2013, is confined to family proceedings and does not include jurisdiction to resolve any contractual dispute involving a third party. If the contract was between the ISW and the father, such a dispute must be determined under the small claims procedure in the county court, unless resolved by agreement or alternative dispute resolution. In such circumstances, the family court would have no role to play. If, however, the contract was between the ISW and NYAS, then NYAS would be entitled to seek reimbursement from the father within the family court proceedings of sums paid in respect of the invoice by seeking to enforce the terms of the order of 10th January, at which point it would be open to the father to ask the court to reduce the sum payable by him to NYAS on the grounds that it was unreasonably high.
  • Accordingly, on this issue, I would grant permission to appeal and allow the appeal. Pursuant to CPR 52.10(2)(b), I would refer the matter back to the recorder for determination of the following issues: (1) the identity of the parties to, and terms of, the contract for the services of the ISW as contact supervisor pursuant to the order of 10th January 2014; (2) if the contract was between the ISW and NYAS, what order, if any, should be made by way of enforcement of the order, having regard to the father’s challenges to the invoice; (3) alternatively, whether the application for enforcement of the order should be stayed pending resolution of any contractual dispute. Given the small sum involved, it would be preferable, if possible, for any contractual claim and any application for enforcement of the order in the family court to be resolved by the same judge. On any view, however, it plainly makes sense for the parties and the ISW to attempt to resolve this issue by some means that avoids any further legal costs.

 

Whilst a Court order could stipulate payment to an ISW for supervision of contact under s11(7), if it is going to do so, it is going to need to stipulate in detail the exact sums to be paid and for what. If there ends up being a dispute about payment, the family Court don’t have jurisdiction to resolve that dispute. [Though it could be reserved to the same Judge, sitting with a different hat on, with a different application to resolve]

That could still end up being costly and protracted, so, if you are doing ISW contact supervision work, get paid up front.

 

The Costa dignity…. Financial abuse case

These cases always stir up my blood, and I ranted at my colleague sitting next to me about this one.

 

Re AH 2016

http://www.bailii.org/ew/cases/EWCOP/2016/9.html

 

In this one, a 95 year old woman, living in a care home and lacking capacity, had appointed her niece’s husband  Colin (is that a nephew-in-law?) to manage her affairs under a Lasting Power of Attorney in 2011.

[One might doubt, from the facts given that she had capacity to enter into that LPA in 2011, when she’d have been 90 years old. Not terribly reassured that The person who certified that Alma had capacity to create the LPA owns a hotel in the New Forest. He said that “Alma has been a personal friend of mine over the past 25 years and has always popped in to see me on her visits to the New Forest.”  ]

Since running her affairs for her, Colin has run up a debt of £100,000 on her nursing fees. He has withdrawn nearly £30,000 from her account. He has purchased a house and put it into her name  (hardly for her benefit, since she’s never going to live in it)

During that time, he has given her the princely sum of £260 of personal allowance. That equates to less than £10 per month – or about £2 per week. Generously, he has sent her about 1% of the money that he took out of her account.

(e) Mixing of funds. Alma and Colin have a joint bank account with Virgin Money. The table within the bundle highlights fifteen ‘concerning’ outgoings which remain unexplained and which were clearly not purchase made on Alma’s behalf including debits to the Odeon cinema, the Wilton Arms Hotel, Toby Carvery and Costa Coffee. Upon his appointment as Alma’s attorney, by continuing to have a ‘mixed account’, Colin breached his duty to keep Alma’s money separate from his contrary to paragraph 7.68 of the Code and has behaved in a way that is not in Alma’s best interests in breach of section 4 of the Act. Attorneys must, in most circumstances, keep finances separate to avoid the possibility of mistakes or confusion and this is not a situation of a husband acting as his wife’s attorney (for example) which might render the presumption to be rebutted.”

 

It doesn’t seem likely that this 95 year old woman, living in a nursing home in Oldham was out visiting the Odeon cinema and drinking coffee in Costa in the New Forest…

 

  1. Decision
  2. The Court of Protection General Visitor, who saw Alma on 19 January 2015, observed that she “has no verbal communication and her dementia is so advanced that she is unable to demonstrate any understanding of her needs or her environment.”
  3. I have no reason to doubt what the Visitor says and, on the balance of probabilities, I am satisfied that Alma lacks capacity to revoke the LPA.
  4. Colin’s management of her property and financial affairs has been a litany of failings.
  5. He failed to pay the nursing home fees and thereby put her placement in jeopardy.
  6. The nursing home had difficulty contacting him. He failed to reply to their letters and failed to return their calls.
  7. He failed to provide Alma with an adequate personal allowance. The stingy sum he did deign to pay her (£290 over 2½ years) amounted to less than £10 a month.
  8. Her clothes are old and worn and mostly hand-me-downs from former residents who have died or moved elsewhere.
  9. The Court of Protection Visitor concluded her report by saying that: “Alma would benefit from a full wardrobe of new clothing. In addition, she is reported to have loved to dance when she was mobile. The nursing home has provided a CD player but Alma would benefit from having her own music player and a range of CDs.”
  10. Colin failed to provide her with even these modest luxuries that could have enhanced her quality of life.
  11. He failed to account to the OPG. In fact, he failed to keep any accounts at all.
  12. He failed to produce bank statements.
  13. He failed to explain how he had managed to spend £29,489 of her money.
  14. He failed to act with honesty and integrity.
  15. He failed to keep Alma’s money separate from his own.
  16. And he failed to treat her with any semblance of dignity, empathy or respect.
  17. Having regard to all the circumstances, therefore, I satisfied that Colin has behaved in a way that contravenes his authority and is not in Alma’s best interests, and I shall revoke the LPA without further ado.

 

In the event that the police ever start prosecuting people like this for fraud or obtaining money by deception, I am more than willing to serve on a jury. Failing that, I hope the Devil has a Costa Coffee franchise in Hell, and that the Odeon there shows nothing other than “Failure to Launch” on rolling repeat.