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Human rights, damages and costs – important case

Not sure this is the last nail in the coffin of HRA damages claims piggy-backing on care proceedings, but the bag of nails certainly isn’t full any more.

Be grateful it is nails. As the LA is Kirklees, I've been trying to think of a Shatner reference...

Be grateful it is nails. As the LA is Kirklees, I’ve been trying to think of a Shatner reference…

 

The High Court have given judgment in Re CZ (Human Rights Claim:Costs) 2017

http://www.bailii.org/ew/cases/EWFC/HCJ/2017/11.html

 

The fact that there was a breach is impossible to deny and the LA accepted it. (Even looking at the recent steer from the Hackney authority that failure to follow guidance does not amount without more to an actionable claim, this one goes far beyond that)

12.CZ was born by emergency caesarean section at X Hospital on 6 November. It was a traumatic birth and CZ was for a short time placed on the Special Care Baby Unit (‘SCBU’). The baby was slow to feed, and showed temporary normal post-birth weight loss. That said, no child protection concerns were raised by the staff on SCBU nor on the ward to which he was discharged.

13.On 10 November 2015, the Local Authority received a referral from the X Hospital maternity ward; concerns were raised regarding the long-term parenting capacity of this mother and father. It was suggested that the mother had no family support, and that the father was expressing unorthodox views about the need for sterilisation of bottles, and the benefits of formula milk. It was nonetheless noted, in the referral, that the paternal grandmother of the baby was being supportive to the couple and was planning to move in with them at least in the short-term after discharge from hospital.

14.On the following day, 12 November 2015, the maternity ward staff reported to the social worker that CZ had put on weight, but that they remained concerned about the feeding plan and wished to monitor him further. The social workers did not visit on this day.

 

15.On 13 November 2015, the social worker visited the hospital at about lunchtime and was advised by staff that CZ had again gained weight; the staff had no further concerns about the baby, who was reported to be well enough to be discharged. This was, indeed, planned for later that day.

The LA made an application on 13th November 2015 on short notice to Court for an ICO. The parents did not attend that hearing. The LA assured the District Judge three times that the parents had been informed of the hearing. They also assured the District Judge that the parents agreed with the plan for the child to be placed with grandparents. A Guardian did not attend (the LA emailing CAFCASS minutes after the hearing apologising for forgetting to notify them)

 

It turned out that the parents had NOT been informed of the hearing. They had been told by the social worker that the LA planned to start care proceedings but not that there was a hearing imminently and when it was. Whilst the mother had agreed s20 accommodation, the father had not.

At a hearing on 20th January 2016, the parents through their solicitors gave notice that they wanted to challenge the ICO. At a hearing on 27th January 2016, the LA attended and set out that they did not consider that the threshold criteria was met any longer and sought to withdraw their application. The proceedings ended and the child returned to the parents.

The HRA claim was made on the basis of breaches of article 6 and article 8.

33.The Local Authority concedes that I should make the following declarations:

  1. i) It breached the parents and child’s right to a fair trial, pursuant to Article 6 ECHR when it failed to inform them and/or Cafcass of the urgent hearing which was held at 3p.m. on Friday 13 November 2015; this breach is compounded by the fact that the Local Authority repeatedly informed the court that the parents had been so notified;
  2. ii) Between 13 November 2015, and, at the latest, 7 December 2015 (the next hearing date), the Local Authority breached the rights of those named above to a family life as enshrined in Article 8 ECHR. The parents did not live in the same household as their son for that period albeit they enjoyed extensive contact to one another. The child was placed with the paternal grandparents in their home.

These concessions were made at an early stage of the process, and were shared with the court on 14 July 2016,

 

Cobb J ruled that :-

41.In this case, I am satisfied that the breaches of the Claimants’ ECHR rights were serious, a view which I expressed in the presence of the lay parties at the hearing. This was plainly not an exceptional case justifying a ‘without notice’ application for removal of a baby from the care of his parents (see Re X (Emergency Protection Orders) [2006] EWHC 510 (Fam), and it is questionable whether there was a proper case for asserting that CZ’s immediate safety demanded separation from his parents at all: Re LA (Children) [2009] EWCA Civ 822. The failure of the Local Authority to notify the Claimants that the hearing was taking place on the afternoon of 13 November was particularly egregious; misleading the District Judge no fewer than three times that the parents knew of the hearing aggravates the culpability yet further. This infringement will rightly be subject of a declaration of unlawfulness (see above), and to a very great extent this represents the essential vindication of the right which they have asserted.

42.The separation of a baby from his parents represents a very substantial interference with family life, and requires significant justification. In this case, my assessment of the seriousness of the interference has been moderated by two facts: first, because the actual arrangement effected under the interim care order, with CZ living with the paternal grandmother for the period while the parents enjoyed virtually unrestricted contact, was a variation of a plan which the parents had formed with Health Professionals prior to and following the birth in any event, namely for the paternal grandmother to reside with them for that period, and secondly, because once the parents and Cafcass obtained legal representation and were able to consider the situation with legal advice, none of them sought to challenge the living arrangement immediately and did not in fact do so until 20 January 2016.

 

 

The fundamental issue here was that the damages sought amounted to just over £10,000 and because they arose out of care proceedings, in order for the parents and child to receive a penny of those damages those representing them also sought costs orders not only for the HRA claims but for the care proceedings.

 

That is because the statutory charge bites on the damages, not only for the HRA claim costs (which is sensible) but for the care proceedings (which is hard to explain, but it is clear that it does).

section 25 LASPO 2012; this statutory provision reads:

 

 

 

 

“25 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.

(2) Those amounts are—

(a) amounts expended by the Lord Chancellor in securing the provision of the services (except to the extent that they are recovered by other means), and

(b) other amounts payable by the individual in connection with the services under section 23 or 24″.

 

The total costs were £120,000.   (To be fair, Cobb J has included the LA’s costs within that calculation, and the LA would be paying their own costs in any event. So the costs are really £80,000)

You do not have to be a hot-shot civil lawyer to suspect that spending £80,000 to recover £10,000 is not a viable proposition.

Cobb J considered this case in a very detailed way and said some very important things.

 

  1. The cunning solution in P v A Local Authority [2016] EWHC 2779 (Fam) http://www.bailii.org/ew/cases/EWHC/Fam/2016/2779.html , a case in which Keehan J found a way of facilitating the grant of the award of damages to the Claimant in such a way that it was unaffected by the LAA’s statutory charge. On the facts of that case, the applications under the HRA 1998 and under the wardship were quite separate and unconnected; he said this: “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” [71] (emphasis added).

Did not work here, and would not work in the majority of the HRA claims that we are concerned with, since they did arise out of the care proceedings or a prelude to them (s20)

 

 

  1. The fact that s25 LASPO meant that the statutory charge swallows all the damages does not mean that the Court is pushed into HAVING to make an award of costs to ensure that the claimant gets something.58.I reject the Claimants’ arguments on this first basis for the following reasons:  i) I do not accept that the very wide discretion afforded to me under section 8(1) has to be condensed to one option only (i.e. to make a substantive award of costs) simply in order to achieve a ‘just’ outcome under section 8(3);ii) If it had been the intention of Parliament that damages awarded under the HRA 1998 would be exempt from the statutory charge, it would have provided for this in the revised Statutory Charge Regulations (2013); it did not; iii) Most awards of damages would be likely to be reduced to some extent by the incidence of assessment/taxation of the litigant’s own bill. While this may not apply so harshly to publicly funded litigants, it seems to me that the Claimants could not be insulated against the eventuality that the shortfall in any assessment would in itself lead to the obliteration of a modest award of damages;iv) The award of non-pecuniary damages under section 8(3) is intended to reflect the Court’s disapproval of infringement of the claimants’ rights, in providing “just satisfaction” to the claimant; it is not intended to be, of itself, a costs award. I would regard it as unprincipled to increase the award of damages by a significant sum (which on the instant facts could be approximately seven-fold) to reflect the costs of the proceedings. Parliament has devised a legitimate mechanism for the recovery of the costs incurred from those who benefit from state-funded support to pursue their litigation, and however unfairly it may operate in an individual case, it must be respected;
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  8. He tackles the principle of financial damages over and above the declaration of breach of human rights.  39.In deciding (i) whether to award damages, and/or (ii) the amount of an award, I must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention (Article 41, though not incorporated into English law, deals with ‘just satisfaction’). It is not necessary for me to review the significant European or domestic case-law on this point, more than to identify the following extracts from speeches and judgments on the point which have guided my views:  i) The Court of Appeal (Lord Woolf CJ, Lord Phillips MR and Auld LJ) in Anufrijeva v Southwark London Borough Council [2003] EWCA Civ 1406, [2004] QB 1124, [52-53], and [57-58]: “The remedy of damages generally plays a less prominent role in actions based on breaches of the articles of the Convention, than in actions based on breaches of private law obligations where, more often than not, the only remedy claimed is damages. … Where an infringement of an individual’s human rights has occurred, the concern will usually be to bring the infringement to an end and any question of compensation will be of secondary, if any, importance” [52/53].
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  12. 38.An award for damages for infringement of Convention Rights is warranted where the court concludes that it is “necessary to afford just satisfaction to the person in whose favour it is made” (section 8(3) HRA 1998). There is no specific formula or prescription for what amounts to “just satisfaction”, but in considering the issue, statute requires me to consider “all the circumstances of the case” including any other relief or remedy granted (including the grant of a declaration, and I suggest a formal apology) and the consequences of any decision of the court.

 

I interject here, to say that this is not the way that damages claims under the HRA in care proceedings has been developing, and it is a noteworthy reminder.

 

 

“Our approach to awarding damages in this jurisdiction should be no less liberal than those applied at Strasbourg or one of the purposes of the HRA will be defeated and claimants will still be put to the expense of having to go to Strasbourg to obtain just satisfaction. The difficulty lies in identifying from the Strasbourg jurisprudence clear and coherent principles governing the award of damages….”

 

 

And then quoting from the Law Commission:

 

 

“Perhaps the most striking feature of the Strasbourg case-law, … is the lack of clear principles as to when damages should be awarded and how they should be measured”. [57/58]

 

  1. ii) Lord Bingham in Regina v. Secretary of State for the Home Department (Respondent) ex parte Greenfield [2005] UKHL 14, [2005] 1 WLR 673 at [9] and [19],

 

 

“The routine treatment of a finding of violation as, in itself, just satisfaction for the violation found reflects the point already made that the focus of the Convention is on the protection of human rights and not the award of compensation.” [9]

 

 

“The Court [in Strasbourg] routinely describes its awards as equitable, which I take to mean that they are not precisely calculated but are judged by the Court to be fair in the individual case. Judges in England and Wales must also make a similar judgment in the case before them.” [19]

 

iii) Lord Reed in R (o.t.a. Faulkner) v. Secretary of State for Justice [2013] UKSC 23 at [13](4)/(7):

 

 

“(4) [T]he quantum of awards under section 8 should broadly reflect the level of awards made by the European court in comparable cases brought by applicants from the UK or other countries with a similar cost of living

 

 

(7) The appropriate amount to be awarded in such circumstances will be a matter of judgment, reflecting the facts of the individual case and taking into account such guidance as is available from awards made by the European court, or by domestic courts under section 8 of the 1998 Act, in comparable cases”.

 

  1. iv) And in a passage which directly chimes with the facts of this case, Wilson LJ in Re C (Breach of Human Rights: Damages) [2007] EWCA Civ 2, [2007] 1 FLR 1957 at [64]

 

 

“… the European Court generally favours an award of damages in cases in which local authorities have infringed the right of parents under Article 8 to respect for their family life by shortcomings in the procedures by which they have taken children into care or kept them in care, whether temporarily or permanently” [64]

40.I further take account of the Practice Direction issued by the President of the European Court of Human Rights (2007; re-issued September 2016) on ‘just satisfaction’:

 

 

 

 

“The purpose of the Court’s award in respect of damage is to compensate the applicant for the actual harmful consequences of a violation. It is not intended to punish the Contracting Party responsible. The Court has therefore, until now, considered it inappropriate to accept claims for damages with labels such as “punitive”, “aggravated” or “exemplary”.” [9]

 

 

“It is in the nature of non-pecuniary damage that it does not lend itself to precise calculation. If the existence of such damage is established, and if the Court considers that a monetary award is necessary, it will make an assessment on an equitable basis, having regard to the standards which emerge from its case-law.” [14]

 

 

“Applicants who wish to be compensated for non-pecuniary damage are invited to specify a sum which in their view would be equitable. Applicants who consider themselves victims of more than one violation may claim either a single lump sum covering all alleged violations or a separate sum in respect of each alleged violation”. [15]

 

It is convenient to cite here also what is said in the Practice Direction (at [17]) about costs and expenses (to which I make reference at [58(vi)] below):

 

 

“The Court will uphold claims for costs and expenses only in so far as they are referable to the violations it has found. It will reject them in so far as they relate to complaints that have not led to the finding of a violation, or to complaints declared inadmissible”.

 

And thus that damages are not a natural consequence of an identified breach – the claimant must specify what damages they seek and why they are sought. Why are the breaches such that only an award of damages will provide ‘just satisfaction’?

 

(I will return to this, because if the damages are just going to the LAA because of the stat charge, HOW CAN the claimant really argue that the award is to provide ‘just satisfaction’? On the face of it, all that is achieved is punishing the public body by making them write a cheque to the LAA, and that’s specifically ruled out by para 9 of the Practice Direction…)

 

Note however, what Wilson LJ said in Re C, quoted above, that the ECHR does make damages awards where the breaches have caused a parent to lose their child, “whether temporarily or permanently”

 

  1. Awarding costs of the care proceedings due to egregious conductCobb J ruled that the LA had conducted part of the proceedings in a way that triggered a justification for a costs order under the Supreme Court guidance in Re S and Re T, but not the whole of the proceedings, and the costs order should be limited to that.
  2. 67.In relation to the costs of the CA 1989 proceedings, the Claimants have failed to demonstrate in my judgment that the Local Authority behaved “reprehensibly” or “unreasonably” otherwise than in the circumstances in which it launched the proceedings and conducted the hearing on 13 November. This had ramifications (i.e. the placement of CZ away from the parents’ care) until 7 December. In my judgment, applying ordinary costs principles, the Claimants would be entitled to the costs of the CA 1989 proceedings for the limited period from 13 November to 7 December 2015.
  3. The Claimants litigation conduct had a bearing on the costs award in relation to the HRA claim – not making efforts to try to settle the case and not responding constructively to offers had a bearing on this.          
  4. On ordinary costs principles, I am of the view that the Claimants should be entitled to recovery of their costs of the HRA 1998 proceedings from the grant of certificates up to and including 14 July, but no further.
  5. vi) On the information available to me, the Claimants have not complied with the direction which I made (on 5 October 2016) to make open proposals for settlement in a timely way, or at all.
  6. v) So far as I can tell, there was no response to the offer made on 15 July 2016;
  7. iv) Further ‘without prejudice’ offers were made on the days either side of the Case Management hearing on 14 July, without any meaningful response. On the 14 July itself, at court, Ms. Irving QC made an open offer. On 15 July 2016, the offer was increased to £2,500 on an open basis, together with the HRA 1998 costs; the Local Authority proposed a further ’round table’ discussion but this fell on deaf ears;
  8. iii) The mother and Children’s Guardian did not respond positively to the request to provide costs schedules at an early stage or an order to the same effect, and none of the Claimants complied with my direction for the provision of open offers of settlement;
  9. ii) The Claimants were invited from 22 February 2016 to indicate a ‘settlement amount’ in relation to any prospective HRA 1998 claim, but they did not apparently (i.e. from the correspondence – including that marked ‘without prejudice’ – which I have now seen) do so;
  10. i) They failed to respond constructively to the Local Authority’s efforts to achieve a negotiated settlement; from an early stage (i.e. February 2016: see [45](i) above), through until July and beyond, the Local Authority was making appropriate overtures to sort out this dispute, but the Claimants were ostensibly unreceptive;
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  12. 66.On the facts of this case, the Claimants have succeeded in their HRA 1998 claim, and ordinarily therefore they could look to the “unsuccessful” party (Local Authority) to pay their costs under Part 44.2(2)(a); however, I consider that the Claimants’ litigation conduct is such that they have forfeited this entitlement. In particular:
  13.                 In any evaluation of costs whether under the CPR 1998 or the FPR 2010, I am obliged to have regard to the parties’ litigation conduct, and whether costs are reasonably or not reasonably incurred. The Claimants’ approach would require me to ignore or forgive any reckless, wasteful or profligate manufacture of costs in order to ensure that the Claimants receive their award; this cannot be right. In this case, as will be apparent from my comments below, the Claimants did not conscientiously attempt to settle their claims, whereas I am satisfied that the Local Authority did make genuine efforts to do so
  14. A suggestion was made to multiply the child’s damages by 3, and award the total damages to the child, so that only the Child’s public funding certificate had the stat charge arise, and thus make only costs order to cover the child’s certificate in full.

 

Mr. Taylor further submitted that I could award an aggregate damages award of £11,250 (£3750 x 3) to the child, and order the Local Authority to pay all of the costs of the Children’s Guardian; in that way, (i) this would reduce the financial outlay for the Local Authority than the alternative route contended for by the Claimants, and (ii) at least one of the parties would actually benefit from a damages award. Ms. Irving QC indicated that if the Court approved it, the Local Authority would not contest this approach. The LAA was, sensibly, consulted about this proposal, and rejected it for the contrivance which it undoubtedly is. I could not in any circumstances sanction this approach. I have awarded damages to each of the three Claimants; the figure awarded is what I regard as “necessary” to give “just satisfaction” to each of them. The proposal outlined undermines the principles on which I have resolved the claims.

 

 

 

 

Decision

 

75.I shall make the declarations proposed and conceded, set out in [33] above.

 

76.I shall award each of the three Claimants £3,750 by way of damages, to be paid by the Local Authority, under section 8(3) HRA 1998. It is, I acknowledge, regrettable that because of the costs order I propose to make, the Claimants are unlikely to receive these sums.

 

77.I shall make an order that the Local Authority makes a contribution to the publicly funded costs of the Claimants, limited to the following periods:

  1. a) 13.11.15-7.12.15 (all Claimants: CA 1989 proceedings);

 

  1. b) From the date on which the LAA granted extensions to the Claimants’ existing certificates (issued for the CA 1989 proceedings) for them to pursue HRA 1998 claims to 14.7.16, excluding the costs incurred by those who attended on behalf of the mother and the child at the meeting arranged by the Local Authority on 17 March 2016 (save as provided for herein, all Claimants: HRA 1998 proceedings).

78.That is my judgment.

 

Quantum-wise, a sum of damages of £3,750 per party, for the child being removed under an ICO hearing where the parents had not been given notice and the Court was misinformed that (a) they had and (b) they consented to the plans, where the LA withdrew the proceedings just months later because threshold was not met, compared to some of the very high s20 damages awards makes interesting reading. Cobb J was very specifically addressed on quantum and the principles to be applied and this case (together with the Hackney case) sets down a considerable marker that there is unlikely to be sufficient diamonds in the mine to justify the digging costs save in a highly exceptional case.

To escape the stat charge and ensure that the client receives any of the compensation, either the costs will need to be very small, or the damages very large, or a better case for a costs order than this one….

 

Das reBoot – Court of Appeal find reverse gear (once again)

 

A major theme in family case law over the last 2-3 years has been misuse of section 20 – voluntary accommodation, with all sorts of guidance being provided, culminating in the President of the Family Division giving a decision in Re N 2015 which just invented huge new chunks of legal obligations on Local Authorities and threatening damages if they didn’t obey.

 

That in turn, quite coincidentally, led to the biggest increases in number of care proceedings issued that we have seen since the Baby P crisis hit. It is a complete coincidence, of course. I mean, over that same period of time, we haven’t actually seen the number of children in foster care go up at all, but we have seen the number of care proceedings go up by 35%, but the two things are utterly unrelated.

 

As I’ve said before, I do think that there was a genuine problem with section 20 misuse and it needed to be addressed – I just think we swapped one problem for three others – an increased demand which the system utterly couldn’t manage, an increased layer of complexity and time in dealing with claims being added into care proceedings which the system utterly couldn’t manage, and an insoluble problem about how to deal with the cost issues caused by the statutory charge which, you’ve guessed it…

(And also, as I’ve said before, I’d be entirely up for Parliament to review s20 and put in some stronger safeguards for parents – I think a very short limit on the initial s20 and it to be reviewed at a meeting to which parents have free legal advice would be a start)

Anyway, the Court of Appeal today have given judgment on an appeal from one of the early s20 damages cases – this was one where the police removed children after the father hit one of them with a belt, the police arrested the parents and gave them bail conditions not to live with the children, and the parents objected to s20.  The parents later sued the LA for breach of their human rights in continuing the s20 without their express consent.

 

I wrote about the original case at the time, and if WordPress ever stops behaving like a four year old hopped up on Tartrazine, I’ll put a link in.

 

http://www.bailii.org/ew/cases/EWCA/Civ/2017/26.html

 

London Borough of Hackney v Williams & Anor [2017] EWCA Civ 26 (26 January 2017)

 

(you can skip right to the end if you just want the reboot paragraph, I’ve put it in super large font)

 

So this is an appeal from an award for £10,000 damages against Hackney, where the parents had been arrested and had bail conditions not to be with the children. The LA asked for s20, the parents refused to sign and the LA relied upon the statute that the parents were prevented (for whatever reason) from providing accommodation and thus s20 (1) (c)  was met, and that the parents objection had to be looked at in the context of s20(7) which states

 

(7) A local authority may not provide accommodation under this section for any child if any person who—

 

(a) has parental responsibility for him; and

 

(b) is willing and able to—

 

(i) provide accommodation for him; or

 

(ii) arrange for accommodation to be provided for him, objects.

 

 

The parents were objecting, but weren’t providing any alternative accommodation, and weren’t in fact able to provide their own accommodation (because they would have then been in breach of bail conditions, and arrested. So the LA view was that it wasn’t a legal objection because they weren’t able to meet (b) (i) or (ii)

 

 

This all happened, by the way, in 2007.

 

The High Court looked at it in  September 2015 , and decided that the bail conditions weren’t sufficient to defeat the objection under s20(7) and awarded the parents £10,000 compensation each, plus costs. The High Court were clear that the allegations that led to the arrest were largely true (the father had hit the child with a belt) but nonetheless the parents human rights had been breached by the LA s20ing the children without consent, rather than seeking consent or a court order.

 

This, 18 months later, reaches the Court of Appeal.

 

 

The Court of Appeal look at Sir Mark Hedley’s decision in Coventry City Council v C [2013] EWHC 2190 (Fam) ,  and the Court of Appeal decisions giving judicial guidance on s20 cases  Re B (Looked after child) [2013] EWCA Civ 964 (sub nom Redcar and Cleveland Borough Council v Others); Re W (Children) [2014] EWCA Civ 1065; and Re N (Adoption: Jurisdiction) [2015] EWCA 1112.

 

The Court of Appeal say that those cases didn’t have to specifically determine a s20 issue, so where they have made comments, they are obiter and not binding. Specifically, what the President says in Re N is not binding on the Court of Appeal in a case where argument has been specifically heard on the s20 and where s20 is a ratio issue.

 

 

59.In relation to item (d), after setting out the terms of s. 20(8), Sir James stated (at [169]):

 

‘This means what it says. A local authority which fails to permit a parent to remove a child in circumstances within section 20(8) acts unlawfully, exposes itself to proceedings at the suit of the parent and may even be guilty of a criminal offence. A parent in that position could bring a claim against the local authority for judicial review or, indeed, seek an immediate writ of habeas corpus against the local authority. I should add that I am exceedingly sceptical as to whether a parent can lawfully contract out of section 20(8) in advance, as by agreeing with the local authority to give a specified period of notice before exercising their section 20(8) right.’

60.In conclusion, Sir James set out further requirements of good practice, in addition to those identified by Hedley J before stating [171]:

 

‘The misuse and abuse of section 20 in this context is not just a matter of bad practice. It is wrong; it is a denial of the fundamental rights of both the parent and the child; it will no longer be tolerated; and it must stop. Judges will and must be alert to the problem and pro-active in putting an end to it. From now on, local authorities which use section 20 as a prelude to care proceedings for lengthy periods or which fail to follow the good practice I have identified, can expect to be subjected to probing questioning by the court. If the answers are not satisfactory, the local authority can expect stringent criticism and possible exposure to successful claims for damages.’

 

72.Finally, in Re N, the judgment of Sir James Munby P does repeat his conclusion that parental consent is required by the statute; this can most conveniently be seen from two sentences (from [163]):

 A Local Authority cannot use its powers under section 20 if a parent “objects”: see section 20(7). So where, as here, the child’s parent is known and in contact with the local authority, the local authority requires the consent of the parent.”

73.In considering this passage in the President’s extensive judgment in Re N, it is necessary to be clear that any issues relating to s. 20 were very much at the periphery of that case, the focus of which was the jurisdiction of the English Family Court to make orders leading to adoption with respect to foreign nationals. It seems plain that the section of the judgment as to the working out of arrangements for s. 20 accommodation arose from concern, evidenced by a raft of recent first instance decisions, as to social work practice in general. No issue in the case of Re N turned on the interpretation of s. 20, or, indeed, on any matter with respect to s. 20. It is apparent that Sir James was using the opportunity provided by the fact that the children in Re N had been accommodated for eight months before the local authority issued care proceedings as a hook upon which to hang some, no doubt timely, firmly worded and important good practice guidance. Despite the respect that this court undoubtedly has for the opinion of a judge of such authority on these matters, the short judicial statement (in [163]) following a hearing at which the interpretation of s. 20 was not in issue cannot be binding upon this court where the focus is directly upon s. 20 and where there has been full argument.

 

 

 

Therefore, s20(7) does apply where the parent is not able to provide accommodation themselves, or is unable to provide alternative accommodation. In those circumstances, a parent’s objection does not defeat s20 – they need to be able to provide accommodation themselves or from third parties in order to satisfactorily object.

 That does NOT mean, and should not be interpreted to mean that in a scenario where the parent says “I object to s20, the child can come home with me’ that the LA can hide behind s20(7) and say that the home offered was unsuitable or dangerous, or they didn’t think it was a good idea. S20(7) goes only as far as the parent not being ABLE to have the child live with them (think bail conditions, homelessness, incarceration or detention in mental health hospital, that sort of thing) and where they aren’t able to provide any other accommodation.  It doesn’t cover “the child could live with my brother Mike” and the Social worker going “hell no”

 

 

74.I recognise that, in the context of the cases that he was then considering, it may well have been appropriate for Sir James to equate the obligation on a local authority not to use its powers under section 20 if a parent ‘objects’ as meaning, effectively, that when the parent is known and in contact with the authority, consent is required but, in my judgment, it would be wrong to elevate the requirement of consent into a rule of law that operates in all circumstances. In this case, the parents had the benefit of solicitors experienced in both family and criminal law. Their ability to apply to remove the prohibition on contact with the children was well known and emphasised by the solicitors in correspondence. The local authority was not responsible for the bail condition and had no obligation to take proactive steps to have it removed. If the solicitors had wanted the local authority to express a view, an appropriate official could have been requested to do so by the court or been the subject of a witness summons to attend.

 

 

75.On any showing, it was not for the local authority to aid and abet the flouting of the bail condition and it is not sufficient to argue that the local authority should have sought to persuade the police to modify the condition. The only inference to be drawn from the fact that the condition remained in place was that the parents (no doubt on advice) were prepared to negotiate with the police rather than risk a conflict in court. In those circumstances, for the period that the bail condition remained in place, they were not in a position to provide accommodation for them within s. 20(7)(b)(ii) of the 1989 Act and were thus not in a position legally to object whether or not they formally consented.

 

 

76.Thus, the continued existence of the bail condition had the twin consequence that Mr and Mrs Williams, firstly, were ‘prevented … for whatever reason’ from providing suitable accommodation and care for their children (s 20(1) of the 1989 Act) and, secondly, were not ‘able’ to provide accommodation for them in order to trigger their statutory right to object (s 20(7) ibid

 

 

This is the really important bit, with wider implications than the bail conditions/parent in prison objecting to s20 though.

 

 

 

77.Before passing from the issue of s. 20 of the 1989 Act and consideration of the guidance given by Sir James Munby P, Hedley J and others in the Family Division cases to which I have referred, I wish to stress that nothing that is said in this judgment is intended to, or should be read as, altering the content and effect of that guidance in family cases. The focus of the court in the present appeal is on the bottom-line legal requirements that are established by s 20 and within which a local authority must act. The guidance given in the family court, which has built upon that bottom-line in the period since the Williams’ children were removed, identifies clear, cooperative and sensible ways in which a voluntary arrangement can be made between a parent and a local authority when a child may need to be accommodated; it is, in short, good practice guidance and a description of the process that the family court expects to be followed. For reasons of good administration, the practice guidance should continue to be followed, notwithstanding the limits of the underlying legal requirements in s 20 that I have identified but a failure to follow it does not, of itself, give rise to an actionable wrong, or found a claim for judicial review.

 

I would expect to see that paragraph quoted by Local Authorities in response to any suggestion of HRA claims for s20 damages in the future.  There may be circumstances where this sort of breach does give rise to action, and we’ll have to wait to see that litigated, but it is going to need something more than just failure to comply with the guidance.   The Court of Appeal were also scathing about the proportionality of litigating this particular HRA claim – the damages were out of proportion to the costs and the Court also made it very clear that they considered the quantum of damages to be significantly more than they would have contemplated.

 

This brings me to another trend in family law – we had the raised test for interim care orders, which caused all sorts of mayhem and was eventually rolled back by the Court of Appeal saying ‘oh, nobody meant what you all thought’, then the raised test for adoption, which caused all sorts of mayhem and was eventually rolled back by the Court of Appeal saying ‘oh, nobody meant what you all thought’ and now the raised tests for s20, which caused all sorts of mayhem and has now been rolled back by the Court of Appeal saying ‘oh, they DID mean it, but they weren’t actually able to apply the teeth to it that they thought they were applying’

 

Perhaps when far-reaching judicial speeches that go further than the issue being litigated next arises, the Courts could hear full argument about the implications of what they are contemplating? Or, heaven forbid, just only tell us what the law means where it is the issue in the case and the law is unclear, rather than reworking the plain words of the Statute into what you happen to wish they said instead?