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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

https://suesspiciousminds.com/2016/03/11/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.

 

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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.