AZ (mother) and Others v Kirklees Council
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice COBB,The Honourable Mr. Justice COBB |
| Judgment Date | 16 February 2017 |
| Neutral Citation | [2017] EWFC 11 |
| Docket Number | Case No: LS15C00749 |
| Court | Family Court |
| Date | 16 February 2017 |
[2017] EWFC 11
IN THE FAMILY COURT AT LEEDS
SITTING AT SHEFFIELD
Family Court
50 West Barr
Sheffield S3 8PH
The Honourable Mr Justice COBB
Case No: LS15C00749
Ms. Sara Anning (instructed by Eaton Smith LLP) for AZ, the mother, submitted a Skeleton Argument jointly with the father and Guardian but did not, with permission, attend the hearing
Mr. Alex Taylor (instructed by Ridley & Hall) for BZ, the father
Ms. Julia Nelson (instructed by Jordans) for CZ, the child
Ms. Gillian Irving QC and Ms. Clare Garnham (instructed by Local Authority Solicitor) for the Local Authority
Hearing date: 8 February 2017
Approved Judgment
Introduction and summary of the issues
Local authorities responsible for safeguarding children carry a heavy obligation to ensure that they perform their statutory duties at all times in a manner which is compatible with the rights of the individuals and their families who they are assigned to help, specifically the rights which individuals enjoy under the European Convention on Human Rights (ECHR)– Article 6 and Article 8. Any violation of these Convention rights is of course unlawful ( section 6 Human Rights Act 1998 ' HRA 1998'); when such an alleged violation occurs, those affected are entitled to bring claims under section 7 and 8 of the HRA 1998 for relief, including declarations and/or damages.
These proceedings, brought under the Children Act 1989 (' CA 1989') and HRA 1998, concern one child, CZ. He was born on 6 November 2015. His parents are AZ ("the mother") and BZ ("the father"). The mother and father are unmarried, but both have parental responsibility for him.
When CZ was exactly one week old (13 November 2015) and still at hospital following his birth, Kirklees Council issued an application under Part IV of the CA 1989 seeking public law orders in relation to him; on the same day, after a court hearing at which the parents were neither present nor represented, an interim care order was made and CZ was removed from his parents' care at the hospital. He was placed with his paternal grandparents. On 29 January 2016, CZ was returned to his parents' care where he has lived successfully ever since.
On 11 April 2016 the father made an application for a declaration that his rights under Article 6 and Article 8 of the ECHR had been breached, and seeking an order for damages. The Children's Guardian (on behalf of CZ) and the mother followed suit with similar applications issued on 29 April 2016. These applications were brought within the CA 1989 proceedings in accordance with the guidance offered by Munby J (as he then was) in Re L (Care Proceedings: Human Rights Claims) [2003] EWHC 665 (Fam) at [31]–[38], an approach which was endorsed in Re V (Care Proceedings: Human Rights Claims) [2004] EWCA Civ 54.
The Part IV CA 1989 proceedings were formally dismissed at a hearing on 26 May 2016. The issue of the costs arising from those proceedings together with the claims under, and costs of, the HRA 1998 application were then directed to be listed before me.
I gave directions for trial in this case on 14 July 2016, three months after the launch of the HRA 1998 claims, and I timetabled the case for a short final hearing in October; at that stage the Local Authority was conceding two significant violations of the family's rights, and were offering the Claimants modest compensation. I specifically invited the Claimants (and this was recorded on the face of my order) to take a critical view of their particulars of claim, to see what remained in issue. I encouraged them to consider carefully what outstanding relief they sought, and to provide to the Local Authority a detailed breakdown of their costs. I specifically encouraged the parties to negotiate realistically.
The hearing scheduled for October 2016 had to be vacated, and I gave further directions for it to be relisted at the next available date, which was in early-February 2017. In mid-January 2017, lawyers for the parties met at a round table conference, and settled the substantive issues, leaving only the issue of the costs of both sets of proceedings for determination. The issue of costs has particular significance because of the impact of section 25 Legal Aid Sentencing and Punishment of Offenders Act 2012 (' LASPO 2012') on any award of damages.
Notwithstanding the limited nature of the dispute, the ordinary requirements of the Family Procedure Rules 2010 and Civil Procedure Rules 1998, and my specific exhortation to the parties to take a realistic view of the case, bundles for the hearing exceeding in total 2,000 pages were filed ( Rule 27.6 of the FPR 2010, and the Bundle Practice Direction ( PD27A) seem to have been totally ignored notwithstanding the mandate that they "must be followed"), together with an authorities' bundle containing over 30 authorities (even then omitting some of the key authorities). No reading list was provided, and only the sketchiest agreed note of the points of agreement. I was advised at the hearing on 8 February 2017 that the overall cost of the two associated claims was in excess of £120,000, all of which – one way or another – are to be paid from public funds, unless I make an order against the lawyers responsible. I am dismayed that the preparation of this case has been undertaken in a way which was not only contrary to my formal direction, but was wholly disproportionate to the issues. I deprecate the unwarranted expenditure.
There is no doubt in my mind, indeed it is admitted, that Kirklees Council breached the ECHR rights of a baby boy and his parents in purported fulfilment of its safeguarding duties, but in this case – as in all others of its kind – a careful and realistic eye has to be kept on proportionality of the process by which relief is sought, and on outcome. My experience of this case (and others like it) prompts me to give prominence in this judgment to the following important points:
i) It is of course appropriate for HRA 1998 claims which arise in, and on the same facts as, CA 1989 proceedings to be considered by the court within the CA 1989 proceedings. Section 7(1)(b) enables every tier of the Family Court, including the magistrates, to give effect to the parties' Convention rights (see Re L(A Child) v. A Local Authority and MS [2003] EWHC 665 (Fam) at [31]);
ii) While each case must be considered on its own facts, any award of damages for non-pecuniary loss made under section 8(3) of the HRA Act 1998 is likely in this class of case to be reasonably modest;
iii) Where a public funded certificate is granted to a party to pursue a claim under the HRA 1998 for declaration and damages arising within care proceedings, the statutory charge ( section 25(1)(a) LASPO Act 2012) will apply (i.e. the damages will represent "property recovered or preserved by the individual in proceedings, or in any compromise or settlement of a dispute, in connectionwith which the services were provided"), and the Legal Aid Agency has the ability to recoup its costs (or a proportion of them) from any damages award;
iv) Costs of the care proceedings under the CA 1989 must be considered by reference to rule 28 of the Family Procedure Rules 2010, and with specific regard to the judgments of the Supreme Court in Re T (Children: Care Proceedings: Serious Allegations Not Proved) [2012] UKSC 36) [2013] 1 FLR 133 (" Re T") and Re S [2015] UKSC 20 (" Re S");
v) Costs of the declaration and/or damages claim under the HRA 1998 claim are awarded under the Civil Procedure Rules 1998; these rules provide (per CPR 44.2 (2) (a)) that within the court's discretion, ' the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party', subject to the provisions set out elsewhere in that rule; the provisos within Part 44 are important, and include consideration of litigation conduct;
vi) The decision of Keehan J in P v A Local Authority [2016] is particular on its facts and in my view provides little assistance to the majority of potential claimants in HRA 1998 cases which arise in the context of family proceedings under the CA 1989 or otherwise.
The facts
The connected claims under the CA 1989 and the HRA 1998 arise in this way.
The parents are both in their mid-20s; both have mild global learning difficulties. The mother is believed to suffer some minor mental ill-health, and she is hearing impaired. The father at times struggles to manage his frustrations at times, and has displayed controlling and aggressive behaviours to others. Both parents have received assistance from adult social care over the last 8 to 10 years, and during the mother's pregnancy local health services had been involved with the family during 2015 in planning for the birth of their first baby. In spite of these challenges, there was no pre-birth referral to children's services.
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.
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...
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