Claims against public bodies for breach of the Human Rights Act 1998
The Human Rights Act (HRA) was passed to give direct effect to the Articles of the European Convention into domestic law. Prior to the HRA, if you wanted to claim that your human rights had been breached you had to take out an action in the European Court of Human Rights in Strasbourg. Now, it is unlawful for any public body – including the courts and local authorities – to act in a way which is incompatible with a Convention right, unless they have no choice because they have to obey current statute law.
The most likely Articles of the ECHR which are in play in regard to child protection cases are:
- Article 8 – the right to respect for family and private life;
- Article 6 – the right to a fair hearing.
For further consideration of Article 8 and its ambit see our post on Article 8 and proportionality. For further consideration of Article 3 in care proceedings, see this post. For a list of cases and amounts of money awarded, scroll to the end of this post.
We will need to watch this space, particularly with recent Government proposals to ‘scrap’ the HRA and replace it with a ‘British Bill of Rights’.
EDIT JULY 6th 2018 – there are still some significant issues about how such applications can be made and funded, particularly if they are made to benefit a child. Discussions with other lawyers are on-going and I aim to update this post as soon as possible. See discussions below for impact of the legal aid statutory charge on awards of damages.
The requirements of the Human Rights Act 1998
What is an unlawful act and what is a public authority?
‘Unlawful Act’ is defined under section 6 (1) of the HRA. It is unlawful for a public authority to act in a way incompatible with a ECHR right UNLESS it doesn’t have a choice because of the way the domestic law is written.
A ‘public authority’ includes a court/tribunal or any person who carries out functions of a ‘public nature’ BUT it excludes the Houses of Parliament.
Who can make an application under the HRA?
Section 7 provides that a person can bring proceedings if they are, or would be a ‘victim’ of the unlawful act. There is a distinction between a ‘free standing’ application [section 7(1)(a)] and relying on your Convention rights in existing proceedings [section 7(1)(b)].
It is now clear that the court will expect formal applications made according to the Civil Procedure Rules NOT the FPR and this will have consequences for many issues, not least the role of the children’s guardian. For a clear analysis of the necessary procedural requirements, it is worth reading carefully the judgment of Cobb J in SW & TW (Children : Human Rights Claim: Procedure) (Rev 1)  EWHC 450 (Fam) (08 March 2017).
The main points are summarised here:
- The Children’s Guardian cannot take on the role of litigation friend in the HRA claim. Section 12 of the Criminal Justice and Court Services Act 2000 sets out the functions of the officers of CAFCASS. They cannot be authorised to act as litigation friends to child claimants although they may give advice about the appropriateness of a child making a HRA 1998 claim. claims fall under the CPR and thus the regime of Part 36 CPR 1998 (‘Offers to Settle’) applies to them;
- The full costs regime in Part 44 CPR 1998 also applies, including (in contrast to the position in family proceedings) the general rule that ‘costs follow the event’ (CPR, Part 44.2(2)(a): “(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party”; see also CZ v Kirklees MBC  EWFC 11 at ));
- The publicly funded claimant in a HRA 1998 claim who is also publicly funded in associated or connected proceedings – see section 25 Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO 2012) – is vulnerable to a claim for recoupment of the costs of proceedings by way of statutory charge from any award of HRA 1998 damages;
- In HRA 1998 proceedings, the Legal Aid Agency may issue a publicly funded certificate for a claimant to pursue declarations only, and not damages. This has implications for:
- entitlement to any public funded remuneration for the lawyers for the work done on seeking a damages award,
- the extent to which the successful claimant can recover any costs referable to pursuit of the claim for damages from the Local Authority if they have not been authorised to expend costs in pursuit of the same, and/or
- the ability of the LAA to recoup funds from the damages (applying the statutory charge) for work done in respect of which there was no public funding certificate.
What remedy can you get?
Section 8 of the HRA gives the court a discretion to remedy the breach of your human rights; the remedy must be ‘just and appropriate’.
This can include damages, if the court is satisfied this is necessary ‘to afford just satisfaction’. The court must take into account the principles applied by the European Court about awards of damages – but the problem with this is that the jurisprudence from the ECtHR is deliberately opaque about what makes the quantum of damages ‘just satisfaction’. Each case will depend on its own facts.
Article 41 of the ECHR
This sets out the requirement for ‘just satisfaction’ on violation of a ECHR right. For useful discussion about the application of Article 41, see paragraph 143 onwards of the judgment of the European Court in the case of P, C and S v UK .
General principles about awards of damages pursuant to Article 41
See this Practice Direction from 2007.
- A clear causal link must be established between the damage claimed and the violation alleged. The Court will not be satisfied by a merely tenuous connection between the alleged violation and the damage, nor by mere speculation as to what might have been.
- Compensation for damage can be awarded in so far as the damage is the result of a violation found. No award can be made for damage caused by events or situations that have not been found to constitute a violation of the Convention, or for damage related to complaints declared inadmissible at an earlier stage of the proceedings.
- 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 State responsible. The Court has therefore, until now, considered it inappropriate to accept claims for damages with labels such as “punitive”, “aggravated” or “exemplary”.
How have the courts approached damages under the HRA 1998?
The concept of ‘just satisfaction’.
The first case to consider damages under the HRA 1998 was Anufrijeva v London Borough of Southwark in 2003. At para 49 the court noted the conclusions of the Law Commission in its report on Damages under the Human Rights Act 1998 which suggested that the obvious analogy for a claim for damages under the HRA is a claim against a public authority in tort, such as negligence. But this analogy cannot be drawn too strictly as there are distinctions between the purpose behind an award of damages in tort and under the HRA.
- damages are recoverable ‘as of right’ in a negligence claim (tort), but are at the court’s discretion in a HRA claim;
- the purpose behind the damages claim is different; in negligence this is to put the claimant back in the position he would have been in without the negligent act, whereas in HRA claims the purpose is to provide ‘just satisfaction’;
- That ‘just satisfaction’ may be provided by dealing with the HR breach, not necessarily compensating someone with money. The European Court has often found that in cases where there was a procedural, rather than substantive breach, a simple declaration that the claimant’s human rights were breached is in fact sufficient ‘just satisfaction’.
In the case of H (A Child – Breach of Convention Rights: Damages)  the court was very clear that in the circumstances of this case ‘just satisfaction’ would NOT be achieved by a simple declaration that the parents’ rights had been breached. See paragraph 82:
It was not until June 2014 that these parents eventually managed to secure the return of their daughter to their care, exactly a year after she was placed with Mr and Mrs B. Whilst it is true that during that year the parents were having regular contact, supervised contact at a local authority contact centre is far removed from the joys of fulltime, unsupervised care of one’s own child. The residential assessment which began in June 2014 could have begun a year earlier. The cognitive assessment of the parents, not finally obtained until May 2014, could have been obtained months earlier. Unlike the parents in the Coventry case, these parents’ have suffered a loss of time with their daughter which was both unnecessarily lengthy and deeply distressing.
How should damages be assessed? And what is an appropriate award?
The difficulty is in situations where the harm suffered by the claimant is not one that can easily be measured in money – for example, loss of earnings is a lot easier to measure than being very upset or anxious about something. There is little guidance from the European authorities, save that the court tends to look at the nature and seriousness of the breach complained about, and the claimant’s own behaviour.
The European Court has also recognised ‘loss of relationship’ as another form of intangible injury – that is the loss of love and companionship which occurs when a family relationship is disrupted by breach of Article 8.
This is a clear difference between the kinds of damages that may be awarded for breach of contract or tort in the domestic courts, which may not recognise many of these types of loss or would require much stricter proof to be satisfied they had occurred. Some types of loss are going to be much more easily quantified than others.
The court in H (A Child) noted that there was not much assistance from previous cases in determining what amount should be awarded. In this case, each parent was awarded £6,000. See para 87:
Whilst the authorities referred to are of some small assistance, there are too few to be able to be confident that they indicate the broad parameters for making an assessment. In any event, it must, of course, be remembered that every case is different. Every case turns on its own facts. The assessment of damages in these cases is highly fact sensitive.
The court in X, Y. & Z re (Damages: Inordinate delay in issuing proceedings)  approved the identification of the relevant issues by HHJ Lazarus in the Medway case :
- The length of the proceedings
- The length of the breach
- The severity of the breach
- Distress caused
- Insufficient involvement of the parent or child in the decision making process
- Other procedural failures.
WARNING: It is likely that the Court of Appeal decision in London Borough of Hackney v Williams & Anor  is a clear attempt to row back from what appears to be ever increasing amounts awarded in damages for HRA claims. The Court decided that there had been no breach in this case so no damages fell to be awarded – BUT if they had, the Court of Appeal were clear that the £10K awarded at first instance was simply too high. For further discussion of this case, see this post.
What did the Law Commission say?
The Law Commission report considered the damages awarded by the European court at paras 3.26 and 3.27 of its report:
The Strasbourg Court has made awards for non-pecuniary loss in respect of a wide range of intangible injuries. Non-pecuniary awards have included compensation for pain, suffering and psychological harm, distress, frustration, inconvenience, humiliation, anxiety and loss of reputation. There appears to be no conceptual limit on the categories of loss which may be taken into account, and the Strasbourg Court is often prepared to assume such loss, without direct proof…
The implication of the costs of proceedings
Guidance and warning from Anufrijeva
Para 59 of Anufrijeva was cited with approval by the Court of Appeal in 2012,:
The fundamental principle underlying the award of compensation is that the court should achieve what it describes as restitution in integrum. The applicant should, in so far as this is possible, be placed in the same position as if his Convention rights had not been infringed. Where the breach of a Convention right has clearly caused significant pecuniary loss, this will usually be assessed and awarded. The awards of compensation to homosexuals, discharged from the armed forces, in breach of article 8, for loss of earnings and pension rights in Lustig-Prean and Beckett v United Kingdom (2000) 31 EHRR 601 and Smith and Grady v Untied Kingdom (2000) 31 EHRR 620 are good examples of this approach. The problem arises in relation to the consequences of the breach of a Convention right which are not capable of being computed in terms of financial loss.
The court in Anufrijeva suggested that in order to help work out what was an appropriate level of damages, guidance could be taken from levels of damages awarded in respect of torts, awards made by the Criminal Injuries Compensation Board and by the Parliamentary Ombudsman and the Local Government Ombudsman. But this guidance could only be ‘rough’. The court also sounded this note of caution:
The reality is that a claim for damages under the HRA in respect of maladministration, whether brought as a free-standing claim or ancillary to a claim for other substantive relief, if pursued in court by adversarial proceedings, is likely to cost substantially more to try than the amount of any damages that are likely to be awarded. Furthermore, as we have made plain, there will often be no certainty that an entitlement to damages will be established at all.
The court was alarmed at how expensive it had been to bring this action and set out guidance for future cases:
- The courts should look critically at any attempt to recover damages under the HRA for maladministration by any procedure other than judicial review in the Administrative Court.
- The claimant will need to explain why it isn’t more appropriate to use other routes of resolving the complaint, such as an internal complaints procedure or a claim to the Local Government Ombudsman.
- other forms of dispute resolution are encouraged and it is hoped that any such future claims can be dealt with quickly by a judge reading the evidence.
These warnings have been repeated in later cases, most notably by Cobb J in SW & TW , cited above.
Other issues regarding HRA applications
Limitation periods: You must make your claim within a year if its a ‘free standing’ application.
But the court does have discretion to extend that time. Section 7(5) provides that:
‘(5) Proceedings under subsection (1)(a) must be brought before the end of—
(a) the period of one year beginning with the date on which the act complained of took place; or
(b) such longer period as the court or tribunal considers equitable having regard to all the circumstances,
but that is subject to any rule imposing a stricter time limit in relation to the procedure in question.
Injunctions under the Human Rights Act
It is possible to apply for an injunction under the HRA 1998 to prevent a public body from acting unlawfully. See our post about the LA attempting to remove a child from home who was there under a care order. The court confirmed that the parents should apply for an injunction to prevent this.
If care proceedings are on going
The courts are clear that if human rights issues are raised during care proceedings, they should be determined within those proceedings, not by separate application to another court. See In the Matter of L , approved at paragraph 58 in H (A Child – Breach of Convention Rights: Damages) .
The court held further at paragraph 64:
I am satisfied that the Family Court has the power to make an award of damages under s.8(2) of the Human Rights Act 1998. I am equally satisfied that the authorities to which I have referred continue to apply and that where, in the course of care proceedings, relief is sought under section 8, that relief must be sought within the care proceedings pursuant to s.7(1)(b) of the 1998 Act and not by bringing freestanding proceedings under s.7(1)(a).
BUT note what was said by Keehan J in the Northamptonshire case (see below) about making a separate application to avoid the full impact of the legal aid statutory charge absorbing any award of damages. No doubt this area of law will continue to develop, so watch this space.
The impact of the statutory legal aid charge – new guidance from 2018
The previous position was that the Legal Aid Agency would seek to recover its costs from the amount of damages awarded. See the the Statutory Charge Manual . Thus, it used to be that if an application was made under the HRA in existing proceedings – as the court advises should happen – an applicant was likely to have already incurred significant legal costs which were likely to wipe out any award of damages. This clearly had the potential to lead to very unjust results and the LAA have finally responded to demands for change.
Northamptonshire County Council & Anor v The Lord Chancellor (via the Legal Aid Agency) , considers important new Guidance from the Legal Aid Agency. It confirms that it will no longer apply the statutory charge from care proceedings to Human Rights Act 1998 damages.
See this article by Will Tyler QC and Ben Mansfield in Family Law Week for further discussion.
Provided this guidance is followed then the LAA will not seek to recoup damages. Parties must:
- attempt resolution of the claim without issuing HRA proceedings. This may include seeking agreement from the Local Authority to pay the claimant’s reasonable costs of a Part 8 CPR infant approval hearing in the event settlement is reached, to be heard by the care proceedings judge, see H (A Minor).
- If its necessary to go to court practitioners must:
- seek a separate legal aid certificate for the HRA damages claim; and
- issue separate HRA claim forms pursuant to s.7(1)(a), HRA, in accordance with Part 8 of the Civil Procedure Rules, to be listed and determined alongside the care proceedings.
- seek early confirmation from the LAA that the care proceedings statutory charge will not apply to the prospective HRA award.
- confirm that they will not and have not claimed HRA costs under the legal aid certificate covering the care proceedings.
For further commentary on this issue, see this post by The Transparency Project.
Note that there still appear to be complications arising as to how lawyers will get paid if the LA does NOT agree to pay their costs. Also, the Official Solicitor appears to be the only likely ‘litigation friend’ for most children and that carries with it its own problems. Watch this space as discussions develop.
EDIT July 12th 2018 The LAA have published a position statement here.
Making a complaint pursuant to section 26 of the Children Act 1989
A colleague contacted me to say that in one of her cases, the LA offered the children £1,500 each by way of ex gratia payments following a complaint made under section 26 after the care proceedings had concluded. This money will be held in trust until the children are 18.
The only problem with this approach is that for those acting on behalf of the child there’s little room for negotiation over the amount of money offered, because once proceedings have finished the children’s guardian doesn’t have any standing to pursue a HR application
Damages awarded in other cases
- P, C, S v the UK  the European court awarded each parent €12,000 for breaches of their Article 8 and 6 rights in a case which involved removal of a baby at birth. This case also has some useful commentary as to how damages should be assessed.
- Northamptonshire CC v AS  – damages £16K.
- Ferrari v Romania in the European Court of Human Rights in April 2015 where a father was awarded €7,500 after the state failed to properly engage with Hague Convention proceedings and caused delay.
- In re A (A Child) in August 2015, the mother was awarded £3,000 for unlawful removal of her child.
- Medway Council v M and T October  awarded £20K to both mother and child for unlawful use of section 20 accommodation under Children Act 1989.
- B (A Child)  EWFC B10 January 2016 – £5K awarded for 3 year delay in revoking placement order that meant B lost out on developing a relationship with his siblings.
- Case Soares de Melo c. Portugal (Application No 72850/14) [Feb 2016] award of €15,000 for decision to have children adopted without offering family sufficient support.
- X, Y & Z re (Damages: Inordinate Delay in Issuing Proceedings)  EWFC B44 (23 February 2016) – £45K awarded, (£20K for each child and £5K for the mother) highest level of damages known to date for misuse of section 20, and particular criticism of the failure of two IROs to act.
- BB (A Child)  27th June EWFC B53 £7,500 awarded for misuse of section 20.
- GD & BD (Children)  10-18 October 2016 EWCH 3312 – example of very poor police, LA and legal practice, described by Suesspiciousminds as ‘the worst case of the year’. £10,000 awarded to the mother and £5,000 to each child.
- London Borough of Hackney v Williams and Anor  – Court of Appeal sound the warning that £10K awarded at first instance was too high (in the event the court did not find a breach of statutory duty so no damages were awarded at all)
- CZ (Human Rights Claim: Costs)  EWFC 11 – £3,750 to each parent and child for unjustified removal at birth for about 3 weeks. However, costs likely to be completely absorbed by the statutory charge – publicly funded costs in region of £100K.
- Davies v British Transport Police  UKIPTrib IPT_17_93_H (30 April 2018) – Case dealing with unlawful surveillance where police found to be in breach of their statutory duty and offered no apology, comment by the court at para 41: “The basic award of £25,000 is in line with the modest level of awards in cases under the Human Rights Act and with the jurisprudence of the European Court of Human Rights as well as the practice of this Tribunal. Indeed, the award may be said to be on the high side for breaches of Art 8 and that is to reflect our view of the serious failings of the BTP…”
- For an interesting overview, see this article by barrister Julie Stather in Family Law Week
- See this schedule of damages in other cases produced by the Association of Lawyers for Children.