Author Archives: Sarah Phillimore

Data Protection and Freedom of Information

Getting information from public bodies

Access to general information

The Freedom of Information Act 2000 (FOIA) provides the right of access to recorded information held by a public authority. It applies to all categories of information held, with the exception of your own personal data.

The What do They Know site is run by UK Citizens OnLine Democracy and help people access information about central government, local government, Parliament, the NHS, the armed forces, state funded schools and universities and other public authorities.

The blog ‘Information Rights and Wrongs’ has some useful discussion of data protection issues and disclosure. See this post relating to the ‘balancing of interests test’ when considering if personal data should be disclosed.

The Information Commissioner’s Officer sets out a clear guide to making requests for information. In particular you are advised to consider the following points before making your request:

Is the information you want already available, for example, on the authority’s website?
Is the information you want your own personal data? (If so, you will need to make a subject access request, which we discuss below)
Is the authority likely to have the information? Public authorities must give reasonable advice and assistance to anyone asking for information, so you should feel free to ask for help in making your request.
Is the information you want suitable for general publication. The aim of the Freedom of Information Act is to make information available to the general public. You can only obtain information that would be given to anybody who asked for it, or would be suitable for the general public to see.
Some information, such as records about a dead relative, or documents you need for legal purposes, may not always be available under the Act. However, you may have a right to see the information you want under other legislation. The public authority holding the information you want should advise you.

It is also a good idea to think clearly about how you are going to frame your request. For example, a FOI request asking a LA to confirm ‘how many corrupt social workers it employs’ is very unlikely to meet with any useful response as this is simply too broad and general a request.

The ICO advises as follows:

If your request does lack any serious or clear purpose or if it is not focused on acquiring information, then the FOIA and EIR are probably not an appropriate means through which to pursue your concern. You might do better to explore whether there are other more suitable channels through which to take up the issue with the authority.

You should also bear in mind that the FOIA includes a safeguard against requests which exceed the cost limits for compliance (Section 12). The equivalent provision in the EIR is once again [Regulation 12(4)(b)] – manifestly unreasonable requests .

Therefore, if you are planning to ask for a large volume of information, or make a very general request, you should first consider whether you could narrow or refocus the scope of the request, as this may help you get what you really want and reduce any unnecessary burden or costs on the authority. Alternatively, you could try approaching the public authority for advice and assistance to help you reduce the scope of your request and cut down the cost of compliance – they have a duty to consider what advice and assistance they can provide.

Although you don’t have to say why you want the information, if you are happy to do so it might avoid a lot of wasted time and be more likely to get you what you want.

Access to information about you

The Data Protection Act 1998 (DPA) provides you with the right to access information that relates to you personally.

Section 7 allows individuals to make requests for their personal information, which is defined as data that must relate to a living individual and allow that individual to be identified from it (either on its own or along with other information likely to come into the organisation’s possession).

Section 36 makes it clear that individuals do not need the consent of professionals to record meetings/visits, as the information being discussed in that situation is personal to them and therefore exempt from the data protection principles. There may be problems if the meeting is going to deal with issues relating to a third party. For further discussion about recording meetings between parents and social workers, see this post.

Data Subject Access Request (DSAR)

Applying for information about yourself is called a Data Subject Access Request (DSAR). It can be helpful to ask the LA for all documentation relating to your case, such as internal emails, if you are not happy with the way your case has been handled.

For further information, see the helpful Advice Sheet about access to records published by the Family Rights Group.

Children can also make requests, if they are considered to be sufficiently mature to understand what they are doing. To request your information, you should write to the Children’s Services department which is holding the information about you stating clearly what information you want and that you are asking for it under the Data Protection Act.

The Information Commissioner has provided a ‘Subject Access Code of Practice’ to help organisations deal with such requests for personal data by individuals. The maximum charge that can be made is £10 and organisations must respond within 40 days.

How long can a LA hold information about you?

See this post from suesspicioussminds who discusses the case involving Northumberland County Council [2015] who were accused of acting unlawfully in holding on to data for 35 years. The claimant said he had been unfairly treated by the LA and he wanted his records destroyed. The Judge found that the LA were not acting unlawfully; there could be good reasons for holding on to such data – such as providing information to help later investigations into child abuse or malpractice.

Northumberland’s policy is:

… specifically to retain the records for 35 years after the case is closed, unless the child is or becomes looked after (in which case the retention policy is 75 years from the date of birth) or adopted (in which case the retention period is 100 years from the date of the Adoption Order).

Individual LA’s may have different policies and apply different time periods. What the Northumberland case makes clear is that this particular policy has survived legal challenge and found to be lawful. So it may be that information is retained for a considerable time.

Contact the Information Commissioner

The Information Commissioner’s Office is the UK’s independent authority set up to uphold information rights in the public interest, promoting openness by public bodies and data privacy for individuals. You can find out more here.

If you are not happy with the way a public body deals with your request for information, you can make a complaint to the Information Commissioner.

Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF

Telephone: 0303 123 1113
Fax: 01625 524 510
Email the Information Commissioner: [email protected]

Human Rights Act 1998

Claims against public bodies for breach of the Human Rights Act 1998

Introduction

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.

Brexit does NOT have any impact upon the ECHR as this derives from the Council of Europe, of which we remain a member.

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.

Northamptonshire County Council & Anor v The Lord Chancellor(via the Legal Aid Agency) [2018], 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.

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) [2017] 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 [2017] EWFC 11 at [61]));
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[2002].

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)[2014] 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) [2016] approved the identification of the relevant issues by HHJ Lazarus in the Medway case [2015]:

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[2017] 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 [2017], 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 [2003], approved at paragraph 58 in H (A Child – Breach of Convention Rights: Damages)[2014].

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 [2014]. 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) [2018], 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[2002] 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 [2015] – 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 [2015] awarded £20K to both mother and child for unlawful use of section 20 accommodation under Children Act 1989.
B (A Child) [2016] 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) [2016] 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) [2016] 27th June EWFC B53 £7,500 awarded for misuse of section 20.
GD & BD (Children) [2016] 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[2017] – 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) [2017] 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 [2018] 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…”
BT & GT (Children : twins – adoption) [2018] EWFC 76 (29 November 2018). The LA agreed to pay each twin £20K in damages for their serious and serial failures regarding their separate placements.
June 2021 – LA Ombudsman awards £7,500 to child after it was found the council exposed her to significant harm in its care and failed to consider her human rights.

Negligence and Misfeasance

In this post we shall look at ‘private law’ remedies against public bodies, which contrast to judicial review which is a ‘public law’ remedy.

We shall examine the torts of misfeasance, breach of statutory duty and negligence.

Misfeasance in public office

‘Misfeasance in Public Office’ is a ‘tort’. A tort is a wrongful act or infringement of your rights that means you may be entitled to compensation for any harm caused by the wrongful act.

The requirements for a successful claim in misfeasance in public office were identified in Three Rivers DC v Bank of England (No. 3) [2003] 2 AC 1 by Lord Steyn at paragraph 191:

The case law reveals two different forms of liability for misfeasance in public office. First there is the case of targeted malice by a public officer, i.e. conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bad faith inasmuch as the public officer does not have an honest belief that his act is lawful.”

You may be able to claim damages if you have suffered harm as a result of misfeasance in a public office, but obviously this is going to be quite hard to prove as it requires that you establish the public official acted in bad faith.

The offence of ‘Malfeasance’ or misconduct in a public office is a criminal offence with a maximum sentence of life imprisonment. This involves wilful behaviour which is so serious that it is likely to cause a loss of public trust in the public office holder.

The tort of misfeasance is probably not an attractive route given the evidential difficulties of being required to prove bad faith or ‘targeted malice’. A more realistic route is likely to be a claim under the Human Rights Act 1998 as some judges have commented that by bringing the Human Rights Act into force, Parliament intended that the infringement of rights protected by that Act should be remedied under the Act, and not by any other parallel remedies.

A recent attempt to establish a claim of misfeasance against CAFCASS was rejected by the court in the case of FD v CAFCASS in 2014.

A further claim in Williams and Another v London Borough of Hackney [2015] also failed – but the parents did get damages under the Human Rights Act. In this case the LA thought wrongly, but genuinely, that they had lawful authority to remove children pursuant to section 20 of the Children Act 1989. Thus misfeasance could not be established.

Breach of Statutory Duty

A person may have an action in tort for damage they have suffered as a result of a breach of a statutory duty. The claimant must show:

that the breach of the statutory duty has caused the loss;
that the damage suffered was of a type the statute was designed to prevent;
that the claimant belonged to a class of persons the statute intended to protect; and
that the damage suffered is of a type the court recognises.

Some statutes set out explicitly whether or not there is an actionable case, but most legislation is silent and the courts therefore have to “discover” Parliament’s intention.

The distinction between breach of statutory duty and negligence (see below) is often blurred.

The tort of negligence.

‘Negligence’ is also part of the civil law called ‘torts’. It means a failure to exercise the kind of care that could reasonably be expected in all the circumstances; it is about acting carelessly, not maliciously.

The ‘Bolam test’ (Bolam v Friern Hospital Management Committee [1957] 1 WLR 583) is applied when there can be legitimate disagreements between professionals about what is the right course of action:

a medical professional is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art . . . Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.

In order to succeed in getting compensation because of a negligent act you will need to show:

you are owed a duty of care;
there has been a negligent breach of that duty of care;
damage has flowed as a direct result.
you bring your claim within 6 years of the negligent act, otherwise you may not be allowed to proceed – the court has a discretion to extend this in cases of personal injury (see The Limitation Act 1980).

This is a complex area of law and you will need specialist advice – which this blog post does not claim to be.

What is a ‘duty of care’?

A duty of care may arise in the following circumstances, which overlap to some degree:

is there a relationship of proximity between the parties?
was the harm you suffered foreseeable?
is it fair, just and reasonable to impose a duty? See Caparo Industries plc v Dickman [1990] 2 AC 605.

Does the LA owe a duty of care to parents and/or children that it works with?

The situation for parents as opposed to children is different. With regard to parents, It’s important to consider the difference between:

parents who complain of negligence in the course of an investigation in the child’s welfare
and negligence in other aspects of professionals work with a family.

At the moment, the law does not allow the existence of a duty of care towards parents who are under investigation for possibly harming their children. But a duty of care has been found to exist in other circumstances, such as when LA don’t give full information about the background of an adopted child.

When is a duty of care owed to parents by a local authority?

No duty of care: Parents who are part of an investigation into their child’s welfare.

Parents who are subject to investigation or assessment by social workers or health professionals would at first glance appear to merit a duty of care, given the obvious harmful consequences of a botched investigation. However, the current legal position is that parents are NOT owed a duty of care from child protection professionals when they carry out their statutory duties to investigate and assess children.

The reasons why professionals do not have a duty of care to parents was discussed at length before the House of Lords (now the Supreme Court) in the case of JD (FC) v East Berkshire Community Health NHS Trust [2005] UKHL 23.

The case involved a number of appeals against decisions of the lower courts not to allow actions in negligence to proceed. Each case involved a child with a medical condition that was misdiagnosed and this misdiagnosis was assumed to be due to the failure by the the doctor or social worker to exercise the standard of skill and professional care that could reasonably be expected from such professionals. The parents suffered psychiatric harm by being wrongly accused of harming their children, and in some cases losing the care of their children whilst an investigation was carried out.

The court were happy to assume that professionals in the health and social care systems may owe a duty of care to the child who is the subject of the investigation (see para 30 of East Berkshire cited above). However, in January 2018 the Court of Appeal over turned this and said that there was no duty to of care to a child who was not removed from home. See CN v Poole BC

BUT in a judgment handed down on 6th June 2019 The Supreme Court have now revisited the decision of the Court of Appeal and confirmed that it should not be interpreted to mean “an assumption of responsibility can never arise out of the performance of statutory functions ” [para 72] thus returning the law to the position it was in prior to the Court of Appeal decision in Poole. The Supreme Court confirmed that the Court of Appeal were right to decide that no duty of care to the children arose in the circumstances of this particular case – but that doesn’t mean a duty of care could not be found in a different case.

See further discussion by The Transparency Project.

But back to parents. It appears to be remaining good law that there was no duty of care to parents if a professional got it wrong about whether or not a child had been harmed. Professionals were only expected to act ‘in good faith’ and could only be subject to legal action if they acted maliciously or recklessly.

An attempt to argue that a duty of care existed towards parents from CAFCASS was rejected by the case of FD v CAFCASS in 2014.

Why there should be no duty of care; arguments of public policy.

It is a very important legal principle that wrongs should be put right. We should only depart from this principle if there are powerful arguments in favour of doing so. What have the courts decided are these powerful arguments to explain why the parents couldn’t make a claim in these cases?

The child protection system is set up by statute to protect children from harm done to them by others. This gives professionals powers which they would not have without the authority of the statutes and the accompanying guidance. In many cases, their powers and duties may require them to act in a way that will bring them into conflict with the child’s parents; for example by removing a child from his or her home against the parents’ wishes.

Because professionals act under a statutory scheme where the welfare of the children is paramount, it would be against public policy to make professionals liable to pay compensation to the parents if they made mistakes in their decisions; they do not owe a ‘duty of care’ to the parents. They are only expected to act in ‘good faith’ – in other words, not make decisions maliciously or recklessly.

To expand on that general principle:

The child protection system involves lots of people from a variety of different roles, such as police, social workers, doctors and teachers who are obliged to work together and share information. At all stages the system involves joint discussions and joint decisions. Therefore it could be very difficult to identify precisely who was responsible for making the wrong decisions.

It can be very difficult to make decisions about children at risk and a lot of factors have to be taken into account. The child’s welfare has to come first. If child protection professionals were at risk of being sued for damages it might mean that they would adopt a more cautious and defensive approach and would delay making necessary decisions and put children at risk. There would be two sets of interests to consider – the child’s and the parents – which are often in conflict, for example if the parent is the perpetrator of harm upon the child.

The relationship between the parents and the professionals can often be very difficult and one of conflict which could lead to vexatious and costly litigation.

There are other remedies for the parent, such as following statutory complaint procedures or seeking damages for breach of their rights under the European Convention.

Imposing a duty of care in these circumstances would be a big change for the law and therefore requires Parliament to intervene and draft the new law, rather than the Judges deciding it.

Lord Bingham’s disagreement.

However, it is interesting to note that one of the Law Lords, Lord Bingham did not agree with the majority decision in the East Berkshire case. He pointed out at para 3:

But the law in this area has evolved very markedly over the last decade. What appeared to be hard-edged rules precluding the possibility of any claim by parent or child have been eroded or restricted. And a series of decisions of the European Court of Human Rights has shown that the application of an exclusionary rule in this sensitive area may lead to serious breaches of Convention rights for which domestic law affords no remedy and for which, at any rate arguably, the law of tort should afford a remedy if facts of a sufficient gravity are shown

He noted that it used to be the law that children couldn’t claim damages for breach of duty but this changed after the case of X (Minors )v Bedfordshire County Council in 1995. 5 children complained that they had been the victims of very serious neglect and maltreatment by their parents and the local authority had not acted to save them, even though it was well aware of what was happening. The court held that the children had no remedy in English law.

The children took their case to the European Court of Human Rights, which accepted that Article 3 of the ECHR had been violated as the children had suffered inhuman and degrading treatment because of the LA’s failure to act. The children were awarded damages of £320,000.

Lord Bingam further argued that it is wrong to give professionals a ‘blanket immunity’ and thus unjustifiably restrict a persons right to have his or her claim heard by a court.

He looked at the list of common justifcations for not allowing a duty of care to parents and rejected the contention that recognizing such a duty would necessarily undermine the ability of professionals to work to protect children. There was not automatically a ‘conflict’ between parents and professionals, even if the parents were the suspected perpetrators of the harm to the child.

This is because the parents were not complaining that there had been an investigation in the first place, but rather that the investigation had not been properly carried out and there had been a negligent failure to properly test the evidence. Therefore, there is arguably no conflict between parents and professionals – every one should agree that investigations should be carried out properly, regardless of the identity of the perpetrator.

The fact that there was disagreement between very senior and respected lawyers about the whether or not a duty of care should be owed to parents who were under investigation, shows that this is an area of law which could be open to challenge. However, the courts can probably go no further without some intervention from the government to explicitly change the existing law.

In the meantime, it seems that the Human Rights Act 1998 may provide the best avenue for those complaining about the actions of public officers; the Act came into force after the decision in East Berkshire, so obviously was not considered by the court.

Parents who are not part of the investigation.

The courts have been prepared to find a duty of care existed between local authorities and parents when the parents complained that they had suffered harm due to a failure to protect their children or given the parents relevant information about their children.

The case of Merthyr Tydfil County Borough Council v C in 2010 gives a useful overview of the case law in this area.

In this case, the mother of two children sought damages for psychiatric injury she suffered due to the negligence of the LA to properly investigate the sexual abuse of her children by another child. The LA wanted to strike out her cause of action. However the court reviewed the relevant authorities and found that where a local authority owes a duty of care to a child this does not make them immune from owing a duty of care to the child’s parents.

For example, local authorities which did not give full information to adoptive or foster families about their children, have been held to have a duty of care when a child placed by them has caused physical and psychiatric injury to a family who were not told the whole story about the child’s previous history of aggression or a risk of sexual abuse. There is no ‘conflict’ here between the duties to the child and the duty to the family so the arguments in East Berkshire do not apply.

In such cases the courts must distinguish between ‘policy’ and ‘operational’ decisions. So if the local authority has a statutory discretion to do or not do something under an Act, and the local authority decides not to act, this is a ‘policy’ decision which the court will not challenge in order to find a duty of care exists. But once a local authority decides to do something, this can become an ‘operational’ decision, which the court can look at and decide whether or not a duty of care exists between the parties.

Duty of care owed to children.

See discussions above about the twists and turns to the law following the Court of Appeal decision in Poole. The Supreme Court has confirmed that a duty of care can be owed to children, even if not taken into LA care.

We can trace the history of this developing position from the House of Lords decision in X v Bedfordshire CC [1995] 3 All ER 353] which did not survive challenge in the European Court, which found that the United Kingdom had breached Article 3 of the Convention (protection against torture, inhuman or degrading treatment and punishment) and Article 13 (effective remedy before a national authority). The children in that case had not been removed from their parents care and suffered very serious neglect and psychological harm as a result.

This was recognised in JD V East Berkshire, together with subsequent domestic cases, leading to the conclusion that it ‘could not now be plausibly argued that a common law duty of care may not be owed by a publicly-employed healthcare professional to a child with whom the professional is dealing’.

See paras 27-30:

The claim in W v Essex County Council [2001] 2 AC 592 was made not only by children (or those who had been children when they suffered abuse) but also by parents. The parents had fostered a child on an assurance that he was not a known sexual abuser when, to the knowledge of the local authority, he was, and during his placement with the parents he sexually abused their children. Hooper J struck out the parents’ claims but not those of the children: [1997] 2 FLR 535. The Court of Appeal (Stuart-Smith, Judge and Mantell LJJ) unanimously upheld the judge’s decision striking out the parents’ claim and by a majority (Stuart-Smith LJ dissenting) upheld his decision on the children’s claim, which was accordingly allowed to proceed: [1999] Fam 90 …

Phelps v Hillingdon London Borough Council [2001] 2 AC 619 was one of four appeals heard together by an enlarged committee of the House. In each case the plaintiff complained of allegedly negligent decisions concerning his or her education made by the defendant local authorities. The procedural histories of the four cases were different, but in three of them the Court of Appeal had struck out the plaintiff’s claim and in only one had it been allowed to proceed. The House unanimously dismissed the local authority’s appeal in that last case but allowed the plaintiff’s appeal in the other three. It was held to be clear in principle that a teacher or educational psychologist could in principle owe a duty of care to a child as well as an employing authority: pp 654, 665, 667, 670, 676. Valid claims in negligence were not to be excluded because claims which were without foundation or exaggerated might be made: pp 655, 665, 676. There was no reason to exclude the claims on grounds of public policy alone: pp 665, 672, 677. As my noble and learned friend Lord Nicholls of Birkenhead perceptively observed, “‘Never’ is an unattractive absolute in this context”: p 667.

In the case of Kirsty X v Oldham Metropolitan BC [2013] , a former care leaver brought an action against the LA for failing to remove her earlier from her parents and failing to provide her with effective therapy. This action failed. The Judge commented at paras 43 and 44:

Had the Defendant’s social workers decided to commence proceedings in November 1993, they could by no means be certain that the court would endorse the Claimant’s removal from her parents. Dr Dale acknowledged in cross-examination that an unsuccessful attempt to remove a child through court proceedings can often end cooperation with the parents. Professor Payne also referred to the difficulty of getting parents to cooperate in the absence of an order. After the assault, the records show that the parents were cooperating and there were some positive signs. Failed court proceedings at that stage risked undoing that. Accordingly any proper assessment of risk would not have been all one way. Those best placed to judge the risks were those on the ground working with the family at the time. There would be a range of reasonable responses from social workers acting in such circumstances. I accept that some would have sought removal at an earlier stage. However, having weighed all the evidence, I cannot say that the decision not to seek removal before September 1994 fell outside the ambit of decisions open to responsible social workers.

Professor Payne and Dr Dale have very different views as to the appropriate response in November 1993. I am satisfied that Professor Payne’s opinion accords with a responsible body of social work opinion at the relevant time. The Defendant’s social workers, including Mary Marrington, fitted into that body. Dr Dale’s view that the Claimant should have been removed from her parents at that time represents the view of an alternative body of social work opinion. The fact that the Defendant adopted one rather than the other does not lead to a finding that it acted negligently. In that respect, I cannot and do not accept Dr Dale’s opinion that no reasonable social worker would have failed to commence care proceedings in November 1993.

Liability of Local Authorities for abuse of children by foster carers

If a child is abused by a foster carer, in most cases it won’t be worth bringing legal action against the individual foster carers – they are unlikely to have enough money to pay substantial damages. However, the local authority will have much ‘deeper pockets’ and therefore over the years various efforts have been made to bring actions against local authorities for harm and abuse caused by their foster carers. The legal discussions have turned on two issues – ‘vicarious liability’ and ‘non-delegable duties of care’.

The current position appears to be that local authorities CAN be vicariously liable for the damage caused by abusive acts carried out by their foster carers, but the discussion of the case law that follows shows clearly that this is certainly not a simple or easily identifiable issue and the Supreme Court remains split on the best way to handle it. You will certainly need specialist legal advice if you are considering legal action in this field.

Vicarious liability

In NA v Nottinghamshire County Council [2015] EWCA Civ 1139 the Court of Appeal held that the local authority was not vicariously liable for the actions of abusive foster carers and did not have a non delegable duty of care to the child concerned.

Vicarious liability is considered at paragraph 8 of that judgment, the court approving the approach of Lord Phillips of Worth Matravers in his judgment in Various Claimants v Catholic Child Welfare Society and Others [2012] UKSC 56, [2013] 2 AC 1.

Lord Philips identified as the relevant issue whether the relationship between the local authority and the foster parents was sufficiently akin to an employment relationship to be capable of giving rise to vicarious liability.

In the vast majority of cases, vicarious liability arises between an employer and employee under a contract of employment.

The employer will be vicariously liable when the employee commits a tort in the course of his employment. There is no difficulty in identifying a number of policy reasons that usually make it fair, just and reasonable to impose vicarious liability on the employer when these criteria are satisfied: (i) the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability; (ii) the tort will have been committed as a result of activity being taken by the employee on behalf of the employer; (iii) the employee’s activity is likely to be part of the business activity of the employer; (iv) the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee; (v) the employee will, to a greater or lesser degree, have been under the control of the employer.”

However, the earlier cases considered foster carers to be very different from ’employees’; the essential element of ‘control’ that exists in relationship between employee and employer is not present here, as foster carers exist to provide experience of family life for children and must be able to exercise control of the day to day running of their homes.

The Court of Appeal cited approvingly an earlier Canadian authority:

Foster families serve a public goal – the goal of giving children the experience of a family, so that they may develop into confident and responsible members of society. However, they discharge this public goal in a highly independent manner, free from close government control. Foster parents provide care in their own homes. They use their own ‘equipment’, to use the language of Sagaz. While they do not necessarily ‘hire’ their own helpers, they are responsible for determining who will interact with the children and when. They gave complete control over the organization and management of their household; they alone are responsible for running their home. The government does not supervise or interfere, except to ensure that the child and the foster parents meet regularly with their social workers, and to remove the child if his or her needs are not met.

Non-delegable duty of care

The expression “non-delegable duties of care” is used to refer to duties not merely to take personal care in performing a particular function but to ensure that care is taken. This involves a higher standard of care than the ordinary ‘duty of care’. Duties involving this higher standard of care are ‘non-delegable’ because you cannot argue you have discharged your duty just by taking reasonable care in selecting someone else to carry out the function in question.

With regard to the issue of whether or not the LA owed a ‘non-delegable duty’, the Court of Appeal in the Nottinghamshire case considered the factors identified by the Supreme Court in the case of Woodland v Swimming Teachers Association and Others [2013] UKSC 66, [2014] AC 537 and decided it would not be right to impose such a duty on the local authority in this case.

Lord Sumption in Woodland identified two broad categories of case in which a non-delegable duty of care has been held to arise.

a large and varied class of cases where the defendant employs an independent contractor to perform some function which is “either inherently hazardous or liable to become so in the course of his work”
cases where the common law imposed a duty which had three critical characteristics.
- First, the duty arises because there is already a relationship between the defendant and the claimant.
- Secondly, the duty is a positive one to protect a particular class of persons against a particular class of risks
- Thirdly, the duty is by virtue of that relationship personal to the defendant (para 7).

Further decision of the Supreme Court in Armes

However, this issue of local authority responsibility for abusive foster carers was then considered in the case of Armes v Nottinghamshire County Council in 2017. As a child, the claimant was abused physically and sexually by two different sets of foster parents. The court did not find that the local authority were negligent in the selection or supervision of the foster parents. The Supreme Court examined both the issues of vicarious liability and the non-delegable duty of care.

At the first hearing of this case, the Judge rejected the argument of vicarious liability by relying on Lord Philips’ judgment as discussed above. With regard to the issue of non-delegable duty of care, the judge found it would not be fair or reasonable to impose a duty on the local authority:

it would impose an unreasonable financial burden on local authorities providing a critical public service. Funds used to compensate the victims of historical abuse would not be available to meet current needs.
There would also be a significant financial impact on local authorities in terms of recruitment practices, training requirements and supervision, all of which might become more intensive. Financial compensation was in any event an unsatisfactory form of recompense for abuse.
there was a real danger that the imposition of a non-delegable duty would discourage local authorities from placing children with foster parents, even where reasonable steps had been taken to ensure their suitability.
it was inherent in foster care placements that the local authority did not have the same control over the day to day lives of the children as they had over children in residential homes. That was a benefit to the children in foster care and was necessary in order to give them the experience of family life which was the purpose of fostering.
it would be difficult to draw a principled distinction between liability for abuse committed by foster parents and liability for abuse committed by others with whom a local authority decided to place a child, including her own parents.

The Court of Appeal agreed with the judge at first instance, but gave a variety of reasons why.

The Supreme Court looked at the issue of non delegable duty and considered at para 37:

The critical question is whether the function of providing the child with day-to-day care, in the course of which the abuse occurred, was one which the local authority were themselves under a duty to perform with care for the safety of the child, or was one which they were merely bound to arrange to have performed, subject to a duty to take care in making and supervising those arrangements.

The local authority were held NOT to owe a non delegable duty of care – local authorities are encouraged to maintain the child’s relationship with his family and a non delegable duty of care could lead to the local authority being strictly liable for any harm caused to the child when having contact with his parents. The law of tort would risk creating a conflict between the local authority’s duty towards the children to maintain their relationships with their parents, and the local authorities wish to avoid being exposed to such liability.

But when considering the issue of vicarious liability, the Supreme Court held that the local authority were so liable for the abuse carried out by the foster carers. See para 60:

Although the picture presented is not without complexity, nevertheless when considered as a whole it points towards the conclusion that the foster parents provided care to the child as an integral part of the local authority’s organisation of its child care services. If one stands back from the minutiae of daily life and considers the local authority’s statutory responsibilities and the manner in which they were discharged, it is impossible to draw a sharp line between the activity of the local authority, who were responsible for the care of the child and the promotion of her welfare, and that of the foster parents, whom they recruited and trained, and with whom they placed the child, in order for her to receive care in the setting which they considered would best promote her welfare. In these circumstances, it can properly be said that the torts committed against the claimant were committed by the foster parents in the course of an activity carried on for the benefit of the local authority.

The Supreme Court was unimpressed with the argument that the local authority should not be held vicariously liable for the abuse of the foster carers, in case this had financial implications due to costs of compensating child victims. See para 69:

…if, in other words, there has been such a widespread problem of child abuse by foster parents that the imposition of vicarious liability would have major financial and other consequences – then there is every reason why the law should expose how this has occurred. It may be – although this again is empirically untested – that such exposure, and the risk of liability, might encourage more adequate vetting and supervision. It is all very well to point to the cost of such precautions, and to the cost of compensating the victims, and to complain that this will divert the resources of local authorities from other channels. That is a point which might be made in relation to many claims against public bodies, including claims against local authorities arising from the abuse of children in residential homes.

But the debate is unlikely to end here. Lord Hughes agreed with the analysis with regard to non-delegable duty of care but NOT with the decision about vicarious liability:

But the extension of strict liability needs careful justification. Once one examines the nature of fostering, its extension to that activity does not seem to me to be either called for or justified, but, rather, fraught with difficulty and contra-indicated. Accordingly, I would uphold the decision of the Court of Appeal and dismiss this appeal.

No doubt more case law will be generated about this issue and it will be important to get specialist legal advice if you are considering making a claim.

Damages in Negligence and time limits on your claim.

The general aim behind an award damages is to put you in the position you were before the wrongful action happened. For a useful over view of what you can claim for in a negligence action against a professional, see the case of Hamilton-Jones v David and Snape (a firm) [2004] 1 WLR 924. This is a complicated area of law and you are going to need some specialist advice.

With regard to how long you have to make a claim, the general rule for negligence claims is that they must be brought within 6 years of the date when the damage in question was suffered. This is not always an easy rule to apply as sometimes it is difficult to define when the loss was suffered.

However, under section 11 of the Limitation Act 1980 claims for personal injury arising out of negligence are subject to a three year limitation period. For a child, the 3 years starts running when he reaches adulthood.

This has the potential to cause injustice as the claimant might not even be aware of relevant facts at the time damage was suffered (such as sexual abuse suffered during childhood). In those kinds of cases, it is possible to extend the limitation period by another 3 years from the date when the claimant knew (or ought reasonably to have known) about the relevant facts.

You may be able to ask the court to exercise its discretion to let your claim under section 11 proceed, even if you are out of time, by relying on section 33 of the Limitation Act. See the case of Ellam v Ellam [2015] EWCA Civ 287 for further discussion of this issue.

When considering extending the limitation period, the court shall have regard to all the circumstances of the case and in particular to:

(a )the length of, and the reasons for, the delay on the part of the plaintiff;
(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 [F34, by section 11A] or (as the case may be) by section 12;
(c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant;
(d )the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;
(e )the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;
(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.

Judicial Review

Ways to bring public bodies to account.

Public law remedy

For an example of a case where parents were awarded damages after bringing a successful action in judicial review; see the case of AB and AD v The London Borough of Haringey in 2012.
For more information about judicial review, see the Public Law Project.
There is a helpful guide to applications for judicial review on the www.justice.gov.uk site.
See this article by David Burrows Judicial Review and How it Works

‘Public law’ is that body of law which governs the operation of public bodies, such as local authorities. This contrasts with ‘private law’ which is the law governing activities between individuals.

Thus care proceedings are ‘public law proceedings’ because they involve an application by a public body, the local authority. But disputes between parents over where their child should live are called ‘private law proceedings’ because no public body is involved.

A remedy in public law is ‘judicial review’ (JR). You can apply to the court to ask that a public body, such as local authority is forced to do or to stop doing something because they are acting unlawfully, by being unreasonable or irrational.

It is defined under the Civil Procedure Rule 54.1(2)(a) as a claim to review the lawfulness of –

an enactment; or
a decision, action or failure to act in relation to the exercise of a public function.

There is a two stage process in applying for JR. At the first stage you will seek the court’s permission to make the application. Many applications will fall at this hurdle. If you get permission your application then goes before a judge who will hear arguments and decide what order, if any, to make.

Grounds of Judicial Review

There may well be some overlap between these grounds.

llegality or unlawfulness – a failure to act within the law. Did the decision maker understand the law they were applying? Did the decision making apply the correct law? Did the decision maker fail to take into account relevant issues?
Irrationality – did the decision maker reach a decision so unreasonable that no reasonable decision maker could have made the same decision?
Procedural impropriety – did the decision maker act fairly? Was the decision maker biased?

Limitations of JR as a means of righting wrongs.

The first difficulties are practical ones:

JR is considered a remedy of ‘last resort’ – you will be expected to have tried other avenues to resolve your problems first and your application will not succeed if the court thinks you have failed to do this.
The time limits for making an application are very short and very strict. See CPR Part 54.5(1). You must make your application for permission to apply for judicial review promptly and in any event not later than 3 months after the grounds upon which the claim is based first arose.

JR is also not about ‘righting wrongs’ but is a way the judges check that the decision making process was fair. So the judge will not be examining the merits of any particular decision by a public body, but only if they acted in accordance with the law.

Therefore, even if you are successful in your application for JR this is not a guarantee that the LA will ultimately make a different decision in your case – only that the court will tell them they need to think again.

Remedies

You can get a declaration that a public body has acted unlawfully or an injunction to stop them from acting unlawfully.
A claim for judicial review may include a claim for damages, restitution, or the recovery of a sum due, see CPR 54.3(2).

Damages as a remedy

There is no right in judicial review to claim damages for losses caused by unlawful actions of a public body. It is only possible to receive damages in judicial review claims if there is another established cause of action such as breach of statutory duty, misfeasance in public office or a private action in tort. We shall look at these in more detail below.

See section 31(4) of the Senior Courts Act 1981

You cannot use JR to try to prevent a LA issuing care proceedings

An important point to note is that parents cannot try to stop either EPO or care proceedings by making an application for JR – see the case of R v Gloucestershire CC [2003] heard by Munby J (as he then was).

JR Is a remedy of last resort and it should not be used when there is another effective and convenient remedy available – i.e. contesting the care proceedings in the family court;
JR is a blunt and unsatisfactory tool when the matters in issue are as sensitive and as difficult as they usually are in care proceedings;
the greatest possible caution is called for when the purpose of JR is to restrain the commencement of proper proceedings in a domestic court which has jurisdiction.
The family court should never feel inhibited from acting urgently to protect the interests of children.

But there are limited circumstances where you can apply for JR when care proceedings are ongoing

See the case of H, R (on the application of) v Kingston Upon Hull City Council [2013] EWHC 388. It is possible, but it will be rare:

There have not been – in so far that counsel and I have been able to determine – any reported case of judicial review proceedings in relation to ICO’s. It was felt by counsel – and I am inclined to agree – that challenges whilst care proceedings are in train are usually made within the confines of the family court when an application to revoke the ICO is made or a renewal application is made. Ordinarily, the Administrative Court will not countenance judicial review proceedings when there is an alternative remedy – especially so when that alternative is a judicial remedy. However, that does not mean that judicial review cannot apply to decisions made by local authorities whilst care proceedings are in train. I am of the view that there are limited – perhaps very limited circumstances – where an application can be made justly. This would be so when a person affected by a decision is not actually a party to the care proceedings and might not have a sufficiently good reason to be made an intervener in those proceedings. It might equally apply where (as here) a party (the mother) does not wish to challenge the basis of the ICO, but merely a decision made by the LA as to its implementation. It may be that a local authority has reached a conclusion in respect of which it refuses to alter (despite the request of the family court). All the family court can do is to exhort (it usually works – but it does not always) or revoke the ICO. The family court is not exercising the jurisdiction of the High Court in, the now infrequently used, wardship procedure where by the court makes all important decisions about all aspects of a child’s life as used to be the case. In my judgment the circumstances whereby judicial review is applicable whilst care proceedings are in progress (and there is an extant ICO) are likely to be rare and distinctly fact specific. The Administrative Court is very alive to the concept of an alternative remedy.

The Social Worker tells me my child needs medical treatment?

This post looks at the legal and practical difficulties parents may face if they disagree with doctors or social workers about the medical treatment their child needs. Doctors cannot examine or treat anyone without getting consent, unless the situation is life threatening and urgent. Medical intervention can range from the trivial to the really serious and the further up the scale of intervention you go, the more likely you are to encounter disagreements about the best way forward. Who gets to decide and how?

The case of Ashya King

For more detail about Ashya King’s case see this post from the Transparency Project.

The issue of managing disagreements between parents and doctors came to the fore in September 2014 with the case of Ashya King, a five year old boy who was being treated for cancer in the UK. His parents and the hospital could not reach agreement about the best treatment options for Ashya; his parents removed him from the UK to seek treatment abroad and were then arrested after the hospital informed the police and the local authority (LA) of their disappearance.

The LA applied for Ashya to be made a ward of court, which meant that no decision could be taken about his treatment without permission from the court. Upon arrest, Ashya’s parents were kept apart from their son for several days. The case caused enormous concern both in the UK and internationally. Of particular concern is the parents’ view that they had no choice but to leave in the way they did as they were alarmed by the hospital suggesting that the LA would need to get involved, even to apply for an emergency protection order. It is clear that the working relationships between the parents and the doctors must have seriously deteriorated, if not broken down completely.

When the case came before Baker J on September 8th he discharged the wardship. He found that the earlier decision to make Ashya a ward of court was justified on the information that the court had before it. But now the position had changed; there was a clear treatment plan which was not opposed by either the LA or Ashya’s guardian. The Judge could not comment on the desirability of issuing a European arrest warrant which resulted in the parents’ detention, but commented that it was clearly not in Ashya’s best interests to have been separated from his parents.

So what happens if you disagree with the treatment proposed by professionals?

The importance of consent.

The fundamental principles of consent were discussed in the case of A (Children) [2000]. Every adult person of sound mind has the right to say what can and can’t be done to his body. Without consent, medical examinations or procedures are unlawful – they are either the criminal offence of assault or the civil offence of trespass to the person. Therefore it is very clear that consent must be given to any kind of treatment or examination unless its an emergency and doctors say they had to act out of ‘necessity’.

Consent is only valid if it is:

voluntary – given freely;
informed – understanding the implications of consenting;
and the person giving it has capacity – they are capable of making decisions.

Who does not have capacity?

A ‘child’ is defined in the Children Act as a person between the ages of 0-18 years, but it’s really important to distinguish between children who are 16 and older as 16-17 year olds can provide consent to treatment as if an adult.

Children under 16, unless found to be ‘Gillick competent’ do not have the capacity to consent to treatment. A child will have capacity only if he or she is able to understand the nature, purpose and possible consequences of the treatment proposed. For a useful discussion of issues that arise around understanding and capacity see the article about transgender children in Further Reading below.
Adults or children over 16 years, may not have capacity as defined by the Mental Capacity Act 2005, if they can’t make their own decisions because of some problem with the way their brain or mind is working. This could arise due to illness, disability or exposure to drugs/alcohol. It doesn’t have to be a permanent condition.

An example of a situation where an adult was found not to have capacity to consent to medical treatment, is the ‘forced C-Section’ case of 2013 (see P (A Child) [2013) where the pregnant mother was experiencing serious mental health difficulties and the hospital were concerned about the risks of a natural birth in such circumstances.

Who do doctors ask if the patient doesn’t have capacity?

They will need to get:

consent from someone who has parental responsibility (PR) for the child; or
permission from the court in the case of an adult who lacks capacity or where there is a dispute between adult carers of the child.

Parental Responsibility

Parental responsibility is defined at section 3 of the Children Act 1989. The British Medical Association (BMA) ethics guidance from 2008 describes PR in these terms:

Parental responsibility is a legal concept that consists of the rights, duties, powers, responsibilities and authority that most parents have in respect of their children. It includes the right to give consent to medical treatment, although as is discussed below, this right is not absolute, as well as, in certain circumstances, the freedom to delegate some decision-making responsibility to others. In addition, competent children can consent to diagnosis and treatment on their own behalf if they understand the implications of what is proposed (see below). Those with parental responsibility also have a statutory right to apply for access to the health records of their child, although children who are mature enough to express views on the issue also need to be asked before parents see their record. Parental responsibility is afforded not only to parents, however, and not all parents have parental responsibility, despite arguably having equal moral rights to make decisions for their children where they have been equally involved in their care.

In theory, doctors only need consent from one person with PR to go ahead with treatment. However this will rarely be a wise course of action if there are strong objections from others who have involvement in the child’s upbringing. The best ethical option in cases of dispute, is to apply to the court for an order to either allow or refuse the treatment in question.

An example of such application to court can be found in the case of Neon Roberts, whose parents disagreed about the best way to treat his cancer. Parents may also disagree about specific medical interventions, such as circumcision or blood transfusions on religious grounds.

While the parties are waiting for a court decision regarding treatment, doctors should only provide emergency treatment that is essential to preserve life or prevent serious deterioration of health.

If the doctors consider that by refusing consent to treatment you are not acting in your child’s best interests, they will need to raise this issue with the LA who may need to consider issuing care proceedings.

Further information for doctors and patients.

The British Medical Association (BMA) publishes guidelines and can be contacted for advice.

BMA members may contact: 0300 123 1233 or British Medical Association Medical Ethics Department BMA House, Tavistock Square, London WC1H 9JP Tel: 020 7383 6286 Email: [email protected].
Non-members may contact: British Medical Association Public Affairs Department BMA House, Tavistock Square, London WC1H 9JP Tel: 020 7387 4499 Email: [email protected]

What if I am sharing PR with the LA?

If a care order has already been made then you share PR with the LA. It is clear that it would be unwise for doctors to feel they need only seek permission from the LA, particularly if the proposed treatment is significant. Efforts should always be made to reach agreement, particularly if the proposed medical intervention is not going to involve significant impact on a child’s bodily integrity.

If you don’t feel able to agree to relatively simply medical procedures or assessments, that may raise question marks in the minds of the professionals about how you are discharging your parental responsibility. It is not difficult to see how such situations can spiral out of control (as in the case of Ashya King above) with parents being very suspicious of doctors and vice versa. As ever, good communication is the key; if you are worried about a particular procedure, say so and say why. Ask for further explanation and discussion.

If agreement just isn’t possible, again applying to court may be the only option. The LA cannot simply make any decision they like even when they do share PR under a care order. They can only act when it is ‘necessary’ to safeguard or promote the child’s welfare. See section 33(4) of the Children Act 1989 and considerations of proportionality under Article 8 of the ECHR. The LA also remain under a duty to consult parents before making any serious decisions about a child who is subject to a care order.

See this case from 2013 where Kingston on Hull City Council were subject to a successful judicial review of their failure to consult parents. The Judge made clear at paragraph 58 his views about the duty to consult:

I have made it clear that there is a duty upon a local authority to consult with all affected parties before a decision is reached upon important aspects of the life of a child whilst an ICO is in force. I have been shown the guidance issued by HM Government to local authorities in 2010 [The Children Act 1989 Guidance and Regulations] where there is valuable material available to social workers about how to approach their difficult task in this regard. Paragraph 1.5 provides (inter alia): “Parents should be expected and enabled to retain their responsibilities and to remain closely involved as is consistent with their child’s welfare, even if that child cannot live at home either temporarily or permanently.” … “If children are to live apart form their family, both they and their parents should be given adequate information and helped to consider alternatives and contribute to the making of an informed choice about the most appropriate form of care.”

Principles of law when there is disagreement about the treatment a child needs.

If it is not possible to reach agreement, the court will have to make a decision about what kind of treatment/intervention is in the best interests of the child. Baker J set out the relevant principles to be applied in such cases (see para 29 of his judgment in September 2014):

The child’s welfare is the most important issue before the court ;
The court must also have regard to the child’s rights under the ECHR; most pertinently the right to life under Article 2 and the right to respect for family and private life under Article 8;
Responsibility for making decisions about children rests with the parents and the state should only interfere if the child is suffering or at risk of suffering significant harm.

For consideration of how the court should approach a case when doctors wish to stop giving life sustaining treatment to a seriously ill child, see the case of Kirklees Council v RE [2104].

The Mental Capacity Act 2005

Care proceedings may involve parents who are said to ‘lack capacity’. In this post we will discuss what that means and what are the implications for the care proceedings.

The Law – the Mental Capacity Act 2005

The Mental Capacity Act came into force in 2007 and provides a statutory framework for people who lack capacity to make decisions for themselves, or who want to prepare for possibly losing their capacity in the future.

It sets out who can take decisions for people who lack capacity, in which situations, and how they should go about this There is a Code of Practice that needs to be read along side the Act. The Act covers England and Wales and applies to everyone who is over 16 years of age.

You must keep this Act separate from the Mental Health Act 1983 – that Act deals with people who have been diagnosed with a mental health problem that is so serious they pose a risk to themselves or other people and therefore they need to be detained and treated, even if this is against their will.

The Mental Capacity Act applies to everyone who looks after someone who lacks capacity to make particular decisions for themselves. This includes social workers and doctors, as well as family or professional carers.

Key principles of the MCA

These are set out at section 1 of the Act.

Presumption of Capacity. All adults have the right to make decisions for themselves unless it can be shown that they are unable to make them. You can’t assume someone can’t make decisions just because they have a particular disability.
Maximising Decision Making Capacity. Everyone should be given all the help and support they need to make a decision before anyone concludes that they cannot make their own decision. For example, some people with learning disabilities find it much easier to understand information that is presented in pictures, rather than lots of words.
Right to be Unwise. Making an unwise or eccentric decision doesn’t automatically mean you lack capacity; people are allowed to make decisions that others might think unwise.
Best interests. Any actions taken or decisions made on behalf of someone who lacks capacity must be done in their best interests, after considering what is known about their preferences. Try to involve the person who lacks capacity as much as possible.
Least Restrictive Option. People who lack capacity should not be restricted unnecessarily; when making decisions for someone else you need to be careful to examine if what you are doing poses the least interference with that person’s freedoms.

The Court of Protection

It was established by section 45 of the MCA. It can:

decide whether a person has capacity to make a particular decision for themselves;
make declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make such decisions;
appoint deputies to make decisions for people lacking capacity to make those decision;
remove deputies or attorneys who fail to carry out their duties.

The Court of Protection Rules of 2007 have been amended by new rules which come into force in April and July 2015 – see this blog post by Lucy Series which discusses the important changes they make to issues of transparency and participation.

See further the website www.courtofprotection.com for more information and discussion.

What does ‘lack of capacity’ mean?

An inability to make decisions

Someone is said to lack capacity if they can’t make their own decisions because of some problem with the way their brain or mind is working. This could arise due to illness, disability or exposure to drugs/alcohol. It doesn’t have to be a permanent condition.

There is an interesting post here by suesspicious minds about someone who was said to lack capacity due to his alcoholism; the court heard evidence from a variety of sources and decided that he did have capacity.

If you ‘lack capacity’, to make a certain decision, this is more serious than just being unable to make up your mind or finding a particular decision difficult; someone who lacks capacity will generally find it hard to understand information, retain it or weigh it up and then communicate their decision to someone else.

Lack of capacity is defined in section 2 of the MCA:

(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
(2) It does not matter whether the impairment or disturbance is permanent or temporary.
(3) A lack of capacity cannot be established merely by reference to—
(a )a person’s age or appearance, or
(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.
(4) In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.

Section 3 of the MCA sets out what is meant by an inability to make decisions. A person is considered unable to make a decision for himself if he is unable:

to understand the information relevant to the decision,
to retain that information,
to use or weigh that information as part of the process of making the decision, or
to communicate his decision (whether by talking, using sign language or any other means).

A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).

If a person ‘lacks capacity’ to take part in legal proceedings, that doesn’t necessarily mean they can’t make any decisions at all – it may depend on the seriousness and complexity of the decision before them. For example, a decision about what to have for lunch is much less taxing than a decision about what instructions to give your lawyer in court.

The leading case discussing the test to determine capacity remains Masterman-Lister [2003]. The test of capacity which was identified here has been incorporated into the MCA 2005.

I am told I need an assessment of my capacity – what does this involve?

An assessment of someone’s lack of capacity is covered at para 4.38 of the Code of Practice. This is an important issue which needs to be dealt with quickly as it can have serious consequences for care proceedings, both in terms of necessary assessments and the fairness of the court process. The court should consider issues of capacity at the earliest opportunity. Your lawyer is under an obligation to raise this issue as soon as they have any doubts about your capacity to instruct them.

The court does not require expert evidence from a psychologist or psychiatrist in order to make a decision that you do or do not have capacity, but these experts are often asked to provide an assessment.

However, if it is very clear a person lacks capacity – due to being in a coma for e.g. – then the court is likely to be satisfied by just a letter from the treating doctor.

The Code of Practice considers the necessary practical steps for someone who is assessing capacity . The assessor must understand what the person being assessed is asked to decide about. The assessor must also bear in mind the five principles of the MCA as set out above and start from the presumption that the person has capacity.

The assessor should explain all the information relevant to the decision. The explanation must be in the most appropriate and effective form of communication for that person.

See para 4.49 of the Code of Practice.

Check the person’s understanding after a few minutes. The person should be able to give a rough explanation of the information that was explained. There are different methods for people who use non- verbal means of communication (for example, observing behaviour or their ability to recognise objects or pictures).
Avoid questions that need only a ‘yes’ or ‘no’ answer (for example, did you understand what I just said?). They are not enough to assess the person’s capacity to make a decision.
But there maybe no alternative in cases where there are major communication difficulties. In these cases, check the response by asking questions again in a different way.
Skills and behaviour do not necessarily reflect the person’s capacity to make specific decisions. The fact that someone has good social or language skills, polite behaviour or good manners doesn’t necessarily mean they understand the information or are able to weigh it up.
Repeating these steps can help confirm the result.

The British Medical Association publish a useful interactive tool to help doctors assess a patient’s capacity.

What follows from an assessment that you lack capacity

Appointment of a ‘litigation friend’

In family proceedings, if a person is found to lack capacity then they become a ‘protected party’. and they will need a ‘litigation friend’ who will conduct the proceedings on their behalf.

See Part 15 of the Family Procedure Rules, Practice Direction 15A and Practice Direction 15B and this guidance.

According to the Practice Direction, a litigation friend must

fairly and competently to conduct proceedings on behalf of a protected party. The litigation friend must have no interest in the proceedings adverse to that of the protected party and all steps and decisions the litigation friend takes in the proceedings must be taken for the benefit of the protected party.

Anyone can be a litigation friend, as long as they can meet the requirements of the rules and Practice Directions. The requirement that you must not have an interest in the proceedings which might be against the interests of the protected party may mean it is not sensible to have a close family member acting as a litigation friend – see the case of P v Nottingham in 2008, discussed below, where the mother’s parents and brother had put themselves forward as litigation friends but were also putting themselves forward to care for her child. The court held they should not have been appointed.

The Official Solicitor

The court may invite the Official Solicitor to act as the litigation friend. The Official Solicitor provides access to the justice system to those who are vulnerable by virtue of their young age or lack of mental capacity.

However, it should be noted that the OS’s department has only about 20 lawyers and 40 caseworkers. It has very little spare capacity. Therefore, the OS should only be invited if there is no other person suitable or willing to act.

See the note of the OS’s position on being invited to act as a litigation friend
the 2014 checklist for the appointment of a litigation friend
For discussion of the role of the OS and also judicial reaction to John Hemming’s allegations of corruption in the family justice system, see P v Nottingham CC [2008]. This case went all the way to the European Court – which dismissed complaints that the mother’s Article 8 and 6 rights had been breached by the appointment of the OS.

Court of Protection rules

Part 17 of the Court of Protection 2007 rules which governed the appointment of litigation friends in the Court of Protection has now been replaced by the Court of Protection (Amendment) Rules 2015.

Lucy Series describes the impact of these amendments:

The amended rules now allow a person to be represented by an ‘accredited legal representative’ or even just a ‘representative’ without a litigation friend. An accredited legal representative is defined as ‘a legal representative authorised pursuant to a scheme of accreditation approved by the President to represent persons meeting the definition of “P” in this rule in proceedings before the court’. So presumably the President will shortly announce a scheme of accreditation for certain lawyers who can represent the relevant person without taking instruction from a litigation friend. I would be really interested to see whether this may lead to changes in how they represent the person – for example, will we see a move towards a more adversarial model, like that adopted in the Mental Health Tribunals, where representatives basically argue for what the person wants and not for what they don’t want, rather than arguing for what (in their view) is in the person’s best interests?

Can I still give evidence in my case if I am found to lack capacity?

See para 1.4 and 1.5 of the Practice Direction.

Where the court determines that a party does not have capacity to conduct the proceedings, the court may well also have to determine whether that party is able to give evidence and if so whether ‘special measures’ are required. Expert evidence is also likely to be necessary for the court to make such determinations. However, as in relation to the question of litigation capacity, the court may consider that evidence from a treating clinician who has a good understanding of the party’s difficulties may be sufficient. If the treating clinician is provided with information about the legal framework, the clinician may be able to provide that evidence more readily and more quickly than an expert instructed to give an opinion as to the party’s ability to give evidence.
Where the protected party is able to give evidence, the representative will wish to consider (and ask the expert to consider) the impact on that party of giving evidence. When making a determination as to whether that protected party should give evidence, the court may need to consider whether the impact of giving evidence would be so adverse to their condition that it would not be in that party’s best interests to do so. The representative may put forward an argument on behalf of the protected party that the protected party should not give evidence.

I don’t agree I ‘lack capacity’ – what can I do?

Capacity can fluctuate over the course of proceedings. See para 4.1 of the Practice Direction 15B:

Litigation capacity may be lost or regained during the proceedings as a result of deterioration or improvement in the impairment of, or disturbance in the functioning of, the party’s mind or brain. The necessity for expert evidence or evidence of a treating clinician as to a party’s capacity can therefore arise at any time during the proceedingsThe assessor should give reasons why they believe the person lacks capacity to make the decision, and provide objective evidence to support that belief. The assessor must also show they have applied the principles of the Mental Capacity Act.

Therefore, even if you were assessed at the start of proceedings as lacking capacity, you could argue that the situation has now changed.

If you simply don’t accept the first assessment, It might be possible to get a second opinion from an independent professional or another expert in assessing capacity. Chapter 15 of the Code of Practice offers other suggestions for resolving disagreements over the issue of capacity, such as mediation. But this may not be practicable if you are in care proceedings and decisions have to be made quickly. Your best option may be simply to apply to the court to get another assessment.

Restrictions on freedom of movement under MCA

What are the Mental Capacity Act 2005 Deprivation of Liberty Safeguards?

An important question is whether or not living arrangements made for someone who is mentally incapacitated amount to a ‘deprivation of liberty’. If they do, that deprivation has to be authorised.

The Deprivation of Liberty Safeguards (DoLs) set out in the MCA apply to anyone in a care home or hospital. These provide an independent check on whether or not these arrangements are made in the best interests of that person. If the person is living somewhere other than a hospital or care home, the Court of Protection must authorise that placement.

As Lady Hale said in the Cheshire West case (which we discuss below):

It is merely a recognition that human rights are for everyone, including the most disabled members of our community and that those rights include the same right to liberty as everyone else.

DoLs were introduced by the MCA after the UK was found to be in breach of Article 5 of the ECHR in 2004. Article 5 protects people’s right not to be deprived of their liberty unless this is due to a small number of limited circumstances, such as being convicted of a crime.

The safeguards involve:

an independent assessments of a person’s capacity to consent to care arrangements and consideration of what is in their best interests.
those being assessed are entitled to assistance from a representative, an independent advocate and non-means tested legal aid to appeal against their detention in the Court of Protection.

What does ‘deprivation of liberty’ mean?

EDIT – The Government on 14th March 2018 published its response to the Law Commission’s Mental Capacity and Deprivation of Liberty report. The headline is that the Government “agree[s] in principle that the current DoLS system should be replaced as a matter of pressing urgency,” and that it will legislate in due course. Before the introduction of any new system, the Government has said that it will “need to consider carefully the detail of these proposals carefully and ensure that the design of the new system fits with the conditions of the sector, taking into account the future direction of health and social care.”

The circumstances in which someone can be said to be ‘deprived’ of their liberty have caused much discussion and debate, particularly when considering people who would end up with restrictions placed on their freedoms wherever they went, to stop them hurting themselves.

This issue finally got before the Supreme Court in 2014 in the case of Cheshire West. The court decided that the essential questions they needed to ask were:

Is the person subject to continuous supervision and control?
Is the person free to leave?

It was NOT relevant to the issue of whether or not someone had been deprived of their liberty to say that they did not object or they were living in a relatively ‘normal’ placement. As Lady Hale said in paragraph 46 of her judgement in Cheshire West:

…But, as it seems to me, what it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities. If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person. The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage.

For a different view about the philosophical arguments that underpin our understanding of what makes a ‘deprivation of liberty’ see the judgment of Mostyn J in Rochdale MBC v KW [2014] discussed here at the Mental Capacity Law and Policy blog. The Judge commented at paragraph 7 of his judgment that he found it impossible:

…to conceive that the best interests arrangement for Katherine, in her own home, provided by an independent contractor, but devised and paid for by Rochdale and CCG, amounts to a deprivation of liberty within Article 5. If her family had money and had devised and paid for the very same arrangement this could not be a situation of deprivation of liberty. But because they are devised and paid for by organs of the state they are said so to be, and the whole panoply of authorisation and review required by Article 5 (and its explications) is brought into play. In my opinion this is arbitrary, arguably irrational, and a league away from the intentions of the framers of the Convention.

At paragraph 17 he set out his fundamental disagreement with the majority of the Supreme Court:

It is clear that the driving theme of the majority opinions is a denunciation of any form of discrimination against the disabled. With that sentiment I naturally wholeheartedly agree. Discrimination is found where like cases are not treated alike. However, when making Lord Kerr’s comparison you do not have two like cases. You are comparing, on the one hand, a case where an 18 year old does not need protection and, on the other, a case where the 18 year old does. They are fundamentally dissimilar. The dissimilarity justifies differential treatment in the nature of protective measures. For me, it is simply impossible to see how such protective measures can linguistically be characterised as a “deprivation of liberty”. The protected person is, as Mill says, merely “in a state to require being taken care of by others, [and] must be protected against their own actions as well as against external injury”. And nothing more than that. In fact it seems to me to be an implementation of the right to security found in Article 5.

Mostyn J remains bound by the decision of the Supreme Court. However, The Law Commission are currently reviewing this area of law around deprivation of liberty and hope to report by 2017. The report will consider how deprivation of liberty should be authorised and supervised in hospitals, care homes and community settings, where it is possible that Article 5 rights would otherwise be infringed. This will include considering the legislation underpinning DoLS in its entirety.

Expert Pyschological Reports

Why do the courts need psychological reports?

A tension exists in court proceedings. It is the Judge who hears the evidence and makes the decision. But some matters – such as physical or mental ill health – may be outside the Judge’s understanding. In recent years, instruction of psychiatrists and/or psychologists had become almost the default position in care proceedings, in an attempt to assist the court to understand why a parent was struggling to provide good enough parenting.

However, leading up the Children and Families Act 2014 (see below), there were serious concerns about not only the ubiquity of such reports (used in over 90% of cases), but their reliability and ultimate usefulness in determining care proceedings.

For comment on the widespread use of expert reports in 2010 see this paper by Dr Judith Masson of Bristol University: The use of experts in child care proceedings in England and Wales, benefits, costs and controls.

Two of the key problems of care proceedings – the time they take and the amount they cost have strong links to the substantial use of experts. Delay has been a major problem in care proceedings since before the Children Act 1989 (Murch et al 1987), at least for the cases heard in the higher courts. It was hoped when the Act was implemented that cases would be completed in 12 weeks but this was never realized. Throughout the 1990s the length of cases increased. Three separate reviews in 1995, 2001 and 2004 failed to do more than describe the problem. The use of experts was identified as a major cause of delay through difficulties identifying suitable experts, chosen experts being unable to take on cases because of their workload or not meeting the court deadline for completing the work and requests for reports being made late in the proceedings. A key factor in this was a shortage of experts but further examination of this with medical experts established that there was a very large pool of potential experts who had never been asked to take on this work (CMO 2006). It has also been suggested by social work academics that the problem is “the pursuit of an unattainable level of certainty‟ through repeated assessments of the parents (in)ability to care (Beckett and McKeigue 2003).

David Bedingfield considered the issue of expert evidence in an article for Family Law Week in 2013:

The expert, as we all know, is expected to give an opinion about the most significant issues in a case. A paradox underlies the use of all expert evidence: the reason an expert is required is that the decision-maker lacks the expertise of the expert and requires that expert’s help. How is that same decision-maker also competent to judge the content of the expert’s evidence? How is the decision-maker to choose, for example between two competing experts, each using different methodologies beyond the ken of any non-specialist?

Judges, and Parliament, have been seeking an answer to that question since at least the late 18th century. One of the responses always canvassed is this: cede the decision to a specialist panel of experts. Courts, however, have been jealous of their jurisdiction to decide disputes, and (it is submitted) for good reason: courts in the United Kingdom have deservedly developed a reputation for fairness and for careful consideration of the competing interests involved in any dispute. Courts have also now developed a considerable body of law, giving to litigants and their advisors at least some reasonable certainty that like cases will be treated alike.

This move to restrict expert evidence must therefore be understood as part of a century-long struggle by the judiciary to maintain its jurisdiction, and to deal with the ever-increasing complexity presented by disputes involving scientific or medical evidence.

The report of Professor Ireland – poor quality of expert reports?

Evaluating Expert Witness Psychological Reports: Exploring Quality’ was a study by Professor Ireland in 2012 and funded partly by the Family Justice Council. However, they later distanced themselves from the conclusions of this study over concerns about its methodology. See this post on Pink Tape.

The report examined 126 psychological reports provided in family proceedings. The results were disturbing – over two thirds of the reports were rated as ‘poor’ or ‘very poor’.

There was also evidence that unqualified experts being instructed to provide psychological reports. One fifth of instructed psychologists were not deemed qualified on the basis of their submitted Curriculum Vitae, even on the most basic of applied criteria.

Only around one tenth of instructed experts worked in external clinical settings; most therefore had become ‘professional expert witnesses’ which has implications for the expert’s ability to keep up to date with changing practice in his/her field.

Professor Ireland recognised the limitations of this study, which is of a preliminary nature only, but the findings do raise questions about the quality of such expert reports.

Particular areas of concern were noted:

An over-reliance on psychometrics, use of defunct assessments, and using assessments with no validity;
The under-use of recognised methods to assess risk in cases involving domestic violence, general violence and sexual violence;
a proportion of experts commenting on mental health and yet having no indicated background in that area.

These are significant concerns and merit further research using a larger sample of reports.

The Family Justice Council reported in 2011 (having seen Professor Ireland’s draft report)

[The report] points to serious issues both with the quality of reports and the qualifications of those carrying them out. We are not surprised in view of the concerns we heard expressed throughout our work about the quality of reports generally. We recommend that studies of the expert witness reports supplied by various professions be commissioned by the Interim Board, subsequently the Family Justice Service.

Agreed quality standards for experts in the family courts are clearly needed and we recommend that they should be developed. The FJS should lead this work. Meeting the standards could be a requirement for payments to be approved by the LSC. Criteria could include adherence to set timescales, membership of appropriate professional bodies and completion of specified court focused training, peer review and continuing professional development.

In May 2016 Professor Ireland was subject to disciplinary action concerning this report. She was accused of reaching conclusions that were not justified by the data and threatening fellow psychologists with legal action if they did not withdraw complaints about her research. However, on June 8th 2016 ALL CHARGES DISMISSED

How do the courts now approach the use of expert psychological reports?

The Children and Families Act 2014 has attempted to put clear limitations on the use of expert evidence.

Under section 13(6) the court will now only give permission for an expert to be instructed where it is ‘necessary’ in order to resolve the proceedings justly.

Under section 13(7), in order to decide whether or not such an instruction is ‘necessary’ the court will have particular regard to:

any impact which giving permission would be likely to have on the welfare of the children concerned,
the issues to which the expert evidence would relate,
the questions which the court would require the expert to answer,
what other expert evidence is available (whether obtained before or after the start of proceedings),
whether evidence could be given by another person on the matters on which the expert would give evidence,
the impact which giving permission would be likely to have on the timetable for, and duration and conduct of, the proceedings,
the cost of the expert evidence, and
any matters prescribed by Family Procedure Rules.

Practice Direction 25B which sets out the duties of an expert, how the expert’s report should be set out and what arrangements must be made to bring the expert to court. With regard to standards expected of experts, the expert must:

have knowledge appropriate to the court case,
have been active in the area of work or practice and has sufficient experience of the issues relevant to the case,
is either regulated or accredited to a registered body where this is appropriate,
have relevant qualifications and has received appropriate training, and
comply with safeguarding requirements.

Paragraph 9(1) of the Practice Direction sets out onerous requirements for the content of the expert’s report. It must:

give details of the expert’s qualifications and experience;
include a statement identifying the document(s) containing the material instructions and the substance of any oral instructions and, as far as necessary to explain any opinions or conclusions expressed in the report, summarising the facts and instructions which are material to the conclusions and opinions expressed;
state who carried out any test, examination or interview which the expert has used for the report and whether or not the test, examination or interview has been carried out under the expert’s supervision;
give details of the qualifications of any person who carried out the test, examination or interview;
answer the questions about which the expert is to give an opinion and which relate to the issues in the case.

When compiling the report, the expert must

take into consideration all of the material facts including any relevant factors arising from ethnic, cultural, religious or linguistic contexts at the time the opinion is expressed, identifying the facts, literature and any other material, including research material, that the expert has relied upon in forming an opinion;
describe the expert’s own professional risk assessment process and process of differential diagnosis, highlighting factual assumptions, deductions from the factual assumptions, and any unusual, contradictory or inconsistent features of the case;indicate whether any proposition in the report is an hypothesis (in particular a controversial hypothesis), or an opinion deduced in accordance with peer-reviewed and tested technique, research and experience accepted as a consensus in the scientific community;
indicate whether the opinion is provisional (or qualified, as the case may be), stating the qualification and the reason for it, and identifying what further information is required to give an opinion without qualification;

If there is a range of opinion on any question to be answered by the expert, he or she must:

summarise the range of opinion;
identify and explain, within the range of opinions, any ‘unknown cause’, whether arising from the facts of the case (for example, because there is too little information to form a scientific opinion) or from limited experience or lack of research, peer review or support in the relevant field of expertise;
give reasons for any opinion expressed: the use of a balance sheet approach to the factors that support or undermine an opinion can be of great assistance to the court.

Importance of the procedural rules on instructing experts.

For a case where it all went horribly wrong, see Re C (A Child) [2015]. The procedural requirements had not been followed and the Court of Appeal noted:

Both the Magistrates and the Circuit Judge had ignored the statutory scheme that determines how applications for expert instructions should be made, set out in section 13 of the Children and Families Act 2014, part 12 FPR 2010, part 25 FPR 2010 and PD 25B (paras 24 – 29; para 33).
The Magistrates’ reasons were inadequate (para 22).
The manner in which the burden had been placed on the Father to demonstrate that a report was unnecessary was ‘simply wrong’ and the entire procedure had been unfair to him (para 13; para 34).
There is guidance in existence as to how litigants in person can be afforded access to justice which had not been followed in this case (paras 14 – 16).
It was also wrong for the order made to have been worded so as to direct the Father to undertake a medical procedure; this violated an ‘elementary principle’ and was ‘unlawful’. It was also wrong to direct costs to be shared, particularly where those costs were an unknown quantity (paras 35 – 37; para 50).
The Circuit Judge’s approach to the appeal of the Magistrate’s decision, that this was a case management decision which was an exercise of discretion which should not be interfered with, was a ‘superficial approach to an important question of procedural justice’.

For a further example of the serious consequences that arise when an expert goes beyond their remit see G, Re [2019] EWFC B70 (13 June 2019) where the court agreed a complaint should be made to the expert’s regulatory body.

Some appointed experts in various fields such as counselling are not required to be members of any regulatory body and therefore careful thought should be given about whether or not they should be instructed.

This matter has been raised directly with the President at the end of 2019 and it is hoped that serious consideration will be giving to amending the Practice Direction so that any expert reporting on a child must be a member of an external regulatory body. For further discussion see this open letter to the President of the Family Division.

Guidance from The Transparency Project

The Transparency Project published a guidance note on the use of experts in family proceedings in September 2018 and this can be downloaded here.

Good Enough Parenting

There is no such thing as a ‘perfect parent’

Society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, whilst others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the State to spare children all the consequences of defective parenting. In any event, it simply could not be done. …It would be unwise to a degree to attempt an all embracing definition of significant harm. One never ceases to be surprised at the extent of complication and difficulty that human beings manage to introduce into family life.

Mr Justice Hedley in Re L (Care: Threshold Criteria) (Family Division 26 October 2006)

The state can only interfere in your parenting if your child is beyond your control, you have caused your child significant harm or there is a serious risk you will cause that harm in the future.

Being a less than ‘perfect parent’ does not mean that professionals can assume you will cause significant harm to your child. You just have to be ‘good enough’. Its a phrase you will often hear in care proceedings. But what does it mean?

Who are parents and why is parenting important?

You don’t have to be a child’s biological mother or father to be involved in ‘parenting’ that child. Anyone in the wider community who is involved in the child’s development could be said to be part of the parenting process – such as grandparents, teachers, friends and neighbours.

A child needs ‘good enough’ parenting to survive and grow into a healthy, functioning adult. His basic needs for food and shelter have to be met to ensure his physical survival, but meeting such basic needs is not the only obligation of parents. If a child’s emotional needs are neglected or ignored, that is likely to have a serious impact on the child for all his life. Developing a healthy ‘attachment’ between child and adult carer is an important part of parenting.

What do we mean by ‘good enough parenting’?

Donald Winnicott was an English paediatrician and psychoanalyst and probably the first to use the phrase ‘good enough parent’. He recognised that it was unrealistic to demand perfection of parents, and was interested in finding out what made them ‘good enough’.

He believed that the key to healthy development was rooted in a child’s relationships and interactions with others.

With the care that it receives from its mother each infant is able to have a personal existence, and so begins to build up what might be called a continuity of being. On the basis of this continuity of being the inherited potential gradually develops into an individual infant. If maternal care is not good enough then the infant does not really come into existence, since there is no continuity of being; instead the personality becomes built on the basis of reactions to environmental impingement.” (Winnicott, 1960)

Dr Jennifer Kunst describes Winnicott’s ‘good enough mother’ as:

… sincerely preoccupied with being a mother. She pays attention to her baby. She provides a holding environment. She offers both physical and emotional care. She provides security. When she fails, she tries again. She weathers painful feelings. She makes sacrifices. Winnicott’s good enough mother is not so much a goddess; she is a gardener. She tends her baby with love, patience, effort, and care.

Components of good enough parenting

Talking, reading, playing, cuddling and communicating

The Joseph Rowntree Foundation report ‘Assessments of Parents and Parenting Support Needed’ showed that professionals who worked with families, together with those in health and education, could agree on the main components of good enough parenting:

meeting children’s health and developmental needs;
putting children’s needs first;
providing routine and consistent care;
parental acknowledgement of any problems and engagement with support services.

‘Risky’ or ‘not good enough parenting’ was basically the reverse of this: not meeting the children’s needs, not putting them first etc. but it would be important to recognise if the risky behaviours identified represented a ‘one off’ or was a more regular part of the parents’ approach.

Part of being a good parent is preparing your child for environments outside your home. See the Social Mobility and Child Poverty Commission report in October 2014, ‘State of the Nation 2014: Social Mobility and Child Poverty in Great Britain’, which looked at what Frank Field highlighted as the essential skills children need by the time they join the reception year at primary school:

To sit still and listen;
To be aware of other children;
To understand the word no and the borders it sets for behaviour;
To understand the word stop and that such a phrase might be used to prevent danger;
To be potty trained and able to go to the toilet;
To recognise their own name;
To speak to an adult to ask for needs;
To be able to take off their coat and put on shoes;
To talk in sentences;
To open and enjoy a book.

Things which can get in the way of good parenting.

The Department of Education reviewed the literature in this field as part of the Childhood Wellbeing Research Centre programme (see further discussion below).

An extensive body of evidence shows how factors such as domestic abuse, substance misuse, mental health problems and learning disability undermine parenting capability and increase the likelihood of significant harm, particularly when they occur in combination. Moreover, parenting does not take place in isolation. Parents are also influenced by stressors within the wider environment and family, such as poor housing, poverty and unemployment that make parenting more challenging and increase the likelihood that difficulties will arise.

Is there a universal definition of ‘good enough’ parenting?

While we can probably all agree about the importance of the basic needs of providing a child with food and clothes, problems may arise in care proceedings when professionals don’t share the same outlook as the parents as to what is important for the children and why.

The participants in the JRF report above were aware that they bought their own personal beliefs about parenting to the process and there could be problems if those doing the assessing came from a very different background to the parents being assessed.

For example, parents from some cultures may have strong views on whether or not it is acceptable to physically punish children. Are they automatically not ‘good enough’ parents because their approach is not universally accepted? The NSPCC and others in 2015 raised serious concerns about a judgment that appeared to ask for ‘allowances’ to be made for those from other cultures who smacked their children.

The DoE commented:

Practitioners reported concerns about making judgements and assumptions or being too accepting of behaviours, assessing whether parental practices were the cultural norm or individual beliefs and behaviours, and fears about damaging parent-practitioner relationships.

This can be a particularly acute problem when dealing with parents with learning disabilities or mental health problems, who may face discrimination and lack of understanding from professionals.

It is important to give every parent an opportunity to show they can be ‘good enough’, with support if necessary and professionals need to be wary of making automatic negative assumptions about certain parenting styles. The key issue of ‘significant harm’ must always be borne in mind.

The case of BR (Proof of Facts) [2015] set out a useful precis of what is commonly identified as ‘positive’ and ‘negative’ factors that might impact on parenting.

However the court stressed that the existence or otherwise of any of these factors proved nothing – children can still be abused in a supportive family environment or thrive in care of physcially/mentally disabled parents. But they offer a useful framework for an assessment, and highlight the areas that professionals will be looking at.

Risk factors

Physical or mental disability in children that may increase caregiver burden
Social isolation of families
Parents’ lack of understanding of children’s needs and child development
Parents’ history of domestic abuse
History of physical or sexual abuse (as a child)
Past physical or sexual abuse of a child
Poverty and other socioeconomic disadvantage
Family disorganization, dissolution, and violence, including intimate partner violence
Lack of family cohesion
Substance abuse in family
Parental immaturity
Single or non-biological parents
Poor parent-child relationships and negative interactions
Parental thoughts and emotions supporting maltreatment behaviours
Parental stress and distress, including depression or other mental health conditions
Community violence

Protective factors

Supportive family environment
Nurturing parenting skills
Stable family relationships
Household rules and monitoring of the child
Adequate parental finances
Adequate housing
Access to health care and social services
Caring adults who can serve as role models or mentors
Community support

Assessing parents’ capacity to change.

How can parents move from ‘not good enough’ to ‘good enough’? In July 2014 the Department of Education published ‘Assessing Parental Capacity to Change when Children are on the Edge of Care’

Executive Summary Introduction

Assessing Parental Capacity to Change when Children are on the Edge of Care is an overview of current research evidence, bringing together some of the key research messages concerning factors which promote or inhibit parental capacity to change in families where there are significant child protection concerns. It is intended to serve as a reference resource for social workers in their work to support families where children’s safety and developmental functioning are at risk. Its purpose is also to assist social workers and children’s guardians in delivering more focused and robust assessments of parenting capability and parental capacity to change, and assist judges and other legal professionals in evaluating the quality of assessment work in court proceedings. The report brings together research findings from a wide range of disciplines, which are not otherwise readily available in one location for social workers, family justice professionals and other practitioners with safeguarding responsibilities.

The research evidence covered in this report confirms that change is both important and necessary when children are suffering abuse and neglect. However it also makes it clear that change is difficult for everyone, but even harder for those parents who are struggling with an interlocking web of problems. It also takes time. Change is a complex process, and although it can be supported and promoted through effective interagency interventions, it cannot be imposed. It will not happen unless parents are proactively engaged. These are the key messages from the review.

The report notes:

The assessment of parenting capability and capacity to change needs to reflect the complex reality of child protection cases, including consideration of the individual challenges and wider environmental problems faced by families; how multiple problems interlock; and the potential impact of factors such as coercion or the pressure on parents to present themselves in a positive light.

Addiction

Addaction – One of the UK’s largest specialist drug and alcohol treatment charities.

Adfam – Improving support for families affected by drugs and alcohol. The only national umbrella organisation working specifically with and for families affected by drugs and alcohol. Aim is that no family member in need of support should go without it.

Al-Anon – An international organisation with over 800 support groups in the UK and Republic of Ireland. Al-Anon is a fellowship of relatives and friends of alcoholics who share their experience in order to solve their common problems.

Alcoholics Anonymous -A fellowship of men and women who share their experience, strength and hope with each other that they may solve their common problem and help others to recover from alcoholism. National Helpline 0845 769 7555 [email protected].

Alcohol Concern -Leading national charity working on alcohol issues. Their goal is to improve people’s lives through reducing the harm caused by alcohol and to change the drinking culture in this country.

Drugrehab.com – a substance abuse guide for parents and useful guide for PTSD and substance use disorders

DrugScope -The leading UK charity supporting drug and alcohol professionals. A source of independent information on drugs and drug related issues.

Frank – Offers advice on drugs – whether you are a user or afraid that someone close to you is being affected by drug abuse. Also gives guidance on all types of drugs and their effects.

Narcotics Anonymous – A non-profit fellowship or society of men and women for whom drugs had become a major problem. Members are recovering addicts who meet regularly to help each other stay clean.

National Treatment Agency – The NTA was created as a Special Health Authority in 2001 to improve the availability, capacity and effectiveness of drug treatment in England. The NTA’s role was to ensure treatment services in England delivered on both the public health and criminal justice agendas, reflecting the interests of the Department of Health (DH), responsible for funding the NHS as well as public health services, and the Home Office, the lead Whitehall department on drugs policy and crime reduction.

Alcohol Testing – What are the options?

There is a very informative article in Family Law Week by barristers Julie Stather and Farooq Ahmed which discusses the options available in testing for alcohol consumption.

The leading case remains London Borough of Richmond v B & W & B & CB [2010] EWHC 2903 (Fam) which offered guidance as to the evidential worth of hair strand testing:

When used, hair strand tests should form only part of the evidential picture. They should not be used in isolation to reach evidential conclusions: “You cannot put everything on the hair strand test.”
The results of hair strand tests should only be used to determine whether or not there has been excessive alcohol consumption by the use of the cut off level.
A level lower than the cut off level is consistent with abstinence or social drinking. There is no agreed cut off level for the line between abstinence and social drinking.
“The tests are not designed to establish abstinence or social drinking” (paragraph 22(iii)).
Research evidence suggests that 10% of the results obtained by hair strand testing are false positives.
Hair strand testing is therefore valuable to form part of an evidential picture when the aim of the testing is to determine whether a person has been consuming more than 7 units of alcohol a day, on average, over the testing period. However, it is only valuable when used in conjunction with other evidence such as other forms of testing and other forensic evidence.

Getting information from public bodies

Access to general information

Access to information about you

Data Subject Access Request (DSAR)

How long can a LA hold information about you?

Contact the Information Commissioner

Claims against public bodies for breach of the Human Rights Act 1998

Introduction

The requirements of the Human Rights Act 1998

What is an unlawful act and what is a public authority?

Who can make an application under the HRA?

What remedy can you get?

Article 41 of the ECHR

General principles about awards of damages pursuant to Article 41

How have the courts approached damages under the HRA 1998?

The concept of ‘just satisfaction’.

How should damages be assessed? And what is an appropriate award?

What did the Law Commission say?

The implication of the costs of proceedings

Guidance and warning from Anufrijeva

Other issues regarding HRA applications

Limitation periods: You must make your claim within a year if its a ‘free standing’ application.

Injunctions under the Human Rights Act

If care proceedings are on going

The impact of the statutory legal aid charge – new guidance from 2018

Making a complaint pursuant to section 26 of the Children Act 1989

Damages awarded in other cases

Further reading

Misfeasance in public office

Breach of Statutory Duty

The tort of negligence.

What is a ‘duty of care’?

Does the LA owe a duty of care to parents and/or children that it works with?

When is a duty of care owed to parents by a local authority?

No duty of care: Parents who are part of an investigation into their child’s welfare.

Why there should be no duty of care; arguments of public policy.

Lord Bingham’s disagreement.

Parents who are not part of the investigation.

Duty of care owed to children.

Liability of Local Authorities for abuse of children by foster carers

Further decision of the Supreme Court in Armes

Damages in Negligence and time limits on your claim.

Ways to bring public bodies to account.

Public law remedy

Grounds of Judicial Review

Limitations of JR as a means of righting wrongs.

Remedies

Damages as a remedy

You cannot use JR to try to prevent a LA issuing care proceedings

But there are limited circumstances where you can apply for JR when care proceedings are ongoing

The case of Ashya King

So what happens if you disagree with the treatment proposed by professionals?

The importance of consent.

Who does not have capacity?

Who do doctors ask if the patient doesn’t have capacity?

Parental Responsibility

Further information for doctors and patients.

What if I am sharing PR with the LA?

Principles of law when there is disagreement about the treatment a child needs.

Further reading

The Law – the Mental Capacity Act 2005

Key principles of the MCA

The Court of Protection

What does ‘lack of capacity’ mean?

An inability to make decisions

I am told I need an assessment of my capacity – what does this involve?

What follows from an assessment that you lack capacity

Appointment of a ‘litigation friend’

The Official Solicitor

Court of Protection rules

Can I still give evidence in my case if I am found to lack capacity?

I don’t agree I ‘lack capacity’ – what can I do?

Restrictions on freedom of movement under MCA

What are the Mental Capacity Act 2005 Deprivation of Liberty Safeguards?

What does ‘deprivation of liberty’ mean?

Further reading

Why do the courts need psychological reports?

The report of Professor Ireland – poor quality of expert reports?

How do the courts now approach the use of expert psychological reports?

Importance of the procedural rules on instructing experts.