Monthly Archives: February 2015

Egregious Failures by a Local Authority : Damages under the Human Rights Act in Care Proceedings: Northamptonshire County Council v AS and Ors (Rev 1) [2015] EWHC 199 (Fam)

On 30 January 2015 Mr Justice Keehan handed down his judgment in Northamptonshire County Council v AS and Ors (Rev 1) [2015] EWHC 199 (Fam). It is another case where the Local Authority having breached parties Articles 6 and 8 rights in care proceedings the court awarded damages within care proceedings.

This case concerned a newborn baby who suffered months of delay after birth. Eventually placed with grandparents he is noted to be thriving in their care. Para’s 32 and 33 are worth highlighting to any child law practitioners and serve as a helpful reminder of the remedy of damages for breaches of the Human Rights Act within care proceedings,

“32. Despite the appalling conduct of the local authority hitherto, it is right that I record that at the final hearing the local authority conceded it was liable in respect of both claims. It accepted it had acted in violation of DS’s and the mother’s article 6 and article 8 convention rights as follows:

(a) The local authority failed to take any protective action to safeguard the child despite having concerns that he was at risk of suffering significant harm between 15 and 30 January 2013, in breach of his article 6 and 8 rights.



(b) Whilst the child was accommodated pursuant to section 20 CA on 30 January 2013, a decision to initiate proceedings was not made until 23 May 2013 and an application for a care order was not made until 5 November 2013. Over this period of 11 months the child was without access to any independent representation of his welfare interests and had no access to any remedy or recourse and no person was exercising parental responsibility for him, in breach of the child’s article 6, 8 and 13 rights.



(c) The local authority, by its acts or omissions, caused or contributed to a series of delays in the filing of necessary evidence during the course of the care proceedings and the final evidence filed for hearing in October 2014 was inadequate and incomplete, in breach of the child’s and mother’s article 6 rights.



(d) The delays and general mismanagement of the case by the local authority has been seriously prejudicial to the child’s welfare and the child’s and mother’s ability to enjoy a family life with a member of his extended family prior to November 2014, which may have irredeemable consequences for the child’s future welfare and development. Such failures were in breach of the child’s article 8 rights.



(e) The child and mother were subject to a high turnover of social workers and locum social workers with conduct of his case file leading to a lack of cohesive, comprehensive management and care for a significant period of time and in breach of the child’s and mother’s article 6 rights and prejudicial to their article 8 rights.



(f) The local authority failed to organise contact between the child and his mother in accordance with an explicit order of the court and the advice of the Children’s Guardian for a significant period of time and poor organisation and communication by the local authority led to various sessions of contact being cancelled. Such failures were in breach of the child’s and mother’s article 8 rights.

33. The local authority agreed to pay damages:

i) to DS in the sum of £12,000;
ii) to the mother in the sum of £4,000; and
iii) to pay a sum of £1000 to the maternal grandparents to assist them in their care of DS. 
I was helpfully referred to a number of authorities in which damages had been awarded against local authorities who had acted in breach of a child’s and/or a parent’s human rights. Having reviewed those authorities I am entirely satisfied that the damages offered by the local authority in this case are entirely appropriate. 
”

Rebekah Wilson
Barrister Garden Court Chambers
Views expressed are the authors alone

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Judicial Review on domestic violence evidence requirements fails: 
R (on the application of Rights of Women) v The Secretary of State for Justice [2015] EWHC 35 (Admin)

Lord Justice Fulford and Mrs Justice Lang DBE have rejected Rights of Womens much needed challenge against the regulations (regulation 33) on domestic violence. For practitioners who work in the field of domestic violence and for people who care about gender based violence this is a disappointing and somewhat confusing blow.

In summary
Rights of Women submitted that ‘regulation 33 is ultra vires section 12(2) of LASPO 2012. It only empowers the Defendant to “make provision for the making and withdrawing of determinations” under section 9, which sets out the criteria for eligibility, by reference to paragraph 12 of Schedule 1. It is apparent from the types of provision listed in section 12(3) that the regulations are intended to be procedural in nature. However, regulation 33 imposes inflexible evidential requirements which go beyond the eligibility criteria in section 9 and paragraph 12, and which have the effect of wrongly excluding applicants from the scope of legal aid.’

Further Rights of Women submitted that, ‘regulation 33 imposes requirements or conditions which thwart or frustrate the statutory purpose, applying the principle in Padfield v. Minister of Agriculture [1968] AC 997. It impairs the right of access to legal advice and the courts in family proceedings by women (and their children) who have suffered physical and/or psychological harm as a result of domestic violence.’

Both arguments were rejected by the Court. Although the arguments were rejected the Court did find, inter alia,

“I am satisfied that the Claimant has shown a good arguable case that some victims of serious domestic violence, who are genuinely in need of legal aid, cannot fulfil the requirements of regulation 33. Typically, victims are excluded in circumstances where serious domestic violence led to a complete breakdown of the relationship, and then, more than 24 months later, there is an application by the perpetrator of the violence for contact with a child of the family, or ongoing contact arrangements break down. By the date of application for legal aid, their evidence of domestic violence is older than 24 months, but they remain fearful of their former partner.” and

“Whilst the evidence in this case indicates that it may not be operating effectively in practice, that is a matter for the Defendant, and ultimately Parliament, to address.”

So the court have acknowledged that there are victims of domestic violence who should be able to have access to legal aid but can’t. They have said that the Government and parliament should address this problem.

The Court found that the lack of legal aid is not an actual bar to accessing the courts but of course for a victim of domestic violence having no representation and having to challenge their perpetrator in person serves as a de facto bar.

Lets hope that Rights of Women can get the support they need to pursue this case further.

Rebekah Wilson
Barrister Garden Court Chambers
(views expressed are the authors alone)

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