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Posted 13 December 2016
Tozers Abuse team review the recent case law whereby Compensation of £20,000 was awarded to each child for breaches of the Human Rights Act by the Brighton Family Courts
The case of Re X, Y and Z (Damages – Inordinate Delay in Issuing Proceedings)  EWFC B44 several interesting issues.
- the validity of a Section 20 agreement to accommodate the children
- whether the social worker obtained appropriate consent,
- whether that consent had an expiry date,
- was a delay of 2½ years before Care Proceedings were issued a breach of duty of care.
- the judgement further explores whether damages for compensation under the Human Rights Act for breaches of Articles 6 and 8.
- the Judge criticised the Independent Reviewing Officer in their failure to properly challenge the Local Authority, particularly on the timescales and permanency planning.
Whilst the commentary dealing with how to apply Section 20 of the Children Act 1989 and the role of Independent Reviewing Officers is helpful in our practice, this article shall concentrate on the comparison between damages awarded under the Human Rights Act and those awarded in the Civil Courts.
In this particular case, the children were accommodated under Section 20 for 2½ years and damages were awarded of £20,000 each for breach of their Article 6 and 8 rights which covered damages for the Local Authority’s failures as follows:
- A failure to assess their needs for an inordinate period of time – over two years before any report was obtained:
- The fact that they were denied access to any independent legal representation for two and a half years;
- Lack of promotion of contact with their mother even though X indicated that he would like to return to live her – there was no contact for twelve months;
- No comprehensive assessment of their needs although it was indicated as early as March 2013 that such an assessment was required;
- Frequent changes in placement without any input from anyone with parental responsibility.
- Placement with the previous foster carer, without any such assessment or understanding of any abuse they had suffered
- The fact that the children are now in separate long term foster placements with no contact with each other or any other relative and X is not in a culturally appropriate placement.
The Judge then concluded that ‘it is apparent that the end result for these children is not a good one. It is not possible now to say that the outcome would have been any different if proceedings had been issued in early to mid-2013 which should have occurred. However, it is difficult to see how the outcome would have been much worse and the loss of a chance of a better conclusion must be reflected in any award that is made’.
From a civil compensation point of view, the issues surrounding the operation of Section 20, how this is used in practice, as well as identifying any failings by the Independent Reviewing Officer are all areas that we need to carefully consider in identifying whether any claim has arisen.
We instruct an Independent Social Work Expert to assess whether there is a common law breach of duty of care.
Why Not Claim Civil Compensation?
The Judgement does not state why the claim was brought under the Human Rights Act, rather than in the Civil Courts. However, the principles of claiming compensation in the civil Courts can often result in higher awards being made. A broad comparison between the 2 causes of action can be seen as follows:
|Human Rights Act Damages||Civil Compensation
|Claims must be made within 1 year from the date of the alleged breach of an Article Right. There is some discretion to extend this period, but you would have to show there was a good reason not to bring your claim outside of the 1 year timeframe.
|Claims must be issued at Court within 3 years of the relevant date, or if a child, within 3 years of their 18th birthday.
However, case law exists in which the Civil Court has exercised a discretion to dis-apply this 3 year limitation period in cases involving sexual abuse.
Limitation Act 1980 applies.
|Claims can only be made against a Public Authority.
|Claims can be brought against a range of Defendants, such as public authorities, an individual, an employer of an employee acting in the course of their employment, members of a church or religious order, community organisations, such as the scouts or independent clubs, schools and holiday clubs, institutions or private schools.
|There is no need to distinguish between pecuniary and non-pecuniary loss||General Damages awarded for the injury to compensate for the pain, suffering and loss of amenity (non-pecuniary loss).
Special Damages awarded for past and future financial losses, such as treatment, care and assistance, earnings and pension loss (pecuniary losses).
|The awards should be moderate. No further guidance and no tariff of awards.
|General Damages assessed by a Judge comparing previously awarded damages with cases already decided in the civil Court or by considering the JC Guidelines, a publication specifically designed to assist the Courts in determining reasonable compensation.
Special Damages determined by the judge upon consideration of supportive independent expert evidence obtained from a range of experts specifically tailored to the facts of the individual case. In the majority of cases expert evidence is obtained from a psychiatrist, psychologist, educational psychologist, care/occupational therapist, dentist, career or employment expert.
|There should be no awards for exemplary or aggravated damages.
These cannot be awarded against a public authority.
|In some cases, exemplary and/or aggravated damages can be awarded and often can attract from £10,000 upwards and which is paid in addition to General and Special Damages.
However, exemplary or aggravated cannot be awarded against a public authority and is limited to claims against individuals.
|No need to prove injury. The ECtHR has frequently held that a finding of breach of Article 6 is sufficient to justify the requirement of ‘just satisfaction’ and no award of damages was made.
There is more likely to be an award of damages where a breach of Article 6 occurs together with a breach of another Article right.
|A requirement to prove that an injury has occurred (physical or psychological) and that the injury is caused by the breach of duty of care or negligence of the Defendant.
In the event that a common law breach of duty of care or negligence is established, then damages will be awarded upon the provision of supportive medical expert condition and prognosis evidence.