Legal aid statutory charge and care proceedings

No application to family courts proceedings

 

Following on from HRA damages and legal aid: a Pyrrhic exercise?  a narrow question has arisen over whether the Family Court has power to award damages. More to the point: has the Family Court administration got power to permit issue of ‘civil proceedings’ under Human Rights Act 1998 (‘HRA’); and can family judges award damages?

 

These questions arise immediately where parents or children have been pursuing claims for HRA damages arising from local authority claims, often in relation to care proceedings in the family courts. In the above article I have expressed doubts as to whether this is correct. It is important because in some cases the Legal Aid Agency (‘LAA’) are simply mopping up damages received by parents or their children and setting it against the legal aid in the care proceedings. If they have been allowed to do this by children’s, or parents’, lawyers, I believe this to be unlawful; and if I am right, the LAA should pay the money back.

 

The issue arises from Human Rights Act 1998 (‘HRA’) s 8, as relevant for present purposes, says:

 

8 Judicial remedies

(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.

(2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings.

 

Most people reading that would probably say that its ordinary English words mean that in the case of an ‘unlawful’ act (which refers back to maladministration by a public authority under HRA ss 6 and 7 under European Convention 1950) a court can make an appropriate order ‘within its powers’. If it chooses to make an order for damages the court so doing must have ‘power to award damages… in civil proceedings’ (s 8(2)).

 

At the time of the coming into operation of HRA a family law text-book Family Law and the Human Rights Act 1998 (Swindells et al, 1999) considered s 8(1) and (2) to mean:

 

2.20  A damages award can be made only by a court with jurisdiction to do so (HRA 1998 s 8(2)). As it is doubtful that family courts have such jurisdiction, if damages are sought the claim will have to be made in the civil courts.

 

6.70  … The family courts do not in any event have any power to make awards of damages even were they to be persuaded that Convention rights had been violated and damage suffered as a result.

 

I am not aware of any judge saying in terms that that was wrong; though a lot of HRA water has flowed under the bridge since then. I know of no family law case which deals with the meaning of s 8(2) (I have searched the FLR assisted search facility on HRA s 8).

 

Application in family proceedings

 

First, what proceedings can be issued in family courts? In the family courts the form of court proceedings is defined by Courts Act 2003 s 75, which takes you to Matrimonial and Family Proceedings Act 1984 and, eventually, you arrive at Senior Courts Act 1981 Sch 1 para 3. This defines the list of forms of proceedings – ‘family business’ – which can be issued in the courts under Family Procedure Rules 2010. There is no mention of Human Rights Act 1998 claims in Sch 1.

 

That is why, for example, you cannot claim a share in your (unmarried) partner’s property, if it is in his or her sole name (Trusts of Land and Appointment of Trustees Act 1996 s 14), or claim against your dead parent’s or spouse’s property (if they don’t leave you enough: Inheritance (Provision for Family and Dependants) Act 1975). All family lawyers know that: you have to issue ‘civil proceedings’ – that word again – under CPR 1998. And that is so even if, in the case of your partner’s property s/he is parent of your child, and you are making a claim for property for the child in FPR 2010 proceedings under Children Act 1989 Sch 1.

 

In short, just because it is a family matter – suing your grand-mother for specific performance of an agreement or making a claim against your boy-friend for property in his name – does not mean you can apply in the family courts if your case does not come within Sch 1. And it may be good practice form a legal aid point of view if your lawyer does not attempt to do so (see below).

 

Family courts are quite used to case managing cases – at least in theory – so that CPR 1998 (TOLATA proceedings) are dealt with alongside FPR 2010 proceedings (and see eg bankruptcy court and money proceedings: Arif v Zar and anor [2012] EWCA Civ 986). They can also manage care cases so that issues are split: threshold in care proceedings (CA 1989 s 31(2)) from welfare issues if the care threshold is achieved by the local authority applicant.

 

So why not split and case manage (as need be) the separate issues which arise on a FPR 2010 care case; and a HRA damages CPR 1998 ‘civil proceedings’ care case? The answer is, in my view: none at all. It follows the law (always a good idea for a judge to follow the law). And – a quite separate point – it is certainly good practice from the legal aid point of view (see separate article of Avoiding the legal aid statutory charge).

 

Order in family proceedings

 

It is said that Matrimonial and Family Proceedings Act 1984 s 31E helps. This provides, as relevant here:

 

31E Family court has High Court and county court powers

(1)   In any proceedings in the family court, the court may make any order –

(a)which could be made by the High Court if the proceedings were in the High Court, or

(b)which could be made by the county court if the proceedings were in the county court.

(2) In its application to a power of the High Court to issue a writ directed to an enforcement officer, subsection (1)(a) gives the family court power to issue a warrant, directed to an officer of the family court, containing provision corresponding to any that might be contained in the writ.

(3) Subsection (1) is subject to section 38(3) of the County Courts Act 1984.

 

Subsection (3) means that the Family Court, like the County Court, cannot make orders on an application for judicial review (which may prove relevant in a HRA context; but that is for another day).

 

MFPA 1984 s 31E is in a long line of legislation which endows lesser courts with the powers of higher (or, in this case, parallel) courts, as does County Courts Act 1984 s 38. Section 31E is based on s 38 (and see County Court Remedies Regulations 2014). Traditionally s 38 was relied on to enable county courts (including those then dealing with family proceedings) to make inherent jurisdiction orders (eg injunctions) which they did not have; and, for example, it was used to enable district judge’s to order that they should sign documents (Senior Courts Act 1981 s 39).

 

That is s 31E enables orders to be made at the conclusion of, or during the course of (interim orders), proceedings. It does not add to the jurisdiction defined by SCA 1981 Sch 1; for if it did, family lawyers would use family courts for any application (eg constructive trust, breach of contract and s 14 proceedings, as you can do in county courts); suing for damages for personal injuries (which county courts certainly have powers to order) and so on. Plainly this cannot happen. That would be massively to extend the jurisdiction under SCA 1981 Sch 1 which is not what Parliament envisaged.

 

‘Power to award damages… in civil proceedings’

 

So what does HRA s 8(2) and its reference to ‘civil proceedings’ mean? In 1997-8 Parliament deliberately decided to treat civil and ‘family’ proceedings separately. Civil Procedure Act 1997 (neither does that Act nor HRA 1998 define ‘civil proceedings’) set up the machinery for CPR 1998.

 

The term ‘civil proceedings’, for rule-making purposes, was specifically defined to exclude family proceedings.  CPR 1998 could not be used for family proceedings as defined (now) by Courts Act 2003 s 75 (CPR 1998 r 2.1(2)). Section 75 sets up the machinery for making family proceedings rules separate from CPR 1998, which eventually lead to FPR 2010 (cf Family Proceedings Rules 1991 which were subject to the provisions of the then civil proceedings rules). In HRA s 8(2) the reference to ‘civil proceedings’ is likely to be the post 1997-8 definition, rather than the term (ie most non-criminal proceedings) which operated till then. On that logic, proceedings under s 8(2) as ‘civil proceedings’, were intended by Parliament to be issued under CPR 1998, not as or within family proceedings.

 

The reference to Courts Act 2003 s 75, at s 75(3), takes the reader to MFPA 1984 s 32 (which defines ‘family business’) which is defined by SCA 1981 s 61 and Sch 1 para 3 (as explained above). Para 3 makes no reference to claims under s 8(1), which is unsurprising since damages claims are not always immediately associated with ‘family business’ – there are many other forms of proceedings which may lead to a claim under s 8(2). It seems likely that s 8(2) did not assume that family courts would adopt a ‘power to award damages’; and that is the view taken by text-book writers at the time of introduction of HRA 1998 (eg Swindells, above).

 

‘Separate proceedings’ in judicial review: Anufrijeva

 

Claims should be by judicial review – which cannot be in the county courts (see CCA 1984 s 38(3) above. This is explained by the Court of Appeal in Anufrijeva and anor v Southwark London Borough Council [2003] EWCA Civ (judgment: 16 October 2003). This is by CPR 1998 Pt 54 (which is not difficult). This will be in writing, and – in care proceedings – based on facts already found in family courts. Issue estoppel will mostly narrow the factual proof. This need not be a difficult exercise, not one which is beyond the wit of most judges to case manage. From a legal aid point of view it is very important. There will then be no doubt that the legal aid statutory charge cannot apply to damages.

SUPREME COURT; COSTS IN CARE PROCEEDINGS

For a second time in only a couple of years the Supreme Court has reviewed costs orders in care proceedings – Re S (A Child; Court of Appeal costs order) [2015] UKSC 20. Each time the result is much the same: that costs orders should only be made in children proceedings (whether care proceedings or otherwise) where a party’s behaviour has been in some way ‘reprehensible’ (Wilson J in Sutton London Borough Council v Davis (No 2) [1994] 1 WLR 1317; para [26] in Re S); and not because eg the local authority could afford to pay where grand-parents were called upon to clear their name (as in Re T (Costs; Care Proceedings; Serious Allegations Not Proved) [2012] UKSC 36 [2013] 1 FLR 133); or because a father (who was not legally aided in appellate proceedings) was successful in the Court of Appeal (Re S).

The short point is that for costs orders in care proceedings the position is as other children proceedings: a party should not be discouraged by the fear of paying another party’s costs ‘from playing their part in helping the court achieve the right solution’ for the welfare of a child ([21]). Local authorities must not be in a worse position than other parties ([32]). The only exception to this general position, suggested Lady Hale (who gave the only judgement with which all others in the Court agreed), was on a ‘best outcome’ for the child ground in cases of ‘real hardship’ to the child’s family:

[33] … If the best outcome for the child is to be brought up by her own family, there may be cases where real hardship would be caused if the family had to bear their own costs of achieving that outcome. In other words, the welfare of the child would be put at risk if the family had to bear its own costs. In those circumstances, just as it may be appropriate to order a richer parent who has behaved reasonably in the litigation to pay the costs of the poorer parent with whom the child is to live, it may also be appropriate to order the local authority to pay the costs of the parent with whom the child is to live, if otherwise the child’s welfare would be put at risk.’

In children proceedings generally, as in care proceedings, subject to the narrow real hardship for the family ground, costs orders will be as rare in care proceedings as in other children proceedings.

WARDSHIP

Powers of the local authority to apply to the High Court

 

Wardship has been in the news in the last few days (Mr and Mrs King and their child Aysha: wardship proceedings are still continuing, so what is said here does not relate directly to those proceedings). Two questions arise: what is the power of the High Court to exercise its inherent wardship jurisdiction over children; and can a local authority use the High Court’s to make a child a ward.

 

In general the High Court has more or less infinite powers to exercise an inherent and protective jurisdiction over children. It is only the High Court which has power to deal with wardship (Senior Courts Act 1981 s 41(1)), not eg the ‘single’ family court. If it does so, the usual result will be that a child becomes a ward of court. The High Court then stands in the position of a child’s parents; but the court must ensure that someone makes practical day-to-care arrangements for the child’s care, board and lodging, and so on.

 

If the jurisdiction of any family court to take a child into care is to be invoked by a local authority it must be by care proceedings (Children Act 1989 Part 4) save in a very narrow range of cases sanctioned by CA 1989 s 100. (Section 100 was included in the CA 1989 since, till that Act, local authorities had been using wardship, in many cases, to obtain care orders.)

 

CA 1989 s 100 says that the court’s inherent jurisdiction (‘wardship’ and ‘inherent jurisdiction’ tend to be used interchangeably) cannot be used, in effect, to place a child in the care of a local authority (s 100(2)), unless the court gives the local authority permission (s 100(3)). The court may not give permission, till it finds (1) that, but for an order, the child is likely to suffer significant harm (s 100(4)(b)), and (2) that there is no other order the local authority can apply for (a 100(4)(a) and (5)).

 

Local authorities and wardship

 

Children Act 1989 s 100 provides as follows:

 

100 Restrictions on use of wardship jurisdiction

(2) No court shall exercise the High Court’s inherent jurisdiction with respect to children –

(a)so as to require a child to be placed in the care, or put under the supervision, of a local authority;

(b)so as to require a child to be accommodated by or on behalf of a local authority;

(c)so as to make a child who is the subject of a care order a ward of court; or

(d)for the purpose of conferring on any local authority power to determine any question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child.

(3) No application for any exercise of the court’s inherent jurisdiction with respect to children may be made by a local authority unless the authority have obtained the leave of the court.

(4) The court may only grant leave if it is satisfied that –

(a)the result which the authority wish to achieve could not be achieved through the making of any order of a kind to which subsection (5) applies; and

(b)there is reasonable cause to believe that if the court’s inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm.

(5) This subsection applies to any order –

(a)made otherwise than in the exercise of the court’s inherent jurisdiction; and

(b)which the local authority is entitled to apply for (assuming, in the case of any application which may only be made with leave, that leave is granted).

 

In Re A (Children) [2013] UKSC 60 – http://www.bailii.org/uk/cases/UKSC/2013/60.html ; in the Supreme Court Lady Hale (also, as Brenda Hoggett, a main architect of the Children Act 1989) explained the wardship jurisdiction of the High Court. Re A related to a child born in Pakistan, the brother of children with dual British and Pakistani nationality. The question was whether he could be made a ward of the English court. The Supreme Court said that in principle he could be made a ward.

 

Lady Hale explained the inherent jurisdiction of the High Court by reference to ‘common law rules’ and that, in the case of a child who is a British national, the ‘Crown had a protective or parens patriae jurisdiction over the child wherever he was’. She cites Lord Cranworth LC in Hope v Hope (1854) 4 De GM & G 328, at 344-345, and Lord Denning MR in Re P (GE) (An Infant) [1965] Ch 568, in support of her proposition. The fact that a child is a British national enables the court’s jurisdiction to be called upon to protect a child.

 

The position described by Lady Hale remains the common law position still, unless Parliament says otherwise and by statute restricts the jurisdiction of the High Court. In the case of any application by a local authority to invoke the inherent jurisdiction of the High Court to protect children, Parliament has imposed restrictions in Children Act 1989 s 100 (as above). And if application is made to the court to make a child a ward, the effect is immediate. On filing the application the child becomes a ward (Senior Courts Act 1981 41(2)); and remains so till the court makes a further order (provided this is dealt with within three weeks).

LEGAL AID, JUSTICE AND THE COMPLEXITIES OF FAMILY LAW PROCESS

At the limits of family proceedings

 

A haul of very recent family law children cases throws up four which are at the extremes of family law procedural provisions; and in only one was the main adult party to proceedings represented under a legal aid certificate (it seems). Each case would try the abilities of most seasoned family lawyers; and yet it is intended by the present Lord Chancellor and Ministry of Justice that justice be achieved in such cases as these, either because (as in A Father v SBC (below)) lawyers are willing to act free (pro bono)) or by leaving the parties and the judges to do their best together (see Matrimonial and Family Proceedings Act 1984 s 31G(6) (below)).

 

In A Father v SBC, A Mother and DE (by his children’s guardian) [2014] EWFC 6 a 2½ year old child was placed with his parents subject to a care order. His mother has a mild learning disability, and the father has significant cognitive impairment. Both had been able to care for the child; though the local authority’s concerns increased to a degree where they decided that DE must be taken back into their care. The father’s care proceedings solicitor was unable to secure legal aid and therefore issued an application free seeking discharge of the care order. On consideration of the application the district judge suggested that the father should have applied for an injunction under Human Rights Act 1998 s 8(1) (restraint of ‘unlawful’ acts of a public authority); but he then refused an injunction and refused the father permission to appeal. The child was removed next day. On granting permission to appeal, Baker J said the district judge had applied the wrong test and proceeded to explain his view of the law by reference to Children Act 1989 and to HRA 1998 s 8 (paras 22 to 27), and a variety of case law (para 28 to 36), including the critical House of Lords case of Re S (Care Order: Implementation of Care Plan); Re W (Care Order: Adequacy of Care Plan) [2002] UKHL 10, [2002] 1 FLR 815 which confirmed that if a local authority breaches Art 8 (respect for private life) then, as here, an application would lie to the court.

 

In North Somerset Council v LW, TC and EW (by her children’s guardian) [2014] EWHC 1670, Keehan J invoked the court’s inherent jurisdiction to refuse production to the disturbed mother of the local authority’s care plan that her baby should be removed at birth, on the basis that if the mother had learned on the plan she might harm herself and her child. He also made the ‘draconian order’ of reporting restrictions and an interim care order.

 

An NHS Foundation Hospital v P [2014] EWHC 1650 saw Baker J order that a 17 year-old should have her wishes to commit suicide overridden and on an emergency basis allowed intervention by doctors and that she be sedated, if need be. This included reliance upon European Convention 1950 Art 2: that a person’s right to life be protected by law.

 

Q v Q [2014] EWFC 7 found Sir James Munby P sitting in the family court and has attracted press attention, including from the Guardian.[1] The case concerned a father who spoke almost no English and who was said by two opinion witnesses to pose a threat to his son. On that basis his legal aid was withdrawn. The judge speculated then as to the needs of the father if justice was to be done in respect of his application: that his case must be dealt with justly and the parties be on an equal footing (FPR 2010 r 1.1; and European Convention 1950 Art 6(1)); and in his view, there were matters which ‘could properly be challenged, probed, by someone representing the father’. He described an ‘impasses’ in proceedings of this nature.

 

Legal aid and an impasse

 

In Q v Q the President throws down a gauntlet to the Lord Chancellor – as he says ‘merely identifying possible arguments’ (para 19). In para 18 he identifies some of these arguments as:

 

There may be a need in this kind of situation to explore whether there is some other pocket to which the court can have resort to avoid the problem, if it is necessary in the particular case – I emphasise the word “necessary” – in order to ensure a just and fair hearing…

 

Secondly, he suggests that if only one party is legally aided the cost of the whole case should fall on them (it is not clear how he proposes that that should happen: already represented parties must bear the expense of preparing bundles and no doubt many other costs where another party is unrepresented). Finally, he says:

 

… It is arguable that, failing all else, and bearing in mind that the court is itself a public authority subject to the duty to act in a Convention compliant way, if there is no other way of achieving a just and fair hearing, then the court must itself assume the financial burden, as for example the court does in certain circumstances in funding the cost of interpreters.

 

Much of the cost and injustice of the present process is the complications imposed in the family procedural rules by the recent proliferation of practice directions and guidances (the A Local Authority case includes ‘guidance’ approved by the President, and on 5 June 2014 Mostyn J produced a Statement on the efficient conduct of financial remedy final hearings… ‘authorised’ by the President (but not a practice direction which acquires approval by the Lord Chancellor)). These complications alone could surely justify representation with legal aid under the principles in Airey v Ireland (1979) 2 EHHR 533 and Muscat v Malta (2012) Application no 24197/10 [2012] ECHR 1601, because of the sheer complexities of the process imposed by the present family courts administration. This presents an irony of which Sir James seems unaware.

 

Further he does not draw attention to Matrimonial and Family Proceedings Act 1984 s 31F(6) which bears repetition in this context:

 

(6) Where in any proceedings in the family court it appears to the court that any party to the proceedings who is not legally represented is unable to examine or cross-examine a witness effectively, the court is to—

(a) ascertain from that party the matters about which the witness may be able to depose or on which the witness ought to be cross-examined, and

(b) put, or cause to be put, to the witness such questions in the interests of that party as may appear to the court to be proper.

 

Sir James considered the possibility of effective cross-examination by or on behalf of the father. He recognised constraints on cross-examination by the father by ‘challenge [to] his own expert’ (surely any expert is the court’s ‘expert’: FPR 2010 r 25.3); but went on:

 

… I am unpersuaded that there are not matters in these reports which could properly be challenged, probed, by someone representing the father.

 

This was an opportunity for Sir James to recall that Parliament expects judges to perform this cross-examination role ‘in the interests’ (MFPA 1984 s 31G(6)(b)) of the unrepresented party and to recall for all of us – litigants in person and lawyer alike – how this may be done (especially where cross-examination is by a bench of lay justices).

 

Urgent remedies and exceptional case determinations

 

These cases provide a cross-over between rights under European Convention 1950, unusual interim and urgent remedies and legal aid. (Only the North Somerset case is likely to have seen legal aid guaranteed. In the parallel North Somerset Council v LW (by her Litigation Friend the Official Solicitor), University Hospitals Trust Bristol and ors [2014] EWCOP 3, Keehan J dealt with costs as between Official Solicitor, a local authority and three NHS trusts (mostly UBHT): the costs statutory provisions run to seven pages of a 14 page judgement: thus do our rule-makers – apparently without a blush – improve the lives of those without mental capacity and of the courts which deal with them.)

 

Baker J concluded his judgement in A Father v SBC with the following plea:

 

[51] Finally, this case has highlighted a further major problem. These parents face the prospect of losing their son permanently. If this prospect had arisen in the context of care proceedings, they would be entitled as of right to non-means tested legal aid. It is difficult to see why similar automatic public funding should not be available where the local authority proposes the removal of a child living at home under a care order and the parents apply to discharge that order and for an interim injunction under s.8 HRA. The justification for automatic public funding in care proceedings is the draconian nature of the order being claimed by the local authority. Where a local authority seeks to remove a child placed at home under a care order, the outcome of the discharge application may be equally draconian.

 

Baker J then recorded that the father’s lawyers were acting pro bono, and that it was unfair on parties that they should only have representation if able to find help in this way. The position here was compounded the particular learning difficulties of the father. In this case the father plainly ‘lacks capacity to conduct the litigation’ (para 53). And as can be seen from the judge’s own meticulous explanation of the law and its cross-over between Children Act 1989, rights and a variety of case law, the law in the case would be at the limits of most family lawyer’s knowledge. The chance of fairness for a parent with learning difficulties is negligible (if fairness requires even a basic understanding of the case you are seeking to present).

 

The judges do not go on the consider the two cases – Q v Q and A Father v SBC – in the light of Legal Aid Sentencing and Punishment of Offenders Act 2012 s 10 (exceptional case determinations under s 10(3): for a background to this legal aid jurisdiction, see http://wp.me/p4jaDx-5y). That must be the next step, since on their view of each case the President and Baker J both found a European Convention 1950 aspect: Art 8 and Art 6(1) (in the context of a fair trial in the difficult circumstances posed by both cases); Art 10 and Art 2 in the P case. And, it must be recalled, Art 14 (discrimination) might apply in both Q v Q and A Father v SBC.

[1] http://www.theguardian.com/law/2014/jun/09/top-family-judge-adjourns-custody-case-legal-aid-impasse; and http://suesspiciousminds.com/2014/06/09/q-v-q-an-impasse/