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  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  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.