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Partner and Head of Family Law, Rugby
When things go wrong with children being looked after or under the watchful eye of the state, damages claims can sometimes be brought for breaches of their Human Rights.
What can go wrong? Often it is simply that the local authority has delayed so long in securing the long term future for children, they have been caused some harm by the delay. Or maybe the children have suffered harm as a result of difficulties with the care being provided by the state. Sometimes parents may also have a claim where their Human Rights were breached.
The number of cases are rising and that has lead to several of these cases being subject to scrutiny by the court in terms of practice and procedure.
One such case was the case of Re H (A Minor)  EQHC 282 where the court gave extensive guidance on how these claims should be made during ongoing care proceedings. I acted for the claimant child in the proceedings before Mr Justice Keehan sitting in the High Court. The child was aged 8 and had previously been left by the local authority in the care of his mother despite being aware of the poor quality of her parenting. The local authority took no steps to prevent or ameliorate the harm the child was suffering. There was a period of time where the child was with his father but then he was later returned to his mother’s care before moving again to another carer. Despite concerns about the child’s behaviour the local authority provided no help or services and this placement broke down before the child was placed in foster care.
The court, in giving guidance, considered that a letter before action containing the alleged breaches should be sent to the local authority. Negotiations should take place to try to settle the issues of liability/fault and the quantum/how much should be paid, before issue of proceedings. Where settlement could be reached then a Part 8 claim on behalf of the child would ensure the court’s approval to the settlement. The local authority should pay reasonable costs and where proceedings are issued they should be made separately and on a separate legal aid certificate. The legal aid agency should make a decision on whether the statutory charge would apply or not so that the court is able to assess quantum, approve settlement or make a costs order.
The cases are technical and the law is evolving rapidly. There are many pitfalls and unusually for family law these are entirely civil cases. Even since the Re H case further guidance has been given by the court that these cases should not be brought by the children’s guardian within care proceedings.
If you would like any advice please contact me.