MG, R (on the application of) v Secretary of State for the Home Department

Damages under section 8 of the Human Right Act 1998 are discretionary and are not awarded as of right. The court must decide whether damages are necessary to afford just satisfaction, taking account of all the circumstances, including other relief and its consequences, and must consider the principles applied by the European Court of Human Rights under Article 41.

Cases involving court-ordered denial or restriction of parental contact are not necessarily useful analogies where the complaint concerns a failure to fund travel. The claimant’s circumstances, the effect of the breach on the claimant and others, existing contact, public funding consequences, and the quality of evidence may all be relevant.

The claimant brought judicial review proceedings concerning the location of accommodation and the refusal to provide additional financial support for travel to maintain contact with his son. The court had found an error of law, a failure to comply with section 55 of the Borders, Citizenship and Immigration Act 2009, and an unjustified interference with Article 8 rights, while rejecting the wider contention that accommodation near Portsmouth was itself unlawful.

Following judgment, the claim for damages under section 8 of the Human Right Act 1998 was reserved for determination on the papers. The issue was whether, in light of the relief already granted and all the circumstances, an award was necessary, just and appropriate.

1. The claim for damages was refused. Section 8 of the Human Right Act 1998 confers a power, not an obligation, to award damages. An award may be made only where, taking account of all the circumstances, including other relief and its consequences, it is necessary to afford just satisfaction. The court must also take account of the principles applied by the European Court of Human Rights under Article 41.

2. The authorities concerning denial or restriction of contact imposed by domestic family courts did not provide a useful analogy. There was no State prohibition on contact here. The complaint concerned the failure to provide the cost of travel. That distinction mattered because damages in court-order cases may reflect the feelings caused by an absolute prohibition, as well as the practical interference with family life.

3. The court considered the relief already granted: quashing of the decision, an order for reconsideration, and a declaration that Article 8 rights had been unjustifiably interfered with. Those remedies were sufficient to afford just satisfaction.

4. In deciding whether further relief was necessary, the court took account of the unequal impact of the breach on the claimant and his son, the claimant’s continuing ability to maintain some contact in person and through Skype, and the claimant’s character and conviction. It was also relevant that he received public support for essential living needs, so that damages would partly return public money to the public purse.

5. The claimant’s expenditure on smoking was relevant to the assessment of the effect of the travel problem and to the discretion whether an award would be just and appropriate. The counsellor’s report was given little weight because its author lacked apparent medical qualifications and it did not comply with CPR Part 35. The unchallenged evidence also carried less force because the damages claim had not been clearly articulated before the hearing.

6. For those reasons, no award of damages was necessary or appropriate.