SW & TW (Children : Human Rights Claim: Procedure) (Rev 1)

Human Rights Act 1998 claims arising alongside family proceedings are governed by the Civil Procedure Rules 1998, even where they are considered within existing Children Act proceedings. Substantive claims for declarations or damages should ordinarily be issued formally, normally under Part 8. A child claimant must have a litigation friend appointed under Part 21 of the CPR; a Children’s Guardian appointed for specified family proceedings cannot assume that role under the Family Procedure Rules. The court may deal with Convention issues within ongoing care proceedings where the remedy substantially overlaps with the family relief, but separate proceedings are generally appropriate where damages are sought and the claim risks delaying the family case. Procedural defects may be retrospectively regularised where this is just, the parties acted in good faith and no manifest disadvantage has resulted.

The proceedings concerned two children and comprised private-law applications, the local authority’s public-law application under the Children Act 1989, and Human Rights Act claims by the father and children against the local authority. The father’s claim sought declarations and damages for failures in child-protection decision-making and investigation. The children’s claim was advanced within the family proceedings, but no formal litigation friend had been appointed under the civil procedure rules.

The court endorsed the agreed resolution of the Children Act proceedings and approved settlement of the father’s claim. It was required to determine the procedural regime governing the Human Rights Act claims and the consequences of the children’s defective representation.

1. Procedural regime. The Human Rights Act claim was governed by the Civil Procedure Rules 1998, not the Family Procedure Rules 2010. The two regimes are substantially mutually exclusive. A claim under section 7(1)(b) brought within existing family proceedings does not thereby become a family proceeding for procedural purposes.
2. Relationship with family proceedings. Convention issues may properly be determined within ongoing care proceedings where the relief sought substantially coincides with the relief available under the Children Act 1989. Munby J’s guidance in Re L (Care Proceedings: Human Rights Claims) [2003] EWHC 665 (Fam) did not require a damages claim to be issued within the family proceedings. Where declarations and damages are sought without materially affecting the family relief, separate proceedings are generally appropriate. A Human Rights Act claim should not be allowed to prolong the Children Act litigation.
3. Representation. A child claimant must have a litigation friend under CPR Part 21. No step may ordinarily be taken before appointment. A Children’s Guardian appointed under section 41 of the Children Act 1989 for specified proceedings cannot act as litigation friend in the related civil Human Rights Act claim merely by virtue of that appointment. Cafcass officers cannot act as litigation friends in such civil proceedings outside their statutory functions.
4. Regularisation. The court may retrospectively regularise steps taken before appointment of a litigation friend where the parties acted in good faith, there has been no manifest disadvantage and refusing regularisation would be unjust. The court would consider that issue at a later hearing, together with the children’s settlement and costs.
5. Outcome. The agreed Children Act arrangements were endorsed. The father’s Human Rights Act claim was settled with an agreed award of £15,000 under section 8(3), described as having limited precedential value because it was a compromise. The local authority was ordered to contribute £1,000 towards the father’s Human Rights Act costs. The children’s claims were adjourned for further directions and determination after appointment of a litigation friend.

This was a first-instance decision of the High Court (Family Division). No appellate history is stated in the judgment.