Family law

Damages for local authority's failure to protect

E v United Kingdom (Application No 33218/96) (2002) The Times, 4 December, ECHR

Failure of a local authority to protect children and to monitor the behaviour of a known offender who lived with their mother and them, gave those children a cause of action (see X v Bedfordshire [1995] AC 633).

Had the authority properly managed its responsibilities towards E and her brother and sisters, damage caused to them by the offender might have been avoided or at least minimised.

The failure of the local authority to protect the children put it in breach of article 3 of the European Convention on Human Rights (prohibition of inhuman and degrading treatment) and gave the children a remedy in damages.

Each case will depend on its own facts; but this line of authority - running from X v Bedfordshire and placing a duty of care on public bodies - provides a valuable protection for the more vulnerable individuals in society; protection against the sometimes negligent actions of, for example, the Legal Services Commission or the Child Support Agency; or against local authority employees which X v Bedfordshire had mostly in mind.

Children Act 1989 does apply to children in custody

R (Howard League for Penal Reform) v Home Secretary (2002) The Times, 5 December, Mr Justice Munby

Mr Justice Munby considered whether children in custody are protected by the provisions of the Children Act 1989.

The Home Office had said baldly that the 1989 Act did not apply to children in custody.

As a matter of law, Mr Justice Munby held that to be wrong nothing in the Act excluded such children from the provisions of sections 17 (provision of services for children in need) and 47 (local authority's duty to investigate).

Thus, prison service order no 4950, paragraph 31.4 (which stated that the 1989 Act did not apply to children) was wrong.

The practical application of the Act to a child in prison must depend on individual circumstances and an individual application.

Indemnity costs - litigant's misconduct

Brawley v Marczynski (2002) The Times, 7 November, CA

The indemnity basis for assessment of costs (rule 44.5(1) of the Civil Procedure Rules 1998) has its influence on costs in family proceedings (see Frary v Frary [1993] 2 FLR 696, CA; Burgess v Burgess [1996] 2 FLR 34, CA) as with any other.

It has recently been in the news.

Thus, an award of costs on the indemnity basis is only justified by a paying party being responsible for conduct which is so unreasonable and to a high degree, to justify an order; not 'merely wrong or misguided in hindsight' (Kiam v MGN Ltd (No 2) [2002] 1 WLR 2810, CA per Lord Justice Simon Brown at [12]).

Where one party makes a sensible attempt at settlement and the other party resists, the latter party puts himself at risk of an indemnity order (Reid Minty (a firm) v Taylor [2002] 1 WLR 2800, CA).

In Brawley v Marczynski, it was confirmed that an order for indemnity basis assessment can represent the court's disapproval of a party's conduct of litigation.

Indemnity orders for costs will rarely apply.

If they can be obtained they plainly assist the receiving party client appreciably.

By David Burrows, David Burrows, Bristol