This was an application by a Local Authority in relation to a young boy; the Protected Party, who is now 13. He previously lived with his grandmother under a Special Guardianship Order, but became the subject of a full care Order in December 2015. The Protected Party had displayed a desperate history and a catalogue of very seriously uncontrolled behaviour, damaging to both himself and others. As a result, he had been placed in no less than six different residential settings. Each setting ultimately broke down, sometimes very rapidly, as the staff there were simply unable to manage his behaviour and keep him safe.
The Local Authority would have wished by June 2017 to place the Protected Party in an approved secure accommodation placement. Such placements are very scarce and they were unable to find one. So, they hoped to place him in a unit which was not an approved secure accommodation at X. Their plan was, however, that within X he should, if necessary, be subject to considerable restraint, including physical restraint, in order to keep him safe and prevent him from absconding, as he had done on occasions in the past.
Section 25 of the Children Act 1989 makes express and detailed provision for the making of what are known as Secure Accommodation Orders. Such Orders may be made and, indeed, frequently are made by Courts, including Courts composed of lay magistrates. It is not necessary to apply to the High Court for a Secure Accommodation Order, however, as no approved secure accommodation was available, the Local Authority required the authorisation of a Court for the inevitable Deprivation of Liberty of the Protected Party. Mr Justice Holman expressed his concern over the way in which Applications of this sort were handled, saying that “the device of resort to the inherent jurisdiction of the High Court is operating to by-pass the important safeguard under the regulations of approval by the Secretary of State of establishments used as secure accommodation. There is a grave risk that the safeguard of approval by the Secretary of State is being denied to some of the most damaged and vulnerable children. This is a situation which cannot go on, and I intend to draw it to the attention of the President of the Family Division.” The Judge Ordered that the child now be joined as a party to these proceedings and Cafcass must allocate a Guardian to act on his behalf. A further hearing was ordered to be fixed in one month. It was stated that the Guardian must file and serve an interim report shortly before that hearing. Further, in view of the gravity of the subject matter and the age of the child, the Judge Ordered that he must be enabled to attend the hearing if he expresses a wish to do so unless the Guardian thought it would be damaging to the health, wellbeing or emotional stability of the child to do so. In his view it was very important that in these situations, which in plain language involve a child being ‘locked up’, the child concerned should, if he wishes, have an opportunity to attend a court hearing. The exception to that is clearly if the child is so troubled that it would be damaging to his health, wellbeing or emotional stability to do so.
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It’s a case that everyone has being waiting for and it proved to be fairly anti-climatic in the end. For those who want to refresh their memories we wrote an extensive article on the background of the Coventry case which you can read by clicking here.
The full Judgment of Coventry -v- Lawrence  UKSC 50 was published yesterday confirmed that nothing will change and that the recovery of additional liabilities did not breach the European Convention on Human Rights. The Supreme Court commented as follows:
“The scheme as a whole was a rational and coherent scheme for providing access to justice to those to whom it would probably otherwise have been denied. It was subject to certain safeguards. The government was entitled to a considerable area of discretionary judgment in choosing the scheme that it considered would strike the right balance between the interests of appellants and respondents whilst at the same time securing access to justice to those who would previously have qualified for legal aid. It had to find a solution to the problem created by the withdrawal of legal aid. The government has now produced three different schemes. Each was produced after wide consultation. Each has generated considerable criticism. As already indicated, once civil legal aid was constrained to the extent that it was in 1999, it became impossible to come up with a solution which would meet with universal approval. This is relevant to the question whether the 1999 Act scheme struck a fair balance between the interests of different litigants.”
This should put to bed any arguments over the recoverability of any success fee / ATE Premium on pre-Jackson cases. The outcome shouldn’t come as a big surprise to lawyers. Notably Lord Mance stated as follows;
In the above circumstances, I reject the respondents’ challenge to the system of costs whereby they are potentially liable in respect of success fees agreed and ATE premium incurred by the appellants. The position must, as Lord Neuberger and Lord Dyson have said, be considered as a whole. The system had a legitimate aim, the present is on its face an extreme and unusual case. It is difficult to conceive of any solution which would cater for such cases, without imperilling the whole system. The system has been repeatedly endorsed by domestic courts over a decade. Litigants and their lawyers have justifiably relied upon its validity.
The Judgment prevents any complications for Claimants seeking to recover a success fee and also prevents a hefty bill for the UK government who could have found themselves having to remedy the success fees and ATE Premiums already paid and to be paid as part of on-going pre-Jackson cases.
The Supreme Court invariably made the right decision but what Coventry has done is to place in everybody’s mind the disproportionate nature of the old costs regime and only seeks to reinforce the importance of costs management (and perhaps even the extension of fixed fees) in the years to come. I end this article the same as I ended my previous analysis of this case and it is one of Lord Neuberger’s original comments that has stuck with me the most;
“The fact that it can cost two citizens £400,000 in legal fees and disbursements to establish and enforce their right to live in peace in their home is on any view highly regrettable. The point is reinforced when one takes into account the value of their home,
which is less than £300,000 (coupled with the effect of the nuisance on that value,
£74,000 at the most)
These figures are very disturbing.”
Regardless of the judgment yesterday, one thing is clear, the figures are very disturbing indeed.
Do you agree with the Supreme Court’s decision? Let us know in the comments below.