I am reliably informed that a court has in one case dealt with the issue of making a compensation payment to a parent whose child had been accommodated under s 20 for a long time without proper consent being obtained.
The court has made both a costs order against the local authority and an award of damages.
The Legal Aid Agency took the view that any damages awarded would be subject to the statutory charge such that they could recoup the damages in order to cover the costs of the care proceedings and that they could do so whether or not the claim for damages was run under a separate certificate from the one covering the care proceedings or whether it was all on one certificate and I understand that the parties in the case could not find fault with this position.
The court’s order therefore ensures that the parent and child will receive the benefit of the damages awarded rather than it all being soaked up by the costs of the case. I am not suggesting that this was the only reason for making the costs order and I have not seen the judgment in the case but I would be interested to know the basis on which the costs of the whole of the (at last) properly brought care proceedings should be awarded against the local authority although I can easily see the argument for awarding costs against them in respect of any hearings in which they may have attempted to argue the s 20 point itself. I can also see that as a matter of policy if damages are supposed to compensate it defeats the object of the exercise if a wronged parent will not get any benefit because of costs.
I would also be interested to know whether the costs awarded will be on the same basis as they would be under the legal aid rules or whether there is any justification which can be made for recovering any fees which are properly incurred but not normally covered by legal aid. I understand the word ‘standard’ was used rather than indemnity but at least one solicitor has suggested this could still mean there is scope for claiming a larger amount than legal aid would pay.
Sorry I have to be a bit cryptic as the judgment is not published and may not be, despite its potentially wide ramifications.