Parents who lose touch with their children because childcare cases are mishandled by social workers will have a new right to claim damages for "loss of relationship" under the Human Rights Act, the law commission for England and Wales and the Scottish law commission say in a report today. The act, which came into force yesterday, incorporates the European convention on human rights into UK law and allows UK courts for the first time to award damages for breach of the convention. Courts will have to take account of case law from the European court of human rights in Strasbourg in taking decisions on damages.
The two official law reform bodies conclude that there will be no need for major change to the law on damages. But in a few cases where British law does not recognise a right to damages, the courts will have to remedy this.
A striking example recognised by the Strasbourg court, but not by the British courts, is the loss of love, companionship and support when a relationship, such as that of parent and child, is disrupted. There has been a series of cases in Strasbourg brought by parents of children in care complaining that procedures violated their right to a fair hearing (article six of the European convention) or respect for family life (article eight).
In one case, a mother was denied access to her child in care. She applied for access but there were delays and the child was eventually adopted. The mother was awarded £12,000 even though the local government ombudsman thought it unlikely the outcome would have been different had the local authority acted more quickly.
The Strasbourg court said the mother was the victim of a "procedural deficiency" but it was one "that was intimately connected with an interference with one of the most fundamental of rights, namely that of respect for family life".
In another case, a mother whose children were in care a long way from her home, and whose access was restricted with no means of challenge, won more than £18,000 and her daughter more than £9,000.
"The UK courts will need to fashion a remedy which is just and appropriate and which affords just satisfaction to the victim," says the report. "As they must take account the principles used by the Strasbourg court, we would expect them to award compensation in such cases."
