SW & TW (Children: Human Rights Claim : Procedure) (Rev 1) [2017] EWHC 450 (Fam)
 
Claims for human rights breaches are sometimes brought as part of care or family proceedings, which are covered by the Family Proceedings Rules. The case of SW & TW (Children: Human Rights Claim : Procedure) (Rev 1) [2017] EWHC 450 (Fam) is a particularly useful guide to procedure. 
 
In SW & TW, Mr Justice Cobb said that 
 

• It was appropriate for HRA 1998 claims which arose in Children Act 1989 proceedings to be considered within the Children Act proceedings i.e. a family court could award damages. 
• HRA claims – whether they are made under section 7(1)(a) or section 7(1)(b) of the HRA – are governed by the Civil Procedure Rules and not the Family Procedure Rules 2010. 
• Applications for substantive relief (declarations and/or damages) under the HRA should be issued as civil proceedings by way of a Part 8 Civil Procedure Rules claim.
• A child Claimant in HRA 1998 proceedings requires a litigation friend appointed under Part 21 of the CPR 2010; the appointment of a guardian or litigation friend for this type of claim is not effected under Rule 16 of Family Proceedings Rules 2010. While Cafcass accepts that Children's Guardians appointed in “specified proceedings” may give advice about the appropriateness of a child making a HRA claim, Cafcass cannot authorise its officers to act as litigation friends to children claimants. Moreover, Cafcass does not, as a matter of policy, support Children's Guardians acting as litigation friends in HRA proceedings. 
• Part 36 of the Civil Procedure Rules applies to HRA claims.
• The full costs regime in Part 44 Civil Procedure Rules 1998 also applies and costs follow the event, which is not always the case in family proceedings. 
• The publicly funded claimant in a HRA claim who is also publicly funded in associated (or 'connected': section 25 Legal Aid Sentencing and Punishment of Offenders Act 2012 proceedings, is vulnerable to a claim for recoupment of the costs of both sets of proceedings by way of statutory charge from any award of HRA damages.

 
Practice Direction 16 Paragraph 15 of the Civil Procedure Rules states that where a specific free-standing claim is made under section 7(1)(a) of the HRA the claim form must state that this is the case and must give details of the Convention right which it is alleged has been infringed. If the claim is based on a finding of unlawfulness by another court details of that finding must be given. Where it is alleged that a judicial act constitutes a violation of the Convention then the Lord Chancellor should be joined in the proceedings. See Practice Direction 19A Paragraph 6 and Practice Direction 29A.