Damages for abduction

Hamilton Jones v David & Snape (a firm) ChD TLR 15 January

The mother of twins was English and the father a Tunisian national. After the parties separated, the mother was concerned that the father would take the children to Tunisia. She accordingly instructed the defendant solicitors who obtained on her behalf interim residence orders and orders prohibiting the father from removing the children from her care. The solicitors wrote to the Tunisian Embassy and the UK Passport Agency requesting them not to issue passports to the father in respect of the children. The Passport Agency confirmed that the children had been entered on their records for a period of 12 months at the end of which period if the solicitors wished the names to remain on their records the office should be advised, otherwise the details would be deleted. Two years later the father obtained a UK passport to which he added the twins and took them to Tunisia. The claimant claimed damages from the solicitors on the grounds of their negligence either in failing to renew the notice to the Passport Agency or to advise the claimant that their names would be removed from the Agency’s records if notice were not given. She claimed general damages representing the mental distress she had suffered. She could not claim psychiatric damages because her claim was time barred. In F v Wirral Metropolitan Borough Council [1991] Fam 69, unattractive though it might seem to many people, the Court of Appeal, in a carefully reasoned decision, held that the law did not compensate a person, even if that person had a valid claim in principle, for the loss of the company of a child. The only realistic ground on which that decision could be said to be distinguishable from the present case was that this claim was based in contract, although it was also based in tort, whereas the claim in Wirral and the cases cited in the judgments in that case were concerned with claims only in tort. If a claim, in a case such as the instant case, was recoverable in contract, the fact that it might not normally be recoverable in tort should not prevent it from being recoverable in contract. Where a claim is founded in contract, the general rule is that the contract breaker cannot be liable for damages for injured feelings or distress unless the case falls into one of the established exceptions to the rule. One exception is where the very object of a contract is to provide pleasure, relaxation, peace of mind or freedom from molestation, damages will be awarded if the fruit of the contract is not provided or if the contrary result is procured instead. Although the claimant’s peace of mind in respect of the very event which happened, namely the removal of the twins from the country, could not be said to be the sole purpose of the instructions (because under the Children Act 1989 the courts’ paramount consideration is the welfare of the child), that did not mean that solicitors acting for a parent in Children Act proceedings did not owe a duty to their client to represent his or her interests and to deal with his or her concerns as best they could. On any view, both the claimant and the defendant would have had in mind that a significant reason for the claimant instructing the defendant was with a view to ensuring, so far as possible, that the claimant retained custody of her children for her own pleasure and peace of mind. In those circumstances, the principles developed in Watts v Morrow [1991] 1 WLR 1421 and Farley v Skinner [2002] 2 AC 732 indicated that the claimant should be entitled to recover £20,000 by way of damages for mental distress.