The recent reassessment of Hayden v Hayden means children will be paid for loss of service when a parent dies, writes Roger Pearson.
A recent High Court ruling has resulted in a revised interpretation of a 1992 decision which which is widely used as a pointer in cases involving compensation claims for children who have lost a parent.
Judicial remarks in the 1992 Appeal Court case of Hayden v Hayden - now branded obiter by the recent High Court decision - had been viewed as indicating that, where the services of a dead parent were adequately replaced, the children in question were not entitled to compensation for the loss of the deceased parent's services.
The Hayden principle had been applied by the Criminal Injury Compensation Board (CICB) in the recent case of R v Criminal Injuries Compensation Board, ex parte K and others (1998). But now, Lord Justice Brooke and Mr Justice Rougier have overturned the CICB's approach and clarified matters which many felt had been confused by Hayden.
The recent case centred on claims to the CICB brought on behalf of three children who were orphaned nine years ago - while aged one, two and three - when their mother was murdered by their father.
On the initial application, the children were awarded £35,000 between them. But the lawyer from the Official Solicitor's Office (OSO) who represented them considered that the figure was too low and applied for an oral hearing before the CICB in the hope of getting it increased.
However, far from increasing the sum, the panel hearing the application - applying principles distilled from Hayden - decided that the services of an uncle and aunt, who took responsibility for caring for the children along with their own eight offspring, were as good as those of the dead mother. And, in those circumstances, the panel cut the award to £9,000 - £3,000 for each child to compensate them purely for the death of their mother with no award for the loss of her services.
However, on 30 July Lord Justice Brooke and Mr Justice Rougier ruled that the CICB panel was mistaken. They allowed an appeal brought on the children's behalf by the OSO and ruled that the matter should be sent back to the CICB for reconsideration.
That reconsideration has taken place and the award has now been increased to a total of £72,000. This includes £3,000 per child in respect of their mother's death, and a further £63,000 - £21,000 per child towards compensation for loss of service.
An OSO spokeswoman says the Hayden decision has created great confusion in the past over the way these cases should be approached. But she says the High Court ruling has gone a long way towards clarifying things.
She says that the Official Solicitor handles a huge number of claims to the CICB by children, and that as many as four a year can be from children whose mother has been killed by their father.
But she says: "The High Court's ruling in this case will be of assistance to many children, not just those making claims in circumstances such as these children.
"There is invariably someone ready to look after children if a parent has been killed, but this decision shows that such children should not be penalised."