FAMILY PRESERVATION ADVOCACY
TUESDAY, JANUARY 4, 2011
Grandparent Adoptions
Discussed here recently (An Opportunity to Educate) was a letter from a grandmother raising her grandchild who thought whistfully that adoption - by non-related strangers - would have been a more suitable or beneficial arrangemet that raising the chidl within the fmaily.
Sandy Musser, who was recenty honored on this blog and who has been raising her now 6-year-old great-grandson since birth wrote to the above-mentioned grandma:
"I'm a 72 year old great grandmother raising my 6 year old great grandson who I've had since birth. Having a lost a child to adoption when I was 15 (in 1954), I never wanted to have another child missing from our family. My 24 year old granddaughter became pregnant and was an addict. I thought the baby would change her life, but it didn't -- at that time. I stepped up to the plate and took the responsibility. I have never regretted my decision and actually consider it an honor to have positive input into this child's life. He knows that he is loved by all his family members and that this is the clan he was born into, the one to which he belongs, and the one that cared enough to pull together for his benefit. He will never have to wonder "why was I given away?" Adoption is not always what it's cracked up to be and every child wonders at some point in their life - "why wasn't there someone in my birth family who cared enough to keep me." And I that's certainly a fair question. Adoption is always a permanent problem to a temporary problem. As for me and my house, we will keep our childlren, raise them and be responsible for them."
Isabella Brooke Knightly and Austin Gamez-Knightly
In Memory of my Loving Husband, William F. Knightly Jr. Murdered by ILLEGAL Palliative Care at a Nashua, NH Hospital
Tuesday, January 4, 2011
Motherhood Deleted: Privatizing Our National Conscience
Motherhood Deleted: Privatizing Our National Conscience
Tuesday, January 04, 2011
Privatizing Our National Conscience
Landlord Shocked To Find Children Living In Garage
CANYON LAKE, Texas -- A Canyon Lake homeowner told News 4 WOAI he was shocked to find out six foster children were sleeping in the garage of a home he was renting out to a couple.
Charlie White showed News 4 WOAI's Jozannah Quintanilla the 2-car garage where he says the couple had the grade school-age foster children sleeping. White said they had no air conditioning or heat in the garage, and the children were sleeping on homemade bunk beds in the crowded room. White believes three other foster children were living inside the two bedroom home.
"They had a wall built across the garage under this beam, and a wall across here," said White.
A neighbor who lives next door sent White a letter, letting him know how concerned the neighborhood was for the children.
"I showed up the next day to ask them what was going on and where they were keeping all these kids," White told us. "They told me my house was a therapeutic foster home."
White walked into the garage and told the foster parents it was no place for the young girls to be sleeping. That's when he also found out there was a 30-year-old mentally challenged man living in the garage with the girls.
"I told them they needed to get the kids in the house and tear these walls down," White said.
When asked why he told them that, he explained. "Because a fire could break out in here, and these kids would have no way of getting out.
Soon after White and his neighbors reached out for answers.
"All of the neighbors were concerned. Several have called CPS," explained White. "They couldn't understand how nine children could be living in the home."
"Thirteen people using the toilet," White added. "The ceiling is caving in. It's got mold in it."
With more than a dozen people living in the home, White said every room in the house was damaged. He immediately went to court.
"They refused to take the walls down and to move the kids in," White told us. "That's when I told them they have to go."
A judge evicted the family last month. Since then, White has contacted the agency responsible for the children.
"Because they allowed this many people in the home, they've done this much damage," added White. "They're not concerned and seem to be covering it up."
White says he and the other neighbors are concerned about where the children are living now, but he is also thousands of dollars in debt from the damage done to his home.
News 4 WOAI found the family living in a home a few miles just down the road. We knocked on the door but got no answer. We then contacted Child Protective Services.
*******
Thanks to Sandy Young, who lives in Texas, for putting this story out for the rest of us to read. I felt it was an appropriate follow-up to my previous post. It seems that, for many adults, the welfare of children is forfeit when it comes to the bottom line. I would love to hear from the CPS in Canyon Lake and hear what they have to say about this execrable situation.
Why do we decry orphanages and yet allow this kind of cruelty in the name of a "family home?" A clean, warm, well-run children's home would, in my mind, be head and shoulders above foster care as it is, now, in our nation. While there are many who provide decent and caring foster care, the system is too top-heavy and overloaded and corrupt to avoid situations like this and many others.
Unfortunately, our profit-based culture puts the funds into the pockets of the already wealthy, big business, "defense" contracts and perks for elected officials while the most vulnerable among us go begging.
Not only did we Natural Mothers get sucked into the system because we were not legally the chattel of a husband, but also because too many of us were financially dependent on our parents or unable to make enough money, due to the inequity in pay scales between men and women, to provide for a child. The bottom line, here, is tragedy.
Note that a wealthy woman, such as a famous actress, etc., can raise a child as a single woman without an eyebrow anywhere being raised. Many women who have reached an age when the biological clock is ticking loudly, will quietly opt for single motherhood because they can afford it. They can usually fly under the radar of the agencies and the coercers because they are financially comfortable.
This concept is attributed to many different sources, but the fact remains that the might of a nation is judged by how it treats the weakest of its citizens. The US scores low on this one.
Now, I don't hate the rich. I look at Warren Buffett and Bill Gates who are giving away huge portions of their personal fortunes. Then I look at Pat Robertson who is very wealthy in his own right and he is not putting his money where his loud mouth is. He professes to be both a Christian and a patriot. Neither Gates nor Buffett make any comments about their religion or lack of it. I wonder if Robertson would be willing to provide a safe and comfortable home for needy children without requiring indoctrination into his brand of religion? Naw, I didn't think so.
But the drive to have money = power = control has reached a new low when a CPS agency allows little girls to live in an unheated, non-air-conditioned garage with mold, dirt and a 30-year-old man.
It's frustrating, but my question is, it is fixable?
Monday, January 3, 2011
Adoption Tax Credit for Special Needs-Blood Money Paid for Our Stolen Children
Adoption Tax Credit for Special Needs
Adoptions Finalized between 2003 and 2009
Most families that adopted foster children who receive adoption assistance between 2005 and 2009 (and a few who
adopted earlier) should be able to take advantage of the federal adoption tax credit, even if they had no expenses
related to the adoption. A new law and guidance have now made the tax credit refundable for the first time.
Background on the Adoption Tax Credit
For adoptions finalized in 2003 or later, a child whom the state determines has special needs qualified for the full
adoption tax credit, regardless of expenses paid, unless the adoptive parents’ income in that year exceeded particular
limits. This includes children whose special needs determination is based on being hard to place due to age, race or
membership in a sibling group. NACAC’s interpretation is that, if a child receives adoption assistance (subsidy), the
state has determined the child is special needs.
*
Until tax year 2010, the credit was not refundable, so many families with lower or moderate incomes (and thus low
federal tax liability) could not take advantage of the credit. Starting in 2010, the credit is refundable, which
means it will benefit many more families—even those who adopted earlier but didn’t have enough tax liability
to access the credit in previous years.
Families who finalized in 2005 or later will benefit from refundability because the tax credit can be carried forward
for up to six years. For example, a family who adopted a child with special needs in 2009 earned a $12,150 adoption
tax credit. They were able to take only $4,000 of the credit in 2009 because $4,000 was their total tax liability that
year. The remaining $8,150 carried forward to 2010. When they file their 2010 return, the family will get a refund
of the full $8,150 credit, regardless of their tax liability.
Below is more information to help families access the credit for adoptions before 2010.
How Can I Access the Credit?
If you already claimed the credit in the year you finalized an adoption:
If you finalized in 2005 or later and carried forward the adoption tax credit on each year’s returns, just carry forward
the remaining amount of the credit from your 2009 return to 2010. You can claim the full amount remaining as a
credit on your 2010 return. (If you claimed the credit in the year you finalized, but haven’t carried the credit forward
in subsequent years’ tax forms, you’ll need to file amended returns for those years.)
If you didn’t claim the credit but finalized an adoption in 2005 or more recently:
You must file for the adoption tax credit in the year you finalized the adoption. If you finalized between 2007 and
2009, it is quite simple. Typically, the IRS allows people to amend returns for a period of three years in order to
claim a credit. So you can amend a 2007 return through April 15, 2011. You must simply amend your return for the
year the adoption was finalized and any subsequent years, carrying forward the amount of the adoption tax credit
that was not paid in each year. Any amount not paid by 2010 can be used fully with the 2010 return.
If you finalized in 2005 and 2006, the IRS says (according to a private letter ruling the IRS sent on NACAC’s
behalf) that a family can amend its returns back more than three years. Therefore, parents should amend their returns
starting in the year they finalized and take the credit. However, you cannot be paid a refund for the credit in 2005 or
*
This interpretation is based on the fact that the statutory language is almost identical in the laws on the adoption tax credit [26
USC 23 (d)(3) and 26 USC 36C (d)(3)]—and the laws on adoption assistance [42 USC 673(c)].2006, even if one is due to you. In the amended returns for years 2005 and 2006, you must complete the return as if
you are getting the credit. (Any credit that you could have been refunded in these years will be lost to you.)
For example, a family who adopted one child in 2006 earned $10,960 in adoption tax credit, but didn’t claim the
credit with their 2006 return. Their tax liability was $4,000. They amend the 2006 return, and claim the credit.
Although they cannot receive the $4,000 because 2006 was more than three years ago, they can only carry forward
to 2007 $6,960 ($10,960 less the $4,000 they would gotten in 2006). The family then amends for 2007, when they
had a tax liability of $2,000. They will be refunded the $2,000, and can carry forward the remaining $4,960. They
had no tax liability in 2008 or 2009, but still need to amend those returns to show that they are carrying forward the
$4,960. When they file in 2010, they can take the full $4,960 credit regardless of their tax liability.
If you didn’t file in 2005 or 2006 and had sufficient tax liability in 2005 and 2006 to use up the whole credit, there is
no reason for you to amend your taxes. Since 2007 is the first year you can get a refund of any past credit, you need
to have some credit carried forward to 2007 to get a payment.
The chart below will help you look back at your tax forms to see how much you have in credit and liability for each
year. Look at your liability minus any credits you already took to determine how much of the adoption tax credit you
could have used in a given year.
Tax
Year
Maximum
Credit
Tax
Liability
Total
Credits
Liability
minus Credits
2003
$10,160 1040 – Line 43
1040A – Line 28
1040 – Line 53
1040A – Line 35
1040 – Line 54
1040A – Line 36
2004
$10,390 1040 – Line 45
1040A – Line 28
1040 – Line 55
1040A – Line 35
1040 – Line 56
1040A – Line 36
2005
$10,630 1040 – Line 46
1040A – Line 28
1040 – Line 56
1040A – Line 35
1040 – Line 57
1040A – Line 36
2006
$10,960 1040 – Line 46
1040A – Line 28
1040 – Line 56
1040A – Line 34
1040 – Line 57
1040A – Line 35
2007
$11,390 1040 – Line 46
1040A – Line 28
1040 – Line 56
1040A – Line 34
1040 – Line 57
1040A – Line 35
2008
$11,650 1040 – Line 46
1040A – Line 28
1040 – Line 55
1040A – Line 34
1040 – Line 56
1040A – Line 35
2009
$12,150 1040 – Line 46
1040A – Line 28
1040 – Line 54
1040A – Line 34
1040 – Line 55
1040A – Line 35
If you didn’t claim the credit but finalized an adoption before 2005:
If you finalized an adoption in 2003 or 2004, the same issue about amending returns more than three years old
applies (see above) and you are less likely to benefit. A family with insufficient tax liability will probably not
benefit because they can’t carry forward to tax year 2010 when the credit becomes refundable. A family with
significant tax liability may use up all of the adoption tax credit in the years before 2007, but they cannot get a
refund for these years. Those families who have a moderate tax liability might be able to carry forward some of the
credit to 2007, 2008, or 2009, when they could get a refund for whatever tax liability they had that year.
Those who adopted before 2003 are unlikely to benefit at this time. Before 2003, the credit was only for documented
expenses. Even if you had expenses, for adoptions finalized in 2001, you cannot carry forward any credits into 2007,
the year in which you could get a refund of any credit that would have been due to you. If you adopted in 2002 and
had documented expenses and had credit that carried forward to 2007 and had tax liability in 2007, you could
amend all of your returns from 2002 to 2007, and get a refund for 2007.
How Do I Amend Past Returns?
If you paid someone to prepare your taxes, you should ask them to amend your taxes for free since they failed
to include the adoption tax credit.To amend your own taxes, complete Form 1040X, which can be found at www.irs.gov/pub/irs-pdf/f1040x.pdf
or by calling 1-800-829-1040. You will need copies of the returns you filed for each year you amend, plus
blank copies of Form 8839 (the Adoption Tax Credit form) for each year you amend. Access previous year’s
forms at www.irs.gov/formspubs/article/0,,id=98339,00.html. If you are only amending credits, you will need
to complete lines 6 to 22 of Form 1040X.
Child Tax Credit
Since the child tax credit and adoption tax credit interacted from 2002 to 2009, families must complete the
Child Tax Credit Worksheet in IRS Publication 972 to see what is the appropriate amount of the child tax
credit to take. This may lead a family to take less or no child tax credit, instead taking that amount as an
additional child tax credit (which is another refundable credit). You need to complete Publication 972 for each
year you are amending to figure out the child tax credit and how much of the adoption tax credit you can claim
in that year (and then how much you might carry forward).
If you already claimed the child tax credit, you will still need to work through Publication 972’s Worksheet to
figure out the amount of the adoption tax credit you can use for a given year. Claiming the adoption credit may
affect whether you can claim the child tax credit. If your child tax credit is reduced because you claim the
adoption tax credit, you should check to see if you can claim the additional child tax credit instead.
What If I Have Additional Questions?
If you receive adoption assistance (subsidy) for your child and have questions on whether it is taxable income
or if you can claim that child as a dependent, read NACAC’s fact sheet, Tax Issues Related to Adoption
Assistance and Adoption — http://www.nacac.org/adoptionsubsidy/factsheets/taxes.html.
If you have additional questions on the adoption tax credit or adoption subsidy, contact the North American
Council on Adoptable Children at 800-470-6665 or adoption.assistance@nacac.org.
Note: This fact sheet is NACAC’s interpretation of the adoption tax credit; it is not intended as legal or tax
advice. Each person’s tax situation is unique
http://www.nhfapa.org/images/categoryItems/taxcreditbefore20101288715567.pdf
Adoptions Finalized between 2003 and 2009
Most families that adopted foster children who receive adoption assistance between 2005 and 2009 (and a few who
adopted earlier) should be able to take advantage of the federal adoption tax credit, even if they had no expenses
related to the adoption. A new law and guidance have now made the tax credit refundable for the first time.
Background on the Adoption Tax Credit
For adoptions finalized in 2003 or later, a child whom the state determines has special needs qualified for the full
adoption tax credit, regardless of expenses paid, unless the adoptive parents’ income in that year exceeded particular
limits. This includes children whose special needs determination is based on being hard to place due to age, race or
membership in a sibling group. NACAC’s interpretation is that, if a child receives adoption assistance (subsidy), the
state has determined the child is special needs.
*
Until tax year 2010, the credit was not refundable, so many families with lower or moderate incomes (and thus low
federal tax liability) could not take advantage of the credit. Starting in 2010, the credit is refundable, which
means it will benefit many more families—even those who adopted earlier but didn’t have enough tax liability
to access the credit in previous years.
Families who finalized in 2005 or later will benefit from refundability because the tax credit can be carried forward
for up to six years. For example, a family who adopted a child with special needs in 2009 earned a $12,150 adoption
tax credit. They were able to take only $4,000 of the credit in 2009 because $4,000 was their total tax liability that
year. The remaining $8,150 carried forward to 2010. When they file their 2010 return, the family will get a refund
of the full $8,150 credit, regardless of their tax liability.
Below is more information to help families access the credit for adoptions before 2010.
How Can I Access the Credit?
If you already claimed the credit in the year you finalized an adoption:
If you finalized in 2005 or later and carried forward the adoption tax credit on each year’s returns, just carry forward
the remaining amount of the credit from your 2009 return to 2010. You can claim the full amount remaining as a
credit on your 2010 return. (If you claimed the credit in the year you finalized, but haven’t carried the credit forward
in subsequent years’ tax forms, you’ll need to file amended returns for those years.)
If you didn’t claim the credit but finalized an adoption in 2005 or more recently:
You must file for the adoption tax credit in the year you finalized the adoption. If you finalized between 2007 and
2009, it is quite simple. Typically, the IRS allows people to amend returns for a period of three years in order to
claim a credit. So you can amend a 2007 return through April 15, 2011. You must simply amend your return for the
year the adoption was finalized and any subsequent years, carrying forward the amount of the adoption tax credit
that was not paid in each year. Any amount not paid by 2010 can be used fully with the 2010 return.
If you finalized in 2005 and 2006, the IRS says (according to a private letter ruling the IRS sent on NACAC’s
behalf) that a family can amend its returns back more than three years. Therefore, parents should amend their returns
starting in the year they finalized and take the credit. However, you cannot be paid a refund for the credit in 2005 or
*
This interpretation is based on the fact that the statutory language is almost identical in the laws on the adoption tax credit [26
USC 23 (d)(3) and 26 USC 36C (d)(3)]—and the laws on adoption assistance [42 USC 673(c)].2006, even if one is due to you. In the amended returns for years 2005 and 2006, you must complete the return as if
you are getting the credit. (Any credit that you could have been refunded in these years will be lost to you.)
For example, a family who adopted one child in 2006 earned $10,960 in adoption tax credit, but didn’t claim the
credit with their 2006 return. Their tax liability was $4,000. They amend the 2006 return, and claim the credit.
Although they cannot receive the $4,000 because 2006 was more than three years ago, they can only carry forward
to 2007 $6,960 ($10,960 less the $4,000 they would gotten in 2006). The family then amends for 2007, when they
had a tax liability of $2,000. They will be refunded the $2,000, and can carry forward the remaining $4,960. They
had no tax liability in 2008 or 2009, but still need to amend those returns to show that they are carrying forward the
$4,960. When they file in 2010, they can take the full $4,960 credit regardless of their tax liability.
If you didn’t file in 2005 or 2006 and had sufficient tax liability in 2005 and 2006 to use up the whole credit, there is
no reason for you to amend your taxes. Since 2007 is the first year you can get a refund of any past credit, you need
to have some credit carried forward to 2007 to get a payment.
The chart below will help you look back at your tax forms to see how much you have in credit and liability for each
year. Look at your liability minus any credits you already took to determine how much of the adoption tax credit you
could have used in a given year.
Tax
Year
Maximum
Credit
Tax
Liability
Total
Credits
Liability
minus Credits
2003
$10,160 1040 – Line 43
1040A – Line 28
1040 – Line 53
1040A – Line 35
1040 – Line 54
1040A – Line 36
2004
$10,390 1040 – Line 45
1040A – Line 28
1040 – Line 55
1040A – Line 35
1040 – Line 56
1040A – Line 36
2005
$10,630 1040 – Line 46
1040A – Line 28
1040 – Line 56
1040A – Line 35
1040 – Line 57
1040A – Line 36
2006
$10,960 1040 – Line 46
1040A – Line 28
1040 – Line 56
1040A – Line 34
1040 – Line 57
1040A – Line 35
2007
$11,390 1040 – Line 46
1040A – Line 28
1040 – Line 56
1040A – Line 34
1040 – Line 57
1040A – Line 35
2008
$11,650 1040 – Line 46
1040A – Line 28
1040 – Line 55
1040A – Line 34
1040 – Line 56
1040A – Line 35
2009
$12,150 1040 – Line 46
1040A – Line 28
1040 – Line 54
1040A – Line 34
1040 – Line 55
1040A – Line 35
If you didn’t claim the credit but finalized an adoption before 2005:
If you finalized an adoption in 2003 or 2004, the same issue about amending returns more than three years old
applies (see above) and you are less likely to benefit. A family with insufficient tax liability will probably not
benefit because they can’t carry forward to tax year 2010 when the credit becomes refundable. A family with
significant tax liability may use up all of the adoption tax credit in the years before 2007, but they cannot get a
refund for these years. Those families who have a moderate tax liability might be able to carry forward some of the
credit to 2007, 2008, or 2009, when they could get a refund for whatever tax liability they had that year.
Those who adopted before 2003 are unlikely to benefit at this time. Before 2003, the credit was only for documented
expenses. Even if you had expenses, for adoptions finalized in 2001, you cannot carry forward any credits into 2007,
the year in which you could get a refund of any credit that would have been due to you. If you adopted in 2002 and
had documented expenses and had credit that carried forward to 2007 and had tax liability in 2007, you could
amend all of your returns from 2002 to 2007, and get a refund for 2007.
How Do I Amend Past Returns?
If you paid someone to prepare your taxes, you should ask them to amend your taxes for free since they failed
to include the adoption tax credit.To amend your own taxes, complete Form 1040X, which can be found at www.irs.gov/pub/irs-pdf/f1040x.pdf
or by calling 1-800-829-1040. You will need copies of the returns you filed for each year you amend, plus
blank copies of Form 8839 (the Adoption Tax Credit form) for each year you amend. Access previous year’s
forms at www.irs.gov/formspubs/article/0,,id=98339,00.html. If you are only amending credits, you will need
to complete lines 6 to 22 of Form 1040X.
Child Tax Credit
Since the child tax credit and adoption tax credit interacted from 2002 to 2009, families must complete the
Child Tax Credit Worksheet in IRS Publication 972 to see what is the appropriate amount of the child tax
credit to take. This may lead a family to take less or no child tax credit, instead taking that amount as an
additional child tax credit (which is another refundable credit). You need to complete Publication 972 for each
year you are amending to figure out the child tax credit and how much of the adoption tax credit you can claim
in that year (and then how much you might carry forward).
If you already claimed the child tax credit, you will still need to work through Publication 972’s Worksheet to
figure out the amount of the adoption tax credit you can use for a given year. Claiming the adoption credit may
affect whether you can claim the child tax credit. If your child tax credit is reduced because you claim the
adoption tax credit, you should check to see if you can claim the additional child tax credit instead.
What If I Have Additional Questions?
If you receive adoption assistance (subsidy) for your child and have questions on whether it is taxable income
or if you can claim that child as a dependent, read NACAC’s fact sheet, Tax Issues Related to Adoption
Assistance and Adoption — http://www.nacac.org/adoptionsubsidy/factsheets/taxes.html.
If you have additional questions on the adoption tax credit or adoption subsidy, contact the North American
Council on Adoptable Children at 800-470-6665 or adoption.assistance@nacac.org.
Note: This fact sheet is NACAC’s interpretation of the adoption tax credit; it is not intended as legal or tax
advice. Each person’s tax situation is unique
http://www.nhfapa.org/images/categoryItems/taxcreditbefore20101288715567.pdf
Damages - Wikipedia, the free encyclopedia
Damages - Wikipedia, the free encyclopedia
Compensatory damages
Compensatory damages, called actual damages, are paid to compensate the claimant for loss, injury, or harm suffered as a result of (see requirement of causation) another's breach of duty.
[edit]Quantum/measure of damages
[edit]Breach of contract duty - (ex contractu)
On a breach of contract by a defendant, a court generally awards the sum that would restore the injured party to the economic position they expected from performance of the promise or promises (known as an "expectation measure" or "benefit-of-the-bargain" measure of damages).
When it is either not possible or not desirable to award sured in that way, a court may award money damages designed to restore the injured party to the economic position they occupied at the time the contract was entered (known as the "reliance measure"), or designed to prevent the breaching party from being unjustly enriched ("restitution") (see below).
Parties may contract for liquidated damages to be paid upon a breach of the contract by one of the parties. Under common law, a liquidated damages clause will not be enforced if the purpose of the term is solely to punish a breach (in this case it is termed penal damages). The clause will be enforceable if it involves a genuine attempt to quantify a loss in advance and is a good faith estimate of economic loss. Courts have ruled as excessive and invalidated damages which the parties contracted as liquidated, but which the court nonetheless found to be penal.
[edit]Breach of tort duty - (ex delicto)
Damages in tort are generally awarded to place the claimant in the position that would have been taken had the tort not taken place. Damages in tort are quantified under two headings: general damages and special damages.
In personal injury claims, damages for compensation are quantified by reference to the severity of the injuries sustained (see below general damages for more details). In non-personal injury claims, for instance, a claim for professional negligence against solicitors, the measure of damages will be assessed by the loss suffered by the client due to the negligent act or omission by the solicitor giving rise to the loss. The loss must be reasonably foreseeable and not too remote.[2] Financial losses are usually simple to quantify but in complex cases which involve loss of pension entitlements and future loss projections, the instructing solicitor will usually employ a specialist expert actuary or accountant to assist with the quantification of the loss.
[edit]General damages
General damages, sometimes styled hedonic damages, compensate the claimant for the non-monetary aspects of the specific harm suffered. This is usually termed 'pain, suffering and loss of amenity'. Examples of this include physical or emotional pain and suffering, loss of companionship, loss of consortium, disfigurement, loss of reputation, loss or impairment of mental or physical capacity, loss of enjoyment of life, etc.[3] This is not easily quantifiable, and depends on the individual circumstances of the claimant. Judges in the United Kingdom base the award on damages awarded in similar previous cases.
General damages are generally awarded only in claims brought by individuals, when they have suffered personal harm. Examples would be personal injury (following the tort of negligence by the defendant), or the tort of defamation.
[edit]Speculative damages
Speculative damages are damages that have not yet occurred, but the plaintiff expects them to. Typically, these damages cannot be recovered unless the plaintiff can prove that they are reasonably likely to occur.[4]
Various matters
Judicial remedies
Legal remedies (Damages)
Compensatory damages
Punitive damages
Incidental damages
Consequential damages
Liquidated damages
Reliance damages
Nominal damages
Statutory damages
Treble damages
Equitable remedies
Specific performance
Account of profits
Constructive trust
Injunction · Restitution
Rescission · Rectification
Declaratory relief
Related issues
Adequate remedy
Election of remedies
Provisional remedy
Tracing · Legal costs
v • d • e
[edit]Incidental and consequential losses
Special damages are sometimes divided into incidental damages, and consequential damages.
Incidental losses include the costs needed to remedy problems and put things right. The largest element is likely to be the reinstatement of property damage. Take for example a factory which was burnt down by the negligence of a contractor. The claimant would be entitled to the direct costs required to rebuild the factory and replace the damaged machinery.
The claimant may also be entitled to any consequential losses. These are the lost profits that the claimant could have been expected to make in the period whilst the factory was closed and rebuilt.
[edit]Foreseeability and remoteness
Damages are likely to be limited to those reasonably foreseeable by the defendant. If a defendant could not reasonably have foreseen that someone might be hurt by their actions, there may be no liability. This is known as remoteness.
This rule does not usually apply to intentional torts (e.g. deceit), and also has stunted applicability to the quantum in negligence where the maxim Intended consequences are never too remote applies – 'never' is inaccurate here but resorts to unforeseeable direct and natural consequences of an act.
[edit]Quantifying losses in practice – expert evidence
It may be useful for the lawyers for the plaintiff and/or the defendant to employ forensic accountants or forensic economists to give evidence on the value of the loss. In this case, they may be called upon to give opinion evidence as an expert witness.
[edit]Statutory damages
Statutory damages are laid down in law. Mere violation of the law can entitle the victim to a statutory award, even if no actual injury occurred. These are similar to, but different from, nominal damages (see below) in which no written sum is specified.
For example, the possible remedies for misrepresentation in the United Kingdom are codified in the Misrepresentations Act.
[edit]Nominal damages
On the other hand, nominal damages are very small damages awarded to show that the loss or harm suffered was technical rather than actual. Perhaps the most famous nominal damages award in modern times has been the $1 verdict against the National Football League (NFL) in the 1986 antitrust suit prosecuted by the United States Football League. Although the verdict was automatically trebled pursuant to antitrust law in the United States, the resulting $3 judgment was regarded as a victory for the NFL. Historically, one of the best known nominal damage awards was the farthing that the jury awarded to James Whistler in his libel suit against John Ruskin. In the English jurisdiction, nominal damages are generally fixed at £2.
Many times a party that has been wronged but is not able to prove significant damages will sue for nominal damages. This is particularly common in cases involving alleged violations of constitutional rights, such as freedom of speech.
[edit]Punitive damages (non-compensatory)
Main article: Punitive damages
Generally, punitive damages, which are also termed exemplary damages in the United Kingdom, are not awarded in order to compensate the plaintiff, but in order to reform or deter the defendant and similar persons from pursuing a course of action such as that which damaged the plaintiff. Punitive damages are awarded only in special cases where conduct was egregiously invidious and are over and above the amount of compensatory damages, such as in the event of malice or intent. Great judicial restraint is expected to be exercised in their application. In the United States punitive damages awards are subject to the limitations imposed by the due process of law clauses of the Fifth and Fourteenth Amendments to the United States Constitution.
In England and Wales, exemplary damages are limited to the circumstances set out by Lord Patrick Devlin in the leading case of Rookes v. Barnard. They are:
Oppressive, arbitrary or unconstitutional actions by the servants of government.
Where the defendant's conduct was 'calculated' to make a profit for himself.
Where a statute expressly authorises the same.
Rookes v Barnard has been much criticised and has not been followed in Canada or Australia or by the Privy Council.
Punitive damages awarded in a US case would be difficult to get recognition for in a European court, where punitive damages are most likely to be considered to violate ordre public.[2]
[edit]Restitutionary or disgorgement damages
In certain areas of the law another head of damages has long been available, whereby the defendant is made to give up the profits made through the civil wrong in restitution. Doyle and Wright define restitutionary damages as being a monetary remedy that is measured according to the defendant's gain rather than the plaintiff's loss.[7] The plaintiff thereby gains damages which are not measured by reference to any loss sustained. In some areas of the law this heading of damages is uncontroversial; most particularly intellectual property rights and breach of fiduciary relationship.
In England and Wales the House of Lords case of Attorney-General v. Blake opened up the possibility of restitutionary damages for breach of contract. In this case the profits made by a defecting spy, George Blake, for the publication of his book, were awarded to the British Government for breach of contract. The case has been followed in English courts, but the situations in which restitutionary damages will be available remain unclear.
The basis for restitutionary damages is much debated, but is usually seen as based on denying a wrongdoer any profit from his wrongdoing. The really difficult question, and one which is currently unanswered, relates to what wrongs should allow this remedy.
[edit]Legal costs
In addition to damages, the successful party is entitled to be awarded his reasonable legal costs that he spent during the case. This is the rule in most countries other than the United States. In the United States, a party generally is not entitled to its attorneys' fees or for hardships undergone during trial, although a few exceptions exist, such as discrimination.[8] See American rule.
[edit]History
Among the Saxons, a price called Weregeld was paid for homicide by the killer, in part to the family of the victim, in part to the local king.
Compensatory damages
Compensatory damages, called actual damages, are paid to compensate the claimant for loss, injury, or harm suffered as a result of (see requirement of causation) another's breach of duty.
[edit]Quantum/measure of damages
[edit]Breach of contract duty - (ex contractu)
On a breach of contract by a defendant, a court generally awards the sum that would restore the injured party to the economic position they expected from performance of the promise or promises (known as an "expectation measure" or "benefit-of-the-bargain" measure of damages).
When it is either not possible or not desirable to award sured in that way, a court may award money damages designed to restore the injured party to the economic position they occupied at the time the contract was entered (known as the "reliance measure"), or designed to prevent the breaching party from being unjustly enriched ("restitution") (see below).
Parties may contract for liquidated damages to be paid upon a breach of the contract by one of the parties. Under common law, a liquidated damages clause will not be enforced if the purpose of the term is solely to punish a breach (in this case it is termed penal damages). The clause will be enforceable if it involves a genuine attempt to quantify a loss in advance and is a good faith estimate of economic loss. Courts have ruled as excessive and invalidated damages which the parties contracted as liquidated, but which the court nonetheless found to be penal.
[edit]Breach of tort duty - (ex delicto)
Damages in tort are generally awarded to place the claimant in the position that would have been taken had the tort not taken place. Damages in tort are quantified under two headings: general damages and special damages.
In personal injury claims, damages for compensation are quantified by reference to the severity of the injuries sustained (see below general damages for more details). In non-personal injury claims, for instance, a claim for professional negligence against solicitors, the measure of damages will be assessed by the loss suffered by the client due to the negligent act or omission by the solicitor giving rise to the loss. The loss must be reasonably foreseeable and not too remote.[2] Financial losses are usually simple to quantify but in complex cases which involve loss of pension entitlements and future loss projections, the instructing solicitor will usually employ a specialist expert actuary or accountant to assist with the quantification of the loss.
[edit]General damages
General damages, sometimes styled hedonic damages, compensate the claimant for the non-monetary aspects of the specific harm suffered. This is usually termed 'pain, suffering and loss of amenity'. Examples of this include physical or emotional pain and suffering, loss of companionship, loss of consortium, disfigurement, loss of reputation, loss or impairment of mental or physical capacity, loss of enjoyment of life, etc.[3] This is not easily quantifiable, and depends on the individual circumstances of the claimant. Judges in the United Kingdom base the award on damages awarded in similar previous cases.
General damages are generally awarded only in claims brought by individuals, when they have suffered personal harm. Examples would be personal injury (following the tort of negligence by the defendant), or the tort of defamation.
[edit]Speculative damages
Speculative damages are damages that have not yet occurred, but the plaintiff expects them to. Typically, these damages cannot be recovered unless the plaintiff can prove that they are reasonably likely to occur.[4]
Various matters
Judicial remedies
Legal remedies (Damages)
Compensatory damages
Punitive damages
Incidental damages
Consequential damages
Liquidated damages
Reliance damages
Nominal damages
Statutory damages
Treble damages
Equitable remedies
Specific performance
Account of profits
Constructive trust
Injunction · Restitution
Rescission · Rectification
Declaratory relief
Related issues
Adequate remedy
Election of remedies
Provisional remedy
Tracing · Legal costs
v • d • e
[edit]Incidental and consequential losses
Special damages are sometimes divided into incidental damages, and consequential damages.
Incidental losses include the costs needed to remedy problems and put things right. The largest element is likely to be the reinstatement of property damage. Take for example a factory which was burnt down by the negligence of a contractor. The claimant would be entitled to the direct costs required to rebuild the factory and replace the damaged machinery.
The claimant may also be entitled to any consequential losses. These are the lost profits that the claimant could have been expected to make in the period whilst the factory was closed and rebuilt.
[edit]Foreseeability and remoteness
Damages are likely to be limited to those reasonably foreseeable by the defendant. If a defendant could not reasonably have foreseen that someone might be hurt by their actions, there may be no liability. This is known as remoteness.
This rule does not usually apply to intentional torts (e.g. deceit), and also has stunted applicability to the quantum in negligence where the maxim Intended consequences are never too remote applies – 'never' is inaccurate here but resorts to unforeseeable direct and natural consequences of an act.
[edit]Quantifying losses in practice – expert evidence
It may be useful for the lawyers for the plaintiff and/or the defendant to employ forensic accountants or forensic economists to give evidence on the value of the loss. In this case, they may be called upon to give opinion evidence as an expert witness.
[edit]Statutory damages
Statutory damages are laid down in law. Mere violation of the law can entitle the victim to a statutory award, even if no actual injury occurred. These are similar to, but different from, nominal damages (see below) in which no written sum is specified.
For example, the possible remedies for misrepresentation in the United Kingdom are codified in the Misrepresentations Act.
[edit]Nominal damages
On the other hand, nominal damages are very small damages awarded to show that the loss or harm suffered was technical rather than actual. Perhaps the most famous nominal damages award in modern times has been the $1 verdict against the National Football League (NFL) in the 1986 antitrust suit prosecuted by the United States Football League. Although the verdict was automatically trebled pursuant to antitrust law in the United States, the resulting $3 judgment was regarded as a victory for the NFL. Historically, one of the best known nominal damage awards was the farthing that the jury awarded to James Whistler in his libel suit against John Ruskin. In the English jurisdiction, nominal damages are generally fixed at £2.
Many times a party that has been wronged but is not able to prove significant damages will sue for nominal damages. This is particularly common in cases involving alleged violations of constitutional rights, such as freedom of speech.
[edit]Punitive damages (non-compensatory)
Main article: Punitive damages
Generally, punitive damages, which are also termed exemplary damages in the United Kingdom, are not awarded in order to compensate the plaintiff, but in order to reform or deter the defendant and similar persons from pursuing a course of action such as that which damaged the plaintiff. Punitive damages are awarded only in special cases where conduct was egregiously invidious and are over and above the amount of compensatory damages, such as in the event of malice or intent. Great judicial restraint is expected to be exercised in their application. In the United States punitive damages awards are subject to the limitations imposed by the due process of law clauses of the Fifth and Fourteenth Amendments to the United States Constitution.
In England and Wales, exemplary damages are limited to the circumstances set out by Lord Patrick Devlin in the leading case of Rookes v. Barnard. They are:
Oppressive, arbitrary or unconstitutional actions by the servants of government.
Where the defendant's conduct was 'calculated' to make a profit for himself.
Where a statute expressly authorises the same.
Rookes v Barnard has been much criticised and has not been followed in Canada or Australia or by the Privy Council.
Punitive damages awarded in a US case would be difficult to get recognition for in a European court, where punitive damages are most likely to be considered to violate ordre public.[2]
[edit]Restitutionary or disgorgement damages
In certain areas of the law another head of damages has long been available, whereby the defendant is made to give up the profits made through the civil wrong in restitution. Doyle and Wright define restitutionary damages as being a monetary remedy that is measured according to the defendant's gain rather than the plaintiff's loss.[7] The plaintiff thereby gains damages which are not measured by reference to any loss sustained. In some areas of the law this heading of damages is uncontroversial; most particularly intellectual property rights and breach of fiduciary relationship.
In England and Wales the House of Lords case of Attorney-General v. Blake opened up the possibility of restitutionary damages for breach of contract. In this case the profits made by a defecting spy, George Blake, for the publication of his book, were awarded to the British Government for breach of contract. The case has been followed in English courts, but the situations in which restitutionary damages will be available remain unclear.
The basis for restitutionary damages is much debated, but is usually seen as based on denying a wrongdoer any profit from his wrongdoing. The really difficult question, and one which is currently unanswered, relates to what wrongs should allow this remedy.
[edit]Legal costs
In addition to damages, the successful party is entitled to be awarded his reasonable legal costs that he spent during the case. This is the rule in most countries other than the United States. In the United States, a party generally is not entitled to its attorneys' fees or for hardships undergone during trial, although a few exceptions exist, such as discrimination.[8] See American rule.
[edit]History
Among the Saxons, a price called Weregeld was paid for homicide by the killer, in part to the family of the victim, in part to the local king.
Relative Placement in Child Protection Cases: A Judicial Perspective
Relative Placement in Child Protection Cases:
A Judicial Perspective
http://www.chhs.ca.gov/initiatives/CAChildWelfareCouncil/Documents/Relative%20Placement.pdf
By Judge Leonard Edwards (ret.)
I. INTRODUCTION
Child welfare agencies and courts place thousands of children in out-of-home care
every year.
1
This paper examines whether the state should give relatives preference over
non-relatives when placing children—and, if so, how to accomplish that goal. In the
1980s, state and federal government policies shifted toward favoring relatives (so-called
“kinship care”), but significant problems arise when delays occur in implementing these
policies. For example, relatives do not always know that child protection proceedings
are pending, and delays in the child protection and court systems often exclude them
from consideration for placement even when they have notice. When relatives request
placement long after a child has entered foster care, child welfare agencies and courts
struggle with the competing placement interests of relatives, foster parents, and the
child. To implement relative preference policies effectively, child protection agencies
and courts must modify their practices and procedures. The stakes are high because
placement will have a lifelong impact on the families involved and, most significantly,
on the child.
Section II briefly describes child placement history in the United States. The third
section addresses the emergence of relative preference as a goal within the child protection system. This discussion includes reasons why policy makers prefer relative placements to non-relative placements, and when and why states and the federal government
began passing legislation reinforcing this preference. The fourth section examines the
1 As of November 2008, there were 508,446 children in out-of-home care according to the
Children’s Defense Fund, Children in the United States (2009).
A Judicial Perspective
http://www.chhs.ca.gov/initiatives/CAChildWelfareCouncil/Documents/Relative%20Placement.pdf
By Judge Leonard Edwards (ret.)
I. INTRODUCTION
Child welfare agencies and courts place thousands of children in out-of-home care
every year.
1
This paper examines whether the state should give relatives preference over
non-relatives when placing children—and, if so, how to accomplish that goal. In the
1980s, state and federal government policies shifted toward favoring relatives (so-called
“kinship care”), but significant problems arise when delays occur in implementing these
policies. For example, relatives do not always know that child protection proceedings
are pending, and delays in the child protection and court systems often exclude them
from consideration for placement even when they have notice. When relatives request
placement long after a child has entered foster care, child welfare agencies and courts
struggle with the competing placement interests of relatives, foster parents, and the
child. To implement relative preference policies effectively, child protection agencies
and courts must modify their practices and procedures. The stakes are high because
placement will have a lifelong impact on the families involved and, most significantly,
on the child.
Section II briefly describes child placement history in the United States. The third
section addresses the emergence of relative preference as a goal within the child protection system. This discussion includes reasons why policy makers prefer relative placements to non-relative placements, and when and why states and the federal government
began passing legislation reinforcing this preference. The fourth section examines the
1 As of November 2008, there were 508,446 children in out-of-home care according to the
Children’s Defense Fund, Children in the United States (2009).
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