- These three
appeals have been heard together because they have common features and raise
common issues. Each involves accusations of abusing a child made against a
parent by the professionals concerned for the welfare of that child. In each
case the accusations proved to be unfounded. In each case a parent claims
damages for psychiatric harm alleged to have been caused by the false accusations
or their consequences. In one case the child also claims. In each case the
primary case is advanced in negligence. In each case, preliminary issues have
been tried, including whether any duty of care was owed to the claimant or
claimants. In each case it has been common ground that the test to be applied
is that identified by the House of Lords in Caparo Industries Plc v
Dickman [1990] 2 AC 605. In each case the court of first instance has
held that no duty was owed, because it was not 'fair just and reasonable'
to impose such a duty, applying the principles laid down by the House of Lords
in X v Bedfordshire County Council and M v Newham
London Borough Council [1995] 2 AC 633 (‘Bedfordshire’), so that
each claim has been dismissed. The primary issue in each appeal is whether
the decision in Bedfordshire is fatal to the claim. There are, however,
a number of subsidiary issues.
- In the first
appeal (‘East Berks’) a mother claims in respect of acute anxiety and
distress that she alleges she suffered as a result of being incorrectly accused
of suffering from Munchausen syndrome by proxy. In her case she was not, in
fact, separated from her child. In the second case (‘Dewsbury’) a father
and his daughter claim for psychiatric injury and financial loss resulting
from unfounded allegations that the father might have sexually abused his
daughter, which led to the father being denied access to his daughter for
a short period. In the third appeal, (‘Oldham’) a mother and father
claim in respect of psychological distress suffered as a result of unfounded
allegations of having inflicted injuries on their daughter, which led to the
child being separated from her parents for nearly a year.
The
Issues
- Mr Allan Levy
QC, who has appeared for all the appellants, has contended that the decision
in each case violates Article 6 of the European Convention on Human Rights
('the Convention'). This is the first general issue that we shall consider.
- Mr Levy contends
that the law has developed since the decision in Bedfordshire and that
we should hold, on the basis of recent authority, that it is 'fair, just and
reasonable' to impose a duty of care on the defendants in the circumstances
common to each appeal. Whether more recent authority has varied the principles
laid down in Bedfordshire is the second general issue that we shall
consider.
- Mr Levy submits
that there was, in each case, a violation of Article 8 of the Convention and
that the first instance decisions violate Article 13. He urges that, in order
to avoid these violations, each case should be permitted to go to trial and
that the test of negligence that the Court should apply is one that provides
a remedy for the breach of Article 8 that has occurred in each case. The effect
of the impact of the Convention is the third general issue that we
shall consider.
- Mr Levy submits
that, in each case, Bedfordshire can be distinguished on the facts.
This issue we shall have to consider individually, having regard to the facts
of each appeal.
- In each action,
one or more NHS Trusts have been sued as defendants. They have been represented
by Mr Robert Francis QC. In Oldham Simon J. held that the requirement
of 'proximity' laid down by Caparo was not satisfied. Any duty was
owed to the child and there was no room for an additional duty owed to the
parents. By a respondents' notice Mr Francis seeks a finding in the other
two appeals that there was no proximity between the parent claimants and the
NHS defendants. Whether there was a lack of such proximity is a second issue
that we shall have to consider on the facts of each individual case.
- In Dewsbury
Judge Grenfell held that the second defendants, the council, were protected
by witness immunity. Mr Levy challenges that finding. Mr Francis, for his
part, seeks, by respondents' notice, a finding that all the NHS defendants
were protected by witness immunity. Whether the defendants are protected by
witness immunity is a third issue that we shall have to consider in each case.
The first general
issue
- In advancing
his argument in relation to Article 6, Mr Levy explained that he was seeking
to 'resurrect' Osman v United Kingdom [1999] 1 FLR 193. His
argument based on Osman is, as we understand it, as follows. To exclude
any duty of care on the part of those involved in making decisions for the
protection of children against suspected child abuse is to grant them immunity
against liability in negligence. To enable the defendants to invoke the protection
of such immunity by way of preliminary issue is to deny the claimants the
right to have their claims determined on the facts of the individual cases.
This violates their right to a fair trial under Article 6. The court should
not adopt such an approach.
- It is convenient
to consider these submissions in the context of the two Bedfordshire child
abuse cases. At this stage we can touch lightly on the facts and the decisions
in those cases. In the Bedfordshire case five children claimed
against a local authority damages for breach of statutory duty and negligence
in failing to exercise statutory powers and duties to protect them from parental
abuse and neglect. In the Newham case a child and her mother claimed
damages for breach of statutory duty and negligence against a local authority,
an area health authority and a consultant psychiatrist employed by the latter.
The alleged negligence included failure competently to investigate the identity
of a man who had sexually abused the child, with the result that the child
was unnecessarily removed from the mother and both suffered psychiatric injury.
Both actions were struck out on the basis that they disclosed no reasonable
cause of action, and appeals were dismissed.
- The House of
Lords held that both actions had properly been struck out. The relevant statutes
imposed no duty in favour of the claimants. As for the claims in negligence,
as a matter of public policy it was not just and reasonable to impose a common
law duty of care, either to children or to their parents, on those entrusted
with the difficult and delicate task of deciding whether action was necessary
to protect children from suspected abuse.
- The decisions
in Bedfordshire were followed by the decision of the European Court
of Human Rights in Osman. In that case also, a statement of claim had
been struck out as disclosing no reasonable cause of action. In Osman the
applicants complained that their rights under Article 6 of the Convention
had been infringed. They had brought an action in the United Kingdom against
the police alleging negligence in the prevention and pursuit of crime. The
Court of Appeal struck out the proceedings on the ground that they disclosed
no reasonable cause of action. This was on the basis that it was a clearly
established principle of the law of negligence that the police owed no duty
of care to individual citizens in relation to the vigour with which they carried
out their duties of prevention and detection of crime -see Hill v Chief
Constable of West Yorkshire [1989] AC 53.
- The Strasbourg
Court upheld the applicants' claim. The reasoning of the Court appears from
paragraph 139 of its judgment:
"On
that understanding the court considers that applicants must be taken to have
a right, derived from the law of negligence, to seek an adjudication on the
admissibility and merits of an arguable claim that they were in a relationship
of proximity to the police, that the harm caused was foreseeable and that
in the circumstances it was fair, just and reasonable not to apply the exclusionary
rule outlined in the Hill case. In the view of the court the assertion
of that right by the applicants is in itself sufficient to ensure the applicability
of article 6(1) of the Convention."
- This decision
perplexed common law judges and jurists. In Barrett v Enfield Borough
Council [2001] 2 AC 550 at pp.559-60 Lord Browne-Wilkinson explained the
difficulty that he had in following the reasoning of the Court:
"Having
so defined the ambit of article 6, the Strasbourg Court held that there was
in the Osman case a breach of such right of access to the English court,
such breach lying in the application of a blanket exclusionary rule which
excludes all claims against the police for negligent failure to investigate
or protect from crime. In the view of the Strasburg Court, apparently, the
applicability of such exclusionary rule has to be decided afresh in each individual
case. If this is not done then it is impossible to determine whether the public
interest in an efficient police force is or is not proportionate to the seriousness
of the harm suffered by the plaintiff in the individual case: see paragraph
150. On these grounds, the Strasbourg Court held that the English court had
breached article 6 by striking out the claim made by the Osmans against the
police without hearing any evidence by reference to which the proportionality
of the rule in that particular case could be judged. The Court said that the
police had been granted a "blanket immunity" which was disproportionate
and therefore an unjustifiable restriction on the Osmans’ right of access
to the court. The Osmans were entitled to have their case against the police
determined in deserving cases: see paragraphs 151 and 152.
The
problems in applying this reasoning to the English law of negligence are many
and various. For example, the correct answer to the following points is not
immediately apparent. 1. Although the word "immunity" is sometimes
incorrectly used, a holding that it is not fair, just and reasonable to hold
liable a particular class of defendants whether generally or in relation to
a particular type of activity is not to give immunity from a liability to
which the rest of the world is subject. It is a prerequisite to there being
any liability in negligence at all that as a matter of policy it is fair,
just and reasonable in those circumstances to impose liability in negligence.
2. In a wide range of cases public policy has led to the decision that the
imposition of liability would not be fair and reasonable in the circumstances,
eg some activities of financial regulators, building inspectors, ship surveyors,
social workers dealing with sex abuse cases. In all these cases and many others
the view has been taken that the proper performance of the defendant’s primary
functions for the benefit of society as a whole will be inhibited if they
are required to look over the shoulder to avoid liability in negligence. In
English law the decision as to whether it is fair, just and reasonable to
impose a liability in negligence on a particular class of would-be defendants
depends on weighing in the balance the total detriment to the public interest
in all cases from holding such class liable in negligence as against the total
loss to all would-be plaintiffs if they are not to have a cause of action
in respect of the loss they have individually suffered. 3. In English law,
questions of public policy and the question whether it is fair and reasonable
to impose liability in negligence are decided as questions of law. Once the
decision is taken that, say, company auditors though liable to shareholders
for negligent auditing are not liable to those proposing to invest in the
company (see the Caparo Industries case (1990) 2 AC 605), that decision
will apply to all future cases of the same kind. The decision does not depend
on weighing the balance between the extent of the damage to the plaintiff
and the damage to the public in each particular case."
- Osman led
to an understandable reluctance on the part of the English courts in Barrett
and other cases to use the striking out procedure, as we shall show when
we come to address the second issue. Lord Woolf MR commented on this in Kent
v Griffiths [2001] 1 QB 36. He went on to observe at paragraph
38:
"In
so far as the Osman case [1999] 1 FLR 193 underlined the dangers of
a blanket approach so much better. However, it would be wrong for the Osman
decision to be taken as a signal that, even when the legal position is clear
and an investigation of the facts would provide no assistance, the courts
should be reluctant to dismiss cases which have no real prospect of success.
Courts are now encouraged, where an issue or issues can be identified which
will resolve or help resolve litigation, to take that issue or those issues
at an early stage of the proceedings so as to achieve expedition and save
expense. There is no question of any contravention of article 6 of the European
Convention for the Protection of Human Rights and Fundamental Freedoms (1953)
(Cmd 8969) in so doing. Defendants as well as claimants are entitled to a
fair trial and it is an important part of the case management function to
bring proceedings to an end as expeditiously as possible. Although a strike
out may appear to be a summary remedy, it is in fact indistinguishable from
deciding a case on a preliminary point of law."
- Four of the
five unsuccessful claimants in Bedfordshire took their case to Strasbourg
- Z and Others v United Kingdom [2001] 2 FLR 612. They alleged
violation of Articles 3 and 13 but also, relying on Osman, of Article
6. The Commission expressed the view that there had been a breach of Article
6, but the United Kingdom succeeded in persuading the Court that this was
not so. In reviewing the English law of negligence the Court quoted from the
passage in the speech of Lord Browne-Wilkinson in Barrett that we have
set out above and commented:
"The
striking out procedure, now contained in r.3.4(2) of the Civil Procedure Rules
1998 in force since 1999, is regarded as an important feature of English civil
procedure, performing the function of securing speedy and effective justice,
inter alia by allowing it to be decided promptly which issues need full investigation
and trial and disposing summarily of the others. By means of this procedure,
it can be determined at an early stage, with minimal cost to the parties,
whether the facts as pleaded reveal a claim existing in law."
- The Court considered
the alleged breach of Article 6 at length and concluded that no violation
had occurred. The most material passage in the lengthy reasoning of the Court
is to be found in the following paragraphs:
"100. The
applicants, and the Commission in its report, relied on the Osman case
([1999] 1 FLR 193, (2000) 29 EHRR 245) as indicating that the exclusion of
liability in negligence, in that case concerning the acts or omissions of
the police in the investigation and prevention of crime, acted as a restriction
on access to court. The Court considers that its reasoning in the Osman
judgment was based on an understanding of the law of negligence (see, in particular,
paras 138 and 139 of the Osman judgment) which has to be reviewed in
the light of the clarifications subsequently made by the domestic courts and
notably the House of Lords. The Court is satisfied that the law of negligence
as developed in the domestic courts since the case of Caparo Industries
plc v Dickman and Others [1990] 2 AC 605 (cited above, para 58) and as
recently analysed in the case of Barrett v London Borough of Enfield
(above) includes the fair, just and reasonable criterion as an intrinsic element
of the duty of care and that the ruling of law concerning that element in
this case does not disclose the operation of an immunity. In the present case,
the Court is led to the conclusion that the inability of the applicants to
sue the local authority flowed not from an immunity but from the applicable
principles governing the substantive right of action in domestic law. There
was no restriction on access to court of the kind contemplated in Ashingdane
v United Kingdom (1985) 7 EHRR 528.
101. The
applicants may not therefore claim that they were deprived of any right to
a determination on the merits of their negligence claims. Their claims were
properly and fairly examined in light of the applicable domestic legal principles
concerning the tort of negligence. Once the House of Lords had ruled on the
arguable legal issues that brought into play the applicability of Art 6(1)
of the Convention (see paras 87-89 above), the applicants could no longer
claim any entitlement under Art 6(1) to obtain any hearing concerning the
facts. As pointed out above, such a hearing would have served no purpose,
unless a duty of care in negligence had been held to exist in their case.
It is not for this Court to find that this should have been the outcome of
the striking out proceedings since this would effectively involve substituting
its own views as to the proper interpretation and content of domestic law.
102. It
is nonetheless the case that the interpretation of domestic law by the House
of Lords resulted in the applicants’ case being struck out. The tort of negligence
was held not to impose a duty of care on the local authority in the exercise
of its statutory powers. Their experiences were described as ‘horrific’ by
a psychiatrist (see para 40 above) and the Court has found that they were
victims of a violation of Art 3 (see 74 above). Yet the outcome of the domestic
proceedings they brought is that they, and any children with complaints such
as theirs, cannot sue the local authority in negligence for compensation,
however foreseeable - and severe - the harm suffered and however unreasonable
the conduct of the local authority in failing to take steps to prevent that
harm. The applicants are correct in their assertions that the gap they have
identified in domestic law is one that gives rise to an issue under the Convention,
but in the Court’s view it is an issue under Art 13, not Art 6(1)."
- The two claimants
in Newham also made an application to the Strasbourg Court – TP
and KM v United Kingdom [2001] 2 FLR 549. They alleged breaches of Articles
8 and 13 of the Convention, and also of Article 6. The Court rejected the
claim of breach of Article 6 for similar reasons to those advanced in Z v
United Kingdom.
- On the face
of it, these decisions of the European Court would seem fatal to the contention
that the approach adopted by each court in the appeals before us infringed
Article 6. Mr Levy, however, in support of that contention, referred us to
the analysis of the relevant Strasbourg jurisprudence made by Lord Walker
of Gestingthorpe in Matthews v Ministry of Defence [2003] 2
WLR 435 at paragraphs 130 to 140.
- Lord Walker
referred to the decision of the Strasbourg Court in Fayed v United
Kingdom (1994) 18 EHRR 393. In that case the Fayed brothers contended
that the defence of qualified privilege, which defeated their claim in a libel
action, was a violation of Article 6. The Court observed at paragraph 65:
"Whether
a person has an actionable domestic claim may depend not only on the substantive
content, properly speaking, of the relevant civil right as defined under national
law but also on the existence of procedural bars preventing or limiting the
possibilities of bringing potential claims to court. In the latter kind of
case Article 6(1) may have a degree of applicability. Certainly the Convention
enforcement bodies may not create by way of interpretation of Article 6(1)
a substantive civil right which has no legal basis in the State concerned.
However, it would not be consistent with the rule of law in a democratic society
or with the basic principle underlying Article 6(1) - namely that civil claims
must be capable of being submitted to a judge for adjudication - if, for example,
a State could, without restraint or control by the Convention enforcement
bodies, remove from the jurisdiction of the courts a whole range of civil
claims or confer immunities from civil liability on large groups or categories
of persons."
The
Court added at paragraph 67:
"It
is not always an easy matter to trace the dividing line between procedural
and substantive limitations of a given entitlement under domestic law. It
may sometimes be no more than a question of legislative technique whether
the limitation is expressed in terms of the right or its remedy."
- The Court repeated
these observations in Fogarty v United Kingdom (2001) EHRR 302.
This led Lord Walker to remark at paragraph 140:
"The
uncertain shadow of Osman still lies over this area of the law"
- We do not consider
that the shadow of Osman stretches far enough to obscure the position
in the appeals under consideration. They do not concern an area where it is
difficult to draw a line between procedural and substantive rules of law.
They are concerned with the application of a fundamental principle of our
common law of negligence. In performing their accepted function of tailoring
the law of negligence to new factual situations, the courts will not recognise
a duty of care unless it is 'fair just and reasonable' that such a duty should
exist -see Caparo. The procedure that has given rise to these appeals
involves determining, by way of preliminary issues, whether the test of what
is 'fair just and reasonable', applied with that respect for case precedent
which our law requires, precludes the existence of a duty of care, even if
all the facts alleged by the claimants are established. Those preliminary
issues have reached the Court of Appeal and may well reach the House of Lords.
No violation of Article 6 is involved in this procedure, as the Strasbourg
Court expressly recognised in Z and Others v United Kingdom and
TP and KM v United Kingdom.
- For these reasons
Mr Levy does not succeed on the first issue. The judgments appealed against
involve no violation of Article 6.
The second issue
- We now turn
to consider whether, as Mr Levy submits, subsequent decisions have varied
the principles laid down by Bedfordshire. It is necessary at the outset
to identify what was decided in Bedfordshire.
What did the
Bedfordshire cases decide?
- In Bedfordshire
no less than five appeals were heard together. It is convenient to consider
them in two groups - the child abuse cases ('the Bedfordshire case'
and 'the Newham case') and the educational cases ('the Dorset case',
'the Hampshire case' and 'the Bromley case').
The child abuse
cases
- In the Bedfordshire
case five children brought claims, which included claims for damages in
negligence, against the council for failing to take action to prevent them
from suffering parental abuse and neglect. In the Newham case a child
and her mother brought claims, which included claims for damages in negligence
against the local authority, the area health authority and a consultant psychiatrist
employed by the latter. The relevant allegations were that the authority had
failed to conduct with due care its statutory duty to investigate allegations
of child abuse, with the result that the mother's cohabitee was wrongfully
identified as the abuser. As a result of this the child was removed from the
mother and placed in foster care. Both mother and daughter claimed that they
had sustained psychiatric injury as a result of this.
- Lord Browne-Wilkinson
gave the leading speech. The relevant part is that in which he considered
whether, in the course of carrying out its statutory duties, the local authority
had, through its employees, brought about such a relationship with the plaintiffs
as to give rise to a duty of care at common law. In this context, he remarked
at p.739:
"…the
question whether there is such a common law duty and if so its ambit, must
be profoundly influenced by the statutory framework within which the acts
complained of were done.
….
…in
my judgment a common law duty of care cannot be imposed on a statutory duty
if the observance of such common law duty of care would be inconsistent with,
or have a tendency to discourage, the due performance by the local authority
of its statutory duties."
- Having regard
to this comment it may be helpful to refer to Lord Browne-Wilkinson’s summary
of the relevant statutory provisions at pp.744-6 of his speech:
"Since
1932 there has been legislation designed by Parliament to provide protection
for children in need of care and protection. The first statute directly relied
upon in the abuse cases is the Children and Young Persons Act 1969. Section
1 provided that a court could make a care order in care proceedings if satisfied,
inter alia, that the child was being neglected or ill-treated. Under section
2(1) a duty was imposed on the local authority which received information
"suggesting that there are grounds for bringing care proceedings"
to cause inquiries to be made. Section 2(2) provided:
If
it appears to a local authority that there are grounds for bringing care proceedings
in respect of a child or young person who resides or is found in their area,
it shall be the duty of the authority to exercise their power under the preceding
section to bring care proceedings in respect of him….
The
Child Care Act 1980, sections 1 and 2 provide so far as relevant as follow:
1(1)
It shall be the duty of every local authority to make available such advice,
guidance and assistance as may promote the welfare of children by diminishing
the need to receive children into or keep them in care under this Act or to
bring children before a juvenile court;…
2(2)
Where it appears to a local authority with respect to a child in their area
appearing to them to be under the age of 17- … (b) that his parents …are,
for the time being or permanently, prevented by reason of mental or bodily
disease or infirmity or other incapacity or any other circumstances from providing
for his proper accommodation, maintenance and upbringing; and (c) in either
case, that the intervention of the local authority under this section is necessary
in the interests of the welfare of the child, it shall be the duty of the
local authority to receive the child into their care under this section.
Section
76(1)(a) gave the Secretary of State power to direct an inquiry in relation
to the child care services. Those were the only directly relevant statutory
duties in force during the events complained of in the Newham cases.
The
Children Act 1989 come into force on 14th October 1991 and is therefore relevant
in relation to the later stages of the Bedfordshire cases. Part III of the
Act includes section 17(1) and (2) which provide as follows:
(1)
It shall be the general duty of every local authority (in addition to the
other duties imposed on them by this Part)-(a) to safeguard and promote the
welfare of children within their area who are in need: and (b) so far as is
consistent with that duty, to promote the upbringing of such children by their
families, by providing a range and level of services appropriate to those
children’s needs.
(2)
For the purposes principally of facilitating the discharge of their duty under
this section, every local authority shall have the specific duties and powers
set out in Part 1 of schedule 2.
Schedule
2, Part 1, paragraphs 1(1) and 4(1) provide:
1(1)
Every local authority shall take reasonable steps to identify the extent to
which there are children in need within their area.
4(1) Every local authority shall take reasonable steps, through the provision
of services under Part III of this Act, to prevent children within their area
suffering ill-treatment or neglect.
Part
III of the Act includes 20(1) which provides:
(1)
Every local authority shall provide accommodation for any child in need within
their area who appears to them to require accommodation as a result of-… (c)
the person who has been caring for him being prevented (whether or not permanently,
and for whatever reason) from providing him with suitable accommodation or
care.
In
Part V of the Act, section 47(1) and (8) provides:
(1)
Where a local authority… (b) have reasonable cause to suspect a child who
lives, or is found, in their area is suffering, or is likely to suffer significant
harm, the authority shall make, or cause to be made, such inquiries as they
consider necessary to enable them to decide whether they should take any action
to safeguard or promote the child’s welfare….
(8)
Where, as a result of complying with this section, a local authority conclude
that they should take that to safeguard or promote the child’s welfare they
shall take that action (so far as it is both within their power and reasonably
practicable for them to do so)."
Amongst
the steps the local authority can take to safeguard the child’s welfare is
to apply to the court for a care order under section 31. If a care order is
made, the local authority is under a duty to receive the child into its care."
- Lord Browne-Wilkinson
went on to refer to statutory guidance in relation to the performance of these
statutory duties which emphasised:
"….the
importance in this field of inter-disciplinary and inter-agency links and
the need for a close working relationship between "social service departments,
the police service, medical practitioners, community health workers, the education
service and others who share a common aim to protect the child at risk."
- Lord Browne-Wilkinson,
at p.749, recorded that:
"The
local authority accepts that they could foresee damage to the plaintiffs if
they carried out their statutory duties negligently and that the relationship
between the authority and the plaintiffs is sufficiently proximate" [to give
rise to a duty of care].
He
held, however, that there were special considerations for concluding that
it was not just and reasonable to impose such a duty.
- Those reasons
were summarised by May LJ in S v Gloucestershire CC [2001] 1 Fam 313
at 329 and we shall adopt his summary:
"(1)
A common law duty of care would cut across the whole statutory system set
up for the protection of children at risk. This is inter-disciplinary, involving
the participation of the police, education bodies, doctors and others. It
would be almost impossible to disentangle the respective liability of each
for reaching a decision found to be negligent. (2) The task of the local authority
and its servants in dealing with children at risk is extraordinarily delicate.
(3) If there were potential liability for damages, it might well mean that
local authorities would adopt a more cautious and defensive approach to their
duties. (4) The relationship between the social worker and the child’s parents
is often one of conflict. This would be likely to breed ill feeling and often
hopeless litigation which would divert money and resources away from the performance
of the social service for which they were provided. (5) There were other remedies
for maladministration of the statutory system for the protection of children
in statutory complaints procedures and the power of the local authorities
ombudsman to investigate cases. (6) The development of novel categories of
negligence should proceed incrementally and by analogy with decided categories.
There were no close such analogies. The court should proceed with great care
before holding liable in negligence those who have been charged by Parliament
with the task of protecting society from the wrong doings of others."
- Lord Browne-Wilkinson
went on to consider whether the individual social workers and psychiatrists
involved owed individual duties of care to the claimants. He concluded that
they did not. His reasoning appears in the following passages of his speech
at pp.752, 753, and 754:
"The
social workers and the psychiatrists were retained by the local authority
to advise the local authority, not the plaintiffs. The subject matter of the
advice and activities of the professionals is the child. Moreover the tendering
of any advice will in many cases involve interviewing and, in the case of
doctors, examining the child. But the fact that the carrying out of the retainer
involves contact with and relationship with the child cannot alter the extent
of the duty owed by the professionals under the retainer from the local authority.
….
In
my judgment in the present cases, the social workers and the psychiatrist
did not, by accepting the instructions of the local authority, assume any
general professional duty of care to the plaintiff children. The professionals
were employed or retained to advise the local authority in relation to the
well being of the plaintiffs but not to advise or treat the plaintiffs.
….
Even
if, contrary to my view, the social workers and psychiatrist would otherwise
have come under a duty of care to the plaintiffs, the same considerations
which have led me to the view that there is no direct duty of care owed by
the local authorities apply with at least equal force to the question whether
it would be just and reasonable to impose such a duty of care on the individual
social workers and the psychiatrist"
The educational
cases
- The educational
cases involved claims against local authorities for negligently failing to
identify that children had special educational needs. Lord Browne- Wilkinson
held that the education authorities owed no relevant duty of care to children
in the performance of their duties under the Education Acts but that individual
employees of the authorities might be in such a relationship with a child
as to owe a common law duty of care, breach of which would render the authority
vicariously liable.
Subsequent decisions
- A number of
relevant decisions have been given since Bedfordshire, including two
in the House of Lords. In neither of these did the House of Lords purport
to depart from the decision in Bedfordshire, and this puts difficulties
in Mr Levy's way when seeking to persuade us that 'the law has moved on' since
Bedfordshire. At the same time, it is always possible for the House
of Lords to reduce the impact of a previous decision by distinguishing it
or confining it narrowly to its particular facts, and it is necessary to consider
whether this has occurred in relation to the approach to child abuse cases.
- In Barrett
v Enfield London Borough Council [2001] 2 AC 550 the claimant,
who had been in the care of the defendant local authority under a care order
between the ages of 10 months and 17 years claimed to have been caused psychological
and psychiatric problems as a result of the negligent way that the authority
had cared for him. It was alleged that both the local authority and the social
workers employed by it, for whom it was vicariously liable, had been in breach
of the common law duty of care to the plaintiff in the exercise of the local
authority’s functions under the Children Act 1948, the Children and Young
Persons Act 1969 and the Child Care Act 1980. The claim had been struck out
as disclosing no reasonable cause of action, and this decision had been upheld
by the Court of Appeal, purporting to apply Bedfordshire. The House
of Lords reversed the decision.
- Barrett was
exhaustively analysed by May LJ in S v Gloucestershire County Council and
we do not propose to repeat that exercise. We shall simply summarise the reasoning
of the House of Lords. There are two strands to this. In the first place,
the House of Lords held that the factual situation in Barrett was significantly
different from that in Bedfordshire. This was indeed the submission
in that case of Mr Levy, who appeared for the claimant - see p.552. Lord Slynn
of Hadley, who gave the leading speech, considered the factors that had led
the House in the Bedfordshire cases to conclude that it was not just
and reasonable to impose on the local authority a duty of care. He commented
at p.568:
"Whilst
not casting doubt on the validity of these factors in the context of the investigations,
or the steps which it was said should have been taken, in those cases of child
abuse and neglect of educational needs, it does not seem to me that they necessarily
have the same force separately or cumulatively in the present case. Thus,
although once a child is in care, there may well be co-operation between different
social welfare bodies, the responsibility is that of the local authority and
its social and other professional staff. The decision to remove the child
from its home is already taken and the authority has statutory powers in relation
to the child which do not necessarily involve the exercise of the kind of
discretion involved in taking a child from its family into care. As to the
likelihood of an authority being over-cautious, I am of the same opinion as
Evans LJ in the Court of Appeal in this case [1998] QB 267, 380:
"I
would agree that what is said to be a ‘policy’ consideration, namely, that
imposing a duty of care might lead to defensive conduct on the part of the
person concerned and might require him to spend time or resources on keeping
full records or otherwise providing for self-justification, if called upon
to do so, should normally be a factor of little, if any, weight. If the conduct
in question is of a kind which can be measured against the standards of the
reasonable man, placed as the defendant was, then I do not see why the law
in the public interest should not require those standards to be observed."
Nor
do I think the remedies accepted to be available in the Bedfordshire
case [1995] 2 AC 633 are likely to be as efficacious as the recognition by
the court that a duty of care is or may be owed at common law. I agree with
Sir Thomas Bingham MR in his dissenting judgment in the Court of Appeal in
the Bedfordshire case, at p.662G: "I cannot accept, as a general
proposition, that the imposition of a duty of care makes no contribution on
the maintenance of high standards."
In
summary the Bedfordshire case establishes that decisions by local authorities
whether or not to take a child into care with all the difficult aspects that
involves and all the disruptions which may come about are not ones which the
courts will review by way of a claim for damages in negligence, though there
may be other remedies by way of judicial review or through extra judicial
routes such as the Ombudsman.
The
question in the present case is different since the child was taken into care;
it is therefore necessary to consider whether any acts or omissions and if
so what kind of acts or omissions can ground a claim in negligence. The fact
that no completely analogous claim has been accepted by the courts previously
points to the need for caution and the need to proceed ‘incrementally’ and
‘by analogy with decided cases’."
- The speech of
Lord Hutton had a passage to like effect at pp.588-590.
- The second strand
in the reasoning was that it was only in the clearest case in the type of
matter under consideration that a claim should be struck out as disclosing
no cause of action without considering the material facts - see Lord Slynn
at p.574. Lord Browne-Wilkinson referred expressly to Osman in the
passage that we cited earlier. Lord Slynn did not, but we have no doubt that
he had the effect of that decision in mind.
- The effect of
Barrett was considered by the Court of Appeal in S v Gloucestershire.
Two appeals were heard together. Each was by a claimant who alleged that
a local authority had been negligent in leaving them in the care of foster
parents who were sexually abusing them. At first instance each case had been
struck out as disclosing no cause of action. The Court of Appeal reversed
this result in one case. In the other they gave summary judgment in favour
of the defendant under CPR 24.2 on the ground that the claim had no real prospect
of success.
- In the only
judgment, May LJ set out at pp.338-9 the strands of the law to be derived
from Barrett. The following passage of his judgment is particularly
relevant:
"It
is clear from these principles that in an ordinary case a local authority
defendant is unlikely to establish a defence which relies on a blanket immunity.
There would be a blanket immunity for this purpose if it were decided without
reference to a particular fact that all cases which have certain basic characteristics
were not justiciable; or that in every case with certain characteristics it
was not just or reasonable to impose a duty of care. Thus it seems to me that
it would be incorrect to say, as counsel for the local authorities were inclined
to submit in appeals before this court, that cases which may be labelled as
child abuse cases are bound to fail as a class. The "child abuse cases"
was no more than a convenient label under which X (Minors) v Bedfordshire
County Council and M (A Minor) v Newham London Borough Council
[1995] 2 AC 633 travelled. Remembering always that the critical question is
a composite one which embraces alleged duty of care and its breach in the
context of the damage alleged to have been caused, the court has to consider
the nature of the actions and decisions of the local authority which are said
to have been negligent. From this it may be seen that a decision whether or
not to take a child said to have been abused away from its natural parents
and into care may often be acutely difficult. But many of the decisions about
care and upbringing of a child once he or she has been taken into care, difficult
though they may be, may not have the acute complications, strains and conflicts
identified in the Bedfordshire cases."
- While in this
passage, May LJ distinguished Bedfordshire, he did so in a way which
came close to suggesting that its effect should be confined to its own particular
facts. May LJ then referred to the fact that the Commission in Z v United
Kingdom had concluded that there had been, in that case, a violation of
Article 6. He commented at p.340:
"This
reinforces my reading of the Barrett case to the effect that it is
unlikely that claims of the kind presently before this court will be seen
as non-judiciable or ones where it is not just and reasonable to impose a
duty of care without a proper examination of the individual facts."
- In Phelps
v Hillingdon London Borough Council [2001] 2 AC 619 four appeals
were heard together by a Committee of seven members of the House of Lords.
In each the complainant contended that the local education authority had negligently
failed to make proper provision for his or her special educational needs.
The cases were advanced both on the basis that the education authority was
vicariously liable for breaches of a duty of care owed by the individual teachers
or other professionals and on the basis that the education authority was in
breach of a duty of care owed directly by the authority.
- It is of interest
that counsel for the claimants argued that the decision in Bedfordshire
that local education authorities could be under no duty of care should
be departed from in that it had the effect of conferring a blanket immunity
and was therefore inconsistent with Osman as interpreted in Barrett.
- Speeches were
delivered by Lord Slynn, Lord Nicholls and Lord Clyde. Lord Jauncey agreed
with all of these and Lord Lloyd, Lord Hutton and Lord Millett agreed with
the speeches of Lord Slynn and Lord Clyde.
- Lord Slynn held
that it was arguable that the individual professionals concerned with the
claimants owed them a duty of care, for breach of which the authorities were
vicariously liable. He observed at p.653:
"I
accept that, as was said in X (Minors) v Bedfordshire County Council
[1995] 2AC 633, there may be cases where to recognise such a vicarious liability
on the part of the authority may so interfere with the performance of the
local education authority’s duties that it would be wrong to recognise any
liability on the part of the authority. It must, however, be for the local
authority to establish that: it is not to be presumed and I anticipate that
the circumstances where it could be established would be exceptional."
He
added at p.654:
"But
where an educational psychologist is specifically called in to advise in relation
to the assessment and future provision for a specific child, and it is clear
that the parents acting for the child and the teachers will follow that advice,
prima facie a duty of care arises."
- So far as a
direct claim in negligence against the education authority was concerned,
Lord Slynn differed from Bedfordshire in that he saw no reason of principle
why such a claim should never be possible. He held at p.658:
"Since
the authority can only act through its employees or agents, and if they are
negligent vicarious liability will arise, it may rarely be necessary to invoke
a claim for direct liability. After the argument in these cases, I do not,
however, accept the absolute statement that an education authority "owes
no common law duty of care … in the exercise of the powers … relating to children
with special educational needs" under the 1981 Act. That issue, however,
as I have said does not fall for decision in Pamela’s case. I would accordingly
allow the appeal and restore the order of Garland J."
- Lord Nicholls
at p.668 left open the question of whether Lord Browne- Wilkinson had been
correct in Bedfordshire to hold that an education authority owes no
common law duty of care in the exercise of powers and discretions relating
to children with special educational needs conferred on it by the 1981 Education
Act.
- Lord Clyde also
found that there were strong grounds for arguing that the individual professionals
involved owed the children a duty of care, breach of which would result in
the education authorities becoming vicariously liable. He too left open the
question of whether education authorities could owe a direct duty of care
to the children. At p.674 he made the following comment in relation to one
of the factors that had led Lord Browne-Wilkinson to hold that it was not
just and reasonable to impose a duty of care in the child abuse cases:
"Another
circumstance which may give rise to difficulty in the present context is that
there may be a multi-disciplinary unit concerned in the giving of the advice.
But that is a practical problem which cannot constitute a legal bar on a claim.
Even where such a situation exists it should be possible to disentangle the
relevant parts played by particular individuals and identify where the alleged
negligence occurred."
A
little later, however, he commented:
"The
distinction noted by Lord Browne-Wilkinson in E (A Minor) v Dorset County
Council [1995] 2 AC 633, 763-764 is drawn between education cases and
child abuse cases. In the former case it may more readily be concluded that
the involvement of the parents is both consistent with and supports the conclusion
that a duty of care existed through them to the child. In the latter, despite
the general intention that all the interested parties should work together,
the opportunity for conflict between parents and the professional advisers
may be far greater than in the educational context."
The effect of
the decisions
- These decisions
significantly restrict the effect of Bedfordshire. So far as the education
authority cases are concerned, doubt was cast in Phelps on the proposition
that an education authority owes no duty of care to children when exercising
powers and discretions under the 1981 Act. So far as child abuse cases are
concerned, much of the reasoning advanced by Lord Brown Wilkinson to justify
holding that there was no duty of care was called into question. Lord Slynn
in Barrett stated that Bedfordshire established that decisions
by local authorities whether or not to take a child into care were not reviewable
by way of a claim in negligence. We consider that the effect of Barrett
and the other decisions that we have considered above is to restrict the
effect of Bedfordshire to that core proposition.
New Zealand decisions
- In Attorney-General
v Prince and Gardner [1998] 1 NZLR 262 a child and his mother brought
claims in negligence against the Crown in relation to the manner in which
a child welfare officer had prepared reports which had led to the adoption
of the child by unsatisfactory adoptive parents. Proximity was conceded but
the Crown sought to have the claim struck out on the grounds that it disclosed
no cause of action in that, for reasons of policy, no duty of care was owed.
The decision in Bedfordshire was relied upon.
- The Court of
Appeal declined to strike out the claim. In the following passage the majority
of the Court distinguished Bedfordshire:
"In
the Bedfordshire case Lord Browne-Wilkinson at p.739 emphasised that
the question whether there is a common law duty, and if so its ambit, must
be profoundly influenced by the statutory framework within which the acts
complained of were done. In the various respects we have been discussing the
Children and Young Persons Act 1974 is clearly distinguishable from the statutes
before the House of Lords in the Bedfordshire case and the statutes
under consideration in the large number of cases (but few in the child protection
field) canvassed in argument. Little is to be gained from a point-by-point
comparison. Also, the rescue cases are not comparable because in those cases
any statutory framework was very different from the 1974 Act.
There
are other policy considerations to be considered although we would not weigh
them as heavily in this case as the scheme and policy of the 1974 Act. First,
the difficulty and delicacy of the social worker’s task and its judgemental
nature are relevant. Intrusion into the family has been handled with tact
in the interests of the child or young person. The social worker must also
have regard to the advantages of not disrupting the family environment and
to the advantages and disadvantages of other options for the care of the young
person. Clearly a plaintiff would have difficulty in establishing that an
assessment made by a social worker fell outside the bounds sanctioned by professional
opinion. Nevertheless considerations of the kind cannot absolve the department
and social workers from the responsibility of considering and responding to
specific complaints with professional skill and care.
Next,
the Solicitor-General submitted that the imposition of a duty would or could
cause the department and social workers to adopt a more cautious and defensive
approach to their duties. He drew our attention to a considerable body of
professional literature on that point and to the recognition of it in the
Bedfordshire case (see also Barrett v Enfield London Borough Council
[1997] 3WLR 628 at pp636 and 638). But like lawyers and doctors, social workers
are professionals. At that triggering step (and at other steps) they should
be expected to have shouldered willingly a standard of reasonable skill and
care that their private sector counterparts were expected to discharge. And
in the absence of any data as to potential claims based on the roles and responsibilities
of the department and social workers under the 1974 Act, which was replaced
eight years ago by a very different legislative scheme, it would be unwise
to give any particular weight to the resource implications of allowing for
a common law duty of care.
Finally,
and as pointing against the imposition of a duty, there are the obvious difficulties
of reaching conclusions as to causation and damages. Clearly any such claims
would be very difficult to establish. That in itself cannot, we think be adequate
justification for ruling out the possibility of any claim for negligence whatever
the circumstances.
For
these reasons, on the pleadings as they stand, we would not strike out the
cause of action in negligence"
- It is apparent
that, while there were grounds for distinguishing Bedfordshire, some
of the policy considerations which weighed with Lord Browne-Wilkinson did
not carry the same weight with the Court of Appeal.
- The decision
in Prince lay at the heart of an appeal to the Privy Council in B
and Others v Attorney General and Others – unreported (16 July 2003).
The Court of Appeal had struck out a claim by a father and his two daughters
against a social worker, a clinical psychologist, and the Attorney-General,
sued on behalf of the Minister of Social Welfare and the Department of Social
Welfare. The claim was for negligence in the investigation of the suspected
abuse of the daughters by their father, with the consequence that the daughters
were removed from their father and placed with foster parents. The decision
of the Court of Appeal preceded that in Prince, and the Court of Appeal
was much influenced by Bedfordshire. Before the Privy Council Prince
was not challenged. The issue was whether it could be distinguished.
- The Privy Council
concluded that, as far as the daughters were concerned, there was no basis
upon which Prince could validly be distinguished. Their claims were
permitted to proceed. Different considerations applied in the case of the
father. The Court said this at paragraph 30:
"…their
Lordships consider no common law duty of care was owed to the father. He stands
in a very different position. He was the alleged perpetrator of the abuse.
In an inquiry into an abuse allegation the interests of the alleged perpetrator
and of the children as the alleged victims are poles apart. Those conducting
the inquiry must act in good faith throughout. But to impose a common law
duty of care on the department and the individual professionals in favour
of the alleged victims or potential victims and, at one and the same time,
in favour of the alleged perpetrator would not be satisfactory. Moreover,
a duty of care in favour of the alleged perpetrator would lack the juridical
basis on which the existence of a common law duty of care was largely founded
in Prince’s case. The Prince’s case rests heavily on the feature
that the duty imposed on the Director-General by section 5(2)(a) of the 1974
Act is for the benefit of the particular child. Self-evidently this statutory
duty was not imposed for the benefit of alleged perpetrators of abuse. To
utilise the existence of this statutory duty as the foundation of a common
law duty in favour of perpetrators would be to travel far outside the rationale
in Prince’s case"
The
distinction between the position of children and the position of their parents
is a matter to which we shall revert.
The impact of
the Human Rights Act 1998
- The facts that
have given rise to the cases with which we are concerned pre-date October
2000, when the Human Rights Act came into force. It follows that no claim
can be brought under the Act. It is nonetheless necessary to consider whether
the introduction of the Act has affected the common law principles of the
law of negligence. As that law develops all who have outstanding claims are
in a position to profit from the development and in this area of the law,
where children are victims, claims may be brought many years after the events
to which they relate.
- We have referred
to Z v United Kingdom and TP and KM v United Kingdom in relation
to Article 6 of the Convention. It is now necessary to consider the effect
of these decisions of the Strasbourg Court in relation to the claims that
were based on Article 3 and Article 8.
- In Z
v United Kingdom the Commission had found that there was a positive
obligation on the Government to protect children from treatment contrary to
Article 3. The authorities had been aware of the serious ill-treatment and
neglect suffered by the four applicants over a period of years at the hands
of their parents and had failed to take effective steps to bring this to an
end. The treatment reached the level of severity prohibited by Article 3.
It followed that the State had failed in its positive obligation to provide
the applicants with adequate protection against inhuman and degrading treatment.
The Government did not challenge these findings, and the Court endorsed them.
- It would have
been open to the Government to argue that the statutory scheme in place satisfied
the Government’s positive obligation and that it was in the interest of the
effective operation of the scheme that neither public authorities nor their
employees should be subject to liability for shortcomings in relation to the
decision of whether or not to take a child into care. Instead counsel for
the Government submitted that after October 2000, when the Human Rights Act
had come into force, a victim would be able to bring proceedings in the courts
against a public authority for a breach of a substantive right and the courts
would be empowered to award damages.
- The Court held
at paragraph 109:
"There
should however be available to the victim or the victim’s family a mechanism
for establishing any liability of State officials or bodies for acts or omissions
involving the breach of their rights under the Convention. Furthermore, in
the case of a breach of Arts 2 and 3 of the Convention, which rank as the
most fundamental provisions of the Convention, compensation for the non-pecuniary
damage flowing from the breach should in principle be available as part of
the range of redress."
The
United Kingdom was held to have been in breach of both Article 3 and Article
13.
- In order to
understand the decision in TP and KM v United Kingdom it is necessary
to say a little more about the facts. The applicants were respectively mother
and daughter. The local authority (‘Newham’) had reason to suspect that KM
had been sexually abused. In the course of their investigations KM was interviewed
by a consultant child psychiatrist employed by the health authority. A social
worker was present, but TP was not. The interview was video-recorded. KM disclosed
that she had been abused by a man and gave his first name. This happened to
be the first name of the boy-friend of TP, who was living with her. KM was,
however, referring to another man with the same first name and some of her
answers should have disclosed that this might be the case. Newham obtained
a place of safety order from the Magistrates Court, identifying the boy-friend
as the abuser. At this stage TP was denied access to the video recording.
After about a year of separation, Newham allowed KM to be rehabilitated with
TP. This coincided with the release of the video-recording to the mother.
- The applicants
contended that there had been a breach of their rights under Articles 6, 8
and 13. As we have already explained, the Court dismissed the claim under
Article 6.
- So far as Article
8 was concerned, it was common ground that the removal of KM from her mother
constituted an interference with respect for family life. The issue was whether
this had been justified in accordance with Article 8(2), which provides:
"There
shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic
society in the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the rights and freedoms
of others."
- The Government
submitted that the removal of KM was in accordance with the law and pursued
the legitimate aim of protecting her welfare. The applicants contended that
there were insufficient reasons to justify the removal, as the investigation
had not been competently carried out. They further complained of the procedure
that had been adopted and, in particular, of the failure to permit the mother
to see the video recording.
- The court held
that the removal of KM was ‘in accordance with the law’ and in pursuit of
a ‘legitimate aim’. As to whether the removal of KM had been ‘necessary in
a democratic society’ the Court set out the following general principles:
"In
determining whether the impugned measures were ‘necessary in a democratic
society’, the Court will consider whether, in the light of the case as a whole,
the reasons adduced to justify them were relevant and sufficient for the purposes
of para 2 of Art 8 of the Convention. Undoubtedly, consideration of what lies
in the best interest of the child is of crucial importance in every case of
this kind. Moreover, it must be borne in mind that the national authorities
have the benefit of direct contact with all the persons concerned. It follows
from these considerations that the court’s task is not to substitute itself
for the domestic authorities in the exercise of their responsibilities regarding
custody and access issues, but rather to review, in the light of the Convention,
the decisions taken by those authorities in the exercise of their power of
appreciation (see Hokkanen v Finland [1996] 1 FLR 289, (1995) 19 EHRR,
and mutatis mutandis, Bronda v Italy (9 June 1998) Reports of Judgments
and Decisions 1998-IV, p.1491, s59).
The
margin of appreciation to be accorded to the competent national authorities
will vary in accordance with the nature of the issues and the importance of
the interests at stake. Thus, the Court recognises that the authorities enjoy
a wide margin of appreciation, in particular when assessing the necessity
of taking a child into care. However, a stricter scrutiny is called for in
respect of any further limitations, such as restrictions placed by those authorities
on parental rights of access, and of any legal safeguards designed to secure
an effective protection of the right of parents and children to respect for
their family life. Such further limitations entail the danger that the family
relations between the parents and a young child would be effectively curtailed
(see, amongst other authorities, Johansen v Norway (1996) 23 EHRR 33,
67-68 (para 64)).
The
Court further recalls that whilst Art 8 contains no explicit procedural requirements,
the decision-making process involved in measures of interference must be fair
and such as to afford due respect to the interests safeguarded by Art 8:
What
has to be determined is whether, having regard to the particular circumstances
of the case and notably the serious nature of the decisions to be taken, the
parents have been involved in the decision-making process, seen as a whole,
to a degree sufficient to provide them with the requisite protection of their
interests. If they have not, there will have been a failure to respect their
family life and the interference resulting from the decision will not be capable
of being regarded as ‘necessary’ within the meaning of Article 8. (see W
v United Kingdom (1988) 10 EHRR 29, 50).
It
has previously found that the failure to disclose relevant documents to parents
during the procedures instituted by the authorities in placing and maintaining
a child in care meant that the decision-making process determining the custody
and access arrangements did not afford the requisite protection of the parents’
interests as safeguarded by Art 8 (see McMichael v United Kingdom (1995)
20 EHRR 205, 241). "
- Applying those
principles to the facts, the Court first dealt with the decision to seek a
place of safety order:
"As
concerns the measure taken to remove the second applicant into care, the Court
considers that this was supported by relevant and sufficient reasons, namely,
the strong suspicions that she had been abused and the doubts which existed
as to the first applicant’s ability to protect her (see paras 10-16 above).
In the latter context, it may be noted that the abuse had taken place in the
first applicant’s home without her apparently being aware and that the first
applicant’s reaction, however natural in the circumstances, tended towards
a denial of the allegations. It also appears from the interview that while
at one point the second applicant had described the abuser as having been
thrown out of the house, at another point she referred to X as coming to the
house the next day (see para 14 above).
The
Court is not persuaded however that the mistake made by Dr V and Mr P in assuming
that the second applicant was referring to the first applicant’s boyfriend
XY was of such a nature as to deprive the decision to remove the second applicant
into care of a legitimate basis. The second applicant was less than 5 years
old at the time of the interview and the process of questioning her was a
sensitive and delicate one, as was interpreting the sense of her responses,
verbally and with regard to her body language. The second applicant frequently
did not speak in grammatical sentences and appeared to contradict herself
on several occasions. The fact that the second applicant shook her head would
not necessarily indicate an unequivocal denial of the question put. Dr B,
the consultant psychiatrist instructed by the first applicant, commented positively
on the way in which Dr V handled the interview and agreed with her conclusions
as to the existence of the abuse and the identity of the abuser (see para
23 above).
The
Court finds therefore that the use of the emergency procedure to take the
second applicant into care may be regarded as a proportionate measure and
‘necessary in a democratic society’ for protecting the second applicant’s
health and rights."
- We observe that
the test applied by the Court approximates to that which would be appropriate
when considering whether there had been a breach of a duty of care. It is
implicit that, had the court accepted the criticisms made by the applicants
of the conduct of Dr B and Dr V, a breach of Article 8 would have been established.
- The Court went
on to find that there were shortcomings in the procedure that had been adopted,
which constituted a breach of Article 8:
"The
Court concludes that the question whether to disclose the video of the interview
and its transcript should have been determined promptly to allow the first
applicant an effective opportunity to deal with the allegations that her daughter
could not be returned safely to her care. The local authority’s failure to
submit the issue to the Court for determination deprived her of an adequate
involvement in the decision-making process concerning the care of her daughter
and thereby of the requisite protection of their interests. There was in this
respect a failure to respect their family life and a breach of Art 8 of the
Convention."
- The applicants
contended that the decision of the House of Lords that they were owed no duty
of care had the effect that they were denied an effective remedy, contrary
to Article 13. The Court accepted this submission:
"The
Court considers that the applicants should have had available to them a means
of claiming that the local authority’s handling of the procedures was responsible
for the damage which they suffered and obtaining compensation for that damage.
It does not agree with the Government that pecuniary compensation would not
provide redress. If, as is alleged, psychiatric damage occurred, there may
have been elements of medical costs as well as significant pain and suffering
to be addressed. The Court does not consider it appropriate in this case to
make any findings as to whether only court proceedings could have furnished
effective redress, although judicial remedies indeed furnish strong guarantees
of independence, access to the victim and family enforceability of awards
in compliance with the requirements of Art 13 (see, mutatis mutandis, Klass
and Others v Germany (1980) 2 EHRR 214, 239). The possibility of applying
to the ombudsman and to the Secretary of State did not however provide the
applicants with any enforceable right to compensation."
- In relation
to damages, the Court recorded that the Government disputed that there was
any clear case of negligence or evidence that the applicants had required
physical or psychiatric treatment. The Court then proceeded to award damages
on the following basis:
"The
Court recalls that the applicants were re-united after a year’s separation
(see para 29 above). Though it cannot be asserted that they would have been
reunited earlier if the video had been available at the initial stage of the
procedure, it cannot be excluded either that it might have reduced the duration
of their separation. They thereby suffered a loss of opportunity. In addition,
the applicants certainly suffered non-pecuniary damage through distress and
anxiety and in the case of the first applicant through feelings of frustration
and injustice."
- There have been
a number of other recent decisions of the Strasbourg Court in relation to
child abuse. We shall refer first to an Article 3 case. In E and Others
v United Kingdom [2003] 1 FLR 348 four children complained that their
local authority in Scotland had been in breach of its statutory duties in
failing to protect them from sexual abuse by their step-father. They had not
pursued a domestic claim to damages, having been advised that, in the light
of the decision in Bedfordshire, their claim was doomed to failure.
The Court held that there had been breaches of their Article 3 and Article
13 rights. The Court found that their treatment by their step-father constituted
inhuman and degrading treatment that fell within the scope of Article 3. Indeed,
this was not contested. The Court then asked the question, at paragraph 92:
"…
whether the local authority (acting through its social work department) was,
or ought to have been, aware that the applicants were suffering or at risk
of abuse and, if so, whether they took the steps reasonably available to them
to protect them from that abuse."
- Once again,
we observe, that this question raised issues that were very similar to those
that would be raised in a claim based on common law negligence. The Court
found the conduct of the local authority deficient in a large number of respects
and awarded substantial sums of compensation, even taking into account that
the applicants had recovered compensation from the Criminal Injuries Compensation
Board.
- It is notable
that, in the context of the claim for breach of Article 13, the Government
argued that the applicants had abandoned civil claims which were potentially
viable in that they ‘arguably raised operational matters not affected by the
ruling in Bedfordshire’.
- We now turn
to two Article 8 cases. In P, C and S v United Kingdom (2002) 35 EHRR
31 the applicants were a husband and wife and their daughter. The wife had
been convicted in the United States of administering laxatives to her young
son, thereby endangering his health. She was also adjudged to suffer from
Munchausen syndrome. She moved to England and married. Her daughter was then
born. The local authority brought proceedings which resulted in the daughter
being removed from her mother at birth and being freed for adoption.
- The Court found
that there had been a breach of Article 6, in that the mother had not been
provided with legal representation at the proceedings. The Court also found
that there had been breaches of Article 8. At paragraphs 116 and 117 it made
the following comments:
"…While
the authorities enjoy a wide margin of appreciation in assessing the necessity
of taking a child into care, in particular where an emergency situation arises,
the Court must still be satisfied in the circumstances of the case that there
existed circumstances justifying the removal of the child, and it is for the
respondent State to establish that a careful assessment of the impact of the
proposed care measure on the parents and the child, as well as of the possible
alternatives to taking a child into public care, was carried out prior to
implementation of a care measure.
….
The
taking into care of a child should normally be regarded as a temporary measure
to be discontinued as soon as the circumstances permit, and any measure of
implementation of temporary care should be consistent with the ultimate aim
of reuniting the natural parent and child. In this regard a fair balance has
to be struck between the interests of the child remaining in care and those
of the parent in being reunited with the child. In carrying out this balancing
exercise, the Court will attach particular importance to the best interests
of the child which, depending on their nature and seriousness, may override
those of the parent."
- Detailed individual
criticisms were advanced as to the conduct of the local authority in relation
to the care proceedings. The manner in which the Court dealt with these is
of interest:
"The
Court does not propose to attempt to untangle these opposed considerations,
which raise difficult and sensitive issues concerning S’s welfare. It considers
rather that the complexity of the case, and the fine balance which had to
be struck between the interests of S and her parents, required that particular
importance be attached to the procedural obligations inherent in Article 8
of the Convention. It was crucial for the parents in this case be able to
put forward their case as favourably as possible, emphasising for example
whatever factors militated in favour of a further assessment of a possible
rehabilitation, and for their viewpoints on the possible alternatives to adoption
and the continuation of contact even after adoption to be put forward at the
appropriate time for consideration by the court."
- When dealing
with damages the Court found that it could not be asserted that S would
not have been adopted but for the flaws in the procedure that the Court had
identified. Damages of 12000 euros were awarded to each parent in respect
of a ‘loss of opportunity’.
- In Venema
v The Netherlands [2003] FLR 552 the applicants were a married couple
and their young daughter. The mother was suspected of suffering from Munchausen
Syndrome by Proxy and of harming her daughter. A report was made by medical
and child welfare professionals to the Child Welfare Board. The Board sought
and obtained a provisional order under which the daughter was removed from
her parents. After further hearings, and five months of separation, this order
was rescinded. Plainly there had been an interference with the enjoyment of
respect for family life; the issue was whether this could be justified under
Article 8(2). The Court held that it could not in that the procedure had not
been fair. The parents should have been more involved in the decision making
process, and at an earlier stage. 15,000 euros were awarded to the applicants
jointly in respect of ‘distress and anxiety as a result of feelings of frustration
and injustice’.
- Finally we refer
to a recent case in which the Strasbourg Court gave consideration to the potential
conflict between the interests of the parent and the interests of the child.
In Yousef v The Netherlands [2003] 1 FLR 210 a father who had been
absent for 2½ years complained that, in breach of his Article 8 rights, he
had been denied the contact that he sought with his child, whose mother had
died and who was settled in the family of her brother. The Court rejected
his application, observing:
"The
court reiterates that in judicial decisions where the rights under Art 8 of
parents and those of a child are at stake, the child’s rights must be the
paramount consideration. If balancing of interests is necessary, the interests
of the child must prevail (see Elsholz v Germany (2002) 34 EHRR 58,
[2000] 2 FLR 486, para 52 and TP and KM v United Kingdom (2002) 34
EHRR 549, para 72)."
The effect of
these decisions
- Section 2(1)
of the Human Rights Act requires the Court to have regard to the jurisprudence
of the Strasbourg Court where relevant to proceedings under the Act. Thus
any English court, when dealing with a claim under the Act in relation to
action or inaction after October 2000 on the part of a local authority in
relation to suspected child abuse, must take into account the decisions to
which we have just referred. Where a claim alleges breach of Article
3, in circumstances such as those in Z v United Kingdom and E and
others v United Kingdom, the court is likely to have to consider whether
the local authority knew, or should have known, that positive action was called
for. This will necessarily involve consideration of the conduct of the individuals
involved. A claim of this nature will, so it seems to us, necessarily be a
claim by a child rather than a parent.
- Where a claim
alleges breach of Article 8, on the ground that a child has been removed from
a parent without justification, this will also require examination of the
conduct of the individuals involved to see whether, on the particular facts,
the action was ‘necessary in a democratic society’.
- Thus litigation
involving factual enquiries of the nature considered above is now a potential
consequence of the conduct of those involved in taking decisions in child
abuse cases. In these circumstances the reasons of policy that led the House
of Lords to hold that no duty of care towards a child arises, in so far as
those reasons have not already been discredited by the subsequent decisions
of the House of Lords, will largely cease to apply. Substantial damages will
be available on proof of individual shortcomings, which will be relevant alike
to a claim based on breach of section 6 of the Human Rights Act and a claim
based on breach of a common law duty of care.
- Can there, in
these circumstances, be any justification for preserving a rule that no duty
of care is owed in negligence because it is not fair, just and reasonable
to impose such a duty? It is true that a claim under the Human Rights Act
will only lie against public authorities and not against the individuals employed
by them. But the reality is that claims in negligence are brought primarily
to establish liability on the part of the local authorities and individuals
are unlikely to be personally at risk. In so far as the risk of legal proceedings
will inhibit individuals from boldly taking what they believe to be the right
course of action in the delicate situation of a case where child abuse is
suspected, we think that this factor will henceforth be present, whether the
anticipated litigation is founded on the Human Rights Act or on the common
law duty of care.
- In so far as
the position of a child is concerned, we have reached the firm conclusion
that the decision in Bedfordshire cannot survive the Human Rights Act.
Where child abuse is suspected the interests of the child are paramount -
see S.1 Children Act 1989. Given the obligation of the local authority to
respect a child’s Convention rights, the recognition of a duty of care to
the child on the part of those involved should not have a significantly adverse
effect on the manner in which they perform their duties. In the context of
suspected child abuse, breach of a duty of care in negligence will frequently
also amount to a violation of Article 3 or Article 8. The difference, of course,
is that those asserting that wrongful acts or omissions occurred before October
2000 will have no claim under the Human Rights Act. This cannot, however,
constitute a valid reason of policy for preserving a limitation of the common
law duty of care which is not otherwise justified. On the contrary, the absence
of an alternative remedy for children who were victims of abuse before October
2000 militates in favour of the recognition of a common law duty of care once
the public policy reasons against this have lost their force.
- It follows that
it will no longer be legitimate to rule that, as a matter of law, no common
law duty of care is owed to a child in relation to the investigation of suspected
child abuse and the initiation and pursuit of care proceedings. It is possible
that there will be factual situations where it is not fair, just or reasonable
to impose a duty of care, but each case will fall to be determined on its
individual facts.
- In reaching
this decision we do not suggest that the common law duty of care will replicate
the duty not to violate Articles 3 and 8. Liability for breach of the latter
duty and entitlement to compensation can arise in circumstances where the
tort of negligence is not made out. The area of factual enquiry where breaches
of the two duties are alleged are, however likely to be the same.
- The position
in relation to the parent is very different. Where the issue is whether a
child should be removed from the parents, the best interests of the child
may lead to the answer yes or no. The Strasbourg cases demonstrate that failure
to remove a child from the parents can as readily give rise to a valid claim
by the child as a decision to remove the child. The same is not true of the
parents’ position. It will always be in the parents’ interests that the child
should not be removed. Thus the child’s interests are in potential conflict
with the interests of the parents. In view of this, we consider that there
are cogent reasons of public policy for concluding that, where child care
decisions are being taken, no common law duty of care should be owed to the
parents. Our reasoning in reaching this conclusion is supported by that of
the Privy Council in B v Attorney-General.
- For the above
reasons, where consideration is being given to whether the suspicion of child
abuse justifies taking proceedings to remove a child from the parents, while
a duty of care can be owed to the child, no common law duty of care is owed
to the parents.
- We now turn
to consider the individual appeals in order to resolve the further issues
that arise in each. It is necessary in each case to outline the facts.
East Berks
- The claimant
is the mother of M who was born on the 18th November 1988. From
birth, he presented with allergic symptoms which Dr Connell, a consultant
paediatrician at the Wexham Park Hospital diagnosed as an allergy. In 1990
he was referred to Professor Strobel, consultant paediatric immunologist at
the Great Ormond Street Hospital who diagnosed atope and food allergic disease.
Between 1990 and 1994 he was admitted on at least 9 occasions because of allergic
reactions of one sort or another. In particular he suffered from asthma attacks
and had trouble breathing at night, as a result of which he slept in the same
room as his mother. He was therefore referred to Professor Southall at the
North Staffordshire Hospital for an assessment as to whether or not it would
be possible to provide a monitor for his breathing so that he could sleep
in his own room.
- He was admitted
to the North Staffordshire Hospital between the 12th and 15th
December 1994. In a telephone conversation with Professor Strobel, Professor
Southall said he considered that the appellant was exaggerating symptoms,
that his condition was an example of fabricated illness and that a Social
Services strategy meeting was required. He then referred M to Professor Warner,
an expert in allergic conditions at Southampton General Hospital. Unfortunately
Professor Warner was not given the opportunity to examine M until September
1997. Between 1995 and 1997, it is clear that many treating M, including Professor
Strobel believed that his condition could be an example of exaggerated or
fabricated illness as Professor Southall had said, and indeed a discharge
summary on the 15th December 1996 from the Wexham Park Hospital
referred to possible "Munchausen by proxy".
- Up until the
end of 1996 the consultant community paediatrician responsible for M was Dr
Lessing. She clearly did not share the concerns which had been expressed by
others; and the Social Services were not at that stage involved. However in
December 1996, Dr Whiting took over from Dr Lessing and took the view that
M might be at risk from his mother. After a number of discussions between
doctors a meeting took place on the 13th March 1997 at which M’s
parents, Professor Strobel, Dr Whiting and three social workers were present.
Although it is clear that both Professor Strobel and Dr Whiting remained of
the view that, as Professor Strobel said in a letter ‘False reporting remains
a distinct possibility’, that was not disclosed to the appellant. However,
some days later the appellant by chance had an opportunity to read the notes
and discovered what the view of the doctors was. She sought a second opinion.
- Between March
1997 and June 1997 there was substantial discussion between the doctors and
the Social Services which resulted in a case conference on the 2nd
June 1997, at which the appellant, the doctors and the social workers were
present. It was determined that M should be included on the ‘At Risk Register’.
He was also then referred once again to Professor Warner who was at last able
to examine M and concluded, after investigations, that M was indeed suffering
from extensive and severe allergies. After this opinion was reported to the
Social Services, he was removed from the At Risk Register on the 29th
September 1997.
- The claim is
brought against NHS Trusts, who are alleged to be vicariously liable for the
negligence of the doctors employed by them. In her Particulars of Claim, the
appellant asserts that she suffered a reaction of acute anxiety and depression
as a result of the stress of dealing with the accusations against her and
the investigations of her and M, and consequential financial loss. The relevant
allegations of negligence against the doctors are that they negligently misdiagnosed
her as suffering from Munchausen’s syndrome by proxy and negligently maintained
that diagnosis until September 1997. It was submitted on her behalf that it
was foreseeable that this negligent misdiagnosis could cause her psychological
damage and that it would result in the intervention of the Social Services,
with the stress that that would inevitably cause her.
- Three preliminary
issues were ordered to be tried; firstly whether the claimant was owed a duty
of care by any of the defendants, and if so the extent of that duty; secondly
whether the injury complained of by the claimant was recognised by law as
being compensatable; thirdly whether the claimant’s cause of action against
any of the defendants was statute barred. The Judge, HHJ Hale, in his judgment
of the 6th September 2002, found in favour of the appellant on
the second and third issues, but held that the doctors owed no duty of care
to the claimant and accordingly dismissed her claim. He did so on the basis
that although it was arguable that the appellant could foreseeably suffer
the kind of injury and damage which occurred, it was not just and reasonable
to impose a duty of care in the circumstances; he relied on the speeches in
the House of Lords in Bedfordshire and in particular the speech of
Lord Browne Wilkinson. He considered that public policy considerations militated
strongly against any duty of care towards the appellant on the facts of the
case.
Can Bedfordshire
be distinguished?
- Mr Levy submitted
that the policy considerations that led the House of Lords to conclude that
there was no duty of care in Bedfordshire did not apply to the facts
of this case. He identified as the critical distinction the fact that M was
referred in the first instance to Professor Southall by his general practitioner
at the request of his mother herself. He submitted that in these circumstances
Professor Southall owed the duty of care of a medical practitioner to both
mother and child. Both should be considered as patients. The case should be
approached simply as one of clinical negligence. Professor Southall and, subsequently,
Dr Whiting were negligent in their diagnosis of the mother. This negligence
pre-dated any involvement on the part of the social services, against whom
no claim was made. It was the negligent diagnosis which led to the involvement
of the social services.
- We do not accept
this analysis. M, and not his mother, was the patient. The moment that it
was suspected that his injuries might be deliberately exaggerated by his mother,
the duty owed to M was in potential conflict with the interests of his mother.
It was essential that the professionals should not be inhibited in acting
in the best interests of M by concern that they might be held in breach of
a duty owed to his mother.
- The Judge accepted
as correct submissions advanced on the part of the defence, which he summarised
as follows:
"….I
should be slow to impose any duty that could cut across public policy considerations
relating to the care of children. The son, M, was a patient; to impose a concurrent
duty in whatever terms in respect of the mother would lead to conflict with
their duties towards her son. The conflict here is identical with sex abuse
cases. The possibility that somebody who may be subjected to Munchausen’s
by Proxy endangering her son is one which the doctor must concern himself
about in the context of his care for the patient, the son. Once a suspicion
arises about someone who was the mother of a patient, there was a clear duty
to investigate in the interests of M, even if initiating the process might
damage the mother. In fact they could be negligent in certain circumstances
to the child if they did not do so. The defendants add that the interests
of the child are paramount and the questions of child protection override
the possibility of the duty that the Claimant asserts, however it is expressed."
- The Judge observed
that these submissions received powerful support from Bedfordshire.
- We consider
that the Judge was correct to accept these submissions. The reasoning in Bedfordshire
plainly applies to the facts of this case and does so in a manner which,
for the reasons that we have given, remains valid. The Judge was correct to
rule that no duty of care was owed to the claimant.
Proximity
- The Judge recited
arguments addressed to him on the issue of proximity, but concluded that the
issue was a difficult one which he did not need to resolve. Insofar as there
is difficulty, we think it arises out of the unusual facts of this case and
the problem of identifying the cause of action to which, arguably, they give
rise. The claim was advanced as one for clinical negligence leading to a false
diagnosis, which gave rise to stress related psychiatric injury. Such a claim
is intelligible where the diagnosis is of a serious illness and the patient
believes the diagnosis. In this case, however, the claimant discovered the
suggestion that she suffered from Munchausen by proxy because she chanced
to see medical records relating to her son two years after the suggestion
was first made. It has not been alleged that she believed that there was any
truth in the suggestion. She was subsequently present at a case conference
at which, it was decided to place M on the ‘At Risk Register’, from which
he was removed three months later. No other action was taken in relation to
the suspicion of the mother’s condition. She claims, however, that it and
its consequences caused her psychiatric illness.
- Every aspect
of this claim gives rise to problems, including foreseeability and recoverability
in respect of the damage alleged to have been sustained. The Judge was not
called upon to resolve these issues, but to decide whether they were arguable.
He concluded that the issue of foreseeability and recoverability was sufficiently
arguable to go to trial and these conclusions have not been challenged. In
these circumstances, we would not have thought it right to refuse to permit
this action to go to trial had the sole challenge been that there was no proximity.
- We would add
one reflection which occurred to us after the hearing had been concluded.
On one view of the facts this claim has the elements of a claim for defamation.
There are statutory defences to such a claim, including that of qualified
privilege. It cannot be open to a claimant to by-pass these defences by advancing
a claim for defamation in the guise of a claim for negligence.
Witness immunity
- No plea of witness
immunity was advanced before the Judge. We shall consider this matter in the
Dewsbury appeal, where it is a live issue. The problems in relation
to the cause of action make consideration of witness immunity an unrealistic
and hypothetical exercise. It is certainly far from clear that it would be
open to Professor Southall to invoke witness immunity in relation to the view
he expressed at the end of 1994 and we would not have been prepared to rule
that the action was bound to fail because of the protection afforded by witness
immunity.
- For the reasons
that we have given the appeal in East Berks will be dismissed.
Dewsbury
- The appellants
are R, who was 9 years old at the relevant time and her father. R suffered
from a disease known as Schamberg’s disease which produces discoloured patches
on the skin. Her mother had taken her to her general practitioner in September
1997 about what she described as bruising to R’s legs. The marks disappeared
after treatment, and no diagnosis of Schamberg’s disease was made at the time.
On the 15th March 1998, R hurt herself in the genital area whilst
riding her bicycle. On the 17th March her swimming teacher expressed
concern about the marks on her legs, so R’s mother again took her to the general
practitioner who referred her to Dr Wilson a consultant paediatrician at the
Dewsbury District Hospital. Her father took R there that same day. Dr Wilson’s
provisional diagnosis was that the marks did not appear to be the result of
skin disease but were suggestive of abuse. She informed Social Services. R
was examined at the hospital and Dr Wilson concluded that she had been sexually
abused. Her mother was informed of this. As a result the father and his son,
R’s elder brother, were told that they should not sleep at home when R was
released from hospital. The father and mother were stopped from seeing R in
the hospital that evening in front of other patients and visitors who included
members of the Gujerati community. R remained in the hospital until the 27th
March 1998. The father was unable to visit her at all during that period.
All of these matters became known in the family’s local community. By the
27th March, the diagnosis of Schamberg’s disease was made and no
further steps were