​MERTHYR TYDFIL COUNTY BOROUGH COUNCIL V C [2010] EWHC Civ 62
 
FACTS:-
 
The Claimant had two children born in 1996 and 1998, and they lived within the area for which the Defendant was obliged to provide social services. The Claimant sought damages for a psychiatric condition, which she alleged was caused by the negligence of the Defendant in failing properly to deal with reports made by C in relation to sexual abuse of A and B by another child.
 
In 2002, the Claimant became aware that her children had been the subject of inappropriate sexual behaviour by a neighbour’s child, D who was born in 1994. A report was made to the Defendant, who advised the Claimant to keep her children indoors. The Claimant did so, after a time as the abuser had not appeared, she let her children play outside. In August 2004, the abuser abused her two children again. This time the Defendant refused to acknowledge that any report had ever been made to them, and they allocated a social worker to the Claimant. Following the August 2004 meeting, the Claimant suffered psychiatric symptoms. The abuser was later removed from her family by the Defendant and placed with foster parents.
 
The Claimant pursued an internal complaint, which was partly upheld. She then issued proceedings in August 2007. The Defendant applied to strike out the case on the grounds that they owed no duty of care to the Claimant, on the basis of the judgment of the Court of Appeal in D v East Berkshire Community NHS Trust [2003] EWCA Civ 1151. That decision had been upheld by the House of Lords in [2005] UKHL 23. The application was turned down at first instance and an appeal was made to the High Court.
 
HELD:-
 
Mr Justice Hickinbottom referred to the case of Caparo Industries plc v Dickman [1990] 2 AC 605. In that case it was held that a common law duty of care was owed when three criteria were satisfied, namely:-

1. it was foreseeable that the Claimant would suffer damage if the Defendant acted as alleged;
2. there was a relationship of sufficient proximity between the parties; and
3. it was fair, just and reasonable to impose a duty of care on the Defendant in all the circumstances.

 

1. had been conceded by the Defendant, but not 2) and 3).

 
Hickinbottom J referred to a number of cases on the issue of a duty of care:-

• Sullivan v Moody (2001) 207 CLR 562
• Lawrence v Pembrokeshire County Council [2007] EWCA Civ 446
• A v Essex County Council [2003] EWCA Civ 1848
• Lambert v Cardiff County Council [2007] EWHC 869
• W v Essex County Council [2001] 2 AC 592

 
In these cases the courts had drawn the distinction between decisions relating to policy and those relating to operational matters considered in X (Minors) v Bedfordshire County Council [1995] 2 AC 633. Where an authority’s decision concerned policy, it was not generally justiciable since the courts were not equipped to enter upon an assessment of such policy matters.
 
Hickinbottom J said that he did not accept the proposition that D v East Berkshire radically altered the law, by holding that an authority which owed a duty of care to children could not in any circumstances, owed a duty of care to that child’s parents because of the potential for conflict. His reasons were as follows:-

1. That proposition appeared to cut against the obligation of a local authority, to safeguard the welfare of children who were in need under section 17(1) of the Children Act 1989.
2. If the House of Lords in D v East Berkshire had wanted to overrule cases such as W v Essex County Council they would have said so.
3. The House of Lords in D v East Berkshire had in their minds the inherent conflict between a parent and a child, when a professional suspects the former of abusing the latter.

 
The Defendant’s counsel had also argued that the Defendant owed no duty of care to the Claimant because she was a “third party” and did not fall within the narrow parameters of those third parties to whom a duty could be owed. However the concept of third parties was based on the premise that the scope and content of the duty of care owed to the primary victims and the third party was the same.
 
In the instant case, the duty of care asserted by the Claimant against the Defendant was not merely parasitic upon the duty owed by the Defendant to her children. The Claimant alleged that the Defendant owed her a distinct duty of care which was quite separate to that owed by the children. She engaged directly with the Council, for instance reporting the abuse in 2002 and 2004, meeting with the Council in 2004 and having a social worker assigned to her and her family. Therefore she was not a true “third party”.
 
Hickinbottom J had to ask himself, in all the circumstances of this case, was there a real prospect of the Claimant showing that it was fair, just and reasonable that the local authority owed to her a duty of care? He concluded that there was a real prospect.

• The Claimant was the parent of her two children, and was not suspected of any abuse (as happened in D v East Berkshire). There was no conflict of interest.
• The mother was in a particular position of responsibility towards her children, and that responsibility lay heavily upon her. Again this was very different from D v East Berkshire.
• This was not a case where the duty of care owed by the local authority to the parent was parasitic upon the duty of care the same authority might owe to a child.
• The alleged failings of the local authority were not of a policy nature. They simply failed to open a file in 2002 and in 2004, they denied that they knew anything. These failings were operational in character.
• The Claimant relied on failings which were of commission as well as omission.
• This case was clearly distinguishable from D v East Berkshire.
• The court should be cautious to strike out a case in a developing area of the law.

 
Therefore the claim had a real prospect of success and would be permitted to proceed.