A AND ANOTHER V ESSEX COUNTY COUNCIL [2003] EWCA Civ 1848
FACTS:-
The Claimants were adoptive parents suing a local authority in relation to an adoptive child “William” who was placed with them 1996. William had extreme behavioural difficulties, which resulted in him assaulting his adoptive parents and hospitalising the mother. Both suffered psychiatric damages. Eventually he was placed in accommodation although he continued to be a part of the adoptive family.
The Claimants alleged that they had not received full information about William, which if they had, would have resulted in their refusing to adopt him. The trial judge found for them, but limited their loss to the period prior to the adoption being finalised. Both sides appealed.
HELD:-
Lady Justice Hale considered the statutory law of adoption as follows:-
There had also been evidence given by an expert in adoption, detailing the kind of information that was normally provided to adopters.
It was common ground between the parties that no action for breach of statutory duty lay in respect of an alleged breach of statutory duty. The debate was as to the existence of a common law duty to take reasonable care in the provision of information to prospective adopters before a child was placed with them.
Hale LJ considered the following cases:-
In Stovin v Wise [1996] AC 923 Lord Nicholls said that the common law should not impose a concurrent duty which was inconsistent with the statutory framework. There was no such inconsistency if what had been done fell outside the permissible limits of the exercise of such statutory powers. However if the decision was so unreasonable that it fell outside the ambit of the discretion conferred upon the local authority, then common law liability would not necessarily be excluded.
In the Anns v Merton London Borough Council [1978] AC 728 the court had drawn a distinction between operational decisions and policy decisions. The more operational duty, the easier it was to superimpose a common law duty of care. However if the facts relevant to the exercise of the discretion included matters of policy, the court could not adjudicate upon such policy matters.
If the complaint related the practical manner in which the act had been performed, there were then the three questions in Caparo Industries plc v Dickman [1990] 2 AC 605:-
In X v Bedfordshire the House of Lords declined to impose a duty of care in relation to decisions taken by social services in relation to taking children into care. Such a duty would cut across the whole statutory system set up for the protection of children at risk.
Hale LJ then considered the cases that followed X v Bedfordshire.
In the second case, a distinction was drawn between a duty of care being owed to children and the same duty being owed to parents. This distinction was upheld in the case of B and Others v Attorney General of New Zealand and Others [2003] UKPC 61.
In another New Zealand case, Attorney General v Prince and Gardner [1988] 1 NZLR 262, the Court of Appeal held that it would be inconsistent with the scheme and policy of the New Zealand Adoption Act to allow individual claims in respect of particular acts and omissions.
In W v Essex County Council [2001] 2 AC 592 a local authority placed a 15 year old boy who was a known sex abuser with foster parents, contrary to an express assurance that no sex abusers would be placed with them. The boy then abused the children. The Court of Appeal upheld the trial judge’s decision to allow the children’s claims to proceed, but not the parents. However the House of Lords did allow the parents’ claim to proceed. The argument mainly centred around whether there was a valid claim for psychiatric injury. Otherwise it was not clear or obvious that the claim could not succeed.
Hale LJ said that it was clear that adoption agencies were entitled to have policies, or standard practices about what information will be disclosed to prospective adopters before children were placed with them.
There were two questions:-
In relation to the second question, Hale LJ saw no difficulty in a duty of care to communicate to the prospective adopters that information which the agency had decided that they should have.
However in relation to the first question, two features told particularly strongly against such a duty in adoption. The first was the statutory framework itself, which aimed to strike a balance between the adopters, the birth parents and the children. There were other considerations such as the need for adopters to regard themselves as parents for life, and the fact that there was a trial period for the parents to become accustomed to the character of the child. Therefore it would not be just fair and reasonable to impose upon the professionals involving in compiling reports for adoption agencies, a duty of care towards prospective adopters.
If Hale LJ was wrong on that, then breach of the duty would be judge in accordance with the principles in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.
There should also be no duty of care in relation to the decision as to what information should be passed on. As indicated, the agency was entitled and expected to have a policy about this.
Hale LJ then turned to the issue of breach of duty of care in relation to communication of information. The trial judge had found that there had been a failure to communicate sufficient information to the adoptive parents. Hale LJ would agree with that finding.
However in relation to causation, the trial judge had found the Claimants’ claim was restricted to the period before the adoption order was made. It would be contrary to the statutory scheme for liability to continue beyond the date of the adoption order. The purpose of the probationary period was for all concerned to test out the arrangement, and each side was free to withdraw. Once the adoption order was made, the adopters became as much like birth parents as it was possible for them to be.
Adoption was not a commercial transaction. It could not be likened to the sale of goods or even the supply of services.
FACTS:-
The Claimants were adoptive parents suing a local authority in relation to an adoptive child “William” who was placed with them 1996. William had extreme behavioural difficulties, which resulted in him assaulting his adoptive parents and hospitalising the mother. Both suffered psychiatric damages. Eventually he was placed in accommodation although he continued to be a part of the adoptive family.
The Claimants alleged that they had not received full information about William, which if they had, would have resulted in their refusing to adopt him. The trial judge found for them, but limited their loss to the period prior to the adoption being finalised. Both sides appealed.
HELD:-
Lady Justice Hale considered the statutory law of adoption as follows:-
- Adoption Act 1976
- Adoption Agencies Regulations 1983
- Adoption Rules 1984
- Section 7, Local Authority Social Services Act 1970
There had also been evidence given by an expert in adoption, detailing the kind of information that was normally provided to adopters.
It was common ground between the parties that no action for breach of statutory duty lay in respect of an alleged breach of statutory duty. The debate was as to the existence of a common law duty to take reasonable care in the provision of information to prospective adopters before a child was placed with them.
Hale LJ considered the following cases:-
- X (Minors) v Bedfordshire County Council [1995] 2 AC 633
- Osman v United Kingdom (1999) 29 EH44 245
- Barrett v Enfield London Borough Council [2001] 2 AC 550
- Phelps v Hillingdon London Borough Council [2001] 2 AC 619
In Stovin v Wise [1996] AC 923 Lord Nicholls said that the common law should not impose a concurrent duty which was inconsistent with the statutory framework. There was no such inconsistency if what had been done fell outside the permissible limits of the exercise of such statutory powers. However if the decision was so unreasonable that it fell outside the ambit of the discretion conferred upon the local authority, then common law liability would not necessarily be excluded.
In the Anns v Merton London Borough Council [1978] AC 728 the court had drawn a distinction between operational decisions and policy decisions. The more operational duty, the easier it was to superimpose a common law duty of care. However if the facts relevant to the exercise of the discretion included matters of policy, the court could not adjudicate upon such policy matters.
If the complaint related the practical manner in which the act had been performed, there were then the three questions in Caparo Industries plc v Dickman [1990] 2 AC 605:-
- Was the damage to the Claimant reasonable foreseeable?
- Was the relationship between the Claimant and the Defendant sufficiently proximate?
- Was it just, fair and reasonable to impose a duty of care?
In X v Bedfordshire the House of Lords declined to impose a duty of care in relation to decisions taken by social services in relation to taking children into care. Such a duty would cut across the whole statutory system set up for the protection of children at risk.
Hale LJ then considered the cases that followed X v Bedfordshire.
- Barrett v Enfield London Borough Council [2001] 2 AC 550
- D v East Berkshire Community Health NHS Trust [2003] EWCA Civ 1151
In the second case, a distinction was drawn between a duty of care being owed to children and the same duty being owed to parents. This distinction was upheld in the case of B and Others v Attorney General of New Zealand and Others [2003] UKPC 61.
In another New Zealand case, Attorney General v Prince and Gardner [1988] 1 NZLR 262, the Court of Appeal held that it would be inconsistent with the scheme and policy of the New Zealand Adoption Act to allow individual claims in respect of particular acts and omissions.
In W v Essex County Council [2001] 2 AC 592 a local authority placed a 15 year old boy who was a known sex abuser with foster parents, contrary to an express assurance that no sex abusers would be placed with them. The boy then abused the children. The Court of Appeal upheld the trial judge’s decision to allow the children’s claims to proceed, but not the parents. However the House of Lords did allow the parents’ claim to proceed. The argument mainly centred around whether there was a valid claim for psychiatric injury. Otherwise it was not clear or obvious that the claim could not succeed.
Hale LJ said that it was clear that adoption agencies were entitled to have policies, or standard practices about what information will be disclosed to prospective adopters before children were placed with them.
There were two questions:-
- Was there a duty of care in relation to the contents of the Forms and Reports?
- Was there a duty of care in relation to the communication of the information which the agency had decided that the prospective adopters should have?
In relation to the second question, Hale LJ saw no difficulty in a duty of care to communicate to the prospective adopters that information which the agency had decided that they should have.
However in relation to the first question, two features told particularly strongly against such a duty in adoption. The first was the statutory framework itself, which aimed to strike a balance between the adopters, the birth parents and the children. There were other considerations such as the need for adopters to regard themselves as parents for life, and the fact that there was a trial period for the parents to become accustomed to the character of the child. Therefore it would not be just fair and reasonable to impose upon the professionals involving in compiling reports for adoption agencies, a duty of care towards prospective adopters.
If Hale LJ was wrong on that, then breach of the duty would be judge in accordance with the principles in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.
There should also be no duty of care in relation to the decision as to what information should be passed on. As indicated, the agency was entitled and expected to have a policy about this.
Hale LJ then turned to the issue of breach of duty of care in relation to communication of information. The trial judge had found that there had been a failure to communicate sufficient information to the adoptive parents. Hale LJ would agree with that finding.
However in relation to causation, the trial judge had found the Claimants’ claim was restricted to the period before the adoption order was made. It would be contrary to the statutory scheme for liability to continue beyond the date of the adoption order. The purpose of the probationary period was for all concerned to test out the arrangement, and each side was free to withdraw. Once the adoption order was made, the adopters became as much like birth parents as it was possible for them to be.
Adoption was not a commercial transaction. It could not be likened to the sale of goods or even the supply of services.