ABB AND OTHERS V MILTON KEYNES COUNCIL [2011] EWHC 2745 (QB) ; PIERCE V DONCASTER METROPOLITAN BOROUGH COUNCIL [2008] EWCA Civ 1416
FACTS:-The Claimants were three brothers and a sister, who were living in the area occupied by the Defendant local authority. Throughout their childhood each of the Claimants was the victim of sustained and serious sexual abuse, perpetrated by their father, between about 1990 and 2005. The father was prosecuted in 2006/2007 and pleaded guilty to 40 offences involving sexual abuse for which he was sentenced to life imprisonment.
The Defendant became aware of the father's abuse of the first and second Claimants, in April 1992. The father admitted sexual abuse of the two older Claimants at an Alcoholics Anonymous meeting. The disclosure led to enquiries by the local police force and a referral to Social Services, but there was no prosecution. The father then moved to lodgings and the first three Claimants were placed on the child protection register. The fourth Claimant was born over two years later on 23 September 1994. No charges were brought against the father, who returned to the family home on the day of a Child Protection Conference on 22 October 1992. During the relevant period the family were engaged in counselling and other therapeutic work, there were further meetings and conferences. On 22 April 1993 the Claimants' names were removed from the Child Protection Register and on 5 June 1993 the case was closed.
Thereafter the father continued to abuse the three older Claimants and during her childhood, from the age of about 7 or 8, fourth Claimant. The Claimants alleged a failure to investigate and analyse the background to the abuse and the relationships within the family adequately. It is alleged that the risks posed by the father were not adequately assessed and this led to the return of the father to the household and the exposure of the Claimants to a foreseeable risk of harm.
JUDGEMENT:-Her Honour Judge Hampton said that there was little dispute as to the facts. The principal issue was that of the quality of social work practice adopted by the Defendants' employees and whether this fell below a reasonable standard.
Judge Hampton considered the history of social services involvement, beginning with the first child protection conference on the 28th April 1992. The lay evidence came from the four Claimants and their mother, together with some of the social workers at the time. Expert evidence on social work practice was given by Maria Ruegger for the Claimants and Professor Payne for the Defendants.
Negligence
Judge Hampton considered the statutory basis of the Defendant’s duties, which was to be found in the Children Act 1989. Section 47 required a local authority, which had reasonable cause to suspect that a child in the area is suffering or likely to suffer significant harm, to make enquiries to enable them to decide whether they should take any action to safeguard or promote the child's welfare. That a duty of care was owed by social workers in local authority employment was established in JD and others v East Berkshire Community Health [2003] EWCA Civ 1151. In the pleadings the Defendant took the point that the duty was not owed by the authority itself. In argument it was accepted that the Defendants are vicariously liable for any negligence established in the conduct of investigations and the activities undertaken by social workers in the Defendants' employment. A social worker's duty in common with other professionals, was to exercise reasonable skill and care and the test in Bolam v Friern Hospital Management Committee applied. Accordingly in a social worker would not be negligent if he or she acted in accordance with practice accepted at the time as proper, by a responsible body of social work opinion, even though another social worker might have adopted a different practice.
Judge Hampton said that the court should be careful not to assume, that simply because a matter had not been recorded it was not taken into account or did not occur, particularly after the passage of so many years. However it was common ground that no detailed or written risk assessment of either parent was undertaken. It was also necessary to be careful not to judge the social workers dealing with the very difficult and sensitive problems which arose in this case, by the standards which applied in 2011. However, judges did not leave their judicial experience at the courtroom door. Judge Hampton commented that she had direct experience of dealing with care proceedings in applications made by local authorities under the Children Act 1989.
Judge Hampton proceeded to comment on the quality of the expert evidence. She said that whilst both experts had considerable experience in the field of social care, Ms. Ruegger had experience in the field as a social worker whereas Professor Payne had no experience of acting as a local authority social worker on a day-to-day basis, nor as a Guardian in Children Act proceedings. Professor Payne did not accept any criticism of the Defendant’s practice, although Miss Ruegger accepted good practice where she found it. For instance, the father had been convicted of an indecent assault in Israel in 1982, but the Defendant had not followed this up. Professor Payne had said that this would have been a disproportionate use of resources.
Judge Hampton accepted the fundamental proposition that whilst it was important to keep families together wherever possible, it was apparent that the Defendant’s social workers appeared to be accepting what they were told by the parents at face value, at an early stage. They should have pursued enquiries with an open mind particularly in light of the reservations expressed by those involved in the first planning meeting that the mother was holding something back. Long experience of cases of this nature indicated that one could not assume that the perpetrator of child abuse was necessarily open and honest. There was an indication at an early stage from a probation officer, that the father was minimising his responsibility and was impatient to sort things out.
Judge Hampton found that there was a failure to investigate the history of this family thoroughly and to a standard that would be regarded as a reasonable by a responsible body of social work opinion. There was no attempt to follow up enquiries as to the family's history. No adequate attention appears to have been paid to the mother's remarks about having to leave Israel some two years earlier, the concerns expressed at that meeting that the mother was holding something back, that she and the father had discussed the matter, before contacting Social Services or that the father had disclosed the abuse to the mother some 8 months earlier and she had not acted upon this information. On 8 July 1992, the father admitted that he still had sexual feelings for his sons. This fact was not reported on in the notes for the next Core Group meeting held on 17 July 1992.
Whilst there may have been difficulties in securing resources, it is apparent that the social worker with conduct of the case made no attempt to enlist the assistance of mental health services, or seek help from outside the local area. Miss Ruegger's evidence was that it was standard practice at this time to seek expert advice when assessing the risk posed by sexual abusers. Judge Hampton accepted that expert evidence.
There was a failure to make appropriate enquiries into the circumstances of the mother and her abilities to protect her children. It was accepted by the social worker with conduct of the case that the father was the dominant personality in family relationships.
Judge Hampton said that if a more objective and complete enquiry into the mother's history, her attitude to the father's disclosure and the relationship between the father and the mother been undertaken, there would have been less confidence in the mother's ability to protect the children, to restrain the father's activities and to report and act upon any difficulties that might arise.
There had been a report made in a Case Conference that took place on 22 October 1992, which referred to an incident where another child had bitten the first Claimant's penis. The social worker’s response in her evidence was that this was simple sexual exploration and experimentation between young children. Judge Hampton accepted Miss Ruegger's evidence that whilst sexual curiosity and exploration might not be unusual, oral contact between children of this age was abnormal and unusual. The first Claimant had expressed confusion and the second Claimant had communication difficulties. The third Claimant was aged three at this time. The fourth Claimant being a later addition to the family, never received any “keeping safe” work at all. The father did not attend the final "keeping safe" sessions organised for the family, but the social worker did not regard this as a failure to cooperate.
Miss Ruegger indicated in the course of her evidence that a work entitled "Significant Harm" published in 1991 was, or should have been, well known to social workers dealing with child abuse. The research reported in that work under the heading "How do abusing families change?" indicated that those who were involved in treatment for less than six months or over 18 months were less likely to make progress. When the father returned to the family home, the family had been involved in treatment from individuals with no known experience in child abuse work, for only two months. Professor Payne accepted that it was well known guidance in the field at the time of the events with which the court was concerned. No heed was paid to this guidance by the Defendant’s social services department.
On the day before the second Child Protection Review held on 29 April 1993, the school nurse had contacted the social worker with regard to the second Claimant. The nurse reported that the second Claimant had stated that he wished he was the first Claimant "then I wouldn't get hit so much."
The social worker accepted in cross-examination that this was not raised with the conference and she recognised that this was a mistake. Her report dated 23 April 1993 had stated that the "children" now felt safe. Judge Hampton found that the report made by the second Claimant to the school nurse, was clear indication that the second Claimant, at least, did not feel safe at home.
After the file was closed on 5 June 1993, there was a further referral to the Defendant’s social services department on 25 October 1993 which was not followed up. There had been an incident at school, in which the second Claimant had been involved, where five children had been discovered in a darkened room inspecting each others genitals by the light of torches. There was no proper follow up with the Claimants family.
Judge Hampton said that the evidence supported the allegations of negligence against the Defendants' social workers. There was a failure to sufficiently investigate the father's past, the mother's ability or lack of ability to protect the Claimants and the effect upon the Claimants themselves.
Causation
Judge Hampton said that inevitably when considering causation, the court must consider what would have happened if:
· More detailed enquiries had been made about the father's history whilst he was in Israel,
· A more objective view had been taken of the mother's failure to protect in the past and her capacity to protect in future and her dependence on the father.
· The lack of cooperation with Social Services eg. in relation to the increase of contact had been given sufficient weight.
It was also necessary to consider what the decision of the Child Protection Conference in April 1993 would have been, if matters such as the increased sexual behaviour in both children since contact moved to the home, the decrease in school performance in both children after the father returned home and the incident on the day immediately before the decision to take the children's name off the register was made, had been properly considered.
The determination of causation was always difficult in cases of this nature. Judge Hampton said that if the social worker’s enquiries and the decisions made on behalf of the Defendant in the Child Protection Conferences, been made on the basis of full and proper considerations, the father would not have been permitted to return to the home when he was and the file would not have been closed in June 1993. If the mother had been unable to separate from the father, on the balance of probabilities the children would have been accommodated outside the family. If this was not done voluntarily, care proceedings would and should have followed. Had there been adequate follow up after October 1993, on the birth of the fourth Claimant, taking into account the alleged abuse of girls in Israel, further child protection enquiries would have been made.
If Social Services had resisted the father’s insistence on returning home and the mother had been able to separate from the father, the Claimants would have been spared the years of abuse which followed.
Judge Hampton then considered whether it was fair, just and reasonable to impose a duty of care in relation to the fourth Claimant. Bearing in mind the father's history that involved the sexual abuse of both male and female children, she found that there was a foreseeable risk of harm posed by the father to children of either sex. For the reasons given above, this risk was not adequately assessed at the time that the Defendant was actively engaged in investigating and assisting the family. In allowing the family to re-unite there was a foreseeable risk of harm being done to the first three Claimants and to any further child that may be added to the family, such as the fourth Claimant.
The fourth Claimant also relied on s.47 of the Children Act (1989). The duty to make appropriate enquiries and take appropriate action was a continuing duty. It was not logical to conclude that the breach of duty which occurred in 1992 and 1993, operated in relation to the first three Claimants, and not in relation to the fourth Claimant.
Accordingly Judge Hampton concluded that there had been negligence as alleged in the particulars of claim and that this had caused the losses now complained of by the Claimants.
Quantum
The First Claimant
The first Claimant experienced regular and persistent abuse from the age of about 4 until he was 17. It did not cease until he left home. It included fondling, oral penetration and a range of penetrative and intrusive sexual actions and of inducing the first Claimant to carry out similar actions on his father including regular anal and oral penile penetration. The medical experts agreed that it was probable that the abuse had long-term adverse effects on the first Claimant. He had a long-standing and complex form of mixed drug and alcohol dependence. He was at risk of future difficulties in relationships. Both medical experts considered that the first Claimant would fit a category of borderline personality disorder. They agreed that had the abuse ceased in 1992, the earlier abuse would have had relatively little contribution to his adult status, compared with the continuing abuse to the age of seventeen.
The claim for special damages for the first Claimant included the costs of his alcohol dependency. However the claim made was speculative. He had not paid for any specific treatment in relation to his alcohol abuse, and did not refer to any specific loss caused as a result of alcohol abuse (e.g. loss of earnings caused by losing a driving licence). Accordingly no specific award would be made under this head.
Similar considerations applied to the claim made for impaired education, which should be reflected in general damages. Family and environmental factors included a disrupted home life, and the father's alcoholism might have caused problems with educational attainment in any event. There had not been, for example, any loss of school fees because the Claimant did not complete his education to sixth form level and had not required extra tuition. He was in any event quickly employed after he left school. When giving his evidence he put forward no firm plans to return to study or other education that might put him to particular expense. There was no hard information as to the expense that he might face if he did return to education.
Nevertheless his personality problems, his alcohol dependency and the failure to complete his education caused by his desire to leave the family home, had put the first Claimant at a disadvantage in the labour market. It would appear that the Claimant had a net earning capacity of approximately £11,000 per annum.
Judge Hampton would award the first Claimant £70,000 general damages, £20,000 for his disadvantage in the labour market and £2,500 for future treatment.
The Second Claimant
The second Claimant experienced regular abuse from the age of five or six until he was seventeen, when he left home in 2004 to join the army in Israel. Assessment of quantum in his case was complicated by his learning disabilities which had been dealt with in the reports of the two psychiatrists instructed. The joint statement of the psychiatrists indicated that the second Claimant's anxiety-based problems, lack of confidence and difficulties with relationships were to be attributed as to 55 per cent to the abuse and 45 per cent to other factors unconnected with the abuse. They also agreed that the other factors had increased the Claimant's vulnerability to the effects of the abuse.
In addition, the second Claimant had experienced episodes described by the neurologists who had reported, namely Dr. Warner and Dr. Foster, as non-epileptiform seizures (pseudo-seizures). They became prominent after the Claimant disclosed the abuse he had suffered in 2006 and 2007. They were triggered by upsetting events, for example, observations of violence or abuse on television. They caused considerable sleep disturbance. The neurologists agreed that this type of seizure was a common manifestation of psychological disturbance and that the history of abuse had made a substantial contribution to the onset of these seizures.
Judge Hampton did not consider it appropriate to make a separate award for impaired education. To a considerable extent, the second Claimant's difficulties with education could not be attributed to the abuse he suffered. He would have experienced difficulties in any event because of his cognitive problems. As to disadvantage in the labour market, the second Claimant would have suffered disadvantage due to his cognitive difficulties in any event.
Judge Hampton would assess general damages at £70,000. Although a greater portion of the second Claimant's difficulties were attributable to family and environmental factors not connected with the abuse, in comparison with the first Claimant, the second Claimant had the additional difficulty of the seizures referred to. Judge Hampton would award £10,000 for disadvantage in the labour market.
As to past loss of earnings, the second Claimant's employment was affected by his seizures and it was appropriate to reflect this by a modest award. Judge Hampton would award a figure of £40,000 together with past travel costs of £350 together with future loss of earnings at £20,000. There was also an award of £12,600 for treatment and travel costs of £2,537.
The Third Claimant
Judge Hampton said that the third Claimant was not suffering from any distinctive and identifiable psychiatric disorder, although there were elements of anxiety and social avoidance. The psychiatrists agreed that the abuse suffered might contribute up to 10% of anxiety and future vulnerability, but there was no need for psychiatric treatment.
General damages would be assessed at £10,000 and £2,000 for future therapy.
The Fourth Claimant
The fourth Claimant endured abuse for five or six years. This included frequent vaginal intercourse, oral penetration and posing in indecent postures in front of a camera. The psychiatrists agreed that there was not overt evidence of major depression or significant psychiatric disorder, and that there was no indication that the abuse suffered would impair future career prospects, although it could affect relationships in future. There had been a drop in academic performance due to the abuse, which would be taken into account in the claim for general damages.
The psychiatrists also agreed that there was "a significant probability" that the fourth Claimant might in future benefit from therapeutic intervention such as psychodynamic therapy or cognitive behavioural therapy.
Judge Hampton would assess general damages at £55,000, and the costs of future therapy at £4,476.
Pierce
FACTS:-
The Claimant was a 31 year old man with a long standing history of serious mental health problems. He had been diagnosed as HIV positive and was now receiving appropriate treatment. He was born on the 1st March 1976 into a family of six siblings. In August 1976 a health visitor noted that the Claimant had lost weight and appeared to be neglected, and so he was removed from his parents and placed in foster care from 1976 to 1977.
In 1976 a social worker recorded his opinion that the Claimant and his twin sister should be retained in care.
The Claimant was then returned to his mother and father in November 1977 without any proper assessment or investigation. There was then inadequate follow up and monitoring. A key record dated from May 1979 showed that he had been left with his aunt by his mother, who said that she could not cope with him. She reported scald marks on his buttocks and leg. There were also references to abuse and complaints made by relatives. He was put on the “at risk” register for two years.
He left home at the age of 15 by which time he had suffered severe neglect together with emotional and physical abuse from his parents. He also suffered sexual and physical abuse whilst living on the streets from around the middle of 1990.
The Claimant sued the local authority in common law negligence based upon the allegation that it had failed to take him into care as an infant and in consequence exposed him to abuse and grave neglect by his parents.
Specifically he claimed:-
1. A failure to take him into care from the age of about 18 months in November 1977
2. A failure to take him into care from the age 3 in May 1979
3. A failure to take him into care from the age 14 to 15 in 1990 to 1991
The trial judge found for the Claimant on (i) but against him on (ii) and (iii). The Local Authority appealed against that decision. The issues raised were:-
1. Whether there was a basis for a finding of breach of November 1977
2. If so, whether there was any basis for a finding that the breach caused the Claimant to remain in his family for years when otherwise he would not have
3. Whether, if so, damages for injury by violence as distinct from by neglect were recoverable
4. Whether the Judge misdirected himself upon section 14(3) Limitation Act 1980.
There was also an appeal on the quantum of damages.
HELD:-
Lord Justice Hughes in the Court of Appeal outlined the facts of the case. The trial judge’s conclusion that it was negligent to return the Claimant home in November 1977 was founded upon his preference for the evidence of the expert called by the Claimant, Mr Ayre over that of the Defendant’s expert, Mr Lane and Mr Percival.
The Defendant’s counsel argued that on a proper analysis, Mr Ayre’s conclusions were saying no more than that the Claimant’s return to his parents was not based on a proper review of the case, rather than that if such review had been carried out no reasonable local authority could have decided to attempt rehabilitation. Since Mr Lane and Mr Percival felt that it was reasonable to attempt rehabilitation, there was no proper basis (according to the Defendant’s counsel), applying the principle in Bolam v Friern HMC [1957] 1 WLR 582, for concluding that no reasonable local authority would have taken that step.
The statutory powers in question fell under the Children Act 1948 and the Children and Young Persons Act 1969.
Hughes LJ said that Mr Ayre was making further complaints about the local authority’s conduct, and he had asserted that no reasonable local authority, properly assessing the case, could have reached the decision to permit return of the Claimant and that it should have sought (if necessary) compulsory powers to keep the Claimant with his foster parents.
The judge had recognised the need to apply the Bolam test. He endorsed the assertion of Mr Ayre that it was unlikely that any similarly qualified expert would disagree. Hughes LJ said that therefore, it was not possible to say that there was no proper basis for the conclusion that the trial judge had reached.
The trial judge said that an attempt to obtain a care order in 1979 would have been a more uncertain exercise and involved a major change to the status quo- unlike any such decision if taken in October or November 1977. Hughes LJ said that there was nothing inconsistent about that finding. There was a real difference between, on the one hand, a decision in November 1977 that the status quo ought not to be disturbed by moving the child to from foster parents to parent, and on the other hand, a decision in May 1979 that the status quo should be altered and the child should be taken into care.
In other case, the evidence might be different. There might be an issue as to what would have been the likely response of a juvenile court, in a case of neglect rather than violence or abuse. Expert evidence might also consider what would have happened if there had been continuing contact.
The Defendant’s counsel had taken the point that the trial judge had relied on the existence of a duty under the Boarding out of Children Regulations 1955 to carry out a review of the Claimant’s case, due in 1977. However those regulations existed to monitor foster parents, rather than the relationship between a child and his parents. Hughes LJ said that whatever the purpose of the regulations, all the experts were agreed that no return could properly have been made without a thorough review of the Claimant’s welfare, so any additional duty under the 1955 regulations made no difference.
The trial judge had held that if the Claimant had not returned home in November 1977, then it was likely that he would have remained in care indefinitely. That conclusion would not necessarily follow but it depended on the evidence in the case. Hughes LJ said that in this case, there was no evidence from the Defendant that even if the return of the Claimant to his parents had been wrong, it was likely that rehabilitation would have had to have been tried. Therefore the judge was entitled to find as he did.
Damage and foreseeability
The failings of the parents as at 1977 were those of neglect rather than violence or abuse. The Defendant’s counsel submitted that the Claimant should only be able to recover damages for neglect, but not for violence or abuse since these were not foreseeable. Hughes LJ said that this defined the scope of the foreseeable duty too narrowly.
Quantum
The judge awarded £25,000. The trial judge had found that the Claimant’s severe personality disorder was congenital and would have occurred in any event. He had made the distinction between the effects of the negligence and what would have occurred in any event. Consequently the continuing loss and damages for abuse sustained after leaving home was rejected. The award was for neglect and abuse at home. It was impossible to say that the judge’s award lay outside the bracket properly available to him.
Limitation
The action was treated as having been commenced on the 24th August 2004 and so the Claimant had to establish that his cause of action arose after the 24th August 2001 or that he could rely on section 33 of the Limitation Act 1980. There were three questions under the limitation issue:-
1. What is in this case was the act or omission alleged to constitute negligence for the purposes of section 14(1)(b) Limitation Act 1980?
2. If there was actual knowledge of that act, was there constructive knowledge within section 14(3)?
3. If there was either actual or constructive knowledge, should a discretionary extension of time nevertheless be granted under section 33?
The Defendant’s counsel was relying on section 14(3). The Claimant’s case was that he could not reasonably get access to his records before he actually did so in 2004. A request had been made by his foster father in 1992, followed by a further request by the Claimant in 1995 and again in 1996. He had instructed solicitors in 1996, who had requested the file later that year. Appointments were offered to him in 1997 to view the file, but he had not taken these up, because he had felt that it would be too distressing.
The trial judge had dealt briefly with the issue of knowledge, but had found that the only means open to the Claimant to acquire knowledge was in July 2004. Hughes LJ said that there could be only one answer to this question – the Claimant knew where the file was, he knew that he wanted it and he was allowed access to it. The Claimant had said that the Defendant had refused to pay for the travel cost of a companion, but that was not borne out by the correspondence and this was not a sufficient answer. Therefore if the judge had addressed the issue of constructive knowledge, he would have been bound to find that the Claimant had such knowledge. Therefore the Defendant’s appeal in relation to constructive knowledge would be allowed. Otherwise their appeal would be dismissed.
It was now agreed between the parties that the next issue was that of section 33 and this issue should be remitted to the trial judge.
FACTS:-The Claimants were three brothers and a sister, who were living in the area occupied by the Defendant local authority. Throughout their childhood each of the Claimants was the victim of sustained and serious sexual abuse, perpetrated by their father, between about 1990 and 2005. The father was prosecuted in 2006/2007 and pleaded guilty to 40 offences involving sexual abuse for which he was sentenced to life imprisonment.
The Defendant became aware of the father's abuse of the first and second Claimants, in April 1992. The father admitted sexual abuse of the two older Claimants at an Alcoholics Anonymous meeting. The disclosure led to enquiries by the local police force and a referral to Social Services, but there was no prosecution. The father then moved to lodgings and the first three Claimants were placed on the child protection register. The fourth Claimant was born over two years later on 23 September 1994. No charges were brought against the father, who returned to the family home on the day of a Child Protection Conference on 22 October 1992. During the relevant period the family were engaged in counselling and other therapeutic work, there were further meetings and conferences. On 22 April 1993 the Claimants' names were removed from the Child Protection Register and on 5 June 1993 the case was closed.
Thereafter the father continued to abuse the three older Claimants and during her childhood, from the age of about 7 or 8, fourth Claimant. The Claimants alleged a failure to investigate and analyse the background to the abuse and the relationships within the family adequately. It is alleged that the risks posed by the father were not adequately assessed and this led to the return of the father to the household and the exposure of the Claimants to a foreseeable risk of harm.
JUDGEMENT:-Her Honour Judge Hampton said that there was little dispute as to the facts. The principal issue was that of the quality of social work practice adopted by the Defendants' employees and whether this fell below a reasonable standard.
Judge Hampton considered the history of social services involvement, beginning with the first child protection conference on the 28th April 1992. The lay evidence came from the four Claimants and their mother, together with some of the social workers at the time. Expert evidence on social work practice was given by Maria Ruegger for the Claimants and Professor Payne for the Defendants.
Negligence
Judge Hampton considered the statutory basis of the Defendant’s duties, which was to be found in the Children Act 1989. Section 47 required a local authority, which had reasonable cause to suspect that a child in the area is suffering or likely to suffer significant harm, to make enquiries to enable them to decide whether they should take any action to safeguard or promote the child's welfare. That a duty of care was owed by social workers in local authority employment was established in JD and others v East Berkshire Community Health [2003] EWCA Civ 1151. In the pleadings the Defendant took the point that the duty was not owed by the authority itself. In argument it was accepted that the Defendants are vicariously liable for any negligence established in the conduct of investigations and the activities undertaken by social workers in the Defendants' employment. A social worker's duty in common with other professionals, was to exercise reasonable skill and care and the test in Bolam v Friern Hospital Management Committee applied. Accordingly in a social worker would not be negligent if he or she acted in accordance with practice accepted at the time as proper, by a responsible body of social work opinion, even though another social worker might have adopted a different practice.
Judge Hampton said that the court should be careful not to assume, that simply because a matter had not been recorded it was not taken into account or did not occur, particularly after the passage of so many years. However it was common ground that no detailed or written risk assessment of either parent was undertaken. It was also necessary to be careful not to judge the social workers dealing with the very difficult and sensitive problems which arose in this case, by the standards which applied in 2011. However, judges did not leave their judicial experience at the courtroom door. Judge Hampton commented that she had direct experience of dealing with care proceedings in applications made by local authorities under the Children Act 1989.
Judge Hampton proceeded to comment on the quality of the expert evidence. She said that whilst both experts had considerable experience in the field of social care, Ms. Ruegger had experience in the field as a social worker whereas Professor Payne had no experience of acting as a local authority social worker on a day-to-day basis, nor as a Guardian in Children Act proceedings. Professor Payne did not accept any criticism of the Defendant’s practice, although Miss Ruegger accepted good practice where she found it. For instance, the father had been convicted of an indecent assault in Israel in 1982, but the Defendant had not followed this up. Professor Payne had said that this would have been a disproportionate use of resources.
Judge Hampton accepted the fundamental proposition that whilst it was important to keep families together wherever possible, it was apparent that the Defendant’s social workers appeared to be accepting what they were told by the parents at face value, at an early stage. They should have pursued enquiries with an open mind particularly in light of the reservations expressed by those involved in the first planning meeting that the mother was holding something back. Long experience of cases of this nature indicated that one could not assume that the perpetrator of child abuse was necessarily open and honest. There was an indication at an early stage from a probation officer, that the father was minimising his responsibility and was impatient to sort things out.
Judge Hampton found that there was a failure to investigate the history of this family thoroughly and to a standard that would be regarded as a reasonable by a responsible body of social work opinion. There was no attempt to follow up enquiries as to the family's history. No adequate attention appears to have been paid to the mother's remarks about having to leave Israel some two years earlier, the concerns expressed at that meeting that the mother was holding something back, that she and the father had discussed the matter, before contacting Social Services or that the father had disclosed the abuse to the mother some 8 months earlier and she had not acted upon this information. On 8 July 1992, the father admitted that he still had sexual feelings for his sons. This fact was not reported on in the notes for the next Core Group meeting held on 17 July 1992.
Whilst there may have been difficulties in securing resources, it is apparent that the social worker with conduct of the case made no attempt to enlist the assistance of mental health services, or seek help from outside the local area. Miss Ruegger's evidence was that it was standard practice at this time to seek expert advice when assessing the risk posed by sexual abusers. Judge Hampton accepted that expert evidence.
There was a failure to make appropriate enquiries into the circumstances of the mother and her abilities to protect her children. It was accepted by the social worker with conduct of the case that the father was the dominant personality in family relationships.
Judge Hampton said that if a more objective and complete enquiry into the mother's history, her attitude to the father's disclosure and the relationship between the father and the mother been undertaken, there would have been less confidence in the mother's ability to protect the children, to restrain the father's activities and to report and act upon any difficulties that might arise.
There had been a report made in a Case Conference that took place on 22 October 1992, which referred to an incident where another child had bitten the first Claimant's penis. The social worker’s response in her evidence was that this was simple sexual exploration and experimentation between young children. Judge Hampton accepted Miss Ruegger's evidence that whilst sexual curiosity and exploration might not be unusual, oral contact between children of this age was abnormal and unusual. The first Claimant had expressed confusion and the second Claimant had communication difficulties. The third Claimant was aged three at this time. The fourth Claimant being a later addition to the family, never received any “keeping safe” work at all. The father did not attend the final "keeping safe" sessions organised for the family, but the social worker did not regard this as a failure to cooperate.
Miss Ruegger indicated in the course of her evidence that a work entitled "Significant Harm" published in 1991 was, or should have been, well known to social workers dealing with child abuse. The research reported in that work under the heading "How do abusing families change?" indicated that those who were involved in treatment for less than six months or over 18 months were less likely to make progress. When the father returned to the family home, the family had been involved in treatment from individuals with no known experience in child abuse work, for only two months. Professor Payne accepted that it was well known guidance in the field at the time of the events with which the court was concerned. No heed was paid to this guidance by the Defendant’s social services department.
On the day before the second Child Protection Review held on 29 April 1993, the school nurse had contacted the social worker with regard to the second Claimant. The nurse reported that the second Claimant had stated that he wished he was the first Claimant "then I wouldn't get hit so much."
The social worker accepted in cross-examination that this was not raised with the conference and she recognised that this was a mistake. Her report dated 23 April 1993 had stated that the "children" now felt safe. Judge Hampton found that the report made by the second Claimant to the school nurse, was clear indication that the second Claimant, at least, did not feel safe at home.
After the file was closed on 5 June 1993, there was a further referral to the Defendant’s social services department on 25 October 1993 which was not followed up. There had been an incident at school, in which the second Claimant had been involved, where five children had been discovered in a darkened room inspecting each others genitals by the light of torches. There was no proper follow up with the Claimants family.
Judge Hampton said that the evidence supported the allegations of negligence against the Defendants' social workers. There was a failure to sufficiently investigate the father's past, the mother's ability or lack of ability to protect the Claimants and the effect upon the Claimants themselves.
Causation
Judge Hampton said that inevitably when considering causation, the court must consider what would have happened if:
· More detailed enquiries had been made about the father's history whilst he was in Israel,
· A more objective view had been taken of the mother's failure to protect in the past and her capacity to protect in future and her dependence on the father.
· The lack of cooperation with Social Services eg. in relation to the increase of contact had been given sufficient weight.
It was also necessary to consider what the decision of the Child Protection Conference in April 1993 would have been, if matters such as the increased sexual behaviour in both children since contact moved to the home, the decrease in school performance in both children after the father returned home and the incident on the day immediately before the decision to take the children's name off the register was made, had been properly considered.
The determination of causation was always difficult in cases of this nature. Judge Hampton said that if the social worker’s enquiries and the decisions made on behalf of the Defendant in the Child Protection Conferences, been made on the basis of full and proper considerations, the father would not have been permitted to return to the home when he was and the file would not have been closed in June 1993. If the mother had been unable to separate from the father, on the balance of probabilities the children would have been accommodated outside the family. If this was not done voluntarily, care proceedings would and should have followed. Had there been adequate follow up after October 1993, on the birth of the fourth Claimant, taking into account the alleged abuse of girls in Israel, further child protection enquiries would have been made.
If Social Services had resisted the father’s insistence on returning home and the mother had been able to separate from the father, the Claimants would have been spared the years of abuse which followed.
Judge Hampton then considered whether it was fair, just and reasonable to impose a duty of care in relation to the fourth Claimant. Bearing in mind the father's history that involved the sexual abuse of both male and female children, she found that there was a foreseeable risk of harm posed by the father to children of either sex. For the reasons given above, this risk was not adequately assessed at the time that the Defendant was actively engaged in investigating and assisting the family. In allowing the family to re-unite there was a foreseeable risk of harm being done to the first three Claimants and to any further child that may be added to the family, such as the fourth Claimant.
The fourth Claimant also relied on s.47 of the Children Act (1989). The duty to make appropriate enquiries and take appropriate action was a continuing duty. It was not logical to conclude that the breach of duty which occurred in 1992 and 1993, operated in relation to the first three Claimants, and not in relation to the fourth Claimant.
Accordingly Judge Hampton concluded that there had been negligence as alleged in the particulars of claim and that this had caused the losses now complained of by the Claimants.
Quantum
The First Claimant
The first Claimant experienced regular and persistent abuse from the age of about 4 until he was 17. It did not cease until he left home. It included fondling, oral penetration and a range of penetrative and intrusive sexual actions and of inducing the first Claimant to carry out similar actions on his father including regular anal and oral penile penetration. The medical experts agreed that it was probable that the abuse had long-term adverse effects on the first Claimant. He had a long-standing and complex form of mixed drug and alcohol dependence. He was at risk of future difficulties in relationships. Both medical experts considered that the first Claimant would fit a category of borderline personality disorder. They agreed that had the abuse ceased in 1992, the earlier abuse would have had relatively little contribution to his adult status, compared with the continuing abuse to the age of seventeen.
The claim for special damages for the first Claimant included the costs of his alcohol dependency. However the claim made was speculative. He had not paid for any specific treatment in relation to his alcohol abuse, and did not refer to any specific loss caused as a result of alcohol abuse (e.g. loss of earnings caused by losing a driving licence). Accordingly no specific award would be made under this head.
Similar considerations applied to the claim made for impaired education, which should be reflected in general damages. Family and environmental factors included a disrupted home life, and the father's alcoholism might have caused problems with educational attainment in any event. There had not been, for example, any loss of school fees because the Claimant did not complete his education to sixth form level and had not required extra tuition. He was in any event quickly employed after he left school. When giving his evidence he put forward no firm plans to return to study or other education that might put him to particular expense. There was no hard information as to the expense that he might face if he did return to education.
Nevertheless his personality problems, his alcohol dependency and the failure to complete his education caused by his desire to leave the family home, had put the first Claimant at a disadvantage in the labour market. It would appear that the Claimant had a net earning capacity of approximately £11,000 per annum.
Judge Hampton would award the first Claimant £70,000 general damages, £20,000 for his disadvantage in the labour market and £2,500 for future treatment.
The Second Claimant
The second Claimant experienced regular abuse from the age of five or six until he was seventeen, when he left home in 2004 to join the army in Israel. Assessment of quantum in his case was complicated by his learning disabilities which had been dealt with in the reports of the two psychiatrists instructed. The joint statement of the psychiatrists indicated that the second Claimant's anxiety-based problems, lack of confidence and difficulties with relationships were to be attributed as to 55 per cent to the abuse and 45 per cent to other factors unconnected with the abuse. They also agreed that the other factors had increased the Claimant's vulnerability to the effects of the abuse.
In addition, the second Claimant had experienced episodes described by the neurologists who had reported, namely Dr. Warner and Dr. Foster, as non-epileptiform seizures (pseudo-seizures). They became prominent after the Claimant disclosed the abuse he had suffered in 2006 and 2007. They were triggered by upsetting events, for example, observations of violence or abuse on television. They caused considerable sleep disturbance. The neurologists agreed that this type of seizure was a common manifestation of psychological disturbance and that the history of abuse had made a substantial contribution to the onset of these seizures.
Judge Hampton did not consider it appropriate to make a separate award for impaired education. To a considerable extent, the second Claimant's difficulties with education could not be attributed to the abuse he suffered. He would have experienced difficulties in any event because of his cognitive problems. As to disadvantage in the labour market, the second Claimant would have suffered disadvantage due to his cognitive difficulties in any event.
Judge Hampton would assess general damages at £70,000. Although a greater portion of the second Claimant's difficulties were attributable to family and environmental factors not connected with the abuse, in comparison with the first Claimant, the second Claimant had the additional difficulty of the seizures referred to. Judge Hampton would award £10,000 for disadvantage in the labour market.
As to past loss of earnings, the second Claimant's employment was affected by his seizures and it was appropriate to reflect this by a modest award. Judge Hampton would award a figure of £40,000 together with past travel costs of £350 together with future loss of earnings at £20,000. There was also an award of £12,600 for treatment and travel costs of £2,537.
The Third Claimant
Judge Hampton said that the third Claimant was not suffering from any distinctive and identifiable psychiatric disorder, although there were elements of anxiety and social avoidance. The psychiatrists agreed that the abuse suffered might contribute up to 10% of anxiety and future vulnerability, but there was no need for psychiatric treatment.
General damages would be assessed at £10,000 and £2,000 for future therapy.
The Fourth Claimant
The fourth Claimant endured abuse for five or six years. This included frequent vaginal intercourse, oral penetration and posing in indecent postures in front of a camera. The psychiatrists agreed that there was not overt evidence of major depression or significant psychiatric disorder, and that there was no indication that the abuse suffered would impair future career prospects, although it could affect relationships in future. There had been a drop in academic performance due to the abuse, which would be taken into account in the claim for general damages.
The psychiatrists also agreed that there was "a significant probability" that the fourth Claimant might in future benefit from therapeutic intervention such as psychodynamic therapy or cognitive behavioural therapy.
Judge Hampton would assess general damages at £55,000, and the costs of future therapy at £4,476.
Pierce
FACTS:-
The Claimant was a 31 year old man with a long standing history of serious mental health problems. He had been diagnosed as HIV positive and was now receiving appropriate treatment. He was born on the 1st March 1976 into a family of six siblings. In August 1976 a health visitor noted that the Claimant had lost weight and appeared to be neglected, and so he was removed from his parents and placed in foster care from 1976 to 1977.
In 1976 a social worker recorded his opinion that the Claimant and his twin sister should be retained in care.
The Claimant was then returned to his mother and father in November 1977 without any proper assessment or investigation. There was then inadequate follow up and monitoring. A key record dated from May 1979 showed that he had been left with his aunt by his mother, who said that she could not cope with him. She reported scald marks on his buttocks and leg. There were also references to abuse and complaints made by relatives. He was put on the “at risk” register for two years.
He left home at the age of 15 by which time he had suffered severe neglect together with emotional and physical abuse from his parents. He also suffered sexual and physical abuse whilst living on the streets from around the middle of 1990.
The Claimant sued the local authority in common law negligence based upon the allegation that it had failed to take him into care as an infant and in consequence exposed him to abuse and grave neglect by his parents.
Specifically he claimed:-
1. A failure to take him into care from the age of about 18 months in November 1977
2. A failure to take him into care from the age 3 in May 1979
3. A failure to take him into care from the age 14 to 15 in 1990 to 1991
The trial judge found for the Claimant on (i) but against him on (ii) and (iii). The Local Authority appealed against that decision. The issues raised were:-
1. Whether there was a basis for a finding of breach of November 1977
2. If so, whether there was any basis for a finding that the breach caused the Claimant to remain in his family for years when otherwise he would not have
3. Whether, if so, damages for injury by violence as distinct from by neglect were recoverable
4. Whether the Judge misdirected himself upon section 14(3) Limitation Act 1980.
There was also an appeal on the quantum of damages.
HELD:-
Lord Justice Hughes in the Court of Appeal outlined the facts of the case. The trial judge’s conclusion that it was negligent to return the Claimant home in November 1977 was founded upon his preference for the evidence of the expert called by the Claimant, Mr Ayre over that of the Defendant’s expert, Mr Lane and Mr Percival.
The Defendant’s counsel argued that on a proper analysis, Mr Ayre’s conclusions were saying no more than that the Claimant’s return to his parents was not based on a proper review of the case, rather than that if such review had been carried out no reasonable local authority could have decided to attempt rehabilitation. Since Mr Lane and Mr Percival felt that it was reasonable to attempt rehabilitation, there was no proper basis (according to the Defendant’s counsel), applying the principle in Bolam v Friern HMC [1957] 1 WLR 582, for concluding that no reasonable local authority would have taken that step.
The statutory powers in question fell under the Children Act 1948 and the Children and Young Persons Act 1969.
Hughes LJ said that Mr Ayre was making further complaints about the local authority’s conduct, and he had asserted that no reasonable local authority, properly assessing the case, could have reached the decision to permit return of the Claimant and that it should have sought (if necessary) compulsory powers to keep the Claimant with his foster parents.
The judge had recognised the need to apply the Bolam test. He endorsed the assertion of Mr Ayre that it was unlikely that any similarly qualified expert would disagree. Hughes LJ said that therefore, it was not possible to say that there was no proper basis for the conclusion that the trial judge had reached.
The trial judge said that an attempt to obtain a care order in 1979 would have been a more uncertain exercise and involved a major change to the status quo- unlike any such decision if taken in October or November 1977. Hughes LJ said that there was nothing inconsistent about that finding. There was a real difference between, on the one hand, a decision in November 1977 that the status quo ought not to be disturbed by moving the child to from foster parents to parent, and on the other hand, a decision in May 1979 that the status quo should be altered and the child should be taken into care.
In other case, the evidence might be different. There might be an issue as to what would have been the likely response of a juvenile court, in a case of neglect rather than violence or abuse. Expert evidence might also consider what would have happened if there had been continuing contact.
The Defendant’s counsel had taken the point that the trial judge had relied on the existence of a duty under the Boarding out of Children Regulations 1955 to carry out a review of the Claimant’s case, due in 1977. However those regulations existed to monitor foster parents, rather than the relationship between a child and his parents. Hughes LJ said that whatever the purpose of the regulations, all the experts were agreed that no return could properly have been made without a thorough review of the Claimant’s welfare, so any additional duty under the 1955 regulations made no difference.
The trial judge had held that if the Claimant had not returned home in November 1977, then it was likely that he would have remained in care indefinitely. That conclusion would not necessarily follow but it depended on the evidence in the case. Hughes LJ said that in this case, there was no evidence from the Defendant that even if the return of the Claimant to his parents had been wrong, it was likely that rehabilitation would have had to have been tried. Therefore the judge was entitled to find as he did.
Damage and foreseeability
The failings of the parents as at 1977 were those of neglect rather than violence or abuse. The Defendant’s counsel submitted that the Claimant should only be able to recover damages for neglect, but not for violence or abuse since these were not foreseeable. Hughes LJ said that this defined the scope of the foreseeable duty too narrowly.
Quantum
The judge awarded £25,000. The trial judge had found that the Claimant’s severe personality disorder was congenital and would have occurred in any event. He had made the distinction between the effects of the negligence and what would have occurred in any event. Consequently the continuing loss and damages for abuse sustained after leaving home was rejected. The award was for neglect and abuse at home. It was impossible to say that the judge’s award lay outside the bracket properly available to him.
Limitation
The action was treated as having been commenced on the 24th August 2004 and so the Claimant had to establish that his cause of action arose after the 24th August 2001 or that he could rely on section 33 of the Limitation Act 1980. There were three questions under the limitation issue:-
1. What is in this case was the act or omission alleged to constitute negligence for the purposes of section 14(1)(b) Limitation Act 1980?
2. If there was actual knowledge of that act, was there constructive knowledge within section 14(3)?
3. If there was either actual or constructive knowledge, should a discretionary extension of time nevertheless be granted under section 33?
The Defendant’s counsel was relying on section 14(3). The Claimant’s case was that he could not reasonably get access to his records before he actually did so in 2004. A request had been made by his foster father in 1992, followed by a further request by the Claimant in 1995 and again in 1996. He had instructed solicitors in 1996, who had requested the file later that year. Appointments were offered to him in 1997 to view the file, but he had not taken these up, because he had felt that it would be too distressing.
The trial judge had dealt briefly with the issue of knowledge, but had found that the only means open to the Claimant to acquire knowledge was in July 2004. Hughes LJ said that there could be only one answer to this question – the Claimant knew where the file was, he knew that he wanted it and he was allowed access to it. The Claimant had said that the Defendant had refused to pay for the travel cost of a companion, but that was not borne out by the correspondence and this was not a sufficient answer. Therefore if the judge had addressed the issue of constructive knowledge, he would have been bound to find that the Claimant had such knowledge. Therefore the Defendant’s appeal in relation to constructive knowledge would be allowed. Otherwise their appeal would be dismissed.
It was now agreed between the parties that the next issue was that of section 33 and this issue should be remitted to the trial judge.