AD –and- OH (A child : by AD his litigation friend) VERSUS THE BURY METROPOLITAN COUNCIL [2006] EWCA Civ 1
FACTS:-
The Claimants were mother and child. In each case the Claimant claimed damages arising out of alleged negligence by the local authority in the context of care proceedings. In January 1997, OH (the child) sustained four rib fractures whilst in the care of his parents. He was placed on the child protection register and care proceedings followed on the 1st May 1997. The family court made an interim care order and OH and his parents resided at a family resource centre in Bristol, so that a risk assessment could be carried out. However the risk assessment was not carried out. There was then a further contested hearing before the family court, which lasted four days. On the 12th August 1997, as a result of that hearing, OH was placed with foster parents and separated from his mother for a period of four months. On the 6th December 1997 the local authority received advice from the NSPCC that it had carried out a risk assessment, and the child should be rehabilitated with his parents. OH suffered from a rare condition known as osteogenesis imperfecta, or brittle bone disease.
AD claimed that she had suffered psychological shock and upset. She relived the experience regularly and had been referred for psychological counselling. She had separated from OH’s father in June 1998 due to the distress of the events.
Neither claim succeeded at first instance. The trial judge held on a preliminary issue that the local authority did not owe the mother a duty of care. The local authority admitted that it owed OH a duty of care but argued that OH had suffered no damage. The trial judge dismissed OH’s claim. Both appealed but the appeals were stayed to await the outcome of D v East Berkshire Community Health NHS Trust and other [2005] UKHL 23.
HELD:-
The Court of Appeal considered the East Berkshire decision. These were a series of linked cases in which the parents of young children had brought actions for negligence against health care authorities and a local authority for psychiatric harm caused as a result of unfounded allegations that the parents had abused their children. The House of Lords dismissed the parents’ appeals. The majority view was that healthcare and other childcare professionals should not be subject to conflicting duties when deciding whether a child might have been abused. It was not fair, just and reasonable to impose a common law duty of care.
Lord Justice Wall considered the judge of Lord Nicholls and in particular one of the East Berkshire cases, which was against Oldham NHS Trust and was similar in its facts to this case.
In the judge of Wall LJ, the view of the majority in East Berkshire was fatal to Mrs AD’s appeal. The question of public policy which underpinned the decisions in these cases was that care professionals charged with questions of child protection and the investigation of child abuse must be free to exercise their professional functions without having at the backs of their minds an awareness that if (their) doubts about intentional injury or sexual abuse prove unfounded they may be exposed to claims by a distressed parent.
The Claimants’ counsel had tried to argue that after the care order made on the 7th May 1997, there came into existence a community of interest between the local authority and the parents. Wall LJ rejected that argument. There had been a conflict between Mrs AD and the local authority and this was demonstrated by the contested hearing in August 1997. In the context of a child abuse investigation, a duty of care could not exist at one moment and then cease to exist in the next because of a shift in the factual matrix. It either existed throughout the investigation or it did not.
Wall LJ considered the provisions of section 38 of the Children Act 1989 and he made the following points:-
Mrs AD’s appeal would be dismissed.
Wall LJ then turned to the child, OH’s appeal. OH’s lawyers alleged that he had suffered psychiatric damage as a consequence of the period of approximately four months between 12th August 1997 and 8th December 1997, when he was removed from his parents. A report from a clinical psychologist, Dr Michael Schauder stated that OH suffered from post traumatic stress disorder.
The local authority had put causation in issue. OH suffered from multiple difficulties. Dr Schauder had said that OH suffered from both an attachment disorder and Autistic Syndrome Disorder, which overlapped and the aetiology of which was unclear. At the hearing in the family court, Dr Schauder had conceded during cross examination that it was impossible to distinguish between the damage caused by the care proceedings and OH’s other problems. He had said much the same in his first report. Dr Audrey Oppenheim, a psychiatrist had also said that the aetiology of the injury was unclear. She accepted that trauma could arise from separation but there was no evidence that this separation had a traumatic effect.
Upset, shock, stress, apprehension and fear were not identifiable psychological injury, and that was the case whether the Claimant was a child or an adult.
One of the points argued by the child’s counsel was that it had been made clear to the judge that this was a case that was only worth around £2,000 to £3,000. However the child has experienced some suffering, insofar as once it had established that the separation from his parents had contributed to his suffering, and that the sleep deprivation and crying fits were not simply transient manifestations of normal emotions, it was then the duty of the judge to make an assessment of the part played by the separation, and award damages accordingly.
Wall LJ considered the arguments from both sides in some detail. However he found against the child. It was quite impossible to identify any psychological harm of a kind properly giving rise to an action for damages suffered by the child. The evidence from the medical and other experts pointed the other way. Such harm as he may have suffered was no justiciable.
There had been an attempt made by the child’s counsel to invoke the Human Rights Act 1998. However the Act did not come into force until the 1st October 2000 and could not be prayed in aid in relation to injuries suffered in 1997.
Both the mother’s and the child’s appeals were therefore dismissed. Lord Justice Laws and Lord Justice Mummery agreed.
FACTS:-
The Claimants were mother and child. In each case the Claimant claimed damages arising out of alleged negligence by the local authority in the context of care proceedings. In January 1997, OH (the child) sustained four rib fractures whilst in the care of his parents. He was placed on the child protection register and care proceedings followed on the 1st May 1997. The family court made an interim care order and OH and his parents resided at a family resource centre in Bristol, so that a risk assessment could be carried out. However the risk assessment was not carried out. There was then a further contested hearing before the family court, which lasted four days. On the 12th August 1997, as a result of that hearing, OH was placed with foster parents and separated from his mother for a period of four months. On the 6th December 1997 the local authority received advice from the NSPCC that it had carried out a risk assessment, and the child should be rehabilitated with his parents. OH suffered from a rare condition known as osteogenesis imperfecta, or brittle bone disease.
AD claimed that she had suffered psychological shock and upset. She relived the experience regularly and had been referred for psychological counselling. She had separated from OH’s father in June 1998 due to the distress of the events.
Neither claim succeeded at first instance. The trial judge held on a preliminary issue that the local authority did not owe the mother a duty of care. The local authority admitted that it owed OH a duty of care but argued that OH had suffered no damage. The trial judge dismissed OH’s claim. Both appealed but the appeals were stayed to await the outcome of D v East Berkshire Community Health NHS Trust and other [2005] UKHL 23.
HELD:-
The Court of Appeal considered the East Berkshire decision. These were a series of linked cases in which the parents of young children had brought actions for negligence against health care authorities and a local authority for psychiatric harm caused as a result of unfounded allegations that the parents had abused their children. The House of Lords dismissed the parents’ appeals. The majority view was that healthcare and other childcare professionals should not be subject to conflicting duties when deciding whether a child might have been abused. It was not fair, just and reasonable to impose a common law duty of care.
Lord Justice Wall considered the judge of Lord Nicholls and in particular one of the East Berkshire cases, which was against Oldham NHS Trust and was similar in its facts to this case.
In the judge of Wall LJ, the view of the majority in East Berkshire was fatal to Mrs AD’s appeal. The question of public policy which underpinned the decisions in these cases was that care professionals charged with questions of child protection and the investigation of child abuse must be free to exercise their professional functions without having at the backs of their minds an awareness that if (their) doubts about intentional injury or sexual abuse prove unfounded they may be exposed to claims by a distressed parent.
The Claimants’ counsel had tried to argue that after the care order made on the 7th May 1997, there came into existence a community of interest between the local authority and the parents. Wall LJ rejected that argument. There had been a conflict between Mrs AD and the local authority and this was demonstrated by the contested hearing in August 1997. In the context of a child abuse investigation, a duty of care could not exist at one moment and then cease to exist in the next because of a shift in the factual matrix. It either existed throughout the investigation or it did not.
Wall LJ considered the provisions of section 38 of the Children Act 1989 and he made the following points:-
- The court cannot make an interim care order unless it is satisfied that there are reasonable grounds for believing that the child is suffering or is likely to suffer significant harm attributable to parental care (or lack of it).
- Pursuant to an interim care order, the local authority is given parental responsibility for the child and can determine the extent to which a parent may meet his or her parental responsibility
- The child can only be medically or psychiatrically examined or otherwise assessed pursuant to an order of the court under section 38(6).
Mrs AD’s appeal would be dismissed.
Wall LJ then turned to the child, OH’s appeal. OH’s lawyers alleged that he had suffered psychiatric damage as a consequence of the period of approximately four months between 12th August 1997 and 8th December 1997, when he was removed from his parents. A report from a clinical psychologist, Dr Michael Schauder stated that OH suffered from post traumatic stress disorder.
The local authority had put causation in issue. OH suffered from multiple difficulties. Dr Schauder had said that OH suffered from both an attachment disorder and Autistic Syndrome Disorder, which overlapped and the aetiology of which was unclear. At the hearing in the family court, Dr Schauder had conceded during cross examination that it was impossible to distinguish between the damage caused by the care proceedings and OH’s other problems. He had said much the same in his first report. Dr Audrey Oppenheim, a psychiatrist had also said that the aetiology of the injury was unclear. She accepted that trauma could arise from separation but there was no evidence that this separation had a traumatic effect.
Upset, shock, stress, apprehension and fear were not identifiable psychological injury, and that was the case whether the Claimant was a child or an adult.
One of the points argued by the child’s counsel was that it had been made clear to the judge that this was a case that was only worth around £2,000 to £3,000. However the child has experienced some suffering, insofar as once it had established that the separation from his parents had contributed to his suffering, and that the sleep deprivation and crying fits were not simply transient manifestations of normal emotions, it was then the duty of the judge to make an assessment of the part played by the separation, and award damages accordingly.
Wall LJ considered the arguments from both sides in some detail. However he found against the child. It was quite impossible to identify any psychological harm of a kind properly giving rise to an action for damages suffered by the child. The evidence from the medical and other experts pointed the other way. Such harm as he may have suffered was no justiciable.
There had been an attempt made by the child’s counsel to invoke the Human Rights Act 1998. However the Act did not come into force until the 1st October 2000 and could not be prayed in aid in relation to injuries suffered in 1997.
Both the mother’s and the child’s appeals were therefore dismissed. Lord Justice Laws and Lord Justice Mummery agreed.