FD V CAFCASS [2014] EWHC 1619 QB
Child Abuse Compensation Claims – Duty of care, Misfeasance in Public Office, Human Rights
FACTS:-
The Claimant (who was unrepresented) claimed damages against the Defendant service for negligence, misfeasance in public office, and for a breach of his right to a family life under article 8 of the European Convention of Human Rights and under the Human Rights Act 1998. He claimed that as a result of the negligent advice and support given by Cafcass and, in particular, its Family Support Worker at a hearing on 3 February 2009, the Court made an order which effectively deprived him of continuing contact with his son. Thereafter he contended that the Defendant failed to attend a directions hearing and failed to take timely steps to prepare a welfare report which he contended would have supported his claim for contact. He had not seen his son since 12 October 2008.
JUDGEMENT:-
Judge Bidder QC went over the chronology of the case. In the original family proceedings, the court had to consider, on an application for contact, whether there was any risk of harm to the child. The court had to consider all the evidence and information available. Due to constraints of time, it was quite impossible for the judge to hear evidence. There was, therefore, an irreconcilable conflict of evidence about who was responsible for any alleged domestic violence. In those circumstances, there was patently a risk of harm to the child and there was no prospect whatsoever of the court being able or willing to order contact to the Claimant on the 3rd February 2009. Having regard to those issues, it was impossible to say that the CAFCASS officer could be criticised for giving the advice that she did.
Cafcass had instituted an investigation in response to a complaint by the Claimant, which had referred to the absence of a safeguarding assessment before the court hearing and suggested a lack of due dilligence. Judge Bidder disagreed with this conclusion. He was not clear what additional information would have been available to the court which would have materially altered the situation at the February hearing had a safeguarding assessment been carried out before the initial court hearing. It seemed improbable, particularly given the great strain Cafcass was under in relation to managing resources in and around 2009 that any report would have been prepared for the court prior to the February hearing.
It was the support worker’s role to adjudicate between the parties' conflicting accounts. The order that was made by the judge by consent was what was required by the law. Judge Bidder could find no negligent conduct by the support worker in relation to the preparation for and participation in the hearing of the 3rd February 2009.
The Claimant had also said that had the Cafcass complaint procedure moved along quicker, the result of the next hearing before the judge would have turned out better. His view was that the complaint proceedings and their slow progress were absolutely irrelevant to what was happening in the courts.
The Claimant had gone on to the third stage of the Cafcass’ complaints procedure, which had produced a report from an adjudicator and offering him £1000 by redress. He had only been sent a partial version of the result of the complaints procedure. Judge Bidder said that the failure to give him the full report and the sending of a letter which did not clearly indicate that it contained only extracts from the report undoubtedly were misleading to him, constituted serious maladministration by Cafcass, on top of the truly dreadful delays in the complaints process, added to his unhappiness and was extremely reprehensible. However he was quite clear that that maladministration did not result in his being able to claim any damages in this action.
Judge Bidder now looked at the law. The Children and Family Court Advisory and Support Service or Cafcass was established as a body corporate by section 11 of the Criminal Justice and Court Services Act 2000. The public duties imposed on the service by the 2000 Act were child centred but also specifically imposed a duty to advise the court. There was also a duty to provide information, advice and other support for the families of children. Judge Bidder referred to the case of R (R and others (Minors)) v CAFCASS [2012] EWCA Civ 853 where the Court of Appeal held that section 12 (1) (c) (2) of the 2000 Act imposed a general public law duty on the service to ensure children were represented in care proceedings but did not impose a specific duty either to ensure a specific child was represented or to ensure representation was achieved within a particular timescale. It followed from that that in relation to the more limited duties imposed on the service in relation to the families of children, there could be no public duty owed by the service to an individual father of a child in proceedings where the service was involved.
The Claimant contended that the service did, however, owe him a common law duty of care, breach of which entitled him to claim damages against the service. Judge Bidder referred to the following cases:-
Cafcass had, to comply with its duty under section 12 and to comply with the extant Practice Directions, to assess the risks to the child of contact by the Claimant. The risks, which, in this case were of psychological and emotional damage were, potentially, from either or both parents and from their dispute with each other. It would entirely hamper Cafcass in its primary duty to the child if it owed the parents or either of them a duty of care. Therefore, it was not, in this case, fair, just and reasonable to impose a duty of care on Cafcass towards the Claimant.
Judge Bidder said that even if he were wrong about the existence of a duty of care, the test of whether the Defendant had through its officers acted negligently must be the Bolam test, of whether their actions fell outside the standards to be expected of a reasonable body of similar practitioners. It was appropriate to have regard to the resources available to Cafcass at the time. Having regard to the evidence, Judge Bidder rejected the allegations that the Defendant or its officers acted negligently.
Additionally, it has been clear throughout the proceedings that the Claimant could establish no actionable loss. He accepted in cross examination that he did not intend to commence further proceedings to re-establish contact with R and, thus, there was no financial claim arising from that. He had lost contact with R but there was no psychiatric injury suffered by the Claimant and he could not through an action in negligence seek compensation for upset and hurt to feelings. Neither could he claim compensation for the loss of a family relationship (Hamilton-Jones v David and Snape (a firm) [2004] 1 WLR 924).
Judge Bidder turned to the misfeasance in public office claim.The requirements for a successful claim in misfeasance in public office were identified in Three Rivers DC v Bank of England (No. 3) [2003] 2 AC 1. He rejected completely any suggestion that the Defendant and its officers acted with malice, bad faith or for an improper or ulterior motive, nor did any of them act in any way without an honest belief that they were acting lawfully.
The Claimant finally claimed damages for breach of his article 8 rights. Judge Bidder referred TP and KM v United Kingdom [2001] 2 FLR 549. As the Court of Appeal held, in R (R and others (Minors)) v CAFCASS (see above), it was the Court's primary duty to ensure, through applying the relevant legislation, that the article 8 rights of the Claimant, the child and his mother were not breached. There was no doubt that Cafcass also had a duty to ensure the article 8 rights of the Claimant were not breached and it was conceivable that, had they acted negligently in those proceedings, the Claimant might have been able to argue a breach of his article 8 rights which was caused by them. However they did not act negligently and the consent order and the Court's overall control of the proceedings meant that it was not arguable that any actions of the Defendant caused a breach of the Claimant's article 8 rights.
Judge Bidder therefore found that the Claimant's claims for damages against the Defendant were not well founded and he would dismiss them. Had he found that the Claimant's article 8 rights had been breached, the case of Venema v The Netherlands [2003] FLR 552 would be a useful comparator. The maximum period of loss of contact was just over 3 months and the sum of £3,500 would be just satisfaction for any breach.
Child Abuse Compensation Claims – Duty of care, Misfeasance in Public Office, Human Rights
FACTS:-
The Claimant (who was unrepresented) claimed damages against the Defendant service for negligence, misfeasance in public office, and for a breach of his right to a family life under article 8 of the European Convention of Human Rights and under the Human Rights Act 1998. He claimed that as a result of the negligent advice and support given by Cafcass and, in particular, its Family Support Worker at a hearing on 3 February 2009, the Court made an order which effectively deprived him of continuing contact with his son. Thereafter he contended that the Defendant failed to attend a directions hearing and failed to take timely steps to prepare a welfare report which he contended would have supported his claim for contact. He had not seen his son since 12 October 2008.
JUDGEMENT:-
Judge Bidder QC went over the chronology of the case. In the original family proceedings, the court had to consider, on an application for contact, whether there was any risk of harm to the child. The court had to consider all the evidence and information available. Due to constraints of time, it was quite impossible for the judge to hear evidence. There was, therefore, an irreconcilable conflict of evidence about who was responsible for any alleged domestic violence. In those circumstances, there was patently a risk of harm to the child and there was no prospect whatsoever of the court being able or willing to order contact to the Claimant on the 3rd February 2009. Having regard to those issues, it was impossible to say that the CAFCASS officer could be criticised for giving the advice that she did.
Cafcass had instituted an investigation in response to a complaint by the Claimant, which had referred to the absence of a safeguarding assessment before the court hearing and suggested a lack of due dilligence. Judge Bidder disagreed with this conclusion. He was not clear what additional information would have been available to the court which would have materially altered the situation at the February hearing had a safeguarding assessment been carried out before the initial court hearing. It seemed improbable, particularly given the great strain Cafcass was under in relation to managing resources in and around 2009 that any report would have been prepared for the court prior to the February hearing.
It was the support worker’s role to adjudicate between the parties' conflicting accounts. The order that was made by the judge by consent was what was required by the law. Judge Bidder could find no negligent conduct by the support worker in relation to the preparation for and participation in the hearing of the 3rd February 2009.
The Claimant had also said that had the Cafcass complaint procedure moved along quicker, the result of the next hearing before the judge would have turned out better. His view was that the complaint proceedings and their slow progress were absolutely irrelevant to what was happening in the courts.
The Claimant had gone on to the third stage of the Cafcass’ complaints procedure, which had produced a report from an adjudicator and offering him £1000 by redress. He had only been sent a partial version of the result of the complaints procedure. Judge Bidder said that the failure to give him the full report and the sending of a letter which did not clearly indicate that it contained only extracts from the report undoubtedly were misleading to him, constituted serious maladministration by Cafcass, on top of the truly dreadful delays in the complaints process, added to his unhappiness and was extremely reprehensible. However he was quite clear that that maladministration did not result in his being able to claim any damages in this action.
Judge Bidder now looked at the law. The Children and Family Court Advisory and Support Service or Cafcass was established as a body corporate by section 11 of the Criminal Justice and Court Services Act 2000. The public duties imposed on the service by the 2000 Act were child centred but also specifically imposed a duty to advise the court. There was also a duty to provide information, advice and other support for the families of children. Judge Bidder referred to the case of R (R and others (Minors)) v CAFCASS [2012] EWCA Civ 853 where the Court of Appeal held that section 12 (1) (c) (2) of the 2000 Act imposed a general public law duty on the service to ensure children were represented in care proceedings but did not impose a specific duty either to ensure a specific child was represented or to ensure representation was achieved within a particular timescale. It followed from that that in relation to the more limited duties imposed on the service in relation to the families of children, there could be no public duty owed by the service to an individual father of a child in proceedings where the service was involved.
The Claimant contended that the service did, however, owe him a common law duty of care, breach of which entitled him to claim damages against the service. Judge Bidder referred to the following cases:-
- Caparo Industries PLC v Dickman and others [1990] 2 AC 605
- JD v East Berks and others [2003] EWCA Civ 1151
- D v East Berkshire Community Health Trust NHS Trust and others [2005] 2 AC 373
Cafcass had, to comply with its duty under section 12 and to comply with the extant Practice Directions, to assess the risks to the child of contact by the Claimant. The risks, which, in this case were of psychological and emotional damage were, potentially, from either or both parents and from their dispute with each other. It would entirely hamper Cafcass in its primary duty to the child if it owed the parents or either of them a duty of care. Therefore, it was not, in this case, fair, just and reasonable to impose a duty of care on Cafcass towards the Claimant.
Judge Bidder said that even if he were wrong about the existence of a duty of care, the test of whether the Defendant had through its officers acted negligently must be the Bolam test, of whether their actions fell outside the standards to be expected of a reasonable body of similar practitioners. It was appropriate to have regard to the resources available to Cafcass at the time. Having regard to the evidence, Judge Bidder rejected the allegations that the Defendant or its officers acted negligently.
Additionally, it has been clear throughout the proceedings that the Claimant could establish no actionable loss. He accepted in cross examination that he did not intend to commence further proceedings to re-establish contact with R and, thus, there was no financial claim arising from that. He had lost contact with R but there was no psychiatric injury suffered by the Claimant and he could not through an action in negligence seek compensation for upset and hurt to feelings. Neither could he claim compensation for the loss of a family relationship (Hamilton-Jones v David and Snape (a firm) [2004] 1 WLR 924).
Judge Bidder turned to the misfeasance in public office claim.The requirements for a successful claim in misfeasance in public office were identified in Three Rivers DC v Bank of England (No. 3) [2003] 2 AC 1. He rejected completely any suggestion that the Defendant and its officers acted with malice, bad faith or for an improper or ulterior motive, nor did any of them act in any way without an honest belief that they were acting lawfully.
The Claimant finally claimed damages for breach of his article 8 rights. Judge Bidder referred TP and KM v United Kingdom [2001] 2 FLR 549. As the Court of Appeal held, in R (R and others (Minors)) v CAFCASS (see above), it was the Court's primary duty to ensure, through applying the relevant legislation, that the article 8 rights of the Claimant, the child and his mother were not breached. There was no doubt that Cafcass also had a duty to ensure the article 8 rights of the Claimant were not breached and it was conceivable that, had they acted negligently in those proceedings, the Claimant might have been able to argue a breach of his article 8 rights which was caused by them. However they did not act negligently and the consent order and the Court's overall control of the proceedings meant that it was not arguable that any actions of the Defendant caused a breach of the Claimant's article 8 rights.
Judge Bidder therefore found that the Claimant's claims for damages against the Defendant were not well founded and he would dismiss them. Had he found that the Claimant's article 8 rights had been breached, the case of Venema v The Netherlands [2003] FLR 552 would be a useful comparator. The maximum period of loss of contact was just over 3 months and the sum of £3,500 would be just satisfaction for any breach.