JAKE PIERCE V DONCASTER METROPOLITAN BOROUGH COUNCIL [2007] EWHC 2968
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. This 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.
HELD:-
Justice Eady considered the particulars of claim, which set out the Claimants’ allegations as against the local authority. Each of these was denied by the Defendant, as was the allegation that the Claimant’s psychiatric condition was caused by the Defendant’s negligence.
The primary source for the evidence came from the Claimant himself although to a limited extent he was supported by some of the documentary records that had been disclosed. There was an issue in relation to his credibility but no evidence had been adduced from his family or social workers to challenge his allegations. It appeared that some of those social workers who had direct responsibility for him were still alive. One of the medical experts, Professor Maden saw the Claimant as manipulative and controlling. Another expert, Dr De Taranto said that the Claimant was struggling to control himself. A former teacher gave evidence to the effect that the Claimant was a liar.
Justice Eady said that it was important to focus throughout on the extent to which the contemporaneous documents were consistent with or tended to corroborate the Claimant’s allegations. The Claimant did not appear to be at all nervous in the witness box, but had thrown himself into the process. There was a real possibility that he had embellished a genuine history of intermittent neglect and abuse.
The Defendant’s counsel had suggested that the Claimant had invented his allegation of abuse against his parents. However that was not easy to reconcile with some of the available documents, nor the explanations given by the Defendant for withholding its documentary records, namely that he would find the contents too distressing.
The modern law on duty of care
Justice Eady considered the modern law on duty of care. He referred to X (Minors) v Bedfordshire County Council [1995] 2 AC 633, the Human Rights Act 1998 and JD & Others v East Berkshire NHS Trust and Others [2003] EWCA Civ 1151. He then considered whether there was a duty owed by the Defendant – that needed to be addressed separately for each of the relevant periods.
Was there a duty owed by the Defendant?
The decision to place the Claimant in foster care between 1976 and 1977 could hardly be criticised. When he was returned a social worker noted that his mother would require support for many years to come. Justice Eady felt that the Defendant did owe a duty of care from at least more 1976 at least.
The standard of care
He then addressed the standard of care. The Claimant’s counsel had placed reliance on Bolitho v City and Hackney HA [1998] AC 232 and submitted that expert opinion should have a logical basis. The relevant persons should have directed their mind to the question of comparative risks and benefits and reached a defensible conclusion on the matter.
The Defendant’s social care expert, David Lane had submitted that the relevant persons would have been monitoring the Claimant’s progress and welfare, at all material stages, and that they must have reached defensible conclusions on the matter.
There were practical difficulties in applying these principles, not least because of a dearth of records over most of the relevant period.
Was there a breach of duty in 1977?
Justice Eady said that there was no need to speculate or draw inferences, because it seemed reasonable to proceed on the basis that the court had the vast majority of the records that were created.
It was clear that from those records, that from August 1976 the local authority knew that there was a consistent pattern of lack of interest and poor parenting. There were numerous indicators that the Claimant’s mother would not be able to successfully care for all her children.
In September 1977, the social worker with responsibility for the Claimant case went on a training course. Justice Eady said that he had the strong impression from the records that there was a hiatus in the monitoring process between the social worker’s departure to go on training, and the point at which another social worker formally took over at the end of January 1978. In the meantime, a social worker who appeared to be fulfilling a temporary role organised the return of the Claimant to his family in November 1977.
Under regulation 22 of the Boarding Out of Children Regulations 1955 there was an obligation upon local authorities to carry out a review three months after a child was placed with foster parents and thereafter, regularly every six months. There was a review due no later than October 1977, and had this occurred it would plainly have played a significant role in determining his future. In light of the available records, Justice Eady concluded that no such statutory review had been carried out and this could not be dismissed as a technical breach. He could not accept the proposition that the absence of any evidence of a careful review (statutory or otherwise) of the Claimant’s position could be explained on the basis that everything must be presumed to have been carried out properly, nor that the lack of documents could be accounted for as “lost in the move.”
An Area Social Services Officer concluded in January 1978 that the Claimant’s mother was going to require support for many years to come. She also warned that unless this support was given, the other children in the family would be taken into care. Justice Eady said that there was no evidence that this warning was heeded.
The Defendant submitted that the Claimant had to show that no reasonable social worker would have sanctioned his return to his family in November 1977. It would not be enough to show that some reasonable social worker would have disagreed with that course. The Claimant’s expert, Patrick Ayres concluded that he could ascertain no satisfactory interpretation of the evidence which would have favoured a definite decision to return the children to their parents. The conduct of the local authority had fallen short of the standard of practice to be expected of a reasonably competent local authority. Justice Eady agreed with this conclusion.
Was there a breach in May 1979?
In view of Justice Eady’s first conclusion on the breach in 1977, it was strictly unnecessary to address the Claimant’s alternative arguments relating to the later periods. However he would make findings in case he was wrong.
In May 1979, the Claimant’s aunt had reported visible signs of injury to the Claimant. Justice Eady said that it would have been quite wrong for the Defendant to have made no enquiry at all. It seemed likely that something must have been done because the Claimant was placed on the “at risk” register and remained there for two years. However there was no record of any investigation.
Criticism of record keeping (or lack of it) was not the same as concluding that oversight was in fact lacking during the period, but there was no evidence of it or of the reasoning process that lay behind the decision to remove the Claimant from the register in 1981. Therefore it seemed that the pattern of failure had continued.
However it was impossible for the court to say that if proper supervision and record keeping had been maintained between 1977 and 1981, a reasonably competent local authority would have concluded that the Claimant should have been taken into care in or about May 1979. The evidence did not enable the court to decide that the Claimant had discharged the burden of establishing his alternative case in this respect.
The alleged breach in 1990 or 1991
During this period, the Claimant was absent from home for extended periods. He went missing for about six weeks in August 1990 aged 14. He was also living in a commune in Leeds and at other times on the streets where he was selling his body to provide a living. He finally left home at around Christmas 1990 after his father put a knife to his throat.
The Claimant’s social care expert, Patrick Ayres said that by this stage of his life the Defendant should have reacted positively to his absence, and that this might have averted some of the harm done. He was placed at a Barnardos home in Tadcaster and fostered in London.
Justice Eady had detected a certain fatalism in the Defendant’s case to the effect that there was little they could do about a 14 year old. However such was the extent of the Claimant’s personality disorder and sexualised behaviour by this time, that he could not properly come to the conclusion that the Defendant’s failure led to any specific element of damage, which would not have otherwise occurred.
Findings on causation
Justice Eady had now to return to the 1977 breach and determine what damage this caused. He found on the balance of probabilities that the Claimant did suffer indifference, neglect and periodic violence in the home environment at the hands of his parents. There was corroboration for his account.
It would be unrealistic to go through each allegation or class of allegations in order to make separate and individual assessments. The claim was one of ongoing abuse over a considerable period and it should be viewed as a whole. It would also be appropriate to have regard to assessing causation to the cumulative effect of the Claimant’s allegations. Justice Eady referred to the remarks of Lord Slynn in Barrett v Enfield London Borough Council [2001] 2 AC 550 at 573 F – G.
If the Claimant had not been allowed to return in November 1977, it is likely that he would have been fostered, adopted or lived in local authority care. It seemed reasonable to proceed on the basis that he would have been properly looked after. However the hereditary element of his personality disorder would still have had a significant impact on his behaviour. What Justice Eady could reasonably conclude was that he would not have undergone the physical cruelty and emotional deprivation he suffered at home.
It was not permissible to make guesswork. According to his psychiatric expert, the Claimant’s mental state and personality disorder may well have been less pronounced in adult life had not suffered the neglect and abuse in childhood, but the court could not come to any conclusions as to the apportionment of their impact.
Therefore the compensation would reflect the suffering of abuse between 1977 and 1990.
Limitation
The Claimant said that he only acquired the relevant knowledge for the purposes of sections 11 and 14 of the Limitation Act 1980 when he obtained his social services records in 2004.
Agreement had been reached on a limitation holiday so that proceedings were to be treated as being within time if the requisite date of knowledge post-dated the 24th August 2001. Justice Eady would apply the present law as set out in KR and others v Bryn Alyn Community Holdings [2003] EWCA Civ 85; Hallam-Eames v Merrett Syndicates Ltd [1995] 7 Med LR; Dobbie v Medway Health Authority [1994] 1 WLR 1234.
In order to plead a case against the Defendant, the Claimant and his advisers would need to know the state of the Defendant’s knowledge, at the various material times, such as would give rise to the obligations to take steps for his protection. Justice Eady accepted that the only means open to him to acquire this knowledge was through consideration of the records, which were obtained in July 2004.
Quantification of damage
The claim for general damage was pleaded under two heads. First the pain and suffering caused by the childhood abuse, secondly in respect of the psychiatric damage attributable to that abuse.
There was a claim for vulnerability in the labour market, but this was clearly speculative in character.
There was also a claim for treatment costs in the sum of £6400 as well as travel to that treatment for the Claimant and a companion. That additional claim was put at £2041.60.
Apart from the usual uncertainties as to the causation of long term psychological damage, there was the important element of heredity. The Claimant’s counsel had relied upon the speech of Lord Rodger in Simmons v British Steel plc [2004] ICR 585 where he had said that in the absence of any basis for identifying and apportioning the respective roles played by the various factors, the Claimant was entitled to recover damages for all his injuries.
Justice Eady said that he had to be careful not to extend this statement too widely and without reference to the particular context. Claimants still had to by- pass the issue of causation. The heredity factor in this case played a significant role and it could not be put on one side completely. It was not possible to make a comparison with the Claimant’s twin sister, who was kept in care or foster care permanently. There was no evidence as to how she had fared but a direct comparison would be unlikely to assist because of her mental disability.
The later episodes of abuse or rape whilst living on the street were too speculative and remote. The Claimant’s counsel had referred to the damages set out in KR and others v Bryn Alyn Community Holdings [2003] EWCA Civ 85 and Z v United Kingdom (2001) 34 EHRR 97.
Justice Eady said that the right figure would be £25,000 for general damages, but he would award nothing in addition for psychotherapy, loss of employment opportunities or increased psychological damage (beyond the hereditary element).
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. This 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.
HELD:-
Justice Eady considered the particulars of claim, which set out the Claimants’ allegations as against the local authority. Each of these was denied by the Defendant, as was the allegation that the Claimant’s psychiatric condition was caused by the Defendant’s negligence.
The primary source for the evidence came from the Claimant himself although to a limited extent he was supported by some of the documentary records that had been disclosed. There was an issue in relation to his credibility but no evidence had been adduced from his family or social workers to challenge his allegations. It appeared that some of those social workers who had direct responsibility for him were still alive. One of the medical experts, Professor Maden saw the Claimant as manipulative and controlling. Another expert, Dr De Taranto said that the Claimant was struggling to control himself. A former teacher gave evidence to the effect that the Claimant was a liar.
Justice Eady said that it was important to focus throughout on the extent to which the contemporaneous documents were consistent with or tended to corroborate the Claimant’s allegations. The Claimant did not appear to be at all nervous in the witness box, but had thrown himself into the process. There was a real possibility that he had embellished a genuine history of intermittent neglect and abuse.
The Defendant’s counsel had suggested that the Claimant had invented his allegation of abuse against his parents. However that was not easy to reconcile with some of the available documents, nor the explanations given by the Defendant for withholding its documentary records, namely that he would find the contents too distressing.
The modern law on duty of care
Justice Eady considered the modern law on duty of care. He referred to X (Minors) v Bedfordshire County Council [1995] 2 AC 633, the Human Rights Act 1998 and JD & Others v East Berkshire NHS Trust and Others [2003] EWCA Civ 1151. He then considered whether there was a duty owed by the Defendant – that needed to be addressed separately for each of the relevant periods.
Was there a duty owed by the Defendant?
The decision to place the Claimant in foster care between 1976 and 1977 could hardly be criticised. When he was returned a social worker noted that his mother would require support for many years to come. Justice Eady felt that the Defendant did owe a duty of care from at least more 1976 at least.
The standard of care
He then addressed the standard of care. The Claimant’s counsel had placed reliance on Bolitho v City and Hackney HA [1998] AC 232 and submitted that expert opinion should have a logical basis. The relevant persons should have directed their mind to the question of comparative risks and benefits and reached a defensible conclusion on the matter.
The Defendant’s social care expert, David Lane had submitted that the relevant persons would have been monitoring the Claimant’s progress and welfare, at all material stages, and that they must have reached defensible conclusions on the matter.
There were practical difficulties in applying these principles, not least because of a dearth of records over most of the relevant period.
Was there a breach of duty in 1977?
Justice Eady said that there was no need to speculate or draw inferences, because it seemed reasonable to proceed on the basis that the court had the vast majority of the records that were created.
It was clear that from those records, that from August 1976 the local authority knew that there was a consistent pattern of lack of interest and poor parenting. There were numerous indicators that the Claimant’s mother would not be able to successfully care for all her children.
In September 1977, the social worker with responsibility for the Claimant case went on a training course. Justice Eady said that he had the strong impression from the records that there was a hiatus in the monitoring process between the social worker’s departure to go on training, and the point at which another social worker formally took over at the end of January 1978. In the meantime, a social worker who appeared to be fulfilling a temporary role organised the return of the Claimant to his family in November 1977.
Under regulation 22 of the Boarding Out of Children Regulations 1955 there was an obligation upon local authorities to carry out a review three months after a child was placed with foster parents and thereafter, regularly every six months. There was a review due no later than October 1977, and had this occurred it would plainly have played a significant role in determining his future. In light of the available records, Justice Eady concluded that no such statutory review had been carried out and this could not be dismissed as a technical breach. He could not accept the proposition that the absence of any evidence of a careful review (statutory or otherwise) of the Claimant’s position could be explained on the basis that everything must be presumed to have been carried out properly, nor that the lack of documents could be accounted for as “lost in the move.”
An Area Social Services Officer concluded in January 1978 that the Claimant’s mother was going to require support for many years to come. She also warned that unless this support was given, the other children in the family would be taken into care. Justice Eady said that there was no evidence that this warning was heeded.
The Defendant submitted that the Claimant had to show that no reasonable social worker would have sanctioned his return to his family in November 1977. It would not be enough to show that some reasonable social worker would have disagreed with that course. The Claimant’s expert, Patrick Ayres concluded that he could ascertain no satisfactory interpretation of the evidence which would have favoured a definite decision to return the children to their parents. The conduct of the local authority had fallen short of the standard of practice to be expected of a reasonably competent local authority. Justice Eady agreed with this conclusion.
Was there a breach in May 1979?
In view of Justice Eady’s first conclusion on the breach in 1977, it was strictly unnecessary to address the Claimant’s alternative arguments relating to the later periods. However he would make findings in case he was wrong.
In May 1979, the Claimant’s aunt had reported visible signs of injury to the Claimant. Justice Eady said that it would have been quite wrong for the Defendant to have made no enquiry at all. It seemed likely that something must have been done because the Claimant was placed on the “at risk” register and remained there for two years. However there was no record of any investigation.
Criticism of record keeping (or lack of it) was not the same as concluding that oversight was in fact lacking during the period, but there was no evidence of it or of the reasoning process that lay behind the decision to remove the Claimant from the register in 1981. Therefore it seemed that the pattern of failure had continued.
However it was impossible for the court to say that if proper supervision and record keeping had been maintained between 1977 and 1981, a reasonably competent local authority would have concluded that the Claimant should have been taken into care in or about May 1979. The evidence did not enable the court to decide that the Claimant had discharged the burden of establishing his alternative case in this respect.
The alleged breach in 1990 or 1991
During this period, the Claimant was absent from home for extended periods. He went missing for about six weeks in August 1990 aged 14. He was also living in a commune in Leeds and at other times on the streets where he was selling his body to provide a living. He finally left home at around Christmas 1990 after his father put a knife to his throat.
The Claimant’s social care expert, Patrick Ayres said that by this stage of his life the Defendant should have reacted positively to his absence, and that this might have averted some of the harm done. He was placed at a Barnardos home in Tadcaster and fostered in London.
Justice Eady had detected a certain fatalism in the Defendant’s case to the effect that there was little they could do about a 14 year old. However such was the extent of the Claimant’s personality disorder and sexualised behaviour by this time, that he could not properly come to the conclusion that the Defendant’s failure led to any specific element of damage, which would not have otherwise occurred.
Findings on causation
Justice Eady had now to return to the 1977 breach and determine what damage this caused. He found on the balance of probabilities that the Claimant did suffer indifference, neglect and periodic violence in the home environment at the hands of his parents. There was corroboration for his account.
It would be unrealistic to go through each allegation or class of allegations in order to make separate and individual assessments. The claim was one of ongoing abuse over a considerable period and it should be viewed as a whole. It would also be appropriate to have regard to assessing causation to the cumulative effect of the Claimant’s allegations. Justice Eady referred to the remarks of Lord Slynn in Barrett v Enfield London Borough Council [2001] 2 AC 550 at 573 F – G.
If the Claimant had not been allowed to return in November 1977, it is likely that he would have been fostered, adopted or lived in local authority care. It seemed reasonable to proceed on the basis that he would have been properly looked after. However the hereditary element of his personality disorder would still have had a significant impact on his behaviour. What Justice Eady could reasonably conclude was that he would not have undergone the physical cruelty and emotional deprivation he suffered at home.
It was not permissible to make guesswork. According to his psychiatric expert, the Claimant’s mental state and personality disorder may well have been less pronounced in adult life had not suffered the neglect and abuse in childhood, but the court could not come to any conclusions as to the apportionment of their impact.
Therefore the compensation would reflect the suffering of abuse between 1977 and 1990.
Limitation
The Claimant said that he only acquired the relevant knowledge for the purposes of sections 11 and 14 of the Limitation Act 1980 when he obtained his social services records in 2004.
Agreement had been reached on a limitation holiday so that proceedings were to be treated as being within time if the requisite date of knowledge post-dated the 24th August 2001. Justice Eady would apply the present law as set out in KR and others v Bryn Alyn Community Holdings [2003] EWCA Civ 85; Hallam-Eames v Merrett Syndicates Ltd [1995] 7 Med LR; Dobbie v Medway Health Authority [1994] 1 WLR 1234.
In order to plead a case against the Defendant, the Claimant and his advisers would need to know the state of the Defendant’s knowledge, at the various material times, such as would give rise to the obligations to take steps for his protection. Justice Eady accepted that the only means open to him to acquire this knowledge was through consideration of the records, which were obtained in July 2004.
Quantification of damage
The claim for general damage was pleaded under two heads. First the pain and suffering caused by the childhood abuse, secondly in respect of the psychiatric damage attributable to that abuse.
There was a claim for vulnerability in the labour market, but this was clearly speculative in character.
There was also a claim for treatment costs in the sum of £6400 as well as travel to that treatment for the Claimant and a companion. That additional claim was put at £2041.60.
Apart from the usual uncertainties as to the causation of long term psychological damage, there was the important element of heredity. The Claimant’s counsel had relied upon the speech of Lord Rodger in Simmons v British Steel plc [2004] ICR 585 where he had said that in the absence of any basis for identifying and apportioning the respective roles played by the various factors, the Claimant was entitled to recover damages for all his injuries.
Justice Eady said that he had to be careful not to extend this statement too widely and without reference to the particular context. Claimants still had to by- pass the issue of causation. The heredity factor in this case played a significant role and it could not be put on one side completely. It was not possible to make a comparison with the Claimant’s twin sister, who was kept in care or foster care permanently. There was no evidence as to how she had fared but a direct comparison would be unlikely to assist because of her mental disability.
The later episodes of abuse or rape whilst living on the street were too speculative and remote. The Claimant’s counsel had referred to the damages set out in KR and others v Bryn Alyn Community Holdings [2003] EWCA Civ 85 and Z v United Kingdom (2001) 34 EHRR 97.
Justice Eady said that the right figure would be £25,000 for general damages, but he would award nothing in addition for psychotherapy, loss of employment opportunities or increased psychological damage (beyond the hereditary element).