JB AND BB V LEICESTERSHIRE COUNTY COUNCIL NOTTINGHAM COUNTY COURT 6TH JUNE 2014 UNREPORTED
Child Abuse Compensation Claims – Non delegable duty of care
FACTS:-
The Claimants were sister who alleged serious sexual abuse by foster parents whilst in the care of the local authority in the 1960’s. They were born in 1957 and 1960. They were later adopted by the same foster parents. They claimed damaged against the local authority in negligence and for breach of non delegable duty of care, and on the basis of vicarious liability.
The two Claimants were taken into care with a younger sister in around 1964. They were joined later by a brother. Social services records suggested that the foster placement was strict and that the foster parents were reluctant to allow the children contact with their mother. The initial reports from the foster placement had been entirely positive, although there were concerns in mid 1966 about strict discipline. Later in 1966 the foster mother reported that B had had sexual intercourse at school, but the headmistress later reported that the foster mother admitted telling lies. B’s behaviour was very disturbed and she had inflamed genitals. The headmistress also reported her concerns about Mr L’s obsession with sex. Further serious concerns were reported by social services.
The children were removed to a children’s home in 1967, but the foster parents continued to visit them and remained involved with them. Following the breakdown of their placement with their natural mother in 1970, they were returned to the foster parents initially under a private foster care arrangement. They were then adopted by the foster parents and again social services reports were positive. A Guardian was appointed who interviewed the children on their own and both Claimants spoke positively about their foster parents. A full adoption order was made.
B lived with her adoptive parents until 1974 when she was 17. J remained there until 1976. The abuse continued up until those points in time.
In 1993 one of the Claimants, B saw a psychologist and disclosed the abuse. There was a police investigation but no charges were brought. In 2004 B asked for her social services but did not pursue her request. In 2008 J and B discovered that their adoptive mother had died. In 2009 B and J obtained their social services records and they instructed solicitors in 2010. Proceedings were issued in April 2011.
JUDGMENT:-
His Honour Judge Godsmark went over the history of the The court had been asked to disapply limitation pursuant to section 33 of the Limitation Act 1980. The foster mother was dead, and the foster father was in a care home suffering from dementia. Attempts to trace the child care officers and other had been unsuccessful, although it was known that three out of eleven had died. The police file from 1993 had been destroyed. The social services files were available.
Godsmark J considered the operation of the Children Act 1948. At the time of their placement in foster care, the statutory bias was in favour of foster placement. The foster carers in question had excellent references. Godsmark J also considered the Boarding Out of Children Regulations 1955.
The social care experts instructed by both sides said that certain documents from the social services notes were missing, and the Defendant’s expert was handicapped by the absence of witnesses. Godsmark J said that the correct test was that laid down in the clinical negligence case of Bolam v Friern Hospital Management Committee [1957] 1 W.L.R. 582.
The Claimant’s expert had said that if the Defendant’s Children Department acted in the same way as other departments would have done in similar circumstances, then there was no negligence. She had used this as a benchmark. However when asked to consider criticism against a benchmark of a then responsible body of professional opinion (which was also categorised as “any competent local authority” her answers changed. Godsmark J commented that her willingness to give ground and her acknowledgement of the difficulties in knowing what the reasoning of child care officers was at the material time, was actually a strength. The Defendant’s expert had however been unwilling to give ground and he tended to argue the case as though her were promoting an academic hypothesis.
Godsmark J then addressed the issue of limitation in relation to the three main allegations made, which were:-
a) Systemic negligence
b) Vicarious liability
c) Breach of a non delegable duty of care
In relation to systemic negligence, it was conceded by the Defendant that there was a duty of care owed to the Claimants. In relation to vicarious liability, Godsmark J referred to the following cases:-
· S v Walsall Metropolitan BC [1985] 1 WLR 1150
· KLB v British Columbia [2003] HCA 4
· E v English Province of Our Lady of Charity [2012] EWCA 938
· Various Claimants v Catholic Child Welfare Society [2013] 2 AC 1
Godsmark J said that foster parents provided family life. The local authority was in no position to require the foster parents to bring up a foster child in a particular way. Foster parents were not part of the structure of the local authority. There was little control by the employer of the employee. Foster parents were essentially autonomous. They were an essential part of the provision of care to children by local authorities, but they were not integrated into the organisational structure of the local authority. Finally this was not a commercial relationship. Consequently Godsmark J was not persuaded that the relationship between foster parents and the local authority were akin to employment.
In relation to non delegable duty of care,the Defendant’s counsel submitted that deliberate abuse by a foster parent would not be a breach of the duty to take reasonable care for the safety of a child, relying on the Australian decision in New South Wales v Lepore [2003] HCA 4. Godsmark J doubted that this distinction had any place in the current approach to liability for harm inflicted by a third party in England. The artificiality had been noted in the case of A v Hoare [2008] UKHL 6 by Lord Hoffman at paragraph 25. Godsmark J referred to the judgement of Lord Sumption in Woodland v Essex County Council [2013] 3 WLR 1227 and the conditions laid down for a non delegable duty of care:-
a) The Claimant is a child, patient or vulnerable person dependent on the protection of the Defendant against risk of injury
b) There is an antecedent relationship between the Claimant and the Defendant independent of the negligent act or omission in itself
c) The Claimant has no control on how the Defendant chooses to perform those obligations
d) The Defendant has delegated to a third party some function which was an integral part of the positive duty which he had assumed towards the Claimant and the third party was exercising the Defendant’s custody or care of the Claimant and the element of control that went with it.
e) The third party had been negligent in the performance of the very function assumed by the Defendant and delegated by the Defendant to him.
The Defendant had conceded that the first three criteria were met. However the Defendant argued that the foster parents simply providing a family and accommodation. They were not performing a function which was an integral part of the duty assumed by the local authority. Godsmark J disagreed. The central positive duty that the local authority had assumed towards a child taken into care was to protect the child from harm. That was the the duty that the local authority had delegated. In relation to the fifty element, foster parents were in breach of the very duty assumed by the local authority to take reasonable care for the safety of the child.
Godsmark J then considered whether it was fair, just and reasonable to impute such a duty to a local authority. The Defendant made the point that imposition of a liability upon a local authority was unfair where none would exist for a parent. Godsmark J said that there were very strong policy reasons for not imposing liability on parents, and in any event that point would not have great force in light of the Woodland case. The Defendant’s other point was that it would also increase costs for local authorities.
In the view of Godsmark J the local authority should take positive steps to protect children. Consequently it seemed fair, just and reasonable that the local authority should remain potentially responsible for what happened to the child. The average member of the public would not understand why a local authority was vicariously liable for abuse in a children home if perpetrated by an employee, but there was no liability in a foster care placement.
Consequently there would be a non delegable duty of care in these circumstances.
Godsmark J now returned to the issue of limitation. No delayed date of knowledge was pleaded. He considered the different parts of Section 33. The central question was there there could be a fair trial (Cain v Francis [2009] QB 754). The prejudice to be address was that which affected the Defendant’s ability to defend. Delay of itself would not preclude a fair trial. It was the effect of the delay which was important.Godsmark J said that the Defendant was gravely prejudiced by the passage of time, and this had clearly affected the ability of the social care experts to come to a conclusion. The court was not able to hear from the professionals involved in the case and so their thought processes were not known, and this was a particular part of the evidence that the court would want to hear. The issue of whether the abuse occurred or not did not matter so much, but again neither of the foster parents could give evidence. Whilst that was a factor, it was not conclusive.
Godsmark J would not apply section 33 in the Claimants’ favour although he felt that the Claimants’ evidence was credible.
Child Abuse Compensation Claims – Non delegable duty of care
FACTS:-
The Claimants were sister who alleged serious sexual abuse by foster parents whilst in the care of the local authority in the 1960’s. They were born in 1957 and 1960. They were later adopted by the same foster parents. They claimed damaged against the local authority in negligence and for breach of non delegable duty of care, and on the basis of vicarious liability.
The two Claimants were taken into care with a younger sister in around 1964. They were joined later by a brother. Social services records suggested that the foster placement was strict and that the foster parents were reluctant to allow the children contact with their mother. The initial reports from the foster placement had been entirely positive, although there were concerns in mid 1966 about strict discipline. Later in 1966 the foster mother reported that B had had sexual intercourse at school, but the headmistress later reported that the foster mother admitted telling lies. B’s behaviour was very disturbed and she had inflamed genitals. The headmistress also reported her concerns about Mr L’s obsession with sex. Further serious concerns were reported by social services.
The children were removed to a children’s home in 1967, but the foster parents continued to visit them and remained involved with them. Following the breakdown of their placement with their natural mother in 1970, they were returned to the foster parents initially under a private foster care arrangement. They were then adopted by the foster parents and again social services reports were positive. A Guardian was appointed who interviewed the children on their own and both Claimants spoke positively about their foster parents. A full adoption order was made.
B lived with her adoptive parents until 1974 when she was 17. J remained there until 1976. The abuse continued up until those points in time.
In 1993 one of the Claimants, B saw a psychologist and disclosed the abuse. There was a police investigation but no charges were brought. In 2004 B asked for her social services but did not pursue her request. In 2008 J and B discovered that their adoptive mother had died. In 2009 B and J obtained their social services records and they instructed solicitors in 2010. Proceedings were issued in April 2011.
JUDGMENT:-
His Honour Judge Godsmark went over the history of the The court had been asked to disapply limitation pursuant to section 33 of the Limitation Act 1980. The foster mother was dead, and the foster father was in a care home suffering from dementia. Attempts to trace the child care officers and other had been unsuccessful, although it was known that three out of eleven had died. The police file from 1993 had been destroyed. The social services files were available.
Godsmark J considered the operation of the Children Act 1948. At the time of their placement in foster care, the statutory bias was in favour of foster placement. The foster carers in question had excellent references. Godsmark J also considered the Boarding Out of Children Regulations 1955.
The social care experts instructed by both sides said that certain documents from the social services notes were missing, and the Defendant’s expert was handicapped by the absence of witnesses. Godsmark J said that the correct test was that laid down in the clinical negligence case of Bolam v Friern Hospital Management Committee [1957] 1 W.L.R. 582.
The Claimant’s expert had said that if the Defendant’s Children Department acted in the same way as other departments would have done in similar circumstances, then there was no negligence. She had used this as a benchmark. However when asked to consider criticism against a benchmark of a then responsible body of professional opinion (which was also categorised as “any competent local authority” her answers changed. Godsmark J commented that her willingness to give ground and her acknowledgement of the difficulties in knowing what the reasoning of child care officers was at the material time, was actually a strength. The Defendant’s expert had however been unwilling to give ground and he tended to argue the case as though her were promoting an academic hypothesis.
Godsmark J then addressed the issue of limitation in relation to the three main allegations made, which were:-
a) Systemic negligence
b) Vicarious liability
c) Breach of a non delegable duty of care
In relation to systemic negligence, it was conceded by the Defendant that there was a duty of care owed to the Claimants. In relation to vicarious liability, Godsmark J referred to the following cases:-
· S v Walsall Metropolitan BC [1985] 1 WLR 1150
· KLB v British Columbia [2003] HCA 4
· E v English Province of Our Lady of Charity [2012] EWCA 938
· Various Claimants v Catholic Child Welfare Society [2013] 2 AC 1
Godsmark J said that foster parents provided family life. The local authority was in no position to require the foster parents to bring up a foster child in a particular way. Foster parents were not part of the structure of the local authority. There was little control by the employer of the employee. Foster parents were essentially autonomous. They were an essential part of the provision of care to children by local authorities, but they were not integrated into the organisational structure of the local authority. Finally this was not a commercial relationship. Consequently Godsmark J was not persuaded that the relationship between foster parents and the local authority were akin to employment.
In relation to non delegable duty of care,the Defendant’s counsel submitted that deliberate abuse by a foster parent would not be a breach of the duty to take reasonable care for the safety of a child, relying on the Australian decision in New South Wales v Lepore [2003] HCA 4. Godsmark J doubted that this distinction had any place in the current approach to liability for harm inflicted by a third party in England. The artificiality had been noted in the case of A v Hoare [2008] UKHL 6 by Lord Hoffman at paragraph 25. Godsmark J referred to the judgement of Lord Sumption in Woodland v Essex County Council [2013] 3 WLR 1227 and the conditions laid down for a non delegable duty of care:-
a) The Claimant is a child, patient or vulnerable person dependent on the protection of the Defendant against risk of injury
b) There is an antecedent relationship between the Claimant and the Defendant independent of the negligent act or omission in itself
c) The Claimant has no control on how the Defendant chooses to perform those obligations
d) The Defendant has delegated to a third party some function which was an integral part of the positive duty which he had assumed towards the Claimant and the third party was exercising the Defendant’s custody or care of the Claimant and the element of control that went with it.
e) The third party had been negligent in the performance of the very function assumed by the Defendant and delegated by the Defendant to him.
The Defendant had conceded that the first three criteria were met. However the Defendant argued that the foster parents simply providing a family and accommodation. They were not performing a function which was an integral part of the duty assumed by the local authority. Godsmark J disagreed. The central positive duty that the local authority had assumed towards a child taken into care was to protect the child from harm. That was the the duty that the local authority had delegated. In relation to the fifty element, foster parents were in breach of the very duty assumed by the local authority to take reasonable care for the safety of the child.
Godsmark J then considered whether it was fair, just and reasonable to impute such a duty to a local authority. The Defendant made the point that imposition of a liability upon a local authority was unfair where none would exist for a parent. Godsmark J said that there were very strong policy reasons for not imposing liability on parents, and in any event that point would not have great force in light of the Woodland case. The Defendant’s other point was that it would also increase costs for local authorities.
In the view of Godsmark J the local authority should take positive steps to protect children. Consequently it seemed fair, just and reasonable that the local authority should remain potentially responsible for what happened to the child. The average member of the public would not understand why a local authority was vicariously liable for abuse in a children home if perpetrated by an employee, but there was no liability in a foster care placement.
Consequently there would be a non delegable duty of care in these circumstances.
Godsmark J now returned to the issue of limitation. No delayed date of knowledge was pleaded. He considered the different parts of Section 33. The central question was there there could be a fair trial (Cain v Francis [2009] QB 754). The prejudice to be address was that which affected the Defendant’s ability to defend. Delay of itself would not preclude a fair trial. It was the effect of the delay which was important.Godsmark J said that the Defendant was gravely prejudiced by the passage of time, and this had clearly affected the ability of the social care experts to come to a conclusion. The court was not able to hear from the professionals involved in the case and so their thought processes were not known, and this was a particular part of the evidence that the court would want to hear. The issue of whether the abuse occurred or not did not matter so much, but again neither of the foster parents could give evidence. Whilst that was a factor, it was not conclusive.
Godsmark J would not apply section 33 in the Claimants’ favour although he felt that the Claimants’ evidence was credible.