NXS v London Borough of Camden [2009] EWHC 1786 (QB)
Facts:-
The Claimant was born in November 1975 and was at the time of trial now 33 years of age. For the first year or so of her life, she lived with her mother, Miss P, her grandmother, Mrs P and a number of Miss P’s siblings. Her family were well known to social services and in the early 1960’s, there had been child protection issues relating to one of Miss P’s brothers, G who was known to have sexually abused his siblings.
There were concerns about the Claimant’s welfare from an early age, and reports of Miss P’s abusing her children, and her admitting to slapping the Claimant. After February 1977, the Claimant and Miss P lived mainly at addresses separate from the rest of the family. In March 1989 following admission to hospital, concern was expressed about possible emotional abuse of the Claimant by her mother. Miss P’s sister then made a complaint to the National Society for the Prevention of Cruelty to Children (NSPCC). The Claimant was placed on the Child Protection Register, and then taken into voluntary care until she was 18 years of age. In 2004, the Claimant made a complaint to the police about Miss P’s ill treatment of her. There was a prosecution and on the 15th July 2005, Miss P was convicted of child neglect between 1975 and 1990. The Claimant also made an application to the Criminal Injuries Compensation Authority, but made no allegations of sexual abuse. She accepted an award based solely on the effects of her physical injuries. However when she issued proceedings, her Particulars of Claim contained an unparticularised allegation of sexual abuse by Miss P and her brother, G.
The Claimant’s case was based on the premise that the Defendant did not carry out adequate and competent monitoring, and had it done so, it would have taken steps to remove the Claimant into care.
She began asking the Defendant for her social services notes when she was 17 years of age, however she could not obtain anything from them. In November 1996, a Legal Advice Centre wrote to the Defendant asking for the records, but no more was heard. When the police made requests to see the records, they were told that the files were missing. The Claimant again raised the matter with the Defendants and she made a written complaint. Eventually a limited amount of information was released to her in late 2004. The Claimant made a complaint to the Information Commissioner about the failure to provide her files, but she was told that she could not have them until the criminal proceedings were complete. However even then, the records were not released to her.
During 2004 she also submitted another claim through solicitors to the Criminal Injuries Compensation Authority. She then consulted another firm of solicitors who took over conduct of this claim and submitted a claim for public funding on her behalf. A Letter of Claim was sent in August 2005 and in February 2006, an award of £5500 was made by the CICA. In February and September 2006 some files were sent to the Claimant and after an order was made for disclosure, additional documentation was received in April 2008.
Proceedings were commenced against the Defendant local authority in May 2008. A few days before trial, the Claimant had a supplemental witness statement, giving details of the sexual abuse alleged. She said that she had found it very difficult to give any such details prior to the abuse.
Judgment
Mrs Justice Swift said that since the Court of Appeal decision in JD and Others v East Berkshire NHS Trust and Others [2003] Lloyds Law Rep Med 552 it was established that a local authority owed a duty of care to a child who was potentially at risk. That duty of care was accepted in this case, and it was admitted that professional employees of the Defendant owed the Claimant a similar duty.
The standard of care was that set out in the case of Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. It was further accepted that if the available documents relating to its contact with the Claimant and Miss P between the Claimant’s birth and February 1977 were a full and accurate reflection of the Defendant’s involvement in the Claimant’s case, the standard of care provided to the Claimant would fall below the accepted standard.
There were very few documents relating to Miss P and the Claimant for the period from February 1977 to 1989. It was common ground that there was a file dealing with her case, which had since been lost.
There was a “family file” covering the period from July 1974 to July 1987. The Claimant had argued that there were no further documents in the file, and the Defendant argued that there were further documents, and for the period when those documents were missing, the judge could draw no conclusions.
It was accepted by the Defendant that the Claimant was physically assaulted and emotionally neglected by her mother, but it was not accepted that she had suffered sexual abuse.
The Claimant had asked the court to exercise its discretion under Section 33 of the Limitation Act 1980.
Swift J went over the facts of the case in detail. She then considered the expert evidence. The Claimant had called Maria Ruegger, an independent social worker, who was previously a Senior Lecturer in Applied Social Work. She was familiar with social work practice at the relevant time. Mr David Lane, instructed by the Defendant was a residential childcare worker for eight years and thereafter an Assistant Director and then Director of Social Services. Their joint report revealed some areas of agreement. Both agreed that if the available documents covering the period from the Claimant birth to February 1977 represented a full and accurate reflection of the Defendant’s involvement, its care fell below the accepted standards at the relevant time.
One of the issues was whether there existed a separate file. Mr Lane felt that there had been such a file. Ms. Ruegger could find no evidence that a separate file on Miss P and the Claimant had been in existence prior to February 1977. She accepted it was likely that the Claimant had been placed on the child protection register at some time, but it was unlikely that this had happened prior to February 1977. There was no pattern of visits from a social worker and/or a Health visitor, which would be typical of a child who was on the register. The mere fact that a child was on the CP Register afforded no protection. The level of protection depended on the competence of the staff responsible for formulating and carrying out the care plans.
Swift J then considered the period from February 1977 to January 1989. The information during this period was very limited. It was agreed that a separate file must have existed, but this was not available. However there was very clear evidence of poor care of the Claimant by Miss P as well as acts of violence. At some point in the early 1980’s, the Defendant had decided to take the Claimant off the child protection register. Ms. Ruegger said that it could not have been appropriate to cease monitoring the Claimant. Mr Lane remained of the view that it was impossible, without more information, to assess the quality of care being given by the Defendant during this period.
The following period was after 1989. Again the experts differed in their assessment of the quality of care given after the Claimant was admitted into care.
Swift J considered limitation. Primary limitation had expired on the 25th November 1996 and the Letter of Claim was sent in August 2005. A claim form was issued in September 2007, but allowed to lapse. The current claim form was issued on the 23rd May 2008, 11 ½ years after the expiration of the primary limitation period.
Swift J considered sections 11, 14 and 33 of the Limitation Act 1980, and the leading case of A v Hoare and Others [2008] UKHL 6 where the House of Lords had disapproved the partially subjective test in McCafferty v Metropolitan Police [1977] 1 WLR 1073 and KR v Bryn Alyn Community (Holdings) Ltd. [2003] QB 1441.
Reference was also made to the Scottish case of Bowden and Another v Poor Sisters of Nazareth and Others [2008] UKHL 32 together with Hartley v Birmingham City Council [1992] 1 WLR 979.
The case of Donovan v Gwentoys [1990] WLR 472 established that, although section 33(3) of the 1980 Act referred only to delay occurring after the expiration of the primary limitation period, the court must nevertheless take into account all the circumstances of the case, including any prejudice that might be faced by a Defendant relating to delay before the limitation period expired.
Swift J then considered the parties’ submission on limitation. It was accepted that the Claimant was physically and emotionally abused by Miss P throughout her childhood up to the time when she was taken into care. The Claimant was a compelling witness, and her evidence was support by her aunt, who confirmed that the Claimant was subject to regular physical abuse. In addition Swift J was quite satisfied that the sexual abuse occurred, and the Claimant’s explanation for holding back on this allegation was entirely convincing.
In relation to the expert evidence, Ms. Ruegger had resiled in her oral evidence from an agreement in the Joint Statement to the effect that no conclusions about the quality of the Defendant’s monitoring during the period from February 1977 could be reached because of the absence of documents for that period. She had also been reluctant to concede that there had at any time been a separate file on Miss P although it was not accepted that this was the case. Swift J did not accept those criticisms of Ms. Ruegger, whom she considered to be a fair and careful witness. Mr Lane was also doing his best to be fair. However Ms. Ruegger seemed to have a greater practical understanding of child protection issues than did Mr Lane.
In relation to missing files, Swift J found that a new file for Miss P and the Claimant would have been created in February 1977. It also appeared that the Claimant must have been on the CP Register prior to February 1978 and that she was registered shortly after an incident in April 1976, which in turn meant that there must have been documents relating to the registration which were transferred to the new file when it was opened, but had subsequently been lost.
In relation to breach of duty, there was no doubt that by the standards of the 1970’s this was substandard care.
In relation to limitation, the length of delay in this case was very substantial indeed, 32 years from the beginning of the material events and 19 years from the end. However the Claimant faced considerable difficulties in her life, she could not be criticised for her failure to take any active steps to investigate a possible claim up to her 18th birthday, and it was not surprising that she did not make any enquiries in the years following her 18th birthday. She had attempted to obtain her records without success between 1992 and 1996. It was not until she obtained a crucial document from her GP notes, that she became aware that the Defendant had known of her mother’s violence. That was after she had reported Miss P’s conduct to the police in late April 2004. However even when criminal proceedings were concluded in July 2005, the records were not provided. It was not until April 2008 that the relevant records were provided.
The Defendant’s failure to respond to requests for records was relevant here, and made a significant contribution to the delays that had occurred.
After discovering the document in her GP notes, the Claimant sought legal advice very promptly. At first, the advice was directed at a claim to the CICA. Once her current solicitors were instructed, they notified the Defendant of a potential claim and began the process of seeking disclosure of documents. Therefore the Claimant had acted promptly and reasonably.
Swift J said that she was also required to consider the extent to which, having regard to the delay, the evidence adduced was likely to be less cogent, than if the action had been brought within the primary limitation period, i.e. 1996. The relevant documents could not be found in 1989, nor had they come to light since that time. One of the social workers involved with the Claimant from an early age, Miss Coller could not be found but the Defendant had not provided any evidence as to the date that she left its employment, and it seemed likely that she did so before 1989. There was no reason to believe that Miss Coller or other potential witnesses would have been traceable in 1996. Even if they had been it was highly unlikely that they would have been able to provide a significant amount of additional detail that occurred some 20 to 25 years ago. As to other evidence, neither the Claimant’s evidence nor that of AB was in the view of Swift J likely to have been of materially better quality in 1996. Nor, since quantum was agreed, could any problem with the cogency of evidence relating to medical causation arise.
At the time the missing file was list, it should have been within the Defendant’s control and the Defendant should have had proper arrangement for storing it in such a way that it could be readily retrieved if necessary. There was no suggestion that there was any fire, flood or other extraneous event beyond the Defendant’s control. Therefore the failure must be attributable to the actions of one or more of the Defendant’s employees.
Swift J said that Section 33(1) required her to consider the degree to which any decision under that section would prejudice the Defendant. She regarded it as highly unlikely that, if the missing documentation from 1976 were available, it would significantly change the picture that emerged from the existing documents. Swift J was entirely satisfied that the Claimant had established that it would be equitable to allow the action to proceed.
In relation to factual causation, on the balance of probabilities, that had it not been for the Defendant’s breach of duty, the Claimant would have been removed from Miss P’s care and that removal would have taken place no later than the end of 1978, as a result of which the Claimant would have been spared the years of abuse that followed and her resultant injuries.
Judgement would be given to the Claimant in the agreed sum of £60,000.
Facts:-
The Claimant was born in November 1975 and was at the time of trial now 33 years of age. For the first year or so of her life, she lived with her mother, Miss P, her grandmother, Mrs P and a number of Miss P’s siblings. Her family were well known to social services and in the early 1960’s, there had been child protection issues relating to one of Miss P’s brothers, G who was known to have sexually abused his siblings.
There were concerns about the Claimant’s welfare from an early age, and reports of Miss P’s abusing her children, and her admitting to slapping the Claimant. After February 1977, the Claimant and Miss P lived mainly at addresses separate from the rest of the family. In March 1989 following admission to hospital, concern was expressed about possible emotional abuse of the Claimant by her mother. Miss P’s sister then made a complaint to the National Society for the Prevention of Cruelty to Children (NSPCC). The Claimant was placed on the Child Protection Register, and then taken into voluntary care until she was 18 years of age. In 2004, the Claimant made a complaint to the police about Miss P’s ill treatment of her. There was a prosecution and on the 15th July 2005, Miss P was convicted of child neglect between 1975 and 1990. The Claimant also made an application to the Criminal Injuries Compensation Authority, but made no allegations of sexual abuse. She accepted an award based solely on the effects of her physical injuries. However when she issued proceedings, her Particulars of Claim contained an unparticularised allegation of sexual abuse by Miss P and her brother, G.
The Claimant’s case was based on the premise that the Defendant did not carry out adequate and competent monitoring, and had it done so, it would have taken steps to remove the Claimant into care.
She began asking the Defendant for her social services notes when she was 17 years of age, however she could not obtain anything from them. In November 1996, a Legal Advice Centre wrote to the Defendant asking for the records, but no more was heard. When the police made requests to see the records, they were told that the files were missing. The Claimant again raised the matter with the Defendants and she made a written complaint. Eventually a limited amount of information was released to her in late 2004. The Claimant made a complaint to the Information Commissioner about the failure to provide her files, but she was told that she could not have them until the criminal proceedings were complete. However even then, the records were not released to her.
During 2004 she also submitted another claim through solicitors to the Criminal Injuries Compensation Authority. She then consulted another firm of solicitors who took over conduct of this claim and submitted a claim for public funding on her behalf. A Letter of Claim was sent in August 2005 and in February 2006, an award of £5500 was made by the CICA. In February and September 2006 some files were sent to the Claimant and after an order was made for disclosure, additional documentation was received in April 2008.
Proceedings were commenced against the Defendant local authority in May 2008. A few days before trial, the Claimant had a supplemental witness statement, giving details of the sexual abuse alleged. She said that she had found it very difficult to give any such details prior to the abuse.
Judgment
Mrs Justice Swift said that since the Court of Appeal decision in JD and Others v East Berkshire NHS Trust and Others [2003] Lloyds Law Rep Med 552 it was established that a local authority owed a duty of care to a child who was potentially at risk. That duty of care was accepted in this case, and it was admitted that professional employees of the Defendant owed the Claimant a similar duty.
The standard of care was that set out in the case of Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. It was further accepted that if the available documents relating to its contact with the Claimant and Miss P between the Claimant’s birth and February 1977 were a full and accurate reflection of the Defendant’s involvement in the Claimant’s case, the standard of care provided to the Claimant would fall below the accepted standard.
There were very few documents relating to Miss P and the Claimant for the period from February 1977 to 1989. It was common ground that there was a file dealing with her case, which had since been lost.
There was a “family file” covering the period from July 1974 to July 1987. The Claimant had argued that there were no further documents in the file, and the Defendant argued that there were further documents, and for the period when those documents were missing, the judge could draw no conclusions.
It was accepted by the Defendant that the Claimant was physically assaulted and emotionally neglected by her mother, but it was not accepted that she had suffered sexual abuse.
The Claimant had asked the court to exercise its discretion under Section 33 of the Limitation Act 1980.
Swift J went over the facts of the case in detail. She then considered the expert evidence. The Claimant had called Maria Ruegger, an independent social worker, who was previously a Senior Lecturer in Applied Social Work. She was familiar with social work practice at the relevant time. Mr David Lane, instructed by the Defendant was a residential childcare worker for eight years and thereafter an Assistant Director and then Director of Social Services. Their joint report revealed some areas of agreement. Both agreed that if the available documents covering the period from the Claimant birth to February 1977 represented a full and accurate reflection of the Defendant’s involvement, its care fell below the accepted standards at the relevant time.
One of the issues was whether there existed a separate file. Mr Lane felt that there had been such a file. Ms. Ruegger could find no evidence that a separate file on Miss P and the Claimant had been in existence prior to February 1977. She accepted it was likely that the Claimant had been placed on the child protection register at some time, but it was unlikely that this had happened prior to February 1977. There was no pattern of visits from a social worker and/or a Health visitor, which would be typical of a child who was on the register. The mere fact that a child was on the CP Register afforded no protection. The level of protection depended on the competence of the staff responsible for formulating and carrying out the care plans.
Swift J then considered the period from February 1977 to January 1989. The information during this period was very limited. It was agreed that a separate file must have existed, but this was not available. However there was very clear evidence of poor care of the Claimant by Miss P as well as acts of violence. At some point in the early 1980’s, the Defendant had decided to take the Claimant off the child protection register. Ms. Ruegger said that it could not have been appropriate to cease monitoring the Claimant. Mr Lane remained of the view that it was impossible, without more information, to assess the quality of care being given by the Defendant during this period.
The following period was after 1989. Again the experts differed in their assessment of the quality of care given after the Claimant was admitted into care.
Swift J considered limitation. Primary limitation had expired on the 25th November 1996 and the Letter of Claim was sent in August 2005. A claim form was issued in September 2007, but allowed to lapse. The current claim form was issued on the 23rd May 2008, 11 ½ years after the expiration of the primary limitation period.
Swift J considered sections 11, 14 and 33 of the Limitation Act 1980, and the leading case of A v Hoare and Others [2008] UKHL 6 where the House of Lords had disapproved the partially subjective test in McCafferty v Metropolitan Police [1977] 1 WLR 1073 and KR v Bryn Alyn Community (Holdings) Ltd. [2003] QB 1441.
Reference was also made to the Scottish case of Bowden and Another v Poor Sisters of Nazareth and Others [2008] UKHL 32 together with Hartley v Birmingham City Council [1992] 1 WLR 979.
The case of Donovan v Gwentoys [1990] WLR 472 established that, although section 33(3) of the 1980 Act referred only to delay occurring after the expiration of the primary limitation period, the court must nevertheless take into account all the circumstances of the case, including any prejudice that might be faced by a Defendant relating to delay before the limitation period expired.
Swift J then considered the parties’ submission on limitation. It was accepted that the Claimant was physically and emotionally abused by Miss P throughout her childhood up to the time when she was taken into care. The Claimant was a compelling witness, and her evidence was support by her aunt, who confirmed that the Claimant was subject to regular physical abuse. In addition Swift J was quite satisfied that the sexual abuse occurred, and the Claimant’s explanation for holding back on this allegation was entirely convincing.
In relation to the expert evidence, Ms. Ruegger had resiled in her oral evidence from an agreement in the Joint Statement to the effect that no conclusions about the quality of the Defendant’s monitoring during the period from February 1977 could be reached because of the absence of documents for that period. She had also been reluctant to concede that there had at any time been a separate file on Miss P although it was not accepted that this was the case. Swift J did not accept those criticisms of Ms. Ruegger, whom she considered to be a fair and careful witness. Mr Lane was also doing his best to be fair. However Ms. Ruegger seemed to have a greater practical understanding of child protection issues than did Mr Lane.
In relation to missing files, Swift J found that a new file for Miss P and the Claimant would have been created in February 1977. It also appeared that the Claimant must have been on the CP Register prior to February 1978 and that she was registered shortly after an incident in April 1976, which in turn meant that there must have been documents relating to the registration which were transferred to the new file when it was opened, but had subsequently been lost.
In relation to breach of duty, there was no doubt that by the standards of the 1970’s this was substandard care.
In relation to limitation, the length of delay in this case was very substantial indeed, 32 years from the beginning of the material events and 19 years from the end. However the Claimant faced considerable difficulties in her life, she could not be criticised for her failure to take any active steps to investigate a possible claim up to her 18th birthday, and it was not surprising that she did not make any enquiries in the years following her 18th birthday. She had attempted to obtain her records without success between 1992 and 1996. It was not until she obtained a crucial document from her GP notes, that she became aware that the Defendant had known of her mother’s violence. That was after she had reported Miss P’s conduct to the police in late April 2004. However even when criminal proceedings were concluded in July 2005, the records were not provided. It was not until April 2008 that the relevant records were provided.
The Defendant’s failure to respond to requests for records was relevant here, and made a significant contribution to the delays that had occurred.
After discovering the document in her GP notes, the Claimant sought legal advice very promptly. At first, the advice was directed at a claim to the CICA. Once her current solicitors were instructed, they notified the Defendant of a potential claim and began the process of seeking disclosure of documents. Therefore the Claimant had acted promptly and reasonably.
Swift J said that she was also required to consider the extent to which, having regard to the delay, the evidence adduced was likely to be less cogent, than if the action had been brought within the primary limitation period, i.e. 1996. The relevant documents could not be found in 1989, nor had they come to light since that time. One of the social workers involved with the Claimant from an early age, Miss Coller could not be found but the Defendant had not provided any evidence as to the date that she left its employment, and it seemed likely that she did so before 1989. There was no reason to believe that Miss Coller or other potential witnesses would have been traceable in 1996. Even if they had been it was highly unlikely that they would have been able to provide a significant amount of additional detail that occurred some 20 to 25 years ago. As to other evidence, neither the Claimant’s evidence nor that of AB was in the view of Swift J likely to have been of materially better quality in 1996. Nor, since quantum was agreed, could any problem with the cogency of evidence relating to medical causation arise.
At the time the missing file was list, it should have been within the Defendant’s control and the Defendant should have had proper arrangement for storing it in such a way that it could be readily retrieved if necessary. There was no suggestion that there was any fire, flood or other extraneous event beyond the Defendant’s control. Therefore the failure must be attributable to the actions of one or more of the Defendant’s employees.
Swift J said that Section 33(1) required her to consider the degree to which any decision under that section would prejudice the Defendant. She regarded it as highly unlikely that, if the missing documentation from 1976 were available, it would significantly change the picture that emerged from the existing documents. Swift J was entirely satisfied that the Claimant had established that it would be equitable to allow the action to proceed.
In relation to factual causation, on the balance of probabilities, that had it not been for the Defendant’s breach of duty, the Claimant would have been removed from Miss P’s care and that removal would have taken place no later than the end of 1978, as a result of which the Claimant would have been spared the years of abuse that followed and her resultant injuries.
Judgement would be given to the Claimant in the agreed sum of £60,000.