S V GLOUCESTERSHIRE COUNTY COUNCIL; L V THE LONDON BOROUGH OF TOWER HAMLETS AND LONDON BOROUGH OF HAVERING [2000] EWCA Civ 72
FACTS:-
The Claimants were children in the care of a local authority and living with their foster parents. Each claimed that they were sexually abused by their foster father and that as a consequence they had suffered physical and long term psychological damage. They claimed that the damage was caused by the negligence of the local authority who were responsible for placing them with their foster parents and for subsequently monitoring their placement. Each of the foster fathers was later convicted of sexual offences with children.
The Claimant in the first case, S was born on the 16th March 1976. On the 17th March 1982 he was placed into care by Wigan Juvenile Court under section 1 of the Chldren and Young Persons Act 1969. In June 1982 he was placed with foster parents (Mr and Mrs S) and on the 10th October 1983 he was adopted by his foster parents together with his younger brother. In 1985, he moved with his adoptive parents to live in Gloucestershire. In about June 1989 they asked for help from the Defendant local authority to care for the Claimant and on the 6th September 1989 he was placed by the Defendant at Cam House School. On the 24th November 1989 the adoptive parents asked the Defendants to take the Claimant into care. He was placed for a short time with temporary foster parents until on the 20th December 1989, he was placed with Mr and Mrs Sm as his foster parents.
On the 9th February 1990, Gloucester Social Services Department met to consider allegations made by a young boy that Mr Sm had indecently assaulted him. That led to the decision to seek an alternative placement immediately for the Claimant, who denied that anything had happened to him.
Later in February 1990, the Claimant was placed with new foster parents, Mr and Mrs C and in November 1990, he moved to new foster parents, Mr and Mrs W. In June 1991, the Claimant asked to be moved to live in a children’s home. He had by this time been involved in a number of offences. By June 1991, his adoptive parents, Mr and Mrs S said that they did not want further contact with him.
On the 8th October 1991 the Claimant disclosed that Mr Sm, his former foster parent had sexually interfered with him. He made a full statement, but the police decided not to proceed. He was still committing offences and on the 24th January 1992 he was placed at a Crisis Intervention Centre and then on the 14th February 1992 in bed and breakfast accommodation. In May 1992 he was remanded into custody by the court into the care of the Defendants. He was put in a flat which was described by his social worker as unsuitable. On the 4th January 1993 he was moved to accommodation in Birmingham. In March 1993 he was sentenced by Lichfield Youth Court to one year’s supervision. On the 24th May 1993 he took a large overdose of paracetamol tablets.
The Claimant then alleged that he had been abused in 1989. Counselling was offered by the Claimant was becoming increasingly out of control. In Autumn of 1993 he was remanded in Gloucester prison and sentenced to periods of detention on a Young Offenders’ Institution.
When proceedings were served in July 1997, the Claimant was said to be suffering from symptoms of post traumatic stress disorder. He alleged that the abuse that he had suffered at the hands of Mr Sm, consisted of manual interference and masturbation, as well as extremely painful buggery on no less than 14 occasions. His medico legal expert, Dr Friedman said that an important factor was the lack of recognition and treatment that he received at the time of the sexual abuse and the lack of early intervention. This allegation formed a central part of the Claimant’s Statement of Claim.
Mr Sm was convicted of sexual offences against children, but neither party had details and the offences did not related to the Claimant. The Claimant had been awarded £12,000 by the Criminal Injuries Compensation Board reduced to £9,000 for his criminal convictions.
The Claimant then began proceedings against the Defendant on the 13th March 1997.
The Claimant in the second case was born on the 7th March 1975. She had a younger half brother. In early November 1979 her mother and her mother’s partner asked Tower Hamlets’ Social Services Department to take both children into care. There was information from the NSPCC that there were occasions when the children were left on their own. A social worker visited the family home and recorded concerns. The local authority then proceeded to have the children received into voluntary care and fostered for a period of six months. The foster parents, Mr and Mrs W lived in the London Borough of Havering and they had been assessed as suitable for short term fostering at first. There were concerns about Mr W’s emotional maturity. There was an arrangement between Tower Hamlets and Havering to foster the children. The foster placement was closely monitored by a social worker from Havering up until March 1980, but there was then a gap in the notes up to August 1980.
On the 10th July 1981 the children were returned to their mother’s care.
In January 1981 the social worker from Havering recorded that the W’s had done well as foster parents and that they should be approved for long term care of the children. That was confirmed by Tower Hamlets social services although there were concerns about an inability to cope with separation.
In early January 1982, the Claimant disclosed that she had been sexually assaulted by Mr W in mid 1981. In 1994 Mr W was convicted of a number of sexual assaults including two on the Claimant. The Claimant subsequently received £7500 from the Criminal Injuries Compensation Board, but this was reduced because of the offences that she had committed.
The Claimant then issued proceedings against Tower Hamlets and Havering on the 4th June 1996.
The Defendant local authorities successfully applied to the court for an order striking out the Claimant’s claims on the grounds that they disclosed no reasonable cause of action. The applications relied on the House of Lords decision in X (minors) v Bedfordshire County Council [1995] 2 AC 633 and the Court of Appeal decisions in H v Norfolk County Council [1997] 1 FLR 384 and Barrett v Enfield London Borough Council [1997] 3 WLR 628.
Permission to appeal was given in each case and the cases were stayed awaiting the House of Lords decision in Barrett. That decision [1999] 3 WLR 79 was given on the 17th June 1999.
HELD:-
Lord Justice May went over the caselaw to date. In X v Bedfordshire the House of Lords held that a breach of statutory duty did not, by itself give rise to any private law cause of action, although such a right might arise as a matter of the construction of particular statutes. A common law duty might arise in the performance of statutory functions, but the manner in which a statutory discretion was exercised had to be distinguished from the implementation of the statutory duty in practice. Where a statute conferred a discretion on a public authority, nothing done by the authority within the ambit of the discretion was actionable at common law, unless the decision complained of was so unreasonable that it fell outside the statutory discretion. In child abuse cases, the statutes in question did not give rise to claims based on simple breach of statutory duty. In relation as to whether there was a common law duty, Lord Browne Wilkinson in the House of Lords said that the first question was whether some of the allegations in the cases before him, involved justiciable issues (e.g. failure to make proper investigations) rather than policy matters (e.g. allocation of resources).
The second question was whether the decisions made by the local authority were within the ambit of the local authority’s discretion. Lord Browne Wilkinson said that he strongly suspected that if the case were to go to trial, the cases would fail on that ground. However it would not be right to strike out the claims, because the Claimants might be able to demonstrate that the decisions complained of, were so unreasonable that they fell outside the statutory discretion.
The next question was whether in accordance with the ordinary principles laid down in the case of Caparo Industries plc v Dickman [1990] 2 AC 605 the local authority owed a direct duty of care to the Claimants. It was accepted in X v Bedfordshire by the local authority that it could foresee damage to the Claimants and that their relationship with the Claimants was sufficiently proximate. However the third requirement in Caparo was whether it was just and reasonable to impose a common law duty. Lord Browne Wilkinson held that it was not just and fair to superimpose a common law duty on the local authority in relation to the performance of its statutory duties to protect children. He proceeded to set out the policy reasons for making that judgment.
On the procedural question of whether to strike out these actions, Lord Browne Wilkinson had said that actions should only be struck out where it was clear and obvious that in law the claim could not succeed. There might be cases where the relevant facts were not yet known
Lord Justice May then considered the case of H v Norfolk County Council [1997] 1 FLR 384. In that case a child had been taken into care at the ge of 4 and placed with foster parents until he was 14. He alleged physical and sexual abuse and negligence on the part of the local authority in failing to supervise his placement. His claim was struck out at first instance on the grounds that it disclosed no reasonable cause of action. The Claimant applied for leave to appeal, contending that there was a distinction to be drawn between a child who was in care and the children in the X v Bedfordshire case, which concerned the removal of children not in care from their natural parents. Permission to appeal was refused by the Court of Appeal. The difference between fostering cases and those concerning natural parents were insufficient to override the policy considerations.
In Barrett v Enfield [1999] 3 WLR 79 the Claimant was placed in the care of the Defendant local authority under a care order when he was 10 months old and he remained there until the age of 17. He claimed damages on account of being place with unsuitable foster parents, as opposed to being placed on a long term basis. His health and hygiene was neglected and appropriate psychiatric treatment was not given to him. The court at first instance had refused to strike out the claim, but on appeal the claim was struck out by the judge. The Court of Appeal upheld that decision, but in allowing the appeal the House of Lords held that the public policy considerations which meant that it would not be fair, just and reasonable to impose a common law duty of care on a local authority when deciding whether or not to take action in respect of a case of suspected child abuse did not have the same force in respect of decisions taken once the child was already in local authority care. In all but the clearest cases, it was important to see on the facts proved whether what was alleged was justiciable. The Claimant’s case was far from clear. In addition the question whether it was fair, just and reasonable to impose a duty of care was not to be decided in the abstract on the basis of assumed hypothetical facts. The Claimant was accordingly entitled to have his claim heard and the facts investigated.
Lord Slynn in the House of Lords referred to the case of X v Bedfordshire. He said that the Bedfordshire case established that decisions by local authorities whether or not to take a child into care with all the difficult aspects that involved were not ones which the courts would review by way of a claim for damages in negligence. There might be other remedies by way of judicial review or through extra judicial routes such as the Ombudsman. Lord Slynn went on to say that there was authority to show that a school and the teachers at a school were under a duty to safeguard the physical well being of pupils, and a similar duty applied to a person lawfully in the custody of another, a child in relation to parents, or a person injured due to the negligence of a nurse in a hospital. Social workers were to be regarded as members of a skilled profession when it came to considering the obligation to exercise reasonable care.
Lord Slynn explained that where a public authority took action which a statutory scheme required, the authority would not be liable in damages unless the statute expressly or impliedly so provided. Where a statute empowered an authority to take action in its discretion, the authority would not normally be liable under the statute, unless the statute so provided. Furthermore the local authority would not liable at common law, unless it purported to exercise its discretion in a wholly unreasonable way. That did not mean however that if an element of discretion was involved in an act done subject to the exercise of an overriding statutory power, common law negligence was necessarily ruled out. A court would not normally be expected to review in a claim in negligence a pure policy decision. The ultimate question was whether the particular issue was justificiable or whether the court should accept that it had no role to play. The test was whether the conditions in the Caparo case were satisfied.
Lord Justice May then referred to the judgment of Lord Hutton in Barrett. Lord Hutton had referred to another case Stovin v Wise [1996] AC 923 in which the court had said that the distinction between policy and operations was elusive and an inadequate tool with which to discover whether it was appropriate to impose a duty of care. It would be wholly inappropriate that a child should be permitted to sue his parents fro decisions made by them in relation to his upbringing which could be shown to be wrong. However the case of Barrett was not a case where the local authority was alleged to have been negligent in investigating. The duties of the local authority were not as delicate as they had been in the Bedfordshire case. Furthermore Barrett was distinguishable from H v Norfolk County Council.
Lord Hutton in Barrett had also said that the standard of care to be required of the Defendant in order to establish negligence would have to be determined against the background that it was given discretions to exercise by statute in a sphere involving difficult decisions in relation to the welfare of children. The trial judge must be satisfied that the conduct complained of, went beyond mere errors of judgment in the exercise of a discretion and constituted conduct which could be regarded as negligent.
Lord Browne-Wilkinson in Barrett had said that it was impossible to say that all careless acts or omissions of a local authority in relation to a child would not be actionable. It was far from clear what the expressions “operational” and “policy” meant. Therefore unless it could be said that operational carelessness could not have caused the damage alleged, it would be impossible to strike out any part of the claim. Lord Browne-Wilkinson referred to the European Court of Human Rights case, Osman v United Kingdom (Case 87/1997/871/1083) [1999] 1 FLR 193.
Lord Justice May summarised these dicta by saying that there was now a clear recognition that there might be circumstances in this acutely difficult area of human endeavour where an ordinary common law claim in negligence might be possible. He made five basic points:-
A local authority could not rely on a blanket immunity. Lord Justice May said that he was inclined to think that the House of Lords decision in Barrett required the Court of Appeal in this case to say that the H v Norfolk was wrongly decided.
Lord Justice May then considered Article 6 of the European Convention of Human Rights. He referred to the case of Osman versus the United Kingdom (see above). In that case, the Claimants had brought proceedings in the United Kingdom against the police alleging negligence in the prevention and pursuit of crime. The Court of Appeal struck out the proceedings applying Hill v Chief Constable of West Yorkshire [1989] AC 53. The European Court of Human Rights upheld a claim by the Osmans that their rights under Article 6 of the Convention had been infringed. The short basis of the decision appeared to have been that the Osmans were deprived of effective access to the court to have their claim determined on its merits by the application of a blanket immunity. Lord Browne Wilkinson in Barrett said that he found the decision of the European Court extremely difficult to understand, but this case was an added reason why it was difficult to say that Barrett was a clear and obvious case calling for striking out.
In Z and Others v United Kingdom, the European Commission of Human Rights in a Report adopted on the 10th September 1999 (29392/95) concluded unanimously that there had been a violation of Article 6 in the X v Bedfordshire case. However in another case, Kent v Griffiths (CA 3rd February 2000) Lord Woolf had said that the Osman did not mean that courts should be reluctant to dismiss cases that had no real prospect of success. A summary hearing could be a fair hearing for the purposes of Article 6.
Lord Justice May then considered the changes brought about by the Civil Procedure Rules. Rule 3.4(2) of the CPR provided that the court might strike out a statement of case if it appeared that the statement disclosed no reasonable grounds for bringing or defending the claim. However there was no embargo on the court receiving evidence.
Rule 24.2 of the CPR empowered the court to give summary judgment against a Claimant on the whole of the claim or on a particular issue, if the court considered that the Claimant had no real prospect of succeeding on the claim or issue and there was no other reason why the case or issue should be disposed of at a trial. In the present appeals, there were originally no applications for summary judgment, but each of the Defendant local authorities had invited the Court of Appeal to consider deciding these appeals under Rule 24.2.
Lord Justice May said that the Court of Appeal would apply Rule 24.2 and it would also (since there was no dispute on the issue) consider evidence derived from the contemporary notes from the local authorities’ respective social services departments.
S v Gloucestershire County Council
The issue here was the Defendant’s selection of Mr Sm as a foster parent. There had been no disclosure by the Defendants on this particular issue (although there had been full disclosure otherwise), and it could not be said that without investigation this element of the claim was bound to fail. The main decisions which were questioned, were not interdisciplinary nor were they delicate or confrontational in the way that those in the Bedfordshire cases were.
Lord Justice May said that in his view, the case was justiciable. The first two requirements of a duty of care referred to in the Caparo case were satisfied. In relation to whether it was just and reasonable to impose to impose a duty of care, that was a question to be determined by an examination of the details of the actual facts. Therefore the statement of case did disclose reasonable grounds for bringing the claim and Lord Justice May was not persuaded that it had no real prospects of success. Consequently the Defendant’s application would be dismissed.
L v London Borough of Tower Hamlets and Havering
In this case, it appeared from the extensive notes available, the London Borough of Havering gave extensive and very careful consideration to the suitability of Mr and Mrs W to be foster parents. Lord Justice May did not consider that oral evidence would add anything to the facts. There was some evidence that Mr W was unsuitable to be a foster parent, and possibly a psychiatrist might be able to say that his was a personality which tended towards the abuse of children. However social workers were not expected to be psychiatrists. The conclusions drawn by the social workers appeared to be entirely balanced. Lord Hutton had said in Barrett that the court must be satisfied that the conduct complained of went beyond mere errors of judgment in the exercise of discretion and constituted conduct which could be regarded as negligent. There was also the point that the matters in question occurred in 1979, and it seemed fanciful to suppose that a social worker duly qualified to speak of the standard of care reasonably to be expected of social workers in 1979 could be found who would credibly express an opinion that Havering were negligent. Therefore the Claimant had no reasonably prospect of establishing that Havering were negligent in the approval of Mr and Mrs W as foster parents. Tower Hamlets relied on Havering and they were not criticised for doing so.
The second particular allegation of negligence was that each Defendant acted contrary to the recommendation that the Ws should be restricted to fostering one child over a short term. Lord Justice May said that fostering two children rather than one had no intrinsic bearing on any likelihood that one of them might be sexually abused. In any event, the fostering took place under an emergency. Initially the social worker indicated that the placement was successful.
The third particular allegation of negligence was that the Defendant insufficiently monitored the fostering of the child with the Ws. In the view of Lord Justice May that allegation was factually incorrect. There were regular visits and as for the gap in the notes, this was understandable after 20 years. The assessment of the social worker did not contain indications that the child might be at risk. There were two entries in the notes about problems with the child, but these could not be said to indicate abuse. Therefore L’s claim had no real prospect of success and her appeal would be dismissed.
Lord Justice Tuckey and Lord Justice Robert Walker agreed.
FACTS:-
The Claimants were children in the care of a local authority and living with their foster parents. Each claimed that they were sexually abused by their foster father and that as a consequence they had suffered physical and long term psychological damage. They claimed that the damage was caused by the negligence of the local authority who were responsible for placing them with their foster parents and for subsequently monitoring their placement. Each of the foster fathers was later convicted of sexual offences with children.
The Claimant in the first case, S was born on the 16th March 1976. On the 17th March 1982 he was placed into care by Wigan Juvenile Court under section 1 of the Chldren and Young Persons Act 1969. In June 1982 he was placed with foster parents (Mr and Mrs S) and on the 10th October 1983 he was adopted by his foster parents together with his younger brother. In 1985, he moved with his adoptive parents to live in Gloucestershire. In about June 1989 they asked for help from the Defendant local authority to care for the Claimant and on the 6th September 1989 he was placed by the Defendant at Cam House School. On the 24th November 1989 the adoptive parents asked the Defendants to take the Claimant into care. He was placed for a short time with temporary foster parents until on the 20th December 1989, he was placed with Mr and Mrs Sm as his foster parents.
On the 9th February 1990, Gloucester Social Services Department met to consider allegations made by a young boy that Mr Sm had indecently assaulted him. That led to the decision to seek an alternative placement immediately for the Claimant, who denied that anything had happened to him.
Later in February 1990, the Claimant was placed with new foster parents, Mr and Mrs C and in November 1990, he moved to new foster parents, Mr and Mrs W. In June 1991, the Claimant asked to be moved to live in a children’s home. He had by this time been involved in a number of offences. By June 1991, his adoptive parents, Mr and Mrs S said that they did not want further contact with him.
On the 8th October 1991 the Claimant disclosed that Mr Sm, his former foster parent had sexually interfered with him. He made a full statement, but the police decided not to proceed. He was still committing offences and on the 24th January 1992 he was placed at a Crisis Intervention Centre and then on the 14th February 1992 in bed and breakfast accommodation. In May 1992 he was remanded into custody by the court into the care of the Defendants. He was put in a flat which was described by his social worker as unsuitable. On the 4th January 1993 he was moved to accommodation in Birmingham. In March 1993 he was sentenced by Lichfield Youth Court to one year’s supervision. On the 24th May 1993 he took a large overdose of paracetamol tablets.
The Claimant then alleged that he had been abused in 1989. Counselling was offered by the Claimant was becoming increasingly out of control. In Autumn of 1993 he was remanded in Gloucester prison and sentenced to periods of detention on a Young Offenders’ Institution.
When proceedings were served in July 1997, the Claimant was said to be suffering from symptoms of post traumatic stress disorder. He alleged that the abuse that he had suffered at the hands of Mr Sm, consisted of manual interference and masturbation, as well as extremely painful buggery on no less than 14 occasions. His medico legal expert, Dr Friedman said that an important factor was the lack of recognition and treatment that he received at the time of the sexual abuse and the lack of early intervention. This allegation formed a central part of the Claimant’s Statement of Claim.
Mr Sm was convicted of sexual offences against children, but neither party had details and the offences did not related to the Claimant. The Claimant had been awarded £12,000 by the Criminal Injuries Compensation Board reduced to £9,000 for his criminal convictions.
The Claimant then began proceedings against the Defendant on the 13th March 1997.
The Claimant in the second case was born on the 7th March 1975. She had a younger half brother. In early November 1979 her mother and her mother’s partner asked Tower Hamlets’ Social Services Department to take both children into care. There was information from the NSPCC that there were occasions when the children were left on their own. A social worker visited the family home and recorded concerns. The local authority then proceeded to have the children received into voluntary care and fostered for a period of six months. The foster parents, Mr and Mrs W lived in the London Borough of Havering and they had been assessed as suitable for short term fostering at first. There were concerns about Mr W’s emotional maturity. There was an arrangement between Tower Hamlets and Havering to foster the children. The foster placement was closely monitored by a social worker from Havering up until March 1980, but there was then a gap in the notes up to August 1980.
On the 10th July 1981 the children were returned to their mother’s care.
In January 1981 the social worker from Havering recorded that the W’s had done well as foster parents and that they should be approved for long term care of the children. That was confirmed by Tower Hamlets social services although there were concerns about an inability to cope with separation.
In early January 1982, the Claimant disclosed that she had been sexually assaulted by Mr W in mid 1981. In 1994 Mr W was convicted of a number of sexual assaults including two on the Claimant. The Claimant subsequently received £7500 from the Criminal Injuries Compensation Board, but this was reduced because of the offences that she had committed.
The Claimant then issued proceedings against Tower Hamlets and Havering on the 4th June 1996.
The Defendant local authorities successfully applied to the court for an order striking out the Claimant’s claims on the grounds that they disclosed no reasonable cause of action. The applications relied on the House of Lords decision in X (minors) v Bedfordshire County Council [1995] 2 AC 633 and the Court of Appeal decisions in H v Norfolk County Council [1997] 1 FLR 384 and Barrett v Enfield London Borough Council [1997] 3 WLR 628.
Permission to appeal was given in each case and the cases were stayed awaiting the House of Lords decision in Barrett. That decision [1999] 3 WLR 79 was given on the 17th June 1999.
HELD:-
Lord Justice May went over the caselaw to date. In X v Bedfordshire the House of Lords held that a breach of statutory duty did not, by itself give rise to any private law cause of action, although such a right might arise as a matter of the construction of particular statutes. A common law duty might arise in the performance of statutory functions, but the manner in which a statutory discretion was exercised had to be distinguished from the implementation of the statutory duty in practice. Where a statute conferred a discretion on a public authority, nothing done by the authority within the ambit of the discretion was actionable at common law, unless the decision complained of was so unreasonable that it fell outside the statutory discretion. In child abuse cases, the statutes in question did not give rise to claims based on simple breach of statutory duty. In relation as to whether there was a common law duty, Lord Browne Wilkinson in the House of Lords said that the first question was whether some of the allegations in the cases before him, involved justiciable issues (e.g. failure to make proper investigations) rather than policy matters (e.g. allocation of resources).
The second question was whether the decisions made by the local authority were within the ambit of the local authority’s discretion. Lord Browne Wilkinson said that he strongly suspected that if the case were to go to trial, the cases would fail on that ground. However it would not be right to strike out the claims, because the Claimants might be able to demonstrate that the decisions complained of, were so unreasonable that they fell outside the statutory discretion.
The next question was whether in accordance with the ordinary principles laid down in the case of Caparo Industries plc v Dickman [1990] 2 AC 605 the local authority owed a direct duty of care to the Claimants. It was accepted in X v Bedfordshire by the local authority that it could foresee damage to the Claimants and that their relationship with the Claimants was sufficiently proximate. However the third requirement in Caparo was whether it was just and reasonable to impose a common law duty. Lord Browne Wilkinson held that it was not just and fair to superimpose a common law duty on the local authority in relation to the performance of its statutory duties to protect children. He proceeded to set out the policy reasons for making that judgment.
On the procedural question of whether to strike out these actions, Lord Browne Wilkinson had said that actions should only be struck out where it was clear and obvious that in law the claim could not succeed. There might be cases where the relevant facts were not yet known
Lord Justice May then considered the case of H v Norfolk County Council [1997] 1 FLR 384. In that case a child had been taken into care at the ge of 4 and placed with foster parents until he was 14. He alleged physical and sexual abuse and negligence on the part of the local authority in failing to supervise his placement. His claim was struck out at first instance on the grounds that it disclosed no reasonable cause of action. The Claimant applied for leave to appeal, contending that there was a distinction to be drawn between a child who was in care and the children in the X v Bedfordshire case, which concerned the removal of children not in care from their natural parents. Permission to appeal was refused by the Court of Appeal. The difference between fostering cases and those concerning natural parents were insufficient to override the policy considerations.
In Barrett v Enfield [1999] 3 WLR 79 the Claimant was placed in the care of the Defendant local authority under a care order when he was 10 months old and he remained there until the age of 17. He claimed damages on account of being place with unsuitable foster parents, as opposed to being placed on a long term basis. His health and hygiene was neglected and appropriate psychiatric treatment was not given to him. The court at first instance had refused to strike out the claim, but on appeal the claim was struck out by the judge. The Court of Appeal upheld that decision, but in allowing the appeal the House of Lords held that the public policy considerations which meant that it would not be fair, just and reasonable to impose a common law duty of care on a local authority when deciding whether or not to take action in respect of a case of suspected child abuse did not have the same force in respect of decisions taken once the child was already in local authority care. In all but the clearest cases, it was important to see on the facts proved whether what was alleged was justiciable. The Claimant’s case was far from clear. In addition the question whether it was fair, just and reasonable to impose a duty of care was not to be decided in the abstract on the basis of assumed hypothetical facts. The Claimant was accordingly entitled to have his claim heard and the facts investigated.
Lord Slynn in the House of Lords referred to the case of X v Bedfordshire. He said that the Bedfordshire case established that decisions by local authorities whether or not to take a child into care with all the difficult aspects that involved were not ones which the courts would review by way of a claim for damages in negligence. There might be other remedies by way of judicial review or through extra judicial routes such as the Ombudsman. Lord Slynn went on to say that there was authority to show that a school and the teachers at a school were under a duty to safeguard the physical well being of pupils, and a similar duty applied to a person lawfully in the custody of another, a child in relation to parents, or a person injured due to the negligence of a nurse in a hospital. Social workers were to be regarded as members of a skilled profession when it came to considering the obligation to exercise reasonable care.
Lord Slynn explained that where a public authority took action which a statutory scheme required, the authority would not be liable in damages unless the statute expressly or impliedly so provided. Where a statute empowered an authority to take action in its discretion, the authority would not normally be liable under the statute, unless the statute so provided. Furthermore the local authority would not liable at common law, unless it purported to exercise its discretion in a wholly unreasonable way. That did not mean however that if an element of discretion was involved in an act done subject to the exercise of an overriding statutory power, common law negligence was necessarily ruled out. A court would not normally be expected to review in a claim in negligence a pure policy decision. The ultimate question was whether the particular issue was justificiable or whether the court should accept that it had no role to play. The test was whether the conditions in the Caparo case were satisfied.
Lord Justice May then referred to the judgment of Lord Hutton in Barrett. Lord Hutton had referred to another case Stovin v Wise [1996] AC 923 in which the court had said that the distinction between policy and operations was elusive and an inadequate tool with which to discover whether it was appropriate to impose a duty of care. It would be wholly inappropriate that a child should be permitted to sue his parents fro decisions made by them in relation to his upbringing which could be shown to be wrong. However the case of Barrett was not a case where the local authority was alleged to have been negligent in investigating. The duties of the local authority were not as delicate as they had been in the Bedfordshire case. Furthermore Barrett was distinguishable from H v Norfolk County Council.
Lord Hutton in Barrett had also said that the standard of care to be required of the Defendant in order to establish negligence would have to be determined against the background that it was given discretions to exercise by statute in a sphere involving difficult decisions in relation to the welfare of children. The trial judge must be satisfied that the conduct complained of, went beyond mere errors of judgment in the exercise of a discretion and constituted conduct which could be regarded as negligent.
Lord Browne-Wilkinson in Barrett had said that it was impossible to say that all careless acts or omissions of a local authority in relation to a child would not be actionable. It was far from clear what the expressions “operational” and “policy” meant. Therefore unless it could be said that operational carelessness could not have caused the damage alleged, it would be impossible to strike out any part of the claim. Lord Browne-Wilkinson referred to the European Court of Human Rights case, Osman v United Kingdom (Case 87/1997/871/1083) [1999] 1 FLR 193.
Lord Justice May summarised these dicta by saying that there was now a clear recognition that there might be circumstances in this acutely difficult area of human endeavour where an ordinary common law claim in negligence might be possible. He made five basic points:-
- depending on the particular facts of the case, a claim in common law negligence may be available to a person who claims to have been damaged by the failings of a local authority responsible under statutory powers for his care and upbringing.
- The claim would not succeed if the failings comprised of actions and decisions by the local authority which were not justiciable
- The border line between what was justiciable and what was not might be unclear, and its demarcation might require a more extensive investigation than what was shown on the pleadings
- There might be circumstances where it was not just and reasonable to impose a duty of care. Again here it might be necessary to conduct a more detailed investigation of the facts
- In considering whether a discretion decision was negligent, the court would not substitute its view for that of the local authority, unless the discretionary decision was plainly wrong. However decisions of social workers were capable of being held to have been negligent by analogy with decisions of other professional people. Here again, it might be necessary to conduct a detailed factual enquiry.
A local authority could not rely on a blanket immunity. Lord Justice May said that he was inclined to think that the House of Lords decision in Barrett required the Court of Appeal in this case to say that the H v Norfolk was wrongly decided.
Lord Justice May then considered Article 6 of the European Convention of Human Rights. He referred to the case of Osman versus the United Kingdom (see above). In that case, the Claimants had brought proceedings in the United Kingdom against the police alleging negligence in the prevention and pursuit of crime. The Court of Appeal struck out the proceedings applying Hill v Chief Constable of West Yorkshire [1989] AC 53. The European Court of Human Rights upheld a claim by the Osmans that their rights under Article 6 of the Convention had been infringed. The short basis of the decision appeared to have been that the Osmans were deprived of effective access to the court to have their claim determined on its merits by the application of a blanket immunity. Lord Browne Wilkinson in Barrett said that he found the decision of the European Court extremely difficult to understand, but this case was an added reason why it was difficult to say that Barrett was a clear and obvious case calling for striking out.
In Z and Others v United Kingdom, the European Commission of Human Rights in a Report adopted on the 10th September 1999 (29392/95) concluded unanimously that there had been a violation of Article 6 in the X v Bedfordshire case. However in another case, Kent v Griffiths (CA 3rd February 2000) Lord Woolf had said that the Osman did not mean that courts should be reluctant to dismiss cases that had no real prospect of success. A summary hearing could be a fair hearing for the purposes of Article 6.
Lord Justice May then considered the changes brought about by the Civil Procedure Rules. Rule 3.4(2) of the CPR provided that the court might strike out a statement of case if it appeared that the statement disclosed no reasonable grounds for bringing or defending the claim. However there was no embargo on the court receiving evidence.
Rule 24.2 of the CPR empowered the court to give summary judgment against a Claimant on the whole of the claim or on a particular issue, if the court considered that the Claimant had no real prospect of succeeding on the claim or issue and there was no other reason why the case or issue should be disposed of at a trial. In the present appeals, there were originally no applications for summary judgment, but each of the Defendant local authorities had invited the Court of Appeal to consider deciding these appeals under Rule 24.2.
Lord Justice May said that the Court of Appeal would apply Rule 24.2 and it would also (since there was no dispute on the issue) consider evidence derived from the contemporary notes from the local authorities’ respective social services departments.
S v Gloucestershire County Council
The issue here was the Defendant’s selection of Mr Sm as a foster parent. There had been no disclosure by the Defendants on this particular issue (although there had been full disclosure otherwise), and it could not be said that without investigation this element of the claim was bound to fail. The main decisions which were questioned, were not interdisciplinary nor were they delicate or confrontational in the way that those in the Bedfordshire cases were.
Lord Justice May said that in his view, the case was justiciable. The first two requirements of a duty of care referred to in the Caparo case were satisfied. In relation to whether it was just and reasonable to impose to impose a duty of care, that was a question to be determined by an examination of the details of the actual facts. Therefore the statement of case did disclose reasonable grounds for bringing the claim and Lord Justice May was not persuaded that it had no real prospects of success. Consequently the Defendant’s application would be dismissed.
L v London Borough of Tower Hamlets and Havering
In this case, it appeared from the extensive notes available, the London Borough of Havering gave extensive and very careful consideration to the suitability of Mr and Mrs W to be foster parents. Lord Justice May did not consider that oral evidence would add anything to the facts. There was some evidence that Mr W was unsuitable to be a foster parent, and possibly a psychiatrist might be able to say that his was a personality which tended towards the abuse of children. However social workers were not expected to be psychiatrists. The conclusions drawn by the social workers appeared to be entirely balanced. Lord Hutton had said in Barrett that the court must be satisfied that the conduct complained of went beyond mere errors of judgment in the exercise of discretion and constituted conduct which could be regarded as negligent. There was also the point that the matters in question occurred in 1979, and it seemed fanciful to suppose that a social worker duly qualified to speak of the standard of care reasonably to be expected of social workers in 1979 could be found who would credibly express an opinion that Havering were negligent. Therefore the Claimant had no reasonably prospect of establishing that Havering were negligent in the approval of Mr and Mrs W as foster parents. Tower Hamlets relied on Havering and they were not criticised for doing so.
The second particular allegation of negligence was that each Defendant acted contrary to the recommendation that the Ws should be restricted to fostering one child over a short term. Lord Justice May said that fostering two children rather than one had no intrinsic bearing on any likelihood that one of them might be sexually abused. In any event, the fostering took place under an emergency. Initially the social worker indicated that the placement was successful.
The third particular allegation of negligence was that the Defendant insufficiently monitored the fostering of the child with the Ws. In the view of Lord Justice May that allegation was factually incorrect. There were regular visits and as for the gap in the notes, this was understandable after 20 years. The assessment of the social worker did not contain indications that the child might be at risk. There were two entries in the notes about problems with the child, but these could not be said to indicate abuse. Therefore L’s claim had no real prospect of success and her appeal would be dismissed.
Lord Justice Tuckey and Lord Justice Robert Walker agreed.