STEPHANIE LAWRENCE VERSUS PEMBROKESHIRE COUNTY COUNCIL [2007] EWCA Civ 446
FACTS:-
The Defendant’s social services became involved with the Claimant and her family in 1999 after an assessment on one of her children by a psychologist. That psychologist referred the family to the Defendant’s Child Protection Team expressing concerns about the safety of the Claimant and her children. However a meeting of the Team in March 2001, held without the Claimant’s knowledge concluded that there was no risk and her family should receive a plan of support. A Community Support Nurse was assigned to the family but she was replaced by someone who was unqualified “A”.
By March 2002 the Defendant’s social workers had become concerned that the Claimant was at risk of violence from the father of the children and she had told A that occasionally she disciplined the children by threatening them with a wooden spoon. In the same month, the father of the Claimant’s children (who no longer lived with them) falsely alleged that the Claimant had hit him with a wooden spoon. A and another social worker employed by the Defendant, “B” then accused the Claimant of striking her children with a wooden spoon. There was then an interview with her children, and a separate interview of the Claimant who said that the father had inadvertently hit one of her children during an argument with her.
In April 2002, there was a Child Protection Conference which was attended by the Claimant and the father. Neither was allowed to make any representations. A report prepared by C, a social worker discounted the danger of physical harm to the children and it was agreed that they were no concerns about physical harm to the children. However it was decided that the children’s names should be placed on the Child Protection Register under the category “emotional harm”. C was named as the key worker.
A review was held on the 8th July 2002, and it was decided at this conference that the children’s names should remain on the “at risk register” and that a core assessment should be carried out.
A second review was held on the 29th October 2002. None of the actions prescribed by the previous review had been carried out. In August 2002, the Claimant had made a formal complaint and in September 2002, a second complaint. The children’s names remained on the “At risk” register.
In June 2003, an independent expert said that the evidence did not justify placing the children’s names on the register and there had been misleading conduct by social workers. Finally in that same month, the children’s names were removed from the “At risk” register. The Claimant’s two complaints were upheld under the Defendant’s internal procedure. The Claimant then went to the Local Government Ombudsman who recommended that the Defendant pay to the Claimant the sum of £5,000 in recognition of her distress and damage to her reputation. That sum was paid to the Claimant by the Defendant and she accepted that it should be set off against her claim for damages.
The Claimant brought a claim against the Defendant relying on Article 8 of the European Convention on Human Rights (right to private life). The Defendant accepted that there was an arguable claim, but relied on the one year limitation period set by section 7(5)(a) of the Human Rights Act 1998. There was then an issue of whether it would be equitable to extend that period of time under section 7(5)(b) of the 1998 Act. At the time the case came to the Court of Appeal that point had yet to be decided.
She also brought a claim in negligence against the Defendant. The Defendant argued that she could not succeed because of the decision in JD v East Berkshire Community Health NHS Trust and Others [2005] 2 AC 373.
Justice Field struck out the claim in negligence and the Claimant appealed to the Court of Appeal.
HELD:-
Lord Justice Auld said that the issue in this appeal was whether a public authority owed a duty of care to parents when investigating and/or taking steps to protect children. In JD v East Berkshire Community Health NHS Trust [2005] 2 AC 373 the House of Lords held by a majority that it would be contrary to principle to recognise such a duty, because it would conflict with the more pressing duty to the child to protect him or her from the risk of parental abuse.
The Claimant’s case was the same as for the parents in JD v East Berkshire. However she was now bringing a claim under the Human Rights Act 1998 and had argued that the court should recognise a duty to parents on the strength of that distinction. Justice Field had declined to make a decision that would in effect modify the decision in JD v East Berkshire.
The Court of Appeal in JD v East Berkshire considered the same argument now advanced by the Claimant. The facts in JD pre-dated October 2000, the introduction of the Human Rights Act 1998 Act and so the 1998 Act had no application to the cases. However the Court of Appeal was still asked to consider how the 1998 Act affected the common law principle of no duty of care to parents. The Court of Appeal had decided in light on recent jurisprudence from the European Court of Human Rights (“ECHR”) that although there was a common law duty of care to children, there were cogent reasons of public policy why it should not extend to parents suspected of abusing them.
The House of Lords in JD v East Berkshire did not deal specifically with the point considered by the Court of Appeal, namely the potential contribution of the Human Rights Act to the development of the common law in this area.
Auld LJ said that there were two general but important points:-
The effect of the advent of Article 8 to English law
Auld LJ then went on to quote Article 8(1) and (2) of the European Convention on Human Rights.
“(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Auld LJ reviewed what had been said by the Court of Appeal and the House of Lords in JD v East Berkshire.
Lord Phillips in the Court of Appeal in JD v East Berkshire had reviewed a number of ECHR authorities. He had concluded that there could be no justification for preserving a rule that no duty of care was owed in negligence, because it was not “fair, just and reasonable” to impose such a duty.
The House of Lords in JD v East Berkshire had the issue of Article 8 and the ECHR authorities argued before them. It was implicit in their reasoning that Article 8 had contributed to the development of a duty in common law to the child, but not to the parent.
Lord Nicholls had said that he did not think that the parent suspected of abuse should be accorded a higher level of protection than other suspected perpetrators. His reasoning was based on conflict of interest.
Lord Rodger had said there were cogent reasons of public policy for holding that no common law duty of care should be owed to the parents. He had gone on to say that since the relevant events occurred from the Human Rights Act 1998 came into force, the Claimants could not seek damages for any possible breach of their rights under Article 8(1). However he did suggest that it might be appropriate to modify the common law of negligence rather than to found any action on the provisions of Article 8(1).
Lords Steyn and Brown did not refer to Article 8 but expressed agreement with the judgments of Lords Nicholls and Rodger.
Correlation of Article 8 duties to the child with those to the parent
The Claimant’s counsel argued that since Article 8 was now a part of the law, the court should develop the common law so that it recognised that those publicly responsible for the safety of children would owe a duty not only to children, but also parents. There was reliance on two ECHR cases, TP and KM v United Kingdom (2001) 34 EHRR and Venema v The Netherlands (2002) 36 EHRR 345.
In TP a mother and child’s claim succeeded where the boyfriend had been wrongly accused of abuse. In Venema a parent’s Article 8 claim succeeded where the mother had been wrongly suspected of abusing her child.
The Claimant’s counsel argued that if a parent could bring a claim under Article 8, that parent should be able to make the same claim under the common law.
Auld LJ said that this argument overlooked an important difference between the Article 8 right to respect for family life and a putative right to a common law duty of care. Article 8 is not concerned with the establishment of a duty, but of a threshold of interference by a public authority with family life. The court in TP and Venema were primarily concerned with the justification for interference with family life. In TP the court accepted that interference with family life may be regarded as being in pursuance of a legitimate aim, proportionate and necessary in a democratic society, although on the facts it was not necessary in this case. That reasoning was replicated in Venema.
In both the domestic court and the ECHR, there was necessarily a similar balancing of conflicting interests so as to require the cession of one to the other, although under the European Convention on Human Rights the onus was on the local authority to justify its interference.
The need for compatibility of the common law with Article 8?
The Claimant’s counsel had argued that there should be a modification of the common law to take account of Article 8. Parliament had clearly contemplated a parallel remedy at common law, particularly as the court was required not to act incompatibly with Convention rights. It was possible for the public authority to rely upon Article 8(2) on a case by case basis depending on the circumstances.
Auld LJ saw two difficulties with that approach:-
The advent of Article 8 to English domestic law, bringing with it a discrete right to children and parents of respect for their family life, did not undermine the primacy of the need to protect children from abuse. Article 8 did not enhance the status of family life so as to require the introduction of a duty of care to parents suspected of abusing their children, a duty precluded by public policy.
The cogency of the conflict of interests/inhibition point, regardless of the impact of Article 8
Lord Nicholls in JD v East Berkshire said that doctors and social workers should not be hampered in the exercise of their duty by a sense of caution flowing from the imposition of a countervailing duty of care to parents. Whether their suspicions are later borne out was irrelevant to the question as to whether such a duty of care should exist at the commencement of and during a child protection investigation.
The Claimant’s counsel had argued that the law should only preclude a duty of care to the parent, where the parent had in fact been abusing the child. That argument focussed attention on breach of duty to a parent rather than on whether there was such a duty. Lord Bingham had welcomed that argument in his dissenting speech in JD v East Berkshire.
Auld LJ said that this argument and the words of Lord Bingham had given him pause for thought. However there was a danger in the “breach of duty” argument. The danger was that it put to one side the mischief on which the present exclusion of a general duty of care to parents was based, namely the potential conflict of interest between child and parents creating the imperative, whilst the truth was still unknown, for social workers to do all that they reasonably could and should to secure the welfare and safety of the child.
The common law had generally sought to avoid the imposition of duties potentially in conflict with each other.
In Brooks v Commissioner of Police of the Metropolis [2005] 1 WLR 1495, the House of Lords said that in general, the police, when investigating suspected crimes, had no duty of care to victims or witnesses in respect of their activities.
Lord Bingham in that case (Brooks) had said that the duties of care alleged had the potential to undermine the police officers’ performance of their functions. Auld LJ said that it was difficult to see why this point should not also cover social workers and he referred to two other authorities, Sullivan v Moody (2001) 207 CLR 562 and B and Others v Attorney General of New Zealand [2003] 4 All ER 833.
Lord Justice Scott Baker and Lord Justice Richards agreed with Auld LJ. Scott Baker LJ said that the difference between this case and JD v East Berkshire was that the Human Rights Act 1998 applied to this case, and it did not in JD v East Berkshire. That provided no good reason for revisiting a question so comprehensively examined by the House of Lords in JD v East Berkshire. The appeal would be dismissed .
FACTS:-
The Defendant’s social services became involved with the Claimant and her family in 1999 after an assessment on one of her children by a psychologist. That psychologist referred the family to the Defendant’s Child Protection Team expressing concerns about the safety of the Claimant and her children. However a meeting of the Team in March 2001, held without the Claimant’s knowledge concluded that there was no risk and her family should receive a plan of support. A Community Support Nurse was assigned to the family but she was replaced by someone who was unqualified “A”.
By March 2002 the Defendant’s social workers had become concerned that the Claimant was at risk of violence from the father of the children and she had told A that occasionally she disciplined the children by threatening them with a wooden spoon. In the same month, the father of the Claimant’s children (who no longer lived with them) falsely alleged that the Claimant had hit him with a wooden spoon. A and another social worker employed by the Defendant, “B” then accused the Claimant of striking her children with a wooden spoon. There was then an interview with her children, and a separate interview of the Claimant who said that the father had inadvertently hit one of her children during an argument with her.
In April 2002, there was a Child Protection Conference which was attended by the Claimant and the father. Neither was allowed to make any representations. A report prepared by C, a social worker discounted the danger of physical harm to the children and it was agreed that they were no concerns about physical harm to the children. However it was decided that the children’s names should be placed on the Child Protection Register under the category “emotional harm”. C was named as the key worker.
A review was held on the 8th July 2002, and it was decided at this conference that the children’s names should remain on the “at risk register” and that a core assessment should be carried out.
A second review was held on the 29th October 2002. None of the actions prescribed by the previous review had been carried out. In August 2002, the Claimant had made a formal complaint and in September 2002, a second complaint. The children’s names remained on the “At risk” register.
In June 2003, an independent expert said that the evidence did not justify placing the children’s names on the register and there had been misleading conduct by social workers. Finally in that same month, the children’s names were removed from the “At risk” register. The Claimant’s two complaints were upheld under the Defendant’s internal procedure. The Claimant then went to the Local Government Ombudsman who recommended that the Defendant pay to the Claimant the sum of £5,000 in recognition of her distress and damage to her reputation. That sum was paid to the Claimant by the Defendant and she accepted that it should be set off against her claim for damages.
The Claimant brought a claim against the Defendant relying on Article 8 of the European Convention on Human Rights (right to private life). The Defendant accepted that there was an arguable claim, but relied on the one year limitation period set by section 7(5)(a) of the Human Rights Act 1998. There was then an issue of whether it would be equitable to extend that period of time under section 7(5)(b) of the 1998 Act. At the time the case came to the Court of Appeal that point had yet to be decided.
She also brought a claim in negligence against the Defendant. The Defendant argued that she could not succeed because of the decision in JD v East Berkshire Community Health NHS Trust and Others [2005] 2 AC 373.
Justice Field struck out the claim in negligence and the Claimant appealed to the Court of Appeal.
HELD:-
Lord Justice Auld said that the issue in this appeal was whether a public authority owed a duty of care to parents when investigating and/or taking steps to protect children. In JD v East Berkshire Community Health NHS Trust [2005] 2 AC 373 the House of Lords held by a majority that it would be contrary to principle to recognise such a duty, because it would conflict with the more pressing duty to the child to protect him or her from the risk of parental abuse.
The Claimant’s case was the same as for the parents in JD v East Berkshire. However she was now bringing a claim under the Human Rights Act 1998 and had argued that the court should recognise a duty to parents on the strength of that distinction. Justice Field had declined to make a decision that would in effect modify the decision in JD v East Berkshire.
The Court of Appeal in JD v East Berkshire considered the same argument now advanced by the Claimant. The facts in JD pre-dated October 2000, the introduction of the Human Rights Act 1998 Act and so the 1998 Act had no application to the cases. However the Court of Appeal was still asked to consider how the 1998 Act affected the common law principle of no duty of care to parents. The Court of Appeal had decided in light on recent jurisprudence from the European Court of Human Rights (“ECHR”) that although there was a common law duty of care to children, there were cogent reasons of public policy why it should not extend to parents suspected of abusing them.
The House of Lords in JD v East Berkshire did not deal specifically with the point considered by the Court of Appeal, namely the potential contribution of the Human Rights Act to the development of the common law in this area.
Auld LJ said that there were two general but important points:-
- First it was for the Claimant to satisfy the court that the local authority owed her a duty of care – it was not for the local authority to justify the absence of such a duty
- Second there was logically and from a public policy point of view, no difference for the purposes of this case between doctors and social workers.
The effect of the advent of Article 8 to English law
Auld LJ then went on to quote Article 8(1) and (2) of the European Convention on Human Rights.
“(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Auld LJ reviewed what had been said by the Court of Appeal and the House of Lords in JD v East Berkshire.
Lord Phillips in the Court of Appeal in JD v East Berkshire had reviewed a number of ECHR authorities. He had concluded that there could be no justification for preserving a rule that no duty of care was owed in negligence, because it was not “fair, just and reasonable” to impose such a duty.
The House of Lords in JD v East Berkshire had the issue of Article 8 and the ECHR authorities argued before them. It was implicit in their reasoning that Article 8 had contributed to the development of a duty in common law to the child, but not to the parent.
Lord Nicholls had said that he did not think that the parent suspected of abuse should be accorded a higher level of protection than other suspected perpetrators. His reasoning was based on conflict of interest.
Lord Rodger had said there were cogent reasons of public policy for holding that no common law duty of care should be owed to the parents. He had gone on to say that since the relevant events occurred from the Human Rights Act 1998 came into force, the Claimants could not seek damages for any possible breach of their rights under Article 8(1). However he did suggest that it might be appropriate to modify the common law of negligence rather than to found any action on the provisions of Article 8(1).
Lords Steyn and Brown did not refer to Article 8 but expressed agreement with the judgments of Lords Nicholls and Rodger.
Correlation of Article 8 duties to the child with those to the parent
The Claimant’s counsel argued that since Article 8 was now a part of the law, the court should develop the common law so that it recognised that those publicly responsible for the safety of children would owe a duty not only to children, but also parents. There was reliance on two ECHR cases, TP and KM v United Kingdom (2001) 34 EHRR and Venema v The Netherlands (2002) 36 EHRR 345.
In TP a mother and child’s claim succeeded where the boyfriend had been wrongly accused of abuse. In Venema a parent’s Article 8 claim succeeded where the mother had been wrongly suspected of abusing her child.
The Claimant’s counsel argued that if a parent could bring a claim under Article 8, that parent should be able to make the same claim under the common law.
Auld LJ said that this argument overlooked an important difference between the Article 8 right to respect for family life and a putative right to a common law duty of care. Article 8 is not concerned with the establishment of a duty, but of a threshold of interference by a public authority with family life. The court in TP and Venema were primarily concerned with the justification for interference with family life. In TP the court accepted that interference with family life may be regarded as being in pursuance of a legitimate aim, proportionate and necessary in a democratic society, although on the facts it was not necessary in this case. That reasoning was replicated in Venema.
In both the domestic court and the ECHR, there was necessarily a similar balancing of conflicting interests so as to require the cession of one to the other, although under the European Convention on Human Rights the onus was on the local authority to justify its interference.
The need for compatibility of the common law with Article 8?
The Claimant’s counsel had argued that there should be a modification of the common law to take account of Article 8. Parliament had clearly contemplated a parallel remedy at common law, particularly as the court was required not to act incompatibly with Convention rights. It was possible for the public authority to rely upon Article 8(2) on a case by case basis depending on the circumstances.
Auld LJ saw two difficulties with that approach:-
- JD v East Berkshire was all about forestalling by robust and timely intervention, if at all possible, the greater possible harm when a local authority suspects parental abuse of children in the context of their family life together. A system of law that left the issue to be resolved by a court at the stage of and in the form of an Article 8(2) enquiry would be too late in protecting children.
- Under Article 8(2) it was for the public body interfering with family life to justify its conduct. This was something that they did not have to do with regards the common law duty of negligence and so if the common law was brought into line with Article 8(2), it would be distorted.
The advent of Article 8 to English domestic law, bringing with it a discrete right to children and parents of respect for their family life, did not undermine the primacy of the need to protect children from abuse. Article 8 did not enhance the status of family life so as to require the introduction of a duty of care to parents suspected of abusing their children, a duty precluded by public policy.
The cogency of the conflict of interests/inhibition point, regardless of the impact of Article 8
Lord Nicholls in JD v East Berkshire said that doctors and social workers should not be hampered in the exercise of their duty by a sense of caution flowing from the imposition of a countervailing duty of care to parents. Whether their suspicions are later borne out was irrelevant to the question as to whether such a duty of care should exist at the commencement of and during a child protection investigation.
The Claimant’s counsel had argued that the law should only preclude a duty of care to the parent, where the parent had in fact been abusing the child. That argument focussed attention on breach of duty to a parent rather than on whether there was such a duty. Lord Bingham had welcomed that argument in his dissenting speech in JD v East Berkshire.
Auld LJ said that this argument and the words of Lord Bingham had given him pause for thought. However there was a danger in the “breach of duty” argument. The danger was that it put to one side the mischief on which the present exclusion of a general duty of care to parents was based, namely the potential conflict of interest between child and parents creating the imperative, whilst the truth was still unknown, for social workers to do all that they reasonably could and should to secure the welfare and safety of the child.
The common law had generally sought to avoid the imposition of duties potentially in conflict with each other.
In Brooks v Commissioner of Police of the Metropolis [2005] 1 WLR 1495, the House of Lords said that in general, the police, when investigating suspected crimes, had no duty of care to victims or witnesses in respect of their activities.
Lord Bingham in that case (Brooks) had said that the duties of care alleged had the potential to undermine the police officers’ performance of their functions. Auld LJ said that it was difficult to see why this point should not also cover social workers and he referred to two other authorities, Sullivan v Moody (2001) 207 CLR 562 and B and Others v Attorney General of New Zealand [2003] 4 All ER 833.
Lord Justice Scott Baker and Lord Justice Richards agreed with Auld LJ. Scott Baker LJ said that the difference between this case and JD v East Berkshire was that the Human Rights Act 1998 applied to this case, and it did not in JD v East Berkshire. That provided no good reason for revisiting a question so comprehensively examined by the House of Lords in JD v East Berkshire. The appeal would be dismissed .