TF AND LONDON BOROUGH OF LEWISHAM Unreported Mayor’s and City of London County Court 30th September 2008
FACTS:-
The Claimant was born in May 1984 in the London Borough of Lewisham. Her natural mother was PF, and from birth there were concerns about the mother’s ability to care for her daughter. There was monitoring by social services and in 1986, the Claimant was placed on the child abuse register. In 1988 she was taken into care on a temporary basis and placed with foster parents, Mr and Mrs and Mrs B. She was then returned in 1989. It was agreed that if, after two months, the mother could not care for the Claimant, she would then be placed for adoption. The mother then agreed to have her daughter adopted. In 1990, she disclosed to her prospective adoptive mother, Mrs E that she had been sexually abused by RD, a friend and neighbour and in 1992 she disclosed by LB, her foster mother’s Mrs B’s son. Although Mrs E refused to adopt the Claimant, she continued to foster her and treated her as a daughter. The placement was a happy one.
The Claimant alleged professional negligence against the Defendant. Her allegations were as follows:-
The court went over the material facts. Concerns had been expressed by social services when the Claimant was first born. RD was found to be playing a major role in her care, and he had a minor conviction which was not of concern. Support was provided and monitoring continued.
HELD:-
The court went over the evidence of the lay witnesses, and the social work expert evidence. The Claimant had instructed Maria Ruegger and the Defendant, Professor Christopher Payne. There was a conflict between the two experts insofar as Ms Ruegger said that the social workers had been negligent and Professor Payne disagreed. The court said that whilst both experts had an impressive record of research and publication in the field of child social work, it would prefer the evidence of Professor Payne for the following reasons:-
In relation to the medical expert evidence, the Claimant instructed Dr Martin Baggaley and the Defendant, Professor Anthony Maden. These experts agreed on the diagnosis and severity of the Claimant’s psychological condition and its cause.
Dr Baggaley had said that the evidence was consistent with sexual abuse occurring. Professor Maden had said in his examination in chief that he had moved from “certain” to “probable.” The court said that on the basis of the evidence, it did not find that it was more probable than not that the Claimant was abused by RD, or by LB.
In relation to causation, there was a difference of opinion in relation to the rejection of the Claimant by her mother. Dr Baggaley gave this less weight than Professor Maden. The court preferred the view of Professor Maden, particularly in light of the scant evidence of sexual abuse.
The court then considered the monitoring by social services of the Claimant. In the first two years of the Claimant’s life, the standard of social work was agreed to have been appropriate. There was a delay between August 1986 and November 1986 in appointing a social worker, but the court held that this was no negligent given that there was ongoing contact with social services.
In April 1987, the mother alleged that the Claimant had told her that RD had put his penis in her vagina and anus. However the Claimant when interviewed denied this and a medical examination showed no signs of any sexual abuse. RD disappeared and the police were unable to trace him. The court found that no sexual abuse occurred at this time. There was a difference of opinion between Mrs Ruegger (who said that there should have been further investigation) and Professor Payne who did not agree.
Following a case conference in March 1988, MF (another daughter of the Claimant’s mother who had joined the household in August 1987) the situation within the family deteriorated. In June 1988, MF hit the Claimant around the face causing a cut to her lip and a bruise over her left eyebrow. This was properly investigated and some concerns registered about the mother and MF. In August 1988, the Claimant was admitted to hospital having drunk from a bottle of antibiotic medication. The Claimant and her mother started to attend the Amersham Family Centre in September 1988. Finally in December the Claimant was taken into care on a voluntary basis for a limited period. First of all she was placed with Mr and Mrs S, and then in January 1989 she was placed with Ms. DB a foster carer who was black. Both experts agreed that this transfer was based on political correctness and did not consider the Claimant’s needs. In March 1989, The Claimant alleged abuse by a son of her foster carer, LB. This was investigated but denied by Ms. DB and her son. Mrs Ruegger said that a full child protection investigation should have been instigated. The Claimant and LB should have been interviewed alone and together and a case conference held. Professor Payne disagreed. Further allegations were made by the Claimant later, but the court found that there was no sexual abuse.
In May 1989, the Claimant was to return to her mother, but in July 1989 she was removed after an allegation of sexual abuse by a man called Steve. She was medically examined but no evidence of sexual abuse was found. The court found that no sexual abuse occurred.
From July 1989 to August 1990, the Claimant was fostered by Ms. B. Then Mrs E was identified as a prospective adopter in June 1990. She was approved by the adoption panel in July 1990. In 1992 the Claimant disclosed to Mrs E that she had been sexually abused by LB throughout the time that she was fostered by her mother. Both B and LB denied any sexual abuse and the court found that as a fact, it did not occur.
Negligence
The court referred to the case of Pierce v Doncaster Metropolitan Borough Council [2008] EWCA Civ 1416 which dealt with the standard of care on the part of social workers.
The theoretical possibility that a local authority might owe a direct duty, over and above its vicarious liability for the professionals it employed, was acknowledged in Phelps v Hillingdon LBC sub nom Re G (A Child) [2001] 2 AC 619. When the court had considered the issue as a matter of practice, so such separate duty had been found to exist (B v Reading BC and Others [2008] 1 FLR 797). The court found that it did not exist in this case.
The standard of care was that determined by the case of Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. However the court has to consider the context in which the particular professional was operating. That was made plain by Barrett v Enfield London Borough Council [1993] All ER 193 by Lord Hutton. The field of social care work was difficult. Some guidance had been provided on the standard of care expected of teacher in the case of Phelps. The court made the following points:-
Knowledge of sexual abuse of young children now could not be read back to 1984 to 1990. The court referred to Jackson and Powell – Professional Liability.
At worst this was a case of professionals who made the wrong decision in difficult circumstances. In Re KD (a minor) [1988] 1 All ER 477 the House of Lords indicated that a child should normally be with the natural family. Looking at all the circumstances and the allegations of negligence, the claim was not made out.
It was very easy to identify points of particular dates in this period when more could have been done or where a note appeared inadequate. That did not constitute negligence. Failures to make fully comprehensive notes or to reach a higher standard of social care work did not amount to a breach of duty.
Instead as in the case of Phelps, the Court should only find a breach of duty where a particular act or decision had a long term effect upon the Claimant or where a particular omission exposed the Claimant to a self-evident and obvious danger.
It was also said that because something was not noted, it was not done. However the Defendant should not be liable because more could have been recorded in the running records, or because notes were not now available due to the delay in bringing proceedings. The same rationale applied to the gaps in the witnesses’ memories.
The Abuse
Dr Baggaley had not investigated whether abuse had occurred. Professor Maden was unable to specify what abuse had occurred although he believed that some abuse had taken place. However there were inconsistencies in the Claimant’s evidence. The court found that none of the abuse by RD, LB and “Steve” occurred.
Liability
From birth to August 1986, it was agreed by the experts that there was no negligence in this period.
From August to November 1986, the court found that there was no evidence to support the factual finding that if a social worker had been appointed and visiting the home, he or she would have been able to identify abuse.
Other criticisms of social services were also dismissed. When allegations had been made, they had been properly investigated. There was no negligence in relation to rehabilitation.
The decision to move the Claimant to Ms. B was reasonable, and even if it was negligent it caused no damage. In relation to any abuse by LB, the social workers could not have foreseen that they were placing the Claimant at risk of sexual abuse.
In relation to the placement with Mrs E, she had not excluded the placement of a child who had suffered sexual abuse although she could have. Although she had stated this in a letter of complaint, she had not been called to give evidence. Whilst a local authority did owe a prospective adoptive parent a duty to provide that which it agreed to disclose, it did not owe a wider duty of disclosure (A v Essex County Council [2004] 1 WLR 1881). However even if Mrs E had refused to accept the Claimant, it was speculative to assume that an alternative or better placement could be found.
The court also referred to a report named the “Bridge Report”. This document contained errors and it contained an apology given to the Claimant and Mrs E. However at the time, the most important thing was to support the Claimant, which was done. Admissions of fault in that context could not be relied upon as admission to the negligence which the Claimant now alleged. The same applied to comments made by the family court, which was based on different evidence and made when determining different issues.
The claim would be dismissed.
FACTS:-
The Claimant was born in May 1984 in the London Borough of Lewisham. Her natural mother was PF, and from birth there were concerns about the mother’s ability to care for her daughter. There was monitoring by social services and in 1986, the Claimant was placed on the child abuse register. In 1988 she was taken into care on a temporary basis and placed with foster parents, Mr and Mrs and Mrs B. She was then returned in 1989. It was agreed that if, after two months, the mother could not care for the Claimant, she would then be placed for adoption. The mother then agreed to have her daughter adopted. In 1990, she disclosed to her prospective adoptive mother, Mrs E that she had been sexually abused by RD, a friend and neighbour and in 1992 she disclosed by LB, her foster mother’s Mrs B’s son. Although Mrs E refused to adopt the Claimant, she continued to foster her and treated her as a daughter. The placement was a happy one.
The Claimant alleged professional negligence against the Defendant. Her allegations were as follows:-
- Failed to recognise that RD and LB were sexually abusing her
- Failed to appreciate the mother’s failing as a mother
- Sought to rehabilitate the Claimant with her mother when they knew that this was likely to fail
- Failed to disclose the history of sexual abuse to Mrs E prior to adoption, which caused Mrs E to decide not to adopt the Claimant
The court went over the material facts. Concerns had been expressed by social services when the Claimant was first born. RD was found to be playing a major role in her care, and he had a minor conviction which was not of concern. Support was provided and monitoring continued.
HELD:-
The court went over the evidence of the lay witnesses, and the social work expert evidence. The Claimant had instructed Maria Ruegger and the Defendant, Professor Christopher Payne. There was a conflict between the two experts insofar as Ms Ruegger said that the social workers had been negligent and Professor Payne disagreed. The court said that whilst both experts had an impressive record of research and publication in the field of child social work, it would prefer the evidence of Professor Payne for the following reasons:-
- Professor Payne’s report was more moderate in tone and less concerned with making a case for his client. Mrs Ruegger’s report was somewhat didactic and partial in tone.
- Professor Payne gave his evidence on a somewhat more careful examination of the social services records, and had a greater unwillingness than Mrs Ruegger to speculate or impose his own views on the raw materials.
In relation to the medical expert evidence, the Claimant instructed Dr Martin Baggaley and the Defendant, Professor Anthony Maden. These experts agreed on the diagnosis and severity of the Claimant’s psychological condition and its cause.
Dr Baggaley had said that the evidence was consistent with sexual abuse occurring. Professor Maden had said in his examination in chief that he had moved from “certain” to “probable.” The court said that on the basis of the evidence, it did not find that it was more probable than not that the Claimant was abused by RD, or by LB.
In relation to causation, there was a difference of opinion in relation to the rejection of the Claimant by her mother. Dr Baggaley gave this less weight than Professor Maden. The court preferred the view of Professor Maden, particularly in light of the scant evidence of sexual abuse.
The court then considered the monitoring by social services of the Claimant. In the first two years of the Claimant’s life, the standard of social work was agreed to have been appropriate. There was a delay between August 1986 and November 1986 in appointing a social worker, but the court held that this was no negligent given that there was ongoing contact with social services.
In April 1987, the mother alleged that the Claimant had told her that RD had put his penis in her vagina and anus. However the Claimant when interviewed denied this and a medical examination showed no signs of any sexual abuse. RD disappeared and the police were unable to trace him. The court found that no sexual abuse occurred at this time. There was a difference of opinion between Mrs Ruegger (who said that there should have been further investigation) and Professor Payne who did not agree.
Following a case conference in March 1988, MF (another daughter of the Claimant’s mother who had joined the household in August 1987) the situation within the family deteriorated. In June 1988, MF hit the Claimant around the face causing a cut to her lip and a bruise over her left eyebrow. This was properly investigated and some concerns registered about the mother and MF. In August 1988, the Claimant was admitted to hospital having drunk from a bottle of antibiotic medication. The Claimant and her mother started to attend the Amersham Family Centre in September 1988. Finally in December the Claimant was taken into care on a voluntary basis for a limited period. First of all she was placed with Mr and Mrs S, and then in January 1989 she was placed with Ms. DB a foster carer who was black. Both experts agreed that this transfer was based on political correctness and did not consider the Claimant’s needs. In March 1989, The Claimant alleged abuse by a son of her foster carer, LB. This was investigated but denied by Ms. DB and her son. Mrs Ruegger said that a full child protection investigation should have been instigated. The Claimant and LB should have been interviewed alone and together and a case conference held. Professor Payne disagreed. Further allegations were made by the Claimant later, but the court found that there was no sexual abuse.
In May 1989, the Claimant was to return to her mother, but in July 1989 she was removed after an allegation of sexual abuse by a man called Steve. She was medically examined but no evidence of sexual abuse was found. The court found that no sexual abuse occurred.
From July 1989 to August 1990, the Claimant was fostered by Ms. B. Then Mrs E was identified as a prospective adopter in June 1990. She was approved by the adoption panel in July 1990. In 1992 the Claimant disclosed to Mrs E that she had been sexually abused by LB throughout the time that she was fostered by her mother. Both B and LB denied any sexual abuse and the court found that as a fact, it did not occur.
Negligence
The court referred to the case of Pierce v Doncaster Metropolitan Borough Council [2008] EWCA Civ 1416 which dealt with the standard of care on the part of social workers.
The theoretical possibility that a local authority might owe a direct duty, over and above its vicarious liability for the professionals it employed, was acknowledged in Phelps v Hillingdon LBC sub nom Re G (A Child) [2001] 2 AC 619. When the court had considered the issue as a matter of practice, so such separate duty had been found to exist (B v Reading BC and Others [2008] 1 FLR 797). The court found that it did not exist in this case.
The standard of care was that determined by the case of Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. However the court has to consider the context in which the particular professional was operating. That was made plain by Barrett v Enfield London Borough Council [1993] All ER 193 by Lord Hutton. The field of social care work was difficult. Some guidance had been provided on the standard of care expected of teacher in the case of Phelps. The court made the following points:-
- It was not enough to show instances of bad social work. For negligence to be established there had to be manifest incompetence or a specific action of decision that was clearly wrong.
- Problems, which are disclosed later on, may not have been apparent at the time.
- In making a decision to apply for a child to be placed into care, the social worker has to balance competing interests and different possible future outcomes
- To obtain the necessary care order, the authority had to fulfil the statutory criteria
- Social workers operated with finite resources
- That social workers failed to prevent abuse was not proof of negligence. They did not operate with the benefit of hindsight.
Knowledge of sexual abuse of young children now could not be read back to 1984 to 1990. The court referred to Jackson and Powell – Professional Liability.
At worst this was a case of professionals who made the wrong decision in difficult circumstances. In Re KD (a minor) [1988] 1 All ER 477 the House of Lords indicated that a child should normally be with the natural family. Looking at all the circumstances and the allegations of negligence, the claim was not made out.
It was very easy to identify points of particular dates in this period when more could have been done or where a note appeared inadequate. That did not constitute negligence. Failures to make fully comprehensive notes or to reach a higher standard of social care work did not amount to a breach of duty.
Instead as in the case of Phelps, the Court should only find a breach of duty where a particular act or decision had a long term effect upon the Claimant or where a particular omission exposed the Claimant to a self-evident and obvious danger.
It was also said that because something was not noted, it was not done. However the Defendant should not be liable because more could have been recorded in the running records, or because notes were not now available due to the delay in bringing proceedings. The same rationale applied to the gaps in the witnesses’ memories.
The Abuse
Dr Baggaley had not investigated whether abuse had occurred. Professor Maden was unable to specify what abuse had occurred although he believed that some abuse had taken place. However there were inconsistencies in the Claimant’s evidence. The court found that none of the abuse by RD, LB and “Steve” occurred.
Liability
From birth to August 1986, it was agreed by the experts that there was no negligence in this period.
From August to November 1986, the court found that there was no evidence to support the factual finding that if a social worker had been appointed and visiting the home, he or she would have been able to identify abuse.
Other criticisms of social services were also dismissed. When allegations had been made, they had been properly investigated. There was no negligence in relation to rehabilitation.
The decision to move the Claimant to Ms. B was reasonable, and even if it was negligent it caused no damage. In relation to any abuse by LB, the social workers could not have foreseen that they were placing the Claimant at risk of sexual abuse.
In relation to the placement with Mrs E, she had not excluded the placement of a child who had suffered sexual abuse although she could have. Although she had stated this in a letter of complaint, she had not been called to give evidence. Whilst a local authority did owe a prospective adoptive parent a duty to provide that which it agreed to disclose, it did not owe a wider duty of disclosure (A v Essex County Council [2004] 1 WLR 1881). However even if Mrs E had refused to accept the Claimant, it was speculative to assume that an alternative or better placement could be found.
The court also referred to a report named the “Bridge Report”. This document contained errors and it contained an apology given to the Claimant and Mrs E. However at the time, the most important thing was to support the Claimant, which was done. Admissions of fault in that context could not be relied upon as admission to the negligence which the Claimant now alleged. The same applied to comments made by the family court, which was based on different evidence and made when determining different issues.
The claim would be dismissed.