W 1 – 6 V ESSEX COUNTY COUNCIL AND ANOTHER [1998] EWCA Civ 614
FACTS:-
The Claimants, W1 and W2 were the parents of the Claimants W3 to W6, the children being one boy and three girls. All of the Claimants claimed damages for personal injury caused by the negligence of the Defendant council and a social worker employed by the council. The parents had been approved a specialist adolescent foster carers by the council but they expressly told the council that they were not willing to accept any child who was known or suspected of being a sexual abuser. This was because they had young children. The Council gave them oral assurances to that effect.
However the council through the social worker placed with the parents a 15 year old boy, G who had admitted an indecent assault on his own sister and who was being investigated for an alleged rape. It was alleged that the Second Defendant actually lied to the parents about this boy’s history. The boy then committed serious acts of physical and sexual abuse against the children. During that time, G made allegations that the two youngest children had been abused to another social worker but that social worker failed to disclose the information, with the result that G remained with the family and continued to abuse the children.
It was alleged that because of the abuse both parents and children suffered injury. The parents in particular were unable to carry on as foster parents, their marriage was placed under stress and they separated. The functioning of the family deteriorated markedly.
The facts gave rise to the following causes of action:-
The trial judge struck out the claims by the parents but not the children. The claims in contract and misfeasance in public office were struck out. The parents’ claims in negligence were also struck out on the ground that they were secondary victims and could not arguably show that their illness was the result of the sudden appreciation of the event (Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310). The trial judge refused to strike out the children’s claims in negligence and held that it was arguable that a social worker placing a child with foster parents was under a duty of care to provide the foster parents with the correct information, also that the Second Defendant, the social worker was in breach of that duty and that the Council was vicariously liable. In relation to the claim based on negligent misstatement, this was arguable against the Second Defendant and the Council was again vicariously liable.
The Claimants and Defendants appealed.
HELD:-
Lord Justice Stuart-Smith said since this was a striking out application, the Court had to proceed on the basis that the allegations in the Statement of Claim were true.
Stuart-Smith LJ went over the statutory framework, which he listed as follows:-
Central to the local authority’s duty was the duty to safeguard and protect the welfare of the child taken into care. In relation to foster carers, the local authority had a duty not to place a child unless the foster carer entered into a written agreement relating to that particular child covering the matters specified in Schedule 3 of the Foster Placement (Children) Regulations. This was intended to serve as confirmation of what was expected from the foster carer and the authority and what had been agreed. The agreement also had to contain a statement of the information which the local authority considered necessary to enable the foster carer to care for the child. Where there was a special reason for withholding significant information, the reason should be recorded on the case record.
Stuart-Smith LJ considered the pleaded claim and the issue of whether there was a duty of care. Any consideration of this question had to begin with an examination of the speech of Lord Browne-Wilkinson in X v Bedfordshire [1995] 2 AC 633 who had said that a common law duty of care might arise in the performance of statutory functions. However a broad distinction had to be drawn between (a) cases in which it was alleged that the authority owed a duty of care in the manner in which it exercised a statutory discretion (b) cases in which a duty of care was alleged to arise from the manner in which the statutory duty had been implemented in practice. A local authority could not be liable in damage for doing that which Parliament had authorised. Therefore if the decisions complained of, fell within the ambit of such statutory discretion, they could not be actionable in common law unless the decision complained of was so unreasonable that it fell outside the ambit of the discretion conferred upon the local authority.
It had been conceded by the Defendants’ counsel that the decisions taken in this case fell outside the ambit of the discretion.
If that was the case, then the court had to apply the three stage approach, applying the usual principles enunciated in Caparo v Dickman [1990] 2 AC 605.
Lord Browne-Wilkinson had said in X v Bedfordshire that the question of whether there was a common law duty was profoundly influenced by the statutory framework within which those acts complained of were done.
The Defendants’ counsel had conceded for the purposes of a strike out application that it was arguable that the damage to the children was reasonably foreseeable and there was sufficient proximity. The issue was whether it was just and reasonable to impose a duty on the Council and the social worker. Lord Browne-Wilkinson had said in X v Bedfordshire that it was not just and reasonable to superimpose a common law duty of care.
Stuart-Smith LJ said that whilst there were differences between the facts in X v Bedfordshire and this case, it was unlikely that Lord Browne-Wilkinson had overlooked fostering cases.
The authorities subsequent to X v Bedfordshire
Stuart-Smith LJ referred to three other cases. The first was H v Norfolk County Council [1997] 1 FLR 384 where the Claimant had been taken into care at the age of 4 and alleged abuse by foster parents. His case was struck out at first instance on the basis of decision in X v Bedfordshire and he was refused permission to appeal.
In Barrett v Enfield LBC [1999] 3 WLR 79 the Claimant had been in the care of the local authority between the ages of 10 months and 18 years. He had been moved nine times and alleged that he had developed mental illness as a result. The case was struck out and the Court of Appeal approved that decision, following H v Norfolk.
The third case was Lambert and others v Dyer and South Glamorgan CC (unreported transcript 11th June 1997) where the Defendant council had placed the First Defendant with the Claimants. The First Defendant had a history of making false allegations and then harassed the Claimants by making false allegations of sexual abuse and breaking into their home. The Claimants suffered psychiatric illness as a result. The claim was struck out at first instance by Toulson J, who had said in his judgment that these circumstances might give rise to a limited duty of care, but he pointed out that there was a compensation scheme in place in the form of the Criminal Injuries Compensation Board and the Local Authority Ombudsman. Nevertheless there was no duty of care towards the foster parents.
Stuart-Smith LJ said that in his view, the case of Lambert was on all fours with the present case.
Conclusion on the negligence claims
The Claimants’ counsel had tried to argue that the giving of advice should be distinguished from the decision of the Council to place G with the Claimants. Stuart-Smith LJ said that in his judgment, it was not permissible to hive off some discreet part of the activities of the Council and the social worker and impose a duty of care in such circumstances. There was either a duty of care or there was not.
It had been argued that the cause of action could be sustained simply on the alleged misstatement by the Second Defendant as to whether G was a sex-abuser, independently of any other duty of care. Stuart-Smith LJ could not accept that this was one of those cases referred to in Henderson v Merrett Syndicates Limited [1995] 2 AC 145 which were cases involving economic loss.
It was also argued by the Claimant’s counsel that the decisions taken by the Council in this case were operational in nature, and reliance was placed on dicta of Lord Woolf MR in Barrett who said that social workers and other members of staff could be negligent in an operational manner.
Stuart-Smith LJ said that he did not consider the imparting of advice or information to foster parents fell within these exceptions. It seemed to be intimately and inextricably part of the carrying out of the statutory powers and duties in relation to the placement in care.
He then turned to the considerations put forward by Lord Browne-Wilkinson in X v Bedfordshire which persuaded him that it was not just and reasonable to impose a duty of care on local authority or social workers in child abuse cases. These included the extraordinarily and difficult delicate tasks faced by the local authority and its servants. Finally there was the question of an alternative remedy. In the present case Stuart-Smith LJ was satisfied that the children’s injuries were compensatable under the Criminal Injuries Compensation Scheme. Since the source of compensation was in any event, public funds, he did not see any merit in making the local authority liable.
The claim in contract
The foster parents had signed a written document entitled “Specialist Foster Care Agreement Supplementary to Form DSS 91 and the Code of Practice”. It was alleged by the Claimants that this was a legally binding contract between the parents and the Council. However the Code of Practice stated that it was not legally binding or enforceable in law.
Paragraph 6.4 of the Code of Practice provided that the social worker would ensure that the foster carers would be fully informed about the child’s background. The Claimants alleged that this paragraph constituted an express term of the contract, or alternatively there was an implied term of the contract that the Defendants would inform the Claimants of any knowledge or suspicion of the child being a sexual abuser. The trial judge had held that the Code of Practice was not intended to be legally enforceable but that the Specialist Foster Carer Agreement was. However the alleged term was not to be implied.
Stuart-Smith LJ said that although the Specialist Foster Carer Agreement had a number of features which one would expect to find in a contract, he did not accept that this made the agreement a contract in the circumstances of this case. A contract was essentially an agreement that was freely entered into on terms that were freely negotiated. If there was a statutory obligation to enter into a form of agreement, there was no contract. (Norweb v Dixon [1995] 1 WLR 636)
In S v Walsall Metropolitan Borough Council [1985] 3 All ER 294, the question was whether the foster parents of the Defendant Council who had placed the child in care, was one of master and servant. The Court of Appeal reviewed the statutory provisions which were similar to those relevant in this case, and said that the relationship between the child and the local authority, and indeed between the child and the foster parents, was one which was regulated simply and solely by the provisions of the statutory scheme.
Stuart-Smith LJ was doubtful as to whether it was right to consider the “Specialist Foster Carer Agreement” separately from the Code of Practice, which contained an express disclaimer.
Even if the Specialist Foster Carer Agreement was a contract, it was not necessary to imply the term pleaded by the Claimants. That term did not give business efficacy to the contract nor did it represent the obvious and unexpressed intention of both parties.
The same public policy reasons for granting immunity in tort applied equally in contact (Rondel v Worsley [1969] AC 191 and Saif Ali v Sidney Mitchell [1980] AC 198).
Finally even if there was an implied term, it would not help the parties. As far as the parents were concerned, Stuart-Smith did not consider that the psychiatric shock that they suffered would have been within the reasonable contemplation of the parties. So far as the children were concern there should be no privity of contract to enable them to sue.
Misfeasance in public office
Stuart-Smith LJ said that the tort of misfeasance in public office could be committed in one of two ways:-
The relevant cases were Three Rivers DC v Bank of England [1996] 3 All ER 558 approved in R v Chief Constable of North Wales Police Force ex parte AB [1997] 3 WLR 724.
It was accepted by the Claimant’s counsel that the first limb was not applicable. Stuart-Smith LJ said that the Second Defendant, the social worker was acting pursuant to the statutory powers conferred upon the Council. The fact that whilst doing so, he carelessly or even deliberately gave misleading information did not mean that he was knowingly exceeding his powers.
The parents’ claim for psychiatric illness
This claim had been struck out at first instance, because the parents were secondary victims. Stuart-Smith said that in the absence of a duty of care it was not strictly necessary to deal with this point, but he agreed with the trial judge. Even if the risk of psychiatric illness was reasonably foreseeable, the law provided no damages if the psychiatric injury was not caused by shock. The shock had to be sustained through the medium of the eye or ear without direct contact. Shock in this context involved the sudden appreciation by sight or sound of a horrifying event which violently agitated the mind. It did not include psychiatric illness caused by the accumulation over a period of time of more gradual attacks of the nervous system.
Therefore the Statement of Claim (as amended) would be struck out and the parents and children’s claims dismissed.
Lord Justice Judge agreed that the claims in contract, misfeasance in public office and the claims by the parents should be struck out. However he disagreed that the claims in negligence by the children should also be struck out.
There was no doubt that the local authority had introduced a potential menace to the Claimants’ home, against express assurances to the contrary. The House of Lords in M (A Minor) and Another v Newham LBC [1995] 2 AC 633 had already decided that the negligent performance of these statutory obligations did not give rise to a private law cause of action, first, to an erroneous, potentially damaging decision to remove a child from the home of her mother and second, the wrongful failure of the local authority, despite warnings over several years, to place children on the child protection register (X v Bedfordshire).
That prohibition was extended in H v Norfolk County Council to a claim made by a child placed in foster care and abused by the foster father. That decision was approved in Barrett v Enfield LBC [1997] 3 All ER 171 where the Claimant complained of a childhood living with unsuitable foster parents and inappropriate community home.
The starting point was the principle that some decisions apparently falling within the purported ambit of a statutory discretion were so unreasonable that on analysis they fell outside it. That principle was described by Lord Reid in the case of Dorset Yacht Co. Limited v Home Office [1970] AC 1004 and referred to by Lord Browne-Wilkinson in his judgment in X v Bedfordshire. Lord Jauncey also giving judgment in X v Bedfordshire said an action would lie at common law, where there was careless performance of a statutory power, provided that the requirements in Caparo v Dickman were satisfied.
The significant feature of X v Bedfordshire was that the decision to strike out the actions by the children depended on the conclusion that even where the decisions could be said to have fallen outside the ambit of the statutory discretion, it was not just and reasonable to superimpose a common law duty of care.
The Defendants’ counsel conceded that it was arguable that the decision to place G with the Claimants was so wholly unreasonable as to fall outside the proper ambit of the statutory discretion exercised by the Defendants. In addition, it was undisputed that the damage was foreseeable and the relationship between Claimants and Defendants was sufficient proximate.
The critical issue was the policy considerations that led to the decision in X v Bedfordshire. Lord Browne-Wilkinson had spoken about the way in which the childcare system depended on inter-disciplinary co-operation. The question here was whether this particular placement would affect the family already living in the foster home. That question presupposed that the multi-disciplinary process had been completed and resolved by a decision to make the placement.
There was no evidence that the burden on local authorities might increase. The Guidance for foster parents emphasised the importance of giving the foster parents information about the child, unless there was a special reason not to do so. Some foster parents might be reluctant to accept a placement carrying the greatest risk, but there was no evidence that this would follow.
In X v Bedfordshire reference was made to the Local Authority’s ombudsman’s scheme and the Criminal Injuries Compensation Board. Set in the balance against that consideration, was that if foster parents knew that local authorities could deliberately elect to keep them ignorant of crucial facts, then they might be discouraged from coming forward.
Judge LJ said that it was at least arguable that the policy considerations in X v Bedfordshire did not apply when the children whose safety was under consideration, were those in respect of whom it was not performing any statutory duty at all.
The problem with public policy decisions was that they could create anomalies in the law. In Lambert and Others v South Glamorgan County Council the judge, Toulson J had commented that it would be bizarre if a Council’s decision to put a child in an allegedly inappropriate placement could give rise to no action by the child, from whose benefit the statute was primarily intended but could give rise to such an action by a third party.
Judge LJ then turned to the assurances sought and given to the Claimant that no sexual abuser would be placed in their home. He looked at the dicta of Lord Nicholls in the case of Stovin v Wise [1996] AC 923 who said that there had to be some special circumstance, beyond the mere existence of the power to undertake a statutory function, rendering it fair and reasonable for the authority to be subject to a concurrent common law duty. At the same time, Judge LJ said that phrases such as “foreseeability”, “proximity”, “neighbourhood”, “just and reasonable”, “fairness” were not precise definitions.
Judge LJ said that in his view, the question of whether it would be just and reasonable to impose a duty on the local authority could not properly be decided without reference to the assurances. He referred to the case of Elguzouli Daf v Commissioner of Police of the Metropolis [1995] QB 335. This was a case involving the duty of care of the police towards an informant. Whilst the connection between a police informer and this case was not immediately apparently, it was not dissimilar. The local authority assumed responsibility for the accuracy of its positive assurances to the parents about G, and the parents relied upon these assurances.
In relation to the negligent misstatement, prima facie this claim should fall within Hedley Byrne & Co. Ltd v Heller & Partners Ltd [1964] AC 465. The advice tendered by the local authority was precisely reflected in the way in which the parents acted. Hedley Byrne was concerned with economic loss, but there was authority to show that damages for physical injury could be recovered (Clay v Crump [1964] 1 QB 534).
Therefore Judge LJ would allow the claim by the children but not the parents.
Mantell LJ said that he would dismiss the appeals of the foster parents and their children for the reasons given by Stuart-Smith LJ. However he would also dismiss the cross appeal by the local authority and refuse to strike out the children’s claims.
Mantell LJ referred to the dicta of Lord Jauncey in X v Bedfordshire. Lord Jauncey had said that where a statute authorised something to be done, which would necessarily cause injury to someone, no action would lie if the act was performed with reasonable care. If on the other hand, the authorised act was performed carelessly, a common law action would lie. That was subject to the Caparo v Dickman test. Careless performance of an authorised act, rather than amounting to breach of a new duty, simply removed a defence to a common law right of action. The defence that the statute provided only extended to careful performance of the act done under the statute.
Lord Browne Wilkinson had put the law somewhat differently. He said that nothing that the authority did within the ambit of the statutory discretion could be actionable at common law. If the decision fell outside the statutory discretion, it could give rise to a common law liability. However if the factors relevant to the exercise of the discretion included matters of policy, the court could not adjudicate on such policy matters and therefore could not reach the conclusion that the decision was outside the ambit of the statutory discretion. Therefore a common law duty of care in relation to the taking of decision involving policy matters could not exist.
Mantell LJ said that in his judgment, the immunity does not necessarily extend either to (a) where a discretion had been exercised or a decision taken which did not involve policy matters, or (b) in the words of Lord Browne-Wilkinson, cases in which a duty of care was alleged to arise from the manner in which the statutory duty had been implemented in practice, or there had been careless performance of an authorised act.
It was true in Stovin v Wise that Lord Hoffman was unenthusiastic about the distinction made between policy and operations, and similar doubts were expressed by Lord Keith in Rolling v Takaro Properties Ltd [1988] AC 473. In Anns v Merton London Borough Council [1978] AC 728 Lord Wilberforce had said that the operational classification was too simplistic.
What had to be looked at in any particular case was whether the threefold test in Caparo v Dickman was satisfied. There was no support for the proposition that local authorities were immune from suit whatever the nature and quality of the acts of omissions of its servants or agents. The first two limbs of the test in Caparo were satisfied. In relation to the third limb, regard should be had to the nature and quality of the act and/or omission, the relevant statutory framework and the extent to which, if at all, the considerations of pubic policy enumerated by Lord Browne-Wilkinson in X v Bedfordshire were distinguishable on the facts.
Accordingly the decision of the judge to let the children’s claims proceed on the issue of negligence would be upheld.
FACTS:-
The Claimants, W1 and W2 were the parents of the Claimants W3 to W6, the children being one boy and three girls. All of the Claimants claimed damages for personal injury caused by the negligence of the Defendant council and a social worker employed by the council. The parents had been approved a specialist adolescent foster carers by the council but they expressly told the council that they were not willing to accept any child who was known or suspected of being a sexual abuser. This was because they had young children. The Council gave them oral assurances to that effect.
However the council through the social worker placed with the parents a 15 year old boy, G who had admitted an indecent assault on his own sister and who was being investigated for an alleged rape. It was alleged that the Second Defendant actually lied to the parents about this boy’s history. The boy then committed serious acts of physical and sexual abuse against the children. During that time, G made allegations that the two youngest children had been abused to another social worker but that social worker failed to disclose the information, with the result that G remained with the family and continued to abuse the children.
It was alleged that because of the abuse both parents and children suffered injury. The parents in particular were unable to carry on as foster parents, their marriage was placed under stress and they separated. The functioning of the family deteriorated markedly.
The facts gave rise to the following causes of action:-
- In negligence against both Defendants. The local authority was in breach of a duty of care to the Claimants and they were also liable under the principle in Hedley Byrne Ltd v Heller & Partners for negligent misstatement. The local authority was also alleged to be vicariously liable for the Second Defendant’s torts.
- The Council were alleged to be in breach of an express and/or implied term of the contract of fostering.
- The Second Defendant was alleged to be liable for the tort of misfeasance in public office, and the council vicariously liable for that tort.
- There was a claim in deceit, but this was abandoned by the Claimants.
The trial judge struck out the claims by the parents but not the children. The claims in contract and misfeasance in public office were struck out. The parents’ claims in negligence were also struck out on the ground that they were secondary victims and could not arguably show that their illness was the result of the sudden appreciation of the event (Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310). The trial judge refused to strike out the children’s claims in negligence and held that it was arguable that a social worker placing a child with foster parents was under a duty of care to provide the foster parents with the correct information, also that the Second Defendant, the social worker was in breach of that duty and that the Council was vicariously liable. In relation to the claim based on negligent misstatement, this was arguable against the Second Defendant and the Council was again vicariously liable.
The Claimants and Defendants appealed.
HELD:-
Lord Justice Stuart-Smith said since this was a striking out application, the Court had to proceed on the basis that the allegations in the Statement of Claim were true.
Stuart-Smith LJ went over the statutory framework, which he listed as follows:-
- The Children Act 1989
- The Foster Placement (Children) Regulations 1991
- The Arrangement for Placement of Children (General) Regulations 1991
- The Children Act 1989 Guidance Volume 3 (which had statutory force and was issued by the Secretary of State pursuant to the Local Authority Social Services Act 1970 s.7.
Central to the local authority’s duty was the duty to safeguard and protect the welfare of the child taken into care. In relation to foster carers, the local authority had a duty not to place a child unless the foster carer entered into a written agreement relating to that particular child covering the matters specified in Schedule 3 of the Foster Placement (Children) Regulations. This was intended to serve as confirmation of what was expected from the foster carer and the authority and what had been agreed. The agreement also had to contain a statement of the information which the local authority considered necessary to enable the foster carer to care for the child. Where there was a special reason for withholding significant information, the reason should be recorded on the case record.
Stuart-Smith LJ considered the pleaded claim and the issue of whether there was a duty of care. Any consideration of this question had to begin with an examination of the speech of Lord Browne-Wilkinson in X v Bedfordshire [1995] 2 AC 633 who had said that a common law duty of care might arise in the performance of statutory functions. However a broad distinction had to be drawn between (a) cases in which it was alleged that the authority owed a duty of care in the manner in which it exercised a statutory discretion (b) cases in which a duty of care was alleged to arise from the manner in which the statutory duty had been implemented in practice. A local authority could not be liable in damage for doing that which Parliament had authorised. Therefore if the decisions complained of, fell within the ambit of such statutory discretion, they could not be actionable in common law unless the decision complained of was so unreasonable that it fell outside the ambit of the discretion conferred upon the local authority.
It had been conceded by the Defendants’ counsel that the decisions taken in this case fell outside the ambit of the discretion.
If that was the case, then the court had to apply the three stage approach, applying the usual principles enunciated in Caparo v Dickman [1990] 2 AC 605.
- Was the damage to the Claimants reasonably foreseeable?
- Was the relationship between the Claimant and the Defendant sufficiently proximate?
- Was it just and reasonable to impose a duty of care?
Lord Browne-Wilkinson had said in X v Bedfordshire that the question of whether there was a common law duty was profoundly influenced by the statutory framework within which those acts complained of were done.
The Defendants’ counsel had conceded for the purposes of a strike out application that it was arguable that the damage to the children was reasonably foreseeable and there was sufficient proximity. The issue was whether it was just and reasonable to impose a duty on the Council and the social worker. Lord Browne-Wilkinson had said in X v Bedfordshire that it was not just and reasonable to superimpose a common law duty of care.
Stuart-Smith LJ said that whilst there were differences between the facts in X v Bedfordshire and this case, it was unlikely that Lord Browne-Wilkinson had overlooked fostering cases.
The authorities subsequent to X v Bedfordshire
Stuart-Smith LJ referred to three other cases. The first was H v Norfolk County Council [1997] 1 FLR 384 where the Claimant had been taken into care at the age of 4 and alleged abuse by foster parents. His case was struck out at first instance on the basis of decision in X v Bedfordshire and he was refused permission to appeal.
In Barrett v Enfield LBC [1999] 3 WLR 79 the Claimant had been in the care of the local authority between the ages of 10 months and 18 years. He had been moved nine times and alleged that he had developed mental illness as a result. The case was struck out and the Court of Appeal approved that decision, following H v Norfolk.
The third case was Lambert and others v Dyer and South Glamorgan CC (unreported transcript 11th June 1997) where the Defendant council had placed the First Defendant with the Claimants. The First Defendant had a history of making false allegations and then harassed the Claimants by making false allegations of sexual abuse and breaking into their home. The Claimants suffered psychiatric illness as a result. The claim was struck out at first instance by Toulson J, who had said in his judgment that these circumstances might give rise to a limited duty of care, but he pointed out that there was a compensation scheme in place in the form of the Criminal Injuries Compensation Board and the Local Authority Ombudsman. Nevertheless there was no duty of care towards the foster parents.
Stuart-Smith LJ said that in his view, the case of Lambert was on all fours with the present case.
Conclusion on the negligence claims
The Claimants’ counsel had tried to argue that the giving of advice should be distinguished from the decision of the Council to place G with the Claimants. Stuart-Smith LJ said that in his judgment, it was not permissible to hive off some discreet part of the activities of the Council and the social worker and impose a duty of care in such circumstances. There was either a duty of care or there was not.
It had been argued that the cause of action could be sustained simply on the alleged misstatement by the Second Defendant as to whether G was a sex-abuser, independently of any other duty of care. Stuart-Smith LJ could not accept that this was one of those cases referred to in Henderson v Merrett Syndicates Limited [1995] 2 AC 145 which were cases involving economic loss.
It was also argued by the Claimant’s counsel that the decisions taken by the Council in this case were operational in nature, and reliance was placed on dicta of Lord Woolf MR in Barrett who said that social workers and other members of staff could be negligent in an operational manner.
Stuart-Smith LJ said that he did not consider the imparting of advice or information to foster parents fell within these exceptions. It seemed to be intimately and inextricably part of the carrying out of the statutory powers and duties in relation to the placement in care.
He then turned to the considerations put forward by Lord Browne-Wilkinson in X v Bedfordshire which persuaded him that it was not just and reasonable to impose a duty of care on local authority or social workers in child abuse cases. These included the extraordinarily and difficult delicate tasks faced by the local authority and its servants. Finally there was the question of an alternative remedy. In the present case Stuart-Smith LJ was satisfied that the children’s injuries were compensatable under the Criminal Injuries Compensation Scheme. Since the source of compensation was in any event, public funds, he did not see any merit in making the local authority liable.
The claim in contract
The foster parents had signed a written document entitled “Specialist Foster Care Agreement Supplementary to Form DSS 91 and the Code of Practice”. It was alleged by the Claimants that this was a legally binding contract between the parents and the Council. However the Code of Practice stated that it was not legally binding or enforceable in law.
Paragraph 6.4 of the Code of Practice provided that the social worker would ensure that the foster carers would be fully informed about the child’s background. The Claimants alleged that this paragraph constituted an express term of the contract, or alternatively there was an implied term of the contract that the Defendants would inform the Claimants of any knowledge or suspicion of the child being a sexual abuser. The trial judge had held that the Code of Practice was not intended to be legally enforceable but that the Specialist Foster Carer Agreement was. However the alleged term was not to be implied.
Stuart-Smith LJ said that although the Specialist Foster Carer Agreement had a number of features which one would expect to find in a contract, he did not accept that this made the agreement a contract in the circumstances of this case. A contract was essentially an agreement that was freely entered into on terms that were freely negotiated. If there was a statutory obligation to enter into a form of agreement, there was no contract. (Norweb v Dixon [1995] 1 WLR 636)
In S v Walsall Metropolitan Borough Council [1985] 3 All ER 294, the question was whether the foster parents of the Defendant Council who had placed the child in care, was one of master and servant. The Court of Appeal reviewed the statutory provisions which were similar to those relevant in this case, and said that the relationship between the child and the local authority, and indeed between the child and the foster parents, was one which was regulated simply and solely by the provisions of the statutory scheme.
Stuart-Smith LJ was doubtful as to whether it was right to consider the “Specialist Foster Carer Agreement” separately from the Code of Practice, which contained an express disclaimer.
Even if the Specialist Foster Carer Agreement was a contract, it was not necessary to imply the term pleaded by the Claimants. That term did not give business efficacy to the contract nor did it represent the obvious and unexpressed intention of both parties.
The same public policy reasons for granting immunity in tort applied equally in contact (Rondel v Worsley [1969] AC 191 and Saif Ali v Sidney Mitchell [1980] AC 198).
Finally even if there was an implied term, it would not help the parties. As far as the parents were concerned, Stuart-Smith did not consider that the psychiatric shock that they suffered would have been within the reasonable contemplation of the parties. So far as the children were concern there should be no privity of contract to enable them to sue.
Misfeasance in public office
Stuart-Smith LJ said that the tort of misfeasance in public office could be committed in one of two ways:-
- Where a public officer has performed or omitted to perform an action with the object of injuring the Claimant
- Where he has performed an act which he knew that he had no power to perform, and he knew would injure the Claimant.
The relevant cases were Three Rivers DC v Bank of England [1996] 3 All ER 558 approved in R v Chief Constable of North Wales Police Force ex parte AB [1997] 3 WLR 724.
It was accepted by the Claimant’s counsel that the first limb was not applicable. Stuart-Smith LJ said that the Second Defendant, the social worker was acting pursuant to the statutory powers conferred upon the Council. The fact that whilst doing so, he carelessly or even deliberately gave misleading information did not mean that he was knowingly exceeding his powers.
The parents’ claim for psychiatric illness
This claim had been struck out at first instance, because the parents were secondary victims. Stuart-Smith said that in the absence of a duty of care it was not strictly necessary to deal with this point, but he agreed with the trial judge. Even if the risk of psychiatric illness was reasonably foreseeable, the law provided no damages if the psychiatric injury was not caused by shock. The shock had to be sustained through the medium of the eye or ear without direct contact. Shock in this context involved the sudden appreciation by sight or sound of a horrifying event which violently agitated the mind. It did not include psychiatric illness caused by the accumulation over a period of time of more gradual attacks of the nervous system.
Therefore the Statement of Claim (as amended) would be struck out and the parents and children’s claims dismissed.
Lord Justice Judge agreed that the claims in contract, misfeasance in public office and the claims by the parents should be struck out. However he disagreed that the claims in negligence by the children should also be struck out.
There was no doubt that the local authority had introduced a potential menace to the Claimants’ home, against express assurances to the contrary. The House of Lords in M (A Minor) and Another v Newham LBC [1995] 2 AC 633 had already decided that the negligent performance of these statutory obligations did not give rise to a private law cause of action, first, to an erroneous, potentially damaging decision to remove a child from the home of her mother and second, the wrongful failure of the local authority, despite warnings over several years, to place children on the child protection register (X v Bedfordshire).
That prohibition was extended in H v Norfolk County Council to a claim made by a child placed in foster care and abused by the foster father. That decision was approved in Barrett v Enfield LBC [1997] 3 All ER 171 where the Claimant complained of a childhood living with unsuitable foster parents and inappropriate community home.
The starting point was the principle that some decisions apparently falling within the purported ambit of a statutory discretion were so unreasonable that on analysis they fell outside it. That principle was described by Lord Reid in the case of Dorset Yacht Co. Limited v Home Office [1970] AC 1004 and referred to by Lord Browne-Wilkinson in his judgment in X v Bedfordshire. Lord Jauncey also giving judgment in X v Bedfordshire said an action would lie at common law, where there was careless performance of a statutory power, provided that the requirements in Caparo v Dickman were satisfied.
The significant feature of X v Bedfordshire was that the decision to strike out the actions by the children depended on the conclusion that even where the decisions could be said to have fallen outside the ambit of the statutory discretion, it was not just and reasonable to superimpose a common law duty of care.
The Defendants’ counsel conceded that it was arguable that the decision to place G with the Claimants was so wholly unreasonable as to fall outside the proper ambit of the statutory discretion exercised by the Defendants. In addition, it was undisputed that the damage was foreseeable and the relationship between Claimants and Defendants was sufficient proximate.
The critical issue was the policy considerations that led to the decision in X v Bedfordshire. Lord Browne-Wilkinson had spoken about the way in which the childcare system depended on inter-disciplinary co-operation. The question here was whether this particular placement would affect the family already living in the foster home. That question presupposed that the multi-disciplinary process had been completed and resolved by a decision to make the placement.
There was no evidence that the burden on local authorities might increase. The Guidance for foster parents emphasised the importance of giving the foster parents information about the child, unless there was a special reason not to do so. Some foster parents might be reluctant to accept a placement carrying the greatest risk, but there was no evidence that this would follow.
In X v Bedfordshire reference was made to the Local Authority’s ombudsman’s scheme and the Criminal Injuries Compensation Board. Set in the balance against that consideration, was that if foster parents knew that local authorities could deliberately elect to keep them ignorant of crucial facts, then they might be discouraged from coming forward.
Judge LJ said that it was at least arguable that the policy considerations in X v Bedfordshire did not apply when the children whose safety was under consideration, were those in respect of whom it was not performing any statutory duty at all.
The problem with public policy decisions was that they could create anomalies in the law. In Lambert and Others v South Glamorgan County Council the judge, Toulson J had commented that it would be bizarre if a Council’s decision to put a child in an allegedly inappropriate placement could give rise to no action by the child, from whose benefit the statute was primarily intended but could give rise to such an action by a third party.
Judge LJ then turned to the assurances sought and given to the Claimant that no sexual abuser would be placed in their home. He looked at the dicta of Lord Nicholls in the case of Stovin v Wise [1996] AC 923 who said that there had to be some special circumstance, beyond the mere existence of the power to undertake a statutory function, rendering it fair and reasonable for the authority to be subject to a concurrent common law duty. At the same time, Judge LJ said that phrases such as “foreseeability”, “proximity”, “neighbourhood”, “just and reasonable”, “fairness” were not precise definitions.
Judge LJ said that in his view, the question of whether it would be just and reasonable to impose a duty on the local authority could not properly be decided without reference to the assurances. He referred to the case of Elguzouli Daf v Commissioner of Police of the Metropolis [1995] QB 335. This was a case involving the duty of care of the police towards an informant. Whilst the connection between a police informer and this case was not immediately apparently, it was not dissimilar. The local authority assumed responsibility for the accuracy of its positive assurances to the parents about G, and the parents relied upon these assurances.
In relation to the negligent misstatement, prima facie this claim should fall within Hedley Byrne & Co. Ltd v Heller & Partners Ltd [1964] AC 465. The advice tendered by the local authority was precisely reflected in the way in which the parents acted. Hedley Byrne was concerned with economic loss, but there was authority to show that damages for physical injury could be recovered (Clay v Crump [1964] 1 QB 534).
Therefore Judge LJ would allow the claim by the children but not the parents.
Mantell LJ said that he would dismiss the appeals of the foster parents and their children for the reasons given by Stuart-Smith LJ. However he would also dismiss the cross appeal by the local authority and refuse to strike out the children’s claims.
Mantell LJ referred to the dicta of Lord Jauncey in X v Bedfordshire. Lord Jauncey had said that where a statute authorised something to be done, which would necessarily cause injury to someone, no action would lie if the act was performed with reasonable care. If on the other hand, the authorised act was performed carelessly, a common law action would lie. That was subject to the Caparo v Dickman test. Careless performance of an authorised act, rather than amounting to breach of a new duty, simply removed a defence to a common law right of action. The defence that the statute provided only extended to careful performance of the act done under the statute.
Lord Browne Wilkinson had put the law somewhat differently. He said that nothing that the authority did within the ambit of the statutory discretion could be actionable at common law. If the decision fell outside the statutory discretion, it could give rise to a common law liability. However if the factors relevant to the exercise of the discretion included matters of policy, the court could not adjudicate on such policy matters and therefore could not reach the conclusion that the decision was outside the ambit of the statutory discretion. Therefore a common law duty of care in relation to the taking of decision involving policy matters could not exist.
Mantell LJ said that in his judgment, the immunity does not necessarily extend either to (a) where a discretion had been exercised or a decision taken which did not involve policy matters, or (b) in the words of Lord Browne-Wilkinson, cases in which a duty of care was alleged to arise from the manner in which the statutory duty had been implemented in practice, or there had been careless performance of an authorised act.
It was true in Stovin v Wise that Lord Hoffman was unenthusiastic about the distinction made between policy and operations, and similar doubts were expressed by Lord Keith in Rolling v Takaro Properties Ltd [1988] AC 473. In Anns v Merton London Borough Council [1978] AC 728 Lord Wilberforce had said that the operational classification was too simplistic.
What had to be looked at in any particular case was whether the threefold test in Caparo v Dickman was satisfied. There was no support for the proposition that local authorities were immune from suit whatever the nature and quality of the acts of omissions of its servants or agents. The first two limbs of the test in Caparo were satisfied. In relation to the third limb, regard should be had to the nature and quality of the act and/or omission, the relevant statutory framework and the extent to which, if at all, the considerations of pubic policy enumerated by Lord Browne-Wilkinson in X v Bedfordshire were distinguishable on the facts.
Accordingly the decision of the judge to let the children’s claims proceed on the issue of negligence would be upheld.