In this post we shall look at ‘private law’ remedies against public bodies, which contrast to judicial review which is a ‘public law’ remedy.
We shall examine the torts of misfeasance, breach of statutory duty and negligence.
Misfeasance in public office
‘Misfeasance in Public Office’ is a ‘tort’. A tort is a wrongful act or infringement of your rights that means you may be entitled to compensation for any harm caused by the wrongful act.
The requirements for a successful claim in misfeasance in public office were identified in Three Rivers DC v Bank of England (No. 3)  2 AC 1 by Lord Steyn at paragraph 191:
The case law reveals two different forms of liability for misfeasance in public office. First there is the case of targeted malice by a public officer, i.e. conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bad faith inasmuch as the public officer does not have an honest belief that his act is lawful.”
You may be able to claim damages if you have suffered harm as a result of misfeasance in a public office, but obviously this is going to be quite hard to prove as it requires that you establish the public official acted in bad faith.
The offence of ‘Malfeasance’ or misconduct in a public office is a criminal offence with a maximum sentence of life imprisonment. This involves wilful behaviour which is so serious that it is likely to cause a loss of public trust in the public office holder.
The tort of misfeasance is probably not an attractive route given the evidential difficulties of being required to prove bad faith or ‘targeted malice’. A more realistic route is likely to be a claim under the Human Rights Act 1998 as some judges have commented that by bringing the Human Rights Act into force, Parliament intended that the infringement of rights protected by that Act should be remedied under the Act, and not by any other parallel remedies.
A recent attempt to establish a claim of misfeasance against CAFCASS was rejected by the court in the case of FD v CAFCASS in 2014.
A further claim in Williams and Another v London Borough of Hackney  also failed – but the parents did get damages under the Human Rights Act. In this case the LA thought wrongly, but genuinely, that they had lawful authority to remove children pursuant to section 20 of the Children Act 1989. Thus misfeasance could not be established.
Breach of Statutory Duty
A person may have an action in tort for damage they have suffered as a result of a breach of a statutory duty. The claimant must show:
- that the breach of the statutory duty has caused the loss;
- that the damage suffered was of a type the statute was designed to prevent;
- that the claimant belonged to a class of persons the statute intended to protect; and
- that the damage suffered is of a type the court recognises.
Some statutes set out explicitly whether or not there is an actionable case, but most legislation is silent and the courts therefore have to “discover” Parliament’s intention.
The distinction between breach of statutory duty and negligence (see below) is often blurred.
The tort of negligence.
‘Negligence’ is also part of the civil law called ‘torts’. It means a failure to exercise the kind of care that could reasonably be expected in all the circumstances; it is about acting carelessly, not maliciously.
The ‘Bolam test’ (Bolam v Friern Hospital Management Committee  1 WLR 583) is applied when there can be legitimate disagreements between professionals about what is the right course of action:
a medical professional is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art . . . Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.
In order to succeed in getting compensation because of a negligent act you will need to show:
- you are owed a duty of care;
- there has been a negligent breach of that duty of care;
- damage has flowed as a direct result.
- you bring your claim within 6 years of the negligent act, otherwise you may not be allowed to proceed – the court has a discretion to extend this in cases of personal injury (see The Limitation Act 1980).
This is a complex area of law and you will probably need specialist advice.
What is a ‘duty of care’?
A duty of care may arise in the following circumstances, which overlap to some degree:
- is there a relationship of proximity between the parties?
- was the harm you suffered foreseeable?
- is it fair, just and reasonable to impose a duty? See Caparo Industries plc v Dickman  2 AC 605.
There is an important distinction to be made between parents who complain of negligence in the course of an investigation in the child’s welfare and negligence in other aspects of professionals dealing with the family. At the moment, the law does not allow the existence of a duty of care towards parents who are under investigation. But a duty of care has been found to exist in other circumstances, such as when LA don’t give full information about the background of an adopted child.
When is a duty of care owed to parents by a local authority?
No duty of care: Parents who are part of an investigation into their child’s welfare.
Parents who are subject to investigation or assessment by social workers or health professionals would at first glance appear to merit a duty of care, given the obvious harmful consequences of a botched investigation. However, the current legal position is that parents are NOT owed a duty of care from child protection professionals when they carry out their statutory duties to investigate and assess children.
The reasons why professionals do not have a duty of care to parents was discussed at length before the House of Lords (now the Supreme Court) in the case of JD (FC) v East Berkshire Community Health NHS Trust  UKHL 23.
The case involved a number of appeals against decisions of the lower courts not to allow actions in negligence to proceed. Each case involved a child with a medical condition that was misdiagnosed and this misdiagnosis was assumed to be due to the failure by the the doctor or social worker to exercise the standard of skill and professional care that could reasonably be expected from such professionals. The parents suffered psychiatric harm by being wrongly accused of harming their children, and in some cases losing the care of their children whilst an investigation was carried out.
However, it is clear that professionals in the health and social care systems may owe a duty of care to the child who is the subject of the investigation (see para 30 of East Berkshire cited above).
But the majority of the Judges agreed that there was no duty of care to parents if a professional got it wrong about whether or not a child had been harmed. Professionals were only expected to act ‘in good faith’ and could only be subject to legal action if they acted maliciously or recklessly.
An attempt to argue that a duty of care existed towards parents from CAFCASS was rejected by the case of FD v CAFCASS in 2014.
Why there should be no duty of care; arguments of public policy.
It is a very important principle in law is that wrongs should be remedied. We should only depart from this principle if there are powerful arguments in favour of doing so. What have the courts decided are these powerful arguments to explain why the parents couldn’t make a claim in these cases?
The child protection system is set up by statute to protect children from harm done to them by others. This gives professionals powers which they would not have without the authority of the statutes and the accompanying guidance. In many cases, their powers and duties may require them to act in a way that will bring them into conflict with the child’s parents; for example by removing a child from his or her home against the parents’ wishes.
Because professionals act under a statutory scheme where the welfare of the children is paramount, it would be against public policy to make professionals liable to pay compensation to the parents if they made mistakes in their decisions; they do not owe a ‘duty of care’ to the parents. They are only expected to act in ‘good faith’ – in other words, not make decisions maliciously or recklessly.
To expand on that general principle:
- The child protection system involves lots of people from a variety of different roles, such as police, social workers, doctors and teachers who are obliged to work together and share information. At all stages the system involves joint discussions and joint decisions. Therefore it could be very difficult to identify precisely who was responsible for making the wrong decisions.
- It can be very difficult to make decisions about children at risk and a lot of factors have to be taken into account. The child’s welfare has to come first. If child protection professionals were at risk of being sued for damages it might mean that they would adopt a more cautious and defensive approach and would delay making necessary decisions and put children at risk. There would be two sets of interests to consider – the child’s and the parents – which are often in conflict, for example if the parent is the perpetrator of harm upon the child.
- The relationship between the parents and the professionals can often be very difficult and one of conflict which could lead to vexatious and costly litigation.
- There are other remedies for the parent, such as following statutory complaint procedures or seeking damages for breach of their rights under the European Convention.
- Imposing a duty of care in these circumstances would be a big change for the law and therefore requires Parliament to intervene and draft the new law, rather than the Judges deciding it.
Lord Bingham’s disagreement.
However, it is interesting to note that one of the Law Lords, Lord Bingham did not agree with the majority decision in the East Berkshire case. He pointed out at para 3:
But the law in this area has evolved very markedly over the last decade. What appeared to be hard-edged rules precluding the possibility of any claim by parent or child have been eroded or restricted. And a series of decisions of the European Court of Human Rights has shown that the application of an exclusionary rule in this sensitive area may lead to serious breaches of Convention rights for which domestic law affords no remedy and for which, at any rate arguably, the law of tort should afford a remedy if facts of a sufficient gravity are shown
He noted that it used to be the law that children couldn’t claim damages for breach of duty but this changed after the case of X (Minors )v Bedfordshire County Council in 1995. 5 children complained that they had been the victims of very serious neglect and maltreatment by their parents and the local authority had not acted to save them, even though it was well aware of what was happening. The court held that the children had no remedy in English law.
The children took their case to the European Court of Human Rights, which accepted that Article 3 of the ECHR had been violated as the children had suffered inhuman and degrading treatment because of the LA’s failure to act. The children were awarded damages of £320,000.
Lord Bingam further argued that it is wrong to give professionals a ‘blanket immunity’ and thus unjustifiably restrict a persons right to have his or her claim heard by a court.
He looked at the list of common justifcations for not allowing a duty of care to parents and rejected the contention that recognizing such a duty would necessarily undermine the ability of professionals to work to protect children. There was not automatically a ‘conflict’ between parents and professionals, even if the parents were the suspected perpetrators of the harm to the child.
This is because the parents were not complaining that there had been an investigation in the first place, but rather that the investigation had not been properly carried out and there had been a negligent failure to properly test the evidence. Therefore, there is arguably no conflict between parents and professionals – every one should agree that investigations should be carried out properly, regardless of the identity of the perpetrator.
The fact that there was disagreement between very senior and respected lawyers about the whether or not a duty of care should be owed to parents who were under investigation, shows that this is an area of law which could be open to challenge. However, the courts can probably go no further without some intervention from the government to explicitly change the existing law.
In the meantime, it seems that the Human Rights Act 1998 may provide the best avenue for those complaining about the actions of public officers; the Act came into force after the decision in East Berkshire, so obviously was not considered by the court.
Parents who are not part of the investigation.
The courts have been prepared to find a duty of care existed between local authorities and parents when the parents complained that they had suffered harm due to a failure to protect their children or given the parents relevant information about their children.
The case of Merthyr Tydfil County Borough Council v C in 2010 gives a useful overview of the case law in this area.
In this case, the mother of two children sought damages for psychiatric injury she suffered due to the negligence of the LA to properly investigate the sexual abuse of her children by another child. The LA wanted to strike out her cause of action. However the court reviewed the relevant authorities and found that where a local authority owes a duty of care to a child this does not make them immune from owing a duty of care to the child’s parents.
For example, local authorities which did not give full information to adoptive or foster families about their children, have been held to have a duty of care when a child placed by them has caused physical and psychiatric injury to a family who were not told the whole story about the child’s previous history of aggression or a risk of sexual abuse. There is no ‘conflict’ here between the duties to the child and the duty to the family so the arguments in East Berkshire do not apply.
In such cases the courts must distinguish between ‘policy’ and ‘operational’ decisions. So if the local authority has a statutory discretion to do or not do something under an Act, and the local authority decides not to act, this is a ‘policy’ decision which the court will not challenge in order to find a duty of care exists. But once a local authority decides to do something, this can become an ‘operational’ decision, which the court can look at and decide whether or not a duty of care exists between the parties.
Duty of care owed to children.
The House of Lords decision in X v Bedfordshire CC  3 All ER 353] did not survive challenge in the European Court, which found that the United Kingdom had breached Article 3 of the Convention (protection against torture, inhuman or degrading treatment and punishment) and Article 13 (effective remedy before a national authority).
This was recognised in JD V East Berkshire, together with subsequent domestic cases, leading to the conclusion that it case law decided that it ‘could not now be plausibly argued that a common law duty of care may not be owed by a publicly-employed healthcare professional to a child with whom the professional is dealing’.
See paras 27-30:
The claim in W v Essex County Council  2 AC 592 was made not only by children (or those who had been children when they suffered abuse) but also by parents. The parents had fostered a child on an assurance that he was not a known sexual abuser when, to the knowledge of the local authority, he was, and during his placement with the parents he sexually abused their children. Hooper J struck out the parents’ claims but not those of the children:  2 FLR 535. The Court of Appeal (Stuart-Smith, Judge and Mantell LJJ) unanimously upheld the judge’s decision striking out the parents’ claim and by a majority (Stuart-Smith LJ dissenting) upheld his decision on the children’s claim, which was accordingly allowed to proceed:  Fam 90 …
Phelps v Hillingdon London Borough Council  2 AC 619 was one of four appeals heard together by an enlarged committee of the House. In each case the plaintiff complained of allegedly negligent decisions concerning his or her education made by the defendant local authorities. The procedural histories of the four cases were different, but in three of them the Court of Appeal had struck out the plaintiff’s claim and in only one had it been allowed to proceed. The House unanimously dismissed the local authority’s appeal in that last case but allowed the plaintiff’s appeal in the other three. It was held to be clear in principle that a teacher or educational psychologist could in principle owe a duty of care to a child as well as an employing authority: pp 654, 665, 667, 670, 676. Valid claims in negligence were not to be excluded because claims which were without foundation or exaggerated might be made: pp 655, 665, 676. There was no reason to exclude the claims on grounds of public policy alone: pp 665, 672, 677. As my noble and learned friend Lord Nicholls of Birkenhead perceptively observed, “‘Never’ is an unattractive absolute in this context”: p 667.
In the case of Kirsty X v Oldham Metropolitan BC  , a former care leaver brought an action against the LA for failing to remove her earlier from her parents and failing to provide her with effective therapy. This action failed. The Judge commented at paras 43 and 44:
Had the Defendant’s social workers decided to commence proceedings in November 1993, they could by no means be certain that the court would endorse the Claimant’s removal from her parents. Dr Dale acknowledged in cross-examination that an unsuccessful attempt to remove a child through court proceedings can often end cooperation with the parents. Professor Payne also referred to the difficulty of getting parents to cooperate in the absence of an order. After the assault, the records show that the parents were cooperating and there were some positive signs. Failed court proceedings at that stage risked undoing that. Accordingly any proper assessment of risk would not have been all one way. Those best placed to judge the risks were those on the ground working with the family at the time. There would be a range of reasonable responses from social workers acting in such circumstances. I accept that some would have sought removal at an earlier stage. However, having weighed all the evidence, I cannot say that the decision not to seek removal before September 1994 fell outside the ambit of decisions open to responsible social workers.
Professor Payne and Dr Dale have very different views as to the appropriate response in November 1993. I am satisfied that Professor Payne’s opinion accords with a responsible body of social work opinion at the relevant time. The Defendant’s social workers, including Mary Marrington, fitted into that body. Dr Dale’s view that the Claimant should have been removed from her parents at that time represents the view of an alternative body of social work opinion. The fact that the Defendant adopted one rather than the other does not lead to a finding that it acted negligently. In that respect, I cannot and do not accept Dr Dale’s opinion that no reasonable social worker would have failed to commence care proceedings in November 1993.
Damages in Negligence and time limits on your claim.
The general aim behind an award damages is to put you in the position you were before the wrongful action happened. For a useful over view of what you can claim for in a negligence action against a professional, see the case of Hamilton-Jones v David and Snape (a firm)  1 WLR 924. This is a complicated area of law and you are probably going to need some specialist advice.
With regard to how long you have to make a claim, the general rule for negligence claims is that they must be brought within 6 years of the date when the damage in question was suffered. This is not always an easy rule to apply as sometimes it is difficult to define when the loss was suffered.
However, under section 11 of the Limitation Act 1980 claims for personal injury arising out of negligence are subject to a three year limitation period. For a child, the 3 years starts running when he reaches adulthood.
This has the potential to cause injustice as the claimant might not even be aware of relevant facts at the time damage was suffered (such as sexual abuse suffered during childhood). In those kinds of cases, it is possible to extend the limitation period by another 3 years from the date when the claimant knew (or ought reasonably to have known) about the relevant facts.
You may be able to ask the court to exercise its discretion to let your claim under section 11 proceed, even if you are out of time, by relying on section 33 of the Limitation Act. See the case of Ellam v Ellam  EWCA Civ 287 for further discussion of this issue.
When considering extending the limitation period, the court shall have regard to all the circumstances of the case and in particular to:
(a )the length of, and the reasons for, the delay on the part of the plaintiff;
(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 [F34, by section 11A] or (as the case may be) by section 12;
(c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant;
(d )the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;
(e )the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;
(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.
Liability of Local Authorities for abuse of children by foster carers
See NA v Nottinghamshire County Council  EWCA Civ 1139 where the Court of Appeal held that the local authority was not vicariously liable for the actions of abusive foster carers and did not have a non delegable duty of care to the child concerned.
The Court of Appeal considered the issue of vicarious liability at paragraph 8:
The judge not unnaturally adhered closely to the approach adopted by Lord Phillips of Worth Matravers in his judgment in Various Claimants v Catholic Child Welfare Society and Others  UKSC 56,  2 AC 1. He identified as the relevant issue whether the relationship between the local authority and the foster parents was sufficiently akin to an employment relationship to be capable of giving rise to vicarious liability. It was accepted that if it was, there was a relevant connection linking that relationship and the acts of abuse by Mrs A and Mr B.
The judge cited paragraph 35 of Lord Phillips’ judgment, in which Lord Phillips identified the paradigm indicia of a relationship capable of giving rise to vicarious liability:-
“35. The relationship that gives rise to vicarious liability is in the vast majority of cases that of employer and employee under a contract of employment. The employer will be vicariously liable when the employee commits a tort in the course of his employment. There is no difficulty in identifying a number of policy reasons that usually make it fair, just and reasonable to impose vicarious liability on the employer when these criteria are satisfied: (i) the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability; (ii) the tort will have been committed as a result of activity being taken by the employee on behalf of the employer; (iii) the employee’s activity is likely to be part of the business activity of the employer; (iv) the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee; (v) the employee will, to a greater or lesser degree, have been under the control of the employer.”
Foster parents are considered to be very different from ’employees’; the essential element of ‘control’ that exists in relationship between employee and employer is not present here, as foster carers exist to provide experience of family life for children and must be able to exercise control of the day to day running of their homes. The Court of Appeal cited approvingly an earlier Canadian authority:
Foster families serve a public goal – the goal of giving children the experience of a family, so that they may develop into confident and responsible members of society. However, they discharge this public goal in a highly independent manner, free from close government control. Foster parents provide care in their own homes. They use their own ‘equipment’, to use the language of Sagaz. While they do not necessarily ‘hire’ their own helpers, they are responsible for determining who will interact with the children and when. They gave complete control over the organization and management of their household; they alone are responsible for running their home. The government does not supervise or interfere, except to ensure that the child and the foster parents meet regularly with their social workers, and to remove the child if his or her needs are not met.
With regard to the issue of whether or not the LA owed a ‘non-delegable duty’, the Court of Appeal considered the factors identified by the Supreme Court in the case of Woodland v Swimming Teachers Association and Others  UKSC 66,  AC 537 and agreed with the judge at first instance that it would not be right to impose such a duty on the local authority in this case.