Tag Archives: negligence

Financial remedies if mistakes are made in proceedings involving children

This is the text of a seminar delivered at St Johns Chambers in Bristol on March 21st 2018

Financial Remedies in Children Proceedings

1. What we will examine this evening are possible routes down which might enable you to get a financial remedy for a child who has suffered harm or loss. A typical example is a child who has been through care proceedings which have not been conducted well, or has been left drifting in section 20 accommodation without the local authority making any application to the court. There is evidence that the child has been harmed by this, possibly left traumatised and needing further therapeutic support, which a local authority may be reluctant to pay for. What are the options in such cases?
2. I will look at three possible avenues – the Criminal Injuries Compensation Board, actions in negligence and actions under the Human Rights Act 1998. Spoiler alert – I am going to conclude that when comparing negligence and the HRA it is the latter that is likely to be the remedy of choice. Asha will then take you through the ‘nuts and bolts’ of making such an application as the courts have now clarified the strict procedural requirements and the likely impact for the legally aided that the LAA will attempt to claw back costs.

General points

3. The law in these areas can be complicated. It is not difficult to understand why as they invariably involve payment of money. The only compensation possible in many cases is money – years of childhood cannot be restored.
4. Getting financial compensation may have to involve bringing legal action against people or agencies who did not directly cause the harm, because they have ‘deeper pockets’ i.e. greater access to money via department budgets or insurance schemes. Insurance companies are usually very keen to avoid paying out. Thus such cases are often fought very hard.
5. This has proved a particularly fraught arena when dealing with harm done to children or families by the actions or failure to act of a local authority. Harm is most likely to be caused by individuals such as social workers or foster carers who are unlikely to be rich enough to be worth suing as individuals. The focus then falls on the local authority and to what standards they could reasonably be held. But when local authorities are under a statutory duty to try and protect children, there are significant public policy arguments against imposing financial liabilities owing to fears that this may lead to defensive practices and unwillingness to work with families. It is also often difficult to establish causation when many different agencies and people contribute to decision making.

Criminal Injuries Compensation Board

6. The CICB deals with compensation claims from people who have been physically or mentally injured because they were the victim of a violent crime in England, Scotland or Wales. The Criminal Injuries Compensation Scheme 2012 sets out the critieria for eligibility and compensation rates. Annex B to the scheme confirms that a crime of violence includes a sexual assault. I won’t go into detail here but will just remind you of paragraph 9 (which I had overlooked):
A person may be eligible for an award under this Scheme whether or not the incident giving rise to the criminal injury to which their application relates has resulted in the conviction of an assailant in any part of the United Kingdom or elsewhere.

Negligence

7. In essence, to establish negligence you need to show that you were owed a ‘duty of care’ which was breached. In many cases the courts have refused to find that such a duty of care existed, relying on public policy grounds. However, those who argue against the refusal to extend liability point out that negligence is more than just ‘carelessness’ – it has to be behaviour that falls far below what you would expect from others in this field. Why shouldn’t children and families be protected from such serious failings?
8. The common law around negligence is continually evolving, reflecting the constant shifts in societal attitudes towards notions of vulnerability and harm. For example, we can see the clear evolution of the court’s willingness to find local authorities liable for harm caused to children by abusive foster carers. As recently as 2015 the Court of Appeal decided a local authority could not be held ‘vicariously liable’ for the actions of its foster carers; however, the decision was over-turned in part when the case reached the Supreme Court in Armes v Nottinghamshire County Council [2017] which decided that whilst there was not a non-delegable duty to take reasonable care, it was possible for such vicarious liability to exist.
9. I stress at the outset that negligence is a complicated area of law and I do not claim particular expertise. Anyone contemplating an action in negligence will need to get proper advice from a specialist practitioner. But I hope what follows can be a useful overview of some of the likely considerations, to at least help you decide if you do need to take that next step.

CN v Poole Borough Council

10. An interesting recent case that provides a framework for this discussion was the decision by the Court of Appeal on December 21st 2017; CN v Poole Borough Council [2017] EWCA civ 2185. This was reported at the time as a decision that prevented victims of abuse claiming compensation from local authorities, including victims of such scandals as Rotherham – see for example reports in The Times and the Daily Mirror on the 1st January 2018.

Facts of this case

11. A mother ‘Mrs N’ had two sons, CN (aged 9) and GN (aged 7). CN had serious disabilities, requiring a high level of care and supervision. In May 2006, the family moved into accommodation on a housing estate in Poole. The local authority arranged this as the local housing authority and the accommodation was rented from the Poole Housing Partnership Limited (“PHP”). Sadly, over the next few years, Mrs N and her sons were the victims of serious anti social behaviour from a neighbouring family. Mrs N reported this to various agencies – the police, the local authority and the PHP. She had to complain further to local politicians about the lack of effective response from these agencies. This led to the Home Office being involved who carried out an independent case review in 2010 that criticised the agencies’ responses. However, the anti social behaviour continued and the family were finally re-housed in December 2011.

Litigation from 2012

12. Litigation then commenced. In December 2012 the family claimed against the council, the police and the PHP alleging breach of the Human Rights Act 1998 and negligence. The essence of the claim was that all three agencies had failed to take appropriate steps to protect the family from abuse and this was a breach of their rights under Articles 3 and 8 of the ECHR. However, the family did not provide particular details of their claim, they asked more time to provide these details in August 2013, but in December 2013 that application was dismissed. A year later a second set of proceedings was issued and this time only the council was a defendant and the claim was now based solely in negligence (previous case law having established that no duty of care was owed by either the police or the housing departments in such circumstances).
13. A second claim was also made on behalf of the children that the council had failed to comply with its duties under the Children Act 1989 to safeguard them and promote their welfare. The local authority wanted the court to strike out that second claim as having no foundation in law. However, In October 2015 the court dismissed both elements of the family’s claim, finding that there was no basis to hold that a local authority owed a duty of care to protect against the anti social behaviour of others and that there was no legal foundation to hold that the Children Act 1989 created any additional duty of care with regard to the children.
14. The children then appealed with regard to the argument that a duty of care flowed from the local authority’s obligations under the Children Act. The court were reminded of the Court of Appeal decision in JD & Ors v East Berkshire Community Health & Ors [2003] EWCA Civ 1151 (31 July 2003) which found at para 87: where consideration is being given to whether the suspicion of child abuse justifies taking proceedings to remove a child from the parents, while a duty of care can be owed to the child, no common law duty of care is owed to the parents.
15. The claim then became about the local authority’s failure to remove the children from their mother. The appeal was heard in February 2016 and Slade J agreed that it was wrong to strike out the children’s claims based on the local authorities social services functions. The children’s case was then put on this basis, arguing that the local authority should be liable for the following failures:

  • Failed to assess the ability of the Claimants’ mother to protect her children from the level of abuse and violence they were subjected to. The Defendant did not carry out any timely or competent risk assessment and such assessments as were carried out were flawed and delayed ….
  • Failed to assess that the Claimants’ mother’s ability to protect the Claimants from abuse …. Further failed to assess that the mother was unable to meet the Claimants needs whilst she lived …. with them.

16. The council were then given permission to appeal and they succeeded. The Court of Appeal found the argument that the children should have been removed from their mother’s care as a means of dealing with anti social behaviour as “rather startling” and “highly artificial” (paragraph 41). In essence, the claim had nothing to do with any social services functions but was “in fact a criticism of the housing functions of the local authority” (paragraph 104).
17. The Court of Appeal in Poole considered at para 55 the implications of the earlier ruling in JD v East Berkshire that a duty of care could be owed to a child when considering the child’s removal from his parents: The Court was considering the decision whether to leave a child in a family where abuse was in question. For the purposes of such a decision there exists no true “third” party, in the usual sense. The actual or potential wrongdoing by those who would retain (or gain) custody of a child is central to the decision being taken. It is the mainspring of the relevant decision. That is a significant distinction from the current case.
18. There were two fundamental aspects to these proceedings which argued against making the council liable

  • the danger of encouraging defensive decision-making; and
  • the general absence of liability for the wrong-doing of others (paragraph 94). It is simply unfair for the local social services authority to be held liable, when the housing department, the landlord and the police could not. (paragraphs 95-98)

19. Although the court accepted that society placed a high emphasis on protecting vulnerable people, it was neither effective nor just to do so by singling out one agency of the State for tortious liability as against the others.
20. The Court of Appeal confirmed that the Court of Appeal decision in JD v East Berkshire relating to a possible duty of care to children when decisions were made about removing them from their parents, was inconsistent with the subsequent decisions of higher authority and should no longer be followed (paragraphs 99-101).
21. King LJ, an experienced family judge, was further critical of the argument that the courts would grant a care order in the circumstances of this case, re-stating the high threshold for the making of a care order with a plan for interim removal. Davis LJ stated that care proceedings to protect the children by removing them from their mother would have been “utterly heartless” and “utterly wrong” (paragraph 118).
22. There were suggestions that this might be going to the Supreme Court but so far I have not heard anything.

Consequences of this decision

23. It appears that the result of the CN judgments is that a common law claim in negligence for a negligent act or omission in a failure to investigate / failure to protect case before a care order will now fail; or at least will certainly be very hard fought by a local authority who will argue that any action in negligence against a Children’s Services Department is only now possible post a formal assumption of responsibility via a statutory decision to intervene.
24. This is a major judicial U-turn, which sets the law back 27 years by reinstating the largely discredited public policy reasons set out by Lord Browne-Wilkinson in X (Minors) v Bedfordshire CC [1995] 2 AC 633. Irwin LJ who delivered the main judgment has declared that the Court of Appeal decision in JD v East Berkshire [2004] QB 558 should no longer be followed. It was Lord Phillips in JD who declared that X (Beds) should not be followed as the policy objections said to point away from the imposition of a duty of care (defensiveness, resources, delicate and multi-disciplinary decision making to name but three) could not survive the Human Rights Act 1998 as local authorities were exposed to just those dangers under the Human Right Act.

Human Rights Act 1998

25. So if you are considering harm done to children because a care order was NOT made, it looks as if the only avenue will be that which flows from breach of the Human Rights Act 1998. For example, note the decision of the European Court in Z and Others v UK [2001]. This examined the refusal of the House of Lords in X v Bedfordshire in 1995 to find a duty of care existed to remove children from abusive home circumstances and thus denied them financial compensation for the significant harm they suffered. The European Court found the children’s Article 3 rights had been breached, so serious was the harm they suffered, and awarded damages.
26. These cases need very careful consideration about the legal mechanism identified for bringing a claim. Bringing a claim in negligence has different requirements than bringing a claim under the Human Rights Act.
27. Recent case law has also made an application under the HRA less attractive, as Asha will explain. I will give just a general overview here. First thing to note is that it seems unlikely that you will be making much reference to Article 3, which protects against torture and inhuman treatment. Much more likely is a claim under Article 8 whereby you argue that a local authority did not show sufficient or any respect to the child’s and family’s right to a family life, or Article 6 when you argue that the proceedings were not fair. This can be clearly shown in any section 20 ‘drift’ case, particularly if this narrows the eventual options for the child’s permanence.
28. Also you need to be alert at the outset to the operation of the statutory charge on any damages awarded if you are acting under a publicly funded certificate.

The Basics

29. The Human Rights Act (HRA) was passed to give direct effect to the Articles of the European Convention into domestic law. Prior to the HRA, if you wanted to claim that your human rights had been breached you had to take out an action in the European Court of Human Rights in Strasbourg. Now, it is unlawful for any public body – including the courts and local authorities – to act in a way which is incompatible with a Convention right, unless they have no choice because they have to obey current statute law.
30. However, applicants who are receiving legal aid will need to consider carefully the implications of the statutory charge on any award of damages – this is discussed below. It seems likely that in most cases, pursuing an HRA application is simply not commercially viable. However, there are some avenues worth exploring and these are discussed below.

What is an unlawful act and what is a public authority?

31. ‘Unlawful Act’ is defined under section 6 (1) of the HRA. It is unlawful for a public authority to act in a way incompatible with a ECHR right UNLESS it doesn’t have a choice because of the way the domestic law is written.
32. A ‘public authority’ includes a court/tribunal or any person who carries out functions of a ‘public nature’ BUT it excludes the Houses of Parliament.

Who can make an application under the HRA?

33. Section 7 provides that a person can bring proceedings if they are, or would be a ‘victim’ of the unlawful act. There is a distinction between a ‘free standing’ application [section 7(1)(a)] and relying on your Convention rights in existing proceedings [section 7(1)(b)].
34. It is now clear that the court will expect formal applications made according to the Civil Procedure Rules NOT the FPR and this will have consequences for many issues, not least the role of the children’s guardian. For a clear analysis of the necessary procedural requirements, it is worth reading carefully the judgment of Cobb J in SW & TW (Children : Human Rights Claim: Procedure) (Rev 1) [2017] EWHC 450 (Fam) (08 March 2017). Asha will cover this in more detail. The biggest shock to those of us who enjoyed a few years of free standing applications made by Guardians was that the court pointed out this isn’t actually lawful under section Section 12 of the Criminal Justice and Court Services Act 2000 –cannot be authorised to act as litigation friends to child claimants although they may give advice about the appropriateness of a child making a HRA 1998 claim.
35. The full costs regime in Part 44 CPR 1998 also applies, including (in contrast to the position in family proceedings) the general rule that ‘costs follow the event’ (CPR, Part 44.2(2)(a): “(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party”; see also CZ v Kirklees MBC [2017] EWFC 11 at [61]));

What remedy can you get?

36. Section 8 of the HRA gives the court a discretion to remedy the breach of your human rights; the remedy must be ‘just and appropriate’.
37. This can include damages, if the court is satisfied this is necessary ‘to afford just satisfaction’. The court must take into account the principles applied by the European Court about awards of damages – but the problem with this is that the jurisprudence from the ECtHR is deliberately opaque about what makes the quantum of damages ‘just satisfaction’. Each case will depend on its own facts.

Article 41 of the ECHR

38. This sets out the requirement for ‘just satisfaction’ on violation of a ECHR right. For useful discussion about the application of Article 41, see paragraph 143 onwards of the judgment of the European Court in the case of P, C and S v UK [2002].
39. A clear causal link must be established between the damage claimed and the violation alleged. The Court will not be satisfied by a merely tenuous connection between the alleged violation and the damage, nor by mere speculation as to what might have been.
40. Compensation for damage can be awarded in so far as the damage is the result of a violation found. No award can be made for damage caused by events or situations that have not been found to constitute a violation of the Convention, or for damage related to complaints declared inadmissible at an earlier stage of the proceedings.
41. The purpose of the Court’s award in respect of damage is to compensate the applicant for the actual harmful consequences of a violation. It is not intended to punish the Contracting State responsible. The Court has therefore, until now, considered it inappropriate to accept claims for damages with labels such as “punitive”, “aggravated” or “exemplary”.

How have the courts approached damages under the HRA 1998?

42. The first case to consider damages under the HRA 1998 was Anufrijeva v London Borough of Southwark in 2003. At para 49 the court noted the conclusions of the Law Commission in its report on Damages under the Human Rights Act 1998 which suggested that the obvious analogy for a claim for damages under the HRA is a claim against a public authority in tort, such as negligence. But this analogy cannot be drawn too strictly as there are distinctions between the purpose behind an award of damages in tort and under the HRA.
a) damages are recoverable ‘as of right’ in a negligence claim (tort), but are at the court’s discretion in a HRA claim;
b) the purpose behind the damages claim is different; in negligence this is to put the claimant back in the position he would have been in without the negligent act, whereas in HRA claims the purpose is to provide ‘just satisfaction’;
c) That ‘just satisfaction’ may be provided by dealing with the HR breach, not necessarily compensating someone with money. The European Court has often found that in cases where there was a procedural, rather than substantive breach, a simple declaration that the claimant’s human rights were breached is in fact sufficient ‘just satisfaction’.
43. In the case of H (A Child – Breach of Convention Rights: Damages) [2014] the court was very clear that in the circumstances of this case ‘just satisfaction’ would NOT be achieved by a simple declaration that the parents’ rights had been breached. See paragraph 82.
It was not until June 2014 that these parents eventually managed to secure the return of their daughter to their care, exactly a year after she was placed with Mr and Mrs B. Whilst it is true that during that year the parents were having regular contact, supervised contact at a local authority contact centre is far removed from the joys of fulltime, unsupervised care of one’s own child. The residential assessment which began in June 2014 could have begun a year earlier. The cognitive assessment of the parents, not finally obtained until May 2014, could have been obtained months earlier. Unlike the parents in the Coventry case, these parents’ have suffered a loss of time with their daughter which was both unnecessarily lengthy and deeply distressing.

How should damages be assessed? And what is an appropriate award?

44. The difficulty is in situations where the harm suffered by the claimant is not one that can easily be measured in money – for example, loss of earnings is a lot easier to measure than being very upset or anxious about something. There is little guidance from the European authorities, save that the court tends to look at the nature and seriousness of the breach complained about, and the claimant’s own behaviour.
45. The European Court has also recognised ‘loss of relationship’ as another form of intangible injury – that is the loss of love and companionship which occurs when a family relationship is disrupted by breach of Article 8.
46. This is a clear difference between the kinds of damages that may be awarded for breach of contract or tort in the domestic courts, which may not recognise many of these types of loss or would require much stricter proof to be satisfied they had occurred. Some types of loss are going to be much more easily quantified than others.
47. The court in H (A Child) noted that there was not much assistance from previous cases in determining what amount should be awarded. In this case, each parent was awarded £6,000. See para 87:
48. Whilst the authorities referred to are of some small assistance, there are too few to be able to be confident that they indicate the broad parameters for making an assessment. In any event, it must, of course, be remembered that every case is different. Every case turns on its own facts. The assessment of damages in these cases is highly fact sensitive.
49. The court in X, Y. & Z re (Damages: Inordinate delay in issuing proceedings) [2016] approved the identification of the relevant issues by HHJ Lazarus in the Medway case [2015]:
a) The length of the proceedings
b) The length of the breach
c) The severity of the breach
d) Distress caused
e) Insufficient involvement of the parent or child in the decision making process
f) Other procedural failures.
50. WARNING: It is likely that the Court of Appeal decision in London Borough of Hackney v Williams & Anor [2017] is a clear attempt to row back from what appears to be ever increasing amounts awarded in damages for HRA claims. The Court decided that there had been no breach in this case so no damages fell to be awarded – BUT if they had, the Court of Appeal were clear that the £10K awarded at first instance was simply too high.

Damages awarded in other cases

51. P, C, S v the UK [2002] the European court awarded each parent €12,000 for breaches of their Article 8 and 6 rights in a case which involved removal of a baby at birth. This case also has some useful commentary as to how damages should be assessed.
52. Northamptonshire CC v AS [2015] – damages £16K.
53. Ferrari v Romania in the European Court of Human Rights in April 2015 where a father was awarded €7,500 after the state failed to properly engage with Hague Convention proceedings and caused delay.
54. In re A (A Child) in August 2015, the mother was awarded £3,000 for unlawful removal of her child.
55. Medway Council v M and T October [2015] awarded £20K to both mother and child for unlawful use of section 20 accommodation under Children Act 1989.
56. B (A Child) [2016] EWFC B10 January 2016 – £5K awarded for 3 year delay in revoking placement order that meant B lost out on developing a relationship with his siblings.
57. Case Soares de Melo c. Portugal (Application No 72850/14) [Feb 2016] award of €15,000 for decision to have children adopted without offering family sufficient support.
58. X, Y & Z re (Damages: Inordinate Delay in Issuing Proceedings) [2016] EWFC B44 (23 February 2016) – £45K awarded, (£20K for each child and £5K for the mother) highest level of damages known to date for misuse of section 20, and particular criticism of the failure of two IROs to act.
59. BB (A Child) [2016] 27th June EWFC B53 £7,500 awarded for misuse of section 20.
60. GD & BD (Children) [2016] 10-18 October 2016 EWCH 3312 – example of very poor police, LA and legal practice, described by Suesspiciousminds as ‘the worst case of the year’. £10,000 awarded to the mother and £5,000 to each child.
61. London Borough of Hackney v Williams and Anor [2017] – Court of Appeal sound the warning that £10K awarded at first instance was too high (in the event the court did not find a breach of statutory duty so no damages were awarded at all)
62. CZ (Human Rights Claim: Costs) [2017] EWFC 11 – £3,750 to each parent and child for unjustified removal at birth for about 3 weeks. However, costs likely to be completely absorbed by the statutory charge – publicly funded costs in region of £100K.

Negligence and Misfeasance

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) [2003] 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 [2015] 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 [1957] 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 [1990] 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 [2005] 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). EDIT 3rd Jan 2018 – the Court of Appeal have found that the Court of Appeal decision in of JD v Berkshire, which agreed a duty of care could exist with regard to a child who was not removed from home,  could not stand against subsequent decisions and should be considered to have been overruled. See CN v Poole BC 

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 [1995] 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 [2001] 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: [1997] 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: [1999] Fam 90 …

Phelps v Hillingdon London Borough Council [2001] 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 [2013] , 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.

Liability of Local Authorities for abuse of children by foster carers

If a child is abused by a foster carer, in most cases it won’t be worth bringing legal action against the individual foster carers –  they are unlikely to have enough money to pay substantial damages. However, the local authority will have much ‘deeper pockets’ and therefore over the years various efforts have been made to bring actions against local authorities for harm and abuse caused by their foster carers. The legal discussions have turned on two issues – ‘vicarious liability’ and ‘non-delegable duties of care’.

The current position appears to be that local authorities CAN be vicariously liable for the damage caused by abusive acts carried out by their foster carers, but the discussion of the case law that follows shows clearly that this is certainly not a simple or easily identifiable issue and the Supreme Court remains split on the best way to handle it. You will certainly need specialist legal advice if you are considering legal action in this field.

 

Vicarious liability

In NA v Nottinghamshire County Council [2015] EWCA Civ 1139 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.

Vicarious liability is considered at paragraph 8 of that judgment, the court approving the approach of Lord Phillips of Worth Matravers in his judgment in Various Claimants v Catholic Child Welfare Society and Others [2012] UKSC 56, [2013] 2 AC 1.

Lord Philips 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.

In the vast majority of cases, vicarious liability  arises between an 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.”

However, the earlier cases considered foster carers 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.

Non-delegable duty of care

The expression “non-delegable duties of care” is used to refer to duties not merely to take personal care in performing a particular function but to ensure that care is taken. This involves a higher standard of care than the ordinary ‘duty of care’. Duties involving this higher standard of care are ‘non-delegable’ because you cannot argue you have discharged your duty just by taking reasonable care in selecting someone else to carry out the function in question.

With regard to the issue of whether or not the LA owed a ‘non-delegable duty’, the Court of Appeal in the Nottinghamshire case considered the factors identified by the Supreme Court in the case of  Woodland v Swimming Teachers Association and Others [2013] UKSC 66, [2014] AC 537 and decided it would not be right to impose such a duty on the local authority in this case.

Lord Sumption in Woodland identified two broad categories of case in which a non-delegable duty of care has been held to arise.

  • a large and varied class of cases where  the defendant employs an independent contractor to perform some function which is “either inherently hazardous or liable to become so in the course of his work”
  • cases where the common law imposed a duty which had three critical characteristics.
    • First, the duty arises because there is already a relationship between the defendant and the claimant.
    • Secondly, the duty is a positive one to protect a particular class of persons against a particular class of risks
    • Thirdly, the duty is by virtue of that relationship personal to the defendant (para 7).

Further decision of the Supreme Court in Armes

However, this issue of local authority responsibility for abusive foster carers was then considered in the case of Armes v Nottinghamshire County Council in 2017. As a child, the claimant was abused physically and sexually by two different sets of foster parents. The court did not find that the local authority were negligent in the selection or supervision of the foster parents. The Supreme Court examined both the issues of vicarious liability and the non-delegable duty of care.

At the first hearing of this case, the Judge rejected the argument of vicarious liability by relying on Lord Philips’ judgment as discussed above. With regard to the issue of non-delegable duty of care, the judge found it would not be fair or reasonable to impose a duty on the local authority:

  • it would impose an unreasonable financial burden on local authorities providing a critical public service. Funds used to compensate the victims of historical abuse would not be available to meet current needs.
  • There would also be a significant financial impact on local authorities in terms of recruitment practices, training requirements and supervision, all of which might become more intensive. Financial compensation was in any event an unsatisfactory form of recompense for abuse.
  • there was a real danger that the imposition of a non-delegable duty would discourage local authorities from placing children with foster parents, even where reasonable steps had been taken to ensure their suitability.
  • it was inherent in foster care placements that the local authority did not have the same control over the day to day lives of the children as they had over children in residential homes. That was a benefit to the children in foster care and was necessary in order to give them the experience of family life which was the purpose of fostering.
  • it would be difficult to draw a principled distinction between liability for abuse committed by foster parents and liability for abuse committed by others with whom a local authority decided to place a child, including her own parents.

The Court of Appeal agreed with the judge at first instance, but gave a variety of reasons why.

The Supreme Court looked at the issue of non delegable duty and considered at para 37:

The critical question is whether the function of providing the child with day-to-day care, in the course of which the abuse occurred, was one which the local authority were themselves under a duty to perform with care for the safety of the child, or was one which they were merely bound to arrange to have performed, subject to a duty to take care in making and supervising those arrangements.

The local authority were held NOT to owe a non delegable duty of care – local authorities are encouraged to maintain the child’s relationship with his family and a non delegable duty of care could lead to the local authority being strictly liable for any harm caused to the child when having contact with his parents. The law of tort would risk creating a conflict between the local authority’s duty towards the children to maintain their relationships with their parents, and the local authorities wish to avoid being exposed to such liability.

But when considering the issue of vicarious liability, the Supreme Court held that the local authority were so liable for the abuse carried out by the foster carers. See para 60:

Although the picture presented is not without complexity, nevertheless when considered as a whole it points towards the conclusion that the foster parents provided care to the child as an integral part of the local authority’s organisation of its child care services. If one stands back from the minutiae of daily life and considers the local authority’s statutory responsibilities and the manner in which they were discharged, it is impossible to draw a sharp line between the activity of the local authority, who were responsible for the care of the child and the promotion of her welfare, and that of the foster parents, whom they recruited and trained, and with whom they placed the child, in order for her to receive care in the setting which they considered would best promote her welfare. In these circumstances, it can properly be said that the torts committed against the claimant were committed by the foster parents in the course of an activity carried on for the benefit of the local authority.

The Supreme Court was unimpressed with the argument that the local authority should not be held vicariously liable for the abuse of the foster carers, in case this had financial implications due to costs of compensating child victims. See para 69:

…if, in other words, there has been such a widespread problem of child abuse by foster parents that the imposition of vicarious liability would have major financial and other consequences – then there is every reason why the law should expose how this has occurred. It may be – although this again is empirically untested – that such exposure, and the risk of liability, might encourage more adequate vetting and supervision. It is all very well to point to the cost of such precautions, and to the cost of compensating the victims, and to complain that this will divert the resources of local authorities from other channels. That is a point which might be made in relation to many claims against public bodies, including claims against local authorities arising from the abuse of children in residential homes.

But the debate is unlikely to end here. Lord Hughes agreed with the analysis with regard to non-delegable duty of care but NOT with the decision about vicarious liability:

But the extension of strict liability needs careful justification. Once one examines the nature of fostering, its extension to that activity does not seem to me to be either called for or justified, but, rather, fraught with difficulty and contra-indicated. Accordingly, I would uphold the decision of the Court of Appeal and dismiss this appeal.

No doubt more case law will be generated about this issue and it will be important to get specialist legal advice if you are considering making a claim.

 

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) [2004] 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 [2015] 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.