Tag Archives: misfeasance

Judicial Bias

What can I do if I think the Judge has treated me unfairly?

Judges are human beings and therefore can make mistakes and get things wrong. It is possible that the Judge in your case has treated you unfairly and made decisions about your case which are not based on the evidence, but are instead a reflection of that Judge’s bad mood on the day.

In some circumstances a Judge should definitely not continue to hear a case and you would expect the Judge to recognise this from the outset – for e.g. if the judge is related to or married to any party to the case or has previously acted as a lawyer in the case.

This post will consider what happens when you are worried that a Judge is biased against you. How can you show that this happened, and what are your remedies?

Establishing Judicial Bias

This is an objective test – would the Judge appear biased to an informed observer? It is very important that court proceedings are seen to be fair.

Tribunals must appear in an objective sense to be truly independent and impartial. This perception is essential to maintaining public confidence in the judiciary and the legal system as a whole. The legal system is a central social good in any successful state. Its substantive, as well as apparent, integrity is an important matter.

The House of Lords (now known as the Supreme Court) considered the test for establishing judicial bias, in the case of Porter v Magill [2002] AC 357. Lord Bingham said at paragraph 106 that the essential question was:

…whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.

This test was confirmed as still good law by the Court of Appeal in the case of Harb [2016] EWCA Civ 556 (mentioned below).

For example – was the Judge rude to you? Did the Judge refuse to let you ask questions or speak about something you thought was relevant? This could be an example of a Judge acting unfairly – but you will need to consider carefully the Judge’s duty to actively manage the cases in his/her court, which we discuss below.

The case of G (Child) [2015] EWCA Civ 834 is a good example of how a judge was found to be acting unfairly from the nature and quality of her interventions and criticism of counsel. The Court of Appeal commented at para 38:

As I have said, the fairness of a hearing cannot be assessed mathematically or scientifically. Nor is it dependent on a comparison between the way in which the judge has treated the two sides. If one party has been treated in such a way as to disable him or her from advancing his or her case properly, the hearing is not rendered fair by the fact that the other party has been treated equally unfairly. For what it is worth, however, a comparison of the quantum of intervention by the judge on the second day of each counsel’s cross-examination of the other party shows, I think, that Mr Cameron was rather less hampered than Ms Toch.
It is necessary to look not only at the quantum of the judge’s interventions but also at their nature. As Mr Turner submitted on behalf of the father, a litigant does not have an unrestricted right to present a case in such a way as he or she or his or her lawyers may choose. A judge sometimes has no choice but to intervene during the evidence because of the nature of the questioning or in order to manage the use of court time (as the father would submit was necessary here). Furthermore, the interventions can sometimes be a help to counsel in his or her questioning rather than a hindrance.

In this case, the Judge had clearly crossed the line and her interventions were a hindrance:

Standing back again from the detail, it seems to me that the judge’s interventions on the second day of Ms Toch’s cross-examination of the father differed in character from the sort of intervention, sometimes quite frequent but nonetheless part of the normal course of a trial, in which the judge simply seeks clarification of a page number or an aspect of questioning or, having an eye on the clock, seeks to move matters along. My assessment is that on this second day the judge’s interventions were such that they largely prevented Ms Toch’s cross-examination from getting off the ground or at least significantly hampered its progress and also took up a disproportionate amount of the limited time available to Ms Toch. They may also have undermined Ms Toch with the witness, diluting her questioning not only by interrupting its flow but also by leading the father to anticipate that it may be declared by the judge to be without proper foundation or badly put. This was a case in which, as the judge herself observed, the credibility of the parties was particularly material. Cross-examination was therefore of central importance in enabling the judge to make reliable findings of fact on their respective allegations. The judge’s interventions were such that I am unable to be sure that the father’s evidence was tested as was required.

Judges ought to be wary of making jokes in case they cross the line between what is tolerable and what is impermissable. See the comments of Ward LJ in paragraph 30 of El-Faragy v El Faragy and others in 2007 where he concluded that a fair minded observer would conclude the Judge was biased:

When I said at the beginning of the judgment that I found this case embarrassing, no little part of my embarrassment comes from my belief that the injection of a little humour lightens the load of high emotion that so often attends litigation and I am the very last judge to criticise laughter in court. I fully appreciate the conventional view that jokes are a bad thing. Of course they are when they are bad jokes – and I am sure I have myself often erred and committed that heinous judicial sin. Singer J. certainly erred in this case. These, I regret to say, were not just bad jokes: they were thoroughly bad jokes. Moreover, and importantly, they will inevitably be perceived to be racially offensive jokes. For my part I am totally convinced that they were not meant to be racist and I unreservedly acquit the judge of any suggestion that they were so intended. Unfortunately, every one of the four remarks can be seen to be not simply “colourful language” as the judge sought to excuse them but, to adopt Mr Randall’s submission, to be mocking and disparaging of the third respondent for his status as a Sheikh and/or his Saudi nationality and/or his ethnic origins and/or his Muslim faith.

What does ‘fair minded and informed’ mean?

This is an objective test, meaning that the personal views of the person making the accusation of bias is not enough to decide the issue. This is clearly sensible as the person complaining of bias may not be the most reliable person to make that claim. Just because a Judge disagrees with you, doesn’t make that Judge biased against you.

But if the Judge’s behaviour would seem unfair to an outside observer who doesn’t have your personal investment in the outcome, then it is likely that we can conclude that Judge did indeed act unfairly.

In Gillies v Secretary of State for Work and Pensions [2006] 1 WLR 781, at 787 it was held by the House of Lords that:

the fair-minded and informed observer can be assumed to have access to all the facts that are capable of being known by members of the public generally, bearing in mind that it is the appearance that these facts give rise to that matters, not what is in the mind of the particular judge or tribunal member who is under scrutiny.

However, this test has been criticised

This is fine, as far as background or simple facts are concerned, such as the evidence given, the treatment of the parties by the tribunal and the terms of any decision made. It is problematic, however, when the intricacies of a particular field of decision making are attributed to the onlooker. These complex facts are unlikely to be known by anybody other than those who already practice in the particular field. The danger is that vested with this knowledge our notional observer will overlook matters that would otherwise appear to general members of the public as being suspicious. This is where confidence in the system is lost.

The court emphasised in Lesage v Mauritius Commercial Bank Ltd [2012] UKPC 41, that it was important to look at the proceedings as a whole to see if an impression of bias was created.

But a Judge has a duty to case manage – when does this slip into unfairness?

Christopher Sharp QC considered the issue of bias in care proceedings and in particular the case of in the case of Re Q (Children) [2014] EWCA Civ 918, where he represented the LA. This was a very unusual case in that every party, apart from the guardian appealed about the way the Judge had handled it, leaving the Court of Appeal with seven notices of appeal to consider.

For favourable comment on the decision in Re Q and the questions to ask when looking at fairness of the proceedings see M, Re [2018] EWCOP 4 (08 February 2018)

As suesspiciousminds comments:

appeals on the point are pretty rare and successful appeals rarer still. Q is one of the latter, and as such a rare breed is worthy of some consideration.

The Judge made various comments about the state of the evidence at a Case Management Hearing (CMH) i.e. before all the final evidence had been heard. This lead to serious concerns from the lawyer present that the Judge was simply not prepared to consider any issues that he had not generated himself.

The Court of Appeal commented at paragraph 50 of their judgment:

Such expressions of judicial opinion, given the need for the judge to manage the case and be directive, are commonplace and would not be supportive of an appeal to this court based upon apparent judicial bias. The question in the present appeal is whether the other observations made by the judge, and the stage in the overall court process that those observations were made, establishes circumstances that would lead a fair-minded and informed observer to conclude that there was a real possibility that the judge was biased in the sense that he had formed a concluded view on the mother’s allegations and her overall veracity.that it is often difficult for a judge in care proceedings to both actively manage the case and yet not make decisions before all the evidence is before the court:

It is clear that a judge hearing a family case has a duty to deal with cases efficiently. Judges are expected to ‘actively manage’ cases [FPR 2010, rr 1.1(1) and 1.4(1)]. This will include consideration of a range of issues as set out at FPR 2010, r 1.4(2), including early identification of the relevant issues [r 1.4(2)(b)(i)] and deciding promptly which issues need full investigation and hearing [r 1.4(2)(c)(i)].

As Christopher Sharp QC comments:

There is a very real danger that in this process judges are going to be seeing issues without the benefit of all the evidence (which may not yet have been gathered), or without the benefit of a full understanding of both sides of an argument. The judge therefore has a fine line to walk between “robust case management” and appearing to jump to conclusions which may infect the whole process with the appearance of bias

The Court of Appeal did not want to criticise any Judge who was doing what he was supposed to do and deploying ‘robust case management’. However, there is a line between carrying out that duty and making premature decisions about a case – and the Judge crossed that line in Re Q. The Court of Appeal commented that he:

strayed beyond the case management role by engaging in an analysis, which by definition could only have been one-sided, of the veracity of the evidence and of the mother’s general credibility. The situation was compounded by the judge giving voice to the result of his analysis in unambiguous and conclusive terms in a manner that can only have established in the mind of a fair-minded and informed observer that there was a real possibility that the judge had formed a concluded and adverse view of the mother and her allegations at a preliminary stage in the trial process.

McFarlane LJ however also observed that:

The role of a family judge in this respect is not at all easy and I would afford the benefit of the doubt to a judge even if the circumstances were very close to or even on the metaphorical line.

Therefore it is not going to be easy to establish judicial bias in a family case and you will need to be clear about why and how a Judge crossed over the line from robust case management into being biased against you. But if you can establish bias, the consequences are clear.

A Judge can be found to act unwisely – but not necessarily be biased

A useful case is Bubbles & Wine Ltd v Lusha [2018] EWCA Civ 468 (14 March 2018) where the trial judge had a private conversation with the barrister for one party – primarily about the Judge’s daughter who had undertaken a mini pupillage at that barrister’s chambers. However, the Judge also made some brief comment about what he thought about the state of the evidence and asked the barrister to pass on his comments to the other side. This caused alarm for the other side who wanted the Judge to recuse himself.

The Court of Appeal had some strong words for the Judge’s behaviour in having such a conversation in private and the justifications he attempted to give for why he made that decision. However, their conclusion was clear at para 42:

Applying the established legal test of apparent bias, I am satisfied that the fair-minded and informed observer, having considered all the relevant facts, would conclude that the conduct of the judge in this case, wrong-headed as it was, did not indicate any real possibility that he was biased. I would accordingly dismiss the appeal.

What happens if the Judge is found to be biased?

If the case is on-going, the Judge will have to step down and the case will be re-heard before a different Judge. This is called ‘recusal’.

If the case is finished, then an allegation of judicial bias will be a ground of appeal against his or her decisions. The importance of judicial integrity is such, that if you can establish bias, the fact that a further hearing will be inconvenient and cost money is irrelevant – the Judge must step down.

Lord Kerr in the case of Lesage commented:

59. In a case where it has been concluded that there is the appearance of bias and unfairness, however, these are consequences which simply have to be accepted. They cannot outweigh the unanswerable need to ensure that a trial which is free from even the appearance of unfairness is the indispensable right of all parties and is fundamental to the proper administration of justice. In AWG Group Ltd v Morrison [2006] 1 WLR 1163, para 6 Mummery LJ dealt with this issue thus:

“Inconvenience, costs and delay do not, however, count in a case where the principle of judicial impartiality is properly invoked. This is because it is the fundamental principle of justice, both at common law and under article 6 of the Convention for the Protection of Human Rights. If, on an assessment of all the relevant circumstances, the conclusion is that the principle either has been, or will be, breached, the judge is automatically disqualified from hearing the case. It is not a discretionary case management decision reached by weighing various relevant factors in the balance.”

60. The Board endorses this approach. Where the appearance of unfairness or bias has been established, ordering a new trial free from the taint of that manifestation is unavoidable.

What’s the procedure for recusal?

With thanks to Sam for finding the case

This was discussed in the case of El Faragy and Others in 2007. Lord Justice Ward suggested the following procedure at paragraph 32:

First, if circumstances permit, an informal approach should be made to the judge (for example by letter) making the complaint and inviting recusal. While judges should not yield to frivolous objections, a judge can nevertheless “with honour totally deny the complaint but still pass the case to a colleague”. If the judge does not feel able to do so, then it may be preferable, if it is possible to arrange it, to have another judge take the decision, “hard though it is to sit in judgment of one’s colleague, for where the appearance of justice is at stake, it is better that justice be done independently by another rather than require the judge to sit in judgment of his own behaviour”.

The judgement gives no further clue as to what is meant by ‘if circumstances permit’ and it is difficult to see how family cases would allow the luxury of time to write such a letter and await a reply. It is respectfully suggested that it would probably be better if you raise the matter as soon as you can in court.

UPDATE – information from one of our readers July 2015

It looks as if writing a letter is the way to go – thanks to one of our readers who is attempting to convince a judge to recuse himself. They have been told that the Court of Appeal will pass the application onto a Master without a court order. The application must include a covering letter, the letter to the judge and his reply. We would be interested to hear from anyone else who has tried this.

Mr Justice Peter Smith

For an example of a Judge – Mr Justice Peter Smith – who grudgingly agreed to step down after airing his personal views about his lost luggage in a dispute involving an airline, see this post from Legal Cheek and a masterly take down from suesspiciousminds. The same judge was asked to recuse himself in 2007.

EDIT 17th June 2016; for further comment from the Court of Appeal with regard to the behaviour of this judge regarding a letter he wrote criticising the conduct of a member of one particular Chambers, see the case of Harb v HRM Prince Abdul Aziz Bin Fahd [2016] EWCA Civ 556 and note the comments at para 68:

In his letter to the claimant’s solicitors dated 12th February 2016, the judge accepted that he should not have written the Letter. It is difficult to believe that any judge, still less a High Court Judge, could have done so. It was a shocking and, we regret to say, disgraceful letter to write. It shows a deeply worrying and fundamental lack of understanding of the proper role of a judge. What makes it worse is that it comes on the heels of the BAA baggage affair. In our view, the comments of Lord Pannick, far from being “outrageous” as the judge said in the Letter, were justified. We greatly regret having to criticise a judge in these strong terms, but our duty requires us to do so. But it does not follow from the fact that he acted in this deplorable way that the allegation of apparent bias must succeed. It is to that question that we now turn.

The court concluded at para 74 of its judgment:

We are prepared to assume that the informed and fair-minded observer, knowing of the Article, would conclude that there was a real possibility that the judge was biased against all members of Blackstone Chambers, at least for a short period after the publication of the Article. But for the reasons we have given, the observer would not conclude without more that there was a real possibility that this bias would affect the judge’s determination of the issues in a case in which a party was represented by a member of Blackstone Chambers.

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 need specialist advice – which this blog post does not claim to be.

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.

Does the LA owe a duty of care to parents and/or children that it works with?

The situation for parents as opposed to children is different. With regard to parents, It’s important to consider the difference between:

parents who complain of negligence in the course of an investigation in the child’s welfare
and negligence in other aspects of professionals work with a family.

At the moment, the law does not allow the existence of a duty of care towards parents who are under investigation for possibly harming their children. 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.

The court were happy to assume 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). However, in January 2018 the Court of Appeal over turned this and said that there was no duty to of care to a child who was not removed from home. See CN v Poole BC

BUT in a judgment handed down on 6th June 2019 The Supreme Court have now revisited the decision of the Court of Appeal and confirmed that it should not be interpreted to mean “an assumption of responsibility can never arise out of the performance of statutory functions ” [para 72] thus returning the law to the position it was in prior to the Court of Appeal decision in Poole. The Supreme Court confirmed that the Court of Appeal were right to decide that no duty of care to the children arose in the circumstances of this particular case – but that doesn’t mean a duty of care could not be found in a different case.

See further discussion by The Transparency Project.

But back to parents. It appears to be remaining good law 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 legal principle that wrongs should be put right. 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.

See discussions above about the twists and turns to the law following the Court of Appeal decision in Poole. The Supreme Court has confirmed that a duty of care can be owed to children, even if not taken into LA care.

We can trace the history of this developing position from the House of Lords decision in X v Bedfordshire CC [1995] 3 All ER 353] which 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). The children in that case had not been removed from their parents care and suffered very serious neglect and psychological harm as a result.

This was recognised in JD V East Berkshire, together with subsequent domestic cases, leading to the conclusion 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 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.

Complaints against a public body – a parent’s advice and perspective

We are grateful for the comments of one of our readers ‘C’ who has not had a good experience of social work intervention, nor found that his complaint was dealt with either quickly or competently. He eventually took his complaint to the Local Government Ombudsman and found their response unhelpful. What happens when you have reached the end of the complaints process but you still don’t think you have achieved resolution of your complaint?

For discussion of the various legal remedies against mistakes or poor performance of a public body, see this post.

When bad mistakes have been made, a kind of bureaucratic protectionism kicks in.

What can you do when things go wrong?

One of the greatest inhibitors in terms of application for Judicial Review is that the decision must almost always be challenged within 90 days – otherwise the judge may rule you out of time.

Individual social workers or hospital professionals registered with Health and Care Professions Council can be investigated by them for malpractice. All members have a duty to follow a code of ethics. So it is worth pursuing things there.

With regard to Freedom Of Information requests, I would discuss the best way forward here, with the Information Commissioner’s Office. There are exemptions to your receiving personal information but these can be considered and overruled by the (ICO).

If names were altered and logged inaccurately, etc. then these are breaches of the Data Protection Act which the ICO are supposed to police. They are toothless and pettifogging… but if you persist and manage to drill your way through to the upper levels of management, you can get a more sympathetic ear as they are interested in any cases of flagrant data injustice which might end up in them getting stronger powers in data protection from the government. You can sometimes get access to Data Subject Access Request information that is exempted, if the data may be required for future legal proceedings.

Contact the ICO on 0303 123 1113 and open a case with them. Press them to investigate it. Copy everything to your MP. [The professionals] will not want to appear uncompliant in the eyes of the ICO as the ICO is able to hand out hefty fines to corporate bodies. Force them to acknowledge your issue.

Do your best to be clear and concise in your dealings with these people. Remember they are dealing with this stuff all day, every day… and have limited patience for your emotion. Even though of course your outrage is entirely justified, it may just become an extra burden for them – and thus hamper your progress.

Why do things go so wrong?

In terms of [descrbing professionals as] lying, cheating and betraying – I realise that it is more likely unconscious, systematised behaviour and so defining it as lying, cheating and betraying may be pejorative. It is inept in the sense that a broken food processer throws food all over the room. The result is a mess: the solution is to fix the processor. Or to throw it out and go back to chewing.

Isn’t simple human error still misfeasance, when those errors represent breaches in frameworks that they are supposed to comprehend and follow?

I see how chronic ineptness can be portrayed as simple human error, and is not necessarily ‘conscious’. Mind you, being in a stupor is no defence when driving – so it is difficult to appreciate why it should be admissible when administering the law..

And what are the consequences?

The experience of ‘C’ has been that the available remedies are either subject to strict timescales or depend on being able to prove bad faith on the part of professionals, which is difficult to do.

This is a steep track to negotiate with limited funds. It ain’t justice as anyone unaccustomed to bureaucratic process and unlimited time to play with other peoples lives and money, would recognise.

And the consequences are the destruction of any constructive professional relationship and a sense of despair for the parents left without a remedy.

I think bitterness at injustice and lack of closure makes one deaf to rational argument. It is somewhat remarkable that [some parents are] still exploring legal routes, and not investigating home bomb-making, or kidnapping strategies…

As for being a victim, the unfortunate truth of post-capitalism, is everywhere that you pay with your attention. In my complaint, I have helped justify their existence, improved their systems of control, and helped guarantee their salaries. There is no comfort in that.

My heart goes out to [families in a similar position] – and I fear for them. They seem distorted by unassuageable pain. Whatever the justice of their case, or the LA’s actions, the fruits are only bitterness and despair for everyone except those employed to purvey the misery, and uphold the myth of adversarial justice.