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A Lack of Care: Local authorities, care and negligence claims

Rawdon Crozier of Kings Bench Chambers, Plymouth, reviews the rise of negligence claims arising from local authority care and gives practical advice on how family lawyers can handle such cases

image of Rawdon Crozier, barrister, Kings Bench Chambers, Plymouth

Rawdon Crozier, Kings Bench Chambers

Introduction
1. This article addresses recent developments in the law concerning claims against local authorities and others upon whom there is cast a responsibility for child protection. It also aims to give some practical guidance.

2. Broadly, potential claims will fall into two categories:

i)  those relating to claims for failing to protect children, and
ii) those based on the overly enthusiastic pursuit of child protection investigations

and will involve two types of potential litigant: children and parents. In general, only children will bring claims of the first type (although where abuse has been allowed to occur at the hands of a residential parent, the absent parent may be involved in proceedings as the child's litigation friend). Parents or children could be involved in claims of the latter type.

3. It might appear that the topic is more suited, say, to a personal injury newsletter but family practitioners, particularly those practising in the field of public law children's work, ought, at least, to have a general awareness of this subject because they may find themselves being taxed, in the course of cases in which they are involved, about the availability of remedies against, say, a local authority (or, indeed, upon the potential vulnerability of a local to such remedies). Furthermore the family practitioner who is not afraid to venture outside his or her comfort zone or who already has a more mixed practice has, in many ways, a good deal more to offer than the personal injury specialist having to acquire a working knowledge of local authority child protection procedures and the arcania of public law children work. A family practitioner's knowledge, experience and sensibilities can also be a distinct advantage in pursuing such claims on behalf of claimants who are ex hypothesi damaged and potentially vulnerable individuals.

4. This article is up-to-date at time at time of writing but, in what is a developing field, nothing can be guaranteed to be definitive or to remain definitive for very long. While this article focuses on the liability of local authorities, it should be remembered that they are not the only potential defendants to such claims; circumstances may arise
in which the liability of other such as medical practitioners or the police have to be considered.

Principles Applicable: A Brief History and Recent Developments
5. As recently as 1995, in the case of X (Minors) v Beds CC [1995] 2 AC 663 (HL), the House of Lords ruled in relation to five related appeals concerning claims against local authorities that no cause of action existed either in negligence or as a breach of statutory duty. The complaints in X (Minors) were of failures by the local authorities to:

i) investigate of allegations of parental abuse and neglect;
ii) investigate subsequent serious reports of abuse,
iii) exercise sooner the power to begin care proceedings under the Children Act 1989 or earlier legislation; and
iv) identify, in accordance with their statutory duty, children in the local authority area in need and protect them from harm.

6. The House of Lords restated the well-established principle that the right of an individual to seek private law remedies for breaches of public law duties did not arise unless it could be shown that the statute creating the duty also intended a remedy and that the exercise of the discretion was outside the ambit of the discretion created by statute. In the course of the principal speech, Lord Browne-Wilkinson also said that there were very potent considerations which militated against allowing the claimants a remedy; that the imposition of a common law duty of care would cut across the whole statutory system set up for the protection of children at risk and that if liability and damages were to be imposed, it might well be that local authorities would adopt a more cautious and defensive approach to their duties which  could prejudice the child at risk and reduce the time available to deal with other cases and other children.

7. Four of the five unsuccessful appellants in X (Minors), however, took their cases to Europe and in Z & o/s v UK [2001] 2 FLR 612, the European Court held that there were violations of Art.3 & Art.13 of the European Convention on Human Rights where a local authority failed to protect children from neglect and abuse amounting to inhuman and degrading treatment and the children were not afforded suitable means of obtaining a determination of such allegations or the possibility of obtaining an enforceable award of compensation for the damage suffered. In awarding compensation the Court said, inter alia that Art.13 guaranteed the availability at national level of a remedy to enforce the substance of Convention rights and freedoms. The applicants had not been given appropriate means of obtaining a determination of their allegations that the local authority had failed to protect them from inhuman and degrading treatment; nor were they given the possibility of obtaining an enforceable award of compensation for the damage suffered thereby. Consequently, they were not afforded an effective remedy in respect of the breach of Art.3.

8. There was an interesting period following Z & o/s v UK before there were any reported domestic decisions about its impact during which X v Beds CC, superficially at least, remained good law. There was the further difficulty that, while the European decision would have allowed the Human Rights Act 1998 to be used to override X. (Minors) in cases where the cause of action arose after it had come into force, in an area in which many claims were historic, the likelihood was that the HRA would, at best, afford a partial remedy in some cases. It was around this time that I found myself advising, for the first and only time in my career thus far, that the existence of an unfavourable House of Lords decision should not prevent Legal Aid being granted so that a claim could be pursued.

9. It was therefore a relief, as I am sure it was to many other practitioners, when D & Ors v. East Berks NHS Trust & Ors [2003] Lloyds Law Rep Med 552 was decided by the Court of Appeal. It was held not only that, so far as it concerned the position of child, the decision in X (Minors) could not survive the HRA but that while wrongful acts or omissions which occurred before October 2000 could not give rise to a claim under the HRA, that could not constitute a valid reason of policy for preserving a limitation of the common law duty of care which was not otherwise justified. This was a sensible, pragmatic decision because it obviated the need for claimants whose cause of action arose before October 2000 to seek their remedy in Europe (see para 83). D v East Berks was not a panacea to the problem of X (Minors), however, because i) the important part of the decision was obiter, ii) it was an appeal in a striking out and iii) the guidance it gave as to the nature and extent of the duty of care to children by local authorities was not exactly full. What was said, at paragraph 84, was the following:

"... it will no longer be legitimate to rule that, as a matter of law, no common law duty of care is owed to a child in relation to the investigation of suspected child abuse and the initiation and pursuit of care proceedings. It is possible that there will be factual situations where it is not fair, just or reasonable to impose a duty of care, but each case will fall to be determined on its individual facts."

Imagine, for a moment, the practical consequences of that guidance when it comes to pleading a claim, which could involve a history of many years, in which each individual fact could be material to the existence or otherwise of the cause of action.

10. It should also be noted that the primary decision in D v East Berks was that health professionals responsible for investigating suspected child abuse did not owe a parent suspected of having committed the abuse a duty sounding in damages if they carried out that investigation in good faith but carelessly. It follows that in relation to suspected parents X Beds CC remains good law; a decision subsequently confirmed by the House of Lords at [2005] UKHL 23, [2005] 2 AC 373.

11. This means that parents who believe they have been wronged by child abuse investigations have no cause of action in negligence but may be able to pursue more inventive remedies such as misfeasance in public office and conspiracy, both of which have been held to be arguable, see B v Reading BC & Ors [2007] EWCA Civ 1313, Times, December 27, 2007. Additionally where decisions regarding the exercise of child protection measures have been made in excess of or without jurisdiction so as to be unlawful, there may be remedies by way of judicial review, including a claim for damages  see the related decisions of Munby J. in R (G) v Nottingham City Council [2008] EWHC 152 (Admin) and  R (G) v Nottingham City Council [2008] EWHC 400 (Admin).

12. The preceding paragraph effectively encompasses the extent of the advice that can be given to parents in the second type of claim outlined at paragraph 2 above. It should be noted, however, that the duty owed to children may found a cause of action in the second type of claim - see L (A Minor) v Reading BC & Anor [2001] EWCA Civ 346, [2001] 1 WLR 1575 (an earlier part of the B v Reading BC litigation).

13. Returning to claims of the first type, the decision of Eady J. in Pierce v Doncaster MBC [2007] EWHC 2968 (QB), decided on the 13th. December 2007 marks, it is to be hoped, the beginning of the final stage of establishing the nature and extent of the duty of care owed by local authorities to children in need of protection, being a substantive decision rather than one decided on, or on an appeal from, an application to strike out.

14. Pierce has itself been the subject of an appeal. It is perhaps a significant indication of the degree to which the law has developed that the existence of a duty of care, which Eady J. found to exist was not challenged on appeal. The substance of the decision of the Court of Appeal in Pierce v Doncaster MBC [2008] EWCA Civ 1416 is considered below.

The Duty and Standard of Care
15. The effect of Eady J's judgement is that the duty of care is engaged once the child has come to the attention of the social services department.

16. The standard of care to be expected of a social services department's staff and, in particular, its social workers, is that of a competent department judged according to the prevailing professional climate of the time - Bolitho v City and Hackney HA [1998] AC 232 applied. One gloss that I would add to this and which does not appear in the judgment, it that is always possible to find a practice negligent, even it is in general or universal usage within a particular profession if it is not "rightly" accepted as a reasonable practice - Sidaway v Royal Bethlehem & Maudsley Hospital [1985] 2 WLR 480, 505.

Expert Evidence
17. It follows that in order to pursue a claim to a successful conclusion, suitable expert evidence about prevailing professional practice is essential. It is advisable to seek such evidence virtually as the first substantive step and certainly before any Pre-Action Protocol letter is written.

Causation and Damage
18. A particular problem is that the instances in which a completely undamaged child should have been instantly removed to care before having suffered any harm whatsoever are likely to be extremely rare. Generally claims will be made by children who were already damaged well before the local authority's duty of care had been engaged. The practical consequences of this are:

i) the social work expert will need to identify each and every point at which action should have been taken and was not taken to protect the child (because a court may not agree that the first instance identified was the point at which the child should have been removed)
ii) the medical evidence (and this is particularly so in the case of psychiatric or psychological evidence) needs to take account of damage which would have been suffered in any event had the local authority acted properly,
iii) if all the injuries (including any psychiatric or psychological damage) had been suffered before the point at which the local authority should have intervened a claim will either fail on causation or will be confined to a relatively modest one for short-term pain and suffering.

The Quantum of Damages
19. The pool of decided cases directly on point so far as quantum is concerned, is currently limited to Pierce but Eady J. used and the Court of Appeal endorsed his use of care home abuse cases such as Various v (1) Bryn Alyn Community Homes & The Royal & Sun Alliance [2003] EWCA Civ 85 [2003] 3 WLR 107. As a matter of practical guidance the transcript, which contains the individual quantum decisions, is of more use than the official reports, from which they are omitted.

Limitation
20. Limitation is often a factor because psychological trauma may deter a potential claimant from bringing a claim for well into his or her adulthood. This is another reason why family practitioners need to be aware of the law in this field because an early steer that such a claim might in the future need to be considered might in some cases be sufficient to ensure claims are brought before limitation has become an issue.

21. The first instance decision in Pierce pre-dated the definitive restatement of the law on the operation of ss.11, 14 and 33 of the Limitation Act 1980 in A v Hoare [2008] UKHL 6. Section 11 gives the primary three-year limitation period for personal injury claims (it is three years from their majority in the case of minors, of course), s.14 extends the period where the date of knowledge is later, while s.33 gives the court a discretion to disapply the limitation period. At the time of the decision in Pierce, there was an errant but well-established body of authority which suggested that the discretion under s.33 was confined to a limited "residual class of cases", which in turn had lead to a strained construction of s.14, under which a subjective test was applied to the date of knowledge to circumvent the obvious potential for injustice.

22. In Hoare, the House of Lords held that victims of abuse (the actual appeals concerned sexual abuse but there is no need for the type of abuse to be so limited) did not fall to be treated differently from any other person, claiming to have had a later date of knowledge. The argument that the claimants' mental state had a bearing on  their date of knowledge under s.14 was rejected. The test in s.14(2) of the Act was held to be an entirely impersonal standard: not whether the claimant himself would have considered the injury sufficiently serious to justify proceedings, but whether he would "reasonably" have done so. The correct approach was to ask what the claimant knew about his injury, add any "objective" knowledge which might be imputed to him under s.14 (3) and then ask whether a reasonable person with that knowledge would have considered the injury sufficiently serious to justify his instituting proceedings for damages. Having ascertained what the claimant knew and what he should be treated as having known, the actual claimant dropped out of the picture, and judges should not have to consider the claimant's intelligence or mental state. That did not mean that the law regarded them as irrelevant but they were factors which fell to be dealt with in deciding whether to exercise the discretion to disapply the limitation period under s.33 of the Act, which is unfettered. A court can thus give due weight to evidence that a claimant was for practical purposes disabled from commencing proceedings by the psychological injuries he had suffered.

23. In Pierce, Eady J. had decided the issue of limitation on the basis of the strained construction of s.14 and, on appeal, the case was remitted to him for it to be decided according to the discretion under s.33.

24. One final point on limitation is that where it is an issue, the claimant's knowledge of what happened to him or her, particularly if the abuse from which they were not protected occurred at an early age, may be derived to some degree from life story work and the discharge summary provided on leaving care. Something to which practitioners might have regard, is whether that has had an impact on the date of knowledge, or even whether misleading information given in either might engage Section 32(1)(b) of the Limitation Act 1980, which operates to postpone the running of the limitation period when: "any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant". A care discharge summary might say "...and no-one knew what was happening to you in the home until X. happened...", when the reality is that there had been 18 months of reports by neighbours of abuse within the home and ineffectual investigations by social workers before event X. had occurred to trigger the taking of active child protection measures (the example is designed to give the flavour of something I have actually encountered).  The topic could warrant an article in its own right but, for present purposes, I simply draw attention to the potential argument.

Funding/Legal Aid
25. Claims against local authorities will generally involve the need for extensive pre-action disclosure and the need for potentially expensive expert reports before a definitive decision can be reached about the merits. The claimants are often damaged and vulnerable and there is an inherent risk that they will not be able to stay the course of litigation. Therefore funding through a conditional fee agreement insofar as it is an option, is unlikely to be a realistic way of funding the great majority of cases and the premium for insurance against costs are likely to be prohibitive.

26. Public funding is, however, available for claims against a public authority in cases involving "serious wrongdoing" under Schedule 2 to the Access to Justice Act 1999 and escapes the general exclusion of funding for personal injury claims - see R (on app. of G) v LSC [2004] EWHC 276 (Admin) (2004) PIQR P26. What amounts to serious wrongdoing has to be judged applying to the circumstances of the case the following criteria:

a) the nature of the duty owed;
b) the purpose of the duty, to whom the duty was owed, to what class of person the duty was owed and the protection that the duty was designed to afford;
c) the quality of the acts or omissions alleged to constitute the wrongdoing and the circumstances in which they had occurred;
d) the harm or risk of harm that the breach occasioned; and
e) the public function dimension of the duty and the priority of funding by the Legal Services Commission.
- ibid. paras 60-61. It should be noted that the case concerned the previous version of the Public Funding Code and I am not aware of how the LSC are seeking to interpret it in its current incarnation.  

Pre-Action Disclosure
27. For adult claimants pre-action disclosure is not generally problematic in terms of obtaining it. Local authorities generally have a standard procedure and will respond to a written request in the appropriate form where the records involved are no longer active. Different considerations, of course, apply when, say, public law proceedings are ongoing but as a matter of practicality, if there are ongoing public law proceedings, it is probably a little early to be launching a substantive claim, if for no other reason than that any long term damage may not have started to manifest itself and what may seem to be serious psychological damage, for example, may in fact resolve more readily than is feared.

28. The most important step with disclosure is to examine it carefully and maintain its integrity. The final page of a case conference which recommends "refer to legal if the child is not seen by Social Workers on the next visit" and which is plainly misplaced in the disclosure provided should not be returned to its proper position in a file without some record being made of where it came from, because if the child was not seen on the next visit and the matter was not referred to "legal", the misfiling may turn out to have been something evidentially significant.

Client Care
29. Another difficulty in cases of this type and with which the family lawyer may practically be more able to cope, is in the field of client care. Returning to the first instance decision in Pierce, the claimant was described as being:

" a troubled young man in numerous respects. In particular, it is stated in the joint psychiatric report that he is "a very disturbed man who has had serious mental health problems throughout his life" and that "the main diagnosis in adulthood is emotionally unstable personality disorder, which is sometimes known as borderline personality disorder". In addition, it is accepted that he suffers from "particular problems of anxiety and agoraphobia which can be considered part and parcel of the underlying personality disorder"...

...as the psychiatrists agree ... there are questions as to his credibility because of "the extent to which the Claimant's mental disorder leads him to have a distorted view of the world that is sometimes at odds with the way the world is seen by others who are not mentally disordered". They added the observation that he is "a less reliable informant than the average claimant and that particular care must be taken to corroborate his recollections"."

There are other difficulties; a claimant may have developed coping strategies, which even the ordinary course of taking a full witness statement may threaten to undermine. I venture to suggest family practitioners may be more alive to the potential risks. The best strategy is to tread carefully and proceed with caution. Where there are such problems, early involvement of a good expert may well assist. Sometimes it may be better for the expert to take the history in the course of preparing a report.

Conclusion
30. In the space of less than 10 years, an essentially new area of law has developed. The prevalence of news reports about internal difficulties within social services departments - brought on in part by Government reforms aimed intended to improve performance - and the additional financial burdens brought about by the imposition of fees for bringing care proceedings suggest that it will develop and grow still further. Family practitioners ought not to be afraid of spreading their wings a little.

Addendum: (published 17 June 2009)
Two recent decisions:
TF v Lewisham LBC (2009) LTL 27/4/2009: not negligent per se to attempt rehabilitation;
Albonetti v Wirral MB [2009] EWHC 832 (QB): limitation not disapplied where fair trial impossible.