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Local Authorities, Child Protection and Negligence

Rebecca Opie and Rhiannon Evans of Clarke Wilmott discuss the potential remedies where adoptive parents claim that information about the adopted child has been withheld.

Local Authorities, Child Protection and Negligence

Rebecca Opie, Solicitor, Clarke Wilmott

Rhiannon Evans, Solicitor, Clarke Wilmott

1 Introduction

A programme highlighting the potential difficulties of adoption was the subject of a recent BBC TV documentary. A couple who had adopted two boys spoke candidly of the problems they had faced as the children grew up. The boys had frequently stolen money from them and they had caused substantial damage. Both of the boys had substance abuse problems and had spent time in prison. The documentary focused upon both the parents' attempts to keep the family together and also a claim that the parents wished to pursue against the local authority ("LA") acting as an adoption agency ("AA") in placing children with them. Their claim was that they were given insufficient knowledge about the boys at the time of placement. Ultimately the parents did not proceed with any complaint to the court at that time because of funding constraints and, although this was not made explicit, the uncertainty of outcome given the present uncertain state of the law.

Research indicates that for children placed for adoption beyond infancy the breakdown rate is 20% and for children placed at 10 years or older it is 50% (R. Barth and M. Berry, Adoption and Disruption; rates, risk and responses [Aldine de Gryter, 1988]). Thus, the outcomes in adoption placements are far from certain and can leave all concerned feeling bereft and the children further destabilised.

This article will comment on our own recent experience in this area, the law as it presently stands and other potential remedies.

2 Our Experiences

In the last 12 months our firm has been instructed by two families who have had potential claims against local authorities in scenarios similar to the one highlighted by the BBC.

In one case an AA placed a six year old child with a couple. The child was described by the AA as having some behavioural difficulties. Immediately following the placement the adoptive parents met the child's therapist who informed them that whilst the child had difficulties, the child was basically happy and loving. The parents also allege that the therapist had a large file about the child that she was unable to disclose. Initially the adoptive placement went extremely well although subsequently the extent of the child's behavioural difficulties became apparent. The child had substantial difficulty forming attachments, particularly with the adoptive mother and peer group which caused difficulties at school, sometimes soiled herself, stole and hid food and found it impossible to integrate into the family.

The AA say that at the time of placement they were unaware of the extent of the child's difficulties. However subsequent meetings between the potential adoptive parents, the therapist and the child's social worker indicate that the AA had a more in depth knowledge than they had previously indicated. The adoptive parents were not naïve about adopting a child of this age who had grown up almost entirely in the care system and recognised the likelihood of problems. Nevertheless, they argue that if they had been aware of the child's past history/ likely difficulties then they would have been far better equipped to deal with the problems faced. Ultimately the placement broke down and the child was removed. This has had devastating consequences for the child who has lost two "forever families" and for the adoptive parents who have separated.

In the second case an eight year old was linked with prospective parents and placed with them in 2000. The prospective parents say they had a number of meetings with the child's social worker and foster parents prior to the placement and although were informed the child had "special needs", did not receive, despite requesting from the AA, sufficient details of the child's family, educational or health background. The placement was difficult from the start and it became clear that the child suffered from a sleep disorder, had anger management issues and very little self care knowledge. The adoptive parents state that they sought assistance from the AA but no training or significant support was forthcoming. The adoptive parents found the child very difficult to care for. However a strong bond developed and they proceeded with the adoption. An adoption order was made in 2001.

The family situation deteriorated and, in 2003, at the age of 11 the child attempted to commit suicide and to kill the adoptive family. This precipitated the AA finally to provide a support package and give the adoptive family proper information about the child's early life. The adoptive parents contend that the support package was wholly inadequate and that the allocated social worker was inexperienced and not appropriately supervised. Although the child remains with the family the adoptive parents allege that they have suffered physical injury (as a result of assaults by the child), psychiatric injury and also economic loss as a result of them needing to take time off work due to stress caused by the placement. The adoptive parents allege that if they had been informed in advance of the adoption placement they would have either not proceeded with it, or insisted upon support/training from the start.

In the first case outlined, as the law currently stands (see below) evidentially it is unlikely that a claim would succeed. The latter case, however, has a higher chance of success, although compensation in any successful claim is likely to be low and the cost of such a case is prohibitively expensive and public funding uncertain.

3 The Law

In the past 10 years there have been a number of important cases brought by/ on behalf of children and their biological/adoptive parents. These claims have alleged breach of statutory duty and negligence on the behalf of the LA (carrying out their social services department/AA function) both primarily and vicariously through their employees. The initial cases were struck out at the court of first instance for failure to disclose a cause of action and were then subject to appeal. However from 1999 onwards the court declined the LA's applications to strike out and have been willing to impose a duty of care in negligence in certain circumstances.

Before considering the case law we have set out some broad definitions upon which the claims have been made and the tests the courts apply when assessing claims.

3.1 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. To establish a claim 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.

In some legislation there is an express provision as to whether or not there is an actionable case, but most legislation is silent and the courts therefore have to "discover" Parliament's intention.

3.2 Negligence

To succeed in a common law negligence claim the claimant must satisfy a three limb test:-

a) they are owed a duty of care – if this is uncertain the test to establish duty is set out in the leading case of Caparo Industries v Dickman and Others [1990] 2 AC 605 - the damage owed to the claimant was foreseeable, there is a relationship of proximity and it is fair, just and reasonable to impose liability;

b) there has been a breach of that duty of care;

c) damage has flowed as a direct result.

Historically courts have been reluctant to rule that LAs have a duty of care in the fulfilment of their child protection work .This is mainly for public policy reasons - LAs are fulfilling their statutory duties in a discretionary manner.

This is clearly stated in the House of Lords("HL") decision in the case of X (Minors) v Bedfordshire County Council; M (A Minor) and Another v Newham London Borough Council and Others; E (A Minor) v Dorset County Council; Christmas v Hampshire County Council; Keating v Bromley London Borough Council [1995] 2 FLR 276 . The HL considered five cases, two of which related directly to social services' child protection role. In the Bedfordshire case the LA had failed to remove the children despite evidence of horrific neglect and emotional and physical abuse. In the Newham case there were concerns of sexual abuse and the child was removed from the care of her mother. The LA arranged for a child psychologist to interview the child and she stated that she had been abused by a man. She named the abuser who had the same first name as her mother's partner, although the girl denied that it was the partner. The mother indicated that she was prepared to co-operate to ensure her daughter was returned. However the child's return was opposed by the LA and the child psychologist who also declined to provide the video/transcript of the interview to the mother. When the tape was finally disclosed the mistaken identity of the abuser became apparent but by then the child had been in foster care for 12 months.

In both cases claims were made to the Court in damages against the LA for breach of statutory duty and negligence. The LAs applied for the claims to be struck out and that was upheld at both first instance and the Court of Appeal ("CA") . The claimants appealed to the HL which upheld the CA's decision. The HL found that two of the three necessary components as per Caparo (forseeability and proximity) were met but the third - that it was "fair, just and reasonable" to find a duty of care - was not. Therefore the LA could not be liable in damages even if the decision was outside of the ambit of the statutory discretion because it had acted so unreasonably: this is the third element of Caparo, which states

"The court should proceed with great care before holding liable in negligence those who have been charged by Parliament with the task of protecting society from the wrong doing of others."

The court cited the following reasons:-

• multi-agency approach to child protection;
• the delicate nature of the decisions being made by social workers;
• the impact upon the manner in which LAs undertook their work if such duty were found;
• liability could result in increasing and often vexatious litigation by parents;
• there were already complaints and investigative procedures under the Children Act 1989.

By contrast, in the New Zealand case, Attorney General v Prince [1998] 1 NZLR 262, the Privy Council found that the failure of the New Zealand equivalent of an English/Welsh Social Services department to investigate a complaint of child abuse should not be struck out.

In Barrett v Enfield London Borough Council [1999] 2 FLR 426 the House of Lords retreated from its position in X Minors and refused to strike out the claim as the LA wished. The claimant had been taken into care at 10 months of age and remained so until he was 18. He had numerous placements, five different social workers and one period without any social worker at all. He alleged that as a result of these experiences he had severe psychiatric difficulties caused by the LA's breach of its statutory duty and negligence. He argued that the LA had a duty of care to act in loco parentis and to provide him with the standard of care expected by a reasonable parent. The HL found that the claim should not be struck out and that Barrett could be distinguished from X Minors on the basis that care proceedings had been instigated and the complainant was in the care of the LA. It held:-

• Certain acts pursuant to the lawful exercise of a statutory discretion could be subject to a duty of care. This meant that although the decision to take a child into care was non justiciable (non actionable), the manner in which the LA cared for that child subsequently could be subject to such a duty. The court distinguished between operational and policy decisions - the former being non actionable and the latter potentially so. An example of a policy decision could be for the LA to decide to inspect all children's residential units whereas an operational decision would be how the units were to be inspected. The LA would have a duty of care to the resident children to inspect to a reasonable standard. The HL concluded that there was inevitably overlap between policy and operation and the court needed to make findings of fact which required a full evidentiary hearing.

• It may not be unreasonable to impose a duty of care on a LA for a child in its care - requiring the conduct of the LA to be measured against the standards of the reasonable person was in the public interest. Although child protection was multi-disciplinary the responsibility to the child was ultimately the LA's.

• Social workers looking after children were professionals and owed their clients a duty of care in some respects just like other professionals.

W v Essex County Council [2000] 1 FLR 657 involved a claim by foster parents and their biological children against the LA for placing a child who was a known sexual abuser within their family despite their express statement to that LA that they were not prepared to foster children who were known/suspected of being sexual abusers. The foster child subsequently abused all of the children of the family. The parents brought a negligence claim against the LA alleging psychiatric injury. The LA applied at first instance to strike out the parents' claim because they were not primary victims and argued proximity. The HL ruled that it was arguable that there was a duty of care and that there should be an investigation of the full facts. The court also considered that the parents may have sufficient proximity to be both primary or secondary victims.

The parties in X (Minors); and M (A Minor) made an application to the European Court of Human Rights alleging breaches of the European Convention of Human Rights: in X Minors for violations of Art 3 (Torture, inhuman or degrading treatment), Art 6 ( Right to a fair trial) and Art 13 (Effective remedy within the domestic state); and in M (A Minor) for breaches of Art 8 (Right to family life), Art 6 and Art 13. The court considered these in Z and Others v UK [2001] 2 FLR 612 and TP and KM v UK [2001] 2 FLR 519. The ECHR upheld the majority of both claims although found no violation of Art 6 and awarded damages.

A further New Zealand case B v Attorney General of New Zealand [2003] WL 21660134 was brought by a father and his two daughters. Here one of the children had made an allegation of sexual abuse against her father as a result of which both children were taken into care. The child subsequently retracted the statement and the medical evidence was inconclusive. The children were ultimately returned to their father's care. They all subsequently began proceedings alleging negligence on the part of the equivalent of an English/Welsh LA for damages including trauma. At the CA the Crown applied to strike out the claims - the NZ CA held that the father's claim should be dismissed and that Crown's duties towards the children was confined to deciding whether to investigate/ institute proceedings. The family appealed, and, analogous to Barrett, it was held that the duty of care was ongoing but that there was no duty owed to the alleged perpetrator.

The final case we cite is the most similar to our own experiences: A and another v Essex County Council [2003] EWCA Civ 1848. Here a couple adopted a brother of 6 years and sister of 3. The prospective adopters specifically informed the AA that they would consider a child with mild behavioural problems, but not one needing special education outside of mainstream school or with physical or psychiatric disabilities. The AA knew that the boy had severe behavioural difficulties and had a history of violent outbursts and destructive behaviour. The Adoption Agency Regulations 1983 (Reg 12) provide that the AA are obliged to provide written information regarding, amongst other things, a child's health. Following placement the child's behaviour was appalling - he demolished a greenhouse, hospitalised his mother whilst pregnant and threw an iron at the new baby. The parties nevertheless proceeded with the adoption although the child was subsequently accommodated by the LA. The adoptive parents made an application against the AA alleging negligence. The High Court found that there had been a failure by the AA to disclose sufficient information that was within their knowledge about the child's background and which they had decided to make available. The court ordered that damages should be payable to the adoptive parents from the date of the placement until the date of the adoption order - fourteen months later. However no damages were awarded for the period after the adoption order on the basis that the parents proceeded with the adoption once they were aware of the child's difficulties. Both the AA and the adoptive parents appealed.

In the CA it was held that there was no duty of care owed by an AA in determining what information was to be given to prospective adopters, unless they took a decision that no other agency would reasonably take. However once the AA had decided what information should be given, they were under a duty to take reasonable care to ensure that that information was both given and received. The court also upheld the cut off date for the damages as the date of adoption.

4 Alternative Actions

This article considers claims against LAs alleging either breach of statutory duty or negligence. As the law currently stands, if negligence is found, only limited financial compensation will result. There are alternative ways to pursue complaints which can result in either a financial award or an apology.

These include pursuing a claim through the Criminal Injuries Compensation Authority although this body can only award compensation for criminal acts and not the consequences of neglect. Additionally, the compensation scale for injury is low.

An alternative option is a complaint for violation of rights under the European Convention on Human Rights. The Human Rights Act 1998 came into force on October 2nd 2000 and s7 grants a right of action to claim against a public authority that has acted incompatibly with a person's Convention right(s) and is therefore unlawful within a domestic court. However this is not retrospective and for Convention rights violated before that the ECHR is the only forum.

In addition, all LAs are obliged by statute to have a complaints procedure and provide advocacy assistance during that procedure. Ultimately, if the complaint is unsuccessfully resolved, a referral may be made to either the Commission for Social Care Inspection and/or the Local Government Ombudsman.

5 The Future

The cases outlined above show how far the law in this area has moved in 10 years. It is now established law that social services departments may be sued. The decision in A v Essex is also to be welcomed; however time limiting the claim means that financial compensation is restricted. It is also very difficult to see how, once a child had been placed, prospective adoptive parents would fail to proceed to adoption - attachments grow and the adults feel both love and moral responsibility towards that child. Moreover for families who desperately want children it would be very difficult to admit that things are not perfect and they need further help and support.

It is also important to recognise in both the A v Essex case and also those in which we have been involved, these were not naïve couples who had no parenting experience: all had had children from previous relationships and seen them grow up successfully. Although there was a strong desire to adopt a child, there was also an element of altruism in their decision - from their own experiences, and the assessment process, they would have been very aware that the children entering their lives would have problems. It is however unrealistic to suppose that they could comprehend the extent of these problems without prior knowledge.

Meanwhile the lesson for the LAs is that as much information as possible should be provided and that clear policies should be put in place to ensure that information is released.