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AD and Another v Bury MBC [2006] EWCA Civ 1

Appeals in respect of unsuccessful claims for damages arising out of care proceedings dismissed.

AD and Another v Bury MBC [2006] EWCA Civ 1

Court of Appeal: Mummery, Laws and Wall LJJ (17 January 2006)

Appeals in respect of unsuccessful claims for damages arising out of care proceedings dismissed.

This case concerned two appeals, arising from different aspects of the same facts, by a mother and her son. The child was born in August 1996 and, in January 1997, he sustained four rib fractures while in the care of his parents; this led the local authority to suspect non-accidental injury, and the child's name was placed on the Child Protection Register. In May 1997, an interim care order was made, directing an assessment of the child pursuant to section 38(6) of the Children Act 1989; as a result, the child and his parents spent approximately three months at a family resource centre, where it was intended that a full residential risk assessment should be carried out.

In August 1997, at the end of a four-day contested hearing, a judge renewed the interim care order, and the child was placed with foster parents. In December 1997, the local authority received advice from the NSPCC that, as a result of a risk assessment that it had carried out, the child should be speedily rehabilitated with his parents, and he was returned to his parents' care.

Although the child's rib fractures had been initially diagnosed as resulting from inflicted, non-accidental injuries, it was subsequently accepted that he suffered from brittle bone disease; accordingly, the rib fractures had an innocent explanation and were not the result of non-accidental injury. The mother, and the son by his mother as his litigation friend, claimed damages arising out of alleged negligence by the local authority, on the basis that it had mistakenly believed the injuries to be non-accidental; the resulting care proceedings forced the mother and child to be separated for a period of some four months; and, as a result, each had suffered justiciable damage.

At first instance, the judge dismissed the mother's claim, holding that the local authority did not owe her a duty of care in tort. As to the son's claim, the local authority conceded that it owed him a duty of care, but argued that he could not be shown to have suffered any damage as a result of any negligence on its part (which was not admitted); and the judge dismissed his claim also. Permission to appeal was granted, but it was ordered that both appeals be stayed until judgment was given in D v East Berkshire Community Health NHS Trust and others [2005] UKHL 23.

On appeal, it was ingeniously argued for the mother that the East Berkshire case could be distinguished from the present case; on behalf of the son, it was contended that the failure to ensure that the risk assessment was properly carried out, followed by the abrupt removal from the care of those with whom he had lived all his short life to the care of strangers, had caused him psychological harm.

Held, dismissing both appeals, that the East Berkshire decision was fatal to the mother's claim, since the majority in the House of Lords had held that, given the seriousness of child abuse as a social problem, healthcare and other child care professionals should not be subject to conflicting duties when deciding whether a child might have been abused and what further steps should be taken to protect the child; the potential disruption to the suspected parent's family life did not justify according to that parent a higher level of protection than that afforded to other suspects of crime.

As regards the child's claim, the court accepted the arguments advanced by the local authority that: (1) no identifiable damage had been caused to the child during the period when he had been separated from his parents pursuant to the interim care order; (2) if there had been any damage, it was limited to distress at times of contact between the child and his mother, a form of distress not capable of being compensated in law; and (3) if there was any identifiable damage, it had not been caused or materially contributed to by the period of separation.

Read the full text of the judgment here