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A Review of the Law relating to Child Abuse compensation claims – a Retreat from Z v UK?
The question of whether a public authority, typically a County or City Council, is liable for the faults of its employees in the exercise and discharge of functions imposed upon that body by a statutory regime is both a changing area of law and a complex one.
For many years, culminating with the renowned case of X v Bedfordshire County Council in 1995, the approach of the law was that a public authority was not liable for the faults of its employees in the way its functions were carried out unless the Act of Parliament imposing those powers, obligations and functions upon the Council had specifically provided for members of the public suffering injury or loss to have a direct right of legal redress, or a statutory cause of action derived from the legislation itself. Thus, and taking the example of the Children Act 1989, which imposed on local Government bodies duties and obligations to safeguard the welfare of children in its geographical area of control, if the social workers employed by that Council failed to remove a child sufficiently promptly from an abusive and neglectful parent and thus caused the child to suffer harm and physical or mental suffering and injury that child had no means of redress. He or she could not sue the council for damages because the Children Act 1989 did not provide for a statutory means of recovering damages and there was considered for many years to be no right of legal action from the common law either.
From arguably the most famous case known to student of the law in this area, Donoghue v Stevenson, the Court established that a “cause of action” ( a legal ground to sue) would exist where a wrong-doer had been negligent. And a cause of action in the legal wrong of “negligence” existed where;
• There was a duty to take care - this duty of care was imposed on a person where by reasonable foresight he could foresee that his actions could injure someone in close proximity
• If he acted unreasonably he breached that legal duty to take care
• If a claimant suffered loss as a result caused by the breach of duty
Although it was often said that the categories of negligence were never closed, the approach of the courts was to determine liability in each new case by taking an incremental and analogous approach with successful cases. Was a case close enough to a successful case on its facts to justify a finding of negligence. Often public policy was the reason relied upon for not extending the scope of negligence.
The case of Caparo v Dickman in 1990 had further refined the factors the court must weigh in order to extend the situations in which the court would determine that a duty of care existed. It had to be fair, just and reasonable to impose a duty of care. It was not just to be determined by reasonable foresight of harm from one’s own actions.
The case of X v Bedfordshire County Council (1995 ) was concerned with the situation of whether children living in the community ( not in the care system ) could sue for the negligence of social workers in not safeguarding those children from harm.
The starting point of the law is that a person ( lets call him A) does not owe a duty to another person ( lets call him B) to protect B from the actions of another ( C) unless he has assumed a duty of responsibility of protection.
Liability thus arose for the abuse of children where a local authority had assumed a parental responsibility role in respect of that child, for example, in respect of a child in the actual care of the local authority. But liability did not extend to children in the community in the care of abusive neglectful parents who ought to have been protected from such harm by a local authority, and were not, by reason of social service failings.
Barrett v Enfield Council succeeded ( eventually, on appeal ) and that case concerned a child in care. The case of X v Bedfordshire involved children who were still in the community and not in state care. The leading judgment was from Lord Browne-Wilkinson. He decided that there was no liability for negligence on the part of a local authority. He concluded that the courts should not extend liability in negligence onto those upon whom Parliament had imposed a statutory system for the benefit society as a whole to protect the most vulnerable in that society. He thought that social workers acting as such accepted no duty of care to the children they sought to protect - they owed duties to the local authority who employed them.
The case of X v Bedfordshire then went to the European Court of Human Rights where it was known as Z v UK in 2001. The ECtHR concluded that the UK was in breach of Articles 3 and 13 of the European Convention on Human Rights ( ECHR ). Article 3 of the Convention provided that everyone has a right not to be subjected to torture or inhuman or degrading treatment and Article 13 provided that persons whose rights are infringed shall have an effective means of legal redress nationally. Accordingly, the common law was extended to provide a means of redress in such cases.
The case of D v East Berkshire Health Authority (2003 in the Court of Appeal ) concerned the question of whether the child and the parents of the child who were falsely accused of abusing or harming the child by doctors and social workers had a right of redress against the health authority. The question turned on whether the doctor or social worker owed a duty of care towards the child and/ or the parent and that question turned on the application of the factors found to be relevant in Caparo v Dickman ( was it fair, just and reasonable to impose a duty of care).
The Court of Appeal was heavily influenced by the ECHR and by the passing of The Human Rights Act 1998 which incorporated the ECHR into English law. The case of the parent failed in the Court of Appeal but the child’s claim succeeded. Lord Phillips stated that the line of authority culminating with X v Bedfordshire could not survive the passing of the Human Rights Act 1998.
The parent’s case went on to House of Lords in 2005. By a majority of 4 to 1 the parent’s case failed on appeal to the House of Lords.
Lord Bingham, in the minority, was the only Law lord of the five judge court to give judgment in favour of the Claimant and he said;
“ in the light of all this authority coupled with Z v UK… 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”.
He added ( paragraph 37 ) that a duty to the child is breached if signs of child abuse are overlooked and the duty to the child is breached if child abuse is diagnosed unjustifiably because that can result in the child being removed from the parents and that would be a breach of duty to the parents also.
Giving the lead judgment for the majority, Lord Nicholls concluded that the Court of Appeal had decided the case correctly. It was not fair just and reasonable to impose upon a healthcare professional a duty to a parent of a child he was examining. The doctor should be free to raise justified concerns about child abuse without fear of litigation.
Attempts to extend the duty yet further into areas of housing law and emergency services response times have also met with failure.
In Mitchell v Glasgow City 2009, Mr Mitchell was a secure tenant of the local authority and his neighbour was a Mr Drummond. After a long course of aggression from Drummond directed towards Mr Mitchell, Drummond killed Mr Mitchell and his widow sued the council claiming that the council owed her husband a duty of care to protect him from an aggressive neighbour. A man may very well be answerable for doing evil to others but to make him liable for not preventing evil done by others is very much exceptional. Lord Reed concluded that the scope of any duty owed to Mitchell at common law could not extend to a duty to protect him from the wrongdoing of Drummond. The foreseeability of harm test from Donoghue v Stevenson was insufficient to establish a duty after Caparo v Dickman. The ECHR was satisfied by the existence of the general criminal law prohibiting murder and the rights of redress which Mitchell had were against Drummond directly. The claim failed and failed again on appeal to the House of Lords.
In Michael v Chief Constable of South Wales 2015, a woman was murdered by her former partner. She made emergency 999 calls to police asking for rescue. The calls were allegedly mishandled and it was claimed that this mishandling prevented rescue, leading to her death. Her estate and dependents sued the police. Lord Toulson reiterated that a distinction had to be drawn between an action and a failure to act ( an omission). He reiterated the general rule that the common law does not impose liability for pure omissions or for failing to prevent harm caused by someone else. He recognised that there was two exceptions to this, firstly, where the Defendant had control over the third party and it was foreseeable that damage might ensue unless care was exercised and, secondly, where the Defendant had assumed a responsibility to safeguard the Claimant. He added at paragraph 114;
“It does not follow from the setting up of a protective system from public resources that if it fails to achieve its purpose through organisational defects or fault on the part of an individual, the public at large should bear the additional burden of compensating a victim for harm caused by the actions of a third party for whose behaviour the state is not responsible”.
Lord Toulson considered the arguments of the Claimant based on the ECHR and on the case of JD v East Berkshire. He rejected them.
The final case to consider is the case of CN & GN v Poole Borough Council which came before the Court of Appeal on the 21st December 2017. The case concerned the question of whether Poole Council owed to children in the care of their mother a duty to remove them from their mother because they were disabled and suffering abuse from a neighbouring anti-social family. There was no criticism of the mother’s care. The claim was shoe-horned into a claim in negligence against Poole Council social services for failing in their duties under the Children Act 1989. Counsel for the Council advanced arguments why there was no duty, saying that the claim was in reality a claim for failing to re-house. He argued:
1. The court below was in error in regarding itself as bound by D v Berkshire so as to conclude a duty of care was owed to children. D v Berkshire had been over-ruled.
2. The court below made an error in failing to recognise that this case was not really a Children Act case but a case under the Housing Act 1996
The Court of Appeal decided;
1. that the starting point was to recognise that a Defendant does NOT owe a duty of care to a Claimant child to protect him from harm by a third party though there were two exceptions to this. This was the “ general rule”.
2. One of the two exceptions to the general rule was the case where the Defendants assumed a positive responsibility to safeguard the claimant.
3. This case arose out of a housing placement not a decision under the Children Act 1989
4. There was no allegation the children were at risk from their mother or any other family member – the claim was based on the startling premise that continued residence with their mother exposed them to a risk of harm from others, so they should be taken from her care.
5. The Claimants accepted that they could not sue Poole Council as housing authority so they artificially re-cast the claim under the child protection legislation
6. The Claimants openly based their case on the extension of liability seen in the case of D v Berkshire
7. D v Berkshire was overruled by subsequent higher authority. The ECHR was pivotal to the Berkshire decision. But for the impact of the ECHR and the supposed need for an extension of common law liability to reflect the obligations of the state under the Convention the decision would have been against an extension of liability. That proposition has been rejected in the Mitchell and Michael cases.
8. There was no assumption of responsibility sufficient to amount to an exception to the general rule. The Claimants accepted that there was no such assumption of responsibility.
9. The Council was correct in submitting that the claim was in truth not based on failures under the Children Act.
10. There was no basis under the Children Act to satisfy the threshold criteria for a care order and, moreover, removal of children is only justified if the child’s safety demands immediate removal from the parent. The claim for removal was legally unsustainable.
The question to be addressed is where this decision has left the law.
CHILDREN IN THE CARE SYSTEM
It seems that in respect of children subject to care orders a local authority has assumed parental responsibility and so this falls within one of the two exceptions to the general rule of no duty to protect from the harm caused by others. There is no need to rely on the ECHR – English law provides a remedy,
Furthermore, it might be said that the legal protection afforded to such children is improving.
In the case of Armes v Nottingham CC, decided in November 2017, a local authority without actual fault on its part, was held to be vicariously liable for the faults of its foster carers in the way they looked after children in their care. Vicarious liability is shifting away from a concept restricted to the employer/employee relationship. Moreover, the general principle that a Defendant does NOT owe a duty of care to a Claimant child to protect him from harm by a third party also has another exception which arises where a Defendant has control over a third party causing the harm and it was foreseeable that damage might ensue.
CHILDREN NOT IN THE CARE SYSTEM AND FAILURE TO REMOVE CASES.
When we consider children not in the care system but still “in the community” the position appears to be muddied by X v Bedfordshire declaring that there is no liability, the ECtHR deciding that the State should provide for liability and then Mitchell and Michael reinforcing the original decision in X v Bedfordshire and overruling the decision in JD v Berkshire which was an attempt based on the ECHR to extend the law.
What would the ECtHR have made of Mitchell and Michael if those cases had been referred to it? Would those cases have been decided differently than Z v UK?
If a child is on the local authority’s child protection register, does that amount to an acknowledgment that a local authority is assuming a responsibility for such children, thus falling within the exception. It is to be recognised that mere acknowledgment that a legal duty might exist is neither here nor there, but could the monitoring of a child on the Child Protection Register be said to amount to an assumption of a responsibility to safeguard that child’s interests? I think not. The placing of a child’s name on the register is simply a council keeping a record of a child in respect of whom there is a concern. It is no more than that.
What do we make of those case where the children were not on the child protection register but sufficient facts were known to the local authority such that the children ought to have been on the child protection register or even in state care, though they were not?
Such children are now in difficult position.
CN v Poole has cast doubt on all those cases where liability is said to rest upon a failure to remove. CN v Poole was not a child-care case but one shoe-horned into a claim based on breach of a duty arising under the child-care regime reliant on the approach of D v Berkshire and the ECHR.
Mitchell failed because the state already provided adequate means of satisfying Article 2 ( the right to life) so convention rights were satisfied. In Michael, the Court considered that it was not necessary to extend common law negligence to satisfy the ECHR rights to life (Article 2) or the right not to be subjected to inhuman or degrading treatment ( Article 3) because of the enforcement mechanisms in the Human Rights Act 1998.
Are those decisions specific to those cases? Is CN v Poole a decision on its own odd facts? Is not taking a child into care fast enough to be regarded still as a breach of ECHR Article 3 as an exceptional case where the child claimant has no other means of redress?
The courts do seem to be retreating from Z v UK. We appear to have not only reached the high water mark but the tide is now going back the way it came. X v Bedfordshire is back in favour.
It seems to be highly questionable now whether there is any legal liability in negligence against a local authority for a failure to remove case or for a delay in removal case. Such claimants would now have to resort to the Human Rights Act 1998, to a direct claim in trespass against the abusers ( for whatever that is worth) or look to the Criminal Injuries Compensation Authority if what has occurred falls within the scheme.
However, children can still rely upon the law of negligence once in the care system.
Stephen A Brookes
Disclaimer – the author assumes no liability for the contents of this article.
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