Son loses claim against mother

The BBC reports that a man who accused his mother of failing to protect him from physical abuse by his father has lost his action for damages. The man (who cannot be identified) alleged that his mother had failed to protect him from the abuse, as well as aiding and abetting it by reporting her son’s wrongdoings.

However Justice Thirlwall decided that the beatings were not part of a “joint enterprise”.

Claims brought against parents for failure to protect are problematic. There is very little caselaw on precisely what kind of duty is owed by a parent to a child in these circumstances. In the case of Sargent v Walsall Metropolitan Borough Council and others[1] the Claimant was a foster child who suffered severe burns to the soles of her feet, for reasons that were unknown. The foster parents were acquitted of any wrong-doing. She brought a claim against her foster parents and the local authority that retained them. There was no allegation that the council had been negligent in selecting the foster parents or supervising them. The Claimant’s counsel submitted that there was a relationship of principal and agent or of a sufficient proximity to make the local authority liable for the acts of the foster parents. The matter came before the Court of Appeal. 

At that time, the Court of Appeal said that there was no authority either way on this issue but they described counsel’s submission as “a startling one”. They considered the relevant statutory provisions of the Children Act 1948. Section 13 was the important section for present purposes because it was from that section that there was derived the power to board out with foster parents. Lord Justice Oliver said that the statute and the regulations showed that this was a statutory scheme and that the relationship between the child and the local authority, and between the child and the foster parents was one which was regulated simply and solely by the provisions of the statutory scheme. Foster parents were simply the means by which the local authority carried out its own duty, and they would not be vicariously liable for the acts or omissions of foster parents.

See our article on this subject.

Interesting comments can also be found in the case of Barrett v the London Borough of Enfield 1999, where Lord Hutton said:-

“……..The Court of Appeal also held that the plaintiff’s action should be struck out on the separate and distinct ground that it would not be just and reasonable to impose a duty of care on the defendant. The Master of the Rolls observed that in the present case the defendant was regarded as being in the position of a parent to the plaintiff. He said at p. 377C:

 ”The very fact that the defendant is stated to have been in the position of a parent to the plaintiff at the material time brings home the public policy aspects of the situation. Decisions of this nature often require a difficult and delicate balancing of conflicting interests.

“If a parent when driving a car injures his child who is a passenger, then of course as is the case with any other driver there is no reason why he should not be liable for damages. However parents are daily making decisions with regard to their children’s future and it seems to me that it would be wholly inappropriate that those decisions, even if they could be shown to be wrong, should be ones which give rise to a liability for damages. (This point was not argued in S. v. W. (Child Abuse: Damages) [1995] 1 F.L.R. 862, and this court in that case was solely concerned with the limitation point.) If the decisions are taken by the local authority in place of the parents the position should be the same. The relationship of the parent and the local authority to the child in their care is different from that which exists between a school’s staff and its pupils where the staff are providing educational services for the pupils.”

My Lords, I agree that it would be wholly inappropriate that a child should be permitted to sue his parents for decisions made by them in respect of his upbringing which could be shown to be wrong, and I also agree with the observation of Browne-Wilkinson V.-C. in Surtees v. Kingston-Upon-Thames Borough Council [1991] 2 F.L.R. 559, 583F:

 ”I further agree with Stocker L.J. that the court should be wary in its approach to holding parents in breach of a duty of care owed to their children. It is accepted that the duty owed by Mr. and Mrs. H, as foster parents, to the plaintiff was exactly the same as that owed by the ordinary parent to his or her own children. There are very real public policy considerations to be taken into account if the conflicts inherent in legal proceedings are to be brought into family relationships.”

But I do not agree, with great respect, that because the law should not permit a child to sue his parents, the law should not permit a child to sue a local authority which is under a duty by statute to take him into care and to make arrangements for his future” [Emphasis added].

This extract sets out the courts’ approach to cases being brought against parents in respect of their duty of care to their child.  Public policy considerations take precedent and parents should not be held accountable to their children for decisions which could be shown to be wrong. On the other hand, that is not to say that no duty whatsoever exists between a parent and a child, and certainly a child can sue his or her parent for direct assault.  

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[1] (Unreported) Court of Appeal 27^th June 1985