A v London Borough of Camden and Another
- Year: 2011
Published in Association of Personal Injury Lawyers Focus Volume 21 Issue 8
The Claimant brought proceedings on behalf of the estate of his deceased son, B, who was born on the 9th March 2006 and died on the 8th May 2006, whilst in the care of his mother (the Claimant’s former partner) and her new partner.
The London Borough of Camden’s social services department had been heavily involved in the mother’s case prior to B’s birth. She had already had a daughter taken into care because of concerns about her ability to care for that child and there were numerous concerns about the child (B) that she was expecting. However shortly before B’s birth, his mother began a relationship with a new partner and she moved into the area of the London Borough of Newham, where she gave birth to B. On the 8th May 2006, following an emergency call from the mother’s flat, B was taken to hospital but he was pronounced dead on arrival. He had sustained a number of injuries in his short life. A subsequent post mortem concluded that he had sustained 10 posterior broken ribs, 2 broken ribs to the front cage, a broken shoulder and a fracture to his forearm. These injuries had been sustained over a period of time prior to his death. In March 2009, his mother was convicted of child cruelty and sentenced to seven years. Her new partner was convicted of child neglect and subsequently sentenced to 27 months. A Serious Case Review was completed in November 2006. It pointed to a number of failings on the part of social worker and other agencies, but concluded that B’s death could not have been prevented. However it also transpired that the mother’s new partner had a criminal record, which included a sexual assault against a child. We felt that the Serious Case Review had not addressed this point adequately, and that consequently there was a case to answer.
The Claimant instructed us in March 2009 under a conditional fee agreement. The size of the claim precluded the grant of public funding. Pre action protocol letters were sent to the Defendants (the London Boroughs of Camden and Newham) on 31 March 2009 and proceedings were issued on 5 May 2009. The claim included B’s claim for pain and suffering prior to his death together with the cost of a memorial stone estimated at £1250. Prior claims for psychiatric injury on the part of A and human rights damages were later abandoned. In October 2009, a Part 36 offer was made to Camden to settle the claim for £12,500, but this was rejected. In November 2009 the claim against Newham was discontinued, with an agreement to pay a fixed amount of costs at the conclusion of the case against Camden. A defence was filed and served on 3 December 2009.
During the course of the litigation a number of applications were successfully made for disclosure of relevant records. These included B’s and his mother’s social services records, the criminal records from the Police National Computer on the mother and her partner, evidence from the criminal trial together with all versions of the Serious Case Review. Due to the small size of the claim, we successfully applied for joint experts, a social care expert and a paediatrician to be appointed. As the parties could not agree on the choice of expert, the court held a hearing and appointed the expert whom we had put forward, Mary Carden. There was some difficulty finding a joint paediatrician, but eventually we fixed on Dr Benjamin Lloyd.
Mary Carden produced a report in January 2011. This concluded that there had been a number of failures on the part of social workers from Camden to follow the correct procedures. In particular one of the social workers was too ready to accept information given by the mother. Although it was not possible to say that B’s tragic death could have been anticipated by the agencies involved, it should have been recognised that there was a high level of risk to the unborn baby. This should have led to the formulation of a child protection plan, a case conference and a decision for care proceedings. There was no challenge to this evidence from Camden, which served no formal witness statements from any of the social workers involved. The Claimant’s only witness statement was his own.
Dr Lloyd concluded that the injuries done to B were non accidental, and that it was likely that he had died as a result of child maltreatment, probably mediated via smothering.
B had suffered a lifetime of pain and deprivation and consequently it would be inappropriate to compare his case with those of minor injuries where a complete recovery was made within 2 months. Reference in counsel’s skeleton argument was made to the case of (1) RT (In Her Own Right & on Behalf of the Estate of CT) (2) PT v Pennine Acute Hospitals NHS Trust (2009).
Trial was set for Monday, the 23rd May 2011 for three days. On the Friday beforehand, Camden’s solicitors said that they would pay the Part 36 offer of £12,500 made in October 2009, and a Consent Order was drawn up to reflect that settlement.
This case presented two main difficulties. Firstly, insofar as quantum was relatively small, the costs of getting the case to trial were bound to exceed that figure many times and consequently we endeavoured to keep our requests for evidence within the bounds of proportionality whilst still ensuring that we had the basic building blocks of liability. Secondly the Serious Case Review had also concluded that B’s death could not have been avoided. These reviews may well contain useful evidence for the practitioner but their conclusions should be treated with caution, as the Baby Peter case shows. In that case, the Executive Summary of the Serious Case Review (which can be found at www.haringeylscb.org/executive_summary_peter_final.pdf) was published immediately following the conclusion of criminal proceedings in November 2008. The later Ofsted evaluation found it to be ‘inadequate’. Summaries are published by local authorities on their websites, but the full version will require a court order, which may well contain strictures as to precisely who is to be permitted to see the Serious Case Review. Practitioners should be aware that Serious Case Reviews do undergo revision before they are finalised and it is advisable to try and obtain all the different draft versions.
