Can parents claim for the abuse of their children? An article by Malcolm Johnson of Malcolm Johnson & Co. published in the Association of Child Abuse Lawyers 2010 Newsletter
A recent case Merthyr Tydfil v C [2010] EWHC 62 (QB) raises the thorny question of a parent’s claim for damages, when it is discovered that their own child has been abused as a result of the negligence on the part of social services.
A Claimant in this situation faces a number of hurdles in bringing a compensation claim. Firstly there must be some established psychiatric injury that which is foreseeable. (Page v Smith [1996] AC 155). Secondly a Claimant who suffers psychiatric injury because the negligence of a Defendant is generally barred from recovering compensation unless he or she was a primary victim. The House of Lords decision in McLoughlin v. O’Brien [1983] 1 AC 410 extended the class of secondary victims, who might be permitted to make a claim to include those were in the immediate aftermath of an accident but that does not necessarily help the Claimant in a case of this nature. Thirdly a duty of care needs to overcome the exclusionary rule in D v East Berkshire [2003] EWCA Civ 1151.In this case, parents brought actions in negligence against a social services department and various healthcare professionals claiming damages for psychiatric harm. Their children had been taken into care as a result of erroneous allegations that the parents had been abusing the children. The Court of Appeal and later the House of Lords ([2005] UKHL 23) held that whilst there was a duty of care owed to the children, there was no duty to the parents. It would not be just and fair to impose such a duty in circumstances where there are suspicions of abuse, because of the conflict between the interests of parent and child.
In Merthyr, the Claimant was a mother with two children (A and B) who in August 2002 became aware that they had been the subject of sexually inappropriate behaviour by a neighbour’s child (D). She initially reported the abuse to the NSPCC who in turn passed on the complaint to the council. The council advised her to keep her children indoors, and in time the mother decided it was safe to let her children play outside again. However in August 2004, her children were again abused by D, following which the mother reported the incident to the council. This time the council refused to accept that the matter had ever been reported to them in 2002.
The Claimant was diagnosed with a panic disorder. It appeared from her psychiatrist’s report that a major component of her symptoms was the refusal by social services, when she met with them in August 2004, to acknowledge her report in 2002. Moreover the issue of forseeability was conceded by the Defendant. The main issue before the court was whether it was just and fair to impose a duty of care after the judgments in D v East Berkshire.
The council made an application to strike out the claim under CPR 24.2 on the grounds that it had no real prospect of success, which was refused by the trial judge. On appeal, the case came before Mr Justice Hickinbottom in the High Court, who said at paragraph 27 of his judgment:-
“What D v East Berkshire held was that the usual consonancy of interests between parents and children is displaced, as a matter of law, where the parent is suspected of abusing the child. It does not hold that, whenever there is any bare potential for some future conflict of interest between a child and his/her parents, then an authority is immune from owing any duty of care to the parents and from any negligence suit at the hands of the parents. The duty of care owed by an authority to a child is not “paramount” in that sense.”
Hickinbottom J referred to an earlier case, A v Essex County Council 2003] EWCA Civ 1848 where the Court of Appeal said that they had no difficulty in finding a duty of care in circumstances where an adoption agency (prior to the adoption taking place) had failed to communicate information to prospective adopters about a particularly troubled child, in breach of its own policy. In Merthyr, the duty of care asserted by the mother against the council was not merely parasitic upon the duty owed by the council to her children, but entirely distinct. See also W v Essex County Council [2001] 2 AC on this point.
Therefore we are left with the exclusionary rule in D v East Berkshire and a series of cases where the rule has been held not to apply. There is also the possibility of a human rights claim. In TP and KM V United Kingdom [2001] ECHR 28945/95 TP alleged that her daughter, KM had been unjustifiably taken into care. One of her key allegations was that during the care proceedings, video evidence of an interview with her child cast doubt on the allegations of abuse. That evidence was not provided to the mother and her legal representatives until a year after the initial care order was made.
The mother issued proceedings against the local authority for breach of statutory duty and negligence. The proceedings were struck out at first instance and on appeal. The majority in the Court of Appeal held that there could be no claim for breach of statutory duty in respect of sections 1 and 18 of the Child Care Act 1980. The case then came to the House of Lords as one of the X and Others v Bedfordshire [1995] 3 All ER 353 group of cases, where the decision of the Court of Appeal was upheld. The Applicants applied to the European Court of Human Rights (ECHR) alleging a breach of Articles 8, 6 and 13 of the Convention.
In relation to Article 8 (right to respect for family life), the ECHR found that the actual decision to take out a place of safety order was supported by relevant and sufficient reasons. They were not persuaded that the mistakes made by social workers in misinterpreting what KM was saying deprived that decision of legitimacy. On the other hand, it was essential that a parent be placed in a position where he or she might obtain access to information which was relied upon by the authorities in taking measures of protective care. That right was not absolute, but in this case there was a violation of Article 8 of the Convention.
In relation to Article 6 (right to a fair trial), the ECHR said that the Applicants’ claims were properly and fairly examined in light of the applicable domestic legal principles concerning the tort of negligence. Therefore there was no violation of Article 6 of the Convention.
Finally in relation to Article 13 (right to an effective remedy before the courts), there was held to be a violation. The ECHR considered that, where an arguable breach of one or more of the rights under the Convention was in issue, there should be available to the victim a mechanism for establishing any liability of State officials or bodies for that breach. There had already been a finding of a violation of Article 8, in relation to the non-disclosure of the video interview of KM. In these circumstances, the exercise of the court’s powers to return KM almost a year after the first emergency place of safety order, was not an effective remedy. It did not provide redress for the psychological damage allegedly flowing from the separation over this period.
In RK and Another v United Kingdom [2009] 1 FLR 274 (ECHR) the Applicants were the parents of one of the children in the D v East Berkshire case. Their daughter was admitted to hospital following a fracture of her femur and a diagnosis of non-accidental injury was made. She was taken into care, but was later diagnosed with brittle bone disease.
The ECHR identified the conflict between the protection of the child and the right of the parent to respect of his or her family life. Public confidence in the child protection system could only be maintained if a proper balance was struck. The starting point was that the doctors had referred the case to the proper statutory authorities. That was entirely correct and the English Court of Appeal had reached the right conclusion on the issue. Interference with family life did not justify according a suspected parent a higher level of protection than other suspected perpetrators and the deciding factor was “conflict of interest”. The doctor was charged with the protection of the child not the protection of the parent. There was accordingly no violation of Article 8.
However in relation to Article 13, there was a violation. It was common ground between the parties that the Applicants’ complaints about the interference with their family life through the care measures were arguable. The Court considered that the Applicants should have had available to them a means of claiming that the local authority’s handling of the procedure was responsible for any damage which they suffered and obtaining compensation for that damage. Such redress was not available to them at the relevant time, because at that time (before the introduction of the Human Rights Act 1998), the tort of negligence was the only remedy in national law capable of determining the substance of the Convention complaints.
In AD & OD V United Kingdom [2010] ECHR 340 (another pre Human Rights Acts 1998 case) the Applicants were mother and child. They claimed damages arising out of alleged negligence by the local authority in the context of care proceedings. OD was brought into hospital with rib fractures and placed on the child protection register. Care proceedings followed shortly thereafter. The family court made an interim care order and OD and his parents resided at a family resource centre in Bristol, so that a risk assessment could be carried out. However the risk assessment was not carried out and there was a period a separation between parents and child. Eventually the local authority received advice from the NSPCC that the child should be rehabilitated with his parents. It was also discovered that OH suffered from brittle bone disease.
AD claimed that she had suffered psychological shock and upset. The Court of Appeal dismissed her claim against the local authority in AD & OH v Bury Metropolitan Council [2006] EWCA Civ 1, relying on the judgement in D v East Berkshire.
The ECHR considered AD’s claim that there had been a breach of Article 8 of the Convention. It was accepted (after RK and AK v United Kingdom) that mistaken judgements or assessment by professionals did not of themselves render childcare measures incompatible with Article 8 of the Convention. However this case was different from RK insofar as the mistakes made by the authorities were far starker. There was a very real chance that had a proper risk assessment been carried out whilst the Applicants were at the centre in Bristol, OD might never have been placed in foster care. Furthermore the Court was not persuaded that less intrusive measures were not available, such as conducting the assessment whilst the whole family stayed at an assessment centre or placing OD with relatives. The local authority had dismissed this option too quickly without giving it proper consideration. Finally the time taken to return OD to his parents’ care was not reasonable in the circumstances.
Therefore whilst there were relevant and sufficient reasons for the authorities to take protective measures initially, the subsequent failing of the local authority both extended and exacerbated the interference with the Applicants’ right to respect for their family and were not proportionate to the legitimate aim of protecting OD from harm. Consequently there was a violation of Article 8 in respect of the interference with the Applicants’ right to respect for their family life.
In relation to Article 13, AD was in an analogous position to the Applicants in RK and AK and therefore there had been a violation of her rights under Article 13 of the Convention. Conversely OD (the child) was in a different position. It was quite reasonable for the domestic court to reject his claim on the grounds that he could not show any damage. Therefore there was no violation of OH’s rights under Article 13 of the Convention.
The application of human rights law by the ECHR in AD is difficult to reconcile with the law of negligence as explained in D v East Berkshire. The ECHR appear on the one hand to approve the exclusionary rule against parents, based as it is on a perceived conflict between parent and child. On the other hand, they then found a violation of Article 8 in relation to the decision to keep the child in care.
The decision in D v East Berkshire has been much criticised by commentators. One counter argument is that there is only a conflict of interest between parent and child where the diagnosis of abuse is wrong. Lord Bingham (dissenting in the House of Lords) said that far from presuming a conflict between the interest of child and parent, the law generally presumed that they were consonant with each other, or at any rate, if not consonant, not so dissonant that healthcare professionals should proceed without fully informing and consulting the parents. The writer thinks that the exclusionary rule in D v East Berkshire will be subject to further erosion, which is what ultimately happened to the judgment in X v Bedfordshire. On the other hand, there is a clear message coming from the ECHR that domestic courts are entitled to exclude liability in this difficult social care cases. The question is – how far can they go?
Malcolm Johnson is the principal of Malcolm Johnson & Co. a firm specialising in cases involving the taking into care of children.
