D v East Berkshire Community Health NHS Trust, K and Another v Dewsbury Healthcare NHS Trust and Another, K and Another v Oldham NHS Trust and Another 2003

FACTS:-

This judgment concerned three linked cases. D was the mother of a child (M), MAK was the father of a child, RK and another were the mother and father of a child, M. Each case involved accusations of abusing a child made against a parent by the professionals concerned for the welfare of that child and in each case the accusations proved to be unfounded.

D claimed for the acute anxiety and distress that she suffered as a result of being incorrectly accused of suffering Munchausen Syndrome by Proxy. She was not in fact separated from her child, but asserted that she suffered acute anxiety and depression.

MAK was accused of sexually abusing his daughter, which led to his being denied access to her for a short period. The girl suffered from Schamberg’s disease which produces discoloured patches on the skin. This was misdiagnosed as bruising and evidence of sexual abuse.

RK and another were the parents of a child, accused of having inflicted injuries on their daughter, which led to the child being separated from her parents for nearly a year. An X-ray of her left thigh showed an oblique displaced fracture. However she suffered from osteogenesis imperfecta, a bone condition rendering M particularly susceptible to fracture.

All the cases had been turned down at first instance on a hearing of preliminary issues. The Claimant appealed to the Court of Appeal.

HELD:-

Lord Phillips said that that there were a number of issues in these cases.

1. Whether the decision of the lower courts violated Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (“the Convention”).
2. Whether the law as set out in X and others (Minors) v Bedfordshire CC, M (a minor) v Newham London BC, E (a minor) v Dorset CC [1995] 3 All ER 353 (“X v Bedfordshire”) had developed since that decision, and whether more recent authority had varied those principles.
3. Whether in each case, there was a violation of Article 8 (right to respect for private and family life) of the Convention and whether the first instance decision violated Article 13 (right to an effective remedy).
4. Whether the case of X v Bedfordshire could be distinguished on the facts.
5. Whether the duty of care was owed to both the children and the parents in each case
6. In the Dewsbury case, the court at first instance had held that the Second Defendants, the council were protected by witness immunity. So the issue was whether the Defendants were protected by witness immunity.

The First Issue

Lord Phillips considered the facts and the decision in X v Bedfordshire. In the Bedfordshire case five children claimed against a local authority damages for breach of statutory duty and negligence in failing to exercise statutory powers and duties to protect them from parental abuse and neglect. The House of Lords struck out their cases on the grounds that the relevant statutes imposed no duty of care in favour of the Claimants and it was not just and reasonable to impose a common law duty.

However that case was followed by Osman v UK (1998) 5 BHRC 293 where a claim was brought against the police alleging negligence in the prevention and pursuit of crime. Again this was struck out by the Court of Appeal but the European Court of Human Rights upheld the Applicants’ claim. The Strasbourg court said that the Applicants must be taken to have had a right, derived from the law of negligence to see an adjudication on the admissibility and merits of an arguable claim. The assertion of that right was in itself sufficient to ensure the applicability of Article 6(1) of the Convention. In effect the court disapproved the imposition of a blanket immunity in these cases, and said that the applicability of the exclusionary rule must be decided afresh in each case. If that was not done, then it would be impossible to determine whether the public interest in an efficient police force was or was not proportionate to the seriousness of the harm suffered by the Claimant in an individual case.

That decision caused difficulty for English courts. In Barrett v Enfield London BC [1999] 3 All ER 193  Lord Browne-Wilkinson said that he had difficulty in following the reasoning of the Strasbourg court and applying that reasoning to the common law.

Four of the five unsuccessful Claimant took their case to Strasbourg in Z v UK [2001] 2 FCR 246. The court considered that there was no breach of Article 6 of the Convention. The case of Osman was based on an understanding of the law of negligence, which had to be reviewed in the light of clarifications subsequently made by the domestic courts and notably the House of Lords. The Strasbourg court was satisfied that the “fair, just and reasonable” criterion was an intrinsic element of the duty of care.

The ruling of law concerning that intrinsic element in Z v UK did not disclose the operation of an immunity and the inability of the Applicants to sue the local authority flowed not from an immunity but from the applicable principles governing the substantive right of action in domestic law. Their claims had been properly examined by the domestic court.

However the examination by the House of Lords in X v Bedfordshire had resulted in the Applicants’ cases being struck out. The tort of negligence was held not to impose a duty of care on the local authority in the exercise of its statutory powers. Their injuries were horrific and they were victims of a violation of Article 3 of the Convention. They could not sue the local authority, however foreseeable and severe the harm suffered and however unreasonable the conduct of the local authority in failing to take steps to prevent that harm. That was a breach under Article 13 of the Convention, not Article 6.

The two Claimants in M (a minor) v Newham London BC also made an application to the Strasbourg court (TP v UK [2001] 2 FCR 289). They alleged breaches of Articles 8 and 13 of the Convention, and also of Article 6. The court rejected the claim based on Article 6 for similar reasons to those expressed in Z v UK.

Therefore the judgments in these cases did not involve a breach of Article 6.

The Second Issue

The next issue was whether subsequent decisions had varied the principles laid down by X v Bedfordshire. That case had decided that there were special considerations for not imposing a duty of care on the local authority in a social work situation. There were also in that group of cases, claims against local authorities for negligently failing to identify children who had special educational needs. Lord Browne Wilkinson had said that whilst the education authorities owned no relevant duty of care to children in the performance of their duties under the Education Acts 1944 to 1981, individual employees of the authority might be in such a relationship with a child as to owe a common law duty of care, breach of which would render the local authority vicariously liable.

In Barrett v Enfield London BC [1999] 3 All ER 193 the Claimant had been in the care of the local authority between ages of ten months and 17 years. The House of Lords had adopted two strands of reasoning. Firstly it was held that the factual situation in the case of Barrett was significantly different from that in X v Bedfordshire. The Claimant in Barrett was already in the care of the local authority and the court in that case had said that if the conduct in question was of a king which could be measured against the standards of the reasonable man, then it did not see why the law in the public interest should not require those standards to be observed.

Secondly the House of Lords said that it was only in the clearest case in the type of matter under consideration that a claim should be struck out as disclosing no cause of action without considering the material facts.

The effect of Barrett’s case was considered in S v Gloucestershire CC, L v Tower Hamlets London BC [2000] 3 All ER 346. Lord Justice May had set out the strands of the law to be derived from the case of Barrett:-

• In an ordinary case a local authority Defendant is unlikely to establish a defence which relies on a blanket immunity. So it would be incorrect to say that cases which might be labelled as child abuse cases were bound to fail as a class.
• Many of the decisions about care and upbringing of a child, once he or she has been taken into care, might not have the acute complications, strains and conflicts identified in X v Bedfordshire.

Lord Phillips then turned to the cases of Phelps v Hillingdon London BC, Anderton v Clwyd CC, Jarvis v Hampshire CC, Re G (a minor) [2000] 4 All ER 504.  In these cases, the Claimant contended that the local education authority had negligently failed to make proper provision for his or her special educational needs. The House of Lords gave judgment. Lord Slynn said that he saw no reason in principle why a direct claim against an education authority should never be possible. In any event, the individual professionals concerned with the Claimants owed them a duty of care, for the breach of which the authorities were vicariously liable. There might be cases where the recognition of such a direct duty of care would so interfere with the performance of the local education authority’s duties that it would be wrong to recognise such a duty. However that was for the local authority to establish – it was not to be presumed and it would only be found in exceptional circumstances.

Lord Nicholls and Lord Clyde giving judgment in Phelps left the question open as to whether there was a direct duty of care owed by the education authority. Lord Clyde said that there were strong grounds for arguing that individual professionals involved owed the children a duty of care, breach of which would result in a finding of vicarious liability on the local authority. He commented that in an education case, it might be concluded that the involvement of the parents is both consistent with and supports the conclusion that a duty of care existed through them to the child. In a child abuse case, the opportunity for conflict between the parents and the professional advisers may be far greater.

Lord Phillips said that the effect of these decisions was to significantly restrict the effect of X v Bedfordshire. In relation to education cases, doubt was cast on the proposition that an education authority owes no duty of care to children. In relation to a child abuse case, much of Lord Browne-Wilkinson’s reasoning was called into question. In this case (said Lord Phillips) the effect of the later decisions (Barrett etc.) was to restrict the effect of X v Bedfordshire to the core proposition that decisions by a local authority whether or not to take a child into care were not reviewable by way of a claim in negligence.

Lord Phillips then considered some decisions from New Zealand. In A-G v Prince [1998] 1 NZLR 262 the New Zealand Court of Appeal refused to strike out a claim in negligence by a child and his mother against a child welfare officer. The court had said that social workers were professionals and they were expected to exercise a reasonable standard of skill and care. The policy considerations in X v Bedfordshire did not carry the same weight in this case.

Similar considerations came up before the Privy Council in B v A-G of New Zealand [2003] UKPC 61. Two daughters had been taken into care as a result of suspected abuse by their father. The Privy Council concluded that the decision in  A-G v Prince would apply to the daughters (i.e. there was a duty of care) but in relation to the father, no duty of care was owed because he was the alleged perpetrator. The statutory duty on social services was not imposed for the benefit of alleged perpetrators.

The impact of the Human Rights Act 1998

The facts in these cases predated October 2000, so no claim could be brought under the 1998 Act. However Lord Phillips said that it was necessary to consider whether the introduction of the 1998 Act had affected the common law principles of the law of negligence.

In Z v UK the Commission of the European Court of Human Rights (preceding the fully constituted court) had found that there had been a breach of Article 3. There was a positive obligation on the government to protection children from inhuman or degrading treatment. The authorities had been aware of the abuse over a period of years, and had failed to bring this to an end. The government did not challenge these findings and they were indorsed by the European Court.

In addition the European Court decided that there should be available to the victim or the victim’s family, a mechanism for establishing any liability of state officials or bodies for acts or omissions involving the breach of their rights under the Convention, and that would include compensation for non-pecuniary damage. So the United Kingdom was held to be in breach of both Articles 3 and 13.

In TP v UK the Applicants were mother and daughter. The daughter was separated from her mother by social services because of allegations that she had been abused by the mother’s boyfriend.  The Applicants contended that there had been a breach of their rights under Articles 6, 8 and 13. As explained above, the claim under Article 6 was dismissed by the European Court. However Article 8 provided that there should be no interference by a public authority with a person’s family life.   The Court said that its task was not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody and access issues, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their power of appreciation. The margin of appreciation would vary in accordance with the nature of the issues and the importance of the issues at stake.

The European Court considered the facts of the case and found that that there had been a breach of Article 8. It further found that the Applicants had been denied an effective remedy, contrary to Article 13. The possibility of applying to the Ombudsman and to the Secretary of State did not provide the Applicants with any enforceable right to compensation.

The European Court then proceeded to award damages on the basis that the Applicants suffered distress and anxiety, and in the case of the first application, through feelings of frustration and injustice.

There had been other cases concerning child abuse before the European Court. In E v UK [2002] 3 FCR 700 four children complained that their local authority in Scotland had failed to protect them from sexual abuse by their father. No domestic claim had been pursued because they were advised of the effect of X v Bedfordshire. The court held that there had been breaches of Articles 3 and 13. Substantial sums of compensation were awarded, taking into account the fact that the Applicants had recovered compensation from the Criminal Injuries Compensation Board.

Lord Phillips said that it was notable in E v UK, that the government had tried to argue that the Applicants did in fact have arguable domestic claims, because the facts in their case raised operational matters, which were not affected by the ruling in X v Bedfordshire.

In P, C and S v UK [2002] 3 FCR 1 the Applicants were a husband and wife and their daughter. The wife had been convicted in the United States of administering laxatives to her son, thereby endangering his health. She moved to England, married and had a daughter. The local authority took action to remove the daughter and place her for adoption.

In this case, the European Court found that there had been a breach of Article 6, in that the mother had not been provided with legal representation at proceedings. There were also breaches of Article 8. However the European Court said that it did not propose to attempt to untangle the opposing considerations. It considered rather that particular importance be attached to the procedural obligations inherent in Article 8 of the European Convention. It could not be asserted that the daughter would not have been adopted but for the flaws in the procedure that the court had identified and consequently limited damages were awarded to each parent for “loss of opportunity.”

In Venema v Netherlands [2003] 1 FCR 153 the Applicants were a married couple and the mother was suspected of harming their young daughter. A provisional order removing the child was obtained but after five months of further hearings, this was rescinded. The European Court criticised the procedure and said that the parents should have been involved earlier in the decision making process. Limited damages for feelings of frustration of injustice were awarded.

In Yousef v Netherlands [2002] 3 FCR 577 a father who had been absent for two and a half years, complained that he had been denied contact with his child. The European Court rejected his application saying that if there were to be any balancing of interests, the child’s interests were paramount.

Lord Phillips considered the effect of these decisions.  Section 2(1) of the Human Rights Act 1998 required the court to have regard to the jurisprudence of the European Court where relevant to proceedings under the Act. Those proceedings would relate to action or inaction after October 2000 when the Act came into force.

In child abuse cases, the reasons of policy that led the House of Lords to hold in X v Bedfordshire that no duty of care towards a child arose, would largely cease to apply. There was still the issue of whether it was just and fair to impose a duty in care in circumstances where the risk of legal proceedings might inhibit a professional from taking action. Lord Phillips said that this risk would be present, whether the action was brought under the common law or the Human Rights Act 1998 Act.

As far as the position of the child was concerned, Lord Phillips said that the decision in X v Bedfordshire could not survive the 1998 Act, although those asserting that wrongful acts or omissions occurred before October 2000 would have no claim under the 1998 Act.

It followed that it would not longer be legitimate to rule that, as a matter of law, no common law duty of care was owed to a child in relation to the investigation of suspected child abuse. It was possible that there would be situations where it was not fair, just or reasonable to impose a duty of care, but each case would fall to be determined on its own facts.

The common law duty would not replicate the duty not to violate Arts 3 and 8. Liability for breach of the latter duty could arise in circumstances where the tort of negligence was not made out, but the area of factual enquiry was likely to be the same.

However the position in relation to the parent was very different. It would always in the parents’ interests that the child should not be removed. Thus the child’s interests were in potential conflict with the interests of the parents. Therefore there were cogent reasons of public policy for concluding, that where child care decisions were being taken, no common law duty of care should be owed to the parents.

Issues Three to Six – The individual appeals

Lord Phillips then turned to the individual appeals.

D v East Berkshire Community Health NHS Trust

In this case, M, the mother had been incorrectly diagnosed with Munchausen Syndrome by Proxy before it was discovered that in fact, her son, M was suffering from extensive and severe allergies.

The trial judge considered that public policy considerations militated strongly against any duty of care towards the appellant on the facts of the case, relying on X v Bedfordshire. The Appellant’s counsel submitted that the policy considerations in X v Bedfordshire did not apply to the facts of this case. He argued that the mistaken diagnosis was made by two doctors and that this case should be approached as one of clinical negligence.

Lord Phillips said that he could not accept this analysis. M and not his mother was the patient. The duty owed to M was in potential conflict with the interests of his mother. It was essential that the professionals should not be inhibited in acting in the best interest of M by concerns that they might be in breach of a duty owed to his mother. Therefore the trial judge had been correct to strike out the claim.

Lord Phillips considered the issue of proximity, which the trial judge had not been obliged to address. The mother had chanced to see the medical records relating to her son two years after the suggestion of Munchausen Syndrome by Proxy was first made. It was not alleged that she believed there was any truth in this diagnosis. Subsequently she was at a case conference at which it was decided to place M on the at-risk register. However she claimed that the false diagnosis caused her psychiatric illness. Lord Phillips said that every aspect of this claim caused difficulties, which the trial judge was not called upon to resolve. However the trial had concluded that the issue of foreseeablility and recoverability were sufficiently arguable to go to trial, and these conclusions had not been challenged.

Lord Phillips added that the claim had an element of defamation, to which there were statutory defences, including qualified privilege. It could not be open to a Claimant to by-pass these defences by advancing a claim for defamation in the guise of a claim for negligence.

So this appeal by M would be dismissed.

K and Another v Dewsbury Healthcare NHS Trust and Another

In this case, the Appellants were R, a nine year old girl and her father, K. The trial judge had held that R had an arguable claim for clinical negligence against the doctor who made the incorrect diagnosis. The NHS trust did not appeal from that finding. However R also claimed against the local authority (whose social services initiated the child protection investigation). The trial judge applied the policy considerations in X v Bedfordshire. As far as the father was concerned, his claim could only be attributed to the child protection investigation itself. Again  the trial judge had applied the policy considerations in X v Bedfordshire.

Lord Phillips said that for the reasons given above, he did not think that X v Bedfordshire stood in the way of R’s claim and so in relation to R, the trial judge’s decision would be reversed. However the reasons of public policy that the Court of Appeal had identified, precluded any finding of a duty of care to R’s father.

Lord Phillips again addressed the issue of proximity. This had not been an issue in the court below, but it was taken before the Court of Appeal in relation to the father’s claim. Lord Phillips said that the court would not rule that there was insufficient proximity between the doctors, the other professionals and R’s father to give rise to a duty of care.

He added that it was a difficult and artificial exercise to distinguish between proximity and the question of whether it was fair, just and reasonable to impose a duty of care.

Lord Phillips then turned to the issue of witness immunity. The trial judge had held that the local authority personnel were entitled to witness immunity, although he left open the issue of whether the doctors might also be entitled to similar protection. In X v Bedfordshire (the Newham case) it was held that the psychiatrist conducting an examination of a child would eventually give evidence in any proceedings, and therefore such an examination could not form the basis of subsequent claims.

However in Darker (suing as personal representative of Docker, dec’d) v Chief Constable of the West Midlands Police [2000] 4 All ER 193 Lord Hope drew a distinction between carrying out an investigation and preparing evidence to be given as a witness for trial. He said the witness immunity was not to be  used to shield the police from action for things done while they were acting as law enforcers or investigators. In the Newham case, the activities of the social workers probably fell into the category of investigation. The decision of the trial judge in this case was therefore wrong on the basis of Darker.

Therefore the appeal of the daughter, R would succeed but her father’s appeal would be dismissed.

K and another v Oldham NHS Trust and Another

In this case the Appellants were the parents of the child.

Once again the Claimants’ counsel had tried to distinguish this case from that of X v Bedfordshire and had argued that there was a duty of care owed by the doctor who made the misdiagnosis to the child and her parents. Lord Phillips said that this was unrealistic. The initial diagnosis of the doctor simply set in train the multi disciplinary approach. The moment the doctor suspected that the child had been abused, his duty to her was in potential conflict with her parents.

In relation to proximity, Lord Phillips referred to his discussion in the above two cases. He said that the Lords had some difficulty with the proposition that there was insufficient proximity between doctors and care workers, who were responsible for the removal of a child from parents, and those parents. The Court of Appeal would prefer to hold that the reason why no duty of care was owed to the parents was because it would not be fair, just and reasonable and not because of lack of proximity.

In relation to witness immunity, that had not been considered by the trial judge as a preliminary issue since it was held that it required evidence. Lord Phillips said that in such circumstances, the issue of witness immunity would not be considered by the Court of Appeal.

Therefore the appeal of the parents would be dismissed.