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Sarah Erwin-Jones, Partner

Sarah Erwin-Jones, Partner

t: 0115 976 6136

f: 0115 947 5246

serwin@brownejacobson.com

David Maggs, Partner

David Maggs, Partner

t: 020 7539 4931

f: 020 7836 3882

dmaggs@brownejacobson.com

 

 

 

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Professional Negligence claims in child protection cases increase

Claimants’ solicitors are making much of a recent court decision against Doncaster Metropolitan Council Social Services Department, reported as Pierce –v- Doncaster MBC [13 December 2007]. They are using it to encourage more claimants to come forward and, presumably, the Legal Service Commission to fund more claims.

 

Mr Pierce was removed from his family shortly after birth in 1976 and then returned to them in November 1977 remaining there until towards the end of 1990. He alleged that during that time his parents mistreated him, causing psychiatric damage. Mr Pierce claimed that the Council's original decision to return him home in 1977 was made without any proper assessment or investigation to justify it. The judge upheld this claim and awarded the claimant £25,000.

 

This case is the first of its kind to get to trial. Until 1999 the courts were unwilling to impose a duty of care on professionals addressing child protection issues because of the delicate and multi-disciplinary nature of the work. It was regarded as contrary to public policy for professionals to have to make difficult decisions concerning children and their families, knowing that the spectre of litigation may be hanging over them.

 

In 1999 the House of Lords looked again at the law, encouraged by various decisions of the European Courts. It commented that the European Commission had taken the view that the multi-disciplinary aspect of child protection work “may provide a factual complexity to cases but cannot by itself provide a justification for excluding liability from a body found to have acted negligently” and applied that principle in the UK.

 

So, for claimants, the gloves are off! Claims are being made left, right and centre:

 

  • By children who claim they are not removed from abusive homes when Council know or ought to know that they are at risk
  • By children who allege that child protection investigations have been mishandled, resulting in their removal from their parents’ care without proper need, causing unnecessary distress
  • By parents who allege they have been wrongly accused of abuse or are the victims of mishandled child protection investigations

 

…and the claims aren’t just against children’s service departments. Recognising the multi-disciplinary nature of this work, Health Trusts and Police Forces are also being named as defendants.

 

So far, the Court of Appeal has dismissed all the claims from parents, most recently in December 2007 in a case called B -v- Wokingham DC and others, on the basis that professionals cannot simultaneously owe a duty both to children and their parents.

 

However, the other two types of claim from children are on the increase, and to succeed claimants will need to show that particular individuals have been negligent.

 

As the Court of Appeal said in B:

 

"……………… it is necessary………. to establish a breach of duty of at least one social worker. The question in each case is whether the social worker acted or failed to act in a way in which a reasonably competent social worker would have done. Whether the reason for the social worker’s breach of duty is some failing of his own or solely because he or she was inadequately instructed, managed or supervised by his or her local authority supervisor seems to us to be immaterial …..."

 

So what is the practical effect of these decisions?

 

1.  Staff (eventual witnesses) – professionals involved with the children need to know that this type of claim is on the increase. Health professionals will already be alive to the increase in claims against doctors and hospital staff, and Social Workers must face the fact that their profession will be challenged more frequently in the same way. The way to defend these cases is to make sure that all staff receive regular child protection training, that they all keep careful, clear, dated records of decisions made, along with the reasons for those decisions, that filing is kept up to date and that all plans are properly implemented.  It sounds obvious, but time and time again we see defendants face difficulties demonstrating that professionals have met acceptable standards because they don’t have the contemporaneous records to prove it, or because a care plan has drifted when a member of staff has left.

 

2.  Performance management – some staff will under perform. It is necessary to find the time and resources to manage and address that underperformance, both to give staff the opportunity to improve and to remove those who simply cannot meet the standards needed to provide a proper child protection service. If employers conclude that there has been any misconduct on the part of social workers currently employed by them that might call into question their registration as social workers, they should report this to the General Social Care Council, in accordance with the GSCC Code of Practice for Employers of Social Workers of Sept 2002.

 

3.  Handling claims

 

a.  Claims by parents – based on the current law, these claims are likely to fail at an early stage. However, expect to see parents pleading their claims in novel and unexpected ways to avoid current legal hurdles.

 

b.  Letters of claim– claimants continue to set out their cases widely, making sweeping allegations both in terms of dates and allegations of negligence. In each case we recommend making a very simple request for information about which professionals were negligent and how.  This means rather than trying to defend the whole of a department’s practice over a period of many years, you can seek to focus the issues, avoid fishing expeditions and hopefully save costs.

 

For more information please contact

Sarah Erwin-Jones or David Maggs.

 

 

The content of this bulletin is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.