0370 270 6000

A and Another v Essex County Council, Court of Appeal, 17 December 2003

24 December 2003
The issues

Adoption Agency – Duty of Care – whether fair, just and reasonable to impose upon professionals involved in compiling reports for adoption agencies, a duty of care towards prospective adopters.

The facts

The two children in this case known as “William” and “Kate” were born in July 1990 and March 1993 respectively. The family was known to Social Services, which had concerns about domestic violence and drug and alcohol abuse, by the father. Interim Care Orders were obtained in July 1993. The children were returned to their mother at a womens refuge for 3 weeks but removed to foster care when the mother rejected Kate and it was feared that the parents would run away together with William. The children were placed in their final foster placement in October 1993. By then the parents wished to be reunited with William but had decided to surrender Kate. The Local Authority appointed a Consultant Child Psychiatrist for the purpose of the care of proceedings. The Psychiatrist made a report in November 1993, indicating that William showed signs of having seen violence and showed signs of disturbance and disturbed behaviour and thinking. The Psychiatrist thought he ought to be referred to a Child Guidance Clinic. However, he found that the children did not appear to have suffered developmental decay or to have been harmed by any experience they might have had. The Psychiatrist concluded therefore that there were no grounds for making a full Care Order or removing the children with a view to adoption.

Full Care Orders were made nonetheless in December 1993. By August 1994, William was showing reluctance to meet his parents. The parents applied for discharge of the Care Orders and for contact. The Local Authority applied for permission to refuse contact. The children were referred for discussion by the Agency’s Adoption Panel in September. The Panel advised Social Services to work towards placing the children together. The Child Psychiatrist saw William again in October 1994 and found him better generally than when seen before. He recommended that it would not be wise however to return him to parents, but equally that it would be premature to begin adoption proceedings and recommended a child guidance enquiry. That did not take place. In November 1994, the Adoption Panel recommended adoption, in the best interest of both children and that they should be placed together. In December 1994 the Court refused the parents’ Applications for discharge and contact and authorised the Local Authority to refuse contact. In the meanwhile, the Claimants had been formally approved as prospective adopters. They had indicated that they were not prepared to consider a child with a physical or mental disability or special educational needs, but would consider a child who had been physically or sexually abused. The formal placement meeting was held in January 1996. A timetable for introductions was arranged. The Claimants confirmed that they would now like the placement to go ahead. Children were placed with the Claimants by February 1996 and Applications to adopt were lodged. The Claimant’s Solicitors applied to the Court for the contents of the care files to be disclosed to the Claimants on the basis that William suffered from behavioural problems and this would provide them with greater insight to help them to deal with those problems. This was refused. William was then causing considerable difficulty in terms of his violent and destructive behaviour. The Claimants were not being forthcoming with the Social Workers about this for fear of losing the children. Adoption Orders were made on 1st May 1997. Soon after, the adoptive mother became pregnant. By October of that year, they had received further information including a summary by a Barnardos worker of the information available in the Child Care files which listed William’s previously violent behaviour and which came to the Claimants as a shock. William’s behaviour got worse until March 1999 when he lost control, injuring both parents and throwing an electric iron at the Claimant’s natural child, the baby Emma. William was accommodated by the Local Authority.

At the time of the action, William was living with the parents again. They felt however they had not been given sufficient information in the first place, but now having taken the children on they were emotionally committed and could not go back. However, they had suffered physical damage to their home, psychiatric injury and assaults. They claimed damages from the Local Authority.

The decision

Adoption agencies were entitled to have policies as to what information would be disclosed to prospective adopters before children were placed with them. That policy decision was an area of discretion, which could only be challenged if it fell outside the realms of reasonableness. Two further questions fell to be answered. Firstly, was there a duty of care in relation to the communication of the information, which the agency had decided that prospective adopters should have? Secondly, was there a duty of care in relation to the contents of the forms and reports, which were made?

2. As to the first question – there was no difficulty in imposing a duty of care in respect of a duty to ensure on the part of the Agency that its staff take reasonable steps to ensure that communication of information which they have decided should be communicated is in fact communicated in circumstances where it is reasonable that actual harm will be caused if it is not.

3. The second question was the more difficult. Social Workers and Doctors responsible for compiling reports and forms must have a primary duty towards the Agency by which they are employed, in order that the Agency can fulfil its statutory obligations. There was a tension between owing duties towards the people who were the subject matter of those reports and towards the people who might read and rely upon them. Two features told particularly strongly against such a duty in adoption cases. The first was the statutory framework in respect of which a balance has to be struck between the interests of all three parties to the adoption triangle, namely the adopters, the birth parents and the child. The first duty was towards the child and the child’s interest might well conflict with those of any of the adult parties to the triangle. The Court of Appeal in D -v- East Berkshire and the Privy Council in B -v- Attorney General of New Zealand had recognised the difficulty and declined to hold that there was any duty of care towards the birth parents. Secondly, there was a potential conflict between the prospective adopters and the child. A delicate balance had to be struck between pessimism, which might render some children effectively unadoptable, and optimism, which might put the placement at risk of breakdown with consequences for the child, which might be worse if it had never been made. It would not be fair, just or reasonable to impose upon professionals involved in compiling reports for adoption agencies, a duty of care towards prospective adopters. It might be that a duty of care may be owed towards the child, but that issue did not arise in this case.

4. If the Court were wrong as to this, a breach of that duty of care would be judged in accordance with the principles laid down in Bolam -v- Friern Hospital Management Committee. A third question was whether the agency had a duty of care in respect of the decision about what information should be passed on. [Lady Justice Hale repeats herself and says again that there is a general no duty of care owed by an Adoption Agency or the staff whom it employs in relation to deciding what information is to be conveyed to prospective adopters. Only if they take a decision, which no reasonable Agency could take, could there be liability].

5. In this case on the basis of the Judge’s finding of fact, the Agency had breached its duty. The Agency had decided that the prospective adopters should have both Form E and the medical reports. The Judge found that the adopters had not received the written medical reports before the placement or a full oral explanation when Dr Lehner had visited them at home.

6. The Judge had accepted the Claimant’s evidence that had they had the information, which they believed they should have had, they would not have accepted the children.

7. The Judge had restricted the claim to the period before the Adoption Order was made. The Judge had been entitled to find that by the time the Adoption Order had been made, quite enough had happened to enable the Claimants to know enough about William to be able to make a decision for themselves. In those circumstances, it would be contrary to the Statutory Scheme for liability to continue beyond the date of the Adoption Order. The purpose of the probationary period was for all concerned to test out the arrangement and either side was free to withdraw at any time. The Judge had been right therefore to treat the Adoption Order as the cut off point.

8. Whilst it was difficult to accept that psychiatric illness was a foreseeable result of placing William with the adopters, it was foreseeable that William might assault them and damage their property and in those circumstances, following Page -v- Smith, there was liability for whatever harm ensued.

Appeal and Cross Appeal dismissed.


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