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D v East Berkshire Community Health NHS Trust, House of Lords, 21 April 2005

9 September 2005
The issues

Liability of Social Services Departments – Liability of Local Authority – Mistaken Diagnosis of Child Abuse by Social Services

The facts

East Berkshire was one of three cases, the others being MAK v Dewsbury NHS Trust and RK v Oldham NHS Trust.

In each case the parents of children brought actions alleging that healthcare professionals were negligent in investigating alleged child abuse. In the Dewsbury case a child was also a Claimant directly and the local authority which was responsible for its Social Services Department was an additional Defendant.

The claims had all been struck out at first instance. In all three cases the Claimants appealed. The Court of Appeal dismissed the appeals of the parents but allowed the appeal of the child in the Dewsbury case.

The parents appealed in all three cases to the House of Lords. There was no appeal from the local authority against the Court of Appeal’s decision in the Dewsbury case.

In that case the Court of Appeal had found that x v Bedfordshire ought not to be followed because it was inconsistent with the child’s rights under the European Convention on Human Rights. It was decided that it was reasonably arguable that a local authority owed a duty in negligence to a child in relation to its investigation of suspected child abuse and the commencement and seeing through of care proceedings. It was however not prepared to say that there were situations where there might still be no duty.

The decision

1. There was potential conflict between the interests of parents and the interests of children when child care decisions were being made. For example, at the time when the professionals were investigating alleged abuse they would not know whether there had been abuse by a parent. Thus the professionals would be torn between the interests of the child namely that the professional should report suspicions and investigate further, and the interest of the parents which were clearly contrary in such a situation [Lord Roger “the world is full of harm for which the law furnishes no remedy”] 2. Because of that conflict there were good policy reasons for not imposing on Social Workers and Doctors a duty of care owed to parents in respect of such decisions.
3. The majority of the House of Lords reserved its opinion on the effect of the ECHR on the common law of negligence. It is still therefore potentially open to the Court to reach a different decision in respect of the parent’s claim arising after 2nd October 2000.

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