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L (1) & B (2) v Reading Borough Council & Others, High Court

27 October 2006
The issues

Sexual abuse – striking out – the existence of a duty of care by social worker to investigated victim of sexual abuse and victim’s father – D v East Berkshire Community Health NHS Trust.

The facts

(Assumed facts for the purposes of the Application)

L was born in 1987. Her parents, S and B, were not married. In 1988 the relationship between the parents broke down and they separated. B remained in contact with L until April 1990 when B was allowed to see L irregularly. In 1990 S became concerned that B may have been sexually abusing L and referred the matter to her doctor and her health visitor. She also got in touch with the social services department of Berkshire County Council. L was interviewed by a social worker employed by Berkshire and a police officer. The interview was not video recorded nor were notes made at the time by either interviewing party. L said things that made them think B had sexually abused her, although subsequently they accepted that what they had been told did not amount to evidence of sexual abuse. A further interview occurred the next day which was video recorded. The Claimant’s case was that the questioning was inappropriate and “outrageous and oppressive”. After this B was arrested. He was told things which were not true by the police officer, namely that the police had medical evidence that L had been sexually abused. B was released without charge. B made an application for contact with L which was consolidated with Berkshire’s application for care order in respect of L. When this came before the Judge he urged the social workers to take a fresh look at the case. Eventually the Judge found that B had not sexually abused L in any way and he made various orders to promote contact between L, B and B’s parents. Eventually a full care order was made in favour of Berkshire and in October 1996 she went to live with B and has lived with him and his new family ever since. Proceedings were issued in 1998 by B and on behalf of L. On L becoming of age she discontinued the action leaving B as the only Claimant. Besides allegations against the police, which were not relevant to the present matter, three allegations were made against Berkshire in the action:-

1. Breach of duty of care on behalf of four social workers for which Berkshire were alleged to be vicariously liable.
2. Misfeasance in a public office (two aspects of the social worker’s conduct were alleged to have amounted to the deliberate, malicious and dishonest abuse of power on her part). Although it was not pleaded the matter proceeded on the basis that Berkshire were vicariously liable.
3. Conspiracy to injure. The allegation was that the social worker and the police officer conspired to injure B by fabricating evidence. Again, although it was not pleaded, the Court proceeded on the basis that Berkshire were vicariously liable.

The Defendant applied to strike out the allegations relating to Berkshire’s vicarious liability for the breach of the social worker’s duty of care owed to B.

The decision

The Claimant had argued that the Application to strike out should not be dealt with prior to the Trial, even on an assumed facts basis. The Claimant argued that there was a disadvantage in determining the Application now because there was a distinct possibility that there would be an Appeal from whatever Order was made on the Application which would result in further delays in the Trial of the action. This argument did not persuade the Court. There was no certainty that the Judgment would be the subject of an Appeal, and even if there were an Appeal the time lost would not be very much in the context of the time which had elapsed in the action to date. It was better that the parties prepare for Trial on the basis of what allegations which can be pursued and which have no prospect of success.

In D v East Berkshire Community Health NHS Trust the House of Lords had held that it would not be right to impose a duty on social workers and other relevant professionals when they were investigating whether a child had been abused, to take account of the real risk that the parents might be harmed, provided the professionals acted in good faith.

The Claimant argued nonetheless that the social workers, for whom Berkshire was vicariously liable, owed a duty of care to B in their investigation of S’s concerns that L may have been sexually abused. The Claimant alleged that the allegations made against the social workers related to their operational competence and not to any decisions which called for evaluation or judgement. The Claimant argued that there was a distinction between decisions about whether to intervene in a child’s upbringing which often were finely balanced and had a strong element of subjective judgement in them and questions of how a child was interviewed and whether, and if so how, the child’s responses and demeanour were to be recorded, how those responses were to be relayed to those who had to make decisions about whether intervention was required, and what information was to be given to them.

There was some force in this argument. However, its effect would be to impose a duty of care on social workers to the parents of children who were the subject of investigation of abuse in respect of some aspects of the investigation and not others. The interviewing of the child and the relaying of the contents of that interview were as much part of the investigation as the evaluation of that and other material to decide whether intervention was necessary. The duty of care could not exist for some purposes in the course of an investigation into child abuse and not for others. It either existed for all purposes in the investigation or for none. Otherwise the social workers would be in an impossible position. They would have to assess in every case whether the particular function on which they were engaged at any time was one which attracted the duty of care.

For these reasons it would not be fair, just or reasonable to treat the social workers employed by Berkshire who handled the investigation of L’s alleged abuse at the hands of B as owing a duty of care to B in the conduct of the investigation. The relevant allegations in the Particulars of Claim would be struck out.

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The content on this page 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.

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