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Lawrence v Pembrokeshire County Council, Court of Appeal, 15 May 2007

31 May 2007
The issues

Human Rights Act 1998 Article 8. Claimant’s children allegedly placed incorrectly on Child Protection Register – consequent psychiatric injury suffered by Claimant – whether Claimant has a cause of action – D v East Berkshire Community Health NHS Trust & Ors.

The facts

The Claimant brought an action of negligence and under the Human Rights Act 1998 for breach of Article 8 in respect of the way social workers, employed by Pembrokeshire dealt with her and her four children. She alleged that her children’s names should never have been placed on the Child Protection Register and that because of the way she and her children were treated she suffered psychiatric injury. The Defendant applied for summary Judgment.

Pembrokeshire Social Services became involved with the Claimant and her family after a Clinical Psychologist carried out an assessment on one of the children who was having toileting difficulties. Subsequently, after a number of issues were raised and although it was generally accepted that there was no concern as to physical harm to the children, the children’s names were placed on the child protection register under the category of “emotional harm”. At first review, three months after the decision to place the children on the register, it was decided that the children’s names should be kept on the register but that a core assessment should be carried out. Notwithstanding that there had been no contact between social workers and the children since the initial child protection conference other than one short visit by a key worker. Moreover the Claimant had only been shown the social worker’s report moments before the CPC started and she and the father were excluded from part of the meetings. The second review was held almost four months later in October 2002. Again there had been no monthly meetings with the key worker and there had been no core assessments and no visits by social workers and no provision to the Claimant of the relevant sections of the Child Protection Procedures. In the Claimant and the father were shown the reports of the conference just 5 minutes before the meeting started. The team manager recommended that the children’s names be removed from the register and the Claimant objected to further involvement by the Defendant in her family’s life. A complaint that she had made earlier about the failure of the Defendant following procedures leading up to the first CPC had been substantially upheld at stage 3 level. It was decided nonetheless at this review that the children’s names should remain on the at risk register. The third review in June 2003 chaired by an out of County chairman it was decided that the children’s names should be removed. In the meanwhile the Claimant made a second complaint and stage 3 review panel upheld it, finding that no support or information had been given before the reviews and that the chair of the CPC had failed to ensure that the Claimant and the father had been given access to the reports. There was a subsequent complaint to the Ombudsman in March 2003 who found that the Defendant’s failure to raise or take into account the initial strategy meeting amounted to mal-administration. He found that the fault leading to and occurring of the first CPC had not occurred but on a balance of probabilities the Defendant would not have taken the decision to put the children’s names on the at risk register and that the decision to keep them on the register was flawed and unreasonable. He recommended a payment to the Claimant of £5,000.00 from the Defendant which was subsequently paid.

The high Court Judge felt bound to follow the decision of the House of Lords in D v East Berkshire. He found no good reason why the law as propounded by the majority in D should be modified because a claim by a parent honestly, but mistakenly thought to be guilty of abusing his child, might be available under the Human Rights Act. The claim was therefore struck out. The Claimant appealed to the Court of Appeal.

The decision

The Claimant had argued for a “small incremental step” to develop the common law arguing that the advent of Article 8 to English law since the facts that gave rise to the ruling of the House of Lords in East Berkshire called for an evolutionary change in the law of negligence where it overlapped with the parent’s right to respect for his or her family life. The Claimant argued that now that Article 8 was part of English law, the Courts should develop the common law by recognising the duty of care to parents by those publicly responsible for the safety and wellbeing of children when investigating and / or taking steps to avert the risk of parental abuse, having regard to the recognition of Strassborg jurisprudence that duties of care in cases of suspected child abuse may be owed both to children and to parents suspected of abusing them and the need for compatibility of the common law with the Article 8 right. The Defendant argued that the principles of law set out by the House of Lords in the East Berkshire case precluded a duty of care in this context to parents and that the applicability of the Human Rights Act to the facts of this case did not undermine those principles or the public policy considerations underlying them.

The small incremental step argued for would be a step too far. The public interest in effective and fair investigation and prevention of criminal behaviour had fashioned the common law to protect those suspected of it from malice or bad faith, but not from a well intentioned but negligent mistake. The East Berkshire case had emphasised the distinction in the need to provide protection to those who had a duty to enforce the law in good faith from the imposition of a duty in negligence that could inhibit them in the effective fulfilment of that duty. The development argued for by the Claimant would fundamentally distort the law of negligence in this area and put at risk the protection for children which it provided in its present form. Article 8 had a wholly different legal construct which engaged liability without reference to a duty of care and which complimented the common law in providing a similar protection. The provision of a discrete convention remedy through the Human Rights Act did not make it necessary to change the common law in the manner that had been argued for.
Appeal dismissed.

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