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C v Merthyr Tydfil County Borough Council, High Court, 21 January 2010

8 February 2010
The issues

Child abuse – duty of care towards child and parent by Local Authority – Social Services – JD v East Berkshire Community Health NHS Trust.

The facts

The Claimant, C, had two children, A born in 1996 and B born in 1998. The Claimant sought damages for personal injury in the form of her psychiatric condition, allegedly caused by the Council’s negligence in failing to deal properly with reports made by C in relation to the sexual abuse of A and B by another child. C claimed she had told the Authority twice that the children had been sexually abused by a neighbours child. C and her family were allocated a social worker, who was the same social worker allocated to the alleged abuser’s family. The Local Authority subsequently apologised for the wrongful allocation of the particular social worker as giving rise to a possible conflict of interest and also for failing to offer family support services to C.

When the action was began, the Local Authority applied to strike it out on the basis that, following JD v East Berkshire Community Health NHS Trust, no duty of care was owed to C because the owing of the duty to a parent or someone who reported would conflict potentially with the duty of care owed to the children and that C was a third party and did not fall within the narrow parameters of those third parties to whom a duty of care could be owed.

The Judge at first instance refused Summary Judgment against the Claimant.

The Local Authority Appealed to the High Court.

The decision

It had been argued for the Authority that the duty of care owed to children by the Council was paramount and therefore, as a matter of principle and law, no duty of care could be imposed upon an Authority in respect of a parent where there was a potential conflict between such a duty and that owed to the children.

However, there was authority to the effect that a party might be subject to a number of duties, provided that they were not irreconcilable (Lawrence v Pembrokeshire County Council), and there was considerable authority to the effect that even where a Local Authority do owe a duty of care to a child, they are not immune from also owing a duty of care to the child’s parents (A v Essex County Council and W v Essex County Council).

In A, the Court of Appeal had held that the Essex owed the adoptive parents a duty of care in relation to the information provided to those parents about the placed child, despite the same authority owing a duty of care to the parent’s natural children who were at threat from that child.

In W, the Claimants were prospective foster parents who received assurances from Social Services that they would not receive a foster child who was a sexual abuser. The placed child had a history of abusing children and he abused the foster parents own children. The House of Lords held that it was arguable that a duty of care was owed by the Authority to the foster parents in these circumstances, although whether the claim was justiciable was dependant upon an investigation of the full facts.

The Courts had drawn a distinction between decisions relating to policy and those relating to operational matters (see X v Bedfordshire County Council). Generally, where a decision concerned policy it was not justiciable. The position was different in respect of matters concerning operation, the distinction being said to be between a) taking care in exercising a statutory discretion whether or not to do an act; and b) having decided to do that act, taking care in the manner in which you do it. Thus, in A v Essex County Council, the Authority owed the parents a duty of care not in respect of their decision as to the extent of the information which should be given, but in respect of the passing on of such information as the Authority decided should be given to the parents. In W, the duty of care arose from the assurance that prospective foster parents receive from the Authority that they would not receive a foster child who was a sexual abuser.

The Court did not accept that D v East Berkshire had radically altered the law in this regard by holding that an Authority which owed a duty of care to children could not in any circumstances owe a duty of care to that child’s parents because of the potential for conflict. If that had been the intention of the House of Lords in D, and given that it would have effectively overruled cases such as W, the Court would have expected the House of Lords to have said so in clear terms, which they had not done. In any event, the decision in JD was distinguishable on the basis that in that case, the suspected perpetrator of the abuse was a parent.

The Authority had secondly argued that no duty of care was owed in that C was a third party and did not fall within the narrow parameters of those third parties to whom a duty could be owed. A third party case is one in which a third party claims the same duty of care as is owed to the primary victim. The law had shown a repugnance generally for granting remedies to third parties for the effects of injuries to other people and the circumstances in which third parties could recover was strictly circumscribed. It was common ground that those exceptions did not apply in this case. The concept was based on the premise that the scope and content of the duty of care owed to the primary victim and the third party were the same and outside those narrow exceptions, a third party was not allowed to hang on to the coat tails of the duty of care owed to the primary victim. In this case however, the duty of care asserted by the Claimant against the Council, was not parasitic on the duty owed by the Council to the children. She did not rely upon the same duty of care. She alleged that as a result of all the relevant circumstances in the case, the Council owed her a duty distinct to that which was owed to A and B. C was therefore not a third party at all and the Authority’s argument, founded on that proposition, failed.

Appeal dismissed.

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