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A & B v Somerset County Council, High Court 11th October 2012

13 November 2012
The issues

Social service records – children – abuse – local authority’s failure to intervene in respect of domestic abuse – disclosure

The facts

In care proceedings at Taunton County Court in 2008 the guardian of two children expressed concern that the local authority had failed in its duty to protect them prior to their removal from the family home. Papers as a result were referred to the official solicitor who investigated the possibility of launching a negligence claim against the council on the children’s behalf. The official solicitor sought disclosure of the children’s social services files. The applicants were brother and sister. At the relevant times, the social services department of the council had serious concerns about domestic violence between the parents of the children and the children’s exposure to it. There had been a number of referrals – some 30 incidents had been reported to the police in the three years after 2001.

He was particularly concerned by the difficulties the applicants would have in showing causation

In 2005 the children were taken into the care of the county council. At the care proceedings, the judge made an order that the guardian should have leave to release the papers to the official solicitor.

The authority had criticised those acting for the children on the basis that there was no satisfactory explanation as to why meetings had not taken place between the legal representatives and the children. Moreover, they had criticised the considerable delay after the order of the judge in the care proceedings – some four years. However, the court had to consider the position as it stood at the time of the hearing of the application for disclosure before the Master. It was not for the court to deprive the applicants of a remedy simply because the enquiries carried out on behalf of the official solicitor might have been pressed with greater vigour.

The Master had refused disclosure on the basis that the Master had applied too strict a test in relation to CPR 31.16. He had referred to a failure on the part of the applicants to show by evidence that the tort had been completed and in his conclusion the proceedings therefore were not going to succeed. He was particularly concerned by the difficulties the applicants would have in showing causation. The applicants criticised this approach, not merely on the basis that the test was too strict, but on the grounds that the applicants could not adduce evidence that they were injured during the period of culpable delay without having first identified that period for which the records were required.

The applicants appealed.

The decision

There was a logical flaw in the Master’s approach which was concerned with whether the horse was properly placed in relation to the cart. The whole point of an application for pre-trial disclosure was that the file should be scrutinised in order to determine when a competent local authority should have applied for removal of the relevant child or children. Until that point had been identified it would not be possible to determine how much harm, if any, had been suffered. The Master had expressly recognised that significant harm had been likely to be caused as a result of the drunken and violent behaviour of the parents, which they witnessed almost daily. That would almost certainly include harm incurred following the hypothetical breach. This was sufficient to pass the test of ‘a real prospect of success’. It was difficult to envisage how, prior to disclosure, the case could be formulated in any greater detail. The Master had set the bar too high.

Appeal allowed. Disclosure ordered.

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