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failure to remove claims - they are defendable!

3 April 2009

His Honour Judge Birtles handed down Judgment in an important failure to remove case last Friday: TF v LB Lewisham. As far as we are aware, this was only the second case of this nature going to trial; the first being Pierce v Doncaster MBC [2008].

The facts

The claimant (TF) was born in 1984. From birth there were concerns about her mothers ability to care for her and a social worker was appointed to the family. The claimant was taken into Lewishams care in December 1988 and later placed with a foster parent, Mrs B. In May 1989 the claimant was returned to her mothers care on a two month trial basis. It failed. The claimant returned to Mrs Bs care in July 1989.

In August 1990, the claimant was placed with a prospective adoptive parent, Mrs E. The following month the claimant made disclosures to Mrs E of serious sexual abuse by RD, a friend of her mothers. In 1992, the claimant disclosed sexual abuse by Mrs Bs son, LB. Lewisham provided the claimant and Mrs E with support, including therapy.

The claimant complained that when Mrs E applied to adopt her, Mrs E had made it plain that she did not want a child who had been sexually abused. The claimant alleged that it was plain to Lewisham that she had been sexually abused before her disclosures in 1990. After the claimants disclosures, Mrs E did not adopt, but fostered her on a long term basis instead. The claimant remained with Mrs E until adulthood, having achieved significant academic success - to degree level. The claimant alleged that she suffered from mild depression and had traits of an emotionally unstable personality disorder caused by her mothers rejection and the alleged sexual and emotional abuse.

The trial

At trial, the claimant alleged that Lewishams social workers had:

  • failed to recognise that RD and LB had sexually abused her
  • failed to fully appreciate her mothers failings and protect the claimant from emotional abuse by her
  • sought to rehabilitate the claimant with her mother when they knew this was likely to fail, thereby exposing the claimant to further emotional neglect and rejection by her mother
  • failed to disclose her history of sexual abuse to Mrs E prior to adoption

A duty of care was admitted but breach, causation and damage were denied. No limitation issue arose. Four of the claimants ex-social workers gave evidence for Lewisham. The claimant also gave evidence. Both parties relied on social care experts and psychiatrists.

Success!

Judge Birtles stated that the standard of care to be expected was to be determined by the Bolam test: what a reasonable body of similar professionals would have expected at the time. Further, he stressed the importance of establishing causation in relation to the acts complained of "…the Court should only find a breach of duty where a particular act or decision had a long term effect upon the claimant, or where a particular omission exposed the claimant to a self-evident and obvious danger."

He also took into account the fact that "it is normally in a childs interests to grow up within his or her natural family. A childhood spent within the care system…can often be damaging." Unusually, he recognised the available resources argument "social workers operate within finite resources and the time which they can give to one case is restricted."

Finally, he directed himself that "it is not enough to show instances of bad social work. For negligence to be established there must be manifest incompetence or a specific action or decision which was clearly wrong and outside the ambit of what was reasonable."

In the event, he dismissed the claim in its entirety. In particular he found that:

  • Somewhat unusually, His Honour found as a fact that the claimant had not been abused by either RD or LB
  • Of the decision to have a trial rehabilitation with the claimants mother in 1989, he found that whilst this could be criticised because it failed, it did not mean that it should not have been attempted, nor that the decision fell outside the ambit of what was reasonable
  • He also found that "while a local authority owes a prospective adoptive parent a duty to provide that which it agrees to disclose, it does not owe a wider duty of disclosure." Nor was there a claim by Mrs E in any event

The experts

The Judge preferred the evidence of Lewishams social care expert, Professor Payne to that of Maria Ruegger. He found Professor Paynes reports, comments and addendum report to be "more moderate in tone and less concerned with making a case for his client". By contrast, he found parts of Ms Rueggers report to be "somewhat didactic and partial in tone". Whilst he found in oral evidence that Professor Payne was a more hesitant witness than Ms Ruegger, he considered that he "gave his evidence based on a more careful examination of the social services records and had a greater unwillingness than Ms Ruegger to speculate or impose his own views on the raw materials". He also found Professor Paynes "explanations of particular events to be more inherently probable".

The Judge also preferred the evidence of Lewishams psychiatrist, Professor Maden, to that of the claimants expert, Dr Baggaley. He found that the rejection by the claimants mother (never an allegation of negligence) was the most important factor in the claimants psychological condition.

Defendable!

Permission to appeal has been refused. Success in this case was down to a number of factors, most importantly:

  • The thorough searches for relevant documents and witnesses
  • Witness evidence that complemented the surviving documentation
  • The handling of the witnesses, including them being kept fully informed and supported throughout the case and at trial
  • The robust and impartial evidence of Lewishams experts

The claimants case was funded by a CFA. Lewisham will now seek recovery of their costs.

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