Ipsofactoj.com: International Cases [2004] Part 1 Case 12 [CAEW]


COURT OF APPEAL, ENGLAND & WALES

Coram

JD

- vs -

East Berkshire

Community Health

LORD PHILLIPS OF WORTH MATRAVERS, MR

LADY JUSTICE HALE

LORD JUSTICE LATHAM

31 JULY 2003


Judgment

Lord Phillips, MR

(delivered the judgment of the Court)

INTRODUCTION

  1. These three appeals have been heard together because they have common features and raise common issues. Each involves accusations of abusing a child made against a parent by the professionals concerned for the welfare of that child. In each case the accusations proved to be unfounded. In each case a parent claims damages for psychiatric harm alleged to have been caused by the false accusations or their consequences. In one case the child also claims. In each case the primary case is advanced in negligence. In each case, preliminary issues have been tried, including whether any duty of care was owed to the claimant or claimants. In each case it has been common ground that the test to be applied is that identified by the House of Lords in Caparo Industries Plc v Dickman [1990] 2 AC 605. In each case the court of first instance has held that no duty was owed, because it was not 'fair just and reasonable' to impose such a duty, applying the principles laid down by the House of Lords in X v Bedfordshire County Council & M v Newham London Borough Council [1995] 2 AC 633 (‘Bedfordshire’), so that each claim has been dismissed. The primary issue in each appeal is whether the decision in Bedfordshire is fatal to the claim. There are, however, a number of subsidiary issues.

  2. In the first appeal (‘East Berks’) a mother claims in respect of acute anxiety and distress that she alleges she suffered as a result of being incorrectly accused of suffering from Munchausen syndrome by proxy. In her case she was not, in fact, separated from her child. In the second case (‘Dewsbury’) a father and his daughter claim for psychiatric injury and financial loss resulting from unfounded allegations that the father might have sexually abused his daughter, which led to the father being denied access to his daughter for a short period. In the third appeal, (‘Oldham’) a mother and father claim in respect of psychological distress suffered as a result of unfounded allegations of having inflicted injuries on their daughter, which led to the child being separated from her parents for nearly a year.

    THE ISSUES

  3. Mr. Allan Levy QC, who has appeared for all the appellants, has contended that the decision in each case violates Article 6 of the European Convention on Human Rights ('the Convention'). This is the first general issue that we shall consider.

  4. Mr. Levy contends that the law has developed since the decision in Bedfordshire and that we should hold, on the basis of recent authority, that it is 'fair, just and reasonable' to impose a duty of care on the defendants in the circumstances common to each appeal. Whether more recent authority has varied the principles laid down in Bedfordshire is the second general issue that we shall consider.

  5. Mr. Levy submits that there was, in each case, a violation of Article 8 of the Convention and that the first instance decisions violate Article 13. He urges that, in order to avoid these violations, each case should be permitted to go to trial and that the test of negligence that the Court should apply is one that provides a remedy for the breach of Article 8 that has occurred in each case. The effect of the impact of the Convention is the third general issue that we shall consider.

  6. Mr. Levy submits that, in each case, Bedfordshire can be distinguished on the facts. This issue we shall have to consider individually, having regard to the facts of each appeal.

  7. In each action, one or more NHS Trusts have been sued as defendants. They have been represented by Mr. Robert Francis QC. In Oldham Simon J. held that the requirement of 'proximity' laid down by Caparo was not satisfied. Any duty was owed to the child and there was no room for an additional duty owed to the parents. By a respondents' notice Mr. Francis seeks a finding in the other two appeals that there was no proximity between the parent claimants and the NHS defendants. Whether there was a lack of such proximity is a second issue that we shall have to consider on the facts of each individual case.

  8. In Dewsbury Judge Grenfell held that the second defendants, the council, were protected by witness immunity. Mr. Levy challenges that finding. Mr. Francis, for his part, seeks, by respondents' notice, a finding that all the NHS defendants were protected by witness immunity. Whether the defendants are protected by witness immunity is a third issue that we shall have to consider in each case.

    THE FIRST GENERAL ISSUE

  9. In advancing his argument in relation to Article 6, Mr. Levy explained that he was seeking to 'resurrect' Osman v United Kingdom [1999] 1 FLR 193. His argument based on Osman is, as we understand it, as follows. To exclude any duty of care on the part of those involved in making decisions for the protection of children against suspected child abuse is to grant them immunity against liability in negligence. To enable the defendants to invoke the protection of such immunity by way of preliminary issue is to deny the claimants the right to have their claims determined on the facts of the individual cases. This violates their right to a fair trial under Article 6. The court should not adopt such an approach.

  10. It is convenient to consider these submissions in the context of the two Bedfordshire child abuse cases. At this stage we can touch lightly on the facts and the decisions in those cases. In the Bedfordshire case five children claimed against a local authority damages for breach of statutory duty and negligence in failing to exercise statutory powers and duties to protect them from parental abuse and neglect. In the Newham case a child and her mother claimed damages for breach of statutory duty and negligence against a local authority, an area health authority and a consultant psychiatrist employed by the latter. The alleged negligence included failure competently to investigate the identity of a man who had sexually abused the child, with the result that the child was unnecessarily removed from the mother and both suffered psychiatric injury. Both actions were struck out on the basis that they disclosed no reasonable cause of action, and appeals were dismissed.

  11. The House of Lords held that both actions had properly been struck out. The relevant statutes imposed no duty in favour of the claimants. As for the claims in negligence, as a matter of public policy it was not just and reasonable to impose a common law duty of care, either to children or to their parents, on those entrusted with the difficult and delicate task of deciding whether action was necessary to protect children from suspected abuse.

  12. The decisions in Bedfordshire were followed by the decision of the European Court of Human Rights in Osman. In that case also, a statement of claim had been struck out as disclosing no reasonable cause of action. In Osman the applicants complained that their rights under Article 6 of the Convention had been infringed. They had brought an action in the United Kingdom against the police alleging negligence in the prevention and pursuit of crime. The Court of Appeal struck out the proceedings on the ground that they disclosed no reasonable cause of action. This was on the basis that it was a clearly established principle of the law of negligence that the police owed no duty of care to individual citizens in relation to the vigour with which they carried out their duties of prevention and detection of crime - see Hill v Chief Constable of West Yorkshire [1989] AC 53.

  13. The Strasbourg Court upheld the applicants' claim. The reasoning of the Court appears from paragraph 139 of its judgment:

    On that understanding the court considers that applicants must be taken to have a right, derived from the law of negligence, to seek an adjudication on the admissibility and merits of an arguable claim that they were in a relationship of proximity to the police, that the harm caused was foreseeable and that in the circumstances it was fair, just and reasonable not to apply the exclusionary rule outlined in the Hill case. In the view of the court the assertion of that right by the applicants is in itself sufficient to ensure the applicability of article 6(1) of the Convention.

  14. This decision perplexed common law judges and jurists. In Barrett v Enfield Borough Council [2001] 2 AC 550 at pp.559-60 Lord Browne-Wilkinson explained the difficulty that he had in following the reasoning of the Court:

    Having so defined the ambit of article 6, the Strasbourg Court held that there was in the Osman case a breach of such right of access to the English court, such breach lying in the application of a blanket exclusionary rule which excludes all claims against the police for negligent failure to investigate or protect from crime. In the view of the Strasburg Court, apparently, the applicability of such exclusionary rule has to be decided afresh in each individual case. If this is not done then it is impossible to determine whether the public interest in an efficient police force is or is not proportionate to the seriousness of the harm suffered by the plaintiff in the individual case: see paragraph 150. On these grounds, the Strasbourg Court held that the English court had breached article 6 by striking out the claim made by the Osmans against the police without hearing any evidence by reference to which the proportionality of the rule in that particular case could be judged. The Court said that the police had been granted a "blanket immunity" which was disproportionate and therefore an unjustifiable restriction on the Osmans’ right of access to the court. The Osmans were entitled to have their case against the police determined in deserving cases: see paragraphs 151 and 152.

    The problems in applying this reasoning to the English law of negligence are many and various. For example, the correct answer to the following points is not immediately apparent. 1. Although the word "immunity" is sometimes incorrectly used, a holding that it is not fair, just and reasonable to hold liable a particular class of defendants whether generally or in relation to a particular type of activity is not to give immunity from a liability to which the rest of the world is subject. It is a prerequisite to there being any liability in negligence at all that as a matter of policy it is fair, just and reasonable in those circumstances to impose liability in negligence. 2. In a wide range of cases public policy has led to the decision that the imposition of liability would not be fair and reasonable in the circumstances, e.g. some activities of financial regulators, building inspectors, ship surveyors, social workers dealing with sex abuse cases. In all these cases and many others the view has been taken that the proper performance of the defendant’s primary functions for the benefit of society as a whole will be inhibited if they are required to look over the shoulder to avoid liability in negligence. In English law the decision as to whether it is fair, just and reasonable to impose a liability in negligence on a particular class of would-be defendants depends on weighing in the balance the total detriment to the public interest in all cases from holding such class liable in negligence as against the total loss to all would-be plaintiffs if they are not to have a cause of action in respect of the loss they have individually suffered. 3. In English law, questions of public policy and the question whether it is fair and reasonable to impose liability in negligence are decided as questions of law. Once the decision is taken that, say, company auditors though liable to shareholders for negligent auditing are not liable to those proposing to invest in the company (see the Caparo Industries case (1990) 2 AC 605), that decision will apply to all future cases of the same kind. The decision does not depend on weighing the balance between the extent of the damage to the plaintiff and the damage to the public in each particular case.

  15. Osman led to an understandable reluctance on the part of the English courts in Barrett and other cases to use the striking out procedure, as we shall show when we come to address the second issue. Lord Woolf MR commented on this in Kent v Griffiths [2001] 1 QB 36. He went on to observe at paragraph 38:

    In so far as the Osman case [1999] 1 FLR 193 underlined the dangers of a blanket approach so much better. However, it would be wrong for the Osman decision to be taken as a signal that, even when the legal position is clear and an investigation of the facts would provide no assistance, the courts should be reluctant to dismiss cases which have no real prospect of success. Courts are now encouraged, where an issue or issues can be identified which will resolve or help resolve litigation, to take that issue or those issues at an early stage of the proceedings so as to achieve expedition and save expense. There is no question of any contravention of article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd 8969) in so doing. Defendants as well as claimants are entitled to a fair trial and it is an important part of the case management function to bring proceedings to an end as expeditiously as possible. Although a strike out may appear to be a summary remedy, it is in fact indistinguishable from deciding a case on a preliminary point of law.

  16. Four of the five unsuccessful claimants in Bedfordshire took their case to Strasbourg - Z v United Kingdom [2001] 2 FLR 612. They alleged violation of Articles 3 and 13 but also, relying on Osman, of Article 6. The Commission expressed the view that there had been a breach of Article 6, but the United Kingdom succeeded in persuading the Court that this was not so. In reviewing the English law of negligence the Court quoted from the passage in the speech of Lord Browne-Wilkinson in Barrett that we have set out above and commented:

    The striking out procedure, now contained in r.3.4(2) of the Civil Procedure Rules 1998 in force since 1999, is regarded as an important feature of English civil procedure, performing the function of securing speedy and effective justice, inter alia by allowing it to be decided promptly which issues need full investigation and trial and disposing summarily of the others. By means of this procedure, it can be determined at an early stage, with minimal cost to the parties, whether the facts as pleaded reveal a claim existing in law.

  17. The Court considered the alleged breach of Article 6 at length and concluded that no violation had occurred. The most material passage in the lengthy reasoning of the Court is to be found in the following paragraphs:

    100.

    The applicants, and the Commission in its report, relied on the Osman case ([1999] 1 FLR 193, (2000) 29 EHRR 245) as indicating that the exclusion of liability in negligence, in that case concerning the acts or omissions of the police in the investigation and prevention of crime, acted as a restriction on access to court. The Court considers that its reasoning in the Osman judgment was based on an understanding of the law of negligence (see, in particular, paras 138 and 139 of the Osman judgment) which has to be reviewed in the light of the clarifications subsequently made by the domestic courts and notably the House of Lords. The Court is satisfied that the law of negligence as developed in the domestic courts since the case of Caparo Industries Plc v Dickman [1990] 2 AC 605 (cited above, para 58) and as recently analysed in the case of Barrett v London Borough of Enfield (above) includes the fair, just and reasonable criterion as an intrinsic element of the duty of care and that the ruling of law concerning that element in this case does not disclose the operation of an immunity. In the present case, the Court is led to the conclusion that the inability of the applicants to sue the local authority flowed not from an immunity but from the applicable principles governing the substantive right of action in domestic law. There was no restriction on access to court of the kind contemplated in Ashingdane v United Kingdom (1985) 7 EHRR 528.

    101.

    The applicants may not therefore claim that they were deprived of any right to a determination on the merits of their negligence claims. Their claims were properly and fairly examined in light of the applicable domestic legal principles concerning the tort of negligence. Once the House of Lords had ruled on the arguable legal issues that brought into play the applicability of Art 6(1) of the Convention (see paras 87-89 above), the applicants could no longer claim any entitlement under Art 6(1) to obtain any hearing concerning the facts. As pointed out above, such a hearing would have served no purpose, unless a duty of care in negligence had been held to exist in their case. It is not for this Court to find that this should have been the outcome of the striking out proceedings since this would effectively involve substituting its own views as to the proper interpretation and content of domestic law.

    102.

    It is nonetheless the case that the interpretation of domestic law by the House of Lords resulted in the applicants’ case being struck out. The tort of negligence was held not to impose a duty of care on the local authority in the exercise of its statutory powers. Their experiences were described as ‘horrific’ by a psychiatrist (see para 40 above) and the Court has found that they were victims of a violation of Art 3 (see 74 above). Yet the outcome of the domestic proceedings they brought is that they, and any children with complaints such as theirs, cannot sue the local authority in negligence for compensation, however foreseeable - and severe - the harm suffered and however unreasonable the conduct of the local authority in failing to take steps to prevent that harm. The applicants are correct in their assertions that the gap they have identified in domestic law is one that gives rise to an issue under the Convention, but in the Court’s view it is an issue under Art 13, not Art 6(1).

  18. The two claimants in Newham also made an application to the Strasbourg Court TP & KM v United Kingdom [2001] 2 FLR 549. They alleged breaches of Articles 8 and 13 of the Convention, and also of Article 6. The Court rejected the claim of breach of Article 6 for similar reasons to those advanced in Z v United Kingdom.

  19. On the face of it, these decisions of the European Court would seem fatal to the contention that the approach adopted by each court in the appeals before us infringed Article 6. Mr. Levy, however, in support of that contention, referred us to the analysis of the relevant Strasbourg jurisprudence made by Lord Walker of Gestingthorpe in Matthews v Ministry of Defence [2003] 2 WLR 435 at paragraphs 130 to 140.

  20. Lord Walker referred to the decision of the Strasbourg Court in Fayed v United Kingdom (1994) 18 EHRR 393. In that case the Fayed brothers contended that the defence of qualified privilege, which defeated their claim in a libel action, was a violation of Article 6. The Court observed at paragraph 65:

    Whether a person has an actionable domestic claim may depend not only on the substantive content, properly speaking, of the relevant civil right as defined under national law but also on the existence of procedural bars preventing or limiting the possibilities of bringing potential claims to court. In the latter kind of case Article 6(1) may have a degree of applicability. Certainly the Convention enforcement bodies may not create by way of interpretation of Article 6(1) a substantive civil right which has no legal basis in the State concerned. However, it would not be consistent with the rule of law in a democratic society or with the basic principle underlying Article 6(1) - namely that civil claims must be capable of being submitted to a judge for adjudication - if, for example, a State could, without restraint or control by the Convention enforcement bodies, remove from the jurisdiction of the courts a whole range of civil claims or confer immunities from civil liability on large groups or categories of persons.

    The Court added at paragraph 67:

    It is not always an easy matter to trace the dividing line between procedural and substantive limitations of a given entitlement under domestic law. It may sometimes be no more than a question of legislative technique whether the limitation is expressed in terms of the right or its remedy.

  21. The Court repeated these observations in Fogarty v United Kingdom (2001) EHRR 302. This led Lord Walker to remark at paragraph 140:

    The uncertain shadow of Osman still lies over this area of the law.

  22. We do not consider that the shadow of Osman stretches far enough to obscure the position in the appeals under consideration. They do not concern an area where it is difficult to draw a line between procedural and substantive rules of law. They are concerned with the application of a fundamental principle of our common law of negligence. In performing their accepted function of tailoring the law of negligence to new factual situations, the courts will not recognise a duty of care unless it is 'fair just and reasonable' that such a duty should exist - see Caparo. The procedure that has given rise to these appeals involves determining, by way of preliminary issues, whether the test of what is 'fair just and reasonable', applied with that respect for case precedent which our law requires, precludes the existence of a duty of care, even if all the facts alleged by the claimants are established. Those preliminary issues have reached the Court of Appeal and may well reach the House of Lords. No violation of Article 6 is involved in this procedure, as the Strasbourg Court expressly recognised in Z v United Kingdom and TP & KM v United Kingdom.

  23. For these reasons Mr. Levy does not succeed on the first issue. The judgments appealed against involve no violation of Article 6.

    THE SECOND ISSUE

  24. We now turn to consider whether, as Mr. Levy submits, subsequent decisions have varied the principles laid down by Bedfordshire. It is necessary at the outset to identify what was decided in Bedfordshire.

    WHAT DID THE BEDFORDSHIRE CASES DECIDE?

  25. In Bedfordshire no less than five appeals were heard together. It is convenient to consider them in two groups - the child abuse cases ('the Bedfordshire case' and 'the Newham case') and the educational cases ('the Dorset case', 'the Hampshire case' and 'the Bromley case').

    THE CHILD ABUSE CASES

  26. In the Bedfordshire case five children brought claims, which included claims for damages in negligence, against the council for failing to take action to prevent them from suffering parental abuse and neglect. In the Newham case a child and her mother brought claims, which included claims for damages in negligence against the local authority, the area health authority and a consultant psychiatrist employed by the latter. The relevant allegations were that the authority had failed to conduct with due care its statutory duty to investigate allegations of child abuse, with the result that the mother's cohabitee was wrongfully identified as the abuser. As a result of this the child was removed from the mother and placed in foster care. Both mother and daughter claimed that they had sustained psychiatric injury as a result of this.

  27. Lord Browne-Wilkinson gave the leading speech. The relevant part is that in which he considered whether, in the course of carrying out its statutory duties, the local authority had, through its employees, brought about such a relationship with the plaintiffs as to give rise to a duty of care at common law. In this context, he remarked at p.739:

    .... the question whether there is such a common law duty and if so its ambit, must be profoundly influenced by the statutory framework within which the acts complained of were done.

    ....

    .... in my judgment a common law duty of care cannot be imposed on a statutory duty if the observance of such common law duty of care would be inconsistent with, or have a tendency to discourage, the due performance by the local authority of its statutory duties.

  28. Having regard to this comment it may be helpful to refer to Lord Browne-Wilkinson’s summary of the relevant statutory provisions at pp.744-6 of his speech:

    Since 1932 there has been legislation designed by Parliament to provide protection for children in need of care and protection. The first statute directly relied upon in the abuse cases is the Children and Young Persons Act 1969. Section 1 provided that a court could make a care order in care proceedings if satisfied, inter alia, that the child was being neglected or ill-treated. Under section 2(1) a duty was imposed on the local authority which received information "suggesting that there are grounds for bringing care proceedings" to cause inquiries to be made. Section 2(2) provided:

    If it appears to a local authority that there are grounds for bringing care proceedings in respect of a child or young person who resides or is found in their area, it shall be the duty of the authority to exercise their power under the preceding section to bring care proceedings in respect of him ....

    The Child Care Act 1980, sections 1 and 2 provide so far as relevant as follow:

    1.

    (1)

    It shall be the duty of every local authority to make available such advice, guidance and assistance as may promote the welfare of children by diminishing the need to receive children into or keep them in care under this Act or to bring children before a juvenile court;

    ....

    2.

    ....

    (2)

     

    Where it appears to a local authority with respect to a child in their area appearing to them to be under the age of 17 - .... (b) that his parents .... are, for the time being or permanently, prevented by reason of mental or bodily disease or infirmity or other incapacity or any other circumstances from providing for his proper accommodation, maintenance and upbringing; and (c) in either case, that the intervention of the local authority under this section is necessary in the interests of the welfare of the child, it shall be the duty of the local authority to receive the child into their care under this section.

    Section 76(1)(a) gave the Secretary of State power to direct an inquiry in relation to the child care services. Those were the only directly relevant statutory duties in force during the events complained of in the Newham cases.

    The Children Act 1989 come into force on 14th October 1991 and is therefore relevant in relation to the later stages of the Bedfordshire cases. Part III of the Act includes section 17(1) and (2) which provide as follows:

    17.

    (1)

    It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)-(a) to safeguard and promote the welfare of children within their area who are in need: and (b) so far as is consistent with that duty, to promote the upbringing of such children by their families, by providing a range and level of services appropriate to those children’s needs.

    (2)

    For the purposes principally of facilitating the discharge of their duty under this section, every local authority shall have the specific duties and powers set out in Part 1 of schedule 2.

    Schedule 2, Part 1, paragraphs 1(1) and 4(1) provide:

    1.

    (1)

    Every local authority shall take reasonable steps to identify the extent to which there are children in need within their area.

    4.

    (1)

    Every local authority shall take reasonable steps, through the provision of services under Part III of this Act, to prevent children within their area suffering ill-treatment or neglect.

    Part III of the Act includes 20(1) which provides:

    20.

    (1)

    Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of - .... (c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.

    In Part V of the Act, section 47(1) and (8) provides:

    47.

    (1)

    Where a local authority .... (b) have reasonable cause to suspect a child who lives, or is found, in their area is suffering, or is likely to suffer significant harm, the authority shall make, or cause to be made, such inquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare ....

    (8)

    Where, as a result of complying with this section, a local authority conclude that they should take that to safeguard or promote the child’s welfare they shall take that action (so far as it is both within their power and reasonably practicable for them to do so).

    Amongst the steps the local authority can take to safeguard the child’s welfare is to apply to the court for a care order under section 31. If a care order is made, the local authority is under a duty to receive the child into its care.

  29. Lord Browne-Wilkinson went on to refer to statutory guidance in relation to the performance of these statutory duties which emphasised:

    .... the importance in this field of inter-disciplinary and inter-agency links and the need for a close working relationship between "social service departments, the police service, medical practitioners, community health workers, the education service and others who share a common aim to protect the child at risk.

  30. Lord Browne-Wilkinson, at p.749, recorded that:

    The local authority accepts that they could foresee damage to the plaintiffs if they carried out their statutory duties negligently and that the relationship between the authority and the plaintiffs is sufficiently proximate [to give rise to a duty of care].

    He held, however, that there were special considerations for concluding that it was not just and reasonable to impose such a duty.

  31. Those reasons were summarised by May LJ in S v Gloucestershire CC [2001] 1 Fam 313 at 329 and we shall adopt his summary:

    (1)

    A common law duty of care would cut across the whole statutory system set up for the protection of children at risk. This is inter-disciplinary, involving the participation of the police, education bodies, doctors and others. It would be almost impossible to disentangle the respective liability of each for reaching a decision found to be negligent.

    (2)

    The task of the local authority and its servants in dealing with children at risk is extraordinarily delicate.

    (3)

    If there were potential liability for damages, it might well mean that local authorities would adopt a more cautious and defensive approach to their duties.

    (4)

    The relationship between the social worker and the child’s parents is often one of conflict. This would be likely to breed ill feeling and often hopeless litigation which would divert money and resources away from the performance of the social service for which they were provided.

    (5)

    There were other remedies for maladministration of the statutory system for the protection of children in statutory complaints procedures and the power of the local authorities ombudsman to investigate cases.

    (6)

    The development of novel categories of negligence should proceed incrementally and by analogy with decided categories. There were no close such analogies. The court should proceed with great care before holding liable in negligence those who have been charged by Parliament with the task of protecting society from the wrong doings of others.

  32. Lord Browne-Wilkinson went on to consider whether the individual social workers and psychiatrists involved owed individual duties of care to the claimants. He concluded that they did not. His reasoning appears in the following passages of his speech at pp.752, 753, and 754:

    The social workers and the psychiatrists were retained by the local authority to advise the local authority, not the plaintiffs. The subject matter of the advice and activities of the professionals is the child. Moreover the tendering of any advice will in many cases involve interviewing and, in the case of doctors, examining the child. But the fact that the carrying out of the retainer involves contact with and relationship with the child cannot alter the extent of the duty owed by the professionals under the retainer from the local authority.

    ....

    In my judgment in the present cases, the social workers and the psychiatrist did not, by accepting the instructions of the local authority, assume any general professional duty of care to the plaintiff children. The professionals were employed or retained to advise the local authority in relation to the well being of the plaintiffs but not to advise or treat the plaintiffs.

    ....

    Even if, contrary to my view, the social workers and psychiatrist would otherwise have come under a duty of care to the plaintiffs, the same considerations which have led me to the view that there is no direct duty of care owed by the local authorities apply with at least equal force to the question whether it would be just and reasonable to impose such a duty of care on the individual social workers and the psychiatrist.

    THE EDUCATIONAL CASES

  33. The educational cases involved claims against local authorities for negligently failing to identify that children had special educational needs. Lord Browne- Wilkinson held that the education authorities owed no relevant duty of care to children in the performance of their duties under the Education Acts but that individual employees of the authorities might be in such a relationship with a child as to owe a common law duty of care, breach of which would render the authority vicariously liable.

    SUBSEQUENT DECISIONS

  34. A number of relevant decisions have been given since Bedfordshire, including two in the House of Lords. In neither of these did the House of Lords purport to depart from the decision in Bedfordshire, and this puts difficulties in Mr. Levy's way when seeking to persuade us that 'the law has moved on' since Bedfordshire. At the same time, it is always possible for the House of Lords to reduce the impact of a previous decision by distinguishing it or confining it narrowly to its particular facts, and it is necessary to consider whether this has occurred in relation to the approach to child abuse cases.

  35. In Barrett v Enfield London Borough Council [2001] 2 AC 550 the claimant, who had been in the care of the defendant local authority under a care order between the ages of 10 months and 17 years claimed to have been caused psychological and psychiatric problems as a result of the negligent way that the authority had cared for him. It was alleged that both the local authority and the social workers employed by it, for whom it was vicariously liable, had been in breach of the common law duty of care to the plaintiff in the exercise of the local authority’s functions under the Children Act 1948, the Children and Young Persons Act 1969 and the Child Care Act 1980. The claim had been struck out as disclosing no reasonable cause of action, and this decision had been upheld by the Court of Appeal, purporting to apply Bedfordshire. The House of Lords reversed the decision.

  36. Barrett was exhaustively analysed by May LJ in S v Gloucestershire County Council and we do not propose to repeat that exercise. We shall simply summarise the reasoning of the House of Lords. There are two strands to this. In the first place, the House of Lords held that the factual situation in Barrett was significantly different from that in Bedfordshire. This was indeed the submission in that case of Mr. Levy, who appeared for the claimant - see p.552. Lord Slynn of Hadley, who gave the leading speech, considered the factors that had led the House in the Bedfordshire cases to conclude that it was not just and reasonable to impose on the local authority a duty of care. He commented at p.568:

    Whilst not casting doubt on the validity of these factors in the context of the investigations, or the steps which it was said should have been taken, in those cases of child abuse and neglect of educational needs, it does not seem to me that they necessarily have the same force separately or cumulatively in the present case. Thus, although once a child is in care, there may well be co-operation between different social welfare bodies, the responsibility is that of the local authority and its social and other professional staff. The decision to remove the child from its home is already taken and the authority has statutory powers in relation to the child which do not necessarily involve the exercise of the kind of discretion involved in taking a child from its family into care. As to the likelihood of an authority being over-cautious, I am of the same opinion as Evans LJ in the Court of Appeal in this case [1998] QB 267, 380:

    I would agree that what is said to be a ‘policy’ consideration, namely, that imposing a duty of care might lead to defensive conduct on the part of the person concerned and might require him to spend time or resources on keeping full records or otherwise providing for self-justification, if called upon to do so, should normally be a factor of little, if any, weight. If the conduct in question is of a kind which can be measured against the standards of the reasonable man, placed as the defendant was, then I do not see why the law in the public interest should not require those standards to be observed.

    Nor do I think the remedies accepted to be available in the Bedfordshire case [1995] 2 AC 633 are likely to be as efficacious as the recognition by the court that a duty of care is or may be owed at common law. I agree with Sir Thomas Bingham MR in his dissenting judgment in the Court of Appeal in the Bedfordshire case, at p.662G: "I cannot accept, as a general proposition, that the imposition of a duty of care makes no contribution on the maintenance of high standards."

    In summary the Bedfordshire case establishes that decisions by local authorities whether or not to take a child into care with all the difficult aspects that involves and all the disruptions which may come about are not ones which the courts will review by way of a claim for damages in negligence, though there may be other remedies by way of judicial review or through extra judicial routes such as the Ombudsman.

    The question in the present case is different since the child was taken into care; it is therefore necessary to consider whether any acts or omissions and if so what kind of acts or omissions can ground a claim in negligence. The fact that no completely analogous claim has been accepted by the courts previously points to the need for caution and the need to proceed ‘incrementally’ and ‘by analogy with decided cases’.

    The speech of Lord Hutton had a passage to like effect at pp.588-590.

  37. The second strand in the reasoning was that it was only in the clearest case in the type of matter under consideration that a claim should be struck out as disclosing no cause of action without considering the material facts - see Lord Slynn at p.574. Lord Browne-Wilkinson referred expressly to Osman in the passage that we cited earlier. Lord Slynn did not, but we have no doubt that he had the effect of that decision in mind.

  38. The effect of Barrett was considered by the Court of Appeal in S v Gloucestershire. Two appeals were heard together. Each was by a claimant who alleged that a local authority had been negligent in leaving them in the care of foster parents who were sexually abusing them. At first instance each case had been struck out as disclosing no cause of action. The Court of Appeal reversed this result in one case. In the other they gave summary judgment in favour of the defendant under CPR 24.2 on the ground that the claim had no real prospect of success.

  39. In the only judgment, May LJ set out at pp.338-9 the strands of the law to be derived from Barrett. The following passage of his judgment is particularly relevant:

    It is clear from these principles that in an ordinary case a local authority defendant is unlikely to establish a defence which relies on a blanket immunity. There would be a blanket immunity for this purpose if it were decided without reference to a particular fact that all cases which have certain basic characteristics were not justiciable; or that in every case with certain characteristics it was not just or reasonable to impose a duty of care. Thus it seems to me that it would be incorrect to say, as counsel for the local authorities were inclined to submit in appeals before this court, that cases which may be labelled as child abuse cases are bound to fail as a class. The "child abuse cases" was no more than a convenient label under which X (Minors) v Bedfordshire County Council & M (A Minor) v Newham London Borough Council [1995] 2 AC 633 travelled. Remembering always that the critical question is a composite one which embraces alleged duty of care and its breach in the context of the damage alleged to have been caused, the court has to consider the nature of the actions and decisions of the local authority which are said to have been negligent. From this it may be seen that a decision whether or not to take a child said to have been abused away from its natural parents and into care may often be acutely difficult. But many of the decisions about care and upbringing of a child once he or she has been taken into care, difficult though they may be, may not have the acute complications, strains and conflicts identified in the Bedfordshire cases.

  40. While in this passage, May LJ distinguished Bedfordshire, he did so in a way which came close to suggesting that its effect should be confined to its own particular facts. May LJ then referred to the fact that the Commission in Z v United Kingdom had concluded that there had been, in that case, a violation of Article 6. He commented at p.340:

    This reinforces my reading of the Barrett case to the effect that it is unlikely that claims of the kind presently before this court will be seen as non-judiciable or ones where it is not just and reasonable to impose a duty of care without a proper examination of the individual facts.

  41. In Phelps v Hillingdon London Borough Council [2001] 2 AC 619 four appeals were heard together by a Committee of seven members of the House of Lords. In each the complainant contended that the local education authority had negligently failed to make proper provision for his or her special educational needs. The cases were advanced both on the basis that the education authority was vicariously liable for breaches of a duty of care owed by the individual teachers or other professionals and on the basis that the education authority was in breach of a duty of care owed directly by the authority.

  42. It is of interest that counsel for the claimants argued that the decision in Bedfordshire that local education authorities could be under no duty of care should be departed from in that it had the effect of conferring a blanket immunity and was therefore inconsistent with Osman as interpreted in Barrett.

  43. Speeches were delivered by Lord Slynn, Lord Nicholls and Lord Clyde. Lord Jauncey agreed with all of these and Lord Lloyd, Lord Hutton and Lord Millett agreed with the speeches of Lord Slynn and Lord Clyde.

  44. Lord Slynn held that it was arguable that the individual professionals concerned with the claimants owed them a duty of care, for breach of which the authorities were vicariously liable. He observed at p.653:

    I accept that, as was said in X (Minors) v Bedfordshire County Council [1995] 2AC 633, there may be cases where to recognise such a vicarious liability on the part of the authority may so interfere with the performance of the local education authority’s duties that it would be wrong to recognise any liability on the part of the authority. It must, however, be for the local authority to establish that: it is not to be presumed and I anticipate that the circumstances where it could be established would be exceptional.

    He added at p.654:

    But where an educational psychologist is specifically called in to advise in relation to the assessment and future provision for a specific child, and it is clear that the parents acting for the child and the teachers will follow that advice, prima facie a duty of care arises.

  45. So far as a direct claim in negligence against the education authority was concerned, Lord Slynn differed from Bedfordshire in that he saw no reason of principle why such a claim should never be possible. He held at p.658:

    Since the authority can only act through its employees or agents, and if they are negligent vicarious liability will arise, it may rarely be necessary to invoke a claim for direct liability. After the argument in these cases, I do not, however, accept the absolute statement that an education authority "owes no common law duty of care .... in the exercise of the powers .... relating to children with special educational needs" under the 1981 Act. That issue, however, as I have said does not fall for decision in Pamela’s case. I would accordingly allow the appeal and restore the order of Garland J.

  46. Lord Nicholls at p.668 left open the question of whether Lord Browne-Wilkinson had been correct in Bedfordshire to hold that an education authority owes no common law duty of care in the exercise of powers and discretions relating to children with special educational needs conferred on it by the 1981 Education Act.

  47. Lord Clyde also found that there were strong grounds for arguing that the individual professionals involved owed the children a duty of care, breach of which would result in the education authorities becoming vicariously liable. He too left open the question of whether education authorities could owe a direct duty of care to the children. At p.674 he made the following comment in relation to one of the factors that had led Lord Browne-Wilkinson to hold that it was not just and reasonable to impose a duty of care in the child abuse cases:

    Another circumstance which may give rise to difficulty in the present context is that there may be a multi-disciplinary unit concerned in the giving of the advice. But that is a practical problem which cannot constitute a legal bar on a claim. Even where such a situation exists it should be possible to disentangle the relevant parts played by particular individuals and identify where the alleged negligence occurred.

    A little later, however, he commented:

    The distinction noted by Lord Browne-Wilkinson in E (A Minor) v Dorset County Council [1995] 2 AC 633, 763-764 is drawn between education cases and child abuse cases. In the former case it may more readily be concluded that the involvement of the parents is both consistent with and supports the conclusion that a duty of care existed through them to the child. In the latter, despite the general intention that all the interested parties should work together, the opportunity for conflict between parents and the professional advisers may be far greater than in the educational context.

    THE EFFECT OF THE DECISIONS

  48. These decisions significantly restrict the effect of Bedfordshire. So far as the education authority cases are concerned, doubt was cast in Phelps on the proposition that an education authority owes no duty of care to children when exercising powers and discretions under the 1981 Act. So far as child abuse cases are concerned, much of the reasoning advanced by Lord Brown Wilkinson to justify holding that there was no duty of care was called into question. Lord Slynn in Barrett stated that Bedfordshire established that decisions by local authorities whether or not to take a child into care were not reviewable by way of a claim in negligence. We consider that the effect of Barrett and the other decisions that we have considered above is to restrict the effect of Bedfordshire to that core proposition.

    NEW ZEALAND DECISIONS

  49. In Attorney-General v Prince & Gardner [1998] 1 NZLR 262 a child and his mother brought claims in negligence against the Crown in relation to the manner in which a child welfare officer had prepared reports which had led to the adoption of the child by unsatisfactory adoptive parents. Proximity was conceded but the Crown sought to have the claim struck out on the grounds that it disclosed no cause of action in that, for reasons of policy, no duty of care was owed. The decision in Bedfordshire was relied upon.

  50. The Court of Appeal declined to strike out the claim. In the following passage the majority of the Court distinguished Bedfordshire:

    In the Bedfordshire case Lord Browne-Wilkinson at p.739 emphasised that the question whether there is a common law duty, and if so its ambit, must be profoundly influenced by the statutory framework within which the acts complained of were done. In the various respects we have been discussing the Children and Young Persons Act 1974 is clearly distinguishable from the statutes before the House of Lords in the Bedfordshire case and the statutes under consideration in the large number of cases (but few in the child protection field) canvassed in argument. Little is to be gained from a point-by-point comparison. Also, the rescue cases are not comparable because in those cases any statutory framework was very different from the 1974 Act.

    There are other policy considerations to be considered although we would not weigh them as heavily in this case as the scheme and policy of the 1974 Act. First, the difficulty and delicacy of the social worker’s task and its judgemental nature are relevant. Intrusion into the family has been handled with tact in the interests of the child or young person. The social worker must also have regard to the advantages of not disrupting the family environment and to the advantages and disadvantages of other options for the care of the young person. Clearly a plaintiff would have difficulty in establishing that an assessment made by a social worker fell outside the bounds sanctioned by professional opinion. Nevertheless considerations of the kind cannot absolve the department and social workers from the responsibility of considering and responding to specific complaints with professional skill and care.

    Next, the Solicitor-General submitted that the imposition of a duty would or could cause the department and social workers to adopt a more cautious and defensive approach to their duties. He drew our attention to a considerable body of professional literature on that point and to the recognition of it in the Bedfordshire case (see also Barrett v Enfield London Borough Council [1997] 3WLR 628 at pp636 and 638). But like lawyers and doctors, social workers are professionals. At that triggering step (and at other steps) they should be expected to have shouldered willingly a standard of reasonable skill and care that their private sector counterparts were expected to discharge. And in the absence of any data as to potential claims based on the roles and responsibilities of the department and social workers under the 1974 Act, which was replaced eight years ago by a very different legislative scheme, it would be unwise to give any particular weight to the resource implications of allowing for a common law duty of care.

    Finally, and as pointing against the imposition of a duty, there are the obvious difficulties of reaching conclusions as to causation and damages. Clearly any such claims would be very difficult to establish. That in itself cannot, we think be adequate justification for ruling out the possibility of any claim for negligence whatever the circumstances.

    For these reasons, on the pleadings as they stand, we would not strike out the cause of action in negligence.

  51. It is apparent that, while there were grounds for distinguishing Bedfordshire, some of the policy considerations which weighed with Lord Browne-Wilkinson did not carry the same weight with the Court of Appeal.

  52. The decision in Prince lay at the heart of an appeal to the Privy Council in B v Attorney General – unreported (16 July 2003). The Court of Appeal had struck out a claim by a father and his two daughters against a social worker, a clinical psychologist, and the Attorney-General, sued on behalf of the Minister of Social Welfare and the Department of Social Welfare. The claim was for negligence in the investigation of the suspected abuse of the daughters by their father, with the consequence that the daughters were removed from their father and placed with foster parents. The decision of the Court of Appeal preceded that in Prince, and the Court of Appeal was much influenced by Bedfordshire. Before the Privy Council Prince was not challenged. The issue was whether it could be distinguished.

  53. The Privy Council concluded that, as far as the daughters were concerned, there was no basis upon which Prince could validly be distinguished. Their claims were permitted to proceed. Different considerations applied in the case of the father. The Court said this at paragraph 30:

    .... their Lordships consider no common law duty of care was owed to the father. He stands in a very different position. He was the alleged perpetrator of the abuse. In an inquiry into an abuse allegation the interests of the alleged perpetrator and of the children as the alleged victims are poles apart. Those conducting the inquiry must act in good faith throughout. But to impose a common law duty of care on the department and the individual professionals in favour of the alleged victims or potential victims and, at one and the same time, in favour of the alleged perpetrator would not be satisfactory. Moreover, a duty of care in favour of the alleged perpetrator would lack the juridical basis on which the existence of a common law duty of care was largely founded in Prince’s case. The Prince’s case rests heavily on the feature that the duty imposed on the Director-General by section 5(2)(a) of the 1974 Act is for the benefit of the particular child. Self-evidently this statutory duty was not imposed for the benefit of alleged perpetrators of abuse. To utilise the existence of this statutory duty as the foundation of a common law duty in favour of perpetrators would be to travel far outside the rationale in Prince’s case.

    The distinction between the position of children and the position of their parents is a matter to which we shall revert.

    THE IMPACT OF THE HUMAN RIGHT ACT 1998

  54. The facts that have given rise to the cases with which we are concerned pre-date October 2000, when the Human Rights Act came into force. It follows that no claim can be brought under the Act. It is nonetheless necessary to consider whether the introduction of the Act has affected the common law principles of the law of negligence. As that law develops all who have outstanding claims are in a position to profit from the development and in this area of the law, where children are victims, claims may be brought many years after the events to which they relate.

  55. We have referred to Z v United Kingdom and TP & KM v United Kingdom in relation to Article 6 of the Convention. It is now necessary to consider the effect of these decisions of the Strasbourg Court in relation to the claims that were based on Article 3 and Article 8.

  56. In Z v United Kingdom the Commission had found that there was a positive obligation on the Government to protect children from treatment contrary to Article 3. The authorities had been aware of the serious ill-treatment and neglect suffered by the four applicants over a period of years at the hands of their parents and had failed to take effective steps to bring this to an end. The treatment reached the level of severity prohibited by Article 3. It followed that the State had failed in its positive obligation to provide the applicants with adequate protection against inhuman and degrading treatment. The Government did not challenge these findings, and the Court endorsed them.

  57. It would have been open to the Government to argue that the statutory scheme in place satisfied the Government’s positive obligation and that it was in the interest of the effective operation of the scheme that neither public authorities nor their employees should be subject to liability for shortcomings in relation to the decision of whether or not to take a child into care. Instead counsel for the Government submitted that after October 2000, when the Human Rights Act had come into force, a victim would be able to bring proceedings in the courts against a public authority for a breach of a substantive right and the courts would be empowered to award damages.

  58. The Court held at paragraph 109:

    There should however be available to the victim or the victim’s family a mechanism for establishing any liability of State officials or bodies for acts or omissions involving the breach of their rights under the Convention. Furthermore, in the case of a breach of Arts 2 and 3 of the Convention, which rank as the most fundamental provisions of the Convention, compensation for the non-pecuniary damage flowing from the breach should in principle be available as part of the range of redress.

    The United Kingdom was held to have been in breach of both Article 3 and Article 13.

  59. In order to understand the decision in TP & KM v United Kingdom it is necessary to say a little more about the facts. The applicants were respectively mother and daughter. The local authority (‘Newham’) had reason to suspect that KM had been sexually abused. In the course of their investigations KM was interviewed by a consultant child psychiatrist employed by the health authority. A social worker was present, but TP was not. The interview was video-recorded. KM disclosed that she had been abused by a man and gave his first name. This happened to be the first name of the boy-friend of TP, who was living with her. KM was, however, referring to another man with the same first name and some of her answers should have disclosed that this might be the case. Newham obtained a place of safety order from the Magistrates Court, identifying the boy-friend as the abuser. At this stage TP was denied access to the video recording. After about a year of separation, Newham allowed KM to be rehabilitated with TP. This coincided with the release of the video-recording to the mother.

  60. The applicants contended that there had been a breach of their rights under Articles 6, 8 and 13. As we have already explained, the Court dismissed the claim under Article 6.

  61. So far as Article 8 was concerned, it was common ground that the removal of KM from her mother constituted an interference with respect for family life. The issue was whether this had been justified in accordance with Article 8(2), which provides:

    There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

  62. The Government submitted that the removal of KM was in accordance with the law and pursued the legitimate aim of protecting her welfare. The applicants contended that there were insufficient reasons to justify the removal, as the investigation had not been competently carried out. They further complained of the procedure that had been adopted and, in particular, of the failure to permit the mother to see the video recording.

  63. The court held that the removal of KM was ‘in accordance with the law’ and in pursuit of a ‘legitimate aim’. As to whether the removal of KM had been ‘necessary in a democratic society’ the Court set out the following general principles:

    In determining whether the impugned measures were ‘necessary in a democratic society’, the Court will consider whether, in the light of the case as a whole, the reasons adduced to justify them were relevant and sufficient for the purposes of para 2 of Art 8 of the Convention. Undoubtedly, consideration of what lies in the best interest of the child is of crucial importance in every case of this kind. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned. It follows from these considerations that the court’s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody and access issues, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their power of appreciation (see Hokkanen v Finland [1996] 1 FLR 289, (1995) 19 EHRR, and mutatis mutandis, Bronda v Italy (9 June 1998) Reports of Judgments & Decisions 1998-IV, p.1491, s59).

    The margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake. Thus, the Court recognises that the authorities enjoy a wide margin of appreciation, in particular when assessing the necessity of taking a child into care. However, a stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by those authorities on parental rights of access, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between the parents and a young child would be effectively curtailed (see, amongst other authorities, Johansen v Norway (1996) 23 EHRR 33, 67-68 (para 64)).

    The Court further recalls that whilst Art 8 contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to afford due respect to the interests safeguarded by Art 8:

    What has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as ‘necessary’ within the meaning of Article 8. (see W v United Kingdom (1988) 10 EHRR 29, 50).

    It has previously found that the failure to disclose relevant documents to parents during the procedures instituted by the authorities in placing and maintaining a child in care meant that the decision-making process determining the custody and access arrangements did not afford the requisite protection of the parents’ interests as safeguarded by Art 8 (see McMichael v United Kingdom (1995) 20 EHRR 205, 241).

  64. Applying those principles to the facts, the Court first dealt with the decision to seek a place of safety order:

    As concerns the measure taken to remove the second applicant into care, the Court considers that this was supported by relevant and sufficient reasons, namely, the strong suspicions that she had been abused and the doubts which existed as to the first applicant’s ability to protect her (see paras 10-16 above). In the latter context, it may be noted that the abuse had taken place in the first applicant’s home without her apparently being aware and that the first applicant’s reaction, however natural in the circumstances, tended towards a denial of the allegations. It also appears from the interview that while at one point the second applicant had described the abuser as having been thrown out of the house, at another point she referred to X as coming to the house the next day (see para 14 above).

    The Court is not persuaded however that the mistake made by Dr V and Mr P in assuming that the second applicant was referring to the first applicant’s boyfriend XY was of such a nature as to deprive the decision to remove the second applicant into care of a legitimate basis. The second applicant was less than 5 years old at the time of the interview and the process of questioning her was a sensitive and delicate one, as was interpreting the sense of her responses, verbally and with regard to her body language. The second applicant frequently did not speak in grammatical sentences and appeared to contradict herself on several occasions. The fact that the second applicant shook her head would not necessarily indicate an unequivocal denial of the question put. Dr B, the consultant psychiatrist instructed by the first applicant, commented positively on the way in which Dr V handled the interview and agreed with her conclusions as to the existence of the abuse and the identity of the abuser (see para 23 above).

    The Court finds therefore that the use of the emergency procedure to take the second applicant into care may be regarded as a proportionate measure and ‘necessary in a democratic society’ for protecting the second applicant’s health and rights.

  65. We observe that the test applied by the Court approximates to that which would be appropriate when considering whether there had been a breach of a duty of care. It is implicit that, had the court accepted the criticisms made by the applicants of the conduct of Dr B and Dr V, a breach of Article 8 would have been established.

  66. The Court went on to find that there were shortcomings in the procedure that had been adopted, which constituted a breach of Article 8:

    The Court concludes that the question whether to disclose the video of the interview and its transcript should have been determined promptly to allow the first applicant an effective opportunity to deal with the allegations that her daughter could not be returned safely to her care. The local authority’s failure to submit the issue to the Court for determination deprived her of an adequate involvement in the decision-making process concerning the care of her daughter and thereby of the requisite protection of their interests. There was in this respect a failure to respect their family life and a breach of Art 8 of the Convention.

  67. The applicants contended that the decision of the House of Lords that they were owed no duty of care had the effect that they were denied an effective remedy, contrary to Article 13. The Court accepted this submission:

    The Court considers that the applicants should have had available to them a means of claiming that the local authority’s handling of the procedures was responsible for the damage which they suffered and obtaining compensation for that damage. It does not agree with the Government that pecuniary compensation would not provide redress. If, as is alleged, psychiatric damage occurred, there may have been elements of medical costs as well as significant pain and suffering to be addressed. The Court does not consider it appropriate in this case to make any findings as to whether only court proceedings could have furnished effective redress, although judicial remedies indeed furnish strong guarantees of independence, access to the victim and family enforceability of awards in compliance with the requirements of Art 13 (see, mutatis mutandis, Klass v Germany (1980) 2 EHRR 214, 239). The possibility of applying to the ombudsman and to the Secretary of State did not however provide the applicants with any enforceable right to compensation.

  68. In relation to damages, the Court recorded that the Government disputed that there was any clear case of negligence or evidence that the applicants had required physical or psychiatric treatment. The Court then proceeded to award damages on the following basis:

    The Court recalls that the applicants were re-united after a year’s separation (see para 29 above). Though it cannot be asserted that they would have been reunited earlier if the video had been available at the initial stage of the procedure, it cannot be excluded either that it might have reduced the duration of their separation. They thereby suffered a loss of opportunity. In addition, the applicants certainly suffered non-pecuniary damage through distress and anxiety and in the case of the first applicant through feelings of frustration and injustice.

  69. There have been a number of other recent decisions of the Strasbourg Court in relation to child abuse. We shall refer first to an Article 3 case. In E v United Kingdom [2003] 1 FLR 348 four children complained that their local authority in Scotland had been in breach of its statutory duties in failing to protect them from sexual abuse by their step-father. They had not pursued a domestic claim to damages, having been advised that, in the light of the decision in Bedfordshire, their claim was doomed to failure. The Court held that there had been breaches of their Article 3 and Article 13 rights. The Court found that their treatment by their step-father constituted inhuman and degrading treatment that fell within the scope of Article 3. Indeed, this was not contested. The Court then asked the question, at paragraph 92:

    .... whether the local authority (acting through its social work department) was, or ought to have been, aware that the applicants were suffering or at risk of abuse and, if so, whether they took the steps reasonably available to them to protect them from that abuse.

  70. Once again, we observe, that this question raised issues that were very similar to those that would be raised in a claim based on common law negligence. The Court found the conduct of the local authority deficient in a large number of respects and awarded substantial sums of compensation, even taking into account that the applicants had recovered compensation from the Criminal Injuries Compensation Board.

  71. It is notable that, in the context of the claim for breach of Article 13, the Government argued that the applicants had abandoned civil claims which were potentially viable in that they ‘arguably raised operational matters not affected by the ruling in Bedfordshire’.

  72. We now turn to two Article 8 cases. In P,C&S v United Kingdom (2002) 35 EHRR 31 the applicants were a husband and wife and their daughter. The wife had been convicted in the United States of administering laxatives to her young son, thereby endangering his health. She was also adjudged to suffer from Munchausen syndrome. She moved to England and married. Her daughter was then born. The local authority brought proceedings which resulted in the daughter being removed from her mother at birth and being freed for adoption.

  73. The Court found that there had been a breach of Article 6, in that the mother had not been provided with legal representation at the proceedings. The Court also found that there had been breaches of Article 8. At paragraphs 116 and 117 it made the following comments:

    .... While the authorities enjoy a wide margin of appreciation in assessing the necessity of taking a child into care, in particular where an emergency situation arises, the Court must still be satisfied in the circumstances of the case that there existed circumstances justifying the removal of the child, and it is for the respondent State to establish that a careful assessment of the impact of the proposed care measure on the parents and the child, as well as of the possible alternatives to taking a child into public care, was carried out prior to implementation of a care measure.

    ....

    The taking into care of a child should normally be regarded as a temporary measure to be discontinued as soon as the circumstances permit, and any measure of implementation of temporary care should be consistent with the ultimate aim of reuniting the natural parent and child. In this regard a fair balance has to be struck between the interests of the child remaining in care and those of the parent in being reunited with the child. In carrying out this balancing exercise, the Court will attach particular importance to the best interests of the child which, depending on their nature and seriousness, may override those of the parent.

  74. Detailed individual criticisms were advanced as to the conduct of the local authority in relation to the care proceedings. The manner in which the Court dealt with these is of interest:

    The Court does not propose to attempt to untangle these opposed considerations, which raise difficult and sensitive issues concerning S’s welfare. It considers rather that the complexity of the case, and the fine balance which had to be struck between the interests of S and her parents, required that particular importance be attached to the procedural obligations inherent in Article 8 of the Convention. It was crucial for the parents in this case be able to put forward their case as favourably as possible, emphasising for example whatever factors militated in favour of a further assessment of a possible rehabilitation, and for their viewpoints on the possible alternatives to adoption and the continuation of contact even after adoption to be put forward at the appropriate time for consideration by the court.

  75. When dealing with damages the Court found that it could not be asserted that S would not have been adopted but for the flaws in the procedure that the Court had identified. Damages of 12000 euros were awarded to each parent in respect of a ‘loss of opportunity’.

  76. In Venema v The Netherlands [2003] FLR 552 the applicants were a married couple and their young daughter. The mother was suspected of suffering from Munchausen Syndrome by Proxy and of harming her daughter. A report was made by medical and child welfare professionals to the Child Welfare Board. The Board sought and obtained a provisional order under which the daughter was removed from her parents. After further hearings, and five months of separation, this order was rescinded. Plainly there had been an interference with the enjoyment of respect for family life; the issue was whether this could be justified under Article 8(2). The Court held that it could not in that the procedure had not been fair. The parents should have been more involved in the decision making process, and at an earlier stage. 15,000 euros were awarded to the applicants jointly in respect of ‘distress and anxiety as a result of feelings of frustration and injustice’.

  77. Finally we refer to a recent case in which the Strasbourg Court gave consideration to the potential conflict between the interests of the parent and the interests of the child. In Yousef v The Netherlands [2003] 1 FLR 210 a father who had been absent for 2½ years complained that, in breach of his Article 8 rights, he had been denied the contact that he sought with his child, whose mother had died and who was settled in the family of her brother. The Court rejected his application, observing:

    The court reiterates that in judicial decisions where the rights under Art 8 of parents and those of a child are at stake, the child’s rights must be the paramount consideration. If balancing of interests is necessary, the interests of the child must prevail (see Elsholz v Germany (2002) 34 EHRR 58, [2000] 2 FLR 486, para 52 and TP & KM v United Kingdom (2002) 34 EHRR 549, para 72).

    THE EFFECT OF THESE DECISIONS

  78. Section 2(1) of the Human Rights Act requires the Court to have regard to the jurisprudence of the Strasbourg Court where relevant to proceedings under the Act. Thus any English court, when dealing with a claim under the Act in relation to action or inaction after October 2000 on the part of a local authority in relation to suspected child abuse, must take into account the decisions to which we have just referred. Where a claim alleges breach of Article 3, in circumstances such as those in Z v United Kingdom and E v United Kingdom, the court is likely to have to consider whether the local authority knew, or should have known, that positive action was called for. This will necessarily involve consideration of the conduct of the individuals involved. A claim of this nature will, so it seems to us, necessarily be a claim by a child rather than a parent.

  79. Where a claim alleges breach of Article 8, on the ground that a child has been removed from a parent without justification, this will also require examination of the conduct of the individuals involved to see whether, on the particular facts, the action was ‘necessary in a democratic society’.

  80. Thus litigation involving factual enquiries of the nature considered above is now a potential consequence of the conduct of those involved in taking decisions in child abuse cases. In these circumstances the reasons of policy that led the House of Lords to hold that no duty of care towards a child arises, in so far as those reasons have not already been discredited by the subsequent decisions of the House of Lords, will largely cease to apply. Substantial damages will be available on proof of individual shortcomings, which will be relevant alike to a claim based on breach of section 6 of the Human Rights Act and a claim based on breach of a common law duty of care.

  81. Can there, in these circumstances, be any justification for preserving a rule that no duty of care is owed in negligence because it is not fair, just and reasonable to impose such a duty? It is true that a claim under the Human Rights Act will only lie against public authorities and not against the individuals employed by them. But the reality is that claims in negligence are brought primarily to establish liability on the part of the local authorities and individuals are unlikely to be personally at risk. In so far as the risk of legal proceedings will inhibit individuals from boldly taking what they believe to be the right course of action in the delicate situation of a case where child abuse is suspected, we think that this factor will henceforth be present, whether the anticipated litigation is founded on the Human Rights Act or on the common law duty of care.

  82. In so far as the position of a child is concerned, we have reached the firm conclusion that the decision in Bedfordshire cannot survive the Human Rights Act. Where child abuse is suspected the interests of the child are paramount - see S.1 Children Act 1989. Given the obligation of the local authority to respect a child’s Convention rights, the recognition of a duty of care to the child on the part of those involved should not have a significantly adverse effect on the manner in which they perform their duties. In the context of suspected child abuse, breach of a duty of care in negligence will frequently also amount to a violation of Article 3 or Article 8. The difference, of course, is that those asserting that wrongful acts or omissions occurred before October 2000 will have no claim under the Human Rights Act. This cannot, however, constitute a valid reason of policy for preserving a limitation of the common law duty of care which is not otherwise justified. On the contrary, the absence of an alternative remedy for children who were victims of abuse before October 2000 militates in favour of the recognition of a common law duty of care once the public policy reasons against this have lost their force.

  83. It follows that it will no longer be legitimate to rule that, as a matter of law, no common law duty of care is owed to a child in relation to the investigation of suspected child abuse and the initiation and pursuit of care proceedings. It is possible that there will be factual situations where it is not fair, just or reasonable to impose a duty of care, but each case will fall to be determined on its individual facts.

  84. In reaching this decision we do not suggest that the common law duty of care will replicate the duty not to violate Articles 3 and 8. Liability for breach of the latter duty and entitlement to compensation can arise in circumstances where the tort of negligence is not made out. The area of factual enquiry where breaches of the two duties are alleged are, however likely to be the same.

  85. The position in relation to the parent is very different. Where the issue is whether a child should be removed from the parents, the best interests of the child may lead to the answer yes or no. The Strasbourg cases demonstrate that failure to remove a child from the parents can as readily give rise to a valid claim by the child as a decision to remove the child. The same is not true of the parents’ position. It will always be in the parents’ interests that the child should not be removed. Thus the child’s interests are in potential conflict with the interests of the parents. In view of this, we consider that there are cogent reasons of public policy for concluding that, where child care decisions are being taken, no common law duty of care should be owed to the parents. Our reasoning in reaching this conclusion is supported by that of the Privy Council in B v Attorney-General.

  86. For the above reasons, where consideration is being given to whether the suspicion of child abuse justifies taking proceedings to remove a child from the parents, while a duty of care can be owed to the child, no common law duty of care is owed to the parents.

  87. We now turn to consider the individual appeals in order to resolve the further issues that arise in each. It is necessary in each case to outline the facts.

    EAST BERKS

  88. The claimant is the mother of M who was born on the 18th November 1988. From birth, he presented with allergic symptoms which Dr Connell, a consultant paediatrician at the Wexham Park Hospital diagnosed as an allergy. In 1990 he was referred to Professor Strobel, consultant paediatric immunologist at the Great Ormond Street Hospital who diagnosed atope and food allergic disease. Between 1990 and 1994 he was admitted on at least 9 occasions because of allergic reactions of one sort or another. In particular he suffered from asthma attacks and had trouble breathing at night, as a result of which he slept in the same room as his mother. He was therefore referred to Professor Southall at the North Staffordshire Hospital for an assessment as to whether or not it would be possible to provide a monitor for his breathing so that he could sleep in his own room.

  89. He was admitted to the North Staffordshire Hospital between the 12th and 15th December 1994. In a telephone conversation with Professor Strobel, Professor Southall said he considered that the appellant was exaggerating symptoms, that his condition was an example of fabricated illness and that a Social Services strategy meeting was required. He then referred M to Professor Warner, an expert in allergic conditions at Southampton General Hospital. Unfortunately Professor Warner was not given the opportunity to examine M until September 1997. Between 1995 and 1997, it is clear that many treating M, including Professor Strobel believed that his condition could be an example of exaggerated or fabricated illness as Professor Southall had said, and indeed a discharge summary on the 15th December 1996 from the Wexham Park Hospital referred to possible "Munchausen by proxy".

  90. Up until the end of 1996 the consultant community paediatrician responsible for M was Dr Lessing. She clearly did not share the concerns which had been expressed by others; and the Social Services were not at that stage involved. However in December 1996, Dr Whiting took over from Dr Lessing and took the view that M might be at risk from his mother. After a number of discussions between doctors a meeting took place on the 13th March 1997 at which M’s parents, Professor Strobel, Dr Whiting and three social workers were present. Although it is clear that both Professor Strobel and Dr Whiting remained of the view that, as Professor Strobel said in a letter ‘False reporting remains a distinct possibility’, that was not disclosed to the appellant. However, some days later the appellant by chance had an opportunity to read the notes and discovered what the view of the doctors was. She sought a second opinion.

  91. Between March 1997 and June 1997 there was substantial discussion between the doctors and the Social Services which resulted in a case conference on the 2nd June 1997, at which the appellant, the doctors and the social workers were present. It was determined that M should be included on the ‘At Risk Register’. He was also then referred once again to Professor Warner who was at last able to examine M and concluded, after investigations, that M was indeed suffering from extensive and severe allergies. After this opinion was reported to the Social Services, he was removed from the At Risk Register on the 29th September 1997.

  92. The claim is brought against NHS Trusts, who are alleged to be vicariously liable for the negligence of the doctors employed by them. In her Particulars of Claim, the appellant asserts that she suffered a reaction of acute anxiety and depression as a result of the stress of dealing with the accusations against her and the investigations of her and M, and consequential financial loss. The relevant allegations of negligence against the doctors are that they negligently misdiagnosed her as suffering from Munchausen’s syndrome by proxy and negligently maintained that diagnosis until September 1997. It was submitted on her behalf that it was foreseeable that this negligent misdiagnosis could cause her psychological damage and that it would result in the intervention of the Social Services, with the stress that that would inevitably cause her.

  93. Three preliminary issues were ordered to be tried;

    • firstly whether the claimant was owed a duty of care by any of the defendants, and if so the extent of that duty;

    • secondly whether the injury complained of by the claimant was recognised by law as being compensatable;

    • thirdly whether the claimant’s cause of action against any of the defendants was statute barred.

    The Judge, HHJ Hale, in his judgment of the 6th September 2002, found in favour of the appellant on the second and third issues, but held that the doctors owed no duty of care to the claimant and accordingly dismissed her claim. He did so on the basis that although it was arguable that the appellant could foreseeably suffer the kind of injury and damage which occurred, it was not just and reasonable to impose a duty of care in the circumstances; he relied on the speeches in the House of Lords in Bedfordshire and in particular the speech of Lord Browne Wilkinson. He considered that public policy considerations militated strongly against any duty of care towards the appellant on the facts of the case.

    CAN BEDFORSHIRE BE DISTINGUISHED?

  94. Mr Levy submitted that the policy considerations that led the House of Lords to conclude that there was no duty of care in Bedfordshire did not apply to the facts of this case. He identified as the critical distinction the fact that M was referred in the first instance to Professor Southall by his general practitioner at the request of his mother herself. He submitted that in these circumstances Professor Southall owed the duty of care of a medical practitioner to both mother and child. Both should be considered as patients. The case should be approached simply as one of clinical negligence. Professor Southall and, subsequently, Dr Whiting were negligent in their diagnosis of the mother. This negligence pre-dated any involvement on the part of the social services, against whom no claim was made. It was the negligent diagnosis which led to the involvement of the social services.

  95. We do not accept this analysis. M, and not his mother, was the patient. The moment that it was suspected that his injuries might be deliberately exaggerated by his mother, the duty owed to M was in potential conflict with the interests of his mother. It was essential that the professionals should not be inhibited in acting in the best interests of M by concern that they might be held in breach of a duty owed to his mother.

  96. The Judge accepted as correct submissions advanced on the part of the defence, which he summarised as follows:

    .... I should be slow to impose any duty that could cut across public policy considerations relating to the care of children. The son, M, was a patient; to impose a concurrent duty in whatever terms in respect of the mother would lead to conflict with their duties towards her son. The conflict here is identical with sex abuse cases. The possibility that somebody who may be subjected to Munchausen’s by Proxy endangering her son is one which the doctor must concern himself about in the context of his care for the patient, the son. Once a suspicion arises about someone who was the mother of a patient, there was a clear duty to investigate in the interests of M, even if initiating the process might damage the mother. In fact they could be negligent in certain circumstances to the child if they did not do so. The defendants add that the interests of the child are paramount and the questions of child protection override the possibility of the duty that the Claimant asserts, however it is expressed.

  97. The Judge observed that these submissions received powerful support from Bedfordshire.

  98. We consider that the Judge was correct to accept these submissions. The reasoning in Bedfordshire plainly applies to the facts of this case and does so in a manner which, for the reasons that we have given, remains valid. The Judge was correct to rule that no duty of care was owed to the claimant.

    PROXIMITY

  99. The Judge recited arguments addressed to him on the issue of proximity, but concluded that the issue was a difficult one which he did not need to resolve. Insofar as there is difficulty, we think it arises out of the unusual facts of this case and the problem of identifying the cause of action to which, arguably, they give rise. The claim was advanced as one for clinical negligence leading to a false diagnosis, which gave rise to stress related psychiatric injury. Such a claim is intelligible where the diagnosis is of a serious illness and the patient believes the diagnosis. In this case, however, the claimant discovered the suggestion that she suffered from Munchausen by proxy because she chanced to see medical records relating to her son two years after the suggestion was first made. It has not been alleged that she believed that there was any truth in the suggestion. She was subsequently present at a case conference at which, it was decided to place M on the ‘At Risk Register’, from which he was removed three months later. No other action was taken in relation to the suspicion of the mother’s condition. She claims, however, that it and its consequences caused her psychiatric illness.

  100. Every aspect of this claim gives rise to problems, including foreseeability and recoverability in respect of the damage alleged to have been sustained. The Judge was not called upon to resolve these issues, but to decide whether they were arguable. He concluded that the issue of foreseeability and recoverability was sufficiently arguable to go to trial and these conclusions have not been challenged. In these circumstances, we would not have thought it right to refuse to permit this action to go to trial had the sole challenge been that there was no proximity.

  101. We would add one reflection which occurred to us after the hearing had been concluded. On one view of the facts this claim has the elements of a claim for defamation. There are statutory defences to such a claim, including that of qualified privilege. It cannot be open to a claimant to by-pass these defences by advancing a claim for defamation in the guise of a claim for negligence.

    WITNESS IMMUNITY

  102. No plea of witness immunity was advanced before the Judge. We shall consider this matter in the Dewsbury appeal, where it is a live issue. The problems in relation to the cause of action make consideration of witness immunity an unrealistic and hypothetical exercise. It is certainly far from clear that it would be open to Professor Southall to invoke witness immunity in relation to the view he expressed at the end of 1994 and we would not have been prepared to rule that the action was bound to fail because of the protection afforded by witness immunity.

  103. For the reasons that we have given the appeal in East Berks will be dismissed.

    DEWSBURY

  104. The appellants are R, who was 9 years old at the relevant time and her father. R suffered from a disease known as Schamberg’s disease which produces discoloured patches on the skin. Her mother had taken her to her general practitioner in September 1997 about what she described as bruising to R’s legs. The marks disappeared after treatment, and no diagnosis of Schamberg’s disease was made at the time. On the 15th March 1998, R hurt herself in the genital area whilst riding her bicycle. On the 17th March her swimming teacher expressed concern about the marks on her legs, so R’s mother again took her to the general practitioner who referred her to Dr Wilson a consultant paediatrician at the Dewsbury District Hospital. Her father took R there that same day. Dr Wilson’s provisional diagnosis was that the marks did not appear to be the result of skin disease but were suggestive of abuse. She informed Social Services. R was examined at the hospital and Dr Wilson concluded that she had been sexually abused. Her mother was informed of this. As a result the father and his son, R’s elder brother, were told that they should not sleep at home when R was released from hospital. The father and mother were stopped from seeing R in the hospital that evening in front of other patients and visitors who included members of the Gujerati community. R remained in the hospital until the 27th March 1998. The father was unable to visit her at all during that period. All of these matters became known in the family’s local community. By the 27th March, the diagnosis of Schamberg’s disease was made and no further steps were taken by the social services. It was accepted that there was no evidence of abuse.

  105. The claims are brought against both the NHS Trust responsible for the hospital and the local authority responsible for the Social Services. The father claims in negligence damages for psychiatric injury and financial loss resulting from the misdiagnosis and the steps taken by the social services which, he submits, were the foreseeable result, particularly within his community, of an allegation of sexual abuse. R also claims damages for psychiatric injury resulting from the misdiagnosis. The respondents applied to strike out the claims under Part 3.4 of the Civil Procedure Rules, alternatively for summary judgment under Part 24.

  106. In his judgment dated 22 September 2002, HHJ Grenfell held that R had an arguable claim for clinical negligence against Dr Wilson, and thus against the first respondent NHS Trust, which claim should be permitted to proceed. The Trust has not appealed against that finding. So far as the father is concerned, the Judge found that it would not be fair, just and reasonable to impose a duty of care towards him on the part of the Trust. The father appeals against that finding. The Judge held that the Local Authority was protected from liability by witness immunity. He further held that it would not be fair, just and reasonable to impose on the Local Authority a duty of care towards either the father or R.

    R’S CLAIM AGAINST THE LOCAL AUTHORITY

  107. Judge Grenfell applied the decision in Bedfordshire in the following manner. Once the possibility of child abuse had been identified and the social services were involved public policy precluded the finding of a duty of care. This did not, however, preclude a claim based on negligence of Dr Wilson in making the prior diagnosis of abuse that initiated the child protection investigation. Thus there was an arguable claim against the NHS Trust by R. So far as her father was concerned, any psychiatric consequences that he suffered could only be attributed to the child protection investigation itself. At that stage, his claim, and equally his daughter’s claim, was precluded by Bedfordshire.

  108. For the reasons that we have given, we do not consider that Bedfordshire stands in the way of a claim by R against the local authority for negligence in the manner in which their employees contributed to the child protection investigation and we reverse the judge’s decision to give judgment in favour of the local authority on that point.

    CAN BEDFORSHIRE BE DISTINGUISHED?

  109. Mr Levy argued that the reasoning in Bedfordshire did not apply to the facts of this case and that we should approach it as a case in clinical negligence where the false diagnosis was foreseeably likely to cause physical harm to third parties. We consider that the judge’s careful application of Bedfordshire was correct. The reasons of public policy that we have identified preclude any finding of a duty of care to R’s father.

    PROXIMITY

  110. Proximity does not seem to have been in issue in the court below. Before us it was taken in relation to the father’s claim and not, of course, R’s. Once again it is necessary to consider the nature of the father’s claim. The psychiatric injury in respect of which he claims is said, as we understand it, to result from the stress of being wrongly accused, to the knowledge of his local community, of sexually abusing his daughter. Given an arguable case on foreseeability and causation, we would not rule that there was insufficient proximity between Dr Wilson and the other professionals involved and R’s father to give rise to a duty of care.

  111. We would add that it is a difficult and artificial exercise to distinguish between proximity and the question of whether it is fair just and reasonable to impose a duty of care. The reason why we have held that no duty of care is owed to the father is, essentially, that it would conflict with a duty owed to a person more proximate than he, namely his daughter. To this extent it could, perhaps, be said that the father’s relationship is insufficiently proximate.

    WITNESS IMMUNITY

  112. Judge Grenfell held that the local authority personnel were entitled to the protection of witness immunity. He held that because the social workers were potential witnesses in criminal or child protection proceedings that might result from their investigations, they could not be subject to a claim for negligence in relation to those investigations. As we read his judgment, he left open the question of whether witness immunity provided a defence to the doctors employed by the Trust.

  113. In so finding Judge Grenfell followed the approach of Lord Browne-Wilkinson in relation to the interview conducted by the child psychiatrist in the Newham case. Lord Browne-Wilkinson first referred to the basis upon which witness immunity is accorded to the preparation of statements for the purpose of a criminal prosecution. He then held that the same principle applies to protect investigations by a local authority as to whether to bring proceedings for the protection of a child from abuse. He held at p.775:

    In the present case, the psychiatrist was instructed to carry out the examination of the child for the specific purpose of discovering whether the child had been sexually abused and (if possible) the identity of the abuser. The psychiatrist must have known that, if such abuse was discovered, proceedings by the local authority for the protection of the child would ensue and that her findings would be the evidence on which those proceedings would be based. It follows in my judgment that such investigations having such an immediate link with possible proceedings in pursuance of a statutory duty cannot be made the basis of subsequent claims.

  114. Witness immunity has recently received more detailed consideration by the House of Lords than that which it received in Bedfordshire. In Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435 the claimants sought damages from the police for conspiracy to injure and misfeasance in public office on the ground that they had fabricated evidence against them for use in a criminal trial. The judge struck out the claim on the ground that the police were covered by an immunity or absolute privilege. The Court of Appeal upheld the judgment, but the House of Lords reversed the decision. Lord Hope of Craighead drew a distinction between carrying out an investigation and preparing evidence to be given as a witness at a trial. He said at p.448:

    But there is a crucial difference between statements made by police officers prior to giving evidence and things said or done in the ordinary course of preparing reports for use in evidence, where the functions that they are performing can be said to be those of witnesses or potential witnesses as they are related directly to what requires to be done to enable them to give evidence, and their conduct at earlier stages in the case when they are performing their functions as enforcers of the law or as investigators may, of course, become the subject of evidence. It may then be necessary for the police officers concerned to assume the functions of witnesses at the trial to describe what they did or what they heard or what they saw. But there is no good reason on grounds of public policy to extend the immunity which attaches to things said or done by them when they are describing these matters to things done by them which cannot fairly be said to form part of their participation in the judicial process as witnesses. The purpose of the immunity is to protect witnesses against claims made against them for something said or done in the course of fixing or preparing to give evidence. It is not to be used to shield the police from action for things done while they are acting as law enforcers or investigators.

  115. It may not be easy in some cases to draw the line between investigation and preparation of evidence in the case of suspected child abuse, but in the Newham case it seems to us that the activities of the social workers probably fell into the category of investigations. We say ‘probably’ because the findings of fact as to the precise role that they played are sparse. At all events we have reached the conclusion that the judge, who did not have the benefit of having Darker cited to him, erred in making a firm finding that witness immunity precluded any liability on the part of those employed by the local authority.

  116. It follows, for the reasons that we have given, that the appeal by R will be allowed, so that her claim against the local authority can proceed, but that her father’s appeal will be dismissed.

    OLDHAM

  117. The appellants are the mother and father of M who was born on the 24th July 1998. On the 26th September 1998 whilst M was in the care of her grandmother she started to scream and appeared to be in pain. She was taken to the Royal Oldham Hospital where she was seen in the Accident and Emergency Department. An x-ray of her left thigh showed an oblique displaced fracture. The second respondent who was the consultant paediatrician, attended the Casualty Department, interviewed the parents and the grandmother and concluded that it was an "inflicted injury". He recorded this, underlined, in the clinical notes. The police and Social Services were informed.

  118. Between the 27th September 1998 and the 16th October 1998, the position was considered by the Social Services; and a Child Protection Case Conference was held. The second respondent maintained his opinion that the injury was non-accidental. Accordingly an application was made for an interim care order, which was made on the 16th October 1998 granting the local authority parental responsibility of M. She was ultimately discharged from hospital on the 23rd October 1998 into the care of her aunt.

  119. The matter came back to court on the 23rd December 1998 when HHJ Wilkinson, having heard evidence, determined that the injuries were not accidental. Care of M was then given to the aunt. In March 1999 M suffered bi-lateral femoral fractures whilst in the care of her aunt. Detailed examinations then followed from which it became plain that M had osteogenesis imperfecta, a bone condition rendering M particularly susceptible to fracture. Accordingly, an application was made for the interim care order to be discharged which was granted on the 17th June 1999.

  120. The appellants claim damages for the psychological distress resulting from their separation from M until the 17th June 1999, on the grounds that the diagnosis of non-accidental injury was both made and maintained negligently. Two preliminary issues relevant to this appeal were ordered to be tried: firstly whether there was a duty of care owed by either of the respondents to the appellants; secondly whether they had a valid claim under the European Convention on Human Rights justiciable in the English courts. There was a third preliminary issue relating to a claim brought on behalf of M which was whether the medical evidence put forward to support her claim disclosed an injury for which the law recognised a remedy. As far as this latter issue was concerned, the judge concluded that it did not; and there is no appeal from his finding. As far as the first issue is concerned, he concluded that for the reasons given by Lord Brown Wilkinson in Bedfordshire there was no duty owed to the appellants. As to the second, he concluded that they did not. Accordingly he dismissed the appellant’s claims.

    CAN BEDFORSHIRE BE DISTINGUISHED?

  121. Once again Mr Levy argued that the reasoning in Bedfordshire did not apply to the facts of this case. He submitted that at the start of the story there was a duty of care owed by Dr Blumenthal both to M and M’s parents. He emphasised that M was taken to the hospital by her parents. At that point there was no question of Dr Blumenthal’s duty to the child conflicting with his duty to the parents. Conflict only arose after he had negligently involved the social services and the police. It was not open to Dr Blumenthal to argue that the consequences of his negligence absolved him from any duty of care.

  122. This argument was advanced before Simon J and rejected by him. He held:

    In my view this approach is unrealistic since inevitably the initial diagnosis will be refined as further information becomes available. Indeed, the Claimants themselves allege that there was an obligation to refine and develop an initial diagnosis. Furthermore, the diagnosis that was reached necessarily involved an obligation owed to the child and to the OMBC [Oldham] and there is no room for an additional duty owed to the parents, see Powell v Boladz [1998] Lloyd’s Rep Med 116 at 123r, and X v Bedfordshire ("the Newham case"): the observations of Sir Thomas Bingham MR at 665g:

    .... the mother was not in any meaningful sense the psychiatrist’s patient. The psychiatrist’s duty was to act in the interests of the child, and that may very well mean acting in a way that that would be adverse to the interests of the mother ....

    Once there is material on which the doctor can properly initiate the multi-disciplinary investigation, the doctor cannot owe a duty to the parents in relation to the diagnosis which commences the process. In the present case the Claimants do not contend that there was no material upon which the doctor could act; and there is no point which they can identify when a special relationship with the parents can be said to exist, which is not in conflict with the duty to the child and the OMBC.

    By setting in motion the multi-disciplinary process, the doctor acts in the interests of his patient, and begins a process, which is designed to ensure that recognition is given to a number of conflicting factors, including the interests of the parents, and which is ultimately resolved by the Court.

  123. We agree with this analysis. The moment that Dr Blumenthal suspected that M had been abused, and before he took any action in consequence of this suspicion, his duty to M was in potential conflict with the interests of her parents. The Judge was right to find that the case was covered by Bedfordshire and that no duty of care was owed to the parents.

    PROXIMITY

  124. The Judge held that, because the defendants’ duty of care was owed exclusively to M, the relationship between the parents and the defendants was too remote to give rise to a duty of care upon the latter. We refer to our discussion on this point in paragraph 112. We have some difficulty with the proposition that there is insufficient proximity between doctors and care workers, who are responsible for the removal of a child from her parents, and those parents. We prefer to hold that the reason why no duty of care is owed to the parents is because it would not be fair, just and reasonable and not because of lack of proximity.

    WITNESS IMMUNITY

  125. At the case management conference Judge Holman determined that the issue of witness immunity was one which required evidence. For this reason it was not one of the preliminary issues considered by the Judge below. In these circumstances it would not be appropriate for us to consider this issue on the material before us. In the light of our other findings, this issue is, in any event, academic.

  126. For the reasons that we have given this appeal will be


Cases

Caparo Industries Plc v Dickman [1990] 2 AC 605; X v Bedfordshire County Council & M v Newham London Borough Council [1995] 2 AC 633; Osman v United Kingdom [1999] 1 FLR 193; Hill v Chief Constable of West Yorkshire [1989] AC 53; Barrett v Enfield Borough Council [2001] 2 AC 550; Kent v Griffiths [2001] 1 QB 36; Z v United Kingdom [2001] 2 FLR 612; TP & KM v United Kingdom [2001] 2 FLR 549; Matthews v Ministry of Defence [2003] 2 WLR 435; Fayed v United Kingdom (1994) 18 EHRR 393; Fogarty v United Kingdom (2001) EHRR 302; S v Gloucestershire CC [2001] 1 Fam 313; Phelps v Hillingdon London Borough Council [2001] 2 AC 619; E (A Minor) v Dorset County Council [1995] 2 AC 633; Attorney-General v Prince & Gardner [1998] 1 NZLR 262; E v United Kingdom [2003] 1 FLR 348; P,C&S v United Kingdom (2002) 35 EHRR 31; Venema v The Netherlands [2003] FLR 552; Yousef v The Netherlands [2003] 1 FLR 210; Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435; Powell v Boladz [1998] Lloyd’s Rep Med 116

Legislations

European Convention for the Protection of Human Rights and Fundamental Freedoms (1953): Art.6, Art.8, Art.13

Representations

Allan Levy QC and Scott Donovan (instructed by Carter Hodge) for the first Appellant JD

Allan Levy QC and David Gripton (instructed by Levi & Co) for the second Appellants RK and AK

Allan Levy QC and Mary Ruck (instructed by Pannone & Partners) for the third Appellants RK and Another

Robert Francis QC and Angus Moon (instructed by Hempsons) for all the Respondents except Kirklees Metropolitan Council

Edward Faulks QC and Alastair Hammerton (instructed by Hill Dickinson) for Kirklees Metropolitan Council


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