A and B v Essex County Council

JurisdictionEngland & Wales
CourtCourt of Appeal
Judgment Date17 Dec 2003
Neutral Citation[2003] EWCA Civ 1848

Adoption – Negligence – Duty of care – Local authority – Whether local authority had duty to fully inform adoptive parents of child’s serious behavioural problems.

The local authority had formally approved the claimants as adoptive parents. The claimants had stated that they were not prepared to consider a child with either a physical or mental disability, or with special educational needs outside mainstream school, but would consider a child who had been physically or sexually abused. A brother and sister, W and K, were placed with the claimants with a view to adoption. The adoption panel’s medical adviser had concluded, after carrying out the pre-adoption medical examinations, that the brother had behavioural problems and could be ‘very difficult with frequent tantrums’. The claimants experienced considerable difficulty with W’s violent and destructive behaviour, but went ahead with the adoption application. The adoption orders were subsequently made. The claimants claimed damages from the defendant local authority adoption agency, contending that it had been negligent in failing to inform them of the extent of W’s difficulties. They argued that had they been fully informed of what was known about W they would not have taken the children on in the first place. The claimants had suffered physical damage to their home, and had each suffered psychiatric injury and been assaulted on several occasions. The judge held that the agency was liable to the claimants for failing to provide them with ‘all relevant information’ about the children. The defendant appealed against that holding. The judge further held that the defendant was only liable for injury, loss and damage sustained between the time the children were placed with the claimants as prospective adopters and the date of the adoption orders. The claimants appealed against that decision. The claimants submitted that the defendant had a duty to supply prospective adoptive parents with all relevant information, and that what was relevant could be judged by what had been put before the agency’s adoption panel.

Held – (1) There was no general duty of care owed by an adoption agency or the staff whom it employed in relation to deciding what information was to be conveyed to prospective adopters. Only if they took a decision which no agency could reasonably take could there be liability. However, once the agency had decided, either in general or in particular, what information should be given, there was a duty to take reasonable care to ensure that information was both given and received. On the evidence in the instant case, that duty

had been broken, because the claimants had not received all the information which the agency had decided they should have been given. Had they been given all that information the extent of the difficulties would have been revealed, which would have taken the claimants beyond the limits of what they had been prepared to take on. Accordingly, the appeal would be dismissed.

(2) The judge had been right to treat the date of the adoption orders as the cut off point for the claimant’s claim. The judge had been entitled to find that by the time that the adoption orders were made, quite enough had happened to enable the claimants to know enough about W to make a decision for themselves. Accordingly, the cross appeal would be dismissed.

Decision of Buckley J [2002] All ER (D) 273 (Dec) affirmed.

Cases referred to in judgment

A-G v Prince and Gardner [1998] 1 NZLR 262, NZ CA.

Anns v Merton London Borough [1977] 2 All ER 492, [1978] AC 728, [1977] 2 WLR 1024, HL.

B v A-G of New Zealand[2003] UKPC 61, [2003] All ER (D) 281 (Jul).

Barrett v Enfield London BC[1999] 2 FCR 434, [1999] 3 All ER 193, [2001] 2 AC 550, [1999] 3 WLR 79, [1999] 2 FLR 426, HL.

Bolam v Friern Hospital Management Committee [1957] 2 All ER 118, [1957] 1 WLR 582.

Caparo Industries plc v Dickman [1990] 1 All ER 568, [1990] 2 AC 605, [1990] 2 WLR 358, HL.

D v East Berkshire Community Health NHS Trust, K v Dewsbury Healthcare NHS Trust, K v Oldham NHS Trust[2003] EWCA Civ 1151, [2003] 3 FCR 1, [2003] 4 All ER 796, [2004] 2 WLR 58, [2003] 2 FLR 1166, CA.

Osman v UK (1998) 5 BHRC 293, [1999] 1 FLR 193, ECt HR.

Page v Smith [1995] 2 All ER 736, [1996] AC 155, [1995] 2 WLR 644, HL.

Phelps v London Borough of Hillingdon, Anderton v Clwyd CC, Jarvis v Hampshire CC[2000] 3 FCR 102, [2000] 4 All ER 504, [2001] 2 AC 619, [2000] 3 WLR 776, HL.

Smith v Eric S Bush (a firm), Harris v Wyre Forest DC [1989] 2 All ER 514, [1990] 1 AC 831, [1989] 2 WLR 790, HL.

South Australia Asset Management Corp v York Montague Ltd, United Bank of Kuwait plc v Prudential Property Services Ltd, Nykredit Mortgage Bank plc v Edward Erdman Group plc [1996] 3 All ER 365, [1997] AC 191, [1996] 3 WLR 87, HL.

Stovin v Wise and Norfok CC (third party) [1996] 3 All ER 801, [1996] AC 923, [1996] 3 WLR 388, HL.

W and B (children) (careplan), Re, Re W (children) (care plan) [2001] EWCA Civ 757, [2001] 2 FCR 450, [2001] 2 FLR 582; rvsd in part sub nom Re S (children: care plan); Re W (children: care plan) [2002] UKHL 10, [2002] 1 FCR 577, [2002] 2 AC 291, [2002] 2 All ER 192, [2002] 2 WLR 720, [2002] 1 FLR 815.

W v Essex CC[1998] 2 FCR 269, [1998] 3 All ER 111, [1999] Fam 90, [1999] 2 FLR 278, CA; rvsd in part[2000] 1 FCR 568, [2000] 2 All ER 237, [2001] 2 AC 592, [2000] 2 WLR 601, [2000] 1 FLR 657, HL.

X (minors) v Bedfordshire CC, M (a minor) v Newham London BC, E (a minor) v Dorest CC[1995] 3 FCR 337, [1995] 3 All ER 353, [1995] 2 AC 633, [1995] 3 WLR 152, [1995] 2 FLR 276, HL.

Appeal

The local authority, Essex County Council, appealed against the decision of Buckley J ([2002] EWHC 2707 (QB)) whereby he held that the authority was liable for its failure to provide the adoptive parents with all relevant information about two children they had adopted. The adoptive parents cross appealed. The facts are set out in the judgment of the court.

Edward Faulks QC and Andrew Warnock (instructed by Barlow Lyle & Gilbert) for the appellant.

Gavin Millar QC and Carole Parry-Jones (instructed by Fisher Jones Greenwood) for the respondent.

Cur adv vult

17 December 2003. The following judgment was delivered.

HALE LJ.

This is the judgment of the court.

[1] This appeal raises the novel and difficult issue of the nature and extent of any duty of care owed by an adoption agency towards prospective adopters with whom they place children with a view to adoption.

[2] On 18 December 2002, Buckley J ([2002] EWHC 2707 (QB), [2003] 1 FLR 615) held the defendant, a local authority adoption agency, liable to the claimant adoptive parents in negligence for failing to provide them with ‘all relevant information’ about the children they were to adopt. The local authority appeal against that holding. The judge also held, however, that the authority were only liable for injury, loss and damage sustained between the time when the children were placed with the claimants as prospective adopters and the date of the adoption orders. The claimants appeal against that limitation to their claim.

THE FACTS

[3] At the centre of this case, but not a party to it, is a boy whom I shall call William (though that is not his name). He was born in July 1990. His sister Kate (though that is not her name) was born in March 1993. The family was known to social services because of concerns about domestic violence and possible drug and alcohol abuse by the father. Emergency protection orders followed by interim care orders were obtained in July 1993 because of the risk of emotional and physical harm to both children. Their father was becoming increasingly violent and their mother’s ability to protect them was decreasing rapidly. The children were returned to their mother at a women’s refuge for

three weeks but removed to foster care when she rejected Kate and it was feared that the parents would run away together with William. The children moved foster homes three times after that, because of William’s behaviour, before reaching their final foster placement in October 1993. By that stage the parents had decided to surrender Kate but try to be reunited with William. A consultant child psychiatrist, appointed to advise the local authority for the purpose of the care proceedings, made a report on 18 November 1993. William showed behaviour to the foster mother which indicated that he had seen violence, he sometimes approached Kate with his hands in the position of squeezing her neck and on one occasion he picked up a knife indicating that he would cut someone’s head off, although he did not say who this would be. He was showing signs of disturbance and disturbed behaviour and thinking. Whether he went home or not, it would be prudent to refer him to a child guidance clinic for more detailed examination. Nevertheless, to ordinary clinical examination the children did not appear to have suffered developmental delay or been harmed by any experience they might have had. So the psychiatrist did not think that there were grounds for making a full care order or removing the children with a view to adoption.

[4] Nevertheless, full care orders were made in December 1993. The parents and William were referred to the Marigold Centre for assessment. This took place between February and July 1994. It was inconclusive about the prospects of reuniting them, but did not rule this out. In late July, however, William began to show reluctance to meet his parents and in August adamantly refused to visit them. The parents then applied for discharge of the care orders and for contact with the children. The local authority applied for permission to refuse contact.

[5] The children were informally referred for discussion by the agency’s adoption panel in September. Their foster carer happened to be a member of the panel and she gave a ‘lengthy and detailed’ description of her experience as their foster carer; we can assume that this was in similar terms to the graphic description of William which she...

To continue reading

Request your trial
17 cases
  • Rowley v Secretary of State for Work and Pensions
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 19 June 2007
    ...considered as a free-standing question, rather than as an aspect of the third limb of the Caparo test. In A v Essex County Council [2003] EWCA Civ 1848, [2004] 1 WLR 1881 at para 33, Hale LJ considered the question whether to impose a common law duty of care would be inconsistent with the ......
  • B and B v A County Council
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 21 November 2006
    ...defendant that their identity would be kept secret. 12 As Hale LJ (as she then was) pointed out in her seminal judgment in A v Essex CC [2004] 1WLR 1881[72], the general adoption process is not in law a matter of contract at all, and contractual analysis cannot be applied to it. What is all......
  • D v East Berkshire Community Health _NHS Trust; K and another v Dewsbury Healthcare _NHS Trust and another ; K and another v Oldham NHS Trust
    • United Kingdom
    • House of Lords
    • Invalid date
    ...3 FCR 577, [2000] 4 All ER 961, [2001] Fam 147, [2001] 2 WLR 480, CA. A v Essex CC[2002] EWHC 2707 (QB), [2003] 1 FLR 615; affd[2003] EWCA Civ 1848, [2004] 1 FCR 660, [2004] 1 WLR A-G v Prince [1998] 1 NZLR 262, NZ CA. Alcock v Chief Constable of South Yorkshire Police [1991] 4 All ER 907, ......
  • Carty v Croydon London Borough Council
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 27 January 2005
    ...[2001] 2 AC 619 and Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15, [2004] 1 WLR 1057. In A v Essex County Council [2003] EWCA Civ 1848, [2004] 1 WLR 1881 at para 33, Hale LJ (drawing heavily on the analysis of Lord Browne-Wilkinson in X v Bedfordshire CC) summarised the......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT