B and B v A County Council

JurisdictionEngland & Wales
JudgeLord Justice Buxton,Lord Justice Sedley,Mr Justice Bodey
Judgment Date21 November 2006
Neutral Citation[2006] EWCA Civ 1388
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: A2/2006/0349
Date21 November 2006

[2006] EWCA Civ 1388

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM ATHE HIGH COURT OF JUSTICE

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Buxton

Lord Justice Sedley and

Mr Justice Bodey

Case No: A2/2006/0349

Between:
B&b
Appellants
and
A County Council
Respondent

Mr David Blunt QC & Mr Michael Melville Shreeve (instructed by solicitors ) for the Appellants

Miss Kate Thirlwall QC & Mr Andrew Warnock (instructed by solicitors ) for the Respondent

Lord Justice Buxton

Introduction

1

1. This unusual and unfortunate case arises out of errors that were made by the respondent county council during an adoption process. In order to protect the interests of the two of the claimants who are children, and in respect of whom an order has been made under section 39 of the CYPA 1933, and also because of the particular nature of the subject-matter, the parties and all of the individuals concerned will be identified only by letters (which are not their actual initials).

2

The claimants are four members of the B family: the father and mother, CB and FB, and their two adopted children, K (born on 17 September 1992) and M (born on 16 February 1994) . They contend that contrary to undertakings given to the parents, and also contrary to good practice and commonsense, the identity of the adopting family, and the area in which they lived, were during the adoption process in respect of M revealed to members of M's "birth family". That expression is used for convenience, but I shall have later in the judgment to revert to the nature of the family and of the relations between the various persons said to comprise it. The disclosures were made to M's mother, D, and on a separate occasion to M's maternal grandmother FC. The claimants allege that, as a result of those disclosures, once M had been adopted by the Bs that family was subjected to a campaign of harassment by the birth family. That, and other aspects of the handling of M's case to which the Bs took exception, led to a number of claims in the present action, of which however only the following survive before us.

3

First, all four claimants seek damages for psychiatric injury and loss and damage arising out of the campaign of harassment that they allege to have been consequential upon the wrongful disclosure of their identity during the adoption process. This claim was put under a number of legal heads: breach of contract; breach of confidence; "assumption of responsibility"; and negligence. The first three of these were rejected by the judge, and only pursued in a somewhat limited way before us. The judge however did find that the respondents had owed the claimants a duty of care in negligence to keep their identity confidential, which duty had been broken, but he nonetheless dismissed the negligence claim because he considered that it had not been proved that the B family had been subjected to the "campaign" of interference and aggression that was the damage on which the constitution of the action depended; and that to the extent that the incidents complained of did occur it had not been proved that the birth family had been responsible for them. The claimants appeal against those findings of the judge; the county council cross-appeals against the judge's conclusion that it owed a relevant duty of care to the claimants.

4

The second claim that is pursued before us is by CB and FB alone, and alleges a failure on the part of the county council to provide promised support to the B family in the face of actual or feared harassment by the birth family. The main purpose of this claim was to enable the B family to be compensated for the expense of moving to a different part of the country in order to escape harassment by the birth family. The basis of this claim in law was and remains difficult; and additionally the claim must fail in any event if the judge was right in finding that the Bs' belief in the harassing activity of the birth family, although accepted as genuinely held, was nonetheless not correct as a matter of objective fact.

5

5. Before addressing these claims in detail it is necessary to say more about the factual situation in which they arise. That can be done by reference to the careful exposition of the judge.

M, her history and her family

6. It will be recalled that M was born on 16 February 1994. The judge continued with her history in these terms, at §§ 4–7 of his judgment:

"In May 1994 her maternal grandmother was concerned that she had been physically abused by her father and reported her concerns to social services. A hospital examination found no injury.

On 28 June 1994 she was again at hospital with multiple fractures some of which were old and it was then accepted that the diagnosis in May was wrong. Her father, DG, admitted causing injuries to the child and on 19 June 2005 he was placed on probation for two years.

M was placed on the Child Protection Register on 6 July 1994 and remained living with her mother, D. DG lived away from the family but had supervised contact. The contact went well and on 23 October 1995 approval was given for DG to resume living with D and M. On 16 November 1995 D gave birth to a second child, L.

L was not placed on the child protection register and on 29 March 1996 M's name was taken off the register.

On 4 June 1996 L died and the post mortem concluded that this was a non- accidental injury. DG and D were arrested and M was placed with her maternal grandmother, FC. On 23 December 1996 the grandmother was approved as a short term carer for M.

In due course DG was sent to prison for the manslaughter of L. The defendant had to make long-term plans for M and on 17 February 1997 it was granted a care order. The care plan was for adoption and proposed moving M from grandmother to bridging placement pending the identification of a suitable adoptive family. The judge questioned whether it was necessary to move M in the short term, only for her to have to move again to a final placement. The defendant reviewed its plan and decided that M could remain with the grandmother until placed with potential adopters. The grandmother was co-operating with the defendant.

At this point it is necessary to say something about the birth family of M. Her Mother, D, and D's siblings were all abused by their stepfather, LC. He received two concurrent 7 year prison sentences and is regarded as a "powerful and dangerous man". He is a paedophile and therefore presents a risk to children. There is a question mark over the extent to which maternal Grandmother, FC, was aware of the stepfather's activities with her children. I should say that the grandmother has never been charged with any offence. On any view however there must be concern that she was unable to protect her children from their stepfather. D's younger siblings, [N] and J, have been involved in criminal activities such as violence, criminal damage, and in respect of one of them, arson. These have been the subject of warnings and cautions but no criminal convictions. M's father, DG, has convictions for assaults on M as well, of course, as his conviction for manslaughter.

In the months of July and August 1997 M was introduced to Mr and Mrs B and K, and on 12 August 1997 the adoption panel approved the match. On 25 August 1997 M was finally placed with the B family. In the months that followed two significant things happened, First, M made various disclosures which showed that she had been subjected to sexual and physical abuse while in the care of her birth family. Secondly, almost immediately following the placement, there began a series of incidents which continued for almost 7 years and which the claimants maintain was a campaign of terror and harassment by the birth family. It is the firm belief of the claimants that the defendant negligently revealed their names and address to the birth family and that this made the harassment possible."

7

The judge further reverted in more detail to the troubled nature of the birth family when he recorded the following specific findings of fact in §54 of his judgment:

"(a) the maternal birth family was regarded, correctly, by the defendant as a very troubled family and one traumatised by the sexual abuse of M's mother and her siblings by LC (the stepfather).

(b) this sexual abuse caused massive dysfunction within the family.

(c) LC was regarded by the defendant as a dangerous paedophile, and psychologically "powerful and dangerous".

(d) younger members of the maternal family, J and N, had police "records" for dishonesty and criminal damage. J also had a warning for arson and [N] had cautions and warnings for assault.

(e) N had reported to social services that he had been assaulted by his brother, sister and mother on 20 August 1996.

(f) M's father, DG, was known to social services as a man capable of violence towards his children. He had been convicted of assaults on M and, of course, caused the death of L."

8

The appellants criticised this account of the birth family as omitting various characteristics or incidents relevant to the issues in the appeal, and I shall have to return to that criticism in due time. However, it was not disputed that the judge's passage broadly indicates the problems from which the birth family suffered.

The adoption process

9

K was adopted by Mr and Mrs B on 20 December 1994. The judge recorded that they spoke highly of the way in which the defendant county council had dealt with the process, and that the adoption had been a great success for K and doubtless also for his adoptive parents. In due course Mr and Mrs B decided that they would like to adopt another child,...

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