B and Others v Attorney General

JurisdictionUK Non-devolved
CourtPrivy Council
JudgeLord Nicholls of Birkenhead
Judgment Date16 Jul 2003
Neutral Citation[2003] UKPC 61
Docket NumberAppeal No. 1 of 2003

[2003] UKPC 61

Privy Council

Present at the hearing:-

Lord Nicholls of Birkenhead

Lord Hutton

Lord Hobhouse of Woodborough

Lord Rodger of Earlsferry

Lord Walker of Gestingthorpe

Appeal No. 1 of 2003
"B"

and Others

Appellants
and
The Attorney General

and Others

Respondents

[Delivered by Lord Nicholls of Birkenhead]

1

In Attorney-General v Prince [1998] 1 NZLR 262 a five judge Court of Appeal, by a majority of four to one, declined to strike out a claim in negligence brought by a child in respect of an alleged failure by social workers to investigate a complaint that his adoptive parents were neglecting him. In the present case a father and his two daughters (D1 and D2) claim damages in respect of the allegedly negligent way a social worker and a clinical psychologist investigated a complaint that the father had sexually abused D2. In Prince's case the claim was founded on an alleged failure to investigate at all. In the present case the claim is founded on an alleged failure to investigate properly. The question raised by this appeal is whether the present case is distinguishable from the decision in Prince's case. In addition to the social worker and the psychologist, the Attorney-General is a defendant. He is sued on behalf of the Minister of Social Welfare and the Department of Social Welfare.

The history

2

As in Prince's case, the present case comes before the court on interlocutory applications by the defendants to strike out the proceedings summarily as proceedings which are bound to fail. No trial has yet taken place. Thus, in accordance with well established principles, these applications are to be approached on the footing that at the trial, if one takes place, the plaintiffs may succeed in proving the facts they allege in their statement of claim. It is right to record, however, that all the defendants deny the alleged negligence. At first instance Gallen J struck out the proceedings: B v AG [1997] NZFLR 550. The Court of Appeal, comprising Keith, Blanchard and Tipping JJ, dismissed an appeal: B v Attorney-General [1999] 2 NZLR 296.

3

The incidents of which the plaintiffs complain took place as long ago as July 1988. D1 was then aged seven. Her sister, D2, was five years old. The father was a widower. D2 told a friend at school that her father had sexually abused her. The friend told her mother who, in turn, informed the Department of Social Welfare. The department began an investigation on 18 July 1988. On the following day at the request of the department the second defendant, a registered clinical psychologist, separately interviewed the two girls at their school in the presence of a senior teacher and the third defendant, a social worker employed by the department. The second defendant had considerable experience in the field of child sex abuse and was a member of the sexual abuse team at Wellington.

4

Later on the same day, 19 July, the social worker laid a complaint under section 27 of the Children and Young Persons Act 1974 on the ground that she reasonably believed the children were in need of care, protection or control because their physical or mental health or emotional state was being avoidably impaired or neglected (subsection (2)(b)) or the children were being, or were likely to be, neglected or ill-treated (subsection (2)(c)). As a result a warrant was obtained for the removal of the children from the care of their father pursuant to section 28 of the 1974 Act. The deputy registrar of the District Court was satisfied there was reasonable ground for suspecting the children were likely to be ill-treated, as provided in section 28(1). The children were then taken from their home and placed in foster care.

5

At the time the father knew nothing of the allegations, the interviews or their results. The first he knew of any of these matters was when, later on the same day, he was interviewed by the police. He was told the children had been taken away and that he was not to attempt to find them or get in touch with them. He was not told where the children were. At all times the father denied the allegations against him. No charges were ever laid by the police.

6

The father then made arrangements to leave the family home and for the children to return there in the care of an employee. He also made arrangements for his parents to return to New Zealand from England. They had earlier helped him with the care of the children following the death of his wife.

7

Two days after the interviews, on 21 July, the social worker arranged for the children to be examined by a doctor. The doctor concluded there was no evidence to suggest full penile penetration in respect of either child, but her examination did not rule out lesser degrees of penetration or other forms of sexual molestation.

8

The statement of claim alleges respects in which, it is said, the interview carried out by the psychologist, and the investigation carried out by the social worker, were conducted negligently. For instance, it is said the psychologist failed to note or evaluate important factual errors. D2 gave a detailed description of an attic in her home although the psychologist knew D2's home was a single storey building. D2 said both she and her elder sister, D1, had been sexually abused by their father. But the psychologist ignored answers given by D1 denying sexual abuse of either her or her sister. The social worker failed to follow up a report made to her by the doctor that at the outset of the doctor's examination D2 said to the doctor that sometimes she, D2, told lies. Within two weeks of the issue of the warrant D2 told a friend of the father that the allegations were untrue, and that she had told this untruth to the ladies who had come to see her and her sister at the school because she was allowed to tell lies at school. This information was passed to the department by telephone but, it is said, this was not acted upon by any of the defendants.

9

The complaint made by the social worker came before AB Beatson DCJ for hearing on 5 December 1988, together with an application by the father's parents for custody of the children. The hearing occupied nine weeks of court sitting time. On 13 April 1989, before the hearing had been completed, the complaint was amended to add section 27(2)(e) as an additional ground on which the children were in need of care, protection or control: that the children were exhibiting behaviour beyond the control of their father. The father admitted this amended ground of complaint under section 27(2)(e) but not the original 'abuse' complaints under section 27(2)(b) and (c). With the consent of all concerned, including the father, the court made a supervision order and an order giving shared custody of the children to the father's parents and the father. The father's parents and the father were also appointed joint guardians of the children.

10

Following this hearing the father's parents went back to the United Kingdom with D1 and D2. The girls returned to New Zealand with their grandmother in late January 1990 and were reunited with their father. The supervision ended by order of the court in April 1991.

11

These proceedings were started in 1993. The children claim general damages of $50,000 and exemplary damages of $500,000 for upset to their lives and the trauma of being removed from their father. Their father claims a like amount of general damages and exemplary damages, together with special damages in respect of matters such as child minding expenses, medical expenses and legal costs, and his parents' air fares and other expenses.

Prince's case

12

Before their Lordships' Board none of the parties challenged the correctness of the decision of the Court of Appeal in Prince's case or the reasoning of the majority. Their Lordships are content to proceed on this basis. The relevant legislation is not now in force and has not been so for some years. Accordingly, as already noted, the sole issue before the Board is whether the present case falls within the principle enunciated by the Court of Appeal in Prince's case regarding what was there referred to as "the 1983 complaint". This was a complaint that although the Department of Social Welfare knew the adoptive parents were not looking after their adopted child the department "did nothing": it failed to investigate the complaint "adequately or at all".

13

Whether the manner of discharge of a statutory function admits of a concurrent common law duty of care depends primarily upon the scheme and policy of the relevant legislation. As noted by Lord Browne-Wilkinson in X (Minors) v Bedfordshire County Council [1995] 2 AC 633, 739, the statutory framework within which the act or omission took place is a profoundly influential factor when deciding the existence and ambit of a common law duty. For this reason the Court of Appeal in Prince's case left on one side the current New Zealand legislation, the Children, Young Persons and Their Families Act 1989, describing this as a very different legislative scheme. The Court of Appeal also considered that the 1974 Act was "clearly distinguishable" from the statutes before the House of Lords in X (Minors) v Bedfordshire County Council [1995] 2 AC 633. The court focused its attention on the 1974 Act itself.

14

Section 3 of the 1974 Act set out its objects. These included promotion of the welfare of children by assisting individuals and families to overcome social problems confronting them, promotion of the welfare of the family, and assisting parents in the discharge of their parental responsibilities. Section 4 provided that any person exercising powers conferred by the Act shall treat the interests of the child as the first and paramount consideration. Section 5 imposed positive duties on the Director-General of Social Welfare to undertake preventive work:

" (1) It...

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