Barrett v Enfield London Borough Council

JurisdictionEngland & Wales
Judgment Date17 June 1999
CourtHouse of Lords

Negligence – Duty to take care – Existence of duty – Children – Local authority – Duty to act as a parent of child after child taken into care – Decisions taken as to future of child – Child suffering deep-seated psychological and psychiatric problems – Whether local authority owing direct duty of care.

The plaintiff was aged ten months when a care order was made in favour of the defendant local authority and he remained in care until he was 17. Thereafter, the plaintiff claimed damages for personal injuries, alleging that the defendant was in breach of its duty to act as a parent and to show the standard of care which was expected of a responsible parent. He alleged that, in breach of such duty of care, the defendant acting by its social workers and others negligently failed to safeguard the plaintiff’s welfare, negligently made two placements with foster parents, moved him six times to different residential homes between 1976 and 1988, failed to make arrangements for his adoption, failed to provide him with proper social workers, failed to provide appropriate psychiatric advice and failed to make proper arrangements to reunite him with his mother. The plaintiff alleged that such negligent treatment caused him to leave the care of the local authority when he attained the age of 18 without family or attachments and suffering from a psychiatric illness leading, inter alia, to his having an alcohol problem and a propensity to harm himself. The defendant applied to strike out the claim on the ground that it disclosed no cause of action. The district judge refused the application, but the judge allowed the defendant’s appeal and struck out the plaintiff’s claim. The Court of Appeal upheld the judge’s decision, holding that it would be contrary to the public interest to impose a duty of care on the local authority. The plaintiff appealed.

Held – Although a claim for negligence in the taking of a decision to exercise a statutory discretion was likely to be not justiciable, unless it was wholly unreasonable so as not to be a real exercise of the discretion, or it involved the making of a policy decision involving the balancing of different public interests, acts done pursuant to the lawful exercise of the discretion could be subject to a duty of care, even if some element of discretion was involved. Thus, while a decision to take a child into care pursuant to a statutory power was not justiciable, it did not follow that, having taken a child into care, a local authority could not be liable for what it or its employees did in relation to the child without it being shown that they had acted in excess of power. In the instant case, the allegations were largely directed to the way in which the powers of the local authority were exercised and it was arguable that if some of the allegations were made out, a duty of care was owed and

was broken. Further, the importance of seeing whether what had been done was an act which was justiciable or whether it was an act done pursuant to the exercise or purported exercise of a statutory discretion which was not justiciable required, except in the clearest cases, an investigation of the facts, and whether it was just and reasonable to impose a liability for negligence had to be decided on the basis of what was proved. Accordingly, the appeal would be allowed.

Decision of Court of Appeal [1997] 1 FCR 145 reversed.

Cases referred to in opinions

A v Liverpool City Council [1982] AC 363, [1981] 2 All ER 385, [1981] 2 WLR 948, HL.

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

Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223, [1947] 2 All ER 680, CA.

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

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

Capital and Counties plc v Hampshire CC, Digital Equipment Co Ltd v Hampshire CC, John Munroe (Acrylics) Ltd v London Fire and Civil Defence Authority, Church of Jesus Christ of Latter Day Saints (GB) v West Yorkshire Fire and Civil Defence Authority [1997] QB 1004, [1997] 2 All ER 865, [1997] 3 WLR 331, CA.

Carmarthenshire CC v Lewis [1955] AC 549, [1955] 1 All ER 565, [1955] 2 WLR 517, HL.

Davis v Radcliffe [1990] 2 All ER 536, [1990] 1 WLR 821, PC.

Fisher v Ruislip-Northwood UDC [1945] KB 584, [1945] 2 All ER 458, CA.

Gold v Essex CC [1942] 2 KB 293, [1942] 2 All ER 237, CA.

H v Norfolk CC[1997] 2 FCR 334, CA.

Hill v Chief Constable of West Yorkshire [1989] AC 53, [1988] 2 All ER 238, [1988] 2 WLR 1049, HL.

Home Office v Dorset Yacht Co Ltd [1970] AC 1004, [1970] 2 All ER 294, [1970] 2 WLR 1140, HL; affg [1969] 2 QB 412, [1969] 2 All ER 564, [1969] 2 WLR 1008, CA.

Just v British Columbia (1989) 64 DLR (4th) 689, Can SC.

Lonrho plc v Tebbit [1991] 4 All ER 973; affd [1992] 4 All ER 280, CA.

Osman v Ferguson [1993] 4 All ER 344, CA.

Osman v UK (1998) 5 BHRC 293, ECt HR.

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

Peabody Donation Fund (Governors) v Sir Lindsay Parkinson & Co Ltd [1985] AC 210, [1984] 3 All ER 529, [1984] 3 WLR 953, HL.

Phelps v Hillingdon London BC[1999] 1 FCR 440, [1999] 1 All ER 421, [1999] 1 WLR 500, CA.

R v Chief Constable of Sussex, ex p International Trader’s Ferry Ltd [1999] 1 All ER 129, [1998] 3 WLR 1260, HL.

R v Deputy Governor of Parkhurst Prison, ex p Hague, Weldon v Home Office [1992] 1 AC 58, [1991] 3 All ER 733, [1991] 3 WLR 388, HL.

Rowling v Takaro Properties Ltd [1988] AC 473, [1988] 1 All ER 163, [1988] 2 WLR 418, PC.

S v W (child abuse: damages) [1995] 3 FCR 649, CA.

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

Surtees v Kingston-upon-Thames BC [1991] 2 FLR 559, CA.

Sutherland Shire Council v Heyman (1985) 157 CLR 424, Aust HC.

Van Oppen v Bedford Charity Trustees [1989] 3 All ER 389, [1990] 1 WLR 235, CA.

X (minors) v Bedfordshire CC, M (a minor) v Newham London BC, E (a minor) v Dorset CC[1995] 3 FCR 337, [1995] 2 AC 633, [1995] 3 All ER 353, [1995] 3 WLR 152, HL; affg[1994] 2 FCR 1313, [1995] 2 AC 633, [1994] 4 All ER 602, [1994] 2 WLR 554, CA; rvsg in part[1995] 1 FCR 1, [1995] 2 AC 633, [1994] 4 All ER 640, [1994] 3 WLR 853, CA.

Yuen Kun-yeu v A-G of Hong Kong [1988] AC 175, [1987] 2 All ER 705, [1987] 3 WLR 776, PC.

Appeal

The plaintiff appealed with leave from the decision of the Court of Appeal ([1997] 1 FCR 145) on 12 March 1997, dismissing his appeal from the decision of Judge Brandt on 30 April 1996 at Colchester County Court, whereby he allowed the appeal of the defendant council, from the decision of District Judge Skerratt on 4 March 1996 awarding the plaintiff damages for personal injuries against the council, and struck out the plaintiff’s claim. The facts are set out in the opinion of Lord Slynn.

Allan Levy QC and Elizabeth Gumbel (instructed by Thompson Smith & Puxon, Colchester) for the plaintiff.

Nigel Baker QC and Brendan Roche (instructed by Browne Jacobson, Nottingham) for the defendant.

Their Lordships took time for consideration.

17 June 1999. The following opinions were delivered.

LORD BROWNE-WILKINSON.

My Lords, when the plaintiff was ten months old, he was the subject of a care order in favour of the defendant, Enfield London Borough Council. He remained in the care of the defendant council until he was aged 17. In these proceedings the plaintiff alleges that the defendant council was in breach of a common law duty of care owed to him in consequence of which he suffered deep-seated psychiatric problems caused by the defendant’s negligence.

The full circumstances of this case (as alleged by the plaintiff in the statement of claim) are set out in the speech of my noble and learned friend Lord Slynn of Hadley. I gratefully adopt that statement but for my purposes it is sufficient to give a short summary of the plaintiff’s case. The statement of claim alleges that under the

Children Acts the defendant came under a series of statutory duties to exercise quasi-parental care in and about the upbringing of the plaintiff. Originally it was alleged that breach of such statutory duties in themselves gave rise to a cause of action for damages. But the plaintiff now accepts that he has no such cause of action. What he does allege is that the relationship between him and the defendant council arising by reason of the care order was such as to create a common law duty of care owed by the defendant to him. He alleges that, in breach of such duty of care, the defendant acting by its social workers and others negligently failed to safeguard the plaintiff’s welfare. It is alleged that the defendant negligently made two placements with foster parents, moved him six times to different residential homes between 1976 and 1988, failed to make arrangements for his adoption, failed to provide him with proper social workers, failed to provide appropriate psychiatric advice and failed to make proper arrangements to re-unite him with his mother.

The plaintiff then alleges that such negligent treatment caused him to leave the care of the local authority when he attained the age of 18 without family or attachments and suffering from a psychiatric illness leading to his having an alcohol problem and a propensity to harm himself. I do not understand the plaintiff to allege that any one of the alleged acts of negligence by itself caused the injuries alleged. What he says is that the combination of all or some of the alleged acts of negligence produced that result.

The defendant council applied to strike out the claim on the ground that it disclosed no cause of action. The district judge refused to strike out the action but his decision was reversed by Judge Brandt who struck out the claim. The Court of Appeal (Lord Woolf MR, Evans and Schiemann LJJ) ([1997] 3 FCR 145, [1998] QB 367) upheld that decision. Lord Woolf MR based himself, by analogy, on the principles laid down in X (minors) v...

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