Bedford v Bedfordshire County Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jay |
| Judgment Date | 21 June 2013 |
| Neutral Citation | [2013] EWHC 1717 (QB) |
| Court | Queen's Bench Division |
| Date | 21 June 2013 |
| Docket Number | Case No: TLQ/12/1005 |
[2013] EWHC 1717 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Jay
Case No: TLQ/12/1005
Augustus Ullstein QC (instructed by Irwin Mitchell) for the Claimant
Edward Bishop QC (instructed by Weightmans) for the Defendant
Hearing dates: 6th, 7th, 10th, 11th & 12th June 2013
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
By his Part 7 Claim Form issued on 28 th October 2011 under section 7 of the Human Rights Act 1998 ("the HRA"), the Claimant Mr Bradley Bedford (d.o.b. 2 nd November 1990) claims that the Defendant local authority has acted as a public authority contrary to section 6 of the HRA in breach of his rights under Article 8 of the European Convention on Human Rights ("the Convention"). Given that the Claimant's cause of action arose on 29 th May 2004 in circumstances which I am about to explain, this claim is brought outside the one year time limit prescribed by section 7(5)(a) of the HRA, and an extension of time is therefore required (for the Claimant's purposes) under section 7(5)(b).
The Defendant local authority had owed responsibilities for a considerable number of years to a boy named AH, d.o.b. 12 th October 1988 (at the start of the trial, I ordered that his identity should be hidden in order to protect his Article 8 rights) as a 'looked after child' under section 20 of the Children Act 1989. At the material time AH was physically accommodated at the Cheltenham Children's home in Torbay ("the Cheltenham") pursuant to contractual arrangements made between its operators and managers, SICS Ltd, and the local authority. The Cheltenham is not a party to these proceedings and is not a public authority for the purposes of section 6 of the HRA.
At this introductory stage, I set out in summary form the horrific events of 29 th May 2004. I derive this summary from the Claimant's Skeleton Argument and the section 9 statements which are in the trial bundles.
At some stage during the early afternoon of 29 th May 2004 it was decided by staff at the Cheltenham that AH and one other could be escorted on a supervised visit to the beach at Torbay. DCF, another child at the home (whom I anonymise for identical reasons) went with the party, but given that he was 'on mobility' he did not require to be escorted. Later on, the group was met by another boy, DS, who was resident at a different home in the area. At about 4.30pm DCF and DS went to the lavatory but did not come out. A member of staff, who was looking after AH at that juncture, went to investigate, but to no avail. By the time he had returned, AH too had disappeared.
The Cheltenham notified the police of AH's abscondence at about 5.30pm, and members of staff instituted searches of their own in the local area. At or shortly before 10pm, the boys were seen by an off-duty member of staff who happened to be working at the time as a doorman at a local nightclub [2/523–526]. They were clearly under the influence of drink and cannabis. This encounter did not cause the boys to return to their respective homes. By then, the section 9 evidence demonstrates that at least one serious assault had taken place.
The material events occurred shortly before midnight on 29 th May. The three boys encountered the Claimant, and his 13 year old girlfriend, near Corbyn Head. They were taken to the beach and then the Claimant was viciously attacked by blows from the feet to his head, and his friend was repeatedly raped. The Claimant was left unconscious on the ground, and the boys ran off. They were arrested by the police shortly after 2am the following morning.
In April 2005 AH and DCF were convicted at the Exeter Crown Court of the offences of causing grievous bodily harm with intent, and rape. Each was sentenced to life imprisonment with minimum terms of 4 years 3 months.
The tragic consequences for the Claimant are that he sustained a serious brain injury in the assault with attendant intellectual deficits and personality change. I have read his mother's witness statement on these issues as well as the detailed medical evidence which is in the bundles. Given the nature and extent of his disabilities, the Claimant is a protected person and brings this action by his mother and litigation friend, Mrs Susan Picton. The Schedule of Loss advances a seven figure claim for damages apart from any claim for general damages for pain, suffering and loss of amenity, or its Article 8 analogue. On the other hand, Mr Bedford's claim has been accepted in principle by the CICA, although that body is obliged to apply a ceiling of £500,000 to any award it makes.
The trial before me has been rightly confined to the issues of liability and causation. Any issue of remedy, including that pertaining to a possible award of damages under section 8 of the HRA, will arise for subsequent adjudication if appropriate. The Defendant's Skeleton Argument urged me, in the exercise of my case management powers, to try limitation as a preliminary issue. At the morning of the trial, Mr Bishop Q.C. reviewed the position and invited me to follow a slightly different course, in line with his interpretation of paragraphs 25–26 of B v Nugent Care Society (2010) 1 W.L.R. 516, namely to hear the evidence pertaining to all relevant issues in the ordinary way, but to rule on the limitation point first and before, if so advised, setting out my conclusions on the substantive issues. He pointed out, and I well understand, that matters of prejudice to the Defendant not readily apparent to the Court from a perusal of the documents alone might well emerge during the hearing of the oral evidence.
I was entirely content to adopt Mr Bishop's suggested course, not least because it would have been far from satisfactory for me to have ruled on limitation as a preliminary issue at this extremely late stage. Having said that, if I were to come to the conclusion that the Claimant has failed to demonstrate grounds for an extension of time under section 7(5)(b), I would be duty-bound so to find.
The Court has been treated to a mass of evidence, both oral and documentary, to copious citation from authority, and to detailed and extremely helpful submissions on both the facts and the law. I consider that it is not necessary for me to set out every piece of evidence, every authority cited, and every submission made. I intend, as best I can, to encapsulate my findings and analysis in a way which strikes at the heart of the matter and achieves justice. For ease of reference, I intend to divide this judgment into the following chapters, viz.:
• the Law governing the substantive issues;
• the key issues arising;
• Essential factual narrative;
• Limitation: legal framework and findings;
• Findings on the substantive issues.
The Law governing the substantive issues
This action is brought solely under the HRA; there is no claim at common law. Both Mr Ullstein Q.C. and his predecessor counsel have taken the view that no duty of care is owed by the Defendant local authority in these circumstances. No doubt out of an abundance of caution, I asked Mr Ullstein to explain his reasoning: he did not take up my offer, and in those circumstances I take the matter no further. I should not be interpreted as disagreeing with him. I should add that in any event the Claimant would have been in no better position at common law, even had a duty of care been owed, because he would have had to demonstrate that the Defendant took decisions of a policy nature which were wholly unreasonable. The outcome would have been the same, although the route to it would have deviated slightly.
It is necessary to set out the essence of the 'looked after child' regime. It is to be found in the Children Act 1989. At all material times AH was a child to whom section 20(4) applied: in other words, the local authority was empowered to provide accommodation for him, even though his mother was technically able to do so, because they reasonably considered that to do so would safeguard or promote his welfare. Ordinarily, this power would cease to be exercised at the child's 16 th birthday. Once the power under section 20(4) is triggered (or the duty under section 20(1), which is not applicable to the present case), a local authority provides accommodation for a looked after child by 'maintaining him in an appropriate children's home': see section 23(2)(aa). Under section 23(10), an 'appropriate children's home" means a children's home in respect of which a person is registered under Part II of the Care Standards Act 2000'.
The relevant regime is described in more detail by Rix LJ in R(oao R.O.) v East Riding of Yorkshire Council and another (2011) EWCA Civ 196, paragraphs 68–81. I refer to this without setting any the relevant sections of the judgment.
The section 20 regime is different from the care and supervision regime laid down by section 31 of the Children Act 1989 (although the Defendant's senior witness, Mr Buddery, agreed in cross examination that in practice there would have been no material difference), and clearly different from the secure accommodation regime under section 25. However, it was common ground before me that the draconian provisions of section 25 would not have been appropriately applied to AH; or, at the very least, that the Defendant's decision (in effect) not to apply them cannot be challenged. It is important to recognise that the section 20 regime depends on parental consent and is non-coercive. Although a home may well choose to exercise powers at common law...
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