D v Bury Metropolitan Borough Council; H v Same

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Wall,Lord Justice Laws,Lord Justice Mummery
Judgment Date17 January 2006
Neutral Citation[2006] EWCA Civ 1
Date17 January 2006
Docket NumberCase No: B3/2003/2115/2114

[2006] EWCA Civ 1


Lord Justice Mummery

Lord Justice Laws and

Lord Justice Wall

Case No: B3/2003/2115/2114

Oh (A Child: By Ad His Litigation Friend)
Bury Metropolitan Borough Council

Ben Hytner QC (instructed by Aubrey Isaacson—Solicitors) for the Appellants

Geoffrey Tattersall QC (instructed by Forbes—Solicitors) for the Respondent

Lord Justice Wall

Introduction: the appeals


These two appeals, which we heard together on 3 and 4 November 2005, arise from different aspects of the same set of facts. The two appellants, whom I will identify as "Mrs. AD" and "OH" respectively, are mother and son. Each was a claimant in separate proceedings heard by HH Judge Knopf in the Oldham County Court. OH was born on 8 August 1996, and brought proceedings by his mother as his litigation friend. In each case, the defendant to the proceedings was the Bury Metropolitan Borough Council (the local authority) .


In each case, the appellant claimed damages arising out of alleged negligence by the local authority in the context of care proceedings taken by the local authority under Part IV of the Children Act 1989 (CA 1989) in relation to OH on the mistaken premise that he had suffered non-accidental injury caused by Mrs AD. Those proceedings resulted in the enforced separation of mother and child for a period of some four months, as a result of which, it was alleged, each had suffered justiciable damage.


Neither claim succeeded. In Mrs. AD's case the judge gave a reserved judgment on 9 September 2003. He held, on a preliminary issue, that the local authority did not owe Mrs. AD a duty of care in tort, and dismissed her claim on that basis. However, he gave her permission to appeal.


In OH's case, the local authority acknowledged that it owed him a duty of care. It argued, however, that OH could not be shown to have suffered any damage as a result of any negligence on its part (which was not admitted) ; alternatively, that any injury to his health which OH had been caused was transient, and did not sound in damages. In an extempore judgment given on 11 September 2003 after hearing evidence, the judge dismissed OH's claim. He refused permission to appeal, which was granted on the papers by Hale LJ (as she then was) on 18 December 2003. She directed that the appeal should be listed with Mrs. AD's appeal, but that both appeals should be stayed until the outcome of the petition to the House of Lords in D v East Berkshire Community Health NHS Trust and others (hereinafter East Berkshire) [2005] UKHL 23, judgment in which was given by the House of Lords on 21 April 2005, and is reported at [2005] 2 AC 373.

The facts with particular reference to Mrs. AD's claim


In early January 1997, when he was about 5 months old, OH sustained four rib fractures whilst in the care of his parents. These injuries led the local authority to suspect non-accidental injury to OH, and to place his name on its Child Protection Register on 30 January 1997. Care proceedings followed on 1 May 1997.


On 7 May 1997, the Bury Family Proceedings Court made an interim care order under CA 1989 section 38, and directed an assessment of OH pursuant to section 38(6) , as a consequence of which, OH and his parents resided for a period of some 12 weeks at a family resource centre in Bristol. The intention was that the centre should carry out a full residential risk assessment in relation to OH and his parents. Mrs. AD's case was that the local authority failed to ensure that a risk assessment was undertaken, with the result that on 12 August 1997, OH was placed with foster parents, and separated from his mother for the first time.


As a matter of fact, OH's placement in foster care on 12 August 1997 followed a four day contested hearing before HH Judge Urquhart sitting in the Salford County Court, at the conclusion of which the judge declined to return OH to Mrs. AD's care, and renewed the interim care order in accordance with the local authority's interim care plan. We were not shown a copy of Judge Urquhart's judgment.


On 6 December 1997, the local authority received advice from the National Society for the Prevention of Cruelty to Children (NSPCC) that as a result of a risk assessment it had carried out, OH should be speedily rehabilitated with his parents. OH returned to his parents' care on 8 December 1997, although the care proceedings themselves were not discontinued until July 1998.


Although OH's rib fractures had been initially diagnosed as resulting from inflicted, non-accidental injuries, the local authority accepted before Judge Knopf that OH suffered from a rare condition known as osteogenesis imperfecta (OI) , or brittle bone disease. The rib fractures, accordingly, had an innocent explanation and were not the result of non-accidental injury.


Mrs. AD asserted that, as a result of OH being wrongly taken into care and separated from his parents, she had suffered psychological shock and upset. Her relationship with OH's father had ended. The allegation that she had harmed OH had resulted in her becoming depressed. She re-lived the experience regularly and had been referred for psychological counselling.

The effect of the East Berkshire decision


East Berkshire consisted of three conjoined appeals. In each case, the parents of young children had brought actions for negligence against health care authorities and, in one case a local authority, claiming damages for alleged psychiatric harm caused as a result of unfounded allegations made by healthcare and child care professionals that the parents had abused their children. In each case the judge had determined as a preliminary issue that no duty of care in tort was owed to the parents by any of the defendants on the ground that it was not fair, just and reasonable to impose such a duty. Each of the three actions was, accordingly, dismissed and in each case, this court (Lord Phillips of Worth Maltravers MR, Hale and Latham LJJ) [2004] QB 558, affirmed the judge's ruling.


By a majority (Lord Bingham of Cornhill dissenting) the House of Lords dismissed the parents' appeals. The majority view, in summary, was that, given the seriousness of child abuse as a social problem, healthcare and other child care professionals should not be subject to conflicting duties when deciding whether a child might have been abused and what further steps should be taken to protect the child. The potential disruption to the suspected parent's family life did not justify according to that parent a higher level of protection than that afforded to other suspects of crime. Whilst investigations should be conducted in good faith, it was not fair, just and reasonable that the common law duty of care claimed by the parents should be imposed.


Perhaps the nearest case on the facts to an instant case is that identified by Lord Nicholls of Birkenhead as "the Oldham case", which he summarises in the following terms ( [2005] 2 AC 373 at 402) :-

"66. The claimants in the Oldham case are RK and his wife AK. They are the parents of a girl M born in July 1998. On 26 September 1998, when she was two months old and in the care of her grandmother, M started to scream when her grandmother lifted her from a settee. Her parents and grandmother took her to the Royal Oldham Hospital. On admission the medical staff failed to take an accurate history from them and the grandmother. Dr Blumenthal, a consultant paediatrician, diagnosed the baby as having an "inflicted injury", a spiral fracture of the femur. The police and social services were informed. Dr Blumenthal did not investigate further the possibility of a diagnosis of osteogenesis imperfecta ("brittle bones") .

67. Oldham Metropolitan Borough Council applied for an interim care order. The order was made on 16 October 1998. On 23 October, M was discharged from hospital into the care of an aunt, with supervised access for the parents. At a hearing on 23 December the court decided M's injuries were non-accidental and care was given to the aunt. In March 1999 M sustained further fractures. More tests were carried out, and the revised medical opinion was that the history and injuries were consistent with brittle bone disease. On 17 June 1999, nearly nine months after being admitted to hospital, M was returned to the care of her parents. It is now accepted that the initial diagnosis of non-accidental injury was wrong.

68. Thus in this case the mother was separated from her young baby for a period of eight months, being permitted only supervised access.

69. The parents claim damages in negligence from Oldham NHS Trust and Dr Blumenthal for psychiatric injury resulting from their separation from M. On the hearing of preliminary issues Simon J [2003] Lloyd's Rep Med 1 held that neither defendant owed a duty of care to the parents. The daughter M was herself a claimant in the proceedings, but Simon J held that the evidence produced for the preliminary issues disclosed no injury for which the law provided a remedy: M had suffered no physical harm or recognisable psychiatric disorder. She did not appeal against that part of the judge's order."


14. For present purposes, two extracts (one short and one rather longer) from one of the speeches given on behalf of the majority will suffice. At [2005] 2 AC 400, Lord Nicholls of Birkenhead identified the issue in the first paragraph of his speech : -

"52. My Lords, it must be every parent's nightmare to be suspected of deliberately...

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