D v East Berkshire Community NHS Trust and Another

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Phillips, MR
Judgment Date31 July 2003
Neutral Citation[2003] EWCA Civ 1151
Docket NumberCase Nos: B3/2002/2367 B3/2002/2764
Date31 July 2003

[2003] EWCA Civ 1151




His Honour Judge Hale


His Honour Judge Grenfell


The Hon Mr Justice Simon

Royal Courts of Justice


London, WC2A 2LL


Lord Phillips of Worth Matravers, Mr

Lady Justice Hale and

Lord Justice Latham

Case Nos: B3/2002/2367



(1) Jd, (2) Mak and Rk (3) Rk and Anor
(1) East Berkshire Community Health
(2) Dewsbury Health Care Nhs Trust and Kirklees Metropolitan Council
(3) Oldham Nhs Trust and Dr Blumenthal

Allan Levy QC and Scott Donovan (instructed by Carter Hodge) for the first Appellant JD

Allan Levy QC and David Gripton (instructed by Levi & Co) for the second Appellants RK and AK

Allan Levy QC and Mary Ruck (instructed by Pannone & Partners) for the third Appellants RK and Another

Robert Francis QC and Angus Moon (instructed by Hempsons) for all the Respondents except Kirklees Metropolitan Council

Edward Faulks QC and Alastair Hammerton (instructed by Hill Dickinson) for Kirklees Metropolitan Council

Lord Phillips, MR

This is the judgment of the Court.



These three appeals have been heard together because they have common features and raise common issues. Each involves accusations of abusing a child made against a parent by the professionals concerned for the welfare of that child. In each case the accusations proved to be unfounded. In each case a parent claims damages for psychiatric harm alleged to have been caused by the false accusations or their consequences. In one case the child also claims. In each case the primary case is advanced in negligence. In each case, preliminary issues have been tried, including whether any duty of care was owed to the claimant or claimants. In each case it has been common ground that the test to be applied is that identified by the House of Lords in Caparo Industries Plc v Dickman [1990] 2 AC 605. In each case the court of first instance has held that no duty was owed, because it was not 'fair just and reasonable' to impose such a duty, applying the principles laid down by the House of Lords in X v Bedfordshire County Council and M v Newham London Borough Council [1995] 2 AC 633 (' Bedfordshire'), so that each claim has been dismissed. The primary issue in each appeal is whether the decision in Bedfordshire is fatal to the claim. There are, however, a number of subsidiary issues.


In the first appeal (' East Berks') a mother claims in respect of acute anxiety and distress that she alleges she suffered as a result of being incorrectly accused of suffering from Munchausen syndrome by proxy. In her case she was not, in fact, separated from her child. In the second case ( 'Dewsbury') a father and his daughter claim for psychiatric injury and financial loss resulting from unfounded allegations that the father might have sexually abused his daughter, which led to the father being denied access to his daughter for a short period. In the third appeal, ( 'Oldham') a mother and father claim in respect of psychological distress suffered as a result of unfounded allegations of having inflicted injuries on their daughter, which led to the child being separated from her parents for nearly a year.

The Issues


Mr Allan Levy QC, who has appeared for all the appellants, has contended that the decision in each case violates Article 6 of the European Convention on Human Rights ('the Convention'). This is the first general issue that we shall consider.


Mr Levy contends that the law has developed since the decision in Bedfordshire and that we should hold, on the basis of recent authority, that it is 'fair, just and reasonable' to impose a duty of care on the defendants in the circumstances common to each appeal. Whether more recent authority has varied the principles laid down in Bedfordshire is the second general issue that we shall consider.


Mr Levy submits that there was, in each case, a violation of Article 8 of the Convention and that the first instance decisions violate Article 13. He urges that, in order to avoid these violations, each case should be permitted to go to trial and that the test of negligence that the Court should apply is one that provides a remedy for the breach of Article 8 that has occurred in each case. The effect of the impact of the Convention is the third general issue that we shall consider.


Mr Levy submits that, in each case, Bedfordshire can be distinguished on the facts. This issue we shall have to consider individually, having regard to the facts of each appeal.


In each action, one or more NHS Trusts have been sued as defendants. They have been represented by Mr Robert Francis QC. In Oldham Simon J. held that the requirement of 'proximity' laid down by Caparo was not satisfied. Any duty was owed to the child and there was no room for an additional duty owed to the parents. By a respondents' notice Mr Francis seeks a finding in the other two appeals that there was no proximity between the parent claimants and the NHS defendants. Whether there was a lack of such proximity is a second issue that we shall have to consider on the facts of each individual case.


In Dewsbury Judge Grenfell held that the second defendants, the council, were protected by witness immunity. Mr Levy challenges that finding. Mr Francis, for his part, seeks, by respondents' notice, a finding that all the NHS defendants were protected by witness immunity. Whether the defendants are protected by witness immunity is a third issue that we shall have to consider in each case.

The first general issue


In advancing his argument in relation to Article 6, Mr Levy explained that he was seeking to 'resurrect' Osman v United Kingdom [1999] 1 FLR 193. His argument based on Osman is, as we understand it, as follows. To exclude any duty of care on the part of those involved in making decisions for the protection of children against suspected child abuse is to grant them immunity against liability in negligence. To enable the defendants to invoke the protection of such immunity by way of preliminary issue is to deny the claimants the right to have their claims determined on the facts of the individual cases. This violates their right to a fair trial under Article 6. The court should not adopt such an approach.


It is convenient to consider these submissions in the context of the two Bedfordshire child abuse cases. At this stage we can touch lightly on the facts and the decisions in those cases. In the Bedfordshire case five children claimed against a local authority damages for breach of statutory duty and negligence in failing to exercise statutory powers and duties to protect them from parental abuse and neglect. In the Newham case a child and her mother claimed damages for breach of statutory duty and negligence against a local authority, an area health authority and a consultant psychiatrist employed by the latter. The alleged negligence included failure competently to investigate the identity of a man who had sexually abused the child, with the result that the child was unnecessarily removed from the mother and both suffered psychiatric injury. Both actions were struck out on the basis that they disclosed no reasonable cause of action, and appeals were dismissed.


The House of Lords held that both actions had properly been struck out. The relevant statutes imposed no duty in favour of the claimants. As for the claims in negligence, as a matter of public policy it was not just and reasonable to impose a common law duty of care, either to children or to their parents, on those entrusted with the difficult and delicate task of deciding whether action was necessary to protect children from suspected abuse.


The decisions in Bedfordshire were followed by the decision of the European Court of Human Rights in Osman. In that case also, a statement of claim had been struck out as disclosing no reasonable cause of action. In Osman the applicants complained that their rights under Article 6 of the Convention had been infringed. They had brought an action in the United Kingdom against the police alleging negligence in the prevention and pursuit of crime. The Court of Appeal struck out the proceedings on the ground that they disclosed no reasonable cause of action. This was on the basis that it was a clearly established principle of the law of negligence that the police owed no duty of care to individual citizens in relation to the vigour with which they carried out their duties of prevention and detection of crime -see Hill v Chief Constable of West Yorkshire [1989] AC 53.


The Strasbourg Court upheld the applicants' claim. The reasoning of the Court appears from paragraph 139 of its judgment:

"On that understanding the court considers that applicants must be taken to have a right, derived from the law of negligence, to seek an adjudication on the admissibility and merits of an arguable claim that they were in a relationship of proximity to the police, that the harm caused was foreseeable and that in the circumstances it was fair, just and reasonable not to apply the exclusionary rule outlined in the Hill case. In the view of the court the assertion of that right by the applicants is in itself sufficient to ensure the applicability of article 6(1) of the Convention."


This decision perplexed common law judges and jurists. In Barrett v Enfield Borough Council [2001] 2 AC 550 at pp.559–60 Lord Browne-Wilkinson explained the difficulty that he had in following the reasoning of the Court:

"Having so defined the ambit of article 6, the Strasbourg Court held that there was in the Osman case a breach of such right of access to the English court, such breach lying in the application of a blanket exclusionary rule which excludes all claims against the...

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