D v East Berkshire Community Health NHS Trust; K and another v Dewsbury Healthcare NHS Trust and another; RK and another v Oldham NHS Trust and another
| Jurisdiction | England & Wales |
| Judgment Date | 2003 |
| Date | 2003 |
| Court | Court of Appeal (Civil Division) |
Child abuse – Duty of care – Allegations of child abuse being proved unfounded – Parents claiming damages from NHS trusts for psychiatric harm caused by false allegations – Whether duty of care owed to child and parents – Human Rights Act 1998, Sch 1, Pt 1, art 6.
The three appeals each involved accusations of child abuse made against a parent by the professionals concerned for the welfare of that child. In each case the accusations proved to be unfounded and a parent claimed damages for psychiatric harm alleged to have been caused by the false accusations or their consequences. In one case the child also claimed. The primary case advanced in each appeal was negligence. In each case, preliminary issues had been tried, including whether any duty of care was owed to the claimant or claimants. It was common ground that the test to be applied in each case was whether it was ‘fair, just and reasonable’ to impose such a duty. Applying the principles established at common law that 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, each claim was dismissed on the basis that it was not ‘fair just and reasonable’ to impose such a duty. The claimants appealed, and the issues on the appeal were: (i) whether the above principles laid down in common law in relation to suspected child abuse cases had been affected by subsequent authorities or by the Human Rights Act 1998; and (ii) whether the decision in each case violated their right to a fair trial under art 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in the 1998 Act), since to exclude any duty of care on the part of those involved in making decisions for the protection of children against suspected child abuse was to grant them immunity against liability in
negligence, thus denying the claimants the right to have their claims determined on the facts of the individual cases.
Held – (1) Where consideration was being given to whether the suspicion of child abuse justified taking proceedings to remove a child from the parents, while a duty of care could be owed to the child, no common law duty of care was owed to the parents. In the context of suspected child abuse, breach of a duty of care in negligence would also frequently amount to a violation of art 3 or art 8 of the Convention. It followed that it would no longer be legitimate to rule that, as a matter of law, no common law duty of care was owed to a child in relation to the investigation of suspected child abuse and the initiation and pursuit of care proceedings. Although it was possible that there would be factual situations where it was not ‘fair, just and reasonable’ to impose a duty of care, each case would fall to be determined on its own facts. However, the position in relation to the parent was different. Where the issue was whether a child should be removed from its parent, the best interests of the child might lead to a positive or negative answer. However, it would always be in the parent’s interests that the child should not be removed, therefore the child’s interests might conflict with the parent’s. There were therefore cogent reasons of public policy for concluding that, where child care decisions were being taken, no common law duty of care should be owed to the parents.
(2) The procedure of determining by way of preliminary issues, whether the test of ‘fair, just and reasonable’ precluded the existence of a duty of care, even if all the facts alleged by the claimants were established, involved no violation of art 6; Osman v UK [1999] 5 BHRC 293, Z v UK [2001] 10 BHRC 384 considered.
Cases referred to in judgmentsA-G v Prince and Gardner [1998] 1 NZLR 262, NZ CA.
B v A-G of New Zealand[2003] UKPC 61, [2003] All ER (D) 281 (Jul).
Barrett v Enfield London BC[1999] 2 FCR 434, [1999] 3 All ER 193, [2001] 2 AC 550, [1999] 3 WLR 79, [1999] 2 FLR 426, HL.
Barrett v Enfield London BC [1999] 3 All ER 193, [2001] 2 AC 550, [1999] 3 WLR 79, HL.
Bronda v Italy [1998] ECHR 22430/93, [1998] EHRLR 756, ECt HR.
Caparo Industries plc v Dickman [1990] 1 All ER 568, [1990] 2 AC 605, [1990] 2 WLR 358, HL.
Darker (suing as personal representative of Docker, deceased) v Chief Constable of the West Midlands Police [2000] 4 All ER 193, [2001] 1 AC 435, [2000] 3 WLR 747, HL.
E v UK[2002] 3 FCR 700, [2003] 1 FLR 348, ECt HR.
Elsholz v Germany[2000] 3 FCR 385, ECt HR.
Fayed v UK (1994) 18 EHRR 393, [1994] ECHR 17101/90, ECt HR.
Fogarty v UK (2001) 12 BHRC 132, ECt HR.
Hill v Chief Constable of West Yorkshire [1988] 2 All ER 238, [1989] AC 53, [1988] 2 WLR 1049, HL.
Hokkanen v Finland[1995] 2 FCR 320, [1996] 1 FLR 289, ECt HR.
Johansen v Norway (1996) 23 EHRR 33, [1996] EHRC 17383/90, ECt HR.
Kent v Griffiths [2000] 2 All ER 474, [2001] 1 QB 36, [2000] 2 WLR 1158, CA.
Klass v Germany (1978) 2 EHRR 214, [1978] EHRC 5021/71, ECt HR.
Matthews v Ministry of Defence[2003] UKHL 4, [2003] 1 All ER 689, [2003] 1 AC 1163, [2003] 2 WLR 435.
McMichael v UK (1995) 20 EHRR 205, [1995] EHRC 16424/90, ECt HR.
Osman v UK (1998) 5 BHRC 293, [1999] 1 FLR 193, ECt HR.
P, C and S v UK[2002] 3 FCR 1, ECt HR.
Phelps v London Borough of Hillingdon, Anderton v Clwyd CC, Jarvis v Hampshire CC[2000] 3 FCR 102, [2000] 4 All ER 504, [2001] 2 AC 619, [2000] 3 WLR 776, HL.
Powell v Boladz (1997) 39 BMLR 35, CA.
S v Gloucestershire CC, L v Tower Hamlets London BC[2000] 2 FCR 345, [2000] 3 All ER 346, [2001] Fam 313, [2001] 2 WLR 909, [2000] 1 FLR 825, CA.
TP and KM v UK[2001] 2 FCR 289, ECt HR.
Venema v Netherlands[2003] 1 FCR 153, [2003] 1 FLR 552, ECt HR.
W v UK (1987) 10 EHRR 29, [1987] EHRC 9749/82, ECt HR.
X (minors) v Bedfordshire CC, M (a minor) v Newham London BC, E (a minor) v Dorest CC[1995] 3 FCR 337, [1995] 3 All ER 353, [1995] 2 AC 633, [1995] 3 WLR 152, [1995] 2 FLR 276, HL; affg[1994] 2 FCR 1313, [1994] 4 All ER 602, [1995] 2 AC 633, [1994] 2 WLR 554, [1994] 1 FLR 431, CA.
Yousef v Netherlands[2002] 3 FCR 577, [2003] 1 FLR 210, ECt HR.
Z v UK[2001] 2 FCR 246, ECt HR.
AppealsIn the first appeal (East Berks) a mother claimed in respect of acute anxiety and distress that she alleged she suffered as a result of being incorrectly accused of suffering from Munchausen syndrome by proxy. In the second case (Dewsbury) a father and his daughter claimed 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 claimed 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 facts are set out in the judgment of the court.
Allan Levy QC and Scott Donovan for the first appellant.
Allan Levy QC and David Gripton for the second appellants.
Allan Levy QC and Mary Ruck for the third appellants.
Robert Francis QC and Angus Moon for all the respondents except Kirklees Metropolitan Council.
Edward Faulks QC and Alastair Hammerton for Kirklees Metropolitan Council.
Cur adv vult
31 July 2003. The following judgment of the court was delivered.
LORD PHILLIPS OF WORTH MATRAVERS MR.This is the judgment of the court.
INTRODUCTION[1] 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] 1 All ER 568, [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 (minors) v Bedfordshire CC, M (a minor) v Newham London BC, E (a minor) v Dorest CC[1995] 3 FCR 337, [1995] 3 All ER 353 (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.
[2] 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[3] Mr Allan Levy QC, who has appeared for all the appellants, has contended that the decision in each case violates art 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998) (the...
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