DFX (A Protected Party by her Litigation Friend The Official Solicitor) v Coventry City Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lambert,Mrs Justice Lambert DBE |
| Judgment Date | 24 May 2021 |
| Neutral Citation | [2021] EWHC 1382 (QB) |
| Date | 24 May 2021 |
| Docket Number | Case No: QB-2017-001237 |
| Court | Queen's Bench Division |
[2021] EWHC 1382 (QB)
Mrs Justice Lambert DBE
Case No: QB-2017-001237
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Lizanne Gumbel QC and Mr Justin Levinson (instructed by Irwin Mitchell LLP) for the Claimants
Mr Adam Weitzman QC and Ms Caroline Lody (instructed by DWF Law LLP) for the Defendant
Hearing dates: 23 to 27 November, 1 to 3 December, 8 to 9 December 2020 and 7 January 2021
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:
This is an acutely sensitive case involving information which is private to the claimants. For this reason, the Master made an order anonymising the claimants at an early stage of the litigation. There were no representations from the press to set aside or vary that order and, given my view that the balance lay heavily in favour of protecting the privacy of the claimants, I continued the anonymity order at the pre-trial review in October 2020 and made a further order under CPR 39.2(4) preventing the disclosure of the identities of the claimants. In this judgment therefore I refer to the claimants by their cyphers and, in order to protect their identity by association, I refer to members of their family by their relationship to the claimants and to three male visitors to the claimants' household by their initials. Consistent with the principles of open justice, the identities of the defendant's witnesses and the various professionals may be reported in the usual way.
The four claimants are siblings:
(a) the first claimant, DFX, is a girl born in March 1995. She is now aged 26 years. She suffers from a learning disability and brings this action by her litigation friend, the Official Solicitor;
(b) the second claimant, RFX, is a girl born in September 1996 and she is now aged 24 years;
(c) the third claimant, SFX, is a girl born in November 1999. She is now aged 21 years. She also suffers from a learning disability and brings this action by her litigation friend, the Official Solicitor;
(d) the fourth claimant, DGX, is a boy born in December 2001. He is now aged 19 years. He also suffers from a learning disability and brings this action by his adoptive father.
In addition to the claimants, the parents had five other children. The eldest was a boy, born in January 1993. There were four other girls, all younger than the claimants, born in March 2003, August 2006 and twin girls born in February 2009. Until 2010, the claimants lived with their parents and siblings in a four-bedroomed terrace house in a suburb of Coventry where the defendant was the local authority responsible for the provision of social services, including child welfare and child protection.
Between 1995 and 2010, the defendant's social services department (“the SSD”) were involved with the claimants and their family. The SSD responded to and, where necessary, investigated referrals and concerns; it supported the family generally by monitoring and through the provision of advice and direct work undertaken with the parents and the claimants; it assessed the risks to the claimants which were posed by family members, friends and acquaintances of the family. The SSD's involvement with the family was pursuant to the powers and duties vested in the defendant by the Children Act 1989 (“the 1989 Act”).
Save for a hiatus between June 2001 and February 2002, the SSD's engagement with the family was ongoing throughout the 15 years from 1995 to 2010. Between 1996 and 1999, the first and second claimants were on the child protection register (“the register”) and, between March and September 2002, all of the claimants were on the register. In April 2009, the defendant issued care proceedings in the Coventry County Court. Initially, the removal of the children was sought under an emergency protection order. This was not successful. Following a series of interlocutory hearings and adjournments to obtain relevant evidence, HHJ Cleary made an interim order in March 2010 removing all of the children, save for the eldest (a boy, by then aged 17), into foster care. In June 2010, full care orders were made and care plans removing the eight children from the family were approved by the court.
The claimants' case is that they each suffered abuse, including sexual abuse, and neglect whilst in the care of their parents before their removal from the family in 2010. In the case of the first, third and fourth claimants, it is alleged that the sexual abuse was perpetrated by the father; in respect of the second claimant, by the father and a family friend.
The claimants allege that their parents were unfit to be parents and that this should have been obvious to the social workers involved with the family. Between 1992 and 1997, the father was convicted of four offences of indecency towards teenage girls. He had learning difficulties and had limited insight into his offending. The mother also had learning difficulties and, it is alleged, she demonstrated repeatedly that she was either unable or disinclined to protect the claimants from their father or from predatory men who visited the home. The risks to the children were increased by the presence in the home of the maternal grandmother who lived with the family until March 2004. She also had learning difficulties and was associated with three “risky adult” men who visited the home. The home was often squalid and the children dirty and unkempt.
The action is brought in negligence and under the Human Rights Act 1998 (“the 1998 Act”) for breach of Articles 3 and 8 of the European Convention on Human Rights. The argument on Article 8 was withdrawn by the claimants during the course of the trial.
The essential elements of the pleaded claim in negligence are that:
a) the defendant is vicariously liable for the acts and omissions of the social workers, family support workers and other employees engaged by the defendant in the SSD who were involved in child protection and child welfare work;
b) the social workers involved in the child protection and child welfare work undertaken in respect of the claimants owed the claimants a private law duty of care to exercise reasonable skill and care in the discharge of this work;
c) the social workers failed to exercise reasonable skill and care in their involvement with the claimants;
d) had the social workers, for whom the defendant is liable, discharged their child welfare and protection function to a reasonable standard then care proceedings would and should have been issued by mid-2002, or alternatively by no later than the end of 2003/early 2004;
e) as a matter of fact, had such proceedings been issued then, even if not on an interim basis, by the date of any final hearing by the court, orders removing the claimants from the care of their parents would have been made;
f) in these circumstances the abuse suffered by each of the claimants would have been avoided or substantially alleviated.
So far as the claim in negligence is concerned, there are two areas of common ground between the parties. First, there is no issue that the defendant is liable for any unlawful acts and omissions of those working in the SSD. Second, quantum, subject to liability has been agreed. The defendant accepts that the second claimant was sexually abused by two men: by AD in either 2001 or 2002 and by her father on two occasions between late 2008 and mid-2010. AD admitted the offence and was cautioned. In 2014, the father also admitted his offences and was sentenced to a custodial term. The defendant does not accept that the other claimants were the subject of sexual or other assaults either by the father or anyone else. However, I am not invited to make findings of fact as to whether and if so when/how and by whom the claimants were assaulted. For present purposes the parties have agreed a sliding scale of awards which will then be applied by the parties to any findings of liability which I may make. This is obviously sensible as it avoided the claimants giving oral evidence which, I anticipate, would have been extraordinarily difficult for them. I pause only to note that the agreed award range is £25,000 to £125,000. These figures are very substantially lower than the initial pleaded claims (which totalled in excess of £40 million) and which included losses, where appropriate, arising from the claimants' learning disabilities. It is now accepted, following investigation, that those disabilities are genetic rather than acquired, hence the reduction in the value of the claims. Save for these two issues however, each other element of the claim is disputed.
In their claim under the 1998 Act for breach of Article 3 rights the claimants assert that they were exposed to a real and immediate risk of sexual harm of which the defendant was or ought to have been aware, together with a failure by the defendant to take reasonable available measures which could have had a real prospect of altering the outcome or mitigating the harm. There is considerable overlap between this claim and the claim in negligence in that the operational failings alleged against the defendant mirror...
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