F v Metropolitan Borough of Wirral DC and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PURCHAS,LORD JUSTICE RALPH GIBSON,LORD JUSTICE STUART-SMITH |
| Judgment Date | 18 May 1990 |
| Judgment citation (vLex) | [1990] EWCA Civ J0518-8 |
| Docket Number | 90/0540 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 May 1990 |
[1990] EWCA Civ J0518-8
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
LIVERPOOL DISTRICT REGISTRY
QUEEN'S BENCH DIVISION
HOLLINGS J.
Royal Courts of Justice
Lord Justice Purchas
Lord Justice Ralph Gibson
and
Lord Justice Stuart-Smith
90/0540
and
MR. G. WRIGHT Q.C., MR. R. ATHERTON and MISS J. DALEY (instructed by Hyde Mahon Bridges, London agents for Messrs Mace & Jones, Liverpool) appeared on behalf of the Appellant (Plaintiff).
MR. D. CONNELL Q.C. and MR. M. BENNETT (instructed by Messrs Davies Arnold Cooper, London Agents for Messrs Davies Campbell) appeared on behalf of the First Respondents (First Defendants).
MR. D. CLARKE Q.C. and MR. R. DUGGAN (instructed by the City Solicitor) appeared on behalf of the Second Respondents (Second Defendants).
The issues
This appeal raises important issues concerning the rights said to belong to parents to enjoy consortium, in the widest sense, with their children, including the satisfaction inherent in rearing and caring for them, recognised by the Convention of Human Rights and Fundamental Freedoms. For convenience I shall hereafter refer to such rights compendiously as "parental rights". It also raises the question of the possible recognition by the common law of such rights and the remedies, if any, available under that law and the powers granted to and the duties imposed upon local authorities under "The Statutory Code" (see A. v. Liverpool City Council [1982] A.C. 363) in relation to the children and adults involved.
The appellant mother claims damages against the Wirral Borough Council ("Wirral") as the authority with whom on 27th January 1978 she placed two young daughters in voluntary care under section 2 of the Children Act 1948 ("the 1948 Act") and against Liverpool City Council ("Liverpool") as the local authority through whose agency Wirral placed the children with foster parents. Since May 1983 when in wardship proceedings brought by her she withdrew her claim for care and control of the two children, she has acknowledged that as a result of the bonding between the two children and the foster parents with whom they were placed there is no long-term prospect of rehabilitation between her and the two children so as to enable their return to her full-time care and control. Hence she now claims damages for the loss of her parental rights caused by the acts and/or omissions of Wirral and Liverpool which she asserts, through her counsel Mr Gerard Wright Q.C, flow from a separate cognate tort, namely interference with her parental rights, alternatively she claims damages for negligence and breach of duty by each of the two authorities in the discharge of their functions under the statutory code.
The mother's writ was issued solely against Wirral and was dated 3rd June 1985. Wirral's defence dated 31st July 1985 referred to the placement of the children with Mr. and Mrs. Daley through the agency of Liverpool. Paragraph 17 of Wirral's defence pleaded the Limitation Act 1980. By her reply which was served on 24th February 1986 the mother asserted that her claim was not statute barred:—
"The plaintiff did not discover and could not with reasonable diligence have discovered the matters alleged in the statement of claim until 26th May 1983".
A summons in wardship had been issued by the mother on 12th March 1982. There had been interim orders on 27th April 1982 (Ewbank J.) and 5th October 1982 (Hollings J.). The substantive hearing before Butler-Sloss J. (as she then was) took place in May 1983.
By an amendment to the writ dated 25th March 1987 Liverpool were added as second defendants. The amended statement of claim was served on 8th June 1987. For the purpose of the Limitation Act 1980 this is deemed to be a new action started on 3rd June 1985 (section 35(1)(b)). Besides adding Liverpool as defendants, this pleading contained some substantial amendments in the allegations made against Wirral, further and better particulars of which were served on 3rd November 1987. The claims in the amended statement of claim were limited to damages for negligence and/or breaches of duty by the servants or agents of the two authorities.
By their amended defence served on 17th July 1987 Wirral asserted that they (not Liverpool) were the local authority responsible for the children. They further admitted, for the purposes of the action only, that Liverpool were acting at all material times as their agents. Liverpool served their defence on 6th August 1987: inter alia they pleaded that the mother's claim was barred by the Limitation Act 1980.
By summonses dated 4th and 17th days of February 1988 respectively, both Wirral and Liverpool applied to strike out the amended writ and statement of claim under R.S.C. Order 18, rule 19(1)(a) on the grounds that it disclosed no reasonable cause of action or, alternatively, under Order 18, rule 19(1)(b) on the basis that the claim was vexatious and an abuse of the process of the court as being obviously barred by the Limitation Act. The court has been prepared to strike out under R.S.C. Order 18, rule 19(1)(b) on the obvious prospect of the claim failing under the statute rather than to allow the matter to proceed so that the defendants could plead and rely upon their defence of limitation (see Ronex Properties Ltd. v. John Lainq Construction [1983] 1 Q.B.398). Wirral also by a summons dated 4th February 1988 sought in the alternative an order for limitation to be tried as a preliminary issue.
The procedural steps which brought the matter before Hollings J., therefore, excluded any consideration of the truth of the allegations made by the mother in her statement of claim falling short of demonstrable untruth. Hollings J. rightly assumed that the facts pleaded in the statement of claim must, for the purposes of the application to strike out, be assumed to be correct and that so far as the application under 1(a) was concerned the facts pleaded in the defence were not relevant. It is generally accepted, however, that in the application under 1(b) it is open to the court to look at the surrounding circumstances under which the action has been brought and the pleadings drawn. I understand, of course, the reasons why both Wirral and Liverpool should wish to cut down this action before it reached trial but this step has its own drawbacks particularly in the form of the assumption as true of probably unjustifable allegations of failure to discharge their duties on the part of the social workers acting for the two authorities.
On the third day of the hearing before Hollings J., on an application by Mr. Wright, the judge gave leave for the statement of claim to be re-amended by adding a fresh cause of action albeit based upon the facts and matters already pleaded. The re-amendment alleged against both Wirral and Liverpool that from and after 23rd March 1978 they "unlawfully interfered with the plaintiff's rights and privileges as a parent and hindered her in the enjoyment and exercise of those rights and privileges". No particulars were pleaded, but the re-amendment as drafted opened with the words "In the premises" which presumably introduced a reference to all the facts previously pleaded. The judge was, to say the least, generous to permit a new cause of action to be pleaded in such general and ill-defined terms at such a late stage. The date from which the tort was alleged to have occurred was the date upon which the two children were placed by Wirral through the agency of Liverpool with foster parents.
To complete the dismal record of the plaintiff's pleadings, an application was made during the course of Mr. Wright's closing address to the judge to re-amend the reply by adding yet another allegation against both Wirral and Liverpool, namely that each of them had deliberately concealed from the plaintiff her cause of action. Whether the re-amendment was concerned with the cause of action in negligence and breach of duty only or extended to the cause of action added by the re-amendment of the statement of claim is not clear. This was clearly a last minute tactical manoeuvre to promote the neutral terms of the reply already served into a means of avoiding the effect of the Limitation Act. The judge gave no reasons for rejecting the application in his judgment, but we were told that she indicated that his reasons for refusing the application were that it was made far too late:—
"The application to re-amend the reply is far too late and is not justified in the light of the existing pleadings. The matter must proceed without the re-amendment".
The history
The history, as derived from the pleadings, may be summarised as follows. The two children, "L.D." who was born on 7th March 1975 and "G" who was born on 19th May 1976 were both born with a metabolic disease known as phenylketonuria. This disease calls for skilled dietary management. After the birth of the second child the mother suffered from depression and the view was taken by those responsible in the Social Services Department of Wirral that the mother particularly and the parents in general would not be capable of providing proper care for the two children. In conversations with the mother it was made clear by those representing Wirral that if the mother did not agree to place the two children in voluntary care they would take steps to obtain a care order. In these circumstances the mother agreed. The children were received into care under the 1948 Act. At this time it was clearly...
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