Gogay v Hertfordshire CC

JurisdictionEngland & Wales
Judgment Date26 July 2000
Judgment citation (vLex)[2000] EWCA Civ J0726-8
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: CCRTF/1999/0824/B2
Gogay
Respondent
Hertfordshire County Council
Appellant

[2000] EWCA Civ J0726-8

Before:

Lord Justice Peter Gibson

Lord Justice May and

Lady Justice Hale

Case No: CCRTF/1999/0824/B2

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM

CAMBRIDGESHIRE COUNTY COURT

His Honour Judge O'Brien

Royal Courts of Justice

Strand,

London, WC2A 2LL

Mr. Paul Hollow (instructed by Messrs Lee Davies & Co. of Harlow for the Respondent)

Miss Lisa Sinclair (instructed by Hertfordshire County Council for the Appellant)

HALE L.J.:

1

Local social services authorities look after the most vulnerable members of our society, the old, the young and the disabled. They know only too well that the people they look after are particularly vulnerable to abuse while in their care. There are few more vulnerable people than a child who has been so sexually abused by her father that she believes that anyone who loves her will want a sexual relationship with her and so behaves in a sexually provocative way towards those whose love she craves. This places enormous pressures on staff, who are often untrained and inexperienced. They are also vulnerable to suspicion both just and unjust. Local authorities have the unenviable task of reconciling their duties as carer and their duties as employer. In this they are no different from any other agency caring for vulnerable people, except that they also have specific statutory duties towards children under the Children Act 1989.

2

The issue in this case is whether the defendant local authority acted reasonably in suspending the claimant from her post in a residential home while they investigated the circumstances surrounding a child living in that home. The investigation concluded that there was no case to answer, but the claimant suffered psychiatric illness and loss of earnings as a result of her suspension.

The facts

3

We can now examine the circumstances of the case in some detail and with the benefit of hindsight. What follows is largely taken from the case records and other documents compiled around that time.

4

EL was born on 6 May 1983. Her 13th birthday fell during the events in question. She suffers from Fragile X syndrome. This means that she has both learning and communication difficulties. Her IQ has been assessed at between 45 and 50. She has a younger brother, DL. He has the same syndrome, as does their mother. Their parents needed a great deal of support in looking after them. Eventually they were spending so much time away from home that in February 1993 they were accommodated under s 20 of the Children Act 1989. In September 1993, they were placed in the Gables, a small children's home with only four residents. They remained in regular contact with their parents.

5

By the end of 1994, EL's behaviour had become very disturbed. Her father began to suggest that she might be being abused by a member of the Gables staff. In February 1995 however EL was suggesting more explicitly that she had been abused by her father. He was interviewed by the police and in March 1995 he admitted to having extensively abused EL between February and September 1994. In August 1995 he was sentenced to 6 years' imprisonment for rape and indecent assault.

6

The case records from the Gables show the sorts of things that EL was saying to staff as 1995 went on. She spoke about her dad making her sick and Mum holding her head, simulating this with her finger; about dad making her throw up; about dad putting cream on her private parts, and also doing this to her brother. After he was sentenced, she also spoke about dad making her brother throw up, putting her finger in her mouth and pulling it in and out several times. In a long conversation on 24 December 1995, she spoke about dad putting his 'tinker' in her private parts, about her mum also being there, about her dad telling her not to talk about this and about both her mum and dad hitting her; 'however she then changed this, saying that she had hit herself'; her dad had not hurt her brother but her Mum had made him cry; her mum had made her sick. As time went on she became more and more explicit about her mother's involvement in abusing them both.

7

The claimant, whose first name is Julie, became a residential care worker at the Gables on 30 December 1994. She had no training and no previous experience of working with children. Around October or November 1995, EL began to develop an obsession with the claimant: seeking her out, behaving in a sexually provocative way, masturbating in front of her, and also bowing down and worshipping her (EL showed great interest in Muslim styles of worship). At first it was decided to 'bombard' EL with contact with the claimant in hope of breaking her obsession. This was unsuccessful.

8

On 6 March 1996 the 'CAR3' records note that the claimant asked not to be left alone with EL. This was because of EL's overt sexual behaviour towards her and because of a statement that EL had previously made to her keyworker at the home, 'Julie crouches down to me. Julie touches my wotsits.' The keyworker replied, 'Are you sure Julie touched your wotsits?' EL replied, 'No, she didn't'. The next day she repeated that, unlike her mum and her dad, Julie did not touch her wotsits.

9

There is a very perceptive note for 7 March: 'EL appears to assimilate liking a person and them liking her to them wanting to abuse her. She has made several statements to this effect, ie "you like me, you won't make me sick?"' The staff felt inadequately trained to manage this difficult situation, and there were several meetings about it. On 8 March 1996, Diane Dack, deputy manager of the Gables, met Mark Janes, the area manager, and staff guidelines were drawn up to the effect that no member of staff should ever be left alone with EL. These were discussed at a strategy meeting on 13 March 1996.

10

The claimant found it all very worrying and stressful. She was off work for a week or ten days in March 1996 and did not attend the meeting on 13 March although she sent written comments. The area manager wrote offering support, and emphasising that EL had made no allegations about her or any other staff member and that he was impressed with the professional way in which events were being recorded and managed.

11

On 16 March 1996, it is recorded that EL was concerned about the claimant putting her little brother to bed, saying 'she is the same as my mum'. On 27 March 1996, EL said 'Julie put cream on my wotsits' but when asked why, she said 'on my rash', and asked where, she pointed to the tops of her thighs. On 2 April 1996, it is recorded that EL had said 'you won't leave me with Julie. I'll be OK' on several occasions, and also that the claimant was not allowed to dress her brother because she was like her mum, but had then agreed when told that the home was a safe place. On 23 April 1996, she said 'Julie likes to put cream on my wotsits', but again pointed to the tops of her thighs when asked where, and when asked whether these were her wotsits, answered no and pointed to her 'wotsits'. In May 1996 there are references to her saying that she wanted to be sick, to throw up 'like with daddy', and 'I like Julie'. There was a further reference to Julie being the same as her dad, meaning that 'they both like me very much' and even that Julie had a 'tinker'.

12

EL had been having therapy at the local Child and Adolescent Mental Health Service since April 1995. At a meeting on 15 May 96, between the staff team at the home and the local consultant child psychiatrist, Dr Kingsbury, to discuss coping strategies concerning EL's obsessional and sexualised behaviour, he suggested that EL could be experiencing 'anxiety attachment disorder' in relation to the claimant.

13

According to a later note (dated 22 August 1996) by her therapist, Mary Ewers, EL often talked about the claimant during sessions, saying things like 'Julie crouches down to me' and drawing pictures of her. On 7 May 1996 she told her therapist that 'her father put his tinker in her, on her back. He didn't make a hole. Julie put a torch on her whatsit'. When the therapist said that she thought that EL felt that the therapist did not listen to her, EL started to talk about Muslims and how they spoke a different language. This led the therapist to believe that EL felt that she was not being understood. On 18 June, EL drew a picture of the claimant horizontal on the page, a face, two legs and a lot of scribble half way down between her legs, saying the scribble was her knickers. According to her note, the therapist did not consider this an allegation of abuse, but information which should be shared with EL's social worker, Mandy Kavanagh-Vincent. This was done at a meeting on 4 July 1996.

14

In the meantime, such were the concerns about what EL had been saying about her mother that care proceedings had been brought and interim care orders obtained in order to control or suspend contact between the children and their mother. On 22 May 1996 EL's guardian ad litem, Mary Carden, came to the office to go through the files. The social worker understood her to be expressing a concern that if the authority were taking seriously what EL was saying about her mother they should perhaps look into what she had been saying about the claimant.

15

At a review meeting on 5 July, therefore, it was agreed by Marcelle Ibbetson, Ms Kavanagh's senior, that all the information should be passed to an independent person within the department to review. Soon afterwards the matter was referred to David Gibson. Mark Janes, the Area Manager, recorded that Ms Ibbetson had not requested an investigation, but pre-investigation phase in which David Gibson would...

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