H v Norfolk County Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SIMON BROWN,LORD JUSTICE WAITE |
| Judgment Date | 10 May 1996 |
| Judgment citation (vLex) | [1996] EWCA Civ J0510-8 |
| Docket Number | LTA 95/7562/E |
| Court | Court of Appeal (Civil Division) |
| Date | 10 May 1996 |
[1996] EWCA Civ J0510-8
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
Royal Courts of Justice,
Strand,
London WC2
Lord Justice Simon Brown
Lord Justice Waite
LTA 95/7562/E
In an Application for Leave to Appeal
MR G SANKEY QC (Instructed by Hatch Brenner, Norwich 1) appeared on behalf of the Plaintiff.
MISS E GRAY (Instructed by Hammond Suddards, BD1 3LR) appeared on behalf of the Defendant.
Friday, 10th May 1996
The applicant is a young man now 22 years of age. He was taken into care by the respondent county council at the age of about 4 and, between the ages of 5 and 14, was placed by them with foster parents.
In this action he says that he was physically and sexually abused by his foster father, and he alleges that the council were negligent in failing properly to monitor and supervise his placement and to investigate reports of such abuse, in particular a series of such reports in 1985 when he was aged 11. It is further alleged that the counsel were negligent in failing to remove him from such foster care.
On 15th November 1995 Mr Justice Harrison struck out the applicant's claim on the ground that it disclosed no reasonable cause of action. He held, on the authority of the House of Lords decision in X (Minors) v Bedfordshire County Council [1995] 3 W.L.R. 152, that the council owed the plaintiff no duty of care.
Before us today is the plaintiff's application for leave to appeal against that order.
For the purposes of this judgment, I shall assume that any interested listener or reader has a complete familiarity with Lord Browne-Wilkinson's speech in the Bedfordshire case (in fact a group of five cases) and, in particular, with those parts of it which were concerned with the two child abuse cases, most especially the Bedfordshire case itself. The ultimate issue there, just as here, was whether the plaintiff could satisfy the third of the three requirements laid down in Caparo Industries PLC v Dickman [1990] 2 A.C. 605, namely whether it is just and reasonable to impose a common law duty of care in the circumstances. Here, as in the Bedfordshire case, foreseeability of damage and proximity of relationship were not in doubt or dispute.
The judge below cited the relevant passages from Lord Browne-Wilkinson's speech and carefully analysed the rival contentions at the bar, namely those of Mr Hamey, who was then acting for the plaintiff, and those of Miss Eleanor Grey for the council. Mr Hamey, of course, was seeking to distinguish the Bedfordshire case; Miss Grey was urging its essential similarities.
The judge's conclusions upon the argument I can conveniently take verbatim from his judgment:
"It does seem to me that it is important in this case to consider whether the public policy reasons referred to in the Bedfordshire case do apply in the circumstances of this kind of case, or whether this case can be distinguished for the reasons mentioned by Mr Hamey which primarily arise out of the fact that in this case the plaintiff was in the care of the local authority whereas in the Bedfordshire and Newham cases that was not the case. In the one case the allegation was that the local authority should have intervened and taken the child into care and, in the other case, the complaint was that the local authority had acted without proper investigation and taken the child away from the mother in circumstances where they might not have done so if proper investigation had been made.
"In considering the public policy considerations to which I have just referred in some detail, I have come to the conclusion that those public policy considerations do apply in the circumstances of this case. The first of the considerations was the inter-disciplinary nature of the system for protection of children at risk and the subsequent difficulties that may arise if there is to be liability in disentangling the respective roles of the various agencies concerned. That is a matter which would arise in this case to a degree, both in relation to the plaintiff's school and in relation to the police. In any event, there could be plenty of cases where children have been taken into care where it would arise to an even greater extent than it may be said to do in this case. The principle is there. In my view, it applies whether the child is in care or not in care. If a child has been sexually abused, it potentially involves the various agencies and that public policy consideration will apply in varying degrees.
"The second public policy consideration was the very delicate nature of the task of the local authority dealing with children at risk, in particular the interests of the child, the interest which is obviously paramount, balanced with the rights and needs of the parents.
"Whilst I understand Mr Hamey's point that there may usually be a stronger bond between child and natural parent, nevertheless the principle of the matter would be applicable in the case of a foster parent as well as in the case of a natural parent. Indeed, it is conceivable that the strength of bond could be greater in certain circumstances in the case of a foster parent than in the case of a natural parent, although I would envisage in the normal course of events it would be stronger in the case of a natural parent. The delicate nature of the task is there, in my view, whether it be a natural parent or a foster parent. Therefore, that public policy consideration applies in principle to this case as well.
"The third public policy consideration was the risk of a more defensive and cautious approach being taken by the local authority if a common law duty were said to arise. Whilst in the circumstances of this case it may not arise quite in the way mentioned by Lord Browne-Wilkinson, that is to say, relating to speed of decision, although it is conceivable that it could, the point which concerns me more is the point made by Miss Grey as to whether there might be a reluctance by the local authority to take children into care if they knew they would thereby be assuming a duty of care and potential liability which would otherwise not be the case.
"One would like to think that that situation would not arise, it is not something which can be discarded. I also bear in mind the point made by Miss Grey relating to the fluidity of the care system, namely, that a child can come into and go out of care with the consent of the parents. It does not seem to me to be an attractive proposition that at one moment a duty of care arises and on another occasion it does not. The main point that is of concern here is whether the child is at risk from sexual or other abuse. I therefore consider that that possibility, and I put it no higher than that, of a cautious or defensive approach being adopted by local authorities if a duty of care were to arise, is of relevance to this case. That possibility comes within the ambit of the third public policy consideration mentioned by Lord Browne-Wilkinson and therefore that is a matter which is relevant in this case as well.
"The fourth public policy consideration was the potential conflict between a social worker and the child's parents which potentially breeds ill-feeling and litigation which can be costly and result in money and human resources being diverted from the proper purposes to which they should be applied. There is not any dispute of any significance between the parties relating to that aspect of the matter. That, in my view, applies equally in relation to a foster parent as it would do in relation to a parent. There are degrees of difference but the principle applies to both. Therefore, that again is a public...
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