L and another v Reading Borough Council and another
| Jurisdiction | England & Wales |
| Judgment Date | 2001 |
| Year | 2001 |
| Date | 2001 |
| Court | Court of Appeal (Civil Division) |
Child abuse – Negligence – Duty to take care – Existence of duty – Assumption of responsibility – Mother fabricating allegations of sexual abuse of daughter by father – Father claiming police owing duty of care – Father alleging that police incompetently conducting investigation into allegations – Judge dismissing existence of duty of care on basis that doctrine of witness immunity applying – Whether arguable duty of care owed to father – Whether arguable police not protected by doctrine of witness immunity.
When L was three years old the mother made a series of allegations against the father claiming that L had been the victim of very serious sexual abuse at his hands. The police and social services investigated the complaints and, despite the fact that there was no evidence that there had been a crime, concluded that the complaint by L’s mother was well founded and that L was at the risk of further abuse. An attempt was made by a police constable to trick the father into admitting guilt by lying to him in the absence of his solicitor about the state of evidence against him. Further a social worker and the police constable subsequently and in concert misrepresented to their superiors what L had said when interviewed. The allegations led to the commencement of private law and public law family proceedings. It subsequently transpired that L’s mother had suffered from Munchausen’s Syndrome by proxy and that the allegations of abuse had been fabricated. L and the father commenced proceedings against the police and the social services in negligence, conspiracy to injure and misfeasance in public office, alleging, inter alia, that the relationship between them had been damaged with psychological consequences for both. They alleged that but for the incompetent and misleading video interviewing by the police officer and social worker together with the subsequent misrepresentation of its results there would not have been any credible material on which to base an allegation that the father had sexually abused L. The police applied to strike out the claims as having no real prospect of success. The judge found that the claim in negligence brought by L was arguable but that the police did not owe any duty of care to the father due to a lack of proximity between a suspect and the police. He further found that both L and the father’s claims in misfeasance and conspiracy were arguable. However, the judge ordered that both claims be struck out on the basis that the Chief Constable was entitled to witness immunity in respect of the conduct of the police constable. L and the father appealed.
Held - (1) As a matter of public policy the police were immune from actions in negligence in respect of their activities in the investigation and suppression of crime, however that immunity was not absolute. In the present case it was arguable that a duty of care arose on the part of the police officer conducting the investigation towards the father when she concluded that, although there was no evidence to support criminal proceedings, the complaint by L’s mother was of substance in that L was at risk of further abuse from her father. It was also arguable that thereafter there had been a legal assumption of responsibility and a special relationship between the father and the police officer and the social worker and that a duty had arisen to take reasonable steps not to damage the father by their subsequent conduct. Further, it was an inappropriate exercise to determine whether it was fair, just and reasonable to impose a duty of care on the basis of assumed facts in the pleadings. Accordingly, both claimants were entitled to access to the court to enable them pursue their arguable substantive rights.
(2) Not every breach of duty or tort committed by a public officer would amount to misfeasance of public office. However, in the present case it was arguable that the allegations as pleaded were capable of amounting to an abuse of the police’s position, to which the doctrine of witness immunity should not apply to give protection to the police in initiating or causing to be initiated family proceedings based on groundless allegations of child abuse. Each case where witness immunity was invoked had to be determined on its own facts and the judge had been in error in striking out the claim without allowing it to proceed to trial for the determination of the issue on the facts.
Accordingly, the appeal would be allowed.
Cases referred to in judgmentsArthur J S Hall & Co (a firm) v Simons[2000] 2 FCR 673, [2000] 3 All ER 673, [2000] 3 WLR 543, [2000] 2 FLR 545, HL.
Barrett v Enfield London BC[1999] 2 FCR 434, [1999] 3 All ER 193, [1999] 3 WLR 79, [1999] 2 FLR 426, HL.
Bennett v Comr of Police of the Metropolis (1997) 10 Admin LR 245.
Caparo Industries plc v Dickman [1990] 2 AC 605, [1990] 1 All ER 568, [1990] 2 WLR 358, HL.
Capital and Counties plc v Hampshire CC, Digital Equipment Co Ltd v Hampshire CC, John Munroe (Acrylics) Ltd v London Fire and Civil Defence Authority, Church of Jesus Christ of Latter Day Saints (GB) v West Yorkshire Fire and Civil Defence Authority [1997] QB 1004, [1997] 2 All ER 865, [1997] 3 WLR 331, CA.
Darker v Chief Constable of the West Midlands Police [2000] 3 WLR 747, HL.
Elguzouli-Daf v Comr of Police of the Metropolis [1995] QB 335, [1995] 1 All ER 833, [1995] 2 WLR 173, CA.
Evans v London Hospital Medical College [1981] 1 All ER 715, [1981] 1 WLR 184.
Hill v Chief Constable of West Yorkshire [1989] AC 53, [1988] 2 All ER 238, [1988] 2 WLR 1049, HL.
Kent v Griffiths [2000] 2 All ER 474, [2000] 2 WLR 1158, CA.
Osman v Ferguson [1993] 4 All ER 344, CA.
Osman v UK [1999] 1 FLR 193, (1998) 5 BHRC 293, ECt HR.
Silcott v Comr of Police (1996) 8 Admin LR 633, CA.
Spring v Guardian Assurance plc [1995] 2 AC 296, [1994] 3 All ER 129, [1994] 3 WLR 354, HL.
Swinney v Chief Constable of Northumbria [1997] QB 464, [1996] 3 All ER 449, [1996] 3 WLR 968, CA.
Taylor v Director of Serious Fraud Office [1999] 2 AC 177, [1998] 4 All ER 801, [1998] 3 WLR 1040, HL.
Three Rivers DC v Governor and Co of the Bank of England (No 3) [2000] 3 All ER 1, [2000] 2 WLR 1220, HL.
White v Jones [1993] 3 All ER 481, [1993] 3 WLR 730, CA; affd[1995] 3 FCR 51, [1995] 2 AC 207, [1995] 1 All ER 691, [1995] 2 WLR 187, HL.
X (minors) v Bedfordshire CC, M (a minor) v Newham London BC, E (a minor) v Dorset CC, Christmas v Hampshire CC, Keating v Bromley London BC[1995] 3 FCR 337, [1995] 2 AC 633, [1995] 3 All ER 353, [1995] 3 WLR 152, [1995] 2 FLR 276, HL.
AppealThe claimants appealed against the decision of Goldring J made on 17 March 2001 whereby he ordered that the claims against the second defendant be struck out on the basis that the Chief Constable was entitled to witness immunity in respect of the conduct of a police constable. The facts are set out in the judgment of Sir Philip Otton.
Andrew Edis QC and Nicholas Bowen (instructed by Thompson & Leatherdale) for the appellants.
Edward Faulks QC and Andrew Warnock (instructed by Barlow Lyde & Gilbert) for the respondents.
Cur adv vult
12 March 2000. The following judgments were delivered.
SIR PHILIP OTTON.[1] This is an appeal by the claimants against the decision of Goldring J given on 17 March 2000 whereby he ordered that the claims against the second defendant be struck out. By a respondent’s notice it is contended that the learned judge’s decisions should be affirmed on additional grounds.
Background[2] The first appellant L is now aged 13. In early 1990, when L was three years old, her mother made a series of allegations against her father, the second appellant (P), claiming that L had been the victim of very serious sexual abuse at
his hands. The police and social services were called in to investigate. A social worker and police officer, WPC Grey, interviewed L on 10 and 11 April 1990. They erroneously concluded that the complaint by L’s mother was well founded and that L was at risk of further abuse. It subsequently transpired that L’s mother suffered from Munchausen’s Syndrome by proxy and that her allegations of abuse were fabricated.
[3] The allegations led initially to private law and then to public law family proceedings that were heard before Judge Kenny in the Reading County Court between 1993 and 1998. The family proceedings are still in train having been transferred to the High Court. In 1996, in an interim judgment, the father was exonerated and L since then has lived with him and had occasional contact with her mother.
[4] The appellants alleged that the interviews were conducted improperly and that as a result social services were needlessly involved with the family for a number of years. It is alleged that the relationship between L and her father was damaged with psychological consequences for both. The factual basis of these proceedings is the 1996 judgment which was highly critical of the conduct of the social worker and the WPC. The appellants contend that but for the initial damaging, incompetent and misleading video interviewing by the police officer and the social worker and the subsequent misrepresentation of its results there would have been no credible material on which to base the allegation that the father was a sexual abuser. Criminal proceedings were never brought against him. He and L would have been spared the subsequent public law children proceedings. L’s childhood would not have been overshadowed by baseless allegations, neither L nor her father would have suffered personal injury, and the father would not have suffered the consequent economic loss and damage to his earning potential and employment prospects.
[5] The second defendant, the chief constable of the Thames Valley Police, applied to strike out the claims as having no real prospect of success. The first defendant, Reading Borough Council, the employer of the social worker did not make a similar interlocutory application.
The hearing before Goldring J[6] The application was heard by...
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