Lambert v Cardiff County Council
| Jurisdiction | England & Wales |
| Judgment Date | 11 January 2007 |
| Neutral Citation | [2007] EWHC 869 (QB) |
| Court | Queen's Bench Division |
| Date | 11 January 2007 |
| Docket Number | Claim No 4CF09714 |
[2007] EWHC 869 (QBD)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CARDIFF DISTRICT REGISTRY
His Honour Judge Hickinbottom Sitting as an Additional Judge of the High Court
Claim No 4CF09714
APPROVED JUDGMENT
RICHARD PRICE appeared for the Claimants as a Lay Representative.
PAUL STAGG of Counsel (instructed by Hugh James) appeared for the Defendant.
CARDIFF CIVIL JUSTICE CENTRE, 2 PARK STREET, CARDIFF CF10 1ET
I direct pursuant to CPR Part 39 PD 6.1 that no official shorthand note shall be taken of this judgment and that copies of this version, subject to editorial corrections, may be treated as authentic.
Introduction
This claim concerns the placement of a teenage girl by the Defendant Council's predecessor with the Claimant foster carers Mr & Mrs Lambert, between 1991 and 1993. At the end of the placement the girl made false allegations of sexual misconduct against Mr Lambert and launched a campaign of harassment against the Claimants which caused them both psychiatric injury. In this action, Mr & Mrs Lambert claim that the Council is responsible for their respective psychiatric conditions. In terms of quantum, the special damages claimed exceed £800,000.
I shall deal with each ground of claim in due course but, briefly, the main heads can be summarised as follows:
(i) The Claimants allege that the Council falsely represented to them that it would indemnify the Claimants for all damage (including personal injury) caused by a child in the care of the Council and would effect that indemnity by taking out a policy of insurance covering such losses on the Claimants' part, irrespective of when such damage or losses might occur (either during or after the placement) and the circumstances of it. They claim that (a) this misrepresentation was negligent and induced them to enter into the fostering arrangement with the Council, and (b) the representation formed a term of a collateral contract, and in either event they claim damages for the failure to insure in accordance with the representation made (“the misrepresentation claim”).
(ii) The Claimants allege that the fostering agreement between the Council and Mr & Mrs Lambert had contractual effect and, on its true construction, the Council agreed to insure Mr & Mrs Lambert against any personal injury caused to them by any child placed with them, irrespective of when such injury or resulting losses might occur (either during or after the placement) and the circumstances of it. They claim damages for breach of contract resulting from the Council's failure to insure in accordance with this contractual term (“the contractual claim”).
(iii) In view of the relationship between them namely (a) as employer/employee or (b) the special relationship of foster placement authority and foster carers falling short of employer/employee, the Council owed the Claimants a duty of care:
(a) to effect insurance that covered Mr & Mrs Lambert for any personal injury that might be caused to them by any child placed with them, irrespective of when and the circumstances in which such injury might occur:
(b) to provide them with information relating to the history of any particular child placed with them, particularly any past false allegations of sexual abuse:
(c) to take reasonable steps to control any child placed with them, whether during or after placement, or before or after that child has reached majority: and
(d) to advise and support them.
I shall refer to these claims as “the tort claims”
From 1984, Mr & Mrs Lambert fostered children placed by Gloucestershire County Council (“GCC”). In 1991, in the circumstances outlined below, they began fostering children for South Glamorgan County Council, which, as the result of the reorganisation of local government on 1 April 1996, transferred all of its rights and obligations to the Defendant. In this judgment, I shall refer to the Defendant and its predecessor as simply “the Council”.
Mr & Mrs Lambert fostered a number of children for 10 years from 1984, including the girl referred to above. At the outset of the trial, I ordered that that the names of all these children should remain confidential and were not to be disclosed, and throughout this judgment I shall refer to any such child by his or her first initial only. I shall refer to the child at the centre of this claim as “A”.
Mr Paul Stagg of Counsel represented the Defendant. The Claimants were represented at trial by Mrs Lambert's brother, Mr Richard Price, who on 28 October 2005 was given the right to conduct the litigation and the right of audience pursuant to Section 27 and 28 of the Courts and Legal Services Act 1990. He was involved with this claim from its inception—writing the letter before action in 1994—and, as Mr & Mrs Lambert frankly accepted, he has been very closely involved in every aspect of the case. In this judgment I criticise some of those aspects: but, in terms of the trial itself, it is only right that I should mark the manner in which he conducted himself and the Claimants' case. He cross-examined, made submissions and otherwise acted throughout in a moderate and competent manner.
The Legislative Background
Introduction
The relevant dates in this claim straddle 14 October 1991, when the Children Act 1989 (“the 1989 Act”) came into force. Before that date the statutory framework for fostering was provided by the Child Care Act 1980 (“the 1980 Act”) and regulations made thereunder.
Under Section 18(1) of the 1980 Act, in reaching any decision relating to a child in their care a local authority was required to “give first consideration to the need to safeguard and promote the welfare of the child”. However, Section 18(3) provided:
“If it appears to the local authority that it is necessary, for the purpose of protecting members of the public, to exercise their powers in relation to an particular child in their care in a manner which may not be consistent with their duty under subsection (1) above, the authority may, notwithstanding that duty, act in that manner.”
Section 21 made provision for accommodation and maintenance for children in an authority's care. Section 21(1) provided:
“A local authority shall discharge their duty to provide accommodation and maintenance for a child in their care in such one of the following ways as they think fit, namely:
(a) by boarding him out on such terms as to payment by the authority and otherwise as the authority may, subject to the provisions of this Act and regulations thereunder, determine; or
(b) by maintaining him in a community home…; or
(c) by maintaining him in a voluntary home….
Section 21A(1) dealt with “secure accommodation”:
“…. [A] child in the care of a local authority may not be placed, and, if placed, may not be kept, in accommodation provided for the purpose of restricting liberty unless it appears;
(a) that:
(i) he has a history of absconding and it is likely to abscond from any other description of accommodation; and
(ii) if he absconds, it is likely that his physical, mental or moral welfare will be at risk; or
(b) that if he is kept in any other description of accommodation he is likely to injure himself or other persons.”
From 1 June 1989, the relevant regulations under the general regulation-making power in Section 22 were the Boarding-Out of Children (Foster Placement) Regulations 1988 (1988 SI No 2184, “the 1988 Regulations”), under which:
(i) No placement could be made unless the household had previously been approved by the local authority making the placement (Regulation 3(1)). Regulation 3(4) provided:
“A local authority… shall give notice in writing to a prospective foster parent as to whether or not the household in which he is living has been approved under this regulation and whether approval is in respect of a particular child or class of children or in respect of any particular kind of placement in such circumstances as may be specified by the authority…”.
The required contents of the notice were set out in Part II of Schedule 1 to the Regulations, namely:
“1. The procedure of the local authority… for the review of approval of households.
2. The procedure of the authority… for dealing with complaints by foster parents.
3. The arrangements of the authority… for meeting any legal liability of a foster parent arising by reason of the placement.
4. The arrangements of the authority… for the financial support of the children placed with a foster parent.”
As can be seen, these concerned procedures and arrangements of the authority, which it was bound to set out for the benefit of the foster parents.
(ii) Approvals were to be reviewed from time-to-time, and there was a power to terminate approval (Regulation 3 (6) and (8)).
(iii) The local authority was required to satisfy itself that a particular placement was the most suitable way in which to discharge their duties to a child under Section 18 of the 1980 Act (Regulation 5(1)).
(iv) Under Regulation 5(5), there was a general duty on the authority to provide information to a prospective foster parent, as follows:
“Except as provided in Regulation 9 (emergency placements) a local authority… shall before a child is placed with a foster parent, if practicable, and in any case not more than 14 days after the child had been placed with the foster parent, provide the foster parent with such information in writing as the authority… consider necessary to enable the foster parent to care for the child, being information which relates to:
(a) the state of health of the child, and his need for health care and surveillance;
(b) the personal history, religious persuasion and cultural background and racial origin of the child;
(c) the plans of the authority… for...
To continue reading
Request your trial
-
NUPFC v Certification Officer & Others
...decision in W, StuartSmith stated that that “concession was rightly made”. b. The next case is that of Lambert v Cardiff County Council [2007] 3 FCR 148. The background to that decision was that a child placed in the care of approved carers had a history of violence towards children. That h......
-
Merthyr Tydfil County Borough Council v C
...affd[2005] UKHL 23, [2005] 2 FCR 81, [2005] 2 All ER 443, [2005] 2 AC 373, [2005] 2 WLR 993, [2005] 2 FLR 284. Lambert v Cardiff CC[2007] EWHC 869 (QB), [2007] 3 FCR Lawrence v Pembrokeshire CC[2007] EWCA Civ 446, [2007] 2 FCR 329, [2007] 1 WLR 2991, [2007] 2 FLR 705. Sullivan v Moody (2001......
-
Merthyr Tydfil County Borough Council v C
...child, despite that same authority owing a duty of care to the parents’ natural children who were at threat from that child. In Lambert v Cardiff County Council [2007] EWHC 869 (QB); [2007] 3 FCR 148; 97 BMLR 101, a child made allegations of sexual abuse against her foster father who (with ......
-
Glasgow City Council v 1) Mr James Johnston 2) Mrs Christine Johnston
...of Stuart-Smith, Potter and Brooke LJ. It does not add anything to W v Essex County Council. I have considered Lambert v Cardiff CC [2007] EWHC 869 (QB). It too follows W v Essex County Council (paragraph 116). His Honour Judge Hickinbottom (as he then was) adopted the reasoning of Stuart-S......