M and Another v London Borough of Newham and Others; X and Others v Bedfordshire County Council
| Jurisdiction | England & Wales |
| Judgment Date | 29 April 1994 |
| Neutral Citation | [1994] EWCA Civ J0429-6 |
| Judgment citation (vLex) | [1994] EWCA Civ J0223-2 |
| Docket Number | QBENI 93/1178/E,QBENI 93/0676/E |
| Court | Court of Appeal (Civil Division) |
| Date | 29 April 1994 |
[1994] EWCA Civ J0223-2
Before: The Master of the Rolls (Sir Thomas Bingham) Lord Justice Staughton and Lord Justice Peter Gibson
(His Honour Judge Phelan)
Mr. Justice Turner
QBENI 93/0676/E
QBENI 93/1712/E
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN's BENCH DIVISION
MR. J. MUNBY Q.C. and MR. R. SHERMAN (instructed by Messrs Clinton Davis Cushing & Kelly, Hackney) appeared on behalf of the plaintiffs.
MR. E. FAULKS (instructed by Messrs. Barlow Lyde & Gilbert, London EC3A) appeared on behalf of the First Defendant.
MR. J. HOLMAN Q.C. and MR. R. TYSON (instructed by Messrs. Field Fisher Waterhouse, London EC3) appeared on behalf of the Second and Third Defendants.
MR. A. LEVY Q.C. and MISS E. GUMBEL (instructed by Messrs. Conway Wood & Company, Harpenden) appeared on behalf of the Plaintiffs.
MR. I. KARSTEN Q.C. and LORD MESTON (instructed by Messrs. Vizards, London WC1R) appeared on behalf of the Defendant.
THE MASTER OF THE ROLLSThese two appeals have been heard together. The facts of the two cases, and some of the issues, are quite different. But common to each case is a question of great importance and difficulty : may a child maintain an action for damages (whether for breach of statutory duty or common law negligence) against a local authority for steps taken or not taken in relation to the child by that authority as the responsible social services authority? This question has in each case been answered negatively. The children's claims (as also the mother's claim in the Newham case) have been struck out as disclosing no reasonable cause of action. The plaintiffs in each action appeal. For purposes of these appeals we must assume the plaintiffs' pleaded allegations to be true and capable of proof, although they are strongly contested. Unless the plaintiffs' claims are shown to be plainly unsustainable in law on the basis of their pleaded allegations, the claims should not be struck out.
M & Another v London Borough of Newham & Others
The first plaintiff in this action is a girl born in January 1983 and now aged just 11. She sues by her mother as her next friend. The second plaintiff is the mother who was 17 when her daughter was born. I shall call these plaintiffs "the child" and "the mother". There was originally a third plaintiff in the action : he lived with the mother and is the father of another of her children, although not of the child. He has withdrawn from the action and is no longer a plaintiff, but it is convenient to continue to refer to him as the third plaintiff.
There are three defendants. The first, the London Borough of Newham, is the local authority with responsibility for child care services in its area. The second is the local health authority. The third is a consultant child psychiatrist employed by the health authority. I shall refer to these defendants as "the local authority", "the health authority" and "the psychiatrist".
In summary, the factual case pleaded for the child and the mother is as follows. Between 1984 and 1986 the mother and the child had dealings with the local authority's Social Services Department and the health authority. Concern was expressed that the child had been sexually abused. In June 1987, as a result of concern expressed by a health visitor about the mother's care of the child, a social worker employed by the local authority ("the social worker") visited the mother's home and obtained details of her situation, including the fact that the third plaintiff was the mother's current boyfriend. The social worker reported his findings to a case conference called by the local authority which decided to place the child on the child protection register on grounds of emotional abuse. During 1987 the mother took the child to see various doctors for advice on problems of urinary infection from which the child was suffering. The doctors could find no physical cause of the infection and were concerned that it might be the result of sexual abuse. An appointment was accordingly made for the child to be examined by the psychiatrist to ascertain whether the child had been sexually abused and, if she had, the identity of the abuser. The mother took the child to see the psychiatrist on 13 November 1987.
On that date the child was interviewed by the psychiatrist in the presence of the social worker but in the absence of the mother. The interview was recorded on videotape. During the session the social worker left the interview room and asked the mother for the names of her father, husband and boyfriend, which she gave.
It is pleaded that the social worker and/or the psychiatrist concluded that the child had been sexually abused and that the third plaintiff was the abuser. In fact the child did not identify the third plaintiff as the abuser but a cousin with the same first name as the third plaintiff who had previously lived at the mother's address. The child said that the abuser had left the mother's home and was not her mother's boyfriend. Had the psychiatrist and the social worker taken a full history of her mother's domestic circumstances or consulted the history the local authority already had or reviewed the child's evidence they would have ascertained that the third plaintiff was not the abuser and that the abuser was no longer living at the mother's home. At the end of the interview the mother was told by the psychiatrist and the social worker that the child had been sexually abused and that the third plaintiff was the abuser. After the child's interview with the psychiatrist and the social worker the mother asked her privately if the third plaintiff had abused her. The child said he had not. The mother tried to tell the social worker of this denial, but he and the psychiatrist wrongly took this as an attempt to persuade the child to retract the allegation that they understood her to have made.
The doctor and the social worker concluded that the mother would be unable to protect the child against further abuse by the third plaintiff and that she would put pressure on the child to retract her allegation against him and that it was necessary to remove the child from her mother's care. The mother was not asked if she was willing to require the third plaintiff to leave her home. On the same day, on the local authority's application, a place of safety order for 28 days was made by the Newham Justices. The local authority's case was that the child had been sexually abused, that she had definitely identified the third plaintiff as the abuser and that there was a risk either of "direct abuse" or that the mother or others would put pressure on the child to retract her allegation against the third plaintiff.
The mother excluded the third plaintiff and all other men from her home and on 24 November 1987 applied to Lincoln J for the child to be made a ward of court and for an order giving her care and control. The local authority attended the hearing and adduced evidence to support the same case which had been put to the justices and recommended to the judge that the child be made a ward of court, that it be granted care and control, that the child should not return home and that the mother's access be limited. The judge accepted the local authority's recommendation and made an order expressed to be by consent in the terms which it asked. He adjourned the matter until a date in December, his orders remaining in force until further order. The local authority accordingly placed the child with foster parents. She was approaching her fifth birthday. In December, another judge continued the existing arrangements in force, although reducing the mother's access. Up to this time the mother had not seen the video-recording or read the transcript of the interview with the child on 13 November 1987.
During these wardship proceedings the mother became pregnant again and another child (D) was born to her. The third plaintiff was the father. Having regard to the previous history involving the child, the local authority obtained an order that D also become a ward of court. In the course of these wardship proceedings the mother obtained sight of the transcript of the interview with the child on 13 November 1987. It was apparent from the transcript that the child had not identified the third plaintiff as the abuser and that there was no evidence to support that conclusion. The local authority was informed and shortly thereafter confirmed that it no longer suspected the third plaintiff of having sexually abused the child. On 21 November 1988 the local authority reported this to Lincoln J and recommended that the child be rehabilitated with her mother and the third plaintiff. The judge accepted the recommendation and made an order in accordance with it, which was put into effect at once. The child had been separated from the mother for almost a year. In November 1989, on the local authority's application, the wardship of both children was discharged.
The child and the mother plead many allegations of negligence against the defendants. The central allegation is that the defendants failed to investigate the facts with proper care and thoroughness and failed to discuss them with the mother.
The child and the mother complain that as a result of...
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