M (A Minor) and Another v Newham London Borough Council and Others; X (Minors) v Bedfordshire County Council
| Jurisdiction | England & Wales |
| Judgment Date | 1994 |
| Year | 1994 |
| Date | 1994 |
| Court | Court of Appeal (Civil Division) |
M v Newham London Borough Council
In this case the plaintiffs were a girl who was born in 1983 and her mother. The defendants were the local authority, the local health authority, and a consultant child psychiatrist. The plaintiffs claimed damages for personal injury against the defendants for breach of statutory duty or common law negligence. In their statement of claim the plaintiffs alleged that in November 1987, following concern that the child had been sexually abused, the child was interviewed by the child psychiatrist in the presence of a social worker involved with the family but in the absence of the mother. The object of the interview, which was videotaped, was to ascertain whether the child had been sexually abused and, if so, by whom. It was pleaded that, sexual abuse having been identified, the psychiatrist and the social worker wrongly identified the abuser as the mother’s cohabitee and, further, concluded that the mother would be unable to protect the child from further abuse. Consequently, the local authority obtained court orders removing the child from the mother’s care. The child was placed with foster-parents. A year later the mother saw the video-recording of the interview It was apparent that the child had not identified the mother’s cohabitee as the abuser and that there was no evidence to support that conclusion. As a result the local authority referred the matter to the court and the child was rehabilitated with the mother. The plaintiffs alleged that the defendants had failed to investigate the facts with proper care and thoroughness and failed to discuss them with the mother. Both the child and the mother complained that as a result of their enforced separation and the lack of information given to them, each of them suffered a positive psychiatric disorder
diagnosed as anxiety neurosis. The defendants applied to strike out the plaintiffs’ application and this application was granted by the master whose decision was upheld by Judge Phelan.
X v Bedford County Council
In this case the plaintiffs were five children who were born between 1982 and 1990. They sued the local authority for damages for personal injury caused by the authority’s breach of statutory duty and negligence. They alleged that from 1987 to 1992 they had suffered parental abuse and neglect; that this neglect had been reported to the local authority by relatives, neighbours, the police, the family doctor, a teacher, the NSPCC, a social worker, and a health visitor; and that the local authority had taken no appropriate action. In October 1992 the local authority eventually took action and obtained interim care orders. Final care orders were made in April 1993. The children complained that the local authority should have acted more quickly and effectively and that as a result of the authority’s failure they had suffered ill-treatment and illness, their proper development was neglected and their health was impaired. The local authority applied to strike out the proceedings and this application was granted by Turner, J.
The plaintiffs in both cases appealed.
Held - dismissing the appeals: (1) The statutory provisions relating to child care contained nothing to indicate that it was intended to confer a right of action on any person who could show, without more, a breach of any of those statutory duties injurious to him. It was fatal to the plaintiffs’ contentions that the duties imposed on local authorities were framed in terms too general and unparticular to lend themselves at all readily to direct enforcement by individuals and also that the local authorities were accorded so large an area for the exercise of their subjective judgment as to suggest that direct enforcement by individuals was not contemplated. Further (per Staughton and Peter Gibson, LJJ) there were other means of enforcement of a local authority’s statutory duties in respect of child care. For these reasons no claim lay against the defendant local authorities in either case for breach of statutory duty.
(2) In the case of M v Newham London Borough Council the mother was not in any meaningful sense the patient of the psychiatrist. The psychiatrist owed no duty of care to her. The mother’s claim for common law negligence against the psychiatrist had been properly struck out. The mother’s claim against the local authority was not legally distinguishable from her claim against the psychiatrist and that was also properly struck out.
(3) (Sir Thomas Bingham, MR dissenting): In the Newham case the child was not the patient of the psychiatrist. The psychiatrist’s involvement came about because the local authority arranged an appointment for the child to be examined to ascertain if the child had been sexually abused and, if so, the identity of the abuser. The psychiatrist owed a duty of care to the child limited to using reasonable skill and care so as not to cause her harm in the course of examination or treatment. The general duty to use reasonable skill and care to perform the task of “diagnosing” the identity of the abuser was owed to the local authority. Also, in the exercise of their statutory functions under the child care legislation, local authorities were under no existing duty of care to the plaintiff children in either action. If the law were now to recognize a duty of care owed to children by a local authority there was a significant risk of the exercise of such functions being carried out in a detrimentally defensive state of mind. It would be unsound in practice to recognize an extended duty of care of local authorities performing their public law functions of caring for children in need. Nor should a general duty of the same nature be imposed on doctors and health authorities participating in the same process. Accordingly, the claims by the
children in each case had been properly struck out.
Per Sir Thomas Bingham, MR and Staughton, LJ: In the Newham case it was submitted that when interviewing the child and expressing her conclusions and advising on future action the psychiatrist would have known that there were likely to be proceedings in which she would be a witness and that accordingly she was entitled to the immunity which the law, on grounds of public policy, afforded to those who gave, or offered or prepared to give, evidence in court. But the public interest which was protected was the proper interests of justice. To that end a witness must be immune from civil action arising from what he said in court. That protection must not be circumventing by allowing civil actions based on earlier stages in the preparation of a witness’s evidence. But those who have never become involved in the administration of justice at all did not enjoy immunity.
Per Sir Thomas Bingham, MR: (1) In the Newham case the child was the psychiatrist’s patient in the sense that it was for the child alone that the psychiatrist was being invited to exercise her professional skill and judgment. Although there was considerable force in the argument that the imposition of a duty of care on doctors could have adverse practical consequences owing to the difficult, delicate and judgmental nature of the doctor’s task, it would not be just and reasonable to deny a right of action to a child foreseeably injured by an act or omission of which no ordinarily careful and competent member of the medical profession could have been guilty.
(2) It was argued that as Parliament had omitted to impose on local authorities a specific statutory duty, breach of which would entitle an injured party to recover damages, the courts should not step in to impose such a duty. However, there was no indication that Parliament intended no such duty to be imposed. In the circumstances of both cases the local authority had a duty of care to the children which was not met.
Statutory provisions referred to:Banking Act 1987, s 1.
Child Care Act 1980, ss l, 2 and 3.
Children Act 1948, s 1.
Children Act 1989, ss 17, 20, 22, 23, 24, 26, 31 to 42, 43, 44, 47, 81 and 84 and Sch 2, Part I, paras l, 4 and 7.
Children and Young Persons Act 1932, s 9.
Children and Young Persons Act 1933, s 62.,
Children and Young Persons (Amendment) Act 1952, s 2 and Sch para 5.
Children and Young Persons Act 1953, s 1.
Children and Young Persons Act 1969, ss 1, 2 and 28.
Mental Health Act 1983, s 139,
Cases referred to in judgments:A v Liverpool City Council [1982] AC 363; [1981] 2 WLR 948; [1981] 2 All ER 385.
Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310; [1991] 3 WLR 1057; (CA and HL) [1991] 3 All ER 88 (CA) and [1991] 4 All ER 907 (HL).
C v Hampshire County Council (unreported) 7 April 1993, Otton, J.
Caparo Industries plc v Dickman [1989] QB 653; [1989] 2 WLR 316; [1989] 1 All ER 798 (CA); [1990] 2 AC 605; [1990] 2 WLR 358; [1990] 1 All ER 568 (HL).
Cocks v Thanet District Council [1983] 2 AC 286; [1982] 3 WLR 1121; [1982] 3 All ER 1135.
Cutler v Wandsworth Stadiun Ltd [1949] AC 398; [1949] 1 All ER 544.
D v National Society for the Prevention of Cruelty to Children [1978] AC 171; [1977] 2 WLR 201; [1977] 1 All ER 589.
Davy v Spelthorne Borough Council [1984] AC 262; [1983] 3 WLR 742; [1983] 3 All ER 278.
Donoghue v Stevenson [1932] AC 562.
E (A Minor) v Dorset County Council (unreported), 7 April 1993, Otton, J.
Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184; [1981] 1 All ER 715.
Everett v Griffiths [1920] 3 KB 163 (CA); [1921] 1 AC 631 (HL).
F v Wirral Metropolitan Borough Council [1991] Fam 69; [1991] 2 WLR 1132; [1991] 2 All ER 648.
Harrison v Surrey County Council[1994] 2 FCR 1269.
Hart v Frame (1839) 6 CI & F 193.
Hill v Chief Constable of West Yorkshire [1988] QB 60; [1987] 2 WLR 1126; [1987] 1 All ER 1173 (CA); [1989] AC 53; [1988] 2 WLR 1049; [1988] 2 All ER 238 (HL).
Island Records Ltd, Ex parte [1978] Ch 122; [1978] 3 WLR 23; [1978] 3 All ER 795.
Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555; [1957] 2 WLR 158.
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