NA v Nottinghamshire County Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Males |
| Judgment Date | 02 December 2014 |
| Neutral Citation | [2014] EWHC 4005 (QB) |
| Docket Number | Case No: 1NG90726 |
| Court | Queen's Bench Division |
| Date | 02 December 2014 |
[2014] EWHC 4005 (QB)
THE HONOURABLE Mr Justice Males
Case No: 1NG90726
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
NOTTINGHAM DISTRICT REGISTRY
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Philip Davy (instructed by Uppal Taylor Solicitors) for the Claimant
Mr Steven Ford QC & Mr Adam Weitzman (instructed by Browne Jacobson LLP) for the Defendant
Hearing dates: 11 th–25 th November 2014
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mr Justice Males
Introduction
The claimant in this case, NA (now aged 37), had a very unhappy childhood. She alternated between periods of living with her mother (and sometimes her mother's violent and abusive partner) and a variety of foster placements, followed eventually by a succession of residential children's homes. Her unhappy childhood experiences have cast a long shadow over her life.
In this action the claimant makes three claims against the defendant local authority:
i) First, she says that while in her mother's care she suffered physical and emotional abuse by her mother and her mother's partner, a man called Paul Marsden whom she regarded as her father, and that the defendant failed in the common law duty of care which it owed her by failing either to remove her from her mother's care at a young age or to put in place measures to protect her from the abuse which she suffered.
ii) Second, she says that while in the foster care of Mr and Mrs A between 25 March 1985 and 27 March 1986 when she was aged 7 and 8, she suffered physical and emotional abuse by Mrs A for which the defendant is responsible in law.
iii) Third, she says that while in the foster care of Mr and Mrs B between 23 October 1987 and 23 February 1988 when she was aged ten, she suffered sexual abuse by Mr B and physical abuse by Mrs B for which again the defendant is responsible in law.
It is common ground that when providing social work services to the claimant pursuant to its statutory responsibilities, the defendant owed the claimant a common law duty of care to take reasonable steps to ensure that she was not exposed to a reasonably foreseeable risk of injury, whether to her physical or mental health. It is common ground also that the standard of care required pursuant to this duty is that of a reasonably competent social worker in the particular role and circumstances under consideration, assessed against the professional standards of the time. This is the Bolam test ( Bolam v Friern Hospital Management Committee [1957] 1 WLR 582).
The first of the three claims which the claimant makes therefore requires consideration of the circumstances as they existed at the time, in the late 1970s and 1980s, both as presented to the social workers who dealt with the claimant and (if different) as those social workers ought reasonably to have ascertained her circumstances to be. It requires determination of whether, and if so when, the social workers acting in accordance with contemporary professional standards ought to have made a decision either to remove the claimant permanently from her mother's care or to take some other step to ensure her protection. The claimant's case in opening was that she ought to have been placed for adoption at a very young age and that the defendant's social workers failed her thereafter on numerous occasions during her childhood. That is a wide ranging claim which requires consideration of the whole course of the claimant's childhood and the role of the defendant's social services department during that period.
The second and third of the claimant's claims are more narrowly focused allegations of abuse by specific foster parents. Here there is no case that the defendant failed to exercise reasonable care in the selection of Mr and Mrs A or Mr and Mrs B as foster parents for the claimant or in the supervision of these placements during the periods for which they lasted. There was such a pleaded complaint, but the relevant paragraphs of the Particulars of Claim were the subject of a successful summary judgment application by the defendant from which there has been no appeal. Rather the claimant's case as to the abuse which she alleges against Mrs A and the Bs is that the defendant is responsible in law for their abusive conduct, either on the basis of vicarious liability (because the relationship of local authority and foster carer is akin to an employment relationship) or because the defendant owed the claimant a non-delegable duty of care.
Consequently, the allegations involving Mrs A and the Bs fall to be considered on the basis that the defendant's social workers in fact exercised reasonable care in placing the claimant with these foster parents and in supervising the placements, but that unknown to them and despite their exercise of reasonable care, physical and emotional abuse in the first case and physical and sexual abuse in the second case were taking place.
All of the claimant's claims are time barred and have been since 3 July 1998 (i.e. three years after she attained the age of 18). The claimant contends that the limitation period should be disapplied pursuant to section 33 of the Limitation Act 1980. It was, however, common ground that in accordance with the guidance given in B v Nugent Care Society [2009] EWCA Civ 827, [2010] 1 WLR 516, the right approach was to hear the evidence before making any decision as to disapplying the limitation period.
The defendant contends that it is no longer possible to have a fair trial of the claims made against it. It contends that although a substantial volume of documents are available, some documents have not survived, while others which have are difficult to read; that witnesses' memories have faded and, in some cases, potential witnesses have died; and that it is in practice difficult or impossible to recreate the dynamic and fluid situation with which the social workers responsible for the claimant had to deal or to assess their conduct by reference to the standards which prevailed at the time, without the benefit of hindsight or the different understanding of social work and child abuse which has evolved over the intervening years. I must therefore assess the evidence with these considerations in mind in order to ascertain, among other matters, whether a fair trial is possible.
Alternatively, if the limitation period is to be disapplied, the defendant challenges the claimant's account of her childhood save to the extent that it is supported by the surviving records – which, in any event, it says represent the position as it was presented to the social workers concerned and by reference to which their conduct should be assessed. It says that the picture as it appears from those records is of some limited incidents of physical abuse at the hands of Paul Marsden which were appropriately dealt with; of a difficult child who was always desperate to return to her mother's care; of a relationship between the claimant and her mother which both of them wanted to make work but which, because of their incompatible personalities and the claimant's own increasingly disruptive behaviour, kept breaking down; and that in such circumstances the actions taken by the social workers in very challenging circumstances were reasonable.
As for the allegations of abuse while in the foster care of the As and the Bs, there are two issues. The first is whether the abuse alleged by the claimant took place. The defendant denies that it did, relying on evidence from Mrs A and from Mr and Mrs B and other members of their family. The second is whether, if it did, the defendant is responsible in law for that abuse on one or other (or both) of the bases alleged.
This has been the trial of breach of duty and limitation issues. It was originally to have been the trial of the whole action, but sadly the claimant's expert psychiatrist was diagnosed with cancer not long before the trial, making his attendance impossible, at a time when it was not practicable for a new expert to be instructed. Rather than adjourn a trial which was otherwise ready, the solution adopted was to order that breach of duty and limitation should be dealt with now, leaving causation and quantum to be dealt with later if necessary.
The claimant's childhood in summary
I set out below a more detailed narrative, but in summary the claimant's childhood can be divided into the following periods.
Period 1 – 3 July 1977 (birth) to 7 February 1985 (taken into care)
The claimant was born on 3 July 1977 but soon afterwards her mother left and she lived with her father for a short while before being fostered. In July 1978, however, at the age of one, the claimant was reunited with her mother, with whom she lived (with short periods of foster care, either when her mother was giving birth in hospital or for respite purposes) until 7 February 1985 when she and her three siblings were taken into the care of the defendant. This is the first period of complaint, during which the claimant says that she was abused by her mother and her mother's partner, and that there were sufficient signs of such abuse which were or ought to have been apparent to the defendant's social workers for her to be removed from her mother's care or for measures to be put in place to ensure her protection.
In opening the case on behalf of the claimant Mr Philip Davy contended that the defendant ought to have removed the claimant permanently from her mother's care at a very young age (the pleaded case was that she ought to have been placed for adoption at the age of only four months) and certainly before...
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