NXS v Camden London Borough Council
| Jurisdiction | England & Wales |
| Judge | The Hon. Mrs Justice Swift DBE |
| Judgment Date | 16 July 2009 |
| Neutral Citation | [2009] EWHC 1786 (QB) |
| Court | Queen's Bench Division |
| Date | 16 July 2009 |
| Docket Number | Case No: HQ07X02011 |
[2009] EWHC 1786 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mrs Justice Swift Dbe
Case No: HQ07X02011
Ms Elizabeth Anne Gumbel QC (instructed by Irwin Mitchell LLP) for the Claimant
Mr Steven Ford (instructed by Browne Jacobson LLP) for the Defendant
Hearing dates: 8–10 June 2009
The Hon. Mrs Justice Swift DBE:
The claim
An order pursuant to section 11 of the Contempt of Court Act 1981, CPR 5.4C and 39.2 and the inherent jurisdiction of the court, prohibiting publication of details revealing the claimant's identity was made in this case by Master Yoxal on 22 May 2008. That order continues in force.
The claimant (known for the purposes of these proceedings as NXS) was born on 25 November 1975 and is now 33 years old. As a child, she lived in the area of the defendant authority. In 1989, she was taken into the defendant's care. The claimant claims damages against the defendant in respect of personal injury alleged to have been suffered by her as a result of the defendant's negligent failure to protect her from abuse by her earlier removal into care.
Brief summary
During the period from her birth on 25 November 1975 until February 1977, the claimant lived with her mother, Miss P, her grandmother, Mrs P, and a number of Miss P's siblings. The Social Services Department of the defendant was involved in supporting the family at that time. There were concerns about the claimant's safety and welfare. After February 1977, the claimant and Miss P lived mainly at addresses separate from the rest of the family. It seems that the defendant remained in contact with them for some time after February 1977 but that contact ceased before 1989.
In March 1989, following an admission to the Royal Free Hospital (RFH), concern was expressed about possible emotional abuse of the claimant by her mother. Concerns were heightened in April 1989 when Miss P's sister, AB, made a complaint to the National Society for the Prevention of Cruelty to Children (NSPCC), about an incident when Miss P had bitten the claimant. She alleged that the claimant had been physically abused by Miss P for years. On 4 May 1989, the claimant was placed on the Child Protection (CP) Register (in earlier times known variously as the Non Accidental Injury (NAI) Register or the At Risk Register). Matters came to a head in November 1989 when Miss P took the claimant to a police station, saying that she could no longer cope with her. The claimant was taken into voluntary care and remained in care until she attained the age of 18 years in November 1993.
In 2004, the claimant made a complaint to the police about Miss P's ill-treatment of her. A prosecution followed as a result of which, on 13 June 2005, Miss P pleaded guilty to an offence of child neglect relating to her treatment of the claimant between November 1975 and November 1990. On 15 July 2005, she was sentenced to a two year Community Rehabilitation Order. The claimant commenced these proceedings on 23 May 2008.
The issues
Breach of duty
Since the decision of the Court of Appeal in JD and Others v East Berkshire NHS Trust and Others [2003] Lloyds Law Rep Med 552, it has been well established that a local authority which carries out investigations into suspected child abuse owes a duty of care to a child who is potentially at risk. In this case, it is accepted that the defendant owed a duty of care to the claimant, which included a duty to take reasonable steps to avoid or prevent her from suffering personal injury. It is further admitted that professional employees of the defendant owed the claimant a similar duty for which the defendant is vicariously liable.
It is accepted also that the standard of care was that set out in the case of Bolam v Friern Hospital Management Committee [1957]1WLR 582, i.e. the practice of a reasonably competent Social Services Department or social worker, judged by the professional standards prevailing at the material time.
It is further accepted by the defendant that, if the available documents relating to its contact with the claimant and Miss P between the claimant's birth and February 1977 are a full and accurate reflection of the defendant's involvement in the claimant's case, the standard of care provided to the claimant fell below the accepted standard. The majority of the contemporaneous documents (including a running record of contact with the family) were contained in what has been termed the “family file” covering the period from July 1974 until July 1987. The defendant contends that there must have been further documents which are not now available and that, because they are not available, I can draw no conclusions about the adequacy of the care provided during this period. For the claimant, it is not accepted that there were any further documents. In any event, it is contended that, whatever documents originally existed, they could not alter the fact that the defendant took no steps to remove the claimant from Miss P's care and were thereby negligent.
Very few documents relating to Miss P and the claimant are available for the period from February 1977 until 198It is common ground that there was a file dealing with their case which has since been lost. The defendant maintains that, in the absence of the relevant documents, no conclusions can be drawn as to the quality of monitoring during this period. The claimant contends that, had the defendant been carrying out competent and adequate monitoring, it would have known that the claimant was being physically and emotionally (and possibly also sexually) abused and (if it had not done so before) should have taken steps to remove her from her home. Since the defendant did not do so, its care must have fallen below the required standard.
The Particulars of Claim contain allegations of negligence relating to the care provided to the claimant from 1989 onwards. These have not been pursued, it being agreed that they were not causative of any harm over and above that which the claimant had already suffered by 1989.
Factual Causation
The claimant contends that, but for the defendant's breach of duty, she would have been removed from Miss P's care in 1976 or shortly thereafter and would thus have been spared the abuse she suffered subsequently. The defendant disputes that removal from home would have been the inevitable outcome of a proper standard of care.
Injury
It is accepted by the defendant that the claimant was physically assaulted and emotionally neglected by her mother. It is not accepted (although not denied) that the claimant suffered the sexual abuse she now alleges. The consultant psychiatrists instructed by both parties for the purposes of these proceedings agree that she suffers from an emotionally unstable personality disorder and dependence on drugs to which the physical and emotional abuse contributed. Their opinions as to the severity of the disorder and the extent of the contribution made by the abuse are somewhat different.
Limitation
It is agreed that the claim was commenced outside the primary limitation period and is therefore prima facie statute-barred. The claimant asks the court to exercise its discretion under section 33 of the Limitation Act 1980 (the 1980 Act) to allow the claim to proceed. The defendant contends that, having regard in particular to the absence of the documents previously referred to and the unavailability of relevant witnesses (in particular the social worker responsible for the family between November 1975 and February 1977) it is impossible for there to be a fair trial, as a result of which the defendant would be grossly prejudiced if the court were to exercise its discretion under section 33 of the 1980 Act.
Quantum
Notwithstanding the differences between the consultant psychiatrists, and in the event that the claimant establishes breach of duty and factual causation and surmounts the limitation hurdle, the parties agree that, as a result of the abuse, she suffered personal injury for which the reasonable assessment of damages is the sum of £60,000.
The history
The history of events which follows is taken from the defendant's documents.
The family
Miss P's family was well known to the defendant's Social Service Department before the claimant's birth.
In the early 1960s, there had been child protection issues relating to one of Miss P's brothers, G, who was known to have sexually abused his siblings. In 1965, G, who was then 17, was in a Remand Centre in connection with that abuse. An Intermediate Case Conference was held which resolved to inform the psychiatrist in charge at the Centre that it was essential that G did not return home at that time, no doubt because of the continuing risk he would pose to his siblings.
There was further involvement with the family in the early 1970s. The family file contains a running record of contact with the family made by Faith Coller, the designated social worker. The available documents date from July 1974. At that time, the defendant's intervention was mainly directed at giving general support to Mrs P, who had a large number of children (probably 11, although there are inconsistencies in the documents). She was a widow who suffered from poor health and had difficulty coping with her children, some of whom had physical and/or mental problems. Several of her adult children, as well as the younger ones, were still living with her. As a consequence, her flat was overcrowded and there were constant financial difficulties. There were constant arguments, sometimes erupting into violence. Miss P had left home by 1974, by which time she was 18 years old and was working. At that time, Mrs P was having...
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