S v Gloucestershire County Council; Tower Hamlets London Borough Council and Havering London Borough Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAY,LORD JUSTICE TUCKEY,LORD JUSTICE ROBERT WALKER |
| Judgment Date | 14 March 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J0314-2 |
| Docket Number | Case No: QBENI 98/0102/A2 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 March 2000 |
[2000] EWCA Civ J0314-2
Lord Justice Robert Walker
Lord Justice May and
Lord Justice Tuckey
Case No: QBENI 98/0102/A2
CCRTI 98/0482/B1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM (1) THE HON. MR JUSTICE TOULSON: (2) H.H. JUDGE PLATT. BOW COUNTY COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
(1) Miss E A Gumbel Q.C.: (2) M Hartman & Z Miah (instructed by (1)Bristol BS7 8TP Woodward: (2) D Levene & Co. for the Appellants)London N22 4HF
(1) T Kerr (Mr M Chamberlain): (2) Miss K Thirwall Q.C. & B Roche (instructed by (1) Veitch Penny Exeter EX1 1UP: (2) Browne Jacobson for the Respondents) Notts. NG1 6BJ
Introduction
We heard these two appeals consecutively. They each raise closely related issues. The parties have agreed that it is sensible to deal with them in a combined judgment.
When each of the now adult claimants were children, they were for a time in the care of their local authority living with foster parents. They each claim that their foster father abused them sexually and that in consequence they have suffered physical and long term psychological damage. They claim that the damage was caused by the negligence of the local authority who were responsible for placing them with their foster parents and for subsequently monitoring their placement. Each of the foster fathers was later convicted of sexual offences with children. In each case, the defendant local authorities successfully applied to the court for an order striking out the claimants' claims on the ground that they disclosed no reasonable cause of action. The applications relied on the House of Lords decision in X (minors) v. Bedfordshire County Council [1995] 2 A.C. 633 and the Court of Appeal decisions in H. v. Norfolk County Council [1997] 1 F.L.R. 384 and Barrett v. Enfield London Borough Council [1997] 3 W.L.R. 628. Permission to appeal was given in each case in early 1998. It became known that Barrett v. Enfield was under appeal to the House of Lords. Accordingly the hearings in these and other similar appeals were by agreement delayed until after the House of Lords gave their decisions, which they did on 17th June 1999 — [1999] 3 W.L.R. 79. The hearings of delayed appeals were then arranged. This court originally had four similar cases listed to be heard consecutively. Two of these were compromised, leaving the court to decide the cases of D.S. and R.L.
D.S v. Gloucestershire County Council
D.S. was born on 16th March 1976. He is now nearly 24. He has a brother, W., born on 25th August 1977. On 17th March 1982, D. was placed into care by order of the Wigan Juvenile Court under section 1 of the Children and Young Persons' Act 1969. In June 1982, when he was aged 6, he was placed with foster parents, Mr and Mrs S. On 10th October 1983, he and his brother were adopted by his foster parents. In 1985 he moved with his adoptive parents to live in Gloucestershire. In about June 1989, they asked for help from the defendant authority in caring for D. and on 6th September 1989 he was placed by the defendant at Cam House School. On 24th November 1989, Mr and Mrs S. asked the defendants to take D. into care. The defendants agreed to do so under section 2 of the Child Care Act 1980. He was placed for a short time with temporary foster parents until, on 20th December 1989, he was placed with Mr and Mrs Sm. as his foster parents.
On 9th February 1990, when D. was within about 5 weeks of his 14th birthday, there was a meeting at Gloucester Social Services Department to consider allegations made by a youngster at Army Cadets (not D.) that Mr Sm. had indecently assaulted him. It was decided that the correct procedure would be to seek an alternative placement immediately for D. and then to plan for the long term. D. was collected from Cam House and placed at JB House. It was explained to him why he was moving. A written note records that he said that "he liked being at Mr and Mrs Sm.'s and that there had never been any involvement/suggestion of anything sexual involving him, nor had he heard of anything from others." Three days later, there was a suggestion from another boy that "D. had something to tell, but did not feel able to do so yet." He was interviewed on the 12th and 14th February 1990. It is evident from the context of the notes of these interviews that the "something to tell" related to the possibility that D. had seen or heard something indicative of a possible assault on another boy, not himself. The note records that, on the 12th February, he said that he did not see or hear anything. On 14th February, he gave certain limited information relevant to another boy. The note, however, concludes: "D. repeated that he had never had any approaches made to him."
Later in February 1990, D. was placed with new foster parents, Mr and Mrs C. In November 1990, he moved to yet further foster parents, Mr and Mrs Wa. In June 1991, he asked to be moved to live in a children's home because he said that he was unable to cope with living in a family. He was moved to JB House. He had by this time been involved in a number of offences. By June 1991, his adoptive parents were saying that they did not want further contact with him. In August 1991, D. moved to E House. On 8th October 1991, he gave an account to his key worker, PS, of sexual interference of him by Mr Sm. while he was his foster parent during the seven week or so period between December 1989 and February 1990. PS recorded this account in writing. On 15th October 1991, D. made a 5 page written statement to the police on this subject. His account at this stage was of a number of incidents or attempts of manual sexual interference with him initially through his clothing but later inside his trousers. It seems that prosecution of Mr Sm. was at this stage considered. But by December 1991 the police had decided not to proceed. Meanwhile, D. himself was making appearances in court. For instance, notes indicate that on the 11th November 1991 he had a court appearance at which he received a fine.
On 24th January 1992, he was placed at a Crisis Intervention Centre for two weeks. On 14th February 1992, he was placed in bed and breakfast accommodation by the defendants. His behaviour was disruptive and he was arrested for motoring offences. In May 1992, he was remanded by the court into the care of the defendants. They placed him in a flat at W House, which was described by his social worker as presenting "an unacceptable risk to his physical well-being". She drew attention to certain defects in the premises. On 4th January 1993, D. was moved to accommodation in Birmingham. In March 1993, he was sentenced by a Youth Court to one year's supervision. On 24th May 1993, he took a large overdose of paracetamol tablets. The following day, he came to the defendants' Area Office to discuss his suicidal feelings. He is recorded as having discussed how one issue which caused him concern was "abuse which is alleged to have occurred by a foster carer several years ago. D. said he wanted to discuss this with a male social worker and make a complaint to the police." This was apparently arranged. A letter written by a social worker dated 29th June 1993 speaks of D.'s need for urgent counselling regarding his suicidal feelings. He was alleging that he was abused in 1989 and a disclosure interview was being arranged. In July 1993, D. stated that he would kill Mr Sm. and also expressed fears that Mr Sm. would discover his whereabouts. In July and August 1993, there appear to have been difficulties with D. refusing to continue counselling and not attending a meeting. In September 1993, a project worker suggested that D. was obviously out of control. In the Autumn of 1993, he attended a month's project, whose objects included building a trusting relationship as a basis to work on past traumas and how these related to his current behaviour. The conclusion of the Project Guide was that D. demonstrated an unwillingness to participate in the programme and was no longer in control. He was subsequently arrested for a number of offences and remanded in Gloucester prison. He was sentenced to periods of detention in a Young Offenders' Institution.
These are summary highlights of D.'s deeply disturbed teenage life as contained in the statement of claim and supplemented from documents which are before this court.
Proceedings against the defendants were started by a writ issued on the 13th March 1997. The statement of claim was served on the 24th July 1997. It is said that D. suffers from severe symptoms of post traumatic stress syndrome resulting from the sexual abuse he suffered from Mr Sm. and from the defendants' failure to deal adequately with this abuse after they were aware that it had occurred or was likely to have occurred. It is said that the damage was caused or substantially contributed to by the defendants' negligence. Served with the statement of claim was a medical report dated 9th June 1997 of Dr Friedman, a consultant psychiatrist. D. was at the time in prison in Belfast. The report relates D.'s account to Dr Friedman of his personal history and gives his account of details of sexual abuse of him by Mr Sm. The details include manual interference and masturbation, but also extremely painful buggery on no less than 14 occasions. He told Dr Friedman that he was being buggered every other day after the first occasion. Dr Friedman's report then gives an account of D.'s further experiences while he was in care. There came a time when he was arrested...
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