S v Gloucestershire County Council; L v Tower Hamlets London Borough Council and another
Jurisdiction | England & Wales |
Judgment Date | 2000 |
Date | 2000 |
Court | Court of Appeal (Civil Division) |
Local authority – Negligence – Child sex abuse – Children in care – Local authorities placing children with foster parents – Children alleging sexually abused by foster parents – Children claiming damages for negligence – Local authorities applying successfully to strike out claim as disclosing no reasonable cause of action – Whether claims should have been struck out.
Practice and procedure – Application to strike out – Appeal – Modern procedure under Civil Procedure Rules 1998 – Whether appeals should additionally be treated as applications for summary judgment – Criteria to be satisfied for a summary judgment application to succeed where strike out application would not – CPR 3.4(2), 24.2.
In two separate appeals heard consecutively the issue arose as to whether the claimants’ claim for damages for negligence against the defendant local authorities, who were responsible for placing them with foster parents who had allegedly sexually abused them whilst in their care, should have been struck out on the ground that they disclosed no reasonable cause of action.
In the first appeal, S was placed with his foster parents, Mr and Mrs M, on 20 December 1989. On 9 February 1990 following allegations by a boy that he had been indecently assaulted by Mr M, S was removed from that placement. Whilst initially S denied that Mr M had made any approach to him, on 8 October 1991 he gave an account to his key worker of sexual interference by Mr M. Following an attempted overdose on 23 May 1993, a social worker wrote of S’s need for urgent counselling, which S subsequently refused to continue. On 12 March 1997 S began proceedings against the defendants, Gloucestershire County Council. In his statement of claim he stated that he suffered from severe symptoms of post-traumatic stress syndrome resulting from the sexual abuse he suffered from Mr M, and from the defendants’ failure to deal adequately with that abuse after they were aware it had occurred or was likely to have occurred, and that the damage was caused or substantially contributed to by the defendants’ negligence. In September 1997 the defendants issued a summons to strike out S’s claim under the former RSC Ord 18, r 19(1) on the ground that it disclosed no reasonable cause of action. The judge ordered that the claim be struck out and S appealed. On appeal the
defendants contended, inter alia, that the present case should be seen as a child abuse case where, in the light of X (minors) v Bedfordshire CC[1995] 3 FCR 337, it was not just or reasonable to impose of duty of care.
In the second appeal, L and her half-brother were received into voluntary care by Tower Hamlets London Borough Council on 16 November 1979 and thereafter placed with the foster parents, Mr and Mrs W, who had recently been approved by Havering London Borough Council to act as short-term foster parents. Whilst Mr and Mrs W had approached Havering about becoming long-term foster parents, they were only approved as short-term foster parents because there were reservations about the emotional maturity of Mr W, and the placement of L and her half-brother with them was intended to be short-term. However, it was not until 10 July 1981 that L and her half-brother returned to their mother’s care. In January 1982 L disclosed that she had been sexually assaulted by Mr W in mid-1981. In 1994 Mr W was convicted of a number of sexual assaults, including two on L, and sentenced to ten years’ imprisonment. On 4 June 1996 L began proceedings in the county court against both local authorities alleging, inter alia, that each were under a duty of care to her which included an obligation to exercise reasonable supervision and monitoring of a young and vulnerable child; that the defendants knew or were on notice that the Ws were inappropriate to be appointed as foster parents and that fostering L with them was an unreasonable risk; and that Tower Hamlets negligently placed and Havering negligently continued the placement of L with the Ws. On 6 February 1997 the defendants applied, successfully, under the former CCR Ord 13, r 5(1)(a) to strike out L’s claim on the ground that it disclosed no reasonable cause of action, and which was upheld on appeal. L appealed to the Court of Appeal.
On appeal, although the decisions appealed from were made under the old procedure, the parties agreed that the appeals should proceed under the CPR in accordance with Pt 51. CPR r 3.4(2) provided that the court might strike out a statement of case if it appeared to the court that the statement of case disclosed no reasonable grounds for bringing or defending the claim. CPR r 24.2 empowered the court to give summary judgment against the claimant on the whole of a claim or on a particular issue, if the court considered that the claimant had no real prospect of succeeding on the claim or issue and there was no other reason why the case or issue should be disposed of at a trial. Each of the local authorities invited the Court of Appeal to consider deciding the appeal upon applications for summary judgment under CPR r 24.2, if the court was not persuaded that the decisions appealed from should be upheld under CPR r 3.4. To that end, the court was invited to consider evidence to be derived from the contemporary notes from the local authorities’ respective social services files.
Held – (1) It was clear from established principles that in an ordinary case a local authority defendant were unlikely to establish a defence which relied on a blanket immunity and there would be a blanket immunity for that purpose if it were decided without reference to the particular facts that all cases which
had certain basic characteristics were not justiciable; or that in every case with certain basic characteristics it was not just or reasonable to impose a duty of care. Accordingly it would be incorrect to say that cases which might be labelled as child abuse cases were bound to fail as a class. The critical question was a composite one which embraced the alleged duty of care and its breach in the context of the damage alleged to have been caused, and the court had to consider the nature of the actions and decisions of the local authority which were said to have been negligent. Whilst a decision whether or not to take a child said to have been abused away from its natural parents might often be acutely difficult, many of the decisions about the care and upbringing of a child once taken into care, difficult though they may be, might not have the acute complications, strains and conflicts identified in X (minors) v Bedfordshire CC[1995] 3 FCR 337. The conclusion that cases of this kind might often be capable of being formulated as viable causes of action in negligence said little or nothing about whether they were likely to succeed on the facts; Barrett v Enfield London BC[1997] 3 FCR 145 followed; H v Norfolk CC[1997] 2 FCR 334 disapproved.
(2) In the circumstances of the present case it was appropriate to treat the appeals as additionally applications for summary judgment under CPR r 24.2. Cases such as the present case, by the nature of their subject matter, required anxious scrutiny, but that did not modify the tests which the rules required. The court would only strike out a statement of case under CPR r 3.4(2)(a) in the clearest case. For a summary judgment application to succeed in a case where a strike out application would not succeed, the court would first need to be satisfied that all substantial facts relevant to the allegations of negligence, which were reasonably capable of being before the court, were before the court; that those facts were undisputed or that there was no real prospect of successfully disputing them; and that there was no real prospect of oral evidence affecting the court’s assessment of the gaps being filled. Secondly, the court would need to be satisfied that upon those facts, there was no real prospect of the claim in negligence succeeding, and that there was no other reason why the case should be disposed of at a trial. If by that process the court did so conclude and give summary judgment, there would, have been proper judicial scrutiny of the detailed facts of the particular case such as to constitute a fair hearing in accordance with art 6 of the European Convention on Human Rights.
(3) In the first appeal, the composite question whether it was just and reasonable to impose a duty of care of a scope which embraced the damage which S claimed to have suffered, including the question whether the acts or omissions of the defendants caused that damage, was one to be determined by an examination of the details of the actual facts. Whilst there were no facts before the court one way or another about the selection of Mr and Mrs M, and that part of S’s case was therefore speculative, it was part of a history which, in the light of the very serious abuse alleged to have occurred within days of S’s arrival in the family, required investigation before it might be rejected. Although S had denied explicitly that he had been abused and did not express
the allegation until 18 months later, that was part of a history to be taken as a whole and the facts before the court were insufficient to enable the court to say that that element of the claim had no real prospect of success. There might well be difficulties in S’s claim when it came to trial but the statement of claim did disclose reasonable grounds for bringing the claim, and it could not be said that it had no real prospect of success. The appeal would be allowed and the defendants’ application for summary judgment would be dismissed.
(4) In the second appeal, Havering had given extensive and very careful consideration to the suitability of Mr and Mrs W as foster parents. As the events took place more than 20 years ago the court had as full an account as of the social worker’s investigations and the considerations which led Havering to approve the Ws, and oral evidence would not...
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