Stephanie Lawrence v Pembrokeshire County Council

JurisdictionEngland & Wales
Judgment Date13 May 2011
Neutral Citation[2007] EWCA Civ 446
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: B4/2006/1281
Date13 May 2011

[2007] EWCA Civ 446

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM FROM SWANSEA DISTRICT REGISTRY

THE HONOURABLE MR JUSTICE FIELD

5MT00758

Royal Courts of Justice

Strand, London, WC2A 2LL

Before

The Right Honourable Lord Justice Auld

The Right Honourable Lord Justice Scott Baker and

The Right Honourable Lord Justice Richards

Case No: B4/2006/1281

Between
Stephanie Lawrence
Appellant
and
Pembrokeshire County Council
Respondent

Mr Robert Weir (instructed by Hugh James) for the Appellant

Mr Alastair Hammerton (instructed by Dolmans) for the Respondent

Hearing dates: 28 th & 29 th November 2006

Auld LJ:

Introduction

1

This is an appeal by the claimant, Mrs Stephanie Lawrence, from an order of Field J of 13 th June 2006 striking out her claim in negligence against Pembrokeshire County Council (“the Council”) and entering judgment for the Council on that claim.

2

The issue on the appeal is whether, in the light of the advent of Article 8 of the European Convention on Human Rights (“the ECHR”) to our law on the coming into force in October 2000 of the Human Rights Act 1998 (“the HRA”), a local authority may owe a duty of care to a parent of a child when exercising, through social workers, its duties to protect children from their parents, in this instance by placing them on the Child Protection Register as being at risk. More generally, the issue is whether the common law should now recognise that those, whether public authorities or individuals employed by them, responsible for the protection of children from abuse by their parents or others owe a duty of care to parents when investigating and/or taking steps in protection of their children whom they consider to be at risk of parental abuse.

3

In JD v East Berkshire Community Health NHS Trust & Ors [2005] 2 AC 373 ( “East Berkshire”), the House of Lords, in a number of appeals arising out of facts that pre-dated the coming into force of the HRA, by a majority, upheld the ruling of the Court of Appeal ( [2004] QB 558), that the common law, notwithstanding the important interest of both parent and child in their family life reflected in Article 8, should not be developed to recognise such a duty. The common ratio of the Court of Appeal and the House of Lords was that it would be contrary to principle to recognise such a duty, for it would conflict with the more pressing duty to the child to protect him or her from the risk of parental abuse when suspected.

4

When the matter reached the Court of Appeal it consisted of three conjoined appeals from determinations of a judge on a preliminary issue of law in claims by parents of children whom professionals employed by public authorities had removed from the family home because of their suspicions—later discovered to be unfounded – of child abuse within the home. The House of Lords, Lord Bingham dissenting, upheld the Court of Appeal's ruling that lack of care and skill of doctors and social workers, leading to the removal of the children from their homes could not render them or their employers liable in negligence to the parents.

5

In this case Mrs Lawrence's claims against the Council were, under sections 6 and 7(1)(a) of the HRA, for breach of her Article 8 right to respect for her family life with her four children, alternatively in negligence for personal injury. Her claims arose out of conduct of social workers employed by the Council towards her and her children in placing the children's names on the Child Protection Register, conduct that she claimed, not only wrongly interfered with their family life, but also caused her psychiatric injury.

6

In the proceedings before Field J, Mrs Lawrence's pleaded complaints were the same under both heads of claim. Whilst the Council acknowledged that she had an arguable claim under Article 8, it relied on the one year limitation period imposed by section 7(5)(a) of the HRA, which had elapsed before she brought the proceedings. Whether, pursuant to section 7(5)(b), it may be equitable to extend that period has yet to be decided. As to the claim in negligence, the Council contended, as it does on this appeal, that it was bound to fail because of the rulings in East Berkshire that the law does not recognise a duty of care by healthcare or local authorities to parents against whom they suspect, in good faith but wrongly, of child abuse.

7

As the issue for the Court is solely one of principle and the presumed facts for the purpose of determining it have been helpfully summarised by Field J in paragraphs 4 to 17 of his judgment, I need only record that the Lawrence family, including the father of Mrs Lawrence's children, came to the attention of the Council's Child Protection Team in about 1999. As a result of sporadic and inconclusive attention from various members of that team over the next three years, the Council, in April 2002, placed the children on the Child Protection Register as being at risk of physical and/or emotional harm from Mrs Lawrence and/or their father. The Council caused them to remain on the Register for about 14 months before it finally removed them from it in June 2003. In December 2004 the Ombudsman upheld a number of complaints of Mrs Lawrence of maladministration on the part of the Council, and recommended that it should pay £5,000 to her in recognition of the distress and damage to her reputation and of her time and trouble in pursuing her complaints. The Council paid her that sum, and it would fall to be set off against whatever she might be awarded by way of damages in these proceedings.

The judgment of Field J

8

Mrs Lawrence's case before Field J was the same as that for the parent/claimants in East Berkshire, save only that the HRA applied to the facts on which she relied. Mainly on the strength of that distinction, she renewed the forensic call for development of the common law to recognise the duty to parents rejected in East Berkshire. Field J declined to do so. He held, at paragraphs 43 to 48 of his judgment, that the reasoning of the majority of their Lordships that a duty of care is not owed by investigating professionals to parents suspected of child abuse was not affected by the advent of Article 8 to our law. In summary, he concluded that there remained the need—identified by their Lordships – for the law to avoid the creation of conflicting duties that could prejudice the interests of children. This is how he put it, at paragraphs 45 to 47:

“… there is no good reason why the law as propounded by the majority in …[ East Berkshire] should be modified because a claim by a parent honestly but mistakenly thought to be abusing his child may be available under the HRA. … The proposition that if it were held that an investigating profession owed duties to both the child and the suspected parent or parents there would be a real risk of the professional being deflected from deciding what is in the best interest of the child is an entirely straightforward one ….

46. … if it is against the public interest that professionals investigating child abuse should owe a duty of care to parents suspected of such abuse the common law should not pretend that the public interest is something different merely to keep pace with Convention jurisprudence. Indeed, in my view, the way forward is to apply Article 8(2) so as to give effect to the public interest identified in … East Berkshire. Thus, if the interest of children suspected of being victims of child abuse demands that the investigating professionals should owe no duty of care to parents suspected of being responsible for the abuse, the courts of England and Wales should hold that the removal of a child or the inclusion of its name on the 'at risk register' due to an honest but mistaken view that the abuse is the work of one or both of the parents is necessary in a democratic society. I can see nothing in the Strasbourg jurisprudence that compels a contrary approach.

47. Even if the Convention and the Strasbourg jurisprudence compel the court to give a remedy where for the reasons given in … [ East Berkshire] the common law prefers non-justiciability, I think that the claimant should be restricted to a claim under the HRA. Justice does not require that he should also be able to sue in negligence. It is true that under section 7(5) of the HRA there is a limitation period of only one year but it is unlikely that a claimant would not quickly appreciate that his right to respect for family life has been interfered with and the period can be extended if in all the circumstances it is equitable to do so. It is also true that under section 8(3) damages can only be awarded if the court is satisfied that the award is necessary to afford just satisfaction, but pursuant to section 8(4), in deciding whether to award damages the court must take into account the relevant Strasbourg jurisprudence, and, as we have seen, the ECtHR awarded damages in TP and KM and P, C and S and Venema. Moreover, the ECtHR's approach to the award of damages for breach of Article 8 has been more generous than the common law's approach in that the ECtHR has awarded damages for the 'loss of an opportunity' and for distress, whereas in analogous cases the common law requires proof on the balance of probabilities that the child would not have been removed from the parents if the measures not taken had been taken and that claimant has suffered a recognised psychiatric injury.”

The East Berkshire case in the Court of Appeal

9

The Court of Appeal in the East Berkshire case considered the same argument now advanced by Mrs Lawrence, save that it was invited to consider whether the enactment of the HRA,...

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