TF v London Borough of Lewisham
| Jurisdiction | England & Wales |
| Judge | Lord Justice Keene |
| Judgment Date | 03 September 2009 |
| Neutral Citation | [2009] EWCA Civ 1051 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2008/0835 |
| Date | 03 September 2009 |
[2009] EWCA Civ 1051
IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MAYOR'S & CITY OF LONDON COUNTY COURT
(HIS HONOUR JUDGE BIRTLES)
Before: LORD JUSTICE KEENE
Case No: B3/2008/0835
Ms E A Gumbel QC, Mr L Keegan and Mr A Malsher (instructed by Messrs Anthony Gold) appeared on behalf of the Appellant
Mr A Weitzman (instructed by Messrs Browne Jacobson) appeared on behalf of the Respondent.
Lord Justice Keene:
This is a renewed application for permission to appeal from a decision of HHJ Birtles sitting at the Mayor's and City of London County Court, permission having been refused on the papers by Hughes LJ who gave very detailed reasons.
The trial judge dismissed the applicant's claim for negligence arising out of alleged breach of the defendant authority's duty of care owed to the applicant when she was a child, resulting in psychiatric injury. The applicant was born on 29 May 1984 and her allegations relate to the period up to about November 1994. It was agreed that she does now suffer from some features of an emotionally unstable personality disorder.
The applicant gave evidence at the trial. She alleged various forms of abuse by a number of people, either when she was in the care of her mother or when in the defendant's care. The judge rejected the allegations of sexual abuse against someone who I will describe as RD, a friend and neighbour of the mother's, but those allegations related to a time when the applicant was about two years ten months old.
There was amongst the records a note by a social worker on a house visit in March 1987 when the applicant was described as pointing between her legs and saying that she hurt. However, she also indicated that she needed to go to the lavatory and when she returned she no longer had the pain. When the applicant's mother alleged in April of that same year that the applicant had told her that RD had put his penis in her vagina and her anus the allegations were investigated. The applicant herself was interviewed by the police and denied any sexual interference by RD and a medical examination then took place. That revealed no signs of sexual abuse. This was in April 1987.
The other allegations of sexual abuse related to the son of a foster carer, Mrs B, whom the applicant was placed with between first of all mid-January 1989 and late May 1989 and then again between July 1989 and August 1990. Her son, LB, was aged seven or eight at these times. The judge found that LB did not sexually abuse the applicant. The allegations were made by her in October 1992, the first time when she was aged eight. There was no evidence, the judge observed, of contemporaneous complaints by the applicant about this. The only support for the allegations came from evidence about the use of sexual language by the applicant in March 1989.
In addition to these allegations of sexual abuse, the claims of negligence were also based on the defendant's failure to take her into care despite the mother's own shortcomings in caring for the applicant. There was no doubt at all that there were shortcomings in the care which the mother gave to her daughter. However, the judge rejected the claim of negligence, given the statutory framework at that time and the state of knowledge that would have been available and the test to be applied when considering whether professional negligence had been established against social workers who, as he pointed out, have to make difficult decisions about whether to remove a child from his or her own family.
Various points are now made on behalf of the applicant by way of criticism of the judgment. I shall seek to condense them and I take them in a slightly different order from that in which they have been advanced this morning by Ms Gumbel QC on behalf of the applicant. I start with the allegations that there was sexual abuse by the man...
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