W and Others v Essex County Council and Another

Local authority – Duty of care – Statutory duty – Fostering agreement –Foster parents and their children claiming damages following sexual abuse of children by boy placed with them by local authority – Foster parents specifically stating not willing to foster a known sexual abuser – Social worker deliberately misleading foster parents – Local authority and social worker applying to strike out claims – Whether local authority immune from liability to foster parents and their children where performing duties imposed by statute.

In October 1992 the first and second plaintiffs (the parents) agreed in writing to foster G, a 15-year-old boy, in reliance on the oral assurances of the defendant council and a social worker in their employment (the second defendant), that a suspected or known sexual abuser would not be fostered with them and in answer to the parents’ specific question, that G was not so known nor suspected. In fact the defendants knew that three years previously G had received a caution for indecent assault on his sister. During the month G stayed with the family the plaintiffs’ children (the fourth to sixth plaintiffs) were all sexually abused. The children suffered psychiatric illness and the parents claimed to have suffered psychiatric shock. The plaintiffs brought an action against the defendants claiming damages for negligence by breach of the duty of care owed to the plaintiffs and for negligent misstatement due to the denial of G’s prior caution. The plaintiffs further claimed that the council were in breach of an express or implied term of the fostering agreement of October 1992 and that the council were vicariously liable for the second defendant’s misfeasance in a public office. On the defendants’ application to strike out the statement of claim as disclosing no reasonable cause of action, the judge struck out the plaintiffs’ claim in contract and misfeasance and the parents’ claim in negligence. The judge refused, however, to strike out the children’s claims in negligence, holding inter alia that it was arguable that a social worker placing a child with foster parents was under a duty of care to provide the foster parents with such information as a reasonable social worker should provide, that the second defendant was arguably in breach of the duty and the council was vicariously liable. The plaintiffs appealed; the defendants cross-appealed against the judge’s refusal to strike out the children’s claims in negligence.

Held – (1) Although no claim in damages lay in respect of decisions by a local authority in the exercise of a statutory discretion, if the decision complained of was so unreasonable that it fell outside the ambit of the discretion conferred, there was no a priori reason for excluding common law liability. In the instant case, the giving of information to the parents was part and parcel of the defendants’ performance of their statutory powers and duties, and it had been conceded that it was arguable that those decisions fell outside the ambit of their discretion. Accordingly, since it had also been conceded that the damage to the children was reasonably foreseeable and that there was sufficient proximity, the question for the court was whether it was just and reasonable to impose a duty of care on the council or the second defendant. Having regard to the fact that a common law duty of care would cut across the whole statutory system set up for the protection of children at risk, that the task of the local authority and its servants in dealing with children at risk was extraordinarily difficult and delicate, that local authorities might adopt a more defensive approach to their duties if liability in damages were imposed, that the relationship between parents and social workers was frequently one of conflict and that the plaintiff children’s injuries were compensatable under the Criminal Injuries Compensation Scheme, it was not just and reasonable to do so. It followed that no duty of care was owed to the plaintiff parents, who in any event were secondary victims as regards their claim for psychiatric illness. Furthermore, the plaintiffs’ claims in contract and for misfeasance could also not succeed, since, inter alia, the fostering agreement was entered into under statutory obligation and so was not a true contract, and the second defendant had not exceeded any power but had acted pursuant to the statutory powers conferred on the council. The appeal would therefore be dismissed.

(2) (Stuart-Smith LJ dissenting) It was arguable that the policy considerations against imposing a common law duty of care on a local authority in relation to the performance of their statutory duties to protect children did not apply when the children whose safety was under consideration were those in respect of whom they were not performing any statutory duty. Accordingly, since, in the instant case, the plaintiff children were not children for whom the council had carried out any immediate caring responsibilities under the child welfare system but were living at home with their parents, and express assurances had been given that a sexual abuser would not be placed in that home, their claim should proceed. The cross-appeal would therefore also be dismissed.

Decision of Hooper J [1998] 2 FCR 232 upheld.

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The parents and their four children (the plaintiffs) appealed from the decision of Hooper J ([1998] 2 FCR 232) on 7 July 1997 striking out under RSC Ord 18, r 19 the claims of the plaintiffs against Essex County Council (the council) and a social worker, Anthony Golden, employed by the council (the defendants) for misfeasance in a public office and for breach of contract, and the claim of the parents for negligence and negligent misstatement. The judge had refused to strike out the claims of the four children in negligence and the defendants cross-appealed against that part of the judge’s decision. The facts are set out in the judgment of Stuart-Smith LJ.

Allan Levy QC and Elizabeth Gumbel (instructed by Sternberg Reed Taylor & Gill, Barking) for the plaintiffs.

Edward Faulks QC and Andrew Warnock (instructed by Barlow Lyde & Gilbert) for the council.

Jeremy Simison (instructed by Wortley Redmayne & Kershaw, Chelmsford) for the social worker.

Cur adv vult

2 April 1998. The following judgments were delivered.

1. The first two plaintiffs (the parents) and their minor children (the children) claim damages for personal injuries against the defendants, Essex County Council (the council) and Anthony Golden, a social worker employed by the council. The claim arises out of the fostering by the W family of a boy, then 15 years old, G. It is alleged that G was placed with the family in breach of a specific oral assurance that someone known...