W and Westminster City Council and Anca Marks and James Thomas
| Jurisdiction | England & Wales |
| Judge | Mr Justice Tugendhat |
| Judgment Date | 09 December 2004 |
| Neutral Citation | [2004] EWHC 2866 (QB) |
| Docket Number | Case No: HQ03X03397 |
| Court | Queen's Bench Division |
| Date | 09 December 2004 |
[2004] EWHC 2866 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Honourable Mr Justice Tugendhat
Case No: HQ03X03397
Mr. Philip Shepherd QC and Mr. Manuel Barca (instructed by Kerman & Co.) for the Claimant
Mr. Edward Faulks QC and Mr. Julian Waters (instructed by Barlow Lyde & Gilbert) for the Defendants
Hearing dates: 29 th November 2004–1 st December
rd December 2004
Mr Justice TugendhatMr Justice Tugendhat
On Monday 29 November 2004 this libel action was listed for trial before myself and a jury. The Defendants are Westminster City Council, who I will refer to as the Council, Anca Marks, and, by amendment this week, James Thomas. The Second and Third Defendant are both social workers employed by the Council. The Second Defendant is supervised by the Third Defendant. In a judgment handed down on 3 December [2004] EWHC 2812 (QB) I set out the circumstances, in which the cases came before the court, my reasons for allowing a late amendment to the Defence, and my decision to order that the trial should proceed by judge alone.
Publication of the words complained of in this action is admitted. There is an issue on the meaning of the words, and there are defences of absolute and qualified privilege. A decision that there is a defence of absolute privilege would determine the case in favour of the Defendant. For this reason, and because it seemed to me that there was need for clarification of the defences of privilege in this case, I decided to hear argument on the issue of absolute privilege. This is my reserved judgment on that issue.
There have been two recent attempts by local authorities to establish a defence of absolute privilege in relation to communications made in the exercise of their powers under the Children Act 1989. Both failed in the Court of Appeal. So this issue might have been disposed of simply by my referring to those authorities as binding on this Court. However, they were both decided before the Human Rights Act 1998 came into force, and Mr Faulks QC for the Council had made clear that the Council wished the matter to be reconsidered in the light of recent developments of the law.
BACKGROUND
The background to this action is as follows. Put very briefly, this Claimant is a man, now aged 70, who is the father of a child with whom the Council's social services department have been concerned. In 1997 he and a lady I shall refer to as the Mother had a relationship, as a result of which a boy called H was born. The Mother already had another child, by a different father, a girl called S who was born in 1991. S is therefore now in her early teens.
The action arises out of words in a document headed "Report for Review Child Protection Case Conference on [B…/[the Claimant]] Family" and dated 31 March 2003. The words complained of are:
'S
S is an 11 year-old young girl…
Due to the fact that S never discusses her difficulties with anyone and keeps all her feelings inside she is vulnerable and at risk… This especially includes risks like drug abuse, prostitution and teenage pregnancy…
Concerns increase if it's considered that there have been numerous reports of S's high level of sexual awareness…
S is also extremely protective of her mother and distrusts any professional related to social services. There is no particularly strong bond between S and [the Claimant] and it is reported that she dislikes him making visits to her school. It has been reported to Social Services that at one stage [the Claimant] regularly took S out for dinner at very expensive restaurants, as well as buying her loads of gifts. During the Core Assessment that was done last year professionals raised the concern that [the Claimant] might be grooming S for prostitution. S has very little contact with her biological father.'
The Claimant pleads that these words meant or were understood to mean that there were serious ground to suspect him of being a predatory paedophile who was grooming S with a view to abusing her sexually, and for prostitution and abusing her trust in him as a father figure. Meaning is in issue, but it is not said that the words are incapable of bearing the pleaded meaning.
Publication is alleged to have been made to five persons who (in addition to the Claimant, and the Second and Third Defendants) attended the Child Protection Case Conference held on 1 st April, the day after the report is dated. The publishees are the Council's Head of Commissioning for Child Protection, the minute taker from the Child Protection Unit, S's School nurse, the Headteacher of the school which S then attended, and the Mother. It must be recognised that publication of an allegation of a sexual nature (if that be the meaning of the words complained of) could in principle be very damaging indeed, even if made to one person, if that person may act upon the publication in a way that affects the future relationship between the Claimant and the family.
There is a plea of aggravation for damage arising out of particulars said to demonstrate the dilatory and inconsistent response of the Council to the Claimant's complaint. Those particulars include at para 8.8 that in a letter of 15 August 2003 the Council:
"(1) admitted that there was 'no evidence' to support any ostensible concern that the Claimant 'might be grooming S for sexual abuse';
(2) conceded that 'no reference to this issue should have been included' in the Report.
Yet despite these admissions, Mr Thomas conspicuously failed to provide any explanation of why Ms Marks had nonetheless seen fit to include the defamatory allegations complained of in the Report. The Claimant has yet to receive any such explanation from Westminster or Ms Marks herself".
The Claim is thus not directed to obtaining a retraction by the Council. The Claimant already has that. His objective is to establish how the words complained of came to be included in the Report. In the Amended Defence para 8.8 "it is admitted that the administrative handling of the Claimant's complaint has fallen short of the ideal".
In the form in which the Re-Amended has been served this week, with my permission, the defence is now pleaded as follows:
"3a The words complained of were written on an occasion of absolute privilege
PARTICULARS
The words were published in a report by Miss Marks and Mr Thomas, who were social workers employed by the First Defendant with responsibility for the B family, for the purposes of a Child Protection Case Conference in relation to S".
THE STATUTORY FRAMEWORK
In order to understand this it is necessary to set out the statutory framework:
i) The Children Act 1989 provides:
"17 Provision of services for children in need, their families and others
(1) It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)—
(a) to safeguard and promote the welfare of children within their area who are in need; and
(b) so far as is consistent with that duty, to promote the upbringing of such children by their families, by providing a range and level of services appropriate to those children's needs. ….
(10) … a child shall be taken to be in need if—
(a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;
(b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; …
and "family", in relation to such a child, includes any person who has parental responsibility for the child and any other person with whom he has been living.
47 Local authority's duty to investigate
(1) Where a local authority—
(a) ….
(b) have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm,
the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child's welfare".
ii) The Local Authority Social Services Act 1970 provides:
"7 Local authorities to exercise social services functions under guidance of Secretary of State
(1) Local authorities shall, in the exercise of their social services functions, including the exercise of any discretion conferred by any relevant enactment, act under the general guidance of the Secretary of State."
Relevant guidance issued under s.7 of the 1970 Act includes:
"Working Together to Safeguard Children—A guide to inter-agency working to safeguard and promote the welfare of children (1999)'
"Framework for the Assessment of Children in Need and their Families (2000)'
The statutory framework, and earlier versions of the statutory guidance were explained in X v Bedforshire CC [1995] 2 AC 633. At p747 it is stated that
"'The Child Protection Conference is an essential stage in each individual case. It brings together the professionals involved in that case and the family. It decides whether a child should be put on the child protection register and makes recommendations for action."
Mr Faulks relied on passages from the speech of Lord Browne-Wilkinson, in which he gives reasons why there should be no liability in negligence, as also providing reasons why there should be absolute privilege in defamation. The passages at p750–751 are as follows:
"First, in my judgment a common law duty of care would cut across the whole statutory system set up for the protection of children at risk. As a result of the ministerial directions contained in "Working Together" the protection of such children is not the exclusive...
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