W v Essex County Council

JurisdictionEngland & Wales
JudgeLORD JUSTICE STUART-SMITH,LORD JUSTICE JUDGE,LORD JUSTICE MANTELL
Judgment Date02 April 1998
Judgment citation (vLex)[1998] EWCA Civ J0402-17
Docket NumberQBENI 97/1085 and 1089 CMS l
CourtCourt of Appeal (Civil Division)
Date02 April 1998

[1998] EWCA Civ J0402-17

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

(MR JUSTICE HOOPER)

Royal Courts of Justice

Strand, London WC2A 21L

Before:

Lord Justice Stuart-Smith

Lord Justice Judge

Lord Justice Mantell

QBENI 97/1085 and 1089 CMS l

W l-6
and
Essex County Council And Another

MR ALLAN LEVY QC and MISS E.A. GUMBEL (instructed by Messrs Sternberg Reed Taylor & Gill, Barking) appeared on behalf of the Appellants (Plaintiffs).

MR EDWARD FAULKS QC and MR ANDREW WARNOCK (instructed by Messrs Barlow Lyde & Gilbert, London EC3A 7NJ) appeared on behalf of the Respondents (Defendants).

LORD JUSTICE STUART-SMITH
1

Introduction

2

1. The first two plaintiffs (the parents) and their minor children (the children), claim damages for personal injuries against the Essex County Council (the Counci1) 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 or suspected of being a sexual abuser would not be fostered with them and, furthermore, that in answer to a specific question they were wrongly told that G was not so known or suspected. In fact G, as the defendants knew, had some three years previously received a caution for indecent assault on his sister. During the period from 7 April 1993 to 7 May 1993 the children, who were then between 7 and 12 years old, were all sexually abused by G with the result that they have suffered psychiatric illnesses and the parents are said to have suffered psychiatric shock.

3

2. These facts are said to give rise to the following causes of action:

(i) In negligence against both defendants. It is alleged that the Council are in breach of a duty of care to the plaintiffs and are also liable under the principle in Hedley Byrne Ltd v Heller & Partners for negligent misstatement. The second defendant is also alleged to be in breach of a duty of care and liable for negligent misstatement. The Council are alleged to be vicariously liable for the second defendant's torts.

(ii) The Council are alleged to be in breach of an express and/or implied term of the contract of fostering.

(iii) The second defendant is alleged to be liable for the tort of misfeasance in a public office; the Council are said to be vicariously liable for this tort.

(iv) A claim in deceit against the second defendant was abandoned by Mr Levy QC.

4

3. The case came before Hooper J. on an application by the defendants to strike out the Statement of Claim as disclosing no reasonable cause of action. The Judge in W v Essex County Council [1997] 2 FLR 535, struck out the claims in contract and misfeasance in a public office. He also struck out the parents'claim in negligence on the basis that they were secondary victims but could not arguably show that their illness was the result of the 'sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind' ( Alcock v Chief Constable of South Yorkshire [1992] l A.C. 310, 410 F). He refused to strike out the children's claims in negligence. He held 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 that the Council was vicariously liable. He also held that the claim based on negligent misstatement was arguable against the second defendant and that the Council was again vicariously liable.

5

The proceedings in the Court of Appeal

6

4. The plaintiffs appeal with the leave of the Judge. The parents appeal against the dismissal of the claims in negligence. All plaintiffs appeal against the dismissal of the claims in contract and misfeasance in a public office. The defendants' cross-appeal against the refusal of the Judge to strike out the claims on behalf of the children in negligence. Each side has served notice seeking to support some of the Judge's conclusions on other grounds.

7

The essential facts as alleged in the Statement of Claim

8

5. The parents applied to the Council to become full-time specialist adolescent foster carers (the term used by the Council for foster parents). The parents were required to undergo a vetting process and a course in July/August 1992. At various times during this process the parents orally informed those whom they were dealing with in the Council that they were not willing to accept any adolescent who was known or suspected to be a sexual abuser. This was because of their concern for their young children. The conversations were said to have taken place with NP and PC. They received oral assurances from both these people that their objections were understood and no such adolescent would be placed with them. In October 1992 the parents signed an agreement entitled 'Specialist Foster Carer Agreement' which was dated 18 September 1992.

9

6. G was placed with them on 7 April 1993. It is alleged that the parents made specific inquiry of the second defendant as to whether G was a sexual abuser and the second defendant deliberately lied to them about it. Those lies are said to have continued while G was in the house. During the month that G was in their house he is said to have systematically and persistently physically and sexually abused each of the children. It is alleged that in the Council's and the second defendant's knowledge G was an active sexual abuser and /or alternatively they had reasonable cause to believe or suspect that he was. It is further alleged that a social worker employed by the Council became aware at the end of April 1993 that G was making allegations that the two youngest children had been sexually molested by another person. It is said that the social worker failed to disclose the information with the result that G remained with the plaintiffs and continued to abuse the children. It is alleged that he abused the fifth plaintiff on the night of 6/7 May 1993. The parents are said to have suffered post traumatic shock when they discovered what had happened.

10

7. The defendants admit in the Defence that they knew that three years previously G had been cautioned for sexually abusing his sister. They also admit that during the month he was with the plaintiffs G sexually abused the children. It is only right to point out, however, that other matters are in issue. But since this is a striking out application, the Court has to proceed on the basis that the allegations in the Statement of Claim are true. None of the claims should be struck out unless it is clear and obvious that in law they cannot succeed. X v Bedfordshire Council [1995] 2 A.C. 633 per Lord Browne-Wilkinson at p740H-74lD.

11

The Statutory Framework

12

8. The statutory framework governing children in care of the Council and the placement with foster parents is set out in great detail in the judgment of Hooper J. at 538H-543C. For present purposes a summary of the relevant provisions will suffice. In placing children in foster care, local authorities act pursuant to wide ranging statutory powers, duties and discretions under the Children Act 1989 (the 1989 Act), the Foster Placement (Children) Regulations 1991 (the Children Regulations), the Arrangements for Placement of Children (Genera1) Regulations 1991 (the General Regulations) and The Children Act 1989 Guidance volume 3 ("the Guidance") which has statutory force and is issued by the Secretary of State pursuant to Local Authority Social Services Act 1970, s.7. See per Lord Browne-Wilkinson in X v Bedfordshire at p746E.

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9. Central to the local authority's duties is the duty to safeguard and protect the welfare of the child taken into care (1989 Act s.22(3)(a)). This is described as the "primary duty" in the Guidance (paragraph 2.5). Further, in making any decision about the child, the local authority must ascertain and take into account, as far as reasonably practicable, the wishes and feelings of the child, the child's parents, any person who has parental responsibility and any other person whom the local authority considers relevant (1989 Act, s.22(4) and (5)). Local authorities should use this discretion to consult all the relevant statutory agencies which are and which have been involved with the child (Guidance paragraph 2.51). The local authority has a discretion to exercise its powers in a manner inconsistent with its duties under the 1989 Act, but only if appears to the local authority that it is necessary to do so for the purpose of protecting members of the public from serious injury (1989 Act, s.22 (6)).

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10. The local authority has an express duty to provide accommodation for a child in care. This may be with foster carers, in a community home, in a voluntary home, in a registered children home or by means of making such other arrangements as seem appropriate to the local authority and which comply with any regulations made by the Secretary of State (1989 Act, s.23(1) and (2)). The General Regulations require a local authority, before placing a child, to make immediate and long-term arrangements for that placement insofar as is reasonably practicable (reg. 3). In making those arrangements the local authority has to take into account various considerations including the child's health and educational history (reg. 4 and Schedule l-3). The arrangements are to be recorded in writing. A case record is to be created (if not already kept) in relation to the child (reg. 8). This record is to include various items, including a copy of any written report in...

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