Case No: QBENI 98/0102/A2
CCRTI 98/0482/B1
 
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM  (1) THE HON. MR JUSTICE TOULSON:
(2) H.H. JUDGE PLATT. BOW COUNTY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL

Tuesday 14th March 2000

B e f o r e :

LORD JUSTICE ROBERT WALKER
LORD JUSTICE MAY
and 
LORD JUSTICE TUCKEY
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	(1)D.S:
(2) R.L	Appellants	
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	(1)GLOUCESTERSHIRE C.C.(2) LONDON BOROUGH OF TOWER HAMLETS AND LONDON BOROUGH OF HAVERING	Respondents	
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040,  Fax No:  0171 831 8838
Official Shorthand Writers to the Court)
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(1) Miss E A Gumbel Q.C.: (2) M Hartman & Z Miah (instructed by  (1)Bristol BS7 8TP Woodward: (2) D Levene & Co. for the Appellants)London N22 4HF
(1) T Kerr (Mr M Chamberlain): (2) Miss K Thirwall Q.C. & B Roche (instructed by  (1) Veitch Penny Exeter EX1 1UP: 
(2) Browne Jacobson for the Respondents) Notts. NG1 6BJ 
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Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice May:
Introduction
We heard these two appeals consecutively.  They each raise closely related issues.  The parties have agreed that it is sensible to deal with them in a combined judgment.

When each of the now adult claimants were children, they were for a time in the care of their local authority living with foster parents.  They each claim that their foster father abused them sexually and that in consequence they have suffered physical and long term psychological damage.  They claim that the damage was caused by the negligence of the local authority who were responsible for placing them with their foster parents and for subsequently monitoring their placement.  Each of the foster fathers was later convicted of sexual offences with children.  In each case, the defendant local authorities successfully applied to the court for an order striking out the claimants’ claims on the ground that they disclosed no reasonable cause of action.  The applications relied on the House of Lords decision in X (minors) v. Bedfordshire County Council [1995] 2 A.C. 633 and the Court of Appeal decisions in H. v. Norfolk County Council [1997] 1 F.L.R. 384 and Barrett v. Enfield London Borough Council [1997] 3 W.L.R. 628.  Permission to appeal was given in each case in early 1998.  It became known that Barrett v. Enfield was under appeal to the House of Lords.  Accordingly the hearings in these and other similar appeals were by agreement delayed until after the House of Lords gave their decisions, which they did on 17th June 1999 - [1999] 3 W.L.R. 79.  The hearings of delayed appeals were then arranged.  This court originally had four similar cases listed to be heard consecutively.  Two of these were compromised, leaving the court to decide the cases of D.S. and R.L.

D.S v. Gloucestershire County Council
D.S. was born on 16th March 1976.  He is now nearly 24.  He has a brother, W., born on 25th August 1977.  On 17th March 1982, D. was placed into care by order of the Wigan Juvenile Court under section 1 of the Children and Young Persons’ Act 1969.  In June 1982, when he was aged 6, he was placed with foster parents, Mr and Mrs S.  On 10th October 1983, he and his brother were adopted by his foster parents.  In 1985 he moved with his adoptive parents to live in Gloucestershire.  In about June 1989, they asked for help from the defendant authority in caring for D. and on 6th September 1989 he was placed by the defendant at Cam House School.  On 24th November 1989, Mr and Mrs S. asked the defendants to take D. into care.  The defendants agreed to do so under section 2 of the Child Care Act 1980.  He was placed for a short time with temporary foster parents until, on 20th December 1989, he was placed with Mr and Mrs Sm. as his foster parents.  

On 9th February 1990, when D. was within about 5 weeks of his 14th birthday, there was a meeting at Gloucester Social Services Department to consider allegations made by a youngster at Army Cadets (not D.) that Mr Sm. had indecently assaulted him.  It was decided that the correct procedure would be to seek an alternative placement immediately for D. and then to plan for the long term.  D. was collected from Cam House and placed at JB House.   It was explained to him why he was moving.  A written note records that he said that “he liked being at Mr and Mrs Sm.’s and that there had never been any involvement/suggestion of anything sexual involving him, nor had he heard of anything from others.”   Three days later, there was a suggestion from another boy that “D. had something to tell, but did not feel able to do so yet.”  He was interviewed on the 12th and 14th February 1990.  It is evident from the context of the notes of these interviews that the “something to tell” related to the possibility that D. had seen or heard something indicative of a possible assault on another boy, not himself.  The note records that, on the 12th February, he said that he did not see or hear anything.  On 14th February, he gave certain limited information relevant to another boy.  The note, however, concludes:  “D. repeated that he had never had any approaches made to him.”

Later in February 1990, D. was placed with new foster parents, Mr and Mrs C.  In November 1990, he moved to yet further foster parents, Mr and Mrs Wa.  In June 1991, he asked to be moved to live in a children’s home because he said that he was unable to cope with living in a family.  He was moved to JB House.  He had by this time been involved in a number of offences.  By June 1991, his adoptive parents were saying that they did not want further contact with him.  In August 1991, D. moved to E House.  On 8th October 1991, he gave an account to his key worker, PS, of sexual interference of him by Mr Sm. while he was his foster parent during the seven week or so period between December 1989 and February 1990.  PS recorded this account in writing.  On 15th October 1991, D. made a 5 page written statement to the police on this subject.  His account at this stage was of a number of incidents or attempts of manual sexual interference with him initially through his clothing but later inside his trousers.  It seems that prosecution of Mr Sm. was at this stage considered.  But by December 1991 the police had decided not to proceed.  Meanwhile, D. himself was making appearances in court.  For instance, notes indicate that on the 11th November 1991 he had a court appearance at which he received a fine.

On 24th January 1992, he was placed at a Crisis Intervention Centre for two weeks.  On 14th February 1992, he was placed in bed and breakfast accommodation by the defendants.  His behaviour was disruptive and he was arrested for motoring offences.  In May 1992, he was remanded by the court into the care of the defendants.  They placed him in a flat at W House, which was described by his social worker as presenting “an unacceptable risk to his physical well-being”.  She drew attention to certain defects in the premises.  On 4th January 1993, D. was moved to accommodation in Birmingham.  In March 1993, he was sentenced by a Youth Court to one year’s supervision.  On 24th May 1993, he took a large overdose of paracetamol tablets.  The following day, he came to the defendants’ Area Office to discuss his suicidal feelings.  He is recorded as having discussed how one issue which caused him concern was “abuse which is alleged to have occurred by a foster carer several years ago.  D. said he wanted to discuss this with a male social worker and make a complaint to the police.”  This was apparently arranged.  A letter written by a social worker dated 29th June 1993 speaks of D.’s need for urgent counselling regarding his suicidal feelings.  He was alleging that he was abused in 1989 and a disclosure interview was being arranged.  In July 1993, D. stated that he would kill Mr Sm. and also expressed fears that Mr Sm. would discover his whereabouts. In July and August 1993, there appear to have been difficulties with D. refusing to continue counselling and not attending a meeting.  In September 1993, a project worker suggested that D. was obviously out of control.  In the Autumn of 1993, he attended a month’s project, whose objects included building a trusting relationship as a basis to work on past traumas and how these related to his current behaviour.  The conclusion of the Project Guide was that D. demonstrated an unwillingness to participate in the programme and was no longer in control.   He was subsequently arrested for a number of offences and remanded in Gloucester prison.  He was sentenced to periods of detention in a Young Offenders’ Institution.  
These are summary highlights of D.’s deeply disturbed teenage life as contained in the statement of claim and supplemented from documents which are before this court.

Proceedings against the defendants were started by a writ issued on the 13th March 1997.  The statement of claim was served on the 24th July 1997.  It is said that D. suffers from severe symptoms of post traumatic stress syndrome resulting from the sexual abuse he suffered from Mr Sm. and from the defendants’ failure to deal adequately with this abuse after they were aware that it had occurred or was likely to have occurred.  It is said that the damage was caused or substantially contributed to by the defendants’ negligence.  Served with the statement of claim was a medical report dated 9th June 1997 of Dr Friedman, a consultant psychiatrist.  D. was at the time in prison in Belfast.  The report relates D.’s account to Dr Friedman of his personal history and gives his account of details of sexual abuse of him by Mr Sm.  The details include manual interference and masturbation, but also extremely painful buggery on no less than 14 occasions.  He told Dr Friedman that he was being buggered every other day after the first occasion.  Dr Friedman’s report then gives an account of D.’s further experiences while he was in care.  There came a time when he was arrested almost every day.  He served various sentences.  At the age of 17 he was unable to cope.  He continued to feel extremely isolated, feeling that he had no support, no family and no qualifications.  He moved around the country stealing in various places and never having a proper job.  Some time in about 1996, he moved to Belfast where he was soon sentenced to 2 years' imprisonment, apparently for stealing £23,000 in cash from a petrol station at which he had obtained work.

Dr Friedman’s conclusion was that D. showed the typical features of post traumatic stress disorder.  He believed that these problems were directly attributable to his abuse by Mr Sm.  He says that an important question is the lack of recognition and treatment that D. received at the time of the sexual abuse against him.  Dr Friedman expresses the view that, apart from a brief interview, no proper investigation was made.  An investigation and “multi-disciplinary discussion” could have led to the abuse being disclosed at the time.  A medical examination would probably have shown signs of sexual abuse.  Because the abuse was not identified at the time, there was delay in D. receiving psychiatric treatment.  Early intervention is important in treatment of post traumatic stress disorder.  When he disclosed some details in 1991, his case does not seem to have been properly managed and a further opportunity for psychological treatment was missed.  Dr Friedman expresses the opinion that earlier recognition of the abuse would probably have prevented or ameliorated his antisocial behaviour.  

We were told that at some stage Mr Sm. was convicted of sexual offences against children or youths.  Neither party had details but it was understood that the convictions did not relate to offences against D.  There has thus been no judicial determination establishing that D.’s allegations against Mr Sm. are true, but the case has proceeded so far upon the assumption that they are.  In the circumstances of Mr Sm.’s conviction, D. made an application to the Criminal Injuries Compensation Board, who assessed compensation at £12,000, which was reduced to £9,000 since he had been convicted of criminal offences.  We are told that this award was made on the strength of a statement to the police.   

Particulars of the negligence which D. alleges against the defendants are pleaded at some length.  They may be summarised as:
	(a)  Failing to operate a competent system of investigation and vetting of foster parents;
	
	(b)  Placing D. with Mr and Mrs Sm. as foster parents whom they knew or ought to have known were unsuitable;
	
	(c)  Failing to make sufficient investigation in February 1990 to elicit then the fact that D. had been the object of very serious sexual abuse;
	
	(d)  Failing to give him proper care, counselling or medical treatment throughout his time in care, but particularly in February 1990, when they should have discovered the sexual abuse; and in October 1991 and July 1993 when he did give details of abuse;
	
	(e)  Generally failing to look after him properly while he was in care.

This negligence is said to have been the cause of his severe psychiatric condition and its consequences upon his life and behaviour.  If Mr and Mrs Sm. had been properly assessed, D. would not have been placed with them.  If his placement had been properly supervised, he would have been removed from them earlier.  If the abuse had been elicited at the outset, counselling and treatment would have minimised its effect.  Proper counselling and treatment at later stages would have improved matters.  

In September 1997, the defendants issued a summons to strike out D.’s claim under Order 18 rule 19(1)(a) of the former Rules of the Supreme Court on the ground that the statement of claim disclosed no reasonable cause of action.  Upon such an application, no evidence was admissible.  The allegations in the statement of claim were assumed to be true.  These included the matters in Dr Friedman’s report.  On 3rd November 1997, Toulson J heard the application and ordered that the claim be struck out.  He refused leave to appeal.  Leave to appeal was subsequently granted by Roch L.J. on 15th January 1998. 

Toulson J observed that the claim was brought in negligence at common law, but against a statutory background.  This included section 22 of the Children Act 1989, which provides that it shall be the duty of a local authority looking after any child to safeguard and promote his welfare.  The judge considered the pleaded allegations in detail.  He then referred at length to the decision of the House of Lords in the Bedfordshire cases, in both of which the claims were struck out.  The judge then said:
	
	"I have gone into those matters in some detail because it is argued in the present case that the plaintiff’s claim is distinguishable on its facts from the Bedfordshire case.  It is quite correct that the facts are different, but it seems to me that one must have full and proper regard to the considerations and principles which caused the House of Lords to take the view which they did in the Bedfordshire case.
	
	There is, of course, a factual distinction in the present case that the plaintiff was taken into care whereas none of the plaintiffs were taken into care in the Bedfordshire case."

The judge pointed out that an attempt to rely on that distinction had failed in the Court of Appeal in H. v. Norfolk, a case which has some factual similarity with D.’s case.  The claim in H. v. Norfolk was struck out by Harrison J. and leave to appeal against his decision was refused by the Court of Appeal.  Harrison J. rejected a submission that the public policy considerations which led Lord Browne-Wilkinson to his conclusion in the Bedfordshire cases did not apply in relation to children who had been taken into care.  Harrison J’s reasoning and decision had been approved by Simon Brown L.J. in the Court of Appeal when leave to appeal was refused, and Simon Brown L.J’s judgment was itself approved and endorsed by the Court of Appeal in Barrett v. Enfield.  Toulson J. considered the judgement of Lord Woolf M.R. in Barrett v. Enfield and then said:

	"In my judgment, the considerations which caused the courts to hold that no action lay against the local authority in those cases to which I have referred, for breach of a direct duty to the plaintiff, apply with equal force in the present case.  The obligations on the part of the local authority are created by a statutory scheme; there is nothing in the statutory scheme to indicate an intention that they should give rise to an action for damages for breach, and the contrary is not being argued.  Although one can see factual distinctions which can be drawn between the present case and the cases to which I have referred, I cannot see any reason in logic, policy or justice why the local authority should itself owe the common law duties alleged in the present case."

The judge then considered the possibility of the defendants being vicariously liable for  negligence of their social workers.  He also considered the distinction sometimes drawn between operational and policy matters.  He derived this from Lord Browne-Wilkinson’s analysis in the Bedfordshire cases as the correct approach
	
	"If an act done by a person is one where he might ordinarily owe a duty of care towards persons affected by that act, he may be able to say that the act was done pursuant to a statutory power which involved a discretion.  If the choice whether to act in that way or not involves social policy considerations, a court might conclude that the question of the justifiability of the act or the decision is not justiciable at all.  If, on the other hand, that question is justiciable, but the act done was one which fell within the discretionary area, a claim could be brought at common law for damages only if the act fell outside any permissible exercise of the discretion."
The judge then quoted from the opinion of Lord Browne-Wilkinson in the Bedfordshire cases at page 739A:

	"If the plaintiff’s complaint alleges carelessness, not in the taking of a discretionary decision to do some act, but in the practical manner in which that act has been performed (e.g. the running of a school) the question whether or not there is a common law duty of care falls to be decided by applying the usual principles i.e. those laid down in Caparo Industries plc v. Dickman [1990] 2 A.C. 605, 617-618."

Against that test, the judge considered the matters alleged to constitute negligence by the social workers.  He considered that most of them would not give rise to a direct action against the social workers and that they raised questions which involve matters of difficulty, delicacy and judgment of the very sort which the courts had recognised were not justiciable.  He considered the submission that failing sufficiently to investigate and discover the abuse at the time when D. was removed from Mr and Mrs Sm.’s care should be characterised as operational negligence by the social workers.  He said that the allegation was not that D. was exhibiting manifest injury, but that the defendants had failed to ask sufficiently skilled questions to elicit his history of sexual abuse.  He said that, sadly and all too often, children very often keep quiet about abuse which they have suffered and do not tell their parents or friends.  The basis of the allegation was that social workers are to be considered in the same position as if they had been parents.  The question therefore was whether it was desirable that children should be able to sue their parents for failing to uncover psychological injuries which they had suffered from others.  Having considered the cases, the judge was of the firm conclusion that the matters alleged were not of the kind which the Court of Appeal had in mind in Barrett v. Enfield as the sort of claims which could be brought against a social worker.  Rather, decisions about how far a child should be questioned about abuse which he may have suffered might involve very difficult matters that are far removed from the sort of conduct instanced by Lord Woolf in Barrett v. Enfield as the area which might give rise to claims for common law negligence.  The judge accordingly came to the conclusion that the claim could not succeed.

 R.L. v. London Boroughs of Tower Hamlets and Havering

R.L. was born on 7th March 1975 of mixed racial parentage.  She is now 25.  She has a younger half brother, J.C., born on 14th February 1978.  The mother of both children is T.H.  Her partner in November 1979 was a Mr C.  They lived with the two children in the London Borough of Tower Hamlets.  In early November 1979, she and her partner went to the Tower Hamlets Social Services Department to say that they wanted the two children to be received into care instantaneously.  They gave a vague explanation about them both being freelance photographers who had to go to the Caribbean to produce a book.  They admitted that on occasions they had left the children for periods after rows.  The Tower Hamlets Social Services Department made investigations.  They were told by the NSPCC that they had received information that the two children were being left alone at nights.  Mr Shean of the Social Services Department made a home visit and found Miss H. and the children there alone.  The mother related difficulties in her relationship with Mr C. who had ambitions to become a photographer of exotic fruits.  She showed no positive reaction to the children and was very unemotional to the idea of them being received into care.  Mr Shean felt that there were very real dangers in this situation with a fragmenting relationship.  The children were very poorly clothed.  He therefore telephoned the Tower Hamlets Foster Care and Adoption Department who managed to locate a couple in the London Borough of Havering who were prepared to accept the children, although this was the first time they had been used as foster parents.  It was made clear to the mother and Mr C. that Tower Hamlets were thinking of a fostering period of 6 months, at the end of which they should either be almost ready to accept the children back or be looking seriously at the local authority assuming parental responsibility for them.   It was in these circumstances that R. and her half brother were received into voluntary care on 16th November 1979 and placed with Mr and Mrs W. as foster parents in the London Borough of Havering.

It was earlier in 1979 that Mr and Mrs W. had made enquiries of the London Borough of Havering about the possibility of becoming long term foster parents.  They had been married a number of years and wanted a family but had not been successful.    of the Havering Social Services Department made a number of home visits to the Ws to assess their suitability as foster parents.  She saw them singly and together.  She visited them on 25th June 1979, 24th and 25th July 1979, and 4th and 6th August 1979.  Her notes of these visits are very full and careful covering some 6 or 7 closely typed pages.  On 26th September 1979, she wrote a 4 page detailed Final Assessment Report.  The conclusion of this report is in these terms:
	"Mr and Mrs W. appear to have a real love of children and dearly want a family.  Mrs W. is no doubt the stronger personality of the two and has helped her husband to mature and stabilise and become the hard working responsible person he is today.  Apart from their childlessness, they enjoy life and there is a happy atmosphere in their home.
	
	I believe that they have the necessary qualities to undertake fostering on a long term basis and, bearing in mind their need for a child of their own, possibly with a view to adoption.  The age group most suitable would appear to be 0-8 years of age and either boy or girl would be acceptable.  I would, therefore, recommend them to be long term foster parents (possibly with a view to adoption) for a girl or boy aged between 0-8 years."

Mrs H added a note to this report on 15th October 1979 in these terms:

	"In view of the doubts expressed as to whether Mr W. is emotionally mature enough to share his wife with a long term foster child, it has been suggested that Mr and Mrs W. be approved as short term foster parents to enable them to gain experience and for the fostering section to make a final decision as to their suitability as long term foster parents.  Mr and Mrs W. have agreed to short term placements and see it as a preparation for long term fostering in the future.  I would, therefore, recommend them as short term foster parents for a child of 0-10 years and either boy or girl would be a possibility."
On 10th October 1979, Mrs Pringle discussed the matter with Mrs H, and it was agreed that there were some reservations about the suitability of Mr and Mrs W. for long term fostering.  The main area of concern centred around Mr W. who seemed likely to be somewhat immature emotionally because of unhappy experiences in his earlier life.  The conclusion of this discussion is recorded as follows:

	"It was decided that Mrs H should discuss with Mr and Mrs W. the possibility of them being used only for short term placements for at least a year (if possible, with the Fostering Officer remaining in contact) or them being used as a Social Aunt and Uncle attached to one of the Children’s Homes."

Mrs H visited the Ws on 12th October 1979.  She explained that, since they had no children of their own and were somewhat inexperienced in caring for children, they would be well advised to start their fostering experience by taking a short term placement.  They agreed to do so and saw it as a preparation for a long term commitment later.  Mrs H’s notes of this visit conclude:

	"In view of the doubts expressed in respect of this couple, it is suggested that the situation is watched closely and reviewed after each placement enabling the Fostering Department to make a final decision as to their suitability as  long term foster parents."

On 16th October 1979, the Ws were formally approved as prospective foster parents for one child, a girl or a boy, 0-8 years “on short term basis only”.  A Havering internal memorandum dated 17th October 1979 explained the basis of this approval to the Area Social Services Officer.   The memorandum concluded:

	"It is therefore essential that when a child is placed with them, close supervision is kept, and subject to your agreement that Mrs H maintains contact with the Ws in the initial stages in order to assess their potential long term fostering capabilities."

It was following this process of assessment and approval by the London Borough of Havering that R. and her half brother were placed with Mr and Mrs W. as foster parents on 16th November 1979.  The arrangement was one of co-operation between Tower Hamlets and Havering and it is obvious that without Havering’s help Tower Hamlets would have been unable to deal with the crisis which R’s mother and her partner had presented to them.  It started off as a short term placement of, not one, but two children.  But there was every reason for fostering R. and her half brother in the same home and it looks as if there was no other home readily available.  

Mrs H visited the Ws and the two children on 19th November 1979.  She recorded certain initial difficulties, such as matters concerning the children’s clothing, which are of no present consequence.  Mrs H subsequently visited the home at approximately monthly intervals.  She made her usual very careful and detailed notes of these visits.  We have seen these notes up to that of March 1980.   They record that the children were being well looked after and appeared healthy and happy.  There were problems with the children’s parents and grandparents.  The main concern was uncertainty about the intentions of the mother and her partner.  In January 1980 they were apparently soon going on a 6 week holiday to the West Indies.  Mrs W. and her husband are recorded as being concerned about the children’s future in view of the vagueness of the parent’s situation and “the seeming lack of knowledge by the Social Worker”.    They were very much aware that the children were in voluntary care and that they could be reclaimed at any time by one or both parents.  The note includes this passage:

	"Despite all the difficulties that they appeared to have had to deal with Mr and Mrs W. are coping very well and the children seem to be responding well to the love and caring and stable situation that they are in at the present."

At Mrs H’s February visit, R. was waiting for her at the front door and appeared to be pleased to see her, having remembered her from her last visit.  There was information that the children’s parents had apparently gone on a 6 month holiday to the West Indies.  The Social Worker had not visited since Christmas.  Mrs H’s note of this visit contains this passage:

	"There appears to be no negative reaction from the children since not seeing their parents and in fact when their parents have visited they are prepared to stand and wave their parents goodbye.  They don’t even cry when they go.  I asked Mrs W. whether there have been any behaviour problems with either of the children.  Mrs W. admitted that Sh. had wetted Mrs W.’s mother’s bed and this appeared to be quite deliberate as the bed was made up and there was no need for her to be there.  Also she dug a needle into Mrs W.’s new carpet and having been told firmly not to touch Mrs W.’s jewellery the child deliberately found the jewellery and spread it around the bedroom."

There is a gap in Mrs H’s notes between her March 1980 visit and a visit in September 1980.  It seems probable that this is because records have gone astray.  However that may be, there are then notes of her visits at approximately monthly intervals between September 1980 and January 1981.  These notes contain no material indicative of the children being ill-treated in any way by either of their foster parents.  There were, however, continuing difficulties with the children’s parents and sometimes their grandparents and uncertainty about the children’s future.  There is some complaint of inattention by Tower Hamlets’ Social Workers, although there is documentary record of home visits by them at approximately monthly intervals between November 1979 and March 1980, and then between August 1980 and February 1981.  As with Havering, there seems to be a gap in the documents between about March and August 1980.

On 10th July 1981, R. and her half brother returned to their mother’s care.  They had thus been in the foster care of Mr and Mrs W. from 16th November 1979 to 10th July 1981.  The placement had originally been short term in circumstances of uncertainty as to the intention of the children’s parents.  The uncertainty did not resolve in early 1980 and the children remained with them as foster parents who were apparently looking after them well.  

In January 1981, Havering considered reassessing the Ws as foster parents for long term fostering.  On 28th January 1981, Mrs H wrote in these terms:

	"Mr and Mrs W. have coped admirably with extremely difficult parental involvement, lack of support  over long periods from Tower Hamlets Social Services Department and continued indefiniteness about the future arrangements for these children.  Despite all these problems the care of the children has been excellent and they have responded to the happy settled environment provided by the foster parents.  There has been no indications of any ill effects on Mr and Mrs Ws’ marriage, and in fact their bond seems to have strengthened.  I would therefore recommend that Mr and Mrs W. now be approved as long term foster parents."

The following day it was suggested that the London Borough of Tower Hamlets should assess the Ws with a view to approving them as long term foster parents for these children.  On 10th August 1981, after the children had returned to their mother, Mrs H again wrote saying that she had no doubt that the Ws had proved their abilities and that she would recommend that approval should be given for them to be long term foster parents.  It was again said that Havering must wait for a report on the Ws from Tower Hamlets before making a decision.  A report by a member of Tower Hamlets Social Services Department dated 18th September 1981 stated:

	"The Ws desperately want to have children of their own but are unable to have them for medical reasons.  This was their first fostering experience and they were quite rightly only approved for short term placements.  However the 2 C. children stayed for 18 months and both the Ws and the children experienced a lot of unhappiness when the time came for them to leave.  This Department must take a lot of the blame for the unpleasant situation at the end - no plans for the children’s future were made at the beginning.  There was no social worker available for a long period and the Ws were given no guidance in dealing with the mother.  I was assigned to the case after 9 months but by that time the Ws had become very attached to the 2 attractive children and had hopes that they would be eventually able to adopt.  These hopes combined with the rudeness of the children’s mother led to a complete breakdown in relations and in the end the mother was banned from their home and could only see her children at an independent venue.
	
	The Ws certainly gave the children a warm and caring environment and handled the early settling in period with confidence.  My main reservations concern their tendency to become over-attached and their resultant inability to cope with separation and loss."

On 18th September 1981, Havering approved the Ws to act as long term foster parents.

In early January 1982, R. disclosed that she had been sexually assaulted by Mr W. in mid 1981.  On 16th May 1994, Mr W. was convicted of a number of sexual assaults, including two on R.  He was sentenced to 10 years imprisonment, which indicates the seriousness of his total offending.  R. subsequently received an award from the Criminal Injuries Compensation Board of £7,500, a reduced amount on account of offences which she herself had committed.  Her proceedings were issued in the Bow County Court on 4th June 1996.  

The particulars of claim allege that each of the defendants were under a duty of care to her which included an obligation to exercise reasonable supervision and monitoring of the fostering of a young and vulnerable child.  It is said that the defendants knew or were on notice that the Ws were inappropriate to be appointed as foster parents and that fostering R. with them was an unreasonable risk.  It is said that Tower Hamlets negligently placed and Havering negligently continued the placement of R. with Mr and Mrs W. as foster parents.  The essence of the particular allegations is:

	(a)  the defendants, and in particular Havering, should have concluded from facts known to them that the Ws were not suitable to be foster parents;
	
	(b)  each defendant acted contrary to the recommendation and decision that fostering placements with the Ws should be of a single child and short term; and
	
	(c)   the defendants insufficiently monitored the fostering of R. with the Ws.

It is said that the negligence alleged caused R. to suffer sexual assaults from Mr W. on several occasions in the middle of 1981 and that this in turn caused her shock and pain and psychological and physical injury.  She claims compensation for irreparable effects of the assaults on her mental condition and their consequent effect on her ability to earn her future livelihood.  

There has been served on her behalf a psychiatric report and letter from Dr Tonks, a consultant psychiatrist who interviewed her in July 1996.  The report states that she was seriously abused sexually when she was 6.  She was 21 at the time of the report and had shown evidence of personality disorder through her teenage years with multiple pregnancies, truanting, shoplifting, fraud and one overdose.  Her educational and work record was very poor.  She blamed her trouble on the sexual abuse.  Dr Tonks stated that there is a correlation between sexual abuse in childhood and a disturbed and unstable personality in the teens and adulthood but that correlation is not one hundred per cent.  There were other factors involved in her personality disturbance.  Nevertheless, Dr Tonks would have to conclude that her experience of  serious sexual abuse on top of all the other factors would have played a significant role in her instability, particularly with regard to her sexual behaviour.  

On 6th February 1997, the defendants applied under the former County Court Order 13 rule 5(1)(a) to strike out R’s claim on the ground that it disclosed no reasonable cause of action.  In September 1997, Deputy District Judge Worthington ordered the action to be struck out.  On 23rd January 1998, H.H. Judge Platt dismissed R.’s appeal against the order of the Deputy District Judge.  On 30th January 1998, the judge refused her leave to appeal.  Leave to appeal to this court was granted by Sir Anthony McCowan on 27th March 1998.  

Judge Platt decided the appeal by reference to the Bedfordshire cases, Barrett v. Enfield in the Court of Appeal and H. v. Norfolk County Council.  He said that the facts of this case were strikingly similar with those in H. v. Norfolk.  On the authorities that he had considered, there were only two possible avenues open to her.  The first was to allege that the original decision to place her with Mr and Mrs W. as foster parents and the subsequent decision by Havering to continue that placement was so unreasonable that they fell outside the ambit of the statutory discretion conferred upon the defendants.  He considered that the matters known to the defendants were not sufficient to support such a conclusion.  The second possibility was to contend that the defendants could be vicariously liable for negligence of social workers in an operational manner.  He considered that it might be arguable that some of the matters complained of fell into the category of operational matters.  But he considered that the case was bound to fail on causation.  R. would have to establish that her present injuries were the result of operational failures by social workers and not the result of discretionary decisions taken with the best of intentions at the time.  He considered that, as in Barrett v. Enfield and H. v. Norfolk, this could not be established and the claim was bound to fail.  

The Law

The cases decided by the House of Lords under the general title X (Minors) v. Bedfordshire County Council [1995] 2 A.C. 633 were in two groups.  There were three cases grouped as “the education cases” and two cases grouped as “the child abuse cases”.  The child abuse cases were X v. Bedfordshire and M v. Newham London Borough Council.  In the Bedfordshire case, five plaintiffs claimed damages for personal injury arising out of breach of statutory duty and negligence by the defendant council.  They alleged that they had suffered parental abuse and neglect and that the council had received serious reports of this treatment.  It was said that the council had failed to investigate the matter adequately or to protect the plaintiffs from further harm.  In particular, it was said that until a particular date the council had failed to exercise statutory powers to institute care proceedings and had failed to exercise statutory duties to identify children in their area who were in need and to take measures to protect them from harm.  In the Newham case, a child and her mother claimed damages for personal injury against the local authority, the area health authority and a consultant psychiatrist employed by the health authority.  There had been enquiries to establish whether the child had been sexually abused, and, if so, by whom.  It was said that the psychiatrist and a social worker employed by the local authority had mistakenly identified the abuser as the mother’s partner.  They had concluded that the mother could not protect the child from further abuse and had obtained a court order removing the child from her mother, placing her in foster care and restricting the mother’s access to her.  The claim was for breach of statutory duty and negligence.  

The House of Lords held that a breach of statutory duty did not, by itself, give rise to any private law cause of action, although such a right might arise as a matter of the construction of particular statutes.  It was held that a common law duty of care might arise in the performance of statutory functions.  But the manner in which a statutory discretion was exercised had to be distinguished from the implementation of the statutory duty in practice.  Where a statute conferred a discretion on a public authority, nothing done by the authority within the ambit of the discretion was actionable at common law, unless the decision complained of was so unreasonable that it fell outside the statutory discretion.  The court could not adjudicate on questions relevant to the exercise of the discretion insofar as they included matters of policy.  But where such matters were justiciable, the ordinary principles of negligence applied, in particular, those discussed in Caparo Industries plc v. Dickman [1990] 2 A.C. 605.  In the child abuse cases, the statutes in question did not give rise to claims based on simple breach of statutory duty.  On the question whether there was a direct common law duty of care owed by the local authorities, Lord Browne-Wilkinson said at page 748G:

	"The first question is whether the determination by the court of the question whether there has been a breach of that duty will involve unjusticiable policy questions.  The alleged breaches of that duty relate for the most part to the failure to take reasonable practical steps, e.g. to remove the children, to allocate a suitable social worker or to make proper investigations.  The assessment by the court of such allegations would not require the court to consider policy matters which are not justiciable.  They do not necessarily involve any question of the allocation of  resources or the determination of general policy.  There are other allegations the investigation of which by a court might require the weighing of policy factors, e.g. allegations that the County Council failed to provide a level of service appropriate to the plaintiffs’ needs.  If the case were to go to trial, the trial judge might have to rule out these issues as not being justiciable.  But since some of the allegations are justiciable, it would not be right to strike out the whole claim on this ground.
	
	Next, do the allegations of breach of duty in the operational field all relate to decisions the power to make which Parliament has conferred on the local authority, i.e. are they all decisions within the ambit of the local authority’s statutory discretion?  I strongly suspect that, if the case were to go to trial, it would eventually fail on this ground since, in essence, the complaint is that the local authority failed to take steps to remove the children from the care of their mother, i.e. negligently failed properly to exercise a discretion which Parliament has conferred on the local authority.  But again, it would not be right to strike out the claim on this ground because it is possible that the plaintiffs might be able to demonstrate at trial that the decisions of the local authority were so unreasonable that no reasonable local authority could have reached them and therefore, ... fall outside the ambit of the discretion conferred by Parliament.
	
	I turn then to consider whether, in accordance with the ordinary principles laid down in the Caparo case [1990] 2 A.C. 605, the local authority in the Bedfordshire case owed a direct duty of care to the plaintiffs.  The local authority accepts that they could foresee damage to the plaintiffs if they carried out their statutory duties negligently and that the relationship between the authority and the plaintiffs is sufficiently proximate.  The third requirement laid down in Caparo is that it must be just and reasonable to impose a common law duty of care in all the circumstances.  ...
	
	Is it, then, just and reasonable to superimpose a common law duty of care on the local authority in relation to the performance of its statutory duties to protect children?  In my judgment it is not.  Sir Thomas Bingham M.R. took the view, with which I agree, that the public policy consideration which has first claim on the loyalty of the law is that wrongs should be remedied and that very potent counter considerations are required to over-ride that policy.  However, in my judgment, there are such considerations in this case."

Lord Browne-Wilkinson then set out at some length on pages 749G to 751F six now well known considerations.  These may be summarised as follows:

	(1)  A common law duty of care would cut across the whole statutory system set up for the protection of children at risk.  This is inter-disciplinary, involving the participation of the police, educational bodies, doctors and others.  It would be almost impossible to disentangle the respective liability of each for reaching a decision found to be negligent.
	
	(2)  The task of the local authority and its servants in dealing with children at risk is extraordinarily delicate.
	
	(3)  If there were potential liability for damages, it might well mean that local authorities would adopt a more cautious and defensive approach to their duties.
	
	(4)  The relationship between the social worker and the child’s parents is often one of conflict.  This would be likely to breed ill feeling and often hopeless litigation which would divert money and resources away from the performance of the social service for which they were provided.
	
	(5)  There were other remedies for maladministration of the statutory system for the protection of children in statutory complaints procedures and the power of the local authorities Ombudsman to investigate cases. 
	
	(6)  The development of novel categories of negligence should proceed incrementally and by analogy with decided categories.  There were no close such analogies.  The court should proceed with great care before holding liable in negligence those who have been charged by Parliament with the task of protecting society from the wrong doings of others.

On the procedural question of whether to strike an action out, Lord Browne-Wilkinson said at page 740H that actions could only be struck out under R.S.C. Order 18 rule 19 where it was clear and obvious that in law the claim could not succeed.  Where the law is not settled but in a state of development, it is normally inappropriate to decide novel questions on hypothetical facts.  There was nothing inappropriate in deciding questions of statutory construction alone.  But Lord Browne-Wilkinson said at page 741B:

	"Much more difficult is the question whether it is appropriate to decide the question whether there is a common law duty of care in these cases.  There may be cases (and in my view the child abuse cases fall into this category) where it is evident that, whatever the facts, no common law duty of care can exist.  But in other cases the relevant facts are not known at this stage.  For example, in considering the question whether or not a discretionary decision is justiciable, the answer will often depend on the exact nature of the decision taken and the factors relevant to it.  Evidence as to those matters can only come from the defendants and is not presently before the court.  I agree with Sir Thomas Bingham M.R. that if, on the facts alleged in the statement of claim, it is not possible to give a certain answer whether in law the claim is maintainable then it is not appropriate to strike out the claim at a preliminary stage but the matter must go to trial when the relevant facts will be discovered."

In H. v. Norfolk County Council [1997] 1 F.L.R. 384, a man then aged 22 had been taken into care at the age of 4 and placed with foster parents until he was 14.  He alleged that he had been physically and sexually abused by his foster father and that the council had been negligent in failing to supervise his placement, to investigate reports of abuse and to remove him from foster care.  Harrison J. struck out his claim on the ground that it disclosed no reasonable cause of action.  He held that the first five public policy considerations referred to by Lord Browne-Wilkinson in the Bedfordshire case applied so that the council did not owe the plaintiff a duty of care.  The plaintiff applied for leave to appeal against the order.  He contended that the judge had been wrong to conclude that the first of Lord Browne-Wilkinson’s policy considerations applied.  It was submitted that there was a distinction between a child who was in care and with foster parents and the children in the Bedfordshire and Newham cases where the decisions said to have been negligent concerned the removal of children not in care from their natural parents.  The relationship of a local authority to a child in care with foster parents was more closely analogous to the relationship of a school with its pupils where a duty of care could exist.  This court, consisting of Simon Brown and Waite L.JJ., refused permission to appeal.  Simon Brown L.J. gave the main judgment with which Waite L.J. agreed.  He held that the judge had been correct to apply the public policy considerations deriving from the Bedfordshire cases.  There were inter-disciplinary considerations.  The difference between fostering cases and those concerning natural parents were insufficient to override the policy considerations.  The school analogy was not helpful because the degree of control exerciseable over school activities was likely to be substantially greater than that exercised by the local authority over foster parents. 

In Barrett v. Enfield in the Court of Appeal [1998] Q.B. 367, Lord Woolf M.R. referred to the  Norfolk case at pages 376-377.  It was an application for leave to appeal, but counsel for both parties had addressed the court.  Both parties in the Barrett case accepted that the Norfolk decision was not strictly binding upon the court.  Lord Woolf M.R. said that, whether or not Simon Brown L.J’s judgment was binding, he agreed with his reasoning.  Both Evans and Schiemann L.JJ. agreed with the judgment of Lord Woolf M.R. in judgments which did not specifically refer to the Norfolk case.  Thus the reasoning in the Norfolk case became part of the Court of Appeal’s reasoning in their decision in Barrett v. Enfield.

In Barrett v. Enfield, the plaintiff was placed in the care of the defendant local authority under a care order when he was 10 months old and remained there until the age of 17.  He claimed damages for personal injury arising out of negligence alleged against the authority.  The decision in this case in the House of Lords is reported at [1999] 3 W.L.R. 79.  Lord Slynn of Hadley summarised the allegations at page 87D as follows:

	"The negligence alleged consisted of the way in which the plaintiff was placed with the various foster parents and in the homes to which I have referred.  They were unsuitable and it was wrong not to consider whether he could be placed with his half sister on a long term basis and wrong to fail to consider what would be the effect of separating them.  The defendant and its employees failed to have regard to his health and hygiene.  They failed to find a proper home for him or to direct and plan his care so that, due to their negligence, he continued to remain in foster care or children’s homes without being adopted.  They failed properly to arrange and conduct his meetings with his mother after 11 years of separation and they failed to obtain appropriate psychiatric treatment for him.
	
	If these breaches of duty had not occurred, consideration would have been given to whether he really could be rehabilitated with his mother, whether any other relative could care for him, whether he could have been adopted or suitably placed with prospective adopters and he would not have suffered the damage and injury which he did suffer.  If the duties which lay upon the defendants had not been breached, he would not “on the balance of probabilities have left the care of the local authority as a young man of 18 years with no family or attachments whatsoever, who had developed a psychiatric illness causing him to self-harm and who had been involved in criminal activities.”  His injuries included in addition to self-harm and behavioural problems, the failure of his marriage, an inability to find work and an alcohol problem."

On the defendants’ summons, the District Judge had refused to strike out the claim, but on appeal the judge struck out the claim as disclosing no reasonable cause of action. The Court of Appeal upheld that decision.  In allowing the appeal, the House of Lords held that the public policy considerations which meant that it would not be fair, just and reasonable to impose a common law duty of care on a local authority when deciding whether or not to take action in respect of a case of suspected child abuse did not have the same force in respect of decisions taken once the child was already in local authority care.  The bar on a child suing his parents for negligent decisions in its upbringing did not apply to a local authority, which had to take decisions which a parent never had to take and which had trained staff to advise on such decisions.  In all but the clearest cases, it was important to see on the facts proved whether what was alleged was justiciable.  The plaintiff’s case was far from clear.  In addition the question whether it was fair, just and reasonable to impose a duty of care was not to be decided in the abstract on the basis of assumed hypothetical facts.  The plaintiff was accordingly entitled to have his claim heard and the facts investigated.  

Lord Slynn referred at length to the Bedfordshire cases.  In considering the public policy factors which had determined the decision in those cases, he said at page 93G:

	"Whilst not casting doubt on the validity of these factors in the context of the investigations, or the steps which it was said should have been taken, in those cases of child abuse and neglect of educational needs, it does not seem to me that they necessarily have the same force separately or cumulatively in the present case.  Thus although once a child is in care, there may well be co-operation between different social welfare bodies, the responsibility is that of the local authority and its social and other professional staff.  The decision to remove the child from its home is already taken and the authority has statutory powers in relation to the child which do not necessarily involve the exercise of the kind of discretion involved in taking a child from its family into care."

Lord Slynn considered the other policy questions and said at page 94D:

	"In summary the Bedfordshire case establishes that decisions by local authorities whether or not to take a child into care with all the difficult aspects that involves and all the disruption which may come about are not ones which the courts will review by way of a claim for damages in negligence, though there may be other remedies by way of judicial review or through extra judicial routes such as the Ombudsman.
	
	The question in the present case is different, since the child was taken into care; it is therefore necessary to consider whether any acts or omissions and if so what kind of acts or omissions can ground a claim in negligence.  The fact that no completely analogous claim has been accepted by the courts previously points to the need for caution and the need to proceed “incrementally” and “by analogy with decided cases”."

Lord Slynn referred to authority to the effect that a school and the teachers at a school were under a duty to safeguard the physical well being of pupils.  Whenever one person is lawfully in the custody of another, the custodian owes a duty of care to the person detained.  Parents may owe a duty of care in some circumstances to their children.  A local authority which sets up a hospital will be liable to someone injured by negligent nursing.  Social workers are to be regarded as members of a skilled profession when it comes to considering the obligation to exercise reasonable care.

Lord Slynn explained that where a public authority takes action which a statutory scheme requires, the authority will not be liable in damages unless the statute expressly or impliedly so provides.  Where a statute empowers an authority to take action in its discretion, the authority will not normally be liable under the statute, unless the statute so provides, or at common law, unless the authority purports to exercise its discretion in a wholly unreasonable way.  This does not, however, mean that if an element of discretion is involved in an act done subject to the exercise of an overriding statutory power, common law negligence is necessarily ruled out.  A distinction is sometimes drawn between policy decisions and operational acts.  A court would not normally be expected to review in a claim in negligence a pure policy decision.  But this is not an absolute test.  Lord Slynn said at page 96H that “the ultimate question is whether the particular issue is justiciable or whether the court should accept that it has no role to play.”  He accepted that a decision to take a child into care pursuant to a statutory power is not justiciable.  But it did not follow that, having taken a child into care, an authority cannot be liable for what it or its employees do in relation to the child without it being shown that they have acted in excess of power.  The test is whether the conditions in the Caparo case have been satisfied.  Having referred to Rowling v. Takaro Properties Ltd. [1988] A.C. 473, Lord Slynn then said at page 97H:

	"Both in deciding whether particular issues are justiciable and whether if a duty of care is owed, it has been broken, the court must have regard to the statutory context and to the nature of the tasks involved.  The mere fact that something has gone wrong or that a mistake was made, or that someone has been inefficient does not mean that there was a duty to be careful or that such duty has been broken.  Much of what has to be done in this area involves the balancing of delicate and difficult factors and courts should not be too ready to find in these situations that there has been negligence by staff who largely are skilled and dedicated.
	
	Yet although in my view the staff are entitled to rely mutatis mutandis on the principles stated in Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 582 the jurisdiction to consider whether there is a duty of care in respect of their acts and whether it has been broken is there.  I do not see how the interests of the child can be sufficiently protected otherwise."

Lord Slynn then said at page 98F:

	"In the present case, the allegations which I have summarised are largely directed to the way in which the powers of the local authority were exercised.  It is arguable (and that is all we are concerned with in this case at this stage) that if some of the allegations are made out, a duty of care was owed and was broken.  Others involve the exercise of a discretion which the court may consider to be not justiciable - e.g. whether it was right to arrange adoption at all, though the question of whether adoption was ever considered and if not, why not, may be a matter of investigation in a claim for negligence.  I do not think it right in this case to go through each allegation in detail to assess the chances of it being justiciable.  The claim is of an on-going failure of duty and must be seen as a whole.  I do not think that it is the right approach to look only at each detailed allegation and to ask whether that in itself could have caused the injury.  That must be done but it is appropriate also to consider whether the cumulative effect of the allegations, if true, could have caused the injury.  Nor do I accept that because the court should be slow to hold that a child can sue its parents for negligent decisions in its upbringing that the same should apply necessarily to all acts of a local authority.  The latter has to take decisions which parents never or rarely have to take (e.g. as to adoption, or as to an appropriate foster parent or institution).  In any case, in respect of some matters parents do have an actionable duty of care.
	
	On the basis that the Bedfordshire case does not conclude the present case in my view it is arguable that at least in respect of some matters alleged both individually and cumulatively a duty of care was owed and was broken."

Lord Slynn went on to conclude that the claim should not be struck out on the ground that causation could not be established.  He said that it may well be that many of the allegations would be difficult to establish and that they would fail.  He considered, however, that the importance of seeing in each case whether what has been done is an act which is justiciable or whether it is an act done pursuant to the exercise or purported exercise of a statutory discretion which is not justiciable requires an investigation of the facts, except in the clearest cases.  The case before the court was not the clearest case taken as a whole, even though some allegations if they stood alone might justifiably be struck out.  Lord Slynn accordingly considered that the plaintiff was entitled to have the matters which he alleged investigated and not to have them summarily dismissed.

Lord Hutton considered, by extended reference to authority, the difficulties of defining a boundary beyond which matters do not give rise to a cause of action because they are not justiciable.  He said at page 103E that the fact that the defendants’ relationship with the plaintiff arose from the exercise of a statutory power does not prevent the plaintiff from claiming that the defendant owed him a common law duty of care, unless the defendant is entitled to contend that the claim is barred because it alleges negligence in the exercise of a discretion given by statute.  He said at page 105G that the underlying principle is that courts will not permit a claim for negligence to be brought where a decision on the existence of negligence would involve the courts in considering matters of policy raising issues which they are ill-equipped and ill-suited to assess and on which Parliament could not have intended that the courts would substitute their views for the views of ministers or officials.  He said at page 107B that it is decisions in the exercise of a statutory discretion on matters of policy involving the weighing of competing public interests which are non justiciable.  At page 107F, he cited the opinions of Lord Nicholls of Birkenhead and Lord Hoffmann in Stovin v. Wise [1996] A.C. 923 to the effect that the distinction between policy and operations is elusive and an inadequate tool with which to discover whether it is appropriate to impose a duty of care or not.  He said at page 108A that:

	"... these judgments lead me to the provisional view that the fact that the decision which is challenged was made within the ambit of a statutory discretion and is capable of being described as a policy decision is not in itself a reason why it should be held that no claim for negligence can be brought in respect of it."

He referred to a passage in Lord Browne-Wilkinson’s opinion in the Bedfordshire case at page 736F and then said at page 111A:

	"... I consider that where a plaintiff claims damages for personal injuries which he alleges have been caused by decisions negligently taken in the exercise of a statutory discretion, and provided that the decisions do not involve issues of policy which the courts are ill-equipped to adjudicate upon, it is preferable for the courts to decide the validity of the plaintiff’s claim by applying directly the common law concept of negligence than by applying as a preliminary test the public law concept of Wednesbury unreasonableness (see Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 K.B. 223) to determine if the decision fell outside the ambit of the statutory discretion."

Lord Hutton then said at page 111E:

	"At this early stage in the present case it is not clear in my opinion that if the action proceeds to trial the judge will be required to weigh policy factors which the court is not equipped to decide.  It is not known at this stage what factors the defendant and its officials and social workers did take into account in making decisions relating to the plaintiff and planning his future.  It may be that no matters of policy involving the balancing of competing public interests or the allocation of limited financial resources were involved in the decision and it may be that at a trial the judge, in the words of Mason J. in the Sutherlandshire Council case, 157 C.L.R. 424, 469, would be called upon: “to apply a standard of care to action or inaction that is merely the product of administrative direction, expert or professional opinion, technical standards or general standards of reasonableness.”  Therefore I would not strike out the action at this stage on the ground that it gives rise to issues which are non- justiciable.  If it does appear at the trial that the case gives rise to an issue which relates to a matter of policy such as the balancing of competing public interests, then the judge can at that stage rule out the issue as being non- justiciable."

Lord Hutton then considered whether it was just and reasonable to impose a duty of care on the defendant.  He agreed with a passage in the judgment of Lord Woolf M.R. in the Barrett v. Enfield case in the Court of Appeal at [1998] Q.B. 377 that it would be wholly inappropriate that a child should be permitted to sue his parents for decisions made by them in respect of his upbringing which could be shown to be wrong.  But Lord Hutton did not agree that for this reason the law should not permit a child to sue a local authority which is under a duty by statute to take him into care and to make arrangements for his future.  At page 113D, Lord Hutton referred to the public policy considerations which had determined the outcome of the Bedfordshire abuse cases.  He said that in Barrett v. Enfield the circumstances were different in a number of important respects.  Unlike the Bedfordshire case, this was not a case where the child was in the care of his natural parents when the negligence by the local authority is alleged to have occurred.  And it was not a case where the local authority was alleged to have been negligent in investigating or acting upon an allegation or suspicion of sexual abuse.  In Barrett v. Enfield, it appeared that other disciplines were not involved, or not closely involved.  Where the plaintiff was already removed from his natural mother, the duties of the defendant were not as delicate as they had been in the Bedfordshire case where the local authority had to decide whether to remove a child from his parents.  Lord Hutton then addressed other public policy considerations. 

Lord Hutton referred to the H. v. Norfolk case, which had been cited by Lord Woolf M.R. in Barrett v. Enfield in support of his decision.  Lord Hutton said of H. v. Norfolk:

	"The circumstances of that case, involving allegations of sexual abuse by the foster father, were very different from the circumstances in the present case and, unlike the present defendant the council was able to rely strongly on the point that the system for the protection of children at risk was an inter-disciplinary one and that there would be difficulty in disentangling the respective roles of the various agencies concerned if there was to be liability.  Therefore as, in my opinion, the case is clearly distinguishable I consider it unnecessary to express an opinion upon the correctness of the decision."

On the question of causation, Lord Hutton said at page 115D that:

	"... the issue of causation arises in a different way if, as I would hold, the plaintiff is entitled to allege negligence against the defendant in the exercise of its statutory discretion.  If the plaintiff can succeed in establishing negligence on the part of the defendant (and I refer to the standard of care at the conclusion of this judgment) he may well face a very difficult task in seeking to establish that that negligence was a cause of the psychiatric injury in respect of which he claims.  But causation is largely an issue of fact to be determined on the evidence, and having regard to the last sentence in the passage of  the report of the plaintiff’s psychologist which I have set out in an earlier part of this judgment, I consider that it would not be right to strike out the claim on the ground that the plaintiff had no real prospect of establishing causation."

At page 115G Lord Hutton said that the standard of care to be required of the defendant in order to establish negligence of common law would have to be determined against the background that it is given discretions to exercise by statute in a sphere involving difficult decisions in relation to the welfare of children.  Bearing in mind the room for differences of opinion as to the best course to adopt in a difficult field and that the discretion is to be exercised by the authority and its social workers and not by the court, the trial judge must be satisfied that the conduct complained of went beyond mere errors of judgment in the exercise of a discretion and constituted conduct which can be regarded as negligent.

Lord Browne-Wilkinson considered the elusive dividing line between matters which are policy and those which are operational.  He said at page 82H:

	"I find it impossible to say that all careless acts or omissions of a local authority in relation to a child in its care are not actionable: ... If certain careless conduct (operational) of a local authority is actionable and certain conduct (policy) is not, it becomes necessary to divide the decisions of the local authority between those which are “policy” and those which are “operational”.  It is far from clear what the expressions “operational” and “policy” connote.  Therefore unless it can be said (as did the Court of Appeal) that operational carelessness could not have caused the damage alleged in the present case it would be impossible to strike out any part of the claim.  But causation is quintessentially a matter of fact and one would have thought that where there is a substantial doubt as to what is an operational decision there must equally be a doubt as to the extent or nature of the damage capable of being caused by negligence in making such an operational decision."

Lord Browne-Wilkinson then said that recent developments emphasised the extreme care which must be taken in striking out claims in this “confused and developing area of the law”.  One of the developments to which Lord Browne-Wilkinson referred was the decision of the European Court of Human Rights in Osman v. United Kingdom  (Case 87/1997/871/1083) [1999] 1 F.L.R. 193.  I shall refer to Osman later in this judgment.  

Lord Nolan and Lord Steyn agreed with the opinions of Lord Browne-Wilkinson, Lord Slynn and Lord Hutton.

It is appropriate to draw together some strands of this developing area of the law.  There have been attempts to promote as claims for breach of statutory duty cases in which it is said that local authorities have, by their failings in the care and upbringing of children, caused  damage to the children.    Claims of this kind have been successfully defended on the basis that the meaning of the relevant statute does not support such a claim.  Where the failing alleged has related to a discretionary decision which is empowered by statute, the court has been hesitant to say that the exercise of the discretion was wrong so as to give rise to a cause of action unless it was plainly wrong.  The intense intellectual analysis which questions of this kind  engendered has been simplified by the now clear recognition that there may be circumstances in this acutely difficult area of human endeavour where an ordinary common law claim in negligence upon Caparo principles may be academically possible and, in an appropriate case, succeed in fact.

A negligence claim is habitually analysed compartmentally by asking whether there was (a) a duty of care, (b) breach of that duty, and (c) damage caused by the breach of duty.  But damage is the essence of a cause of action in negligence and the critical question in a particular case is the composite one, that is whether the scope of the duty of care in the circumstances of the case is such as to embrace damage of the kind which the plaintiff claims to have suffered.  As Lord Bridge of Harwich said in the Caparo case at page 627C:

	"It is never sufficient to ask simply whether A owes B a duty of care.  It is always necessary to determine the scope of the duty by reference to the kind of damage from which A must take care to save B harmless."

Lord Oliver of Aylmerton emphasised the same point in Murphy v. Brentwood District Council [1991] 1 A.C. 398 at 486A, when he said:

	"The essential question which has to be asked in every case, given that damage which is the essential ingredient of the action has occurred, is whether the relationship between the plaintiff and the defendant is such ... that it imposes upon the latter a duty to take care to avoid or prevent that loss which has in fact been sustained."

This question necessarily subsumes the question whether the acts or omissions of the defendant caused the damage relied on.  It follows from this that, especially when relationships are complicated, it will often not be possible to determine by an abstract inquiry which does not address the detailed facts of a particular case that a claim in negligence is bound to fail.  The opinions of the House of Lords in Barrett v. Enfield emphasise that this is particularly so in cases of the kind presently before this court.

In my view, a number of strands of the relevant law to be derived from Barrett v. Enfield and the cases which preceded it may be summarised as follows:

	(a)  depending on the particular facts of the case, a claim in common law negligence may be available to a person who claims to have been damaged by failings of a local authority who were responsible under statutory powers for his care and upbringing.  In each of the cases before this court, the claims were sensibly limited to common law negligence claims.
	
	(b)  the claim will not succeed if  the failings alleged comprise actions or decisions by the local authority of a kind which are not justiciable.  These may include, but will not necessarily be limited to, policy decisions and decisions about allocating public funds.
	
	(c)  the border line between what is justiciable and what is not may in a particular case be unclear.  Its demarcation may require a more extensive investigation than is capable of being made from material in traditional pleadings alone.
	
	(d)  there may be circumstances in which it will not be just and reasonable to impose a duty of care of the kind contended for.  Here again, it may often be necessary to conduct a detailed investigation of the facts to determine this question.
	
	(e)  in considering whether a discretionary decision was negligent, the court will not substitute its view for that of the local authority upon whom the statute has placed the power to exercise the discretion, unless the  discretionary decision was plainly wrong.  But decisions of, for example, social workers are capable of being held to have been negligent by analogy with decisions of other professional people.  Here again, it may well be necessary to conduct a detailed factual enquiry.

It is clear from these principles that in an ordinary case a local authority defendant is unlikely to establish a defence which relies on a blanket immunity.  There would be a blanket immunity for this purpose if it were decided without reference to particular facts that all cases which have certain basic characteristics were not justiciable; or that in every case with certain characteristics it was not just or reasonable to impose a duty of care.  Thus it seems to me that it would be incorrect to say, as counsel for the local authorities were inclined to submit in appeals before this court, that cases which may be labelled as child abuse cases are bound to fail as a class.  The “child abuse cases” was no more than a convenient label under which the Bedfordshire and Newham cases travelled.  Remembering always that the critical question is a composite one which embraces the alleged duty of care and its breach in the context of the damage alleged to have been caused, the court has to consider the nature of the actions and  decisions of the local authority which are said to have been negligent.  From this it may be seen that a decision whether or not to take a child said to have been abused away from its natural parents and into care may often be acutely difficult.  But many of the decisions about the care and upbringing of a child once he or she has been taken into care, difficult though they may be, may not have the acute complications, strains and conflicts identified in the Bedfordshire cases.  For this reason, I am inclined to think that the House of Lords’ decision in Barrett v. Enfield requires this court to say that H. v. Norfolk was wrongly decided.  It is true that Lord Hutton in Barrett v. Enfield referred to H. v. Norfolk but did not take the opportunity of overruling it explicitly.   Nevertheless, the House of Lords unanimously over-ruled the decision of the Court of Appeal in Barrett v. Enfield and I have already noted that part of Lord Woolf M.R’s reasoning in the Court of Appeal was to agree with the judgment of Simon Brown L.J. in H. v. Norfolk.  Further, I do not consider that the decision in H. v. Norfolk can withstand the intrinsic reasoning in Barrett v. Enfield in the House of Lords.  For these reasons, I do not consider that H. v. Norfolk binds this court in the determination of either of the present appeals.

The conclusion that cases of this kind may often be capable of being formulated as viable causes of action in negligence says little or nothing about whether they are likely to succeed on the facts.

Article 6 of the European Convention of Human Rights

In Osman v. United Kingdom, the Osmans had brought proceedings in the United Kingdom against the police alleging negligence in the prevention and pursuit of crime.  The Court of Appeal (Osman v. Ferguson [1993] 4 All.E.R. 344) struck out the proceedings applying Hill v. Chief Constable of West Yorkshire [1989] A.C. 53.  The European Court of Human Rights upheld a claim by the Osmans that their rights under Article 6 of the Convention had been infringed.  Article 6(1) of the Convention provides that, “In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing by [a] ... tribunal ...”.  This is the form in which the European Court abstracted the relevant part of Article 6(1) in paragraph (131) of its decision.  The words “fair and public” appear in the text of the Article before the word “hearing”.  The fact that the court omitted these words from their abstract seems to indicate that they were concerned about what they regarded as the absence of a hearing, not about the fairness of any hearing.  The short basis of the decision appears to have been that the Osmans were deprived of effective access to the court to have their claim determined on its merits by the application of an exclusionary rule providing “blanket immunity” which protected the police from a negligence action in relation to their duties to protect and prevent crime.  In Barrett v. Enfield, Lord Browne-Wilkinson found the decision of the Strasburg court extremely difficult to understand for the reasons which he gave at pages 84A to 85H.  But he considered that the case was an added reason why it was difficult to say that Barrett v. Enfield was a clear and obvious case calling for striking out.  Lord Hutton said at page 115A that he reached his conclusion under common law principles applicable to a claim of negligence.  He considered that it was unnecessary to discuss the implication of the Osman decision.

In Z and Others v. United Kingdom, the European Commission of Human Rights in a Report adopted on 10th September 1999 (29392/95) concluded unanimously that there had been a violation of Article 6 in the Bedfordshire case.  The Commission saw no basis for reaching a different conclusion from that of the European Court in the Osman case.  This reinforces my reading of Barrett v. Enfield to the effect that it is unlikely that claims of the kind presently before this court will be seen as non-justiciable or ones where it is not just and reasonable to impose a duty of care without a proper examination of the individual facts.  In Kent v. Griffiths (C.A. 3rd February 2000) - a case about the liability of the London Ambulance Service answering an emergency call - Lord Woolf M.R. said that the Osman case may be influencing the House of Lords to adopt a more restrictive approach to the exclusion of liability to categories of cases without first ascertaining their precise facts.  But Lord Woolf also said at paragraph 38:

	"Insofar as the Osman case underlined the dangers of a blanket approach so much the better.  However, it would be wrong for the Osman decision to be taken as a signal that, even when the legal position is clear and an investigation of the facts would provide no assistance, the courts should be reluctant to dismiss cases which have no real prospect of success.  Courts are now encouraged, where an issue or issues can be identified which will resolve or help to resolve litigation, to take that issue or those issues at an early stage of the proceedings so as to achieve expedition and save expense.  There is no question of any contravention of article 6 of the E.C.H.R. in doing so.  Defendants as well as claimants are entitled to a fair trial and it is an important part of the case management function to bring proceedings to an end as expeditiously as possible.  Although a strike out may appear to be a summary remedy, it is in fact indistinguishable from deciding a case on a preliminary point of law."

In Jarvis v. Hampshire County Council (C.A. 11 November 1999) Morritt L.J., with whom Thorpe and Chadwick L.JJ. agreed, did not consider that the decision in Osman should lead the court to withhold an order to strike out a statement of claim which in all other respects the court considered to be justified.  In an appropriate case, a summary hearing can be a fair hearing for the purpose of Article 6.  I would add that, in an appropriate case, a defendant is entitled to a fair summary hearing of a case which, when it is properly investigated, has no real prospect of success.

Modern Procedure under the Civil Procedure Rules

All the authorities leading up to Barrett v. Enfield to which I have referred were decided before the introduction of the Civil Procedure Rules 1998.  The relevant child care cases proceeded as applications to strike out the claims as disclosing no reasonable cause of action.  The opinions of the House of Lords in Barrett v. Enfield were delivered after the introduction of the C.P.R., but the entire proceedings had been conducted before their introduction and therefore no consideration was given to them.  Under the former procedure, no evidence was admissible on an application to strike out a claim on the ground that it disclosed no reasonable cause of action.  The applications proceeded on the assumption that the plaintiff’s pleaded facts were true.

Although the decisions appealed from were made under the old procedure, the parties to each of the appeals now before the court agreed that the appeals should now proceed  under the C.P.R. in accordance with Part 51.  The introduction of the C.P.R. has introduced significant changes, most importantly the flexibility derived from the court’s obligation to deal with cases justly in accordance with the overriding objective.

Rule 3.4(2) of the C.P.R. provides that the court may strike out a statement of case if it appears to the court that the statement of case discloses no reasonable grounds for bringing or defending the claim.  This is similar to the provisions under the former rules which were the basis of the applications in the cases presently under appeal.  One technical difference is that there is no longer an embargo on the court receiving evidence.  This is necessarily so, since Part 22 of the C.P.R. requires that statements of case must be, and application notices may be, verified by a statement of truth.  Rule 24.2 of the C.P.R. empowers the court to give summary judgment against a claimant on the whole of a claim or on a particular issue, if the court considers that the claimant has no real prospect of succeeding on the claim or issue and there is no other reason why the case or issue should be disposed of at a trial.  In the present appeals, there were originally no applications for summary judgment - summary judgment against a claimant did not feature in the former procedure.  But each of the local authorities before this court have invited us to consider deciding these appeals upon applications for summary judgment, if we are not persuaded that the decisions appealed from should be upheld under Rule 3.4.  To this end, we have been invited without opposition from the appellants to consider evidence to be derived from the contemporary notes from the local authorities’ respective social services files.  These have been disclosed in each case, and we are told that there are before the court all the important contemporary documents in the hands of the local authorities that are relevant to these claims.  Rule 3.3 enables the court to exercise its powers on its own initiative.  In Taylor v. Midland Bank Trust Company Limited (21st July 1999), this court held that, when dealing with an appeal against a refusal to strike out an action, it was appropriate that the court should also treat the application as if it were an application for summary judgment under Rule 24.2 of the C.P.R.  The appellants before this court made no strenuous submission to the effect that the court should not adopt this procedure in these cases, although they did of course submit that the appeals should not be decided against them by this procedure in circumstances where there is no direct evidence from the appellants themselves and where they would wish, if their claims proceed, to adduce further expert evidence.  

In my judgment, it is appropriate in the circumstances to treat these appeals as additionally applications for summary judgment under Rule 24.2.  In doing so, it is essential in fairness to the appellants to take into account both that the summary judgment applications are brought for the first time in the Court of Appeal, and also that the evidence before the court is limited to the documents to which I have referred.  The respondents submit that the documents contain all the facts that are now capable of being established relevant to the making by the respondents of the decisions which are said to have been negligent.  We are accordingly invited in the light of Barrett v. Enfield to uphold these decisions by reference to the actual facts, and not to hypothetical facts to be derived from pleadings alone.
The power to strike out a statement of case under Rule 3.4(2)(a) is where it appears to the court that it discloses no reasonable grounds for bringing the claim.  The power to give summary judgment against a claimant under Rule 24.2 is where the court considers that the claimant has no real prospect of succeeding on the claim and that there is no other reason why the case should be disposed of at a trial.  These provisions mean what they say and do not require judicial interpretation.  Cases of the kind now before this court, by the nature of their subject matter, require anxious scrutiny, but that does not modify the tests which the rules require.  The House of Lords decisions in Bedfordshire case and in Barret v. Enfield show that, in cases of this kind, the court will only strike out a statement of case under Rule 3.4(2)(a) in the clearest case.  That is not a modification of the test which the rule requires, but a commentary on it deriving from the nature of the subject matter and the components of a claim in negligence as they relate to the subject matter.  There is no longer an embargo on the court considering evidence, but the application relates centrally to the statement of case.  For a summary judgment application to succeed in a case such as these where a strike out application would not succeed, the court will first need to be satisfied that all substantial facts relevant to the allegations of negligence, which are reasonably capable of being before the court, are before the court; that these facts are undisputed or that there is no real prospect of successfully disputing them; and that there is no real prospect of oral evidence affecting the court’s assessment of the facts.  There may be cases where there are gaps in the evidence but where the court concludes, for instance from the passage of time, that there is no real prospect of the gaps being filled.  (As will be seen, I consider that R.L.’s claim is such a case.)  Secondly, the court will need to be satisfied that, upon these facts, there is no real prospect of the claim in negligence succeeding and that there is no other reason why the case should be disposed of at a trial.  If by this process the court does so conclude and gives summary judgment, there will, in my view, have been proper judicial scrutiny of the detailed facts of the particular case such as to constitute a fair hearing in accordance with Article 6 of the Convention.  Mr Hartman on behalf of R.L. explicitly accepted this in her case.

I would only add that this analysis should not be seen as encouraging local authority defendants to make speculative applications for summary judgment in cases such as these.  The nature of the subject matter, taken with the relevant law which I have attempted to distill from the decisions of the House of Lords, will necessarily limit the number of cases where such applications are properly sustainable. 

The Present Appeals

(1)  D.S. v. Gloucestershire County Council

Miss Gumbel Q.C. submits on behalf of D.S. that, in the light of Barrett v. Enfield, the judge was wrong to strike out his claim.  It should on the contrary be allowed to proceed to trial.  The allegations of negligence concern the whole course of D.’s care by the defendants after he was placed for fostering with Mr and Mrs Sm.  The relevant decisions and actions of the defendants do not, as in the Bedfordshire cases, centrally concern the question whether D. should be taken into care.  Once a child is taken into care, the local authority has assumed responsibility for the child and a duty of care will more readily be found.  The facts (which for present purposes are assumed) that Mr Sm. gravely and repeatedly abused D. sexually during the 6 week period of his fostering and that he abused at least one other boy during that same period call in question the defendants’ selection of him as a foster parent.  There has been no disclosure by the defendants on this topic and it cannot be said without investigation that this element of the claim is bound to fail.  Accepting that D. is recorded as having said on two occasions in February 1990 that he had not himself been assaulted, Miss Gumbel nevertheless submits that this alone should not be seen at this stage as determinative.  It is not certain that a full consideration of the facts would not show want of care by the defendants.  It could be that a full consideration of the facts relating to Mr and Mrs Sm. as foster parents, the abuse of the other boy and the facts about D.’s fostering would show that more extensive and more sensitive enquiries should have been made.  These could have then revealed the fact and extent of the abuse.  The subsequent history of D.’s case of care by the defendants shows a failure to deal effectively with emerging emotional and psychological problems.  A negligence case arising from this history is one which properly merits investigation at trial.  Miss  Gumbel accepts that there was mention of multi-disciplinary consideration for D.  But the main decisions which are questioned were not inter-disciplinary nor were they delicate or confrontational in the way that those in the Bedfordshire cases were.  The Criminal Injuries Compensation Board payment relates only to the injury inflicted by Mr Sm. and not to its exacerbation by later want of proper care and treatment. The finding of negligence in this case would not lead to a defensive approach by local authorities.   There are no effective alternative remedies.  Dr Friedman’s Report provides a sufficient case that the negligence alleged caused the physical and psychological damage.

Mr Kerr on behalf of the respondents invites the court to have regard to the contemporary documents which have been disclosed and put before the court.  There has been complete disclosure by the respondents with the exception of documents relating to the vetting of Mr and Mrs Sm. as potential foster parents.  Mr Kerr submits that this enables the court to decide the matter on actual, rather than hypothetical, facts so far as they relate to decisions taken by the local authority.  He submits that Barrett v. Enfield should not be allowed to become a charter for claimants seeking a full trial at public expense of claims that are so weak as to be virtually hopeless.  To this end, he makes a number of procedural applications, the most important of which is that the court should entertain an application for summary judgment under CPR rule 24.2 as an alternative to considering whether the judge was right to strike out the claim under what is now rule 3.4(2).  I have already indicated my view that the court should accede to this application.  The essence of his submission is that D.S.’s claim, seen in the light of the actual facts, does not disclose a case of negligence which has any reasonable prospect of success.  He tenders a respondent’s notice in support of this submission which I would give him permission to rely on.  

Mr Kerr submits that this should be seen as a child abuse case where, in the light of the Bedfordshire cases, it is not just or reasonable to impose a duty of care.  He submits that the policy considerations relied on by Lord Browne-Wilkinson apply to the present case with equal force.  He relies on H. v. Norfolk, pointing out that it was not specifically overruled in Barrett v. Enfield.  For reasons which I explained earlier in this judgment, I reject these submissions.  I do not consider that H. v. Norfolk can withstand Barrett v. Enfield.  Cases of this kind require individual, not blanket, treatment.  D.S. was already in care and the facts of his case are closer to those of Barrett v. Enfield than to those of the Bedfordshire cases.  I am strongly inclined to think (but do not decide) that the case is justiciable.  It seems to me that the first two requirements of a duty of care referred to in Caparo are plainly satisfied.  For the reasons given in the opinions of the House of Lords in Barrett v. Enfield, the composite question whether it is just and reasonable to impose a duty of care of a scope which embraces the damage which D.S. claims to have suffered, including the question whether the acts or omissions of the defendant caused that damage, is one to be determined by an examination of the details of the actual facts.  

I was open to persuasion that the actual facts before the court did not disclose a case of negligence that had any reasonable prospect of success.  But I do not accept Mr Kerr’s submission that there was no arguable existence of a duty in choosing foster parents.  That is a blanket submission whose rejection is compelled by Barrett v. Enfield.  There are no facts before the court one way or the other about the selection of Mr and Mrs Sm.  This part of D.S.’s case is therefore speculative, but it is part of a history which, in the light of the very serious abuse alleged to have occurred within days almost of D.’s arrival in the family, requires investigation before it might be rejected.  Mr Kerr is on stronger ground with the allegation that the local authority should have discovered in February 1990 that D. had been abused.  He was nearly 14 and twice denied explicitly that he himself had been abused.  He did not express the allegation until 18 months or so later.  But again this is part of a history to be taken as a whole and I consider that the facts before the court relevant to this part of the case are insufficient to enable the court to say that this element of the claim has no real prospect of success.  The subsequent history is a composite story which has quite close general resemblance to that in Barrett v. Enfield. Mr Kerr makes detailed submissions emphasising the discretionary nature of the decisions attacked.  But Lord Slynn cautioned against dissection of parts of a composite case.

There may well be difficulties with D.S.’s case when it comes to trial.  But in my judgment the statement of case does disclose reasonable grounds for bringing the claim and, taking account of the documents relied on by Mr Kerr, I am not persuaded that it has no real prospect of success.  I would allow this appeal and in doing so entertain, but dismiss, the defendants’ application for summary judgment.

(2)  R.L. v. London Borough of Tower Hamlets and Havering

I have set out earlier in this judgment the three essential allegations of negligence which are said to have caused the physical and psychological damage on which R.’s claim is based.  They do not relate to any decision whether to take her into care.  They seem to me to be justiciable and potentially capable, subject to factual investigation, of supporting a negligence claim against the defendants or one of them.  The judge’s decision depended on applying to the facts of R’s case the Bedfordshire cases, Barrett v. Enfield in the Court of Appeal and H. v. Norfolk.  For reasons equivalent to those which I have given in the case of D.S., I do not consider that the decision is sustainable on those grounds.

Miss Thirlwall Q.C. on behalf of the local authority defendants invited us to consider the documents disclosed by the local authorities and to entertain an application under CPR rule 24.2.  Much of the narrative of R.’s case which I have given earlier in this judgment comes from these documents.  Mr Hartman, on behalf of R., did not object to us looking at the documents, but he did oppose the suggestion that we should entertain a summary judgment application.  He did so on the basis that he would want to consider adducing expert evidence especially on the issue whether the defendants should have concluded from the facts known to them that the Ws were not suitable to be foster parents.  In my view, we should entertain the application, but should be careful not to decide it in favour of the defendants if we consider that evidence of this kind or other evidence not before the court might, if it were available, alter our view in favour of R..

The first particular allegation of negligence is that the defendants, and in particular Havering, should have concluded from the facts known to them that the Ws were not suitable to be foster parents.  As I have set out in detail, Havering, in particular through Mrs H, gave extensive and very careful consideration to the suitability of Mr and Mrs W. as prospective foster parents.  Bearing in mind that this took place more than 20 years ago, this court has in Mrs H’s notes as full an account as will ever be obtained of the investigations which she made and the considerations which led Havering to approve the Ws.  I do not consider that oral evidence could add anything to the court’s assessment of the facts.  R.’s particulars of claim set out 7 facts about Mr W. which the notes contain and which are relied on as indicating that he and his wife were not suitable to be foster parents or, if they were, that they required constant monitoring.  These are: (1)  maltreatment by way of beatings by his father;  (2)  the early death of his mother;  (3)  the subsequent isolation of his father;  (4)  his first failed marriage;  (5)  his isolation from or rejection of his only child of his first marriage;  (6)  his inadvertent bigamous marriage to his second wife;  and (7)  his lie to his second wife in failing to tell her of his first marriage.  To this might be added the doubt which the notes show were expressed as to whether Mr W. was emotionally mature enough to be a successful foster parent.  It is also said that the defendants knew that Mrs W. had emotional and physical problems and that she expressed resistance to fostering a child of mixed racial parentage.

It is important to keep in mind that the damage alleged is that which R. suffered from sexual abuse.  I can see the possibility that a psychiatrist, knowing that Mr W. had been convicted of serious sexual abuse of children, might express an opinion that facts of the kind relied on might be seen as possible indicators of, or contributors towards, a personality with tendencies to abuse children.  But I think that Mr Hartman’s submission about possible expert evidence was muddled here.  A negligence claim against the local authorities would not be advanced by psychiatric opinion, since local authorities social workers, professionals as they are, are not, and are not expected to be, psychiatrists.  The expert evidence would need to be that of a social worker duly qualified to speak of the standard of care reasonably to be expected of social workers in 1979.
Extracting the 7 facts about Mr W. which are relied on is a legitimate exercise, but it distorts the picture which the notes as a whole give.  They are isolated points in detailed notes which contain much material strongly in favour of the Ws’ application to become foster parents.  It is plain that Mrs H, and those at Havering who considered the matter with her, gave very careful consideration to all relevant factors which the notes evidence, including all the points upon which this part of R.’s case depends.  The assessment that Mr W. might not be emotionally mature enough to share his wife with a long term foster child seems to me to be an entirely balanced conclusion from the material under consideration.  The adverse indications do not point intrinsically to a risk of sexual abuse.  It seems to me fanciful to suppose that a social worker duly qualified to speak of the standard of care reasonably to be expected of social workers in 1979 could be found who would credibly express an opinion to the effect that the decision which Havering came to was on these facts negligent.  There might, of course, be room for differences of opinion.  But, as Lord Hutton said at page 115G of his opinion in Barrett v. Enfield in the passage to which I have referred, the court must be satisfied that the conduct complained of went beyond mere errors of judgment in the exercise of a discretion and constituted conduct which can be regarded as negligent.  Similarly, as Lord Slynn said in the passage which I have quoted at page 97H, much of what has to be done in this area involves the balancing of delicate and difficult factors and courts should not be too ready to find in these situations that there has been negligence by staff who largely are skilled and dedicated.  Miss Thirlwall submitted that evidence of this kind relevant to 1979 was simply not available and that there was no contemporary written standard against which to assess Havering’s decision.  Mr Hartman was unable to gainsay this.  Accordingly I consider that on the facts R. has no reasonable prospect of establishing that Havering were negligent in the approval of Mr and Mrs W. as foster parents in the terms in which they did.  In this respect, Tower Hamlets relied on Havering, and I do not understand them to be criticised for doing so.

The second particular allegation of negligence is that each defendant acted contrary to the recommendation and decision that fostering placements with the Ws should be of a single child and short term.  Mr Hartman relied heavily on this in his oral submissions.  But in my view the allegation does not bear examination in the light of the facts.  Again it is important to keep in mind that the damage alleged is that which R. suffered from sexual abuse.  Fostering two children rather than one has no intrinsic bearing on any likelihood that one of them might be sexually abused.  In any event, the circumstances in which R. and her half brother first came to be fostered with the Ws constituted an emergency created by the actions and attitude of R.’s mother and her partner.  In that emergency, the defendants can scarcely be criticised for keeping R. and her small half brother together by placing them in the same family.  Initially the placement was short term.  During that short term, Mrs H’s visits indicated that the placement was successful.  Thereafter the placement was extended in circumstances in which R.’s mother and her partner were showing no immediate signs of accepting parental responsibilities.  Since the placement was, and continued to be, apparently successful, the defendants can scarcely be criticised for leaving the children where they where.

The third particular allegation of negligence is that the defendants insufficiently monitored the fostering of R. with the Ws.  In my view, this allegation is factually incorrect for Havering.  The documents evidence regular monthly visits by Mrs H.  The gap in the documents in 1980 to which I have referred can only reasonably be explained by missing documents - understandable after 20 years.  The documents also evidence fairly regular visits by Tower Hamlets social workers.  There were some complaints of their inattention, but these were from Mr and Mrs W. themselves.  This allegation of negligence needs to establish that more frequent or more careful monitoring would have revealed that R. was at risk.  In circumstances where Mrs H did make regular visits whose results she recorded with her accustomed care, there is no evidential material available from which this necessary case could be successfully built.  Mrs H’s assessment in January 1981 was that Mr and Mrs W. had coped admirably with extremely difficult parental involvement, lack of support from Tower Hamlets and continued indefiniteness about the future arrangements for the children.  The sexual abuse of R. is said to have occurred “in or about mid 1981” - see paragraph 6 of the Particulars of Claim.  So far from containing indications that R. might possibly been at risk, the result of Mrs H’s regular and careful monitoring was that, in August 1981, after the children had returned to their mother, she had no doubt but that the Ws had proved their abilities and that she would recommend them for approval as long term foster parents. 

There are only two passages in the documents from which it might be suggested that the defendants ought to have concluded that R. was at risk.  The first is the note of Mrs H’s February 1980 visit, which I have quoted earlier in this judgment, in which Mrs W. is recorded as having spoken of incidents of misbehaviour by R.  This was, however, in the context of her parents’ recent departure to the West Indies which could readily explain isolated behaviour of this kind.  The other passage is that in the Tower Hamlets’ report of 18th September 1981 which concerned, not any perceived possibility of abuse, but understandable emotional difficulties which occurred when, after 18 months with the Ws, the children returned to their parents.

This consideration of the facts leads me to the conclusion that R.’s negligence claim has no real prospect of success.  For this reason, I consider that the judge’s substantial result should be upheld and I would dismiss her appeal.

LORD JUSTICE TUCKEY:  I agree.
LORD JUSTICE ROBERT WALKER:  I also agree.  
Order: (In the case of S)
Appeal allowed with costs here and below; legal aid taxation; leave to appeal refused.
 (Order does not form part of the approved judgment)

Order: (In the case of L)
Appeal dismissed with costs; legal aid taxation; leave to appeal  refused.
(Order does not form part of the approved judgment)