Feature | Are the courts taking child protection too far in abuse claims?

8 April 2010 by

Sharon Shoesmith’s court action over her sacking by Haringey Council has once more brought to the fore the sorry account of neglect and mismanagement by police and local authorities of that led to the death of baby Peter Connelly (‘Baby P’). It has also, however, highlighted the increasingly significant role of courts in the UK and Europe in holding public and private authorities to account in claims involving allegations of child abuse.

It is not just local authorities that are under pressure. Allegations of sexual abuse by members of the Catholic church rumble on, occasionally erupting into well publicised court dramas. For example, the recent groundbreaking claim brought against a Catholic priest, Father Clonan, relating to events in Coventry in around 1976 (MAGA v The Trustees Of The Birmingham Archdiocese Of The Roman Catholic Church [2010] EWCA Civ 256).

The claimant (MAGA) was at the time a child of 12 with learning disabilities. The High Court had ruled that the Church was not liable for the abuse as MAGA was not a Roman Catholic, and as such Father Clonan had no business having any dealings with him and was not doing so in his capacity as a priest. MAGA succeeded on appeal because the Court of Appeal accepted that a priest’s duties are very wide, and involve him befriending non-Catholics, such as in the course of his evangelising role.

Although different from the circumstances surrounding the Baby P story, the MAGA case is important from a legal perspective as it is the first time the courts have considered the church’s liability for abuse by priests.

The withdrawal of protection for public authorities

Until this recent run of cases, the courts have generally protected authorities from child abuse claims. There was a time that it was considered that public authorities should not be exposed to child abuse tort claims where it was alleged that the authorities with the relevant responsibility had failed to prevent neglect and ill-treatment.

A good example of this attitude was the landmark case of of X(Minors) [1995] 2 AC 633. In that case, Lord Browne Wilkinson said that it was not permissible for a court to impose a common law duty of care where this would be “inconsistent with, or have a tendency to discourage, the due performance by the local authority of its statutory duties”. But the X(Minors) immunity now applies in such limited circumstances that it may not be long before this famous dictum is featured in textbooks as being of historical interest only.

The immunity has been whittled down by a series of rulings in Strasbourg and in the local courts leading up to, and following, the passing of the Human Rights Act 1998 and the incorporation of the European Convention on Human Rights into domestic law.

However, the story behind the latest ruling from Strasbourg demonstrates some of the unintended consequences of removing that immunity from local authorities and allowing claims for indirect neglect to sound against them in court for damages.

Further pressure from the European Court of Human Rights

In AD and OD v United Kingdom (Application No 28680/06), 2 April 2010, an application was brought by a mother (AD) and son (OD) in respect of the distress and damage caused by a wrongful care order. Medical examinations carried out on the child within a few months of his birth revealed multiple fractures to his ribs that raised suspicions among the medical community. The mother advanced the possibility that the injuries could have been caused by “brittle bone disease”, osteogenesis imperfecta, but this was dismissed. As a result the local authority placed the child on the “at risk” register, and applied to the county court for an interim court order which was duly granted. Following a series of assessments involving relocation by the applicants far from the family home, it was discovered that the child did indeed suffer from osteogenesis imperfecta and the care order was immediately discharged.

The mother, AD, brought an action for damages against the local authority for the negligent way they had handled the case. The claim was rejected on the grounds that the local authority did not owe her a duty of care. She complained to the European Court of Human Rights (ECtHR) that she and OD had suffered a violation of their rights under Article 8, and that she had been deprived of a remedy before the local courts contrary to Article 13.

The ECtHR ruled unanimously that a local authority’s failure to conduct a risk assessment, which resulted in a child being placed with foster parents, breached the right to respect for family life under Article 8 of the Convention. It also concluded that the mother should have had available to her a means of claiming that the local authority was responsible for any damage which she suffered and obtaining compensation for that damage. As such redress was not available to her, the Court held that she had suffered a violation of Article 13.

The judgment is not entirely novel. When the parent applicants in X(Minors) went to Strasbourg, they also won a judgment that the authorities had exercised their powers negligently in removing their children from them and the idea that authorities should be immune from suit in such circumstances deprived them of a right to a judicial remedy under Article 13 (see Z v United Kingdom [2001] FLR 621).

Duty of care to all

It therefore appears that the recent line of cases on public authority liability cuts both ways. The duty of care is not only owed to children, but to the parents. This is particularly so in cases where authorities act overzealously when trying to avoid another case like Z in Strasbourg, or a public outcry as occurred in the Baby P case. In assuming that a child is at risk the authority overcompensates, and thereby breaches a parent’s Article 8 right to respect for family life and privacy. The parents find themselves suddenly deprived of their offspring, under a cloud of suspicion.

However, despite Strasbourg’s implied criticism of UK domestic law in recent judgments, the principles underlying the original ruling in X(Minors) still apply in some cases . The House of Lords (the previous incarnation of the Supreme Court) recently reiterated that no duty of care is owed to parents by medical or social work professionals in the exercise of their duties, in the best interests of the children, when deciding whether there had been any abuse and what measures were necessary (JD. v. East Berkshire Community Health NHS Trust and others [2005] AC 373).

Similarly, in the UK proceedings of the AD and OD case (D v Bury MBC [2006]) 1 WLR 917), the Court of Appeal ruled that a local authority did not owe a duty of care to the parents of a child who was the subject of a child abuse investigation and in relation to whom an interim care order was in force giving the authority parental responsibility.

Finding the right balance

Public scandals involving allegations of child abuse now arise with alarming regularity, often accompanied by heavy media coverage. In this climate it not difficult to see why the courts have been actively reducing the number of legal defences public authorities can hide behind in child abuse cases.

However, the courts must be careful not to tip the balance too far. The rationale underpinning the remaining – albeit now greatly diminished – public authority immunity in child abuse cases is that care professionals have to be free to carry out their functions without the possibility of an action for negligence against them by distressed parents, and that the same freedom should last throughout the investigatory process.

If the right balance is not struck then the Baby P scandal, and the resultant Sharon Shoesmith fiasco, may be a sign of things to come.

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