Social Services have both statutory and common law duty to protect children from abuse
8 November 2011
ABB & Ors v Milton Keynes Council  EWHC 2745 (QB)- read judgment
Justin Levinson of 1 Crown Office Row acted for the claimants in this case. He is not the author of this post.
This case concerned the entitlement to compensation for the years of abuse the claimants, three brothers a sister, the youngest, who had suffered at the hands of their father. The older claimants had both suffered regular abuse from an early age until late teens. The third claimant escaped the prolonged abuse suffered by his brothers. The fourth claimant, who was conceived after the defendant social services became aware of the situation, nevertheless endured abuse for five or six years.
The father’s abuse of the older boys came to light in 1992 when the first three claimants were placed on the child protection register and the father moved out of the family home. However charges against him were subsequently dropped and he returned home. The names were removed from the register but the abuse continued.
The facts were not disputed but the principal issue between the parties was that of the quality of social work practice adopted by the defendants’ employees and whether this fell below a reasonable standard.
Statutory and common law negligence
The statutory basis of the defendants’ duties is set out in Section 47 of the Children Act 1989. Put simply, that section requires any local authority, which suspects that a child in its area is at risk, should take steps to safeguard the child’s welfare. However this duty only arises if it is within the authority’s power and it is “reasonably practicable” for them to do so. The section does not, in itself, provide a civil cause of action for those who assert that the duty has not been complied with. There is in addition to the statutory duty a common law – or judge-made – basis for the duty of care in the event of suspected child abuse is to be found in D and others v East Berkshire Community Health  EWCA Civ 1151.
Standard of care
It’s not enough to say that a duty of care exists and leave it at that. You have to look at the profession or class of workers to which the defendants belong; in this case the duty of social workers duty, in common with other professionals, is to exercise reasonable skill and care. The test to be applied to their efforts was laid down in a clinical negligence case, Bolam v Friern Hospital Management Committee, which held that an individual will not be negligent if they act in accordance with practice accepted at the time as proper, by a responsible body of professional opinion, even though another member of the same profession might adopt a different practice.
In this case HHJ Hampton found that there was a failure by the social workers to investigate the history of this family thoroughly and to a standard that would be regarded as a reasonable by a responsible body of social work opinion. The father’s abuse of the claimants had been allowed to continue over a number of years was due to their failure sufficiently to investigate the father’s past, the mother’s ability or lack of ability to protect the claimants and the effect upon the claimants themselves.
Entitlement to damages
The judge observed that the claimants should not be denied compensation for sexual abuse simply because they did not have any diagnosed psychiatric illness (they had already received a payout from the Criminal Injuries Compensation Baord). The claimants are entitled to be compensated for the pain and suffering caused by the abuse itself, as well as its consequences. All the Claimants in the present case suffered personal difficulties as a result of the abuse they have experienced.
In these cases it is difficult to assess what special losses had been incurred as a result of the abuse itself as opposed to the general vicissitudes of living in a dysfunctional family, an alcoholic and abusive father, and a frequently absent mother. The figures he arrived at sought to reflect the personality problems and consequent disadvantage in the labour market caused to the claimants as a result of the defendant’s failure to take the necessary steps to end the abuse.
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