M.B. and G.B. v. THE UNITED KINGDOM
Inadmissible
Nicolas Bratza
The first applicant, M.B., and the second applicant, G.B., who are son and father, were born in 1980 and 1959 respectively. Their application was introduced before the Court by Sternberg, Reed, Taylor & Gill, solicitors practising in Barking, Essex. The facts of the case, as submitted by the parties, may be summarised as follows. On 7 June 1990, the local authority, the London Borough of Barking, received a report from a neighbour of the applicants that the first applicant had told the neighbour’s children that he was being buggered by his father, the second applicant. The neighbour also stated that the first applicant, aged nine, was regularly called in from play to have a sleep in the afternoon and that the second applicant had been seen at a bedroom window holding the first applicant whilst naked. Social services and the police attended the applicants’ home at 4.45 p.m. on 8 June 1990, where they found that M.B. had been in bed together with both his parents immediately prior to their arrival. The first applicant’s grandmother arrived at the house and was noted by the social worker as expressing surprise and concern that the family were all in bed together in the afternoon. Both parents agreed that the first applicant should undergo a medical examination which was conducted by Dr H. at 6 p.m. on the same day. Dr H. was a general practitioner, who had been appointed forensic medical examiner in 1987 by the Metropolitan Police and had some 14 years’ experience in dealing with child sexual abuse cases. Dr H.’s examination lasted from 6 p.m. until 6.10 p.m. He noted an “old scar at the 12 o’clock position of the anal margin 2mm by 3mm” which he stated “may be due to a past sexual interference”. The report concluded that “in my opinion from the examination it looks that there is evidence of sexual interference with the anal passage of this boy”. The first applicant was removed to a children’s home after the examination. A place of safety order was obtained by the police on 9 June 1990. A case conference was held by the local authority on 12 June 1990. The first applicant was interviewed on 13 June 1990 at the children’s home. He revealed no outward signs of having been abused and denied that he had been abused by his father. Wardship proceedings were instituted by the local authority on 14 June 1990. On 22 June 1990, the local authority held a planning meeting, attended by both parents, at which various options relating to the first applicant’s residence were discussed. On or about 7 July 1990, the second applicant moved out of the family home so that the first applicant could return home. The first applicant had no contact with the second applicant for a period of two weeks and thereafter had supervised contact. After the local authority obtained reports on the mother and maternal grandmother, the first applicant was returned home on 7 August 1990 with the second applicant undertaking not to have unsupervised contact with him. Leave was also granted by the High Court on 7 August 1990 for a further examination of the first applicant. On 30 August 1990, a joint examination on the first applicant was carried out by two consultants, Dr S. for the local authority and Dr P. for the second applicant. The examination lasted from 3.31 until 4.40 p.m. and included a close examination of the anal and genital areas and a brief internal examination. The small scar noted by Dr H. on the anal verge was not observed and both consultants concluded that there was no evidence of anal penile penetration. However, the mother disclosed that the first applicant had told her that he had been anally penetrated by two local teenage boys. The first applicant confirmed that he had been abused by two pre-pubescent youths. Dr P. doubted that there had been penetration and Dr S. noted that the penis of a pre-pubescent would be unlikely to cause any detectable injury. Dr P. gave the opinion that Dr H. had been negligent in diagnosing sexual abuse. The local authority’s involvement with the family ceased on 5 September 1990 when the wardship ended. An application for damages was brought by the first and second applicants in 1993 alleging negligence by the local authority and Dr H. They were granted legal aid. The action was stayed in 1993 pending the decision in X and Others v Bedfordshire County Council. On 29 July 1995, the House of Lords held in that case that in negligence no duty of care was owed by local authorities in the exercise of their statutory duties relating to the taking into care of children (see further below in Relevant Domestic Law and Practice). Following this decision the applicants’ case was struck out as disclosing no reasonable cause of action on 22 March 1996. Neither the applicants nor their lawyers were present when the case was struck out as this was accepted as the inevitable consequence and no transcript of the proceedings has been provided. Prior to the coming into force of the current legislation, the Children Act 1989, on 14 October 1991, the local authority’s duty in respect of child care was governed by the Child Care Act 1980. Sections 1 and 2 of the Child Care Act 1980 provided that: “1. It shall be the duty of every local authority to make available such advice, guidance and assistance as may promote the welfare of children by diminishing the need to receive or keep them in care. 2(1) Where it appears to a local authority with respect to a child in their area appearing to them to be under the age of seventeen - (a) that he has neither parent nor guardian or has been and remains abandoned by his parents or guardian or is lost; (b) that his parents or guardian are, for the time being or permanently, prevented by reason of mental or bodily disease or infirmity or other incapacity or any other circumstances from providing for his proper accommodation, maintenance and upbringing; and (c) in either case, that the intervention of the local authority under this section is necessary in the interests of the welfare of the child, it shall be the duty of the local authority to receive the child into their care under this section”. Under section 28(1) of the Children and Young Persons’ Act 1969 any person, including a local authority, could apply to a magistrate for the authority to detain a child and take him/her to a place of safety. There was power to grant the application if the magistrate was satisfied that the applicant had reasonable cause to believe inter alia that the child’s proper development was being avoidably prevented or neglected or that he/she was being ill-treated or exposed to moral danger. The order could last a maximum of 28 days, with no possibility of extension. Before the expiry of the order, it was necessary for the local authority to institute care proceedings under section 1 of the 1969 Act or to make the child a ward of court if it wished either to intervene in the exercise of parental control. The power of the High Court to make a child a ward of court derives from its inherent jurisdiction. The effect is that the court assumes responsibility for the child and may make orders concerning any aspect of the child’s life. The child’s welfare must be the first consideration of the court. As soon as the originating summons is issued, the custody of the child vests in the court. From that moment, the parties to the proceedings, including the local authority, only have such power and authority over the child as is conferred by the court. In England and Wales, there is no single tort which imposes liability to pay compensation for civil wrongs. Instead there are a series of separate torts, for example, trespass, conversion, conspiracy, negligence and defamation. Negligence arises in specific categories of situations. These categories are capable of being extended. There are three elements to the tort of negligence: a duty of care, breach of the duty of care and damage. The duty of care may be described as the concept which defines the categories of relationships in which the law may impose liability on a defendant in damages if he or she is shown to have acted carelessly. To show a duty of care, the claimant must show that the situation comes within an existing established category of cases where a duty of care has been held to exist. In novel situations, in order to show a duty of care, the claimant must satisfy a threefold test, establishing: – that damage to the claimant was foreseeable; – that the claimant was in an appropriate relationship of proximity to the defendant; and – that it is fair, just and reasonable to impose liability on the defendant. These criteria apply to claims against private persons as well as claims against public bodies. The leading case is Caparo Industries v. Dickman ([1990] 2 AC 605). If the courts decide that as a matter of law there is no duty of care owed in a particular situation, that decision will (subject to the doctrine of precedent) apply in future cases where the parties are in the same relationship. The decision in X and Others v. Bedfordshire County Council ([1995] 3 AER 353) is the leading authority in the United Kingdom in this area. In giving judgment in the three cases heard together, the House of Lords there held that local authorities could not be sued for negligence or for breach of statutory duty in respect of the discharge of their functions concerning the welfare of children. The children in that case had suffered severe neglect and abuse from their parents and had alleged that the local authority had failed to protect them, inter alia, by not exercising their power to take them into care at an earlier stage. As regards the claims that the local authority owed a duty of care to the applicants pursuant to the tort of negligence, Lord Browne-Wilkinson stated inter alia: “I turn then to consider whether, in accordance with the ordinary principles laid down in Caparo [1990] 2 A.C. 605, the local authority ... 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 ... The Master of the Rolls took the view, with which I agree, that the public policy consideration that has first claim on the loyalty of the law is that wrongs should be remedied and that very potent counter considerations are required to override that policy (see [1994] 4 AER 602 at 619). However, in my judgment there are such considerations in this case. First, in my judgment a common law duty of care would cut across the whole statutory system set up for the protection of children at risk. As a result of the ministerial directions contained in “Working Together” the protection of such children is not the exclusive territory of the local authority‘s social services. The system is inter-disciplinary, involving the participation of the police, educational bodies, doctors and others. At all stages the system involves joint discussions, joint recommendations and joint decisions. The key organisation is the Child Protection Conference, a multi-disciplinary body which decides whether to place the child on the Child Protection Register. This procedure by way of joint action takes place, not merely because it is good practice, but because it is required by guidance having statutory force binding on the local authority. The guidance is extremely detailed and extensive: the current edition of “Working Together” runs to 126 pages. To introduce into such a system a common law duty of care enforceable against only one of the participant bodies would be manifestly unfair. To impose such liability on all the participant bodies would lead to almost impossible problems of disentangling as between the respective bodies the liability, both primary and by way of contribution, of each for reaching a decision found to be negligent. Second, the task of the local authority and its servants in dealing with children at risk is extraordinarily delicate. Legislation requires the local authority to have regard not only to the physical well-being of the child but also to the advantages of not disrupting the child’s family environment. ... In one of the child abuse cases, the local authority is blamed for removing the child precipitately; in the other for failing to remove the children from their mother. As the Report of the Inquiry into Child Abuse in Cleveland 1987 (Cmnd. 412) (‘Cleveland Report 1987’) said, at p. 244: ‘... It is a delicate and difficult line to tread between taking action too soon and not taking it soon enough. Social services whilst putting the needs of the child first must respect the rights of the parents; they also must work if possible with the parents for the benefit of the children. These parents themselves are often in need of help. Inevitably a degree of conflict develops between those objectives.’ Next, if liability in damages were to be imposed, it might well be that local authorities would adopt a more cautious and defensive approach to their duties. For example, as the Cleveland Report makes clear, on occasions the speedy decision to remove the child is sometimes vital. If the authority is to be made liable in damages for a negligent decision to remove a child (such negligence lying in the failure properly first to investigate the allegations) there would be a substantial temptation to postpone making such a decision until further inquiries have been made in the hope of getting more concrete facts. Not only would the child in fact being abused be prejudiced by such delay, the increased workload inherent in making such investigations would reduce the time available to deal with other cases and other children. The relationship between the social worker and the child’s parents is frequently one of conflict, the parent wishing to retain care of the child, the social worker having to consider whether to remove it. This is fertile ground in which to breed ill-feeling and litigation, often hopeless, the cost of which both in terms of money and human resources will be diverted from the performance of the social service for which they were provided. The spectre of vexatious and costly litigation is often urged as a reason for not imposing a legal duty. But the circumstances surrounding cases of child abuse make the risk a very high one which cannot be ignored. If there were no other remedy for maladministration of the statutory system for the protection of children, it would provide substantial argument for imposing a duty of care. But the statutory complaints procedures contained in section 76 of the 1980 Act and the much fuller procedures now available under the 1989 Act provide a means to have grievances investigated though not to recover compensation. Further, it was submitted (and not controverted) that the local authorities Ombudsman would have power to investigate cases such as these. Finally, your Lordships’ decision in Caparo [1990] 2 A.C. 605 lays down that in deciding whether to develop novel categories of negligence the court should proceed incrementally and by analogy with decided categories. We were not referred to any category of case in which a duty of care has been held to exist which is in any way analogous to the present cases. Here, for the first time, the plaintiffs are seeking to erect a common law duty of care in relation to the administration of a statutory social welfare scheme. Such a scheme is designed to protect weaker members of society (children) from harm done to them by others. The scheme involves the administrators in exercising discretion and powers which could not exist in the private sector and which in many cases bring them into conflict with those who, under the general law, are responsible for the child‘s welfare. To my mind, the nearest analogies are the cases where a common law duty of care has been sought to be imposed upon the police (in seeking to protect vulnerable members of society from wrongs done to them by others) or statutory regulators of financial dealing who are seeking to protect investors from dishonesty. In neither of these cases has it been thought appropriate to superimpose on a statutory regime a common law duty of care giving rise to a claim in damages for failure to protect the weak against the wrongdoer. ... In my judgment, the courts 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.” In respect of the applicants’ claim in one of the cases, known as the Newham case, that the local authority and the health authority were vicariously liable for the actions of the social worker, Mr P., and psychiatrist Dr V. respectively, Lord Browne-Wilkinson said as follows: “In the Newham case the pleadings and Mr Munby’s submissions make it clear how the case is put. The social worker and the psychiatrist, as professionals, owed a personal duty to the first plaintiff, the child, and to the second plaintiff, the mother, to exercise reasonable professional skills in the conduct of the interview with the child and to make proper enquiries. The social worker and the psychiatrist were each personally in breach of this duty, for which breach their employers ... are vicariously liable. ... Like the majority in the Court of Appeal, I cannot accept these arguments. The social workers and the psychiatrists were retained by the local authority to advise the local authority, not the plaintiffs. The subject matter of the advice and activities of the professionals is the child ... the fact that the carrying out of the retainer involves contact and relationship with the child cannot alter the extent of the duty owed by the professionals under the retainer from the local authority ... In my judgment in the present cases, the social workers and the psychiatrist did not, by accepting the instructions of the local authority, assume any general professional duty of care to the plaintiff children ... Even if contrary to my view the social workers and psychiatrist would otherwise have come under a duty of care to the plaintiffs, the same considerations which have led me to the view that there is no direct duty of care owed by the local authorities apply with at least equal force to the question whether it would be just and reasonable to impose such a duty of care on the individual social workers and the psychiatrist. ...” The House of Lords later gave judgment on 17 June 1999 in Barrett v. the London Borough of Enfield ([1999] 3 WLR 79). That case concerned the claims of the plaintiff, who had been in care from the age of ten months to seventeen years, that the local authority had negligently failed to safeguard his welfare causing him deep-seated psychiatric problems. The local authority had applied to strike out the case as disclosing no cause of action. The House of Lords, upholding the plaintiff’s appeal, unanimously held that the case of X and Others v. Bedfordshire County Council did not in the circumstances of this case prevent a claim of negligence being brought against a local authority by a child formerly in its care. Lord Browne-Wilkinson, in his judgment in that case, commented as follows on the operation of the duty of care: “(1) Although the word ‘immunity’ is sometimes incorrectly used, a holding that it is not fair, just and reasonable to hold liable a particular class of defendants whether generally or in relation to a particular type of activity is not to give immunity from a liability to which the rest of the world is subject. It is a prerequisite to there being any liability in negligence at all that as a matter of policy it is fair, just and reasonable in those circumstances to impose liability in negligence. (2) In a wide range of cases public policy has led to the decision that the imposition of liability would not be fair and reasonable in the circumstances, e.g. some activities of financial regulators, building inspectors, ship surveyors, social workers dealing with sex abuse cases. In all these cases and many others the view has been taken that the proper performance of the defendant’s primary functions for the benefit of society as a whole will be inhibited if they are required to look over their shoulder to avoid liability in negligence. In English law the decision as to whether it is fair, just and reasonable to impose a liability in negligence on a particular class of would-be defendants depends on weighing in the balance the total detriment to the public interest in all cases from holding such class liable in negligence as against the total loss to all would-be plaintiffs if they are not to have a cause of action in respect of the loss they have individually suffered. (3) In English law, questions of public policy and the question whether it is fair and reasonable to impose liability in negligence are decided as questions of law. Once the decision is taken that, say, company auditors though liable to shareholders for negligent auditing are not liable to those proposing to invest in the company (see Caparo Industries plc v Dickman [1990] 1 All ER 568, [1990] 2 AC 605), that decision will apply to all future cases of the same kind. The decision does not depend on weighing the balance between the extent of the damage to the plaintiff and the damage to the public in each particular case.” At the relevant time, Order 18 rule 19 of the Rules of the Supreme Court provided that a claim could be struck out if it disclosed no reasonable cause of action. This jurisdiction has been described as being reserved for “plain and obvious cases”, in which a claim was “obviously unsustainable”. In applications to strike out, the courts proceeded on the basis that all the allegations set out in the claimant’s pleadings were true. The question for the courts was whether, assuming that the claimant could substantiate all factual allegations at trial, the claim disclosed a reasonable cause of action. The striking out procedure, now contained in the Part 3.4(2) of the Civil Procedure Rules in force since 1999, is regarded as an important feature of English civil procedure, performing the function of securing speedy and effective justice, inter alia by allowing it to be decided promptly which issues need full investigation and trial and disposing summarily of the others. By means of this procedure, it can be determined at an early stage, with minimal cost to the parties, whether the facts as pleaded reveal a claim existing in law.