Abuse – duty of care – negligence – human rights
The Court of Appeal ruled that children can sue child welfare professionals (including social workers and doctors) for negligence, where there has been a wrongful diagnosis of child abuse perpetrated by the parents.
However the Court decided that parents who suffered as a result of allegations that they had harmed their children were not entitled to sue practitioners for damages for negligence.
The appeal was brought by three families whose claims for damages against the local and health authorities for psychiatric injury arising from false allegations of abuse, had been dismissed by the High Court.
In the Berkshire case, a mother claimed in respect of acute anxiety and distress caused by being wrongly accused of suffering from Munchausen syndrome by proxy and that she was either exaggerating symptoms or harming her child. The child was later found to be suffering from an allergy. In the Dewsbury and Oldham cases, a father and his child and the parents of a child respectively claimed that for psychological injury caused by false allegations of sexual and physical abuse, which led to the temporary separation of the children from their parents. The children had subsequently been found to have been suffering from a brittle bone disease and a rare blood disorder.
The questions for the Court of Appeal were whether:
- the High Court’s decision in each of those cases violated art 6 ECHR;
- the principles laid down in the case of X v Bedfordshire County Council remained unvaried in light of the ECtHR’s decision in Z v UK and subsequent UK case law;
- whether the Bedfordshire case could be distinguished on the facts from the cases on appeal;
- the impact of the Convention on the relevant principles of common law negligence.
The Court held that, in performing that their accepted function of tailoring the law of negligence to new factual situations, the courts would not recognise a duty of care unless it was “fair, just and reasonable” that such a duty should exist. The procedure for determining whether the fair, just and reasonable test precluded the existence of a duty of care, even where all the facts alleged by the claimants had been established, was compliant with art 6. This was recognised by the ECtHR in Z v United Kingdom and TP and KM v United Kingdom.
In X v Bedfordshire County Council the House of Lords held that as a matter of public policy it was not just and reasonable to impose a common law duty of care, either to children or to their parents, on those entrusted with the difficult and delicate task of deciding whether action was necessary to protect children from suspected abuse. However, that decision could not survive the Human Rights Act 1998. Where child abuse was suspected the interests of the child were paramount. It would no longer be legitimate to rule that, as a matter of law, no common law duty was owed to a child in relation to the investigation of suspected child abuse and in care proceedings. Factual situations could possibly arise where it was not fair, just or reasonable to impose a duty of care, but each case was to be determined on its individual facts. The position in relation to parents, however, was very different. The child’s interests were in potential conflict with the parents’ interests. Where consideration was being given to whether the suspicion of child abuse justified taking proceedings to remove the child from the parents, while a duty of care could be owed to the child, no common law duty of care was owed to the parents.