A recent case in the High Court has shown that there is no blanket immunity for local authorities for personal injury claims simply because there may be a potential conflict of duty towards the child and the duty towards a parent. Just because a local authority owes a duty of care to a child, it is not immune from also owing a duty of care to that child’s parents.
Merthyr Tydfil County Borough Council is being sued by a mother who claims it failed to act on complaints her children were sexually abused by a neighbour’s daughter.
The mother contacted the NSPCC in 2002 and complained that her daughters were being subjected to “inappropriate sexual behaviour” by a neighbour’s daughter, who was then just aged eight. The NSPCC passed on the complaint to the Council who advised the mother to keep her children indoors. The mother followed this advice but she eventually noticed that the child next door did not appear to be playing outside so allowed her children out again.
Unfortunately, in August 2004 further sexual abuse took place and the mother complained to the Council again. The Council told her that they had never been informed of this before and refused to contact the NSPCC. The social worker allocated to the family was the same one who was allocated to the family of the alleged abuser. Following this she suffered a psychiatric reaction.
Subsequently, the abuser was removed from her family and placed with foster parents.
The Council wrote to the mother in 2005 and confirmed there had been a series of operational failings with regard to the management of her complaints.
Court proceedings were issued in August 2007 and the Council applied to have the claim struck out on the grounds that they owed no duty of care to the Claimant. They based their application on the case of JD & Ors v East Berkshire in which parents claimed damages for psychiatric harm caused by false accusations of sexual abuse by a local authority.
However, sitting in the High Court, Justice Hickinbottom, said that the case of JD & Ors did not alter the law and it was held that a common law duty of care was owed if the following three criteria were satisfied:-
1. it was foreseeable that the claimant would suffer damage if the Defendant acted as alleged;
2. there was a relationship of sufficient proximity between the parties; and
3. it was fair, just and reasonable to impose a duty of care on the Defendant in all the circumstances.
Mr Justice Hickinbottom distinguished this case from JD & Ors as the mother was not suspected of any abuse and there was no conflict of interest for the local authority in their duties to the mother and the children. The duty of care to the mother was “distinct” to that owed to the children and was not “parasitic” to the duty owed to the children. Furthermore, the alleged failings were not of a policy nature – they had simply failed to open a file in 2002 and in 2004 denied that they knew anything. They were operational failings.
Mr Justice Hickinbottom also stated that the courts should be cautious to strike out a case in a developing area of law. In this case he felt that the mother’s claim had a real prospect of success and would be permitted to proceed.
The case continues and the mother still has to prove her case. However, it is a clear indication that the Courts are not willing to subscribe to over-reaching authorities which would provide a blanket immunity to Local Authorities against a class of people. Local Authorities must have a mind to every person who may be affected by allegations and incidences of abuse.
Gary Walker – Solicitor, Sheffield