In A and B v Essex council  EWHC 2707 (QB) adoptive
parents successfully sought damages from the local authority who
had placed children with them for adoption.
They alleged that the authority had failed to inform them of the
extent of the difficulties of one of the children. Their case was
based on the authority having vicarious liability - that is being
responsible for the actions or omissions of its employees. The
adopters expected a measure of behavioural problems or disturbance
and were prepared to accept it. They were not prepared to accept
the degree of disturbed behaviour they were faced with, and about
which they said they were not told.
The authority denied that it had been careless or that it owed a
duty of care to the adopters. It argued that such a duty might
deter agencies from making placements, and that there might be
issues about confidentiality.
The judge followed the decision of the House of Lords in Phelps
v Hillingdon London Borough Council  2 AC 619 (a case where
an educational psychologist had failed to diagnose that a child had
special educational needs). The test was whether it was fair, just
and reasonable to impose a duty of care in the circumstances.
Mr. Justice Buckley held on 18 December 2002:
‘That a child with serious behavioural problems, particularly
one displaying violence towards property and people, was
foreseeably likely to cause injury, seems to me to be plain. That
the relationship between A and B as prospective adoptive parents
and the social workers and doctor, who between them had the task of
assessing and examining the children and telling A and B about
them, passes any sensible test of proximity, I regard as equally
The local authority argument that imposing a duty in such
circumstances might deter agencies from making placements is
absurd, and smacks of a case put by insurers. The alternative would
be that an authority could hide problems from prospective adopters
and leave them to discover the problems emerging from the
child’s life experiences.
The judge dismissed that argument, saying that professionals
with special skills who were paid to offer their services to the
public should act to an appropriate standard. He said: ‘Any
suggestion that a prospective adopter should go ahead without the
fullest information about the child in question would be untenable,
at least as a general proposition.’
This decision is of considerable importance, especially in the
light of the current policy of seeking to place more children for
adoption. It is essential that prospective adopters have a good
idea of the problems they are likely to have to face, so that they,
and the placing agency, can consider whether they have the
resources, physical, emotional and financial, to manage that type
of child, but also so that they can prepare themselves and their
family for handling the problems.
It is a potent reminder that local authorities cannot simply
place troubled children for adoption and expect normal, everyday
people necessarily to be able to resolve problems, which have
developed for years while with the birth family and in care.
White and Sherwin Solicitors