Children and parents claim right to sue for psychiatric harm from false abuse accusations

In Re JD, MAK and RK, and RK  v East Berkshire Community Health
Authority, Dewsbury Health Care NHS Trust and Kirklees Council, and
Oldham NHS Trust [2003] EWCA Civ 1151 the court of appeal
considered three cases where parents claimed damages for
psychiatric harm alleged to have been caused by false allegations
of abuse against their children.

In one case a mother was incorrectly diagnosed as suffering from
Munchausen Syndrome by Proxy, in the second it was concluded that a
child had been sexually abused, when in fact she was suffering from
a bruising syndrome, and in the third a child was diagnosed as
having been intentionally harmed, when injuries arose from
osteogenesis imperfecta.

It was argued that previous case law had been overtaken by
European human rights case law.  In X  v  Bedfordshire Council
[1995] 2 AC 633 the House of Lords had established that decisions
taken by local authorities whether or not to take a child into care
were not ones which the courts would review by way of a claim for
damages in negligence by a parent. In the current case the court of
appeal held that the effect of the Bedfordshire case should be
limited to that core proposition. There were cogent reasons of
public policy for retaining the principle that no duty of care was
owed to the parent. The claims of each of the parents failed. In
each case any duty of the authorities or those employed by them was
to the child and not the parents.

In respect of a claim by a child the court took a different
view. It held that since the authority had a duty to respect a
child’s rights under European Convention of Human Rights the
recognition of a duty of care to the child in cases of suspected
child abuse, should not have a significantly adverse effect on the
manner in which duties to investigate were carried out.

As matters of fact in the first case there was no claim by a
child in issue; in the second case it was held that the child had
an identifiable claim for misdiagnosis against the treating
physician (and thus the health authority), and against the local
authority for the manner in which they contributed to the child
protection investigation; in the third case it was held that the
medical evidence did not disclose an injury for which the law
recognised a remedy.

Richard White
White and Sherwin Solicitors