In A and B v Essex council [2002] 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 [2001] 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
obvious.’
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.
Richard White
White and Sherwin Solicitors
Appeal favours carers
02 May 2000
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