Legal Updates

• Children of parents wrongly accused of abuse can sue, court rules

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