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The first of these two articles ("Damned if you don't", 22 January) discussed the current case law where damages are claimed against public authorities for not doing enough in child protection cases. Here, I examine courts' recent decisions where the authority is accused of doing too much in such situations.

The leading case is now the three appeals (East Berkshire, Dewsbury & Oldham) known as JD & Others v East Berkshire Community Health & Others, where judgment was given by the Court of Appeal on 31 July 2003.

In East Berkshire, the claimant was the mother of a boy diagnosed with allergies and suffering from asthma. He was hospitalised on nine occasions with breathing problems. However, a second medical opinion suggested that the boy's condition could be exaggerated or fabricated by the mother; possible Munchausen's syndrome by proxy was mentioned. The mother discovered this opinion by chance a few months later. A third medical opinion eventually confirmed the original allergy diagnosis. However, the mother said she had suffered acute anxiety and depression as a result of the accusations made against her.

The claim was brought as if it were a clinical negligence matter, where the patient (the mother) had been misdiagnosed. The Court of Appeal rejected this, saying the boy alone was the patient.

In Dewsbury, a girl suffered from a disease that produced discoloured patches on her skin. This was not initially diagnosed. When she suffered an injury in the genital area while riding her bicycle, the consultant paediatrician at the hospital said the marks on the girl's legs, and an examination, confirmed sexual abuse. The girl's parents were prevented, in front of other patients and visitors (including members of the family's Gujerati community) from seeing her at the hospital. The girl's father and brother were also told they should not sleep at home when the girl was released from hospital.

Thankfully, within a few days, the correct diagnosis was made. The girl, however, claimed psychiatric injury resulting from the misdiagnosis, as did her father, who also claimed financial loss. Particular emphasis was laid on the relevance of his community, which had effectively been informed of the allegation of sexual abuse. The Court of Appeal allowed the girl's case to proceed, but refused the father's case. Again, as in East Berkshire, the reason given was simply one of public policy, that owing a duty of care to the girl, and at the same time to the father, was an unacceptable conflict.

The third case, Oldham, was similar to East Berkshire in that it involved a hidden bone condition that rendered the girl involved susceptible to fractures, but which initially led to a misdiagnosis of non-accidental injury when she broke her thigh. The girl was taken into care. Around nine months later, the family was reunited when the correct diagnosis was made. The parents claimed damages for psychological distress resulting from the misdiagnosis and consequent separation from their daughter.

Again, the Court of Appeal threw out the claim saying that it simply would not be fair, just and reasonable to impose such a duty of care on the doctors concerned, given their undoubted duty to the child.

Practitioners will no doubt breathe a sigh of relief that the claims by parents were refused. But how can a health authority or social services department reduce the risk of a claim from the child in these circumstances, when all that has been done is to follow the procedures and put the interests of the child first? I suggest there are two key lessons from this group of cases:

• Give proper consideration to the possibility of an alternative, innocent explanation. This was particularly so in East Berkshire, where the innocent explanation was already known. Perhaps there should be two independent opinions from medics of equal seniority and standing before any potentially traumatic action is taken, such as separation from parents.
• Look at the child's interests and the relevant evidence to date, in the round. In each of the cases examined by the Court of Appeal, there were at least three possibilities:

a The current diagnosis (abuse) is correct, and the evidence points towards the parents.

b The current diagnosis is correct, but the evidence does not, on the balance of probabilities, point towards the parents.

c The current diagnosis is incorrect.

Only in the first instance is it reasonable to separate and/or record a diagnosis that implies abuse.

Some may argue that there may not be time to obtain a second medical opinion - the child may be hurt again if there is any delay. But these cases show that there may also be harm, albeit of a different kind, if there is too much haste. In the historical development of the law of negligence, there is a strand known as "social utility". Judge Hilbery put it well in a 1938 case against Rotherham Grammar School where a schoolboy was accidentally injured when playing with a cricket pitch roller: "If [children] were kept in cotton wool, some of them would choke themselves with it."

Or, in 1946, Lord Asquith made the point (rather prophetically, some would say) that "if all the trains in this country were restricted to a speed of five miles per hour, there would be fewer accidents but our national life would be intolerably slowed down."

This is not to argue that some degree of child abuse is acceptable. The point is that abuse is but one kind of harm, and children may be harmed in a number of different ways, including by those intended to protect them. I suggest that child protection is not so much about protecting children from harm per se, but about risk assessment and management.

For those still feeling relieved that the tide of potential claims from parents has been stemmed, I have bad news. I do not see the Court of Appeal's reasoning as sustainable in the long term. It is not part of English law that, just because a duty may overlap or conflict with another, it does not exist. In health and safety, for example, a carer in a children's home has a duty to protect herself and others around from obvious harm. So, when one child attacks another with a knife, there is a duty to the child being attacked and to the member of staff herself. Does she intervene or not? The answer is a mixture of a risk assessment and free choice, but that does not negate the "conflicting" underlying duties.

I see no legal difficulty with a duty of care owed to parents, schools and children's homes (whether public or independent) by statutory parents and the inspection and regulation agencies. This duty may well have different elements (for example, a general duty promptly to inform parents of all relevant evidence) compared with the duty owed to the child. However, such a duty would help redress the current power imbalance between those who can authoritatively and publicly accuse and those who are labelled. A wrongful allegation of abuse against a school or children's home can easily cause its closure, and so cause distress and harm to many children and their families.

Section 1 of the Children Act 1989 has been much misunderstood, not least because it speaks of the court's duty, not anyone else's. Also, it says that the child's welfare is "paramount"; it does not say that it should be the sole consideration. If the development I predict occurs, in the short term it may lead to more court cases and a greater feeling of vulnerability for practitioners.

In the longer term, however, I suggest it will lead to:

• Clearer principles for everyone involved.
• The welfare of all who are vulnerable being held paramount.
• A proper recognition that some mistakes are inevitable, by natural parents, statutory parents, schools, children's homes, or investigative or regulatory authorities.
• A recognition that all owe some form of duty to others, including the duty to make good where mistakes have been made.

That, surely, is what we want our children to learn from us, before they themselves become parents, social carers, child protection practitioners, legislators or judges.

Alison Castrey is a solicitor and care standards consultant, www.castrey.com telephone 0117 962 2356.