Negligence claims in child protection cases

A claim for negligence against a local authority puts the spotlight on “duty of care”. But it can depend on who is making the claim. Ed Mitchell reports

What’s the issue?
Child protection mistakes.

What’s the case?
Stephanie Lawrence v Pembrokeshire Council.

What was the case about?
The case was about whether parents could sue a local authority for damages for negligently taking child protection action which turned out to be unfounded.

How did the case arise?
Stephanie Lawrence told social workers that occasionally she disciplined her children by threatening them with a wooden spoon. Then, her partner told social workers that she had hit him with a wooden spoon, which was untrue.

In April 2002, a child protection conference (CPC) was held. Lawrence was unhappy about its conduct because she was not permitted to give her side of events. The CPC concluded that her children were at no risk of physical harm but that they should be entered on the child protection register under the “emotional harm” category.

Subsequently, an independent report concluded that “the evidence did not justify placing the children’s names on the register and social workers had misused the initial CPC and misled the chair”. Later, the children’s names were removed from the register. Lawrence made a complaint to the ombudsman who found maladministration and recommended £5,000 compensation.

Lawrence then brought a claim for damages in negligence. The High Court struck out her claim on the basis that it is impossible for parents to sue a local authority for negligent discharge of its child protection functions. Lawrence appealed to the Court of Appeal.

What did the court decide?
The court was asked to decide whether a local authority owes parents what is known as a “common law duty of care” to exercise reasonable care when carrying out child protection functions. Where such a duty exists, a well-intentioned but negligent mistake gives rise to potential legal liability.

The Law Lords have previously held that no such duty exists (JD v East Berkshire NHS Trust (2005)). They decided that a common law duty of care should not be imposed for fear that this might make child protection professionals too cautious and prevent them from taking timely and robust action to protect children who could be at risk.

The Court of Appeal saw no good reason to depart from the East Berkshire decision. While human rights legislation might give a separate legal right to aggrieved parents, that did not justify exposing local authorities to negligence claims. The immunity from negligence claims, therefore, remains in place.

Are local authorities also protected from claims by children?
The answer to this question is “no”. Consistently, with the principle that the law’s purpose here is to promote the protection of children, the courts have held that child protection teams do owe a common law duty of care to children. Therefore, a negligent failure to protect a child could leave a local authority open to claims for damages in negligence.

Can parents bring any sort of claim?
It is a feature of our legal system that a single event can have more than one legal consequence. This decision does not rule out other claims by parents.

Ed Mitchell is a solicitor, editor of Social Care Law Today and Community Care’s legal expert

Further information
Full decision of the court