When local authorities face claims for child care negligence

Ed Mitchell looks at when a claim for negligence can be successful – or fail

Legal immunities for child care work have been stripped away over the past 10 years. As a result, local authorities are now more likely than previously to face negligence claims. Several cases are worth examining for guidance in two areas.

Claims by parents arising out of child protection work

The courts recognise that, in some cases, it is not in the public interest for local authorities to be exposed to negligence claims arising out of child protection work.

The leading case is the Law Lords’ ruling in JD v East Berkshire Community Health NHS Trust (2005) that child protection professionals do not owe a legal duty of care in conducting child protection investigations towards parents suspected of child abuse. The absence of a duty of care means a negligence claim cannot succeed.

The East Berkshire ruling was probed in Merthyr Tydfil CBC v C (January 2010). A mother said she suffered psychological damage because a council did not properly investigate her allegation that a neighbour’s child had sexually abused her daughter. The High Court held that the East Berkshire ruling did not bar a negligence claim because it only prevents claims by parents who are suspected of abusing their children. That was not the case here.

B v Reading DC (December 2009), however, was a claim by a parent who had been suspected of abuse, but later exonerated. Due to the East Berkshire ruling, the parent could not bring a negligence claim. He brought a different type of civil claim, misfeasance in public office, which is more difficult to prove. The Court of Appeal upheld a rejection of the father’s claim because the social workers involved had not acted in bad faith. Although their Achieving Best Evidence interview was “deeply flawed”, they had always considered they were acting in the best interests of the child.

Failure to protect claims

The East Berkshire case also established that a legal duty of care is owed to children who are the subject of a child protection investigation.

As a result, a negligence claim is possible, although such claims can be difficult to mount because social worker conduct is to be assessed by reference to professional norms at the time of the events complained about.

NXS v Camden LBC (July 2009) concerned a child born in 1975 whose mother abused her until she was taken into care at 14. The local council was aware of physical abuse when the child was a baby but no action was taken because a social worker accepted the mother’s assurance that, although she often slapped her baby, she “couldn’t really hurt her”. This was negligent even by the standards of the 1970s and the child should have been removed from her mother by age three, at the latest. The High Court ordered the council to pay the girl (now a woman) £60,000 compensation.

TF v Lewisham LBC (September 2009) shows that the civil courts do not expect perfection in child protection work. A council had investigated allegations of sexual abuse of a three-year-old girl. No action was taken then but the girl was taken into care at age 10. As an adult, she claimed that the council had been negligent by not removing her when she was three. The county court held that the council had not been negligent. The Court of Appeal upheld that finding, noting that “something more than an error of judgement by a social worker was needed to establish negligence”.

Ed Mitchell is a solicitor and editor of Social Care Law Today

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This article is published in the 6 May 2010 edition of Community Care under the headline “Child care negligence: When is the local authority at fault?”