Child protection thresholds could spark legal challenges

Councils that knowingly leave children in abusive situations leave themselves open to expensive legal challenges, say lawyers.

The warning follows last week’s Community Care survey of 170 frontline child protection workers which revealed many managers putting pressure on social workers to not recommend child protection plans, or to return children to birth parents, because of budget cuts.

Solicitor and editor of Social Care Law Today Ed Mitchell said: “Councils are storing up legal trouble if they set thresholds for intervention too high and thereby perpetuate abuse of a child which they could have prevented.”

He said such negligence claims could be brought by an abused child within three years of their 18th birthday “so, many years from today, councils could and probably will be facing claims”.

Peter Garsden, president of the Association of Child Abuse Lawyers, said many negligence claims faced by councils now dated back to the 1970s.

“The seventies was another era of budget cuts and limited resources. It was also a time of upheaval around social worker education and it was another time when, particularly in London boroughs, some areas with the worst problems had the fewest staff on the ground,” he said.

“People often can’t bring themselves to do anything about making a claim for years because of psychological distress. My feeling, both as a lawyer working in this area and as a foster carer who is seeing what’s happening on the ground as a result of budget cuts, is that councils are storing up serious problems for the future.”

Mitchell agreed. “My view is that cuts have little role to play here. To successfully defend a failure-to-protect claim a council needs to show it acted in accordance with reasonable social work standards. In practice, this means showing their actions met the standard set by government guidance – in this case, the 2010 Working Together guidance. That guidance does not contain any resource-based justification for failing to respond to a real suspicion of abuse.”

Such cases would also be eligible for legal aid, even under the recent rule changes.

CASE LAW

1. NXS v Camden London Borough Council July 2009

A child, born in 1975, was abused by her mother until she was taken into care at 14. The 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, while she frequently slapped her baby, she “couldn’t really hurt her”. The court found the child should have been removed from her mother by the age of three and ordered the council to pay her £60,000 compensation.

2. Pierce v Doncaster Metropolitan Borough Council 2007

A boy born in 1976 was removed from his family and placed in foster care soon after he was born. However, following the departure of the social worker, he was returned to his parents without, the court found, proper assessment or investigation. The boy left his home when he was 15, by which time he had suffered severe neglect, emotional and physical abuse from his parents. He later suffered sexual and physical abuse while living on the streets. He was awarded £25,000 in damages. The initial claim was much higher, but the the judge stated that because Pierce also had a genetic personality disorder it could not be proven that his lack of employment opportunities and therapy costs were due solely to the abuse he suffered as a child.

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