W v Essex County Council

When a local authority places a child with foster carers, it is at least arguable that it owes the carers’ resident children a common law duty to take reasonable care concerning known risks posed by the placement. The statutory child-protection scheme does not necessarily exclude that duty where the claim concerns children for whom the authority has no caring responsibility.

Express assurances that a known or suspected sexual abuser will not be placed in the home may support an assumption of responsibility and liability for negligent misstatement. Whether imposing a duty is fair, just and reasonable must be assessed in the particular statutory and factual context. A properly arguable claim should not be struck out before trial.

Foster carers and their four children claimed damages after a 15-year-old child placed in their home sexually abused the children. The authority allegedly knew that the foster child had previously received a caution for indecent assault. The carers alleged that they had expressly refused to accept anyone known or suspected to be a sexual abuser and had received assurances that no such person would be placed with them.

Hooper J, in [1997] 2 FLR 535, struck out the claims in contract and misfeasance in a public office and the parents’ negligence claim for psychiatric injury. He permitted the children’s negligence and negligent-misstatement claims to proceed.

The plaintiffs appealed against the claims struck out. The defendants cross-appealed against the survival of the children’s claims. The central issue was whether the statutory child-welfare framework made it unarguable that the authority or its social worker owed the resident children a common law duty of care.

1. Disposition. The plaintiffs’ appeal was dismissed. By a majority, Judge and Mantell LJJ, the local authority’s cross-appeal was also dismissed. The children’s negligence and negligent-misstatement claims therefore remained for trial. Stuart-Smith LJ dissented on the cross-appeal and would have struck out the entire pleading.

2. The children’s negligence claims were arguable. The court had to assume the pleaded allegations were true and could strike out only a claim which clearly and obviously could not succeed. Foreseeability and proximity were conceded for the application. The decisive question was whether it was arguably fair, just and reasonable to impose a duty.

   Judge LJ reasoned that the policy considerations excluding liability towards children who were themselves the subjects of the authority’s statutory caring functions did not necessarily apply to children already living in the proposed foster home. Those children were not persons for whom the authority was exercising a statutory caring responsibility. Disclosure of a known risk would not necessarily interfere with the multidisciplinary decision concerning the foster child’s welfare.

   Mantell LJ held that statutory functions do not confer a universal immunity. The court must examine the particular act or omission, the statutory framework and the relevant policy considerations. On the pleaded facts, a duty concerning the placement and, more clearly, a duty to provide information which a reasonable social worker would provide were arguably fair, just and reasonable.

3. Assumption of responsibility and negligent misstatement. Judge LJ held that the requested and given assurances were integral to the claim, rather than relevant only to proximity. It was arguable that the authority assumed responsibility for the accuracy of its assurance that the proposed foster child was not a sexual abuser. The alleged reliance led directly to his admission into the home. A negligent statement may support recovery for physical injury as well as economic loss.

4. Other claims. All three Lord Justices agreed that the contract claim failed. The fostering arrangements arose under a detailed statutory scheme, the relevant code expressly disclaimed legal enforceability, and the proposed term was neither express nor necessary to give the arrangement business efficacy. The children also lacked privity.

   The misfeasance claim failed because no unauthorised act or knowingly exceeded power was identified. The parents’ psychiatric-injury claim failed because they were secondary victims whose illness was not alleged to result from the sudden perception by sight or sound of a horrifying event.

1. Court of Appeal: The plaintiffs’ appeal was dismissed. By a two-to-one majority, the defendants’ cross-appeal was dismissed, leaving the children’s negligence and negligent-misstatement claims to proceed. Leave to appeal to the House of Lords was granted subject to one representation being made.

2. High Court, Queen’s Bench Division: Hooper J, in [1997] 2 FLR 535, struck out the contract and misfeasance claims and the parents’ claim for psychiatric injury. He refused to strike out the children’s negligence and negligent-misstatement claims.