Barrett v Enfield London Borough Council

A negligence claim concerning a public authority's care of a child should not be struck out merely because the challenged conduct involved statutory powers or discretion. The court must determine whether the particular issue is justiciable. Decisions requiring the allocation of resources or the balancing of competing public interests may be unsuitable for judicial determination. Conduct involving administration, professional judgment or ordinary standards of reasonableness may attract a duty of care.

Whether a duty is fair, just and reasonable depends on the conduct proved and its statutory context. Where the law is developing, disputed questions of duty, breach and causation should ordinarily be decided on established facts. The cumulative effect of alleged negligence may be relevant to causation.

Barrett v Enfield London Borough Council concerned a child who had remained in the local authority's care from infancy until the age of 17. He alleged that unsuitable placements, inadequate supervision, failure to consider adoption, deficient social-work support and failure to obtain psychiatric treatment cumulatively caused psychiatric illness and associated difficulties.

The claim for breach of statutory duty was abandoned. The surviving claim alleged a common law duty arising from the authority's care of the appellant and its implementation of statutory functions. A county court judge struck out that claim. The Court of Appeal, reported at [1998] Q.B. 367, upheld the order because the central decisions involved statutory discretion, it would not be fair, just and reasonable to impose a duty, and actionable operational conduct could not have caused the alleged injury.

The central issues were whether a duty of care was arguable and whether duty or causation could properly be determined without a trial.

1. Disposition. The House unanimously allowed the appeal and permitted the action to proceed. Lord Browne-Wilkinson, Lord Slynn of Hadley and Lord Hutton delivered substantive speeches. Lord Nolan and Lord Steyn expressly adopted the reasons given in those speeches. The decision established only that the claim was arguable; it did not determine that the appellant would succeed at trial.

2. Strike-out. Per Lord Browne-Wilkinson, a developing area of negligence law should ordinarily be considered on facts found at trial. A claim should not be struck out unless the relevant legal and factual questions admit of a certain answer against the claimant. The uncertain boundary between policy decisions and operational conduct, together with the factual nature of causation, prevented summary dismissal.

3. Statutory discretion and justiciability. Per Lord Slynn and Lord Hutton, the fact that conduct occurred within a statutory scheme or involved an element of discretion did not itself exclude a common law duty. The ultimate inquiry was whether the particular issue was justiciable. Decisions involving the allocation of scarce resources, the distribution of risks or the balancing of competing public interests could be unsuitable for judicial resolution. Administrative conduct, professional judgment and action measurable against ordinary standards of reasonableness could, however, attract liability.

4. Duty of care. Per Lord Slynn and Lord Hutton, the child-abuse claims considered in X (Minors) v Bedfordshire County Council were materially different. Once a child was in care, responsibility lay with the authority and its professional staff, and the sensitive decision whether to remove the child from the family had already been taken. The analogy with parental immunity was also inapt because an authority makes decisions, including those concerning adoption and foster placement, which an ordinary parent does not make. It was therefore arguable under the Caparo criteria that some alleged acts or omissions, considered individually or cumulatively, involved a duty of care.

5. Standard and causation. Lord Slynn considered that social workers performing skilled functions were entitled to the protection, with necessary adaptations, of the professional-negligence principle in Bolam. Lord Hutton emphasised that liability would require more than a mere error of judgment in a difficult statutory field. Nevertheless, causation was predominantly factual. The expert material provided an arguable basis for finding that the management of the appellant's care, viewed cumulatively, materially contributed to his psychiatric condition.

6. Article 6. Lord Browne-Wilkinson additionally considered that the uncertain implications of article 6 of the European Convention on Human Rights, following Osman v United Kingdom, reinforced the need not to strike out the claim. The common law grounds were sufficient to dispose of the appeal.

1. House of Lords: Unanimously allowed the appeal, displaced the Court of Appeal's order and permitted the negligence claim to proceed to trial: [1999] UKHL 25; [2001] 2 AC 550.
2. Court of Appeal: Dismissed the appellant's appeal and upheld the striking out of the common law negligence claim: [1998] Q.B. 367.
3. Colchester County Court: Judge Brandt allowed the local authority's appeal from District Judge Skerratt and struck out the claim as disclosing no reasonable cause of action. District Judge Skerratt had refused the authority's application.