S v Gloucestershire County Council (L v Tower Hamlets London Borough Council)

Where a local authority has taken a child into care, it does not enjoy a blanket immunity from a common law negligence claim concerning the child’s care, placement or upbringing. The availability and scope of any duty depend upon the particular facts, the statutory context, justiciability, and whether it is fair, just and reasonable to impose a duty embracing the damage claimed.

Questions of policy involving competing public interests may be non-justiciable. Difficult professional judgments are not negligent merely because they prove mistaken. In child-care claims, strike-out is appropriate only in the clearest cases. Summary judgment requires a reliable factual record and no real prospect that further evidence or trial will affect the result.

Two former children in local-authority care alleged that negligent foster-parent selection, supervision, investigation and subsequent care had caused psychiatric and other injury after sexual abuse by foster fathers.

D.S.’s claim against Gloucestershire County Council had been struck out by Toulson J. R.L.’s claim against the London Boroughs of Tower Hamlets and Havering had been struck out by a deputy district judge, and her appeal had been dismissed by Judge Platt in Bow County Court.

Both decisions had proceeded on earlier authority concerning local-authority liability for child abuse and care decisions. Following the House of Lords decision in Barrett v Enfield London Borough Council [1999] 3 WLR 79, the Court of Appeal considered whether the claims could be struck out or summarily dismissed under the Civil Procedure Rules 1998.

Disposition

1. May LJ, with Tuckey and Robert Walker LJJ agreeing, allowed D.S.’s appeal. The Court dismissed the local authority’s summary-judgment application. It dismissed R.L.’s appeal because her claim had no real prospect of success on the disclosed evidence.

2. The Court held that the reasoning in Barrett v Enfield London Borough Council [1999] 3 WLR 79 required an individual examination of negligence claims concerning children already in local-authority care. A claim could not fail merely because it was labelled a child-abuse case. Decisions involving policy or competing public interests could be non-justiciable, but care, placement and professional decisions might be actionable under ordinary negligence principles.

3. The Court held that H v Norfolk County Council [1997] 1 F.L.R. 384 was wrongly decided and did not bind it. Its conclusion that the public-policy considerations applicable to decisions whether to remove a child from natural parents precluded a claim concerning foster care could not withstand the House of Lords’ reasoning in Barrett v Enfield London Borough Council.

4. The Court stressed that duty, breach and causation must be considered together by reference to the kind of damage claimed. The court must examine the statutory context and the actual decisions challenged. It must not substitute its view for a local authority’s reasonable professional judgment, but neither does the existence of statutory discretion itself bar a negligence claim.

5. Under CPR rules 3.4 and 24.2, a child-care negligence claim should be struck out only in the clearest case. Summary judgment additionally requires that the material facts reasonably capable of being obtained are before the court, are undisputed or incapable of successful dispute, and that oral evidence has no real prospect of altering the assessment.

6. D.S.’s allegations required investigation. There was no evidence concerning the selection of the foster parents, and the allegations concerning investigation of abuse and later care formed a composite history. R.L.’s detailed contemporaneous records, however, showed careful assessment and regular monitoring. There was no realistic evidential basis for proving that the authorities should have foreseen a risk of sexual abuse or that further monitoring would have revealed it.

• Court of Appeal: D.S.’s appeal was allowed and R.L.’s appeal was dismissed: [2000] EWCA Civ 72; [2001] Fam 313.
• High Court: Toulson J struck out D.S.’s negligence claim for disclosing no reasonable cause of action. That decision was reversed.
• Bow County Court: Judge Platt dismissed R.L.’s appeal from the deputy district judge’s strike-out order. That result was upheld, on the basis that the claim had no real prospect of success.