W v Essex County Council

A developing claim for psychiatric injury should not be struck out where the assumed facts leave its legal viability uncertain. The categories of primary and secondary victim are not closed against new factual situations.

Parents who allegedly suffered psychiatric illness after discovering that a foster child had abused their children might arguably qualify as primary victims because they had innocently brought the abuser and victims together. Alternatively, whether discovery occurred within the immediate aftermath for secondary-victim liability required examination of the particular circumstances. The court did not decide that liability existed, only that established authority did not make failure inevitable.

The claimant parents were approved specialist foster carers. They had expressly refused to accept a child known or suspected to be a sexual abuser. The council nevertheless placed with them a boy whose relevant history was known to its social worker but was not disclosed. The boy allegedly sexually abused the parents’ four children, after which the parents suffered recognised psychiatric illnesses.

Hooper J struck out the parents’ claims but allowed the children’s claims to continue: [1997] 2 FLR 535. The Court of Appeal unanimously upheld the striking out of the parents’ negligence claim: [1999] Fam. 90. By the House of Lords hearing, the defendants accepted that the children’s claims should proceed.

The sole issue was whether the parents’ negligence claim was so clearly incapable of satisfying the legal requirements for recovery of psychiatric injury that it should be struck out before trial.

1. Appeal allowed unanimously. Lord Slynn of Hadley delivered the leading speech. Lord Steyn, Lord Hope of Craighead, Lord Hobhouse of Woodborough and Lord Millett agreed that the parents’ claims should be permitted to proceed to trial.

2. Per Lord Slynn, a claim should be struck out under the Rules of the Supreme Court, Ord. 18, r. 19(1)(a) or (d), only where it has no legal prospect of success or is an abuse of process. Where the law is developing and the assumed facts do not permit a certain answer, novel questions should ordinarily be decided after the relevant facts have been found at trial. This approach followed X (Minors) v Bedfordshire County Council [1995] 2 AC 633 and Barrett v Enfield London Borough Council [1999] 3 WLR 79.

3. The alleged duty of care was arguable. The council and social worker allegedly knew both that the parents would not accept a known or suspected sexual abuser and that the boy had committed sexual abuse. Whether it was just and reasonable to recognise a duty, whether the matter was justiciable, and whether the duty had been breached depended upon the full facts and the considerations influencing the placement decision.

4. The pleaded depression and post-traumatic stress disorder were capable of constituting legally recognised psychiatric injury rather than mere grief. It also could not be determined without factual investigation that a person of reasonable fortitude would necessarily withstand learning of serious abuse committed against their young children after innocently bringing the abuser into the home.

5. The existing authorities did not conclusively prevent the parents from being treated as primary victims. The primary and secondary victim categories remained capable of development in different factual situations. Psychiatric injury allegedly resulting from the parents’ sense that they had brought the abuser and abused together, or from responsibility for failing to detect the abuse sooner, was therefore not necessarily excluded.

6. The recognised temporal, spatial and perceptual controls governing secondary victims remained important. Nevertheless, the immediate aftermath had to be assessed in the particular factual setting. It was not inevitable that the parents had to encounter the abuser or abused immediately after an individual incident. Whether learning about incidents occurring over the preceding four weeks met the required proximity could be decided only after trial.

7. The House expressed no view on whether the parents would ultimately succeed. It held only that their claim was not so certainly or clearly bad that they should be barred from pursuing it.

1. House of Lords: The parents’ appeal was allowed unanimously. The order striking out their claims was set aside and the claims were permitted to proceed to trial.

2. Court of Appeal: By a majority, the court upheld the refusal to strike out the children’s negligence claims. It unanimously upheld the striking out of the parents’ negligence claims: [1999] Fam. 90.

3. High Court: Hooper J struck out all claims made by the parents but refused to strike out the children’s claims: [1997] 2 FLR 535.