JD & Ors v East Berkshire Community Health & Ors

In child-protection decisions, the common law may recognise a duty of care to the child, but not to a parent whose interests may conflict with the child’s welfare. The former blanket rule against negligence claims arising from investigation of suspected child abuse could no longer be maintained after the Human Rights Act 1998. Whether a duty is owed to a child depends on the individual facts.

A parent accused of abuse is differently placed. Professionals must be free to investigate and act in the child’s best interests without a concurrent negligence duty to the suspected parent. Witness immunity protects the preparation and giving of evidence, but does not ordinarily protect investigative acts merely because they may later be proved in proceedings.

Three conjoined appeals concerned unfounded allegations of child abuse or fabricated illness. The claimants sought damages, principally for psychiatric injury, against NHS bodies and, in one appeal, a local authority.

• In East Berks, a mother alleged that doctors negligently diagnosed her as suffering from Munchausen syndrome by proxy.
• In Dewsbury, a father and his daughter claimed after an erroneous diagnosis of sexual abuse. The daughter’s claim against the NHS Trust was allowed to proceed at first instance, but her claim against the local authority was dismissed.
• In Oldham, parents claimed after their child was separated from them following an alleged non-accidental injury.

The Chester and Leeds County Courts, and Simon J in the Manchester District Registry, had held that no relevant duty of care was owed. The central issue was whether X v Bedfordshire County Council [1995] 2 AC 633 prevented the claims.

1. The Dewsbury child’s appeal was allowed. Her negligence claim against the local authority could proceed. The East Berks and Oldham appeals, and the Dewsbury father’s appeal, were dismissed.
2. Article 6. There was no denial of access to a court. The requirement that a negligence duty must be fair, just and reasonable is part of the substantive law of negligence, not an immunity. A preliminary determination that no duty exists can properly dispose of a claim without a factual trial: Z and Others v United Kingdom [2001] 2 FLR 612 and TP and KM v United Kingdom [2001] 2 FLR 549.
3. Duty to the child. The policy reasons in X v Bedfordshire County Council for a blanket exclusion of negligence liability in child-abuse investigations had lost their force after the Human Rights Act 1998. Human-rights claims may require closely comparable factual inquiries into official conduct and may lead to damages. It was therefore no longer legitimate to rule, as a matter of law, that no common-law duty could be owed to a child in investigating suspected abuse or initiating and pursuing care proceedings. The existence of such a duty remains fact-sensitive and does not replicate liability under Articles 3 or 8.
4. No duty to parents. A parent suspected of abusing a child has interests potentially opposed to those of the child. The child’s welfare is paramount. It would not be fair, just and reasonable to impose on those making child-care decisions a concurrent duty of care to the suspected parent. That conclusion applied to the mothers and fathers in these appeals, including where the allegation arose from a doctor’s assessment of the child.
5. Witness immunity. Applying Darker and others v Chief Constable of the West Midlands Police [2001] 1 AC 435, immunity does not extend to investigative acts merely because the investigator may later be a witness. The local authority’s staff had not been shown to be protected from the child’s claim at the preliminary stage.

• Court of Appeal (Civil Division): Allowed the Dewsbury child’s appeal against the local authority. Dismissed the parents’ appeals in all three actions.
• Chester County Court, HHJ Hale: On 6 September 2002, dismissed the East Berks mother’s negligence claim for want of a duty of care.
• Leeds County Court, HHJ Grenfell: On 22 September 2002, permitted the Dewsbury child’s clinical-negligence claim against the NHS Trust to proceed, but dismissed the claims against the local authority and the father’s claim.
• Manchester District Registry, Simon J: Dismissed the Oldham parents’ claims for want of a duty of care.