AD v OH (a child) & Anor

A local authority investigating suspected child abuse does not owe a parent a common-law duty of care in tort merely because an interim care order has been made or an assessment is agreed. The protective policy recognised in East Berkshire continues throughout the investigation, until a final order is made or proceedings are discharged. A child’s negligence claim also requires identifiable, actionable damage, such as physical harm or a recognisable psychiatric disorder. Transient distress and ordinary emotional responses are insufficient. Where medical evidence cannot establish that separation caused or materially contributed to actionable harm, causation is not proved. The statutory threshold of significant harm under the Children Act 1989 does not itself determine tort liability.

Mrs AD and her son OH brought separate negligence claims against Bury Metropolitan Borough Council arising from care proceedings taken after OH’s fractures were mistakenly treated as non-accidental injuries. Mrs AD alleged that the local authority owed her a duty of care during the investigation and after an interim care order. OH alleged that negligent child-protection arrangements caused psychological harm during his four-month placement in foster care.

Judge Knopf dismissed both claims. Mrs AD’s claim failed on the duty issue. OH’s claim failed because damage and causation were not established. The appeals were stayed pending the House of Lords decision in East Berkshire, reported at [2005] UKHL 23. The central issues were whether the interim care order altered the duty position and whether OH had suffered actionable harm caused by the alleged negligence.

Lord Justice Wall gave the leading judgment, with whom Laws and Mummery LJJ agreed. Both appeals were dismissed.

1. Mrs AD’s claim. The majority reasoning in East Berkshire, [2005] UKHL 23, applied throughout the investigatory process. Care professionals investigating suspected child abuse must be able to act without an awareness that an unfounded suspicion might expose them to a negligence claim by the suspected parent. The investigation was not artificially divisible into periods before and after an interim care order. It continued until a final care order was made or the proceedings were discharged.
2. The interim order did not create a community of interest between the local authority and the parents. Under the Children Act 1989, an interim care order remained part of the investigation. The local authority obtained parental responsibility and could regulate the parents’ exercise of it. Directions for assessment under section 38(6), and the parents’ consent to the arrangements, did not create a common-law duty of care. No duty was owed to Mrs AD at any stage of the investigation.
3. OH’s claim. Although the local authority accepted, for the purposes of argument, a duty to carry out reasonable child-protection plans professionally, OH had not established identifiable damage during his separation from his parents. The medical evidence could not identify psychological harm caused by the separation. Alternatively, any distress was transitory and non-justiciable. Wall LJ adopted the approach in RK and MK v Oldham NHS Trust, [2003] Lloyd’s Rep Med 1, that damages require physical harm or a recognisable psychiatric disorder, and that ordinary emotional responses do not found a claim.
4. OH’s difficulties had a multifactorial origin. The evidence could not establish that the separation caused or materially contributed to actionable harm. The first-instance judge’s reasoning was imperfectly expressed, but his essential findings were sufficient.
5. The threshold of significant harm under section 31(2) of the Children Act 1989 concerns harm attributable to parental care and does not itself determine tort liability against a local authority. Harm caused by a local authority which was properly characterised as significant might in an appropriate case support a tort claim, but that question was unnecessary on these facts. The Human Rights Act 1998 and Convention rights could not assist in relation to events occurring before the Act came into force.

1. Court of Appeal (Civil Division) dismissed both appeals. Lord Justice Wall gave the leading judgment; Laws and Mummery LJJ agreed.
2. Oldham County Court dismissed Mrs AD’s claim on the preliminary issue that no duty of care was owed. It dismissed OH’s claim after hearing evidence, finding that causation and actionable damage had not been established.