B&B v A County Council

An adoption authority may owe a duty of care to preserve adopters’ identities where it gives a specific confidentiality undertaking. An open adoption, or the possibility of disclosure from another source, does not remove that duty. Continuing with the adoption after discovering a breach does not automatically extinguish the duty. The claimant must nevertheless prove loss and causation. This includes proving both a campaign of harassment and responsibility for it. The alleged incidents, or the least improbable explanation for them, may not suffice. The general adoption process is not contractual, and a separate breach of confidence claim is unnecessary where negligence supplies the relevant cause of action.

The claimants were adoptive parents and their two children. During an open adoption, the local authority disclosed the adoptive family’s surname and location to members of the child’s birth family, despite an undertaking to preserve confidentiality. The claimants alleged that the disclosure enabled a prolonged campaign of harassment and claimed damages in negligence, contract and breach of confidence. The parents also claimed the cost of relocation under an alleged promise of continuing support.

The High Court found that the authority owed and breached a duty of care concerning confidentiality, but dismissed the principal claim because the alleged campaign and the birth family’s responsibility for it were not proved. The authority cross-appealed on the duty issue, while the claimants appealed the findings on causation and loss. The central issues were whether the duty existed and whether the claimed damage was caused by the breach.

Appeal dismissed. The Respondent’s Notice was also dismissed.

1. Contract. The general adoption process was not contractual. The confidentiality assurance could not be treated as a collateral or separate contract, and the adopters’ freedom to withdraw meant that their participation could not provide consideration. Even on a contractual analysis, their continuation after learning of the breach would amount to affirmation or estoppel.
2. Duty of care. Applying the three requirements identified in Caparo v Dickman [1990] 2 AC 605, there was sufficient proximity, foreseeability and fairness. The specific undertaking created a responsibility additional to the ordinary adoption process. The policy concerns recognised in X and others v Bedfordshire CC [1995] 2 AC 633 and discussed in A v Essex County Council [2004] 1 WLR 1881 did not prevent liability for careless breach of that undertaking. Regulation 14 of the Adoption Agency’s Regulations 1983 reinforced the confidentiality context. Open adoption did not alter the result. The authority should discuss possible risks before giving an assurance.
3. Continuing duty and foreseeability. Continuing with the adoption after discovering the breach did not automatically terminate the negligence duty. The issue remained whether liability was fair, just and reasonable in the circumstances. At the duty stage, it was enough that some damage of the relevant kind was foreseeable. The precise criminal conduct and its extent need not have been foreseeable: Page v Smith [1996] 1 AC 155 and Jolley v Sutton LBC [2000] 1 WLR 1082.
4. Causation and proof. The claimants bore the burden of proving both breach and loss caused by it. They had to establish a campaign and show that it was orchestrated by the birth family. The court could not treat the birth family as responsible merely because the incidents occurred or because it was the least improbable explanation. The civil standard remained the balance of probabilities, although serious or improbable allegations required evidence of appropriate strength and quality, as explained in R (N) v Mental Health Review Tribunal (Northern Region) [2005] EWCA Civ 1605.
5. Different views on the evidence. Buxton LJ held that the trial judge had made no significant error and was entitled to find that no campaign or responsibility by the birth family had been proved. Sedley LJ considered the trial judge’s approach materially flawed and concluded independently that a vendetta had probably occurred, but not that the birth family had caused it. Bodey J preferred a two-stage inquiry into targeted malice and attribution, finding the former established but the latter unproved. All three judges therefore agreed on the result.
6. Other claims. The assumption of responsibility doctrine added little where the parties were already in a direct relationship. The separate breach of confidence claim was unnecessary and was not established on the basis of merely negligent handling of information. General statements about continuing support could not reasonably amount to an undertaking to fund substantial relocation expenses.

• Court of Appeal (Civil Division): dismissed the claimants’ appeal and the Respondent’s Notice. [2006] EWCA Civ 1388
• High Court of Justice: found a duty of care and breach concerning confidentiality, but dismissed the negligence claim for failure to prove the alleged campaign and its attribution to the birth family. The other claims were also dismissed.