L & Anor v Reading Borough Council & Ors Rev 1

A social worker investigating suspected child abuse does not owe the suspected parent a duty of care in the conduct of that investigation. The duty cannot be divided between evaluative decisions and supposedly operational functions such as interviewing a child, recording responses or relaying information. A divided duty would create an artificial distinction and risk placing social workers in an impossible position when prioritising the child’s interests. The principle applies throughout the investigation. A claim based on the absence of a legally recognised duty may therefore be struck out. A separately pleaded direct duty against a local authority cannot proceed where breach of that duty has not been pleaded, although an opportunity to amend may be given.

The claim arose from a child-protection investigation following allegations that B had sexually abused his daughter, L. The allegations were later found to be unfounded. B claimed damages against the local authorities said to be liable for the conduct of social workers, including alleged failures in interviewing L, recording and reporting her answers, and recommending continued registration.

The application concerned whether B’s claim for breach of the social workers’ duty of care disclosed a legally recognisable cause of action under rule 3.4(2)(a) of the Civil Procedure Rules. It also exposed a pleading defect concerning an alleged direct duty owed by the local authority itself. The central issue was whether the reasoning in D v East Berkshire Community Health NHS Trust applied to operational as well as evaluative aspects of a child-abuse investigation.

1. Application determined. The court rejected the submission that the strike-out application should await trial. The legal issue could properly be decided in advance, enabling the parties to know which causes of action remained.
2. No duty to the parent. Following D v East Berkshire Community Health NHS Trust [2005] 2 AC 373, it was not fair, just or reasonable to impose on social workers investigating suspected child abuse a duty to protect the suspected parent from harm caused by the investigation. The professionals’ duty to the child required them to act in the child’s interests. A duty to the parent would create a conflict by requiring the parent’s interests to be taken into account.
3. Operational functions not separable. The proposed distinction between evaluative decisions and operational matters was rejected. Interviewing the child, recording responses and demeanour, and accurately relaying information were part of the investigation itself. A duty could not exist for some purposes and cease for others as the factual circumstances changed. Such a distinction would be artificial, unprincipled and liable to place social workers in an impossible position. AD v Bury Metropolitan Borough Council [2006] EWCA Civ 1 and Lawrence v Pembrokeshire County Council [2006] EWHC 1029 (QB) supported that approach.
4. The reasoning was reinforced by RK v Oldham NHS Trust, where an alleged failure to take an accurate history was treated as part of the investigation, and by the caution against a sharp distinction between policy and operational decisions referred to in Phelps v Hillington London Borough Council [2001] 2 AC 619 and Stovin v Wise [1996] AC 923.
5. The vicarious-liability claim for breach of duty therefore disclosed no legally recognisable cause of action and specified paragraphs of the Re-amended Particulars of Claim were struck out.
6. The alleged direct duty owed by the local authority was not struck out finally. The pleading identified the duty but alleged no breach. B was given 28 days to apply to amend; otherwise the remaining paragraphs relating to that duty would be struck out.

The judgment records that an earlier decision by Goldring J striking out the claim against the Chief Constable was appealed.

• Court of Appeal: the appeal was allowed on witness immunity, and the claim concerning the alleged duty of care owed by the police officer was allowed to proceed. The decision is reported at [2001] 1 WLR 1575.
• High Court (Queen’s Bench Division): the present application by the first and second defendants was determined on its merits. The court struck out the pleaded vicarious-liability claim against the local authorities, subject to a possible amendment concerning the alleged direct duty.