Pierce v Doncaster Metropolitan Borough Council

A local authority’s failure to review a child’s welfare before returning him from voluntary foster care may amount to breach of duty, but the finding must have proper evidential support showing that no reasonable authority could have permitted the return. Causation depends on evidence of what would probably have happened if the child had remained in care. Foreseeable loss is not confined to neglect where the foreseeable risk was injury through bad parenting, including violence or abuse. Damages must distinguish harm caused by negligence from congenital or inevitable conditions. Under section 14(3) of the Limitation Act 1980, constructive knowledge may arise where relevant records were known, wanted and reasonably accessible. The section 33 discretion involves separate considerations and was remitted.

The claimant alleged that the defendant local authority negligently failed to take him into care, exposing him to parental neglect, violence and abuse. Eady J found negligence in November 1977 when the claimant was returned from foster care to supervised housing, rejected claims concerning May 1979 and 1990–91, and awarded £25,000: [2007] EWHC 2968 (QB).

The authority appealed the findings on breach, causation, recoverability of injury by violence, limitation and quantum. The central issues were whether the November 1977 decision lacked evidential support, whether the claimant would probably have remained in care, what damage fell within the duty, whether constructive knowledge arose, and whether the damages were excessive.

The court, in a judgment delivered by Hughes LJ, allowed the authority’s appeal on constructive knowledge under section 14(3) of the Limitation Act 1980. The appeal was otherwise dismissed. The issue of discretionary extension under section 33 was remitted to the trial judge if it remained live.

1. Breach. Under the statutory framework then in force, voluntary care under section 1 of the Children Act 1948 required parental consent and did not permit retention against the parent’s wishes. Compulsory powers under section 2 of that Act or section 1 of the Children and Young Persons Act 1969 required proof of statutory parental failings and that the child’s welfare required compulsion. If the complaint had been merely procedural, it would have been necessary to consider whether return would have occurred in any event. The claimant’s expert, however, had expressed the substantive view that no reasonable authority, properly assessing the case, could have permitted the return. The trial judge was entitled to prefer that evidence. The absence of a thorough welfare review was significant, and any additional duty under the Boarding Out of Children Regulations 1955 made no difference.
2. Causation. A finding that the claimant would probably have remained in care did not follow automatically from breach. It depended on the evidence. On the particular evidence, there was no realistic basis for a later rehabilitation attempt and no defence evidence showing that a later return was likely.
3. Damage and quantum. The foreseeable risk from negligent return was injury through bad parenting, so recoverable loss was not limited to neglect and could include violence or abuse. The judge correctly excluded substantial continuing loss and later abuse attributable to the claimant’s congenital personality disorder or events after leaving home. Damages could be awarded for physical injury and neglect of physical needs and their effects, but not for simple unhappiness alone. The £25,000 award fell within the permissible bracket.
4. Limitation. The court did not decide actual knowledge under section 14(1)(b). For section 14(3), the claimant knew where the file was, wanted it, and had been offered access. He could reasonably have travelled to obtain it or asked another person to do so. His disability and difficulty were relevant considerations, but could not alter the conclusion that he had constructive knowledge. The section 33 discretion involved different considerations, as explained in A v Hoare [2008] UKHL 6; [2008] 1 AC 844, and therefore required remittal.

• Court of Appeal (Civil Division). In [2008] EWCA Civ 1416, the authority’s appeal succeeded on constructive knowledge under section 14(3), but failed on breach, causation, recoverable damage and quantum. The section 33 issue was remitted.
• Queen’s Bench Division. Eady J found negligence in relation to the November 1977 return, rejected the other pleaded periods, awarded £25,000 and treated section 33 as unnecessary: [2007] EWHC 2968 (QB).