NXS v London Borough of Camden

A local authority investigating suspected child abuse must take reasonable steps to protect a child from personal injury, applying the professional standard prevailing at the time. Where concerns indicate a need for systematic monitoring or assessment, informal support and housing assistance may be inadequate. In a late personal-injury claim, the court must weigh all the circumstances under section 33 of the Limitation Act 1980. Missing records do not necessarily make a fair trial impossible, particularly where the available evidence permits a reliable assessment of what competent monitoring would have revealed. The court may disapply the limitation provisions where the claimant has established that the delay was reasonably explained and the defendant has not suffered significant forensic prejudice. Factual causation may be established where proper monitoring would probably have led to removal from the abusive home and avoided the subsequent injury.

NXS claimed damages from the London Borough of Camden for personal injury caused by alleged negligent failure to protect her from physical, emotional and sexual abuse by her mother. She had lived with her mother until being taken into care in 1989. The claim was issued outside the primary limitation period. The defendant relied on missing social-services records, unavailable witnesses and the alleged impossibility of a fair trial.

The court had to determine whether the defendant had breached its duty during the claimant’s childhood, whether the claim should proceed under section 33 of the Limitation Act 1980, and whether the breach caused the claimant’s injuries.

1. Breach of duty. The defendant owed the claimant a duty to take reasonable steps to avoid or prevent personal injury. The applicable standard was that of a reasonably competent social-services department or social worker judged by professional standards prevailing at the time. The evidence showed repeated reports of violence, concerns about the mother’s ability and motivation to care for the claimant, and inadequate responses by the allocated social worker.
2. The defendant failed to investigate the reported violence adequately, to monitor the claimant regularly, to assess the mother’s parenting ability, and to maintain an appropriately structured child-protection response. Following the failed application for a place of safety order, systematic monitoring and assessment were required. The lack of proper supervision of the social worker also constituted a breach by the defendant.
3. Limitation. The claimant’s delay was substantial, but it was substantially explained by her childhood, psychological difficulties, abusive relationships and repeated failures by the defendant to provide relevant records. The missing file was likely to have been lost while under the defendant’s control. The available evidence was not materially less cogent than it would have been within the primary limitation period, and the missing documents and witnesses did not create a real possibility of significant prejudice sufficient to make a fair trial impossible. The claim was therefore allowed to proceed under section 33 of the Limitation Act 1980.
4. Causation and outcome. Proper monitoring and assessment would probably have revealed the mother’s unsuitability as a carer and would have led to the claimant’s removal no later than the end of 1978. The claimant would thereby have avoided the later abuse and resulting injuries. Judgment was entered for the claimant in the agreed sum of £60,000.