Merthyr Tydfil County Borough Council v C

A local authority’s duty to safeguard children does not automatically exclude a duty of care to their parents. A potential conflict between parental and child interests is a factor in deciding whether it is fair, just and reasonable to impose a duty; it is not a complete immunity.

A parent is not necessarily a third party merely because the claim concerns harm connected with children. Where the parent asserts a distinct duty arising from direct engagement with the authority and operational failings, the claim may be sufficiently proximate. At the strike-out or summary-judgment stage, a developing duty-of-care claim should proceed where it has a real prospect of success.

C claimed damages for psychiatric injury allegedly caused by the Council’s negligent handling of reports that her children had been sexually abused by another child. She alleged failures concerning the recording and investigation of the reports, the Council’s denial that an earlier report had been made, and the allocation of the same social worker to both families.

The Council applied to strike out the claim under CPR Rule 3.4(2)(a), or alternatively for summary judgment under Rule 24.2, relying principally on D v East Berkshire Community NHS Trust. The Cardiff County Court refused the application. The issue on appeal was whether C’s claim was legally incapable of establishing a duty of care because of potential conflict with duties owed to the children or because she was a third party.

1. Appeal dismissed. The first-instance judge had applied the correct test under CPR Rule 24.2. A real prospect of success requires more than an arguable or fanciful case, and that test had been applied in substance.
2. The ordinary Caparo Industries plc v Dickman criteria remained relevant: foreseeability, proximity, and whether it was fair, just and reasonable to impose a duty. Foreseeability was reasonably arguable and unsuitable for summary determination.
3. D v East Berkshire Community NHS Trust did not establish that a local authority owing a duty to children could never owe a duty to their parents. Its principle concerned suspected perpetrators of abuse, whose interests were radically opposed to those of the children. It did not create immunity whenever any future conflict was conceivable.
4. Potential conflict is a factor in the fair, just and reasonable inquiry, not a trump card. The law generally presumes consonancy between parent and child interests. Authorities including A v Essex County Council and W v Essex County Council showed that a duty to parents may coexist with a duty to children, particularly where the alleged duty concerns operational matters or direct assurances and engagement.
5. C was not merely a third party seeking to rely parasitically on the duty owed to her children. She relied on a distinct duty arising from her responsibility for the children, her direct reports and meetings with the Council, and the Council’s alleged operational acts and omissions. That gave the claim an arguable basis in proximity and fairness.
6. The claim concerned operational matters, such as failing to open appropriate files, denying the earlier report without proper investigation, and allocating the same social worker to both families. The developing nature of the law supported caution before striking out a claim on assumed facts. The claim therefore had a real prospect of success and reasonable grounds to proceed to trial.

Costs and directions for the trial were left for further submissions.

1. Cardiff County Court: His Honour Judge Jarman QC refused the Council’s strike-out and summary-judgment application on 17 September 2009.
2. High Court (Queen’s Bench Division): The appeal, permitted by Kitchen J, was dismissed.