ABB & Ors v Milton Keynes Council

A local authority may owe a common-law duty of care in investigating suspected child abuse and taking protective measures. The standard is reasonable skill and care, assessed by reference to a responsible body of social-work opinion at the relevant time. A failure to investigate the family history, assess the protective capacity of a parent, obtain appropriate specialist assistance, and respond to later warning signs may constitute negligence. Causation is determined by asking what would probably have occurred had proper enquiries and decisions been made. The duty may extend to a child born after the original investigation where the foreseeable risk concerns children generally and the authority’s protective involvement remains sufficiently connected.

Four siblings brought negligence claims against Milton Keynes Council, as successor to Buckinghamshire County Council, arising from prolonged sexual abuse by their father. Social Services became involved in 1992 after disclosures concerning the older children. The father returned home, the children were removed from the child protection register, and the case was closed in 1993. A further school referral in October 1993 was not followed up.

The claimants alleged inadequate investigation, risk assessment, family assessment and protective intervention. The fourth claimant was born after the case was closed, raising an additional issue as to duty and causation. The central questions were whether the social work fell below the applicable standard, whether that breach caused the losses, and whether the authority was liable for the fourth claimant’s injuries.

1. Duty and standard. The court followed JD and others v East Berkshire Community Health [2003] EWCA Civ 1151 in recognising that social workers may owe a common-law duty of care in investigating suspected child abuse. Whether it is fair, just and reasonable to impose such a duty depends on the facts. The applicable standard was the Bolam standard: reasonable skill and care judged by the practice accepted by a responsible body of social-work opinion at the relevant time.

2. Negligence. The defendants’ employees failed adequately to investigate the father’s history, including matters arising in Israel; assess the mother’s ability to protect the children; investigate inconsistencies in the information provided; obtain appropriate specialist assistance; assess the children’s needs; and respond properly to later warning signs. The decisions to reunite the family and close the case were not decisions that a responsible body of social-work practitioners would have made on the information available.

3. Causation. The court assessed the counterfactual without applying present-day standards. Had proper enquiries and risk assessments been undertaken, the father would probably not have returned home when he did, the case would not have been closed, and the children would probably have been protected through separation, accommodation or care proceedings. The October 1993 referral should also have led to further enquiries.

4. Fourth claimant. Although born after the file was closed, the fourth claimant fell within the foreseeable class of children exposed to the father’s risk. The duty under section 47 of the Children Act 1989 was continuing. The court therefore found a sufficiently close connection between the earlier failures, the continuing professional involvement, and the fourth claimant’s subsequent abuse.

5. Damages and disposition. The claims succeeded. The authority was vicariously liable and damages were awarded in the sums of £92,500, £155,487, £12,000 and £59,476 respectively. Claims for certain heads of loss, including impaired education and some care or treatment expenses, were rejected where unsupported or sufficiently reflected in general damages.