[View without highlighting]
[Printable RTF version]
||Neutral Citation Number:  EWHC 2968 (QB)
||Case No: HQ06X01544
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
THE HON. MR JUSTICE EADY
|| Jake Pierce
||- and -
||Doncaster Metropolitan Borough Council
Elizabeth-Anne Gumbel QC (instructed by Bolt Burdon Kemp) for the Claimant
Catherine Foster (instructed by Halliwells) for the Defendant
Hearing dates: 26 to 29 November 2007
HTML VERSION OF JUDGMENT
Crown Copyright ©
The Hon. Mr Justice Eady:
- The Claimant (who has adopted the name of Jake Pierce) is aged 31. He is clearly a troubled young man in numerous respects. In particular, it is stated in the joint psychiatric report that he is "a very disturbed man who has had serious mental health problems throughout his life" and that "the main diagnosis in adulthood is emotionally unstable personality disorder, which is sometimes known as borderline personality disorder". In addition, it is accepted that he suffers from "particular problems of anxiety and agoraphobia which can be considered part and parcel of the underlying personality disorder". He was also diagnosed some years ago as being HIV positive and is receiving appropriate medication. As to the earlier period of his life, it is agreed that "he had severe psychological problems in childhood and required special schooling throughout because of severe behavioural problems that were pervasive and caused problems at home and at school".
- He was born Lee Adrian Wilson on 1 March 1976, although he is now estranged from his family and sought to sever all ties when he changed his name at the age of 18. The name of his mother is Susan Morris and his father is called Tony Wilson. There are six siblings, two of whom (including a twin sister) are mentally handicapped.
- He brings a claim against Doncaster Metropolitan Borough Council ("the Defendant"), alleging breach of duty on the basis of failure to take competent steps to protect him during his childhood. Reliance is placed on JD & Others v East Berkshire NHS Trust & Others  Lloyds Law Rep Med 552, where it was recognised that a local authority which carries out investigations into child abuse owes a duty of care to any child potentially at risk. (See also the recent decision of the Court of Appeal in Jain v Trent Strategic Health Authority  EWCA Civ 1186.)
- It is clear that his circumstances were known to the social services department of the Defendant Council shortly after his birth and that he was removed from his family and placed in foster care from the summer of 1976 until November 1977. It is then alleged that he was returned to the care of his mother and father without any proper assessment or investigation to justify that course. Moreover, thereafter it is said that there was inadequate follow-up and monitoring. He finally left the home environment towards the end of 1990, when he was nearly 15 years of age, by which time he had suffered (on his own case) severe neglect and emotional and physical abuse from his parents. He also suffered, later, sexual and physical abuse while living on the streets, periodically, from about the middle of 1990.
A summary of the Claimant's case on liability
- It is necessary at this stage to identify the detailed nature of his complaint and the individual respects in which it is said that the Defendant was in breach of duty. As the experts have pointed out, much has changed or developed since the mid-1970s so far as the standards of child monitoring and assessment are concerned. There have also been a number of statutory changes. It is important, therefore, to apply the relevant standards and criteria for the various periods which fall to be considered.
- The allegations are contained in paragraphs 51 to 57 of the particulars of claim:
"51. From when the Claimant was removed into care in July 1976 at the age of 4 months his plight ought to have been known to the Defendant and steps ought to have been taken to prevent the Claimant suffering abuse, neglect and physical and emotional harm from his parents. The Defendant failed to provide an adequate level of monitoring and supervision from when they returned the Claimant home in July 1977.
52. Within a few weeks of his return home the Claimant's weight dropped so significantly that he was required to be an in-patient in hospital for 3 weeks; with competent care it ought to have been apparent that his mother was not capable of providing an adequate level of care for the Claimant.
53. When the Claimant was returned to his family again in November 1977 the Defendant failed to carry out a proper or adequate assessment of the family home and his parents' ability to care for him.
54. After the Claimant had returned home the Defendant failed to monitor him adequately or at all; with proper monitoring it would have been apparent that the Claimant was likely to suffer significant harm if placed at home. Proper investigation would have revealed that the Claimant was
a. not properly fed;
b. not provided with an adequate level of hygiene;
c. was being beaten, assaulted and physically injured;
d. was being bullied and tormented by his family;
e. was not attending school regularly.
55. The Defendant ought to have known that:
f. the Claimant was a vulnerable child whose parents were unable to care for him;
g. the Claimant's mother had been unable to adequately protect the Claimant from abuse by the Claimant's father;
h. the Claimant frequently suffered from bruising;
i. the Claimant suffered severe scalding in 1979.
56. The Defendant ought to have known that when the Claimant was missing from home in 1990 he was at immediate risk of danger and ought to have taken steps to discover his whereabouts or to take him into care.
57. In failing to protect the Claimant from abuse by his family the Defendant, its servants or agents, were negligent and the Defendant is vicariously liable for the negligence of its social workers and social work managers in that they:
(a) failed to give proper consideration to the overall management of the Claimant's welfare as a child when he had been identified as living in a household with a family who were clearly unable to look after him. In particular it was known or ought to have been known that the Claimant had suffered severe injuries and abuse from his family.
(b) failed to carry out any comprehensive review of the family when the Claimant moved back to his parents' home in November 1977 or to make any proper plan for the family.
(c) despite noting concerns about the Claimant's mother and her ability to parent the Claimant and his siblings the Defendant failed to make any proper assessment of the Claimant's mother's ability to care for the Claimant.
(d) having been made aware in 1979 of the risks set out above that the family posed to the Claimant when he suffered severe burns, the Defendant failed to investigate adequately or at all whether the Claimant was at risk. Proper investigation would have led to the conclusion that he was and remained at a significant risk when living in a household with his mother and father. Such competent investigation would have shown that his family was persistently physically abusing, emotionally abusing and neglecting the Claimant as set out in the complaints of abuse referred to above. The only competent conclusion from proper investigation would have been that the Claimant was at risk and required removal from home.
(e) the Defendant failed to interview the Claimant sufficiently or at all away from his family so as to ascertain whether he was subjected to actual abuse or the threat of abuse by his family.
(f) the Defendant failed to remove the Claimant from the home in which his family lived when it was known or ought to have been known to the Defendant that his family posed a foreseeable risk of harm to the Claimant. Even after the Claimant ran away from home in 1990 the Defendant took no steps to ascertain his whereabouts or his welfare.
(g) having left the Claimant in the home with his family the Defendant failed to visit sufficiently often to ascertain that the Claimant was being abused by his family.
(h) the Defendant failed to allocate to the Claimant a social worker in whom he could build sufficient trust to confide the abuse and failed to provide a social worker who could have spoken to the Claimant away from home and in particular away from his family.
(i) failed to carry out sufficient investigations or sufficiently competent investigations to be able to provide information to the Court from 1977 that the Claimant was not safe if placed with his family.
(j) after the Claimant had left the family home in 1990 to live on the streets, failed to ascertain this or the reasons for this and to provide help and support for the Claimant.
(k) when the Claimant was taken into care in 1991 the Defendant failed to obtain adequate counselling, help and support for the Claimant to mitigate the damage that had been done to him by the abuse of his family, the period the Claimant had lived on the streets, and the sexual, physical and emotional abuse he suffered.
(k) failed to provide a reasonable standard of care and support to the Claimant in circumstances where with competent investigation they ought to have discovered the extensive abuse suffered by the Claimant whilst living in the Defendant's area.
(l) once it was apparent to the Defendant the extent to which the Claimant had suffered abuse, failed to take any steps to protect him and placed him in unsuitable institutions including a Barnados Home in Tadcaster where he was detained beyond the point at which it could be reasonably said to be in his best interests to detain him there."
- Each and every one of the allegations of negligence is denied by the Defendant, as is the allegation that the Claimant's psychiatric condition was caused by the Defendant's negligence.
The importance of the Claimant's own evidence
- The primary source for the evidence supporting the allegations of breach of duty is the Claimant himself, although to a limited extent he is supported by some of the documentary records which have been disclosed. The allegations he makes are very serious and extend over a number of years. It is important to note, as the psychiatrists agree, that there are questions as to his credibility because of "the extent to which the Claimant's mental disorder leads him to have a distorted view of the world that is sometimes at odds with the way the world is seen by others who are not mentally disordered". They added the observation that he is "a less reliable informant than the average claimant and that particular care must be taken to corroborate his recollections". Despite this, no evidence was adduced from either parent or from any other family member, with a view to challenging the substance of his allegations. Nor was evidence produced from any of the social workers who had direct responsibility for him in his early years, although it seems that at least some of them are still alive. These are significant gaps.
- Because of the Claimant's personality disorder, I accept that it is more difficult than usual to make a judgment as to the credence to be attached to his serious and wide-ranging allegations. It is clearly necessary, however, to make such an assessment, since it would be wrong to approach the evidence simply on the basis that there is, in most respects, nothing to contradict it. This is perhaps especially so, since Professor Maden, who sat in court while the Claimant was giving evidence, offered the view that this experience served to confirm his own initial impression on meeting the Claimant that he is controlling and manipulative. Dr De Taranto, the consultant forensic psychiatrist called on the Claimant's behalf, also sat in court while he was giving his evidence but specifically rejected that description. She preferred to say that he was struggling to control himself and that he was very defensive in the witness box.
- In this context, I bear in mind the observations made in a letter in February 1991 by one of his former teachers, Mr Gregson, who also gave evidence, to the effect that the Claimant was "deep and devious" and an "acute attention seeker". Mr Gregson confirmed that impression in the witness box. He had also characterised the Claimant as a "regular liar" and prone to "emotional blackmail".
- I must remember, of course, that it is for me to form a judgment on the credibility of the witness, however difficult that is, and not to delegate it to any of the witnesses. In attempting that task, it will be important to focus throughout on the extent to which the contemporaneous documents, such as they are, are consistent with or tend to corroborate the allegations he makes. It would be unduly restrictive, on the other hand, to operate an arbitrary rule to the effect that I should reject anything he says which is not corroborated.
- The Claimant was in the witness box for most of the day on 26 November. He appeared to be not in the least nervous or inhibited, but rather threw himself into the occasion, attempting to take command throughout and refusing to give answers to questions he did not wish to address. He would tend to chide counsel for asking silly questions and for challenging, to any degree at all, his version of events. Indeed, he told Ms Foster at one stage to stop "smirking". Yet, since his behaviour is likely to be a manifestation of his deep seated personality disorder, one must take care not to treat it as necessarily undermining the fundamental accuracy of his account. This is not a case in which one has to choose between accepting the Claimant's account in full or rejecting it, since a real possibility to be considered is that he has embellished, dramatised or exaggerated a genuine history of intermittent neglect and abuse.
- In cross-examination Ms Foster, doing her best in very difficult circumstances, was suggesting to the Claimant that his allegations against his parents of wholesale abuse were a relatively recent invention; and that his current problems could be put down to his coming to terms with his sexuality from about 1989 onwards. The case appeared to be that his estrangement could really be dated from his disappearances from the age of 14, for considerable periods of time, during which he was living rough and earning money by prostitution in and around public lavatories or, as he put it, "selling my arse".
- The Defendant's case of recent invention is not easy to reconcile with some of the available documents. Nor is it entirely consistent with the explanations apparently given by the Defendant for withholding its documentary records from him, namely that he would find the contents too distressing. For example, a key document in the case would appear to be a record made of an incident in May 1979 (when he was only three years old).
- He had been left with his maternal aunt by his mother, who said that she could no longer cope with him. The aunt then reported that he was suffering from scald marks on his buttocks and leg. These were recorded on his admission to hospital, together with signs of bruising and what might possibly be earlier burn marks. Mr Percival indicated that at the time hospitals were sometimes used, in effect, as "places of safety". This may be why the Claimant was admitted on this occasion.
- Express reference was also made at this time to abuse and incidents of being thrown downstairs. The relatives who drew attention to all this were described as "very angry and condemning". The injuries were described in the hospital as "non-accidental", but at some point a manuscript question mark had been inserted before those words. When this was done, why and by whom cannot at this stage be determined. It would seem to be significant that the scald marks were not new, and yet there was no record of medical treatment at the time when they occurred.
- At all events, the incident led to the Claimant being put on the "at risk" register for two years. Long before this in 1976 a social worker called Mr Clwyd Jones recorded his opinion that the Claimant and his twin sister should be retained in care; otherwise they "would be subjected to such poor quality parenting that their health could be at serious risk". The significance of such documents is impossible for the Defendant to dismiss.
- At that stage, of course, it is not possible to expect the Claimant to have a clear or reliable memory of the underlying events (if any at all). Later, however, there are a few records of what he was saying about his childhood. These are not easy to reconcile with "recent invention" either. For example, on 8 April 1991 he was saying that he had been brought up on a diet of arguments, physical and verbal abuse. On 19 April 1994 he referred to severe violence from his father and, shortly after that, to having been beaten with a poker. All the allegations were made long before a claim for compensation was being advanced, and yet seem at least to be consistent with the case he put forward in the witness box.
The modern law on duty of care
- There have in recent years been significant developments in relation to the duties owed by a local authority, such as the Defendant, when investigating allegations of child abuse. The reasoning in X (Minors) v Bedfordshire County Council  2 AC 633 has been considerably undermined in the light of subsequent authorities and, in particular, because of the impact of the Human Rights Act 1998. It is important to have in mind what was said by the Court of Appeal in JD & Others v East Berkshire NHS Trust & Others, cited above at -:
"83. In so far as the position of a child is concerned, we have reached the firm conclusion that the decision in Bedfordshire cannot survive the Human Rights Act. Where child abuse is suspected the interests of the child are paramount – see section 1 of the Children Act 1989. Given the obligation of the local authority to respect a child's Convention rights, the recognition of a duty of care to the child on the part of those involved should not have a significantly adverse effect on the manner in which they perform their duties. In the context of suspected child abuse, breach of a duty of care in negligence will frequently also amount to a violation of article 3 or article 8. The difference, of course, is that those asserting that wrongful acts or omissions occurred before October 2000 will have no claim under the Human Rights Act. This cannot, however, constitute a valid reason of policy for preserving a limitation of the common law duty of care which is not otherwise justified. On the contrary, the absence of an alternative remedy for children who were victims of abuse before October 2000 militates in favour of the recognition of a common law duty of care once the public policy reasons against this have lost their force.
84. It follows that it will no longer be legitimate to rule that, as a matter of law, no common law duty of care is owed to a child in relation to the investigation of suspected child abuse and the initiation and pursuit of care proceedings. It is possible that there will be factual situations where it is not fair, just or reasonable to impose a duty of care, but each case will fall to be determined on its individual facts.
85. In reaching this decision we do not suggest that the common law duty of care will replicate the duty not to violate articles 3 and 8. Liability for breach of the latter duty and entitlement to compensation can arise in circumstances where the tort of negligence is not made out. The areas of factual enquiry where breaches of the two duties are alleged are, however, likely to be the same".
- In the present case, all the matters relied upon as giving rise to a breach of duty occurred well before October 2000.
- The reference to "fair, just and reasonable" obviously reflects the test identified by the House of Lords in Caparo Industries PLC v Dickman  2 AC 605. The exercise is essentially one involving the application of public policy as judicially interpreted at a particular time. The policy reflected in the Bedfordshire case is one that has had to be modified in the light of later perceptions. Of particular importance is the decision of Z & Others v UK  FLR 612, where four of the five unsuccessful complainants in Bedfordshire had taken their case to Strasbourg.
Was there a duty owed by the Defendant?
- It is necessary to consider the scope of the duty of care which is now to be taken as owed by local authorities to children within the relevant area, and also whether there is anything about the circumstances in the present case to justify concluding that the imposition of such a duty would not be fair, just and reasonable. This needs to be addressed separately for each of the relevant periods pleaded.
- It is clearly important that this Claimant came to the attention of the Defendant's social services department at a very early stage in his life. Their concerns for his welfare led to his being fostered for some 15 months between August 1976 and November 1977. That decision can hardly be criticised. The social worker had come to the conclusion that his hands and face were quite grubby and that he had the "characteristic frozen awareness of a neglected baby". Moreover, he had actually lost body weight since his previous weighing. He lost 200g during a period when it was reasonable to suppose that he would gain about 600g. This significant development is characterised by the Claimant's expert, Mr Patrick Ayre, as "representing a total deficit of some 800g or about 15% of his body weight".
- The Claimant was initially placed in hospital and little or no interest appears to have been taken in him by either parent. His mother visited him only infrequently during the period while he was in foster care, and his father not at all.
- It is also fundamentally important that the area social services officer ("ASSO"), Ms Pat Shore, noted following the Claimant's eventual return to his parents' care in November 1977 that, in her opinion, his mother would require support for many years to come until her family was grown up. She added "I think that as a department we must be prepared to give this in order to prevent the remaining three children being received into care". It would thus be appropriate to look carefully at the records to see whether this advice was implemented or, if it was not, exactly what reasoning led to a different conclusion.
- Against this background, it seems to me to be obvious that the Defendant owed a duty of care from mid-1976, at least, and that there is no countervailing reason why the imposition of such a duty would be other than fair, just and reasonable.
The standard of care
- As I have indicated, the standard of care to be expected of the Defendant's staff and, in particular, its social workers, is that of a competent department judged according to the prevailing professional climate between 1976 and 1991. Ms Gumbel places reliance upon the decision in Bolitho v City and Hackney HA  AC 232, and submits that expert opinion should have a logical basis and that the relevant persons should have directed their minds to the question of comparative risks and benefits and reached a defensible conclusion on the matter.
- There are practical difficulties in applying these principles in the present case, not least because of a dearth of records over most of the relevant period. I believe I am being invited to conclude, notwithstanding this problem, that the relevant persons would have been monitoring the Claimant's progress and welfare, at all material stages, and that they must have reached defensible conclusions on the matter. That was really the thrust of Mr David Lane's evidence as the Defendant's social work expert.
- This is the background against which I must make an assessment of each of the allegations of breach set out above.
Was there a breach of duty in 1977?
- The allegations of breach appear primarily to relate to three particular points in the Claimant's life. I shall consider them in turn. First, the Claimant suggests that no reasonable social work department should have returned him to parental care on 9 November 1977 in the light of (a) the professional standards prevailing at that time and (b) the corpus of evidence available in the form of documentary records covering the period. There is no need to speculate or draw inferences, as the Defendant submits should be done in respect of the later history, because it seems reasonable to proceed on the basis that the court has the vast majority of the records that were created.
- When the Claimant was just over five months old, on 9 August 1976, a health visitor called Miss Musty had to insist that his mother "fetched him from upstairs". Concern was expressed about his condition and his apparent loss of weight. She arranged to take him to see Dr Arrowsmith (a paediatrician) the next morning. Accordingly, Ms Diane Callaghan (a social worker) and Miss Musty called at the home address at about 10:15 am. There was no immediate response, and Ms Callaghan concluded that the mother had been in bed. The mother was reluctant for him to be taken at that stage and suggested that she and his father might take him later in the day. As he had missed one appointment that week already, the social worker insisted on taking him. It was at this point that she noted, as I have already recorded, that the Claimant had the characteristic "frozen awareness" stare of a neglected baby.
- When he was weighed, it emerged that there had indeed been the significant loss of body weight to which I have already referred. It was then decided that he should be admitted to hospital for a while. Dr Arrowsmith advised at this stage "that on discharge Lee should be placed with foster parents and not allowed to return home".
- When the social worker and Miss Musty returned to the home shortly afterwards, the father was very aggressive towards them and demanded that both his children be returned immediately. He and the mother insisted that the Claimant had been given "plenty to eat", which was manifestly not the case. The father threatened to go to the hospital and bring the child back with him, although after a while "he calmed down".
- Shortly afterwards the case was discussed with social services group leader Mr Clwyd Jones, who was told of the "fears for the twins' well-being if they returned home". These were the fears of Miss Musty, Ms Callaghan and Dr Arrowsmith. The decision was taken that the parents should be made to realise that the twins would be better off in care and, specifically, it was hoped at that point that they could remain in care under s. 1 of the 1948 Children Act. If this were not possible, however, even at that stage it was contemplated that a "place of safety" might have to be found and care proceedings taken in accordance with the statutory regime then prevailing.
- When this subject was broached with the mother, she "stormed off" and Mr Jones and Ms Callaghan discussed the situation with the grandmother who realised that her daughter was not coping "and has great fears for the well-being of her grandchildren". Miss Musty indicated that she was going to prepare a report and arrange to have the children's names put on the "at risk" register. (There is no evidence, on the other hand, that this was actually done at the time.) Meanwhile, the hospital confirmed that the Claimant had had no visitors at all.
- He remained in hospital for several weeks and was then placed in foster care with Mr and Mrs Coates. Despite the fact that the mother had been relieved of the responsibility of looking after the twins, there were still problems about the older daughter (Amanda) attending school. In October 1976 Ms Callaghan telephoned the education welfare officer, Mrs Dodge, and found that she had not attended for two weeks. Mrs Dodge decided to call at the house, having on earlier occasions failed to obtain any response. Eventually, she gained admittance and "on entering, Mrs Dodge was appalled at the condition and smell in the house". She reports that it was filthy and that [the mother's] excuse was that they were decorating. Her excuse for keeping Mandy away from school was that she had nits and a bit of a cold.
- It was clear from a number of other visits that the house was dirty. On one occasion in October 1976 it was noted that it had obviously not been cleaned for a long time. The mother was warned in the same month that if she was unable to show proper responsibility and care towards her elder daughter, and ensure school attendance, "she will not be capable of caring for the twins".
- In the following months, while the twins remained with Mr and Mrs Coates, there was no sign of any improvement in home conditions. Meanwhile, the mother kept advancing a series of obviously lame excuses for not visiting the twins at all. When appointments were made, she often failed to keep them. It was clear by 4 January 1977 that the Claimant's mother had not even the means of cooking or boiling a kettle. Her cooker had been repossessed and, although two gas rings had been supplied by social services, it emerged that they could not be connected for some reason to the gas mains. At this time the father was in Armley prison in Leeds.
- Ms Callaghan discussed with Mr Jones on 7 January 1977 the possibility of using the Bentley rehabilitation unit with a view to giving the family an opportunity of being reunited. The mother seemed "quite keen on the idea" as she expressed a wish for "the twins to return home as soon as possible". She was in some doubt as to whether she wished the father to be part of this experiment, but then decided that they would almost definitely be reunited once he was released from prison.
- At that time, according to the evidence, social workers were more deeply committed than they are nowadays to the general principle that families should stay together as an end in itself. It is now more readily recognised that an individual child's welfare will sometimes have to prevail over this generally desirable objective.
- In March 1977 the children at home "still never seemed to have anything to wear", despite the fact that social workers had previously provided the mother with clothing. There was no evidence that any washing was ever done. It was noted from time to time that, wherever the mother was living, the house took on the same characteristic unpleasant smell.
- More specifically, so far as the Claimant was concerned, there is recorded a consistent pattern of lack of interest and poor parenting. Although the father never visited the twins while in care, there was a note to the effect that the mother had visited on two occasions, namely 21 September and 7 October 1976. There is an important document dated 20 October 1976 headed "SIX MONTHLY REVIEW REPORT ON A CHILD IN CARE". The Claimant was said to be making excellent progress with Mr and Mrs Coates. Ms Callaghan noted that "their parents, particularly mother, are still unable to cope with and care for the twins". Mr Jones' observation was a little more detailed:
"Neither parent is able to display the physical and emotional care Lee and his twin sister require. Sustained efforts by family social worker and health visitor to assist this family have not proved productive mainly due to parents' inadequacies which are directly linked to their own early life experiences. Natural mother is one of [the number is illegible but is clearly at least 10] children of whom at least five have been 'in care' themselves. In my opinion the twins would be subjected to such poor quality parenting that their health could be at serious risk. Mother has some insight and concurs with our observations".
- In February 1977 it was noted that the mother had visited the twins for the first time since November 1976, "although many visits have been arranged but [she] has failed to arrive". The lack of interest continued and was noted in May 1977 as being "quite worrying".
- In June 1977 arrangements were made for the family to be installed in the Bentley rehabilitation unit with a view, ultimately, to the Claimant rejoining them on a permanent basis (which did not in fact occur until the following November). The first pre-arranged visit by the Claimant to the new premises in Bentley took place on 15 July 1977. Even at that stage, the father was not at home and it was noted "Tony has not seen his son for almost a year yet at his first opportunity to do so he was not even at home". When the mother picked him up and began to talk to him, the Claimant was heard by Ms Callaghan to be "screaming at the top of his voice". The mother then walked to the gate with him and could not stop him crying. "She looked uncomfortable and at a loss as to know what to do with him". Later, apparently, he settled down.
- Things did not improve, and in August 1977 Ms Callaghan adopted a ploy to test the mother's interest: "I have deliberately avoided visiting (the mother) for the past two weeks in the hope that she would contact me and ask to see the twins. She has made no attempt to contact either me or Mrs Coates during the past two weeks". She then recorded in September:
"I spent quite a long time talking to [the mother] about this and about the twins. She admitted that Lee's visits to her home in July had not been successful but was adamant that she wanted the twins to return to her as soon as possible and is frightened that she will never be allowed to have them home. We talked about her spasmodic visits to the twins in the past and her seeming lack of interest in their well-being and I suggested that she should show more interest in her children by making a more positive effort to see them on a regular basis. [The mother] promised to do this and although she may make the effort and visit for a week or so, she may well then slip back into her pattern of excuses and reasons why she has been unable to visit the twins".
- Further light is thrown on this problem from the perspective of the foster mother, Mrs Coates, who reported to Ms Callaghan that the Claimant was distressed when he returned home to her and that, when she took him on any of the visits to Bentley, he would scream when the car stopped outside and cling on to Mrs Coates. The important observation was made by Ms Callaghan in August 1977 that the mother seemed to have little idea how to talk to the Claimant or make him feel at home. She also commented, significantly, that she was doubtful whether the mother would be able successfully to care for all her children if the twins returned home permanently. The mother appeared to show "little warmth" towards the Claimant.
- This was obviously a critical period in the Claimant's life and nothing in the records offered hope for successful rehabilitation. It was particularly unfortunate that, at this juncture, Ms Callaghan left in order to undergo training. This was in September 1977 – only two moths before the Claimant was returned to his parents. One looks in vain for solid grounds for concluding that matters had improved in the interim to the extent obviously required to justify that important step.
- I have the strong impression from the records that there was a hiatus in the monitoring process between Ms Callaghan's departure and the point at which Ms Margaret Walker formally took over responsibility at the end of January 1978. Meanwhile, it seems that things were supervised by Ms Shore who, as ASSO, would not normally be expected to have "hands on" direct responsibility for individual clients. There was another social worker, Mrs Beck, who seemed to fulfil a temporary role during this period. Her first visit appears to have taken place on an illegible date in October (which would be 1st, 11th or 21st). It was she who organised the twins' return to the family.
- Ms Shore made a note on 29 September which reflects the problems at the time. Mr Banks of the Bentley Unit had sent a message to say that the Claimant's mother had "locked him out last night". This is clearly rather troubling and suggests secretiveness on her part and a lack of co-operation. Ms Shore understood that the mother had been reporting that her "marriage" was over. (The parents were not in fact married at that time.) The circumstances do not seem to have been auspicious at this point having regard to the twins' proposed return. Because of what Ms Shore described as the "present staffing complications", she made a temporary arrangement with Mr Banks that "he and his staff would offer support through the present situation and that I would offer whatever back-up or guidance he may require to this end".
- Under regulation 22 of the Boarding Out of Children Regulations 1955 there was an obligation upon local authorities to carry out a review three months after a child was placed with foster parents and, thereafter, regularly every six months. There was such a review held on 20 October 1976, which would have fulfilled the three months requirement following the placement of the Claimant with Mr and Mrs Coates. There then appears to have been only one further review, on 18 April 1977, following a rather superficial doctor's report dated 13 April of that year.
- Such a review was due, and should have been carried out, no later than in October 1977. Had it occurred, this would plainly have played a significant role in determining his future and, in particular, whether it was appropriate to restore him to his parents on 9 November. At one point in his evidence Mr Lane expressed the view that there was some evidence that such a review had indeed been held in about September1977. It later transpired, however, that he was relying on some observation in Dr De Taranto's report which he had misinterpreted.
- In the light of the available records, I am driven to the conclusion that the statutory review was not carried out. This plainly cannot be dismissed as a technical breach, without significance, since the failure occurred just before the Claimant was reunited with his parents.
- I cannot accept the proposition that the absence of any evidence of a careful review (statutory or otherwise) of the Claimant's position prior to his return can be explained on the basis that everything must be presumed to have been carried out properly; nor that the lack of documents can be accounted for as "lost in the move". The records around this time suggest to me that the overwhelming probability is that what came into existence is still available.
- The most important document, in the absence of any running record such as was available prior to Ms Callaghan's departure, is a summary of Ms Shore's involvement in the case between Ms Callaghan's departure and the assumption of responsibility by Ms Walker on 30 January 1978. The document itself is dated 27 January of that year. She refers to the Claimant as having been "returned to his mother's care on trial". She also expressed satisfaction that he had settled "as well as one could have hoped" and was being "reasonably well cared for". She added:
"Whilst at the Rehabilitation Unit [the mother] has shown that she can make progress in many aspects but is, and always will be, hampered by Tony Wilson who manipulates and uses her to his own selfish ends. Her own need for affection and emotional and sexual nourishment is great and she is, therefore, unable at this time to produce the kind of strength that could sever the relationship between her and Tony and the only way that this will end will be if Tony finds another girl.
[The mother] is going to require support, in my opinion, for many years to come until her family is grown up and I think that as a Department we must be prepared to give this in order to prevent the remaining three children being received into care."
Considerable reliance was placed by the Defendant on this document as showing positive satisfaction with developments at the time. Unfortunately, Ms Shore did not appear to have the experience or familiarity acquired by Ms Callaghan and the ominous phrase "as well as one could have hoped" is bland and uninformative. What is of greater significance is her warning for the future. There is no evidence that it was heeded. Indeed, if it had been followed up, the injuries recorded in May 1979 might have been avoided or spotted earlier.
- In so far as this note could be described as optimistic at all (which is doubtful), it is important to assess it alongside a record made by Ms Walker following her first visit to the family in February 1978. She observed that the warden at Bentley, Mr Banks, "feels that [the mother] is not making much progress at the moment and is generally concerned about her relationship with Tony". Thus it appears that there was no sign of progress up to Ms Callaghan's departure in September 1977 and no evidence from Mr Banks, who was in day-to-day contact with the mother, to suggest that significant progress had been made thereafter.
- In February 1978 Ms Walker referred again to the "distinct smell" and characterised the mother as "by no means house-proud". Nevertheless, she did conclude that "she seems to be relating well to the children".
- It was emphasised in the Defendant's evidence and submissions that the Claimant had to show that no reasonable social worker would have sanctioned his return in November 1977. It would not be enough to show that some reasonable social worker would have disagreed with that course. On the other hand, there has to be some rational basis for concluding that a decision was taken which fell within the reasonable range of responses. It is agreed by all concerned that a detailed and careful assessment had to be made prior to the Claimant's return in November 1977. It was faintly suggested by Mr Percival and by Mr Lane, giving evidence on the Defendant's behalf, that I could be confident that such an assessment would have been made and that it, unlike the other contemporaneous documents, has simply gone missing. I am not prepared to accept this. It seems to me that Ms Shore's summary of January 1978 was intended to be a substitute for the fairly detailed record kept up to Ms Callaghan's departure. That is all that ever came into existence at the time and, if an assessment had been made, Ms Shore would certainly have referred to it.
- In his impressive report Mr Ayre concluded after a thorough analysis of all available material:
"… I can ascertain no satisfactory interpretation of the evidence which would have favoured a definite decision to return the children to their parents and I regard the Defendant's action in failing to make a proper assessment, and in making a decision to return the children to the care of their family in the circumstances outlined as falling short of the standard of practice to be expected of a reasonably competent local authority. I regard it as unlikely that any other similarly qualified expert would form a different judgment in this instance."
I am bound to say that I agree with this conclusion and accordingly hold that there was indeed a breach in allowing the Claimant back into parental care in November 1977.
- I reject the criticisms of Mr Ayre's oral evidence made by Ms Foster. These were to the effect that he was not objective, that his approach was too academic and that it should have been more "holistic". He has enormous experience and prepared a detailed report which considered all aspects of the case. It speaks for itself. I found his evidence in the witness box equally careful and illuminating.
- I hasten to add that I make no criticism of Mr Lane or Mr Percival (giving factual evidence of what went on in the Defendant's organisation), called by the Defendant, but I did not find their approach as thorough. Moreover, much of their evidence depended on the twin assumptions (a) that records have been mislaid, and (b) that the Defendant's staff could be relied upon to have carried out their responsibilities with all due care.
Was there a breach in May 1979?
- In view of my first conclusion on the breach in 1977, it is strictly unnecessary to address the Claimant's alternative arguments relating to the later periods, since he would never have been in parental care at the material dates. Nevertheless, it is right to make findings in case I am wrong.
- The second allegation of breach relates to the remarkable episode in May 1979, which I have described already. It would be quite wrong to have carried out no enquiry, in view of the aunt's account of what had occurred and the physical signs of injury, even if this was the Defendant's first acquaintance with the Claimant's circumstances. But it was not. In view of the past history, which was on record, I cannot understand how it is that no evidence has been produced to demonstrate what enquiries were carried out (if any). It seems likely that something must have been done because the Claimant was placed on the "at risk" register and remained there for two years.
- It is stated by Mr Ayre that the fact of remaining on the register for as long as two years would be "indicative that the problems within the family were relatively severe". Despite this, the case file lacks any record of the investigation which led to his name going on to the register, or of the case conference at which such a decision would ordinarily be taken, or of the casework done with the family over the two year period. Mr Ayre's conclusion, from which it would be difficult to dissent, is that "… the inability of the Defendant to produce the relevant records demonstrating that the Claimant received appropriate support and oversight during this period must be regarded as representing a very serious failing, falling short of the standards to be expected of a reasonably competent local authority".
- I naturally recognise that criticism of record-keeping (or lack of it) is not the same as concluding that oversight was in fact lacking during the period. But there is no evidence of it, or of the reasoning process which lay behind the decision to remove the Claimant from the register in 1981. Yet, in view of the lack of oversight at the time prior to the injuries picked up in May 1979, it seems to me that the probability is that the pattern of failure continued.
- It is impossible now to say, however, that if proper supervision and record keeping had been maintained between 1977 and 1981 a reasonably competent local authority would have concluded that the Claimant should have been taken into care in or about May 1979. This would have been a more uncertain exercise and involved a major change in the status quo – unlike such a decision if it had been taken in October or November 1977. The evidence does not enable me to decide that the Claimant has discharged the burden of establishing his alternative case in this respect. I accept that there is no sufficient evidence to show that care proceedings would have got off the ground at that time.
The alleged breach in 1990 or 1991
- The third period which needs to be considered is that around the time when there were extended absences from home. It seems that there was a request from the Claimant's mother for the Defendant's assistance because of his stealing and an arson episode. The response was that he was already being monitored by an education welfare officer. That occurred on or about 7 December 1989. He went missing for about six weeks in August 1990, aged 14. This was clearly very significant but the Defendant does not seem to have been aware of it. For part of the time, he was living in a commune in Leeds and at other times on the streets. He said that he was selling his body to provide a living. He also lived for a time with a woman in Sheffield.
- He only attended school in the autumn term on 17 occasions (out of a possible 64) and finally left home at around Christmas 1990. He says that his father put a knife to his throat, gave him 50 pence and told him to get out. Ms Foster suggested on the basis of a brief newspaper report that he left on 30 December of that year, but I see no reason to disbelieve the Claimant's account that the incident occurred on 24 December. Newspaper reports are not inherently reliable. In any event, it makes little difference. He was tracked down by the police on 29 March 1991 and was thus "on the run" for three months. The Defendant's awareness of this would seem to date from February of that year. It is remarkable that the social services department had not been contacted by the school, whose staff must surely have been concerned as to his welfare.
- It may well be that, by this stage in his life, it would have made little difference to the ultimate outcome, but nevertheless it is the view of Mr Ayre that the Defendant should have reacted positively to his absences, and the possibility has to be addressed of whether this might have averted some of the harm which befell him. Critically, it might have been possible to place him away from home at an earlier stage. While he was away, in the summer and autumn of 1990 he was undergoing various sexual encounters which spiced his conversation when he did attend school. This sort of activity naturally made him more difficult to place. Nevertheless, the Defendant found a place for him in a Barnado establishment at Tadcaster, but he found life difficult because of the reaction of other residents to his sexual behaviour. In an ideal world, no doubt, he would have been taken elsewhere, but it is difficult to be confident that there was anywhere available that would have represented a genuine improvement. He was eventually fostered in London with a degree of success.
- Mr Ayre concluded that the Defendant's failure to respond actively to his absences from home fell short of the standards to be expected. I think that is probably right. I detected a certain fatalism in the Defendant's case in the suggestion that 14 year olds tend to "vote with their feet". I would not wish to underestimate the scale of the problem which would have confronted social workers at this stage, but a 14 year old who is living rough and prostituting himself plainly needs monitoring and support.
- Such was the extent of the Claimant's personality disorder and sexualised behaviour by this time, however, that I cannot properly come to the conclusion that the Defendant's failure led to any specific element of damage which would not otherwise have occurred.
Findings on causation
- I must now return to the 1977 breach and attempt to decide, with the benefit of hindsight, what (if any) damage this caused. That requires me to make findings of fact as to what happened in the Claimant's home life in his childhood. If he had not been returned in November 1977, he would have avoided those experiences. What difference would it have made?
- I do not reject the Claimant's account of abuse, violence and neglect wholesale. It is known that his parents were, beyond any doubt at all, neglectful of him in his first 20 months of life. It is known also that his parents both suffered from the consequences of difficult childhoods. It is known that his father was an alcoholic and that he was violent, from time to time, at least to the mother. He attempted to set fire to the house in about 1983, and it is more likely than not that the Claimant's various attempts at arson were imitative. Professor Maden, the Defendant's psychiatric expert, recognised that imitation is a significant element in a child's behavioural development. That is hardly surprising.
- I find, on the balance of probabilities, that the Claimant did suffer indifference, neglect and periodic violence in the home environment at the hands of his parents. That is entirely consistent with what he was reporting years ago to those who interviewed him and with the records that are available.
- Indeed there is an educational psychologist's "internal report" referring to a home visit on 6 December 1983 (when he was 7 years old) which records that the mother said that she had to hit him and send him to his bedroom or ignore him. There is also a progress report of February 1992 which records the Claimant as saying that he had been beaten a lot as a child. On 12 May 1994 a Dr Campbell reported that the Claimant was claiming to have suffered bruises and cuts to his head during childhood as a result of being beaten and hit with a poker "several times".
- One of the most notable points about the scald marks in 1979 is that there is no record of his being taken for medical treatment. This suggests at the least indifference and perhaps also guilt.
- I am prepared to accept that there may be a degree of exaggeration and dramatisation of what took place, because of the Claimant's disorientation and personality disorder. As the psychiatrists agree, his mental condition leads him to see both past and present in a distorted way. He has a general tendency to see himself as a victim and to see events in black and white rather than shades of grey. That is characteristic of severe borderline personality disorder. Nevertheless, I accept the substance of what he said about it. It is of some significance that Dr De Taranto thought his adult mental problems were not only consistent with but indicative of childhood abuse.
- It would be unrealistic to go through each allegation or class of allegations in order to make separate and individual assessments. The claim is of ongoing abuse over a considerable period and it must be viewed as a whole. So too, it is appropriate to have regard in assessing causation to the cumulative effect of the Claimant's allegations: see e.g. the remarks of Lord Slynn in Barrett v Enfield London Borough Council  2 AC 550, 573 F-G.
- Perhaps the most direct contemporaneous evidence called on the Defendant's behalf was that of the former teacher Mr Gregson. It is clear from a letter dated February 1991 that he had hardly a good word to say for the Claimant, as I have already made clear. There is no doubt that he must have been difficult to cope with, but Mr Gregson's comments do no more that reflect the consequences of his personality problems. He recognised that he needed help and protection at the time "in aspects of his social and psychological development". He referred also to the "possibilities of psychiatric disorders". He described contact with his mother as "inconsistent due to restricted availability" and "failure in keeping appointments". He was apparently well aware of "bizarre behaviours" and "overt sexualism", referring rather coyly to "what can be described as the peripheral activities associated with public toilets". Despite all this, however, Mr Gregson saw no need to make contact with the social services.
- His view of the mother was effectively that she was struggling to do her best. In my judgment, that must be based on very limited direct experience and is a somewhat rose-tinted opinion, which is not really consistent with the pattern of her feckless behaviour over the longer term. Even in Mr Gregson's note it is interesting to see that the "failure in keeping appointments" echoes her behaviour way back in 1976 and 1977.
- If the Claimant had not been allowed to return in November 1977, it is likely that he would have been fostered, adopted or lived in local authority care. He might have been abused in any event, but it seems reasonable for me to proceed on the basis that he would have been properly looked after. Even so, the hereditary element of his personality disorder would still have had a significant impact on his behaviour. This means that longer term predictions are inevitably speculative, as to for example his employment prospects. What I can reasonably conclude, on the other hand, is that he would not have undergone the physical cruelty and emotional deprivation he suffered at home.
- While I readily accept the opinion of Dr De Taranto that his mental state and personality disorder may well have been less pronounced in adult life had he not suffered the neglect and abuse in childhood, I cannot come to any conclusions as to the apportionment of their impact or as to the consequences for the purpose of attributing damage. It would be guesswork and that is not permissible.
- In the result, it seems to me that what is left to be compensated is the suffering of abuse over the years of his childhood from 1977 to 1990. I shall return to this later when I come to quantification of damages.
- The Defendant also raises the issue of limitation. The question arises when the Claimant had the requisite knowledge, for the purpose of ss. 11 and 14 of the Limitation Act 1980, so as to enable him to bring proceedings. His case is that, following a certain amount of delay on the Defendant's part, he acquired the relevant knowledge when he obtained his social services records in 2004. It was only at that stage, he argues, that he was in a position to establish the factual position as to the Defendant's knowledge about his circumstances. There is some confirmation from Mr McDonald, a former foster parent, that attempts were made to obtain the records from the Defendant as long ago as 1992.
- The Claimant relies, in the alternative, upon the provisions of s. 33 of the 1980 Act.
- Agreement was reached between the parties as to a "limitation holiday", so that proceedings were to be treated as being within time if the requisite date of knowledge post-dated 24 August 2001.
- The relevant date is that "… on which he first had knowledge of the following facts – (a) that the injury in question was significant; and (b) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and (c) the identity of the Defendant".
- I am conscious that decisions are awaited from their Lordships in A v H Hoare; X, Y v Wandsworth Borough Council; C v Middlesborough; and Young v Catholic Care and the Home Office. In the meantime, I must proceed on the basis of the law as it stands at the moment: see e.g. KR and others v Bryn Alyn Community Holdings  EWCA Civ 85; Hallam-Eames v Merrett Syndicates Ltd  7 Med LR 122; Dobbie v Medway Health Authority  1 WLR 1234.
- In order to plead a case against the Defendant, the Claimant and his advisers needed to know the state of the Defendant's knowledge, at the various material times, such as would give rise to the obligation to address his plight and take steps for his protection. I accept that the only means open to him to acquire this knowledge was through consideration of the records, which were obtained in July 2004. Accordingly, there is no need to go on to consider whether there should be an extension under s. 33.
The quantification of damage
- The claim for general damages is pleaded under two heads. First, it is sought to compensate the Claimant for pain and suffering caused by the childhood abuse; secondly, there is a claim in respect of psychiatric damage attributable to that abuse. This is said to embrace all or part of the personality disorder from which he undoubtedly suffers and also, by extension, the trauma occasioned by the later abuse he suffered during the period when he was living on the street – including that caused by a rape incident. It is with these experiences, when he had left home, that his anxiety and agoraphobia are said to be primarily associated.
- The schedule of loss suggests that the Claimant has some 35 (now 34) years of working life ahead of him and that, because of the nature of his condition and the severity of his symptoms, he will continue to have "significant disability in the workplace". That is exacerbated by his lack of educational qualifications and limited literacy. This too is said to be caused by disruption resulting, in turn, from the abuse during childhood.
- A global sum is claimed to cover "vulnerability in the labour market" and "loss of opportunity to find employment". Little was said about this in either evidence or submissions. It is clearly speculative in character.
- There is also a claim for treatment costs. It is contended that the Claimant would benefit from therapy not available from the national health service. The claim is put on the basis of two twelve month courses of treatment and assessed at £6,400. The psychiatric experts agree that he would derive some benefit from such treatment but are cautious about it. It is clear that much would depend on motivation and commitment on the Claimant's part.
- Associated with the claim for treatment costs, there is also a claim for travel to include not only the Claimant but also a companion. It is said that he would be unable to attend therapy sessions on his own because of his psychiatric illness. These additional claims are put at £2,041.60.
- There is a brief counter-schedule which puts the Claimant to proof of causation in respect of loss of education and disadvantages in the labour market. It also denies that any treatment or travel costs should be recoverable as they are "not supported by the joint psychiatric evidence".
- Apart from the usual uncertainties as to the causation of long term psychological damage, in this case there is the important element of heredity. The psychiatrists' evidence strongly suggests that the personality disorder is to a significant extent, at least, attributable to genetic factors. It is to be noted that his father and two siblings have suffered from mental health problems and that personality disorders, in general, are often inherited. There is no solid basis in the evidence upon which it would be possible to arrive at an accurate apportionment between hereditary and environmental factors, although Dr De Taranto is of opinion that the Claimant's psychological symptoms would have been less serious if he had been kept from the home environment instead of being returned in 1977.
- Ms Gumbel seeks to overcome this problem of unravelling the various causative elements, and of apportionment, by relying on the speech of Lord Rodger in Simmons v British Steel Plc  ICR 585. She pointed specifically to a passage where he said, "… in the absence of any basis for identifying and apportioning the respective roles played by the various factors in the development of the pursuer's condition, the pursuer is entitled to recover damages for all of his injuries".
- I must be careful, however, not to extend this statement too widely and without reference to its particular context. If construed as generally as Ms Gumbel seeks, it would provide an easy means for claimants to by-pass the burden of proving causation. Here, the evidence establishes that heredity played at least a significant part in the development of the Claimant's personality disorder and psychological problems. Simply because they have probably been exacerbated, to some degree, by the Defendant's negligence, it does not seem to me right to put the hereditary element to one side completely.
- It is not possible to make a comparison with the Claimant's twin sister, who was kept in care or foster care permanently, since not only is there no evidence as to how she has fared but a direct comparison would be unlikely to assist, in any case, because of her mental disability.
- I have decided that some damage can be shown to have flowed from the 1977 breach in returning the Claimant to his parents. That which is in my judgment provable, to the required standard, is the neglect and abuse during childhood, including physical violence. I do not include the later episodes of abuse or rape while living on the streets. This seems to me to be too speculative and remote.
- Ms Gumbel drew my attention to the Bryn Alyn cases for guidance on quantum in child abuse cases. It is difficult to find exact parallels and in some of the cases the nature of the abuse consisted of a number of elements (in particular, sexual abuse) which were not present here at the relevant period. She also cited the awards in Strasbourg in Z v UK.
- I consider that in the light of this guidance, such as it is, the right figure for general damages would be £25,000. I award nothing in addition for psychotherapy, loss of employment opportunities or increased psychological damage (beyond the hereditary element). That is simply because I do not consider that the burden of proof on causation has been discharged in these respects.
Copyright Policy |
Donate to BAILII