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|Neutral Citation Number:  EWHC 1717 (QB)
|Case No: TLQ/12/1005
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
|Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE JAY
|- and -
|BEDFORDSHIRE COUNTY COUNCIL
Augustus Ullstein QC (instructed by Irwin Mitchell) for the Claimant
Edward Bishop QC (instructed by Weightmans) for the Defendant
Hearing dates: 6th, 7th, 10th, 11th & 12th June 2013
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Justice Jay:
- By his Part 7 Claim Form issued on 28th October 2011 under section 7 of the Human Rights Act 1998 ("the HRA"), the Claimant Mr Bradley Bedford (d.o.b. 2nd November 1990) claims that the Defendant local authority has acted as a public authority contrary to section 6 of the HRA in breach of his rights under Article 8 of the European Convention on Human Rights ("the Convention"). Given that the Claimant's cause of action arose on 29th May 2004 in circumstances which I am about to explain, this claim is brought outside the one year time limit prescribed by section 7(5)(a) of the HRA, and an extension of time is therefore required (for the Claimant's purposes) under section 7(5)(b).
- The Defendant local authority had owed responsibilities for a considerable number of years to a boy named AH, d.o.b. 12th October 1988 (at the start of the trial, I ordered that his identity should be hidden in order to protect his Article 8 rights) as a 'looked after child' under section 20 of the Children Act 1989. At the material time AH was physically accommodated at the Cheltenham Children's home in Torbay ("the Cheltenham") pursuant to contractual arrangements made between its operators and managers, SICS Ltd, and the local authority. The Cheltenham is not a party to these proceedings and is not a public authority for the purposes of section 6 of the HRA.
- At this introductory stage, I set out in summary form the horrific events of 29th May 2004. I derive this summary from the Claimant's Skeleton Argument and the section 9 statements which are in the trial bundles.
- At some stage during the early afternoon of 29th May 2004 it was decided by staff at the Cheltenham that AH and one other could be escorted on a supervised visit to the beach at Torbay. DCF, another child at the home (whom I anonymise for identical reasons) went with the party, but given that he was 'on mobility' he did not require to be escorted. Later on, the group was met by another boy, DS, who was resident at a different home in the area. At about 4.30pm DCF and DS went to the lavatory but did not come out. A member of staff, who was looking after AH at that juncture, went to investigate, but to no avail. By the time he had returned, AH too had disappeared.
- The Cheltenham notified the police of AH's abscondence at about 5.30pm, and members of staff instituted searches of their own in the local area. At or shortly before 10pm, the boys were seen by an off-duty member of staff who happened to be working at the time as a doorman at a local nightclub [2/523-526]. They were clearly under the influence of drink and cannabis. This encounter did not cause the boys to return to their respective homes. By then, the section 9 evidence demonstrates that at least one serious assault had taken place.
- The material events occurred shortly before midnight on 29th May. The three boys encountered the Claimant, and his 13 year old girlfriend, near Corbyn Head. They were taken to the beach and then the Claimant was viciously attacked by blows from the feet to his head, and his friend was repeatedly raped. The Claimant was left unconscious on the ground, and the boys ran off. They were arrested by the police shortly after 2am the following morning.
- In April 2005 AH and DCF were convicted at the Exeter Crown Court of the offences of causing grievous bodily harm with intent, and rape. Each was sentenced to life imprisonment with minimum terms of 4 years 3 months.
- The tragic consequences for the Claimant are that he sustained a serious brain injury in the assault with attendant intellectual deficits and personality change. I have read his mother's witness statement on these issues as well as the detailed medical evidence which is in the bundles. Given the nature and extent of his disabilities, the Claimant is a protected person and brings this action by his mother and litigation friend, Mrs Susan Picton. The Schedule of Loss advances a seven figure claim for damages apart from any claim for general damages for pain, suffering and loss of amenity, or its Article 8 analogue. On the other hand, Mr Bedford's claim has been accepted in principle by the CICA, although that body is obliged to apply a ceiling of £500,000 to any award it makes.
- The trial before me has been rightly confined to the issues of liability and causation. Any issue of remedy, including that pertaining to a possible award of damages under section 8 of the HRA, will arise for subsequent adjudication if appropriate. The Defendant's Skeleton Argument urged me, in the exercise of my case management powers, to try limitation as a preliminary issue. At the morning of the trial, Mr Bishop Q.C. reviewed the position and invited me to follow a slightly different course, in line with his interpretation of paragraphs 25-26 of B v Nugent Care Society (2010) 1 WLR 516, namely to hear the evidence pertaining to all relevant issues in the ordinary way, but to rule on the limitation point first and before, if so advised, setting out my conclusions on the substantive issues. He pointed out, and I well understand, that matters of prejudice to the Defendant not readily apparent to the Court from a perusal of the documents alone might well emerge during the hearing of the oral evidence.
- I was entirely content to adopt Mr Bishop's suggested course, not least because it would have been far from satisfactory for me to have ruled on limitation as a preliminary issue at this extremely late stage. Having said that, if I were to come to the conclusion that the Claimant has failed to demonstrate grounds for an extension of time under section 7(5)(b), I would be duty-bound so to find.
- The Court has been treated to a mass of evidence, both oral and documentary, to copious citation from authority, and to detailed and extremely helpful submissions on both the facts and the law. I consider that it is not necessary for me to set out every piece of evidence, every authority cited, and every submission made. I intend, as best I can, to encapsulate my findings and analysis in a way which strikes at the heart of the matter and achieves justice. For ease of reference, I intend to divide this judgment into the following chapters, viz.:
- the Law governing the substantive issues;
- Essential factual narrative;
- Limitation: legal framework and findings;
- Findings on the substantive issues.
The Law governing the substantive issues
- This action is brought solely under the HRA; there is no claim at common law. Both Mr Ullstein Q.C. and his predecessor counsel have taken the view that no duty of care is owed by the Defendant local authority in these circumstances. No doubt out of an abundance of caution, I asked Mr Ullstein to explain his reasoning: he did not take up my offer, and in those circumstances I take the matter no further. I should not be interpreted as disagreeing with him. I should add that in any event the Claimant would have been in no better position at common law, even had a duty of care been owed, because he would have had to demonstrate that the Defendant took decisions of a policy nature which were wholly unreasonable. The outcome would have been the same, although the route to it would have deviated slightly.
- It is necessary to set out the essence of the 'looked after child' regime. It is to be found in the Children Act 1989. At all material times AH was a child to whom section 20(4) applied: in other words, the local authority was empowered to provide accommodation for him, even though his mother was technically able to do so, because they reasonably considered that to do so would safeguard or promote his welfare. Ordinarily, this power would cease to be exercised at the child's 16th birthday. Once the power under section 20(4) is triggered (or the duty under section 20(1), which is not applicable to the present case), a local authority provides accommodation for a looked after child by 'maintaining him in an appropriate children's home': see section 23(2)(aa). Under section 23(10), an 'appropriate children's home" means a children's home in respect of which a person is registered under Part II of the Care Standards Act 2000'.
- The relevant regime is described in more detail by Rix LJ in R(oao R.O.) v East Riding of Yorkshire Council and another (2011) EWCA Civ 196, paragraphs 68-81. I refer to this without setting any the relevant sections of the judgment.
- The section 20 regime is different from the care and supervision regime laid down by section 31 of the Children Act 1989 (although the Defendant's senior witness, Mr Buddery, agreed in cross examination that in practice there would have been no material difference), and clearly different from the secure accommodation regime under section 25. However, it was common ground before me that the draconian provisions of section 25 would not have been appropriately applied to AH; or, at the very least, that the Defendant's decision (in effect) not to apply them cannot be challenged. It is important to recognise that the section 20 regime depends on parental consent and is non-coercive. Although a home may well choose to exercise powers at common law to restrain its inhabitants for self-protection or the protection of others, there is no power to compel children to remain there or to force their return in the event of their absconding.
- Aside from this primary legislation, there is a body of subordinate legislation which regulates the activities of both the relevant local authority and care provider in terms of what each must do to safeguard and promote the welfare of the looked after child. Additionally, the appropriate children's home was, at the material time, regulated by CSCI whose role was set out in a further body of primary and secondary legislation.
- The relevance of this is that the Defendant local authority in the instant case cannot be regarded as being vicariously liable for the acts and omissions of the Cheltenham. No reliance has been placed by the Claimant on any contractual provision and I must proceed on the basis that none applies. On the other hand, no one has suggested that the Defendant's obligations are discharged as soon as the child has been suitably placed. A local authority clearly has obligations of a continuing nature to secure as best it reasonably can that the home is safeguarding and promoting the welfare of the looked after child (see, for example, the provisions of the Arrangement for Placements of Children (General) Regulations 1991, SI 1991/890 and the Children's Homes Regulations 2001, SI 2001/3967); and this Defendant has contended before me that it fully discharged them. I will need to examine that contention in due course. At the moment, I content myself by saying that the local authority's duty under section 20 (once it decided to exercise its section 20(4) power) required it to (a) fulfil all the relevant regulatory requirements (e.g. as regards care and placement plans; subsequent reports and reviews etc.), and (b) take all reasonable steps to ensure that an appropriate regime was being maintained at the home. In practice, this ordinarily means that the local authority would owe clear continuing obligations in relation to strategic/policy decisions relating to the care of a looked after child, but could cede to the home in relation to day-to-day decisions of an operational nature, unless facts were drawn to its attention which would merit intervention in those decisions.
- I turn now to address the legal position under the HRA.
- The Claimant has chosen to rely solely on Article 8 of the Convention (right to private life). He has eschewed reliance on Article 3 (which in my view certainly would have applied) or on Article 2 (which in my view might well have applied). I will analyse in due course whether for present purposes there is any distinction as regards the applicable legal test as between these latter two articles. It is important to identify at the outset the most natural habitat for this claim for Convention purposes, because the European Court of Human Rights in Strasbourg prefers to look at the substance rather than the form, and so should this Court when applying the same principles to a claim brought under the HRA.
- There have been cases where Article 8 has been successfully deployed in Strasbourg where the Claimant suffered serious personal injury. For example, in X and Y v The Netherlands (1985) 8 E.H.R.R. 235, the Dutch authorities were found to have acted in violation of the Article 8 rights of a victim of sexual assault to the extent that the Netherlands criminal code afforded inadequate safeguards. However, this was a case about what might be described as 'high-level' failings in the whole system: the analogy here would, for example, be the existence of lacunae in the Children Act 1989 such that a looked after child in AH's position could not be adequately safeguarded. But this Claimant does not advance such a contention.
- The instant case is much closer to the facts of the locus classicus in this domain, Osman v UK (2000) 29 EHRR 245. There, a claim was brought under both Articles 2 and 8 in relation to operational failures by the police to protect the Claimants from what were said to be known threats from an identified individual. As regards the Article 2 claim, the European Court of Human Rights characterised the positive obligation on States in the following terms (see paragraph 121 of the judgment):
"In the opinion of the Court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of the above-mentioned duty to prevent and suppress offences against the person, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. The Court does not accept the Government's view that the failure to perceive the risk to life in the circumstances known at the time or to take preventive measures to avoid that risk must be tantamount to gross negligence or wilful disregard of the duty to protect life.
For the Court, and having regard to the nature of the right protected by Article 2, a right fundamental to the scheme of the Convention, it is sufficient for the applicant to show that the authorities did not do all that could reasonably be expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge. This is a question which can only be answered in the light of all the circumstances of any particular case."
- The Court went on to consider the claim under Article 8 of the Convention. Given its finding that there had been no violation of Article 2, by parity of reasoning the Court held that there could be no violation of Article 8 either (paragraph 128). In other words, the Claimant could be in no different or better position by seeking to assimilate these facts (which, after all, amounted to a paradigm allegation of a violation of Article 2) within the ambit of Article 8.
- Osman has been applied to alleged breaches of Article 2 by the courts in this jurisdiction at the highest level. In Van Colle v Chief Constable of the Hertfordshire Police (2009) 1 AC 225, there was clear evidence that the accused had been threatening prosecution witnesses in his forthcoming criminal trial. Tragically, the Claimant's son, one of these witnesses, was shot dead by the accused. The contention was that the police had failed to protect the victim from the risk of serious harm of which it was aware. In dismissing the claim under section 6 of the HRA for a violation of the deceased's rights under Article 2 of the Convention, the House of Lords applied the 'real and immediate risk to an identified individual' test laid down in Osman: see Lord Bingham (paragraphs 28, 31-32, 35-36); Lord Hope (paragraphs 66-68); Lord Brown (paragraphs 115-116) in particular. Interestingly, in Lord Bingham's view (paragraph 40), the alternative claim under Article 8 could not apply as a matter of principle because the police did not themselves interfere with the victim's right to respect for his family life or personal autonomy.
- Van Colle went to Strasbourg and judgment was handed down by the Court on 13th November 2012 (56 EHRR 23). In essence, the Court upheld the reasoning and conclusion of the House of Lords on non-violation of Article 2 (paragraphs 91-105). As for the alternative claim under Article 8, the Court held that no separate issue arose (paragraph 108). I interpret that as a finding that the issues under the two distinct Articles of the Convention were effectively the same, in the sense that they stood and fell together; not (per Lord Bingham) that Article 8 was simply not engaged. For the avoidance of doubt, I also interpret this as a finding that a claimant can place himself in no better position by invoking Article 8 on this sort of facts.
- I was also referred to Mitchell v Glasgow City Council (2009) 1 AC 874 where the House of Lords applied Osman to a situation where a local authority had allegedly failed to take sufficient steps to protect a neighbour from the risks and threats, ultimately culminating in a fatal attack, emanating from the secure tenant living next door. But in that case there was no alternative claim under Article 8.
- In opening the case to me Mr Ullstein submitted that the Osman test was inapplicable to the present situation because section 20 of the Children Act 1989 created a close relationship, and one possessed of statutory incidents, between the Defendant and AH. He submitted that common law cases such as Carmarthenshire County Council v Lewis (1955) AC 549 were directly in point. However, I cannot see how the broad principles of the common law can possibly be relevant to what in essence is a statutory tortious claim brought under primary legislation designed to 'bring home' rights of European-wide application. Furthermore, the nexus between the Defendant and AH may well be relevant to issues of knowledge and the reasonableness and practicability of appropriate preventive steps, but it has no bearing in my judgment on the threshold test which is an inflexible metric. Mr Bishop referred me to the prison assault and hospital suicide cases on this issue.
- Later, Mr Ullstein referred me to a number of authorities where Article 8 was held to be applicable in the context of personal injury, but where a lower threshold test was imposed by the European Court of Human Rights regardless of whether a claim was also brought for breach of Article 2. For example, in Hatton v UK (2003) 37 EHRR 28, a case concerned with noise pollution from Heathrow airport, the Court held that Article 8 was engaged and that the State owed a positive obligation, albeit one with a wide margin of appreciation, to strike a fair balance between the competing interests of the individual and of the community as a whole in terms of the proper regulation of private industry. I fail to see how this case assists this Claimant, not least because the instant case is not concerned with 'high-level' policy decisions but rather with the reasonableness of specific decisions in relation to AH, and prevention of the intentional criminal acts of which he was found guilty.
- Of potentially greater promise for the Claimant's purposes is Guerra v Italy (1998) 26 EHRR 357, which concerned industrial pollution and the emission of chemicals described as 'high risk'. The Court held (paragraph 58) that the national authorities were in breach of their positive obligations under Article 8 to take the necessary steps to ensure effective protection of the applicants' right to respect for private and family life. Clearly, the Court did not apply the Osman test to what was in essence a claim for personal injury. When it came to address the alternative claim under Article 2 (one of the applicants had died from cancer) it held that no separate issue arose.
- In Oneryildiz v Turkey (2005) E.H.R.R. 20, the applicant lived with his family in a slum bordering a municipal household-refuse tip. In April 1993 a methane explosion at the tip resulted in a landslide which engulfed the applicant's house, killing his close relatives. The Court held that Article 2 applied to this case: these were industrial activities carried out by state authorities which were inherently dangerous. It also held that the state authorities were in breach in failing to implement a legislative and administrative framework designed to provide effective deterrence against threats to the right to life; including in particular the purveying of adequate information to the public. It should be noted that although the Court found that there was a breach of Article 8, its finding that there had been a breach of Article 2 was based on the Osman test: see the bottom of page 362 of the report.
- Finally, in Kolyadenko v Russia (2013) 56 EHRR 2, a state-owned reservoir was known to create a risk of flooding. In August 2001 the authorities became aware that heavy rainfall was expected imminently and released a significant mass of water from the reservoir. The area where the applicants lived was immediately flooded: they had been given no warning of this, and in some cases there was a risk of drowning. The claims were brought for violations of inter alia Articles 2 and 8, and in both instances were upheld by the Court. The Court determined that the Russian government had a positive obligation under Article 2 to assess the risks inherent in the operation of the reservoir and to take steps to ensure the protection of those who might be endangered by those risks. The same outcome, by a very similar route, was achieved under Article 8.
- In my view, it is necessary to examine the factual context in which these environmental cases arose. These were decidedly not claims arising out of the failure to take measures to prevent the criminal acts of a non-state actor. In all bar Guerra, the risk was created by the state authorities themselves. In all the cases, the State was culpable in failing to adopt necessary measures to prevent, or mitigate, the known risks arising from natural causes or dangerous industrial activities; and in any event (although the Court made no express reference to this) the applicants were within an identified class of persons likely to suffer personal injury if the risk eventuated. It is noteworthy that in Osman the Commission drew a distinction between different types of case, explaining that environmental cases should be envisaged in a different way from intentional criminal act cases (see paragraph 91 of the report). In my judgment, the Claimant can draw no direct support from this line of authority.
- The European Court of Human Rights in E v UK (2003) 36 EHRR 31 examined the application of Articles 3 and 8 of the Convention to the context of child sexual abuse. There, the four applicants had been sexually and physically abused by their step-father over a long period of time. In 1977 he was convicted of indecently assaulting two of them and was placed on probation, but he continued to have close contact with the family. Many years later, three of the applicants reported to the police that they had been abused by him. The European Court of Human Rights held that the positive obligation under Article 3 was on signatory States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, and that such measures should provide effective protection, in particular of children and other vulnerable persons, and include the taking of reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge. Given that the relevant social services department had failed to take steps which would have enabled them to discover the exact extent of the problem, they were at fault, and in breach of the positive obligation under Article 3, in not doing enough to prevent further abuse taking place. Finally, the Court held that, given its finding of violation in relation to Article 3, no separate issue arose under Article 8, and therefore declined to make a finding of a violation of that article.
- It is true that the Court's statement of the 'General Principles' applicable to E at paragraph 88 of its judgment was somewhat terse. However, what is clear is that the applicants were identifiably at risk (cf. the instant case where this Claimant was not identifiably at risk from AH), and that the potential risk, as the Court described it, endured over many years. Certainly the risk was 'real' but whether it was 'immediate' is more debateable on the facts. That said, the key paragraph from Osman was cited to the European Court of Human Rights in E and footnoted under paragraph 88 of the judgment in the context of the encapsulation of the relevant test ('These measures should provide effective protection, in particular, of children and other vulnerable persons, and include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge').
- In my judgment, even if I am not bound by paragraph 88 of E, and I believe that I am, there is no reason in principle why the test should be any different for the purposes of a claim under Article 3 of the Convention as opposed to one brought under Article 2, and it has been drawn to my attention that Wyn Williams J came to the same conclusion: see O v Commissioner of Police for the Metropolis (2011) EWHC 2436 (QB), paragraph 157. Although the human right under Article 2 is capable of being envisaged as even more precious and fundamental than the prohibition against torture etc. vouchsafed by Article 3, both are absolute rights which fail to succumb to countervailing public policy considerations. The most that this Claimant may possibly derive from E is that the risk of harm need not be 'immediate'. Having made that observation, I find that the test for Article 3 purposes is exactly the same as that applicable to a claim brought under Article 2. In any event, to the extent that my foregoing analysis is incorrect and that the test may differ in the narrow way I have identified in my preceding paragraph, this makes no difference to the outcome on the facts of the instant case.
- Finally, I should make clear, as I have said before, that it remains important not to subordinate the substance of the matter below the form in which a case happens to be advanced. Albeit presented as a claim in relation to Article 8 of the Convention, this in essence is a claim under Article 3 and, highly arguably, Article 2. The Claimant can be in no better position by choosing to plead a violation of Article 8 alone, particularly where he seeks substantial damages for all the consequences of what can only be described as a breach of his Article 3 rights. Although I do not go as far as did Lord Bingham in Van Colle in deciding that there can be no question of a claim under Article 8, I do hold that the Claimant cannot be permitted to circumvent what Lord Brown in that case characterised as the 'stringent' pre-conditions of a claim for breach of these unqualified rights. In other words, it is a threshold requirement in circumstances such as these that a real and immediate risk of serious harm (I paraphrase) to an identified individual or individuals be established. It is only if that issue is answered in the Claimant's favour that one proceeds to consider the further question of whether reasonable steps were taken to remove or ameliorate that risk.
The Key Issues arising
- In line with my previous analysis, it seems to me that I should be address the following three key issues in this sequence, viz.:
(i) is it equitable in all the circumstances of this case to extend the Claimant's time for issuing proceedings pursuant to section 7(5)(b) of the HRA?
(ii) was there a real and immediate risk of serious harm to the Claimant which the Defendant local authority knew or ought to have known about?
(iii) if there was, did the local authority take such steps as were reasonable in all the circumstances to eliminate or substantially reduce that risk?
- But before turning to those issues it is necessary for me to delve further into the evidence in order to provide an essential factual narrative.
Essential Factual Narrative
- I should emphasise that I am not proposing in this section of my judgment to set out each and every relevant or potentially relevant fact, or to make findings on all the points which have been advanced before me. Instead, I intend to 'tell the story', and to resolve any disputed matters on the evidence to the extent necessary for that purpose. I will defer any more detailed consideration of the evidence to when I come to address the third issue (see paragraph 36(iii) above). For the avoidance of doubt, the Court has already been provided with a detailed chronology, a Serious Case Review itemising most of the relevant events, and with two expert reports which contain the full history in relation to AH.
- AH's early childhood was turbulent and traumatic. He was neglected from the outset and there is credible evidence that he experienced both physical and sexual assaults. By the time he was 5 years old, the Social Services department of the Defendant local authority was already very concerned for his welfare. Section 20 of the Children Act 1989 was first deployed in AH's interests in 1994. Between June 1998 and June 2001 AH was placed at the Chelfham Mill residential special school in Barnstable, Devon. He appears to have made quite good progress at the outset but his behaviour thereafter deteriorated. AH was permanently excluded from the school on 24th June 2001 following a violent incident when he climbed onto the school roof and threw tiles at children and staff, causing significant criminal damage. By that stage AH was just short of his 13th birthday and had already exhibited signs of inappropriate sexual behaviour.
- After a fairly brief sojourn at another home, on 7th September 2001 AH was placed at 80 Bunyan Road, Bedford, where he remained until the end of November that year. This may only be fairly described as a disastrous placement: it was characterised by frequent abscondences and criminal behaviour, culminating in a serious sexual assault perpetrated on 27th November 2001. I will examine the circumstances of that assault in a moment.
- AH was moved to Netherleigh children's home the following day, and from there to the Willows at Whaplode, Lincolnshire, on 11th January 2002. He remained there for the rest of 2002, and early 2003. Unfortunately, AH's behaviour deteriorated and in March 2003 he was arrested having caused, with others, very significant damage to that home. Between March and September 2003 AH was resident at 51 Station Road, Willingham, Cambridgeshire. On 9th September 2003 AH was arrested for a physical and racial assault on a member of staff there. Later that month, AH was moved to 14a Dunstable Street, Ampthill, a local authority children's home. He remained there until 30th December 2003.
- At this point I pause to alight on AH's criminal record. This is conveniently set out as an Annex to the Serious Case Review at [6/1637-1638]. This document shows a spate of offending and of appearances before the Youth Court involving matters such as robbery, criminal damage, assault on the police etc. Some of these offences were committed outside the relevant home, although their circumstances are not wholly clear.
- I have said that I would address the events of 27th November 2001. According to the Defendant's report dated 7th January 2002, what happened on that occasion was as follows [8/2239]:
"AH and another resident knocked on the door of another resident's bedroom. Both went in and shut the door. X acted as look-out, whilst AH asked [her] to give him a 'blow job', oral sex. [she] agreed. When [she] tried to stop AH held her head close to his groin so that she could not. He then urinated in her mouth and when she pulled away AH urinated in the bedroom.
AH and X then attempted full sexual intercourse, but were unsuccessful. [she] then informed staff that a similar incident had occurred previously."
- On 9th September 2002 at the Bedford Youth Court AH received an 18 month supervision order for this (and one other) offence, and was registered on the Sex Offenders Register for 2½ years. I agree with Mr Ullstein's characterisation of this as a very serious sexual assault, having regard in particular to the youth of the parties involved, and of the victim. The fact that AH and the victim may have had some sort of relationship is, to my mind, irrelevant.
- I return to AH's stay at 14a Dunstable Street in the autumn of 2003. As became apparent during Mr Bishop's cross examination of the Claimant's expert, Professor Sines, there was no 'honeymoon period' to speak of (see, for example, [9/2405], [10/2812] and [7/2009]). On 29th October 2003 AH was before the Bedford Youth Court for, amongst other things, the offence of racially aggravated common assault (see paragraph 41 above). This offence was committed before AH had been transferred to 14a Dunstable Street. He was sentenced to a 12 month Supervision Order with a requirement that he be placed on a 6 month Intensive Supervision and Surveillance Programme (ISSP) coupled with a 3 month curfew and tagging requirement. AH's performance at this home did not improve throughout November 2003 and his YOT breach report dated 2nd December 2003 [11/3068] referred to his 'extremely challenging behaviour'. AH was not being educated at this time. On 18th December an internal email [9/2409] referred to 'great difficulties, with him coming back very drunk or under the influence of other substances'. On 19th December 2003 Bedford Youth Offending Service sent an email [9/2410] which stated: 'offending behaviour has escalated'. On 24th December 2003 AH appeared before the Bedford Youth Court in relation to offences of assault and threatening behaviour committed on 16th December. He was remanded to the following month for pre-sentence reports. Finally, on 29th December 2003 AH's placement at 14a Dunstable Street was deemed to have broken down in consequence of him smashing the place up [6/1784; 9/2413]. AH moved to his grandmother's house the following day.
- The Defendant's expert, Ms Jenny Gray, cannot be accused of hyperbole when she describes this period in paragraph 5.38 as a 'very turbulent one' for AH [1/144]. Yet this point is very much capable of cutting both ways because AH's performance at the Cheltenham had to be calibrated against what was known about him, in particular the recent history.
- By this stage AH was very much in the metaphorical 'last chance saloon'. A custodial sentence was on the cards, and the range of suitable placements was bound to be narrowing. On the other hand, for reasons which it may be difficult for a lay person fully to understand, I reiterate that matters had not reached such a pitch that an application for a secure accommodation order under section 25 of the 1989 Act would have been appropriate.
- On 8th January 2004 Mr Graham Buddery completed a Family Placement Referral form [9/2424] in relation to AH, and annexed to it the latter's offending history. In my view, although a fairly succinct document, this accurately stated the key challenges in relation to the future management of AH, including the fact that he was assessed to be 'extremely physically aggressive'. On 9th January 2004 an internal email sent within Bedford Social Services recorded that a possible placement in Torbay 'seemed to think that they will be able to offer AH something', and that 'this seems to me like a very positive placement for AH, and has been used before for [redacted]'. It emerged during the cross examination of Mr Buddery that the redacted individual suffered from ADHD and had no criminal record. Even so, the Cheltenham had been given the 'heads up' as regards AH and felt up to the task. On 12th January 2004 the Cheltenham was faxed the Family Placement Referral form [9/2436] and there was a meeting with relevant personnel from the Cheltenham the following day [9/2488] at which AH's placement was agreed.
- On 12th January 2004 Bedfordshire Youth Offending Service submitted a pre-Sentence report [11/3068.3] in relation to the offences committed on 16th December 2003. This made the following points:
"12. In the light of AH's current transient living situation and his extensive antecedents, in my assessment there is an extremely high risk of AH re-offending and potentially harming members of the public
[I note that the risk was not confined to those close to AH in children's homes]
13. In the light of the gravity of these offences and AH's considerable previous convictions, I am aware that the Court are [sic] seriously considering the imposition of a Custodial Sentence on this occasion. I am also aware that
the alternatives open to the court are limited
In addition it is significant to note that the majority of AH's offending has occurred within a Care environment and as a result of his anger management difficulties. "
- When the matter came before the Youth Court on 14th January 2004 the 'Cheltenham option' was put forward although at that stage it was not clear whether AH was accepting it [9/2442-3]. It followed that the matter had to be adjourned for a week. Unfortunately, AH misbehaved in court and so was remanded in custody over that period. The ISSP/curfew/tagging option must also have been before the Youth Court on that occasion because there is evidence that the Cheltenham had informed Bedford that it could manage a tagging requirement [9/2441-2441.1].
- On 21st January 2004 AH was back before the Bedford Youth Court and was sentenced not merely for the offence committed on 16th December 2003 as covered by the pre-Sentence report but also offences committed on 22nd December and 6th January 2004. The sentence was a 2 year Supervision Order with a requirement that AH be placed on an ISSP programme for a period of 6 months. Coupled with this was a 3 month curfew requirement (before sight of the relevant document, the parties were proceeding on the premise that the curfew was intended to last for 6 months: this assumption was incorrect, and a 6 month curfew would have been an unlawful sentence) and a 3 month tagging requirement [11/3068.88]. Although this does not appear to have formed part of the Court Order, AH was immediately transferred to the Cheltenham where it was believed that the Torbay YOT would effectuate the requirements of the ISSP, the curfew and the tagging.
- Unfortunately, it soon became apparent that Torbay YOT and/or the Cheltenham could not deliver the more onerous supervision requirements of the ISSP and the electronic tagging. I will deal with this in more detail when I come to the section of my judgment, 'Findings on the Substantive Issues'.
- For present purposes, and conscious of the fact that the events of 21st January 2004 to 29th May 2004 will require further exposition and analysis subsequently, I will at this stage set out the essential elements of what happened over this 4 month period.
- On 26th January 2004 Mr Graham Buddery, AH's social worker at all material times until 2nd March 2004, visited the home and noted that AH had appeared to have settled well there [3/621/para 23; 9/2490]. Mr Buddery freely accepted in evidence that this gave him no more than a snap-shot picture, and that no long-term inferences could be drawn; this, after all, was very early days. On 2nd February 2004 AH found himself stranded at Derby Station on his way back to the Cheltenham from home. He was looked after overnight on an emergency basis by local social services and returned to the Cheltenham the following day by train under this own steam. Ms Gray felt that this was a good prognostic sign. On the other hand, 5th February 2004 was a poor day for AH: he is recorded as having sprayed cleaner in the face of a member of staff [6/1760] and having struck another staff member with a key [6/1761]. The following day AH had to be restrained and is recorded as having indulged in verbal abuse and kicking doors [6/1761]. There was a less serious incident on 8th February.
- On 16th February 2004 Ms Anita Harrison, who was the out of county placement social worker without specific responsibilities for AH, saw him at his mother's home. This visit is recorded in an email [9/2462] which was placed on AH's file. The email is in positive terms, suggesting that AH had settled down very well at the Cheltenham, was responsive to the regime there, and that his one week in custody the previous month had been 'a turning point'. Ms Harrison was cross examined about this email on the basis that it was still far too early to reach this sort of judgment about the success or otherwise of this placement (I would agree) and that she could not have had in mind the contents of [6/1760-1] which she had not seen (I also agree). Nonetheless, it was not bad practice in my judgment for Ms Harrison to cause this email to be lodged on AH's file. It was a small piece of positive evidence for others to make of as they saw fit.
- On 17th February 2004 the Cheltenham sent to the Defendant the first of the monthly reports it had contracted to provide [6/1760]. It is likely, although I will need to address this point later, that the report was brought forward to synchronise with AH's court hearing due the following day. The report was quite candid about the events of 5th, 6th and 8th February 2004 but noted that AH's behaviour had improved since then. AH was progressing at school (cf. the position at 14a Dunstable Road) and his relationship with his immediate family had also improved. In my view, this report gave a reasonably balanced picture, and its author could not fairly be accused of misrepresentation or cover-up.
- On 17th February 2004 the Defendant local authority produced a formal Care Plan for AH [10/2890] which on my understanding was a requirement of subordinate legislation; one had to be provided within one month of the looked after child's current placement. The plan noted AH's admittedly limited and short-term progress and, more importantly, opined that the Cheltenham had strategies in place for managing AH's challenging behaviour.
- On 18th February 2004 AH was back before the Youth Court in Bedford. It appears that the principal spur for this was an allegation of racially aggravated common assault which dated back to AH's time in Dunstable Street on 20th November 2003 [11/3068.9]. However, this was also felt to be a good opportunity to ask the Court to lift the ISSP together with the curfew and tagging requirements. Although it is not clear precisely what material was placed before the Youth Court on that occasion (as to which, see later), what is plain is that Bedford's application was acceded to. This left the requirements of the Supervision Order in place but not the enhanced requirements of the ISSP, still less the night-time curfew and the three month tag.
- AH's first Looked After Children review took place on 19th February 2004 [6/1789]. It should be explained that it is a mandatory requirement of the Arrangement for Placements of Children (General) Regulations 1991, SI 1991/890 that a LAC take place within one month of the placement. The first subsequent review must then take place after three months (it occurred here on 14th May 2004), with later reviews occurring every six months. For the purposes of the first LAC review the Defendant local authority prepared a report [10/2906 ff] which was based on evidence from a number of sources, including the home itself. This first review was cautiously optimistic to the extent that it was hoped, if not necessarily expected, that AH might stay at the home right up to his GCSEs in June 2005.
- Unfortunately, the second part of February 2004 and much of March was marked by quite serious blots on AH's record: see, for example, [7/2019], [7/2020], [6/1764], [9/2472], [10/2883], [6/1764], [6/1764], and [10/2883]. These documents contain reports of abscondences, violence on staff, criminal damage and the need for AH to be restrained. On 29th March AH had to be restrained twice after at least two incidents of assault and criminal damage, and the relevant paperwork was fully completed by the Cheltenham [6/1764]. Bedford Social Services were informed and at least one member of the social work team attended at the home on 2nd April. The Cheltenham's monthly report for March 2004 (undated, but certainly after 29th March, [6/1764]) noted that AH's behaviour was 'volatile', and that the trigger for this was AH's school attendance.
- On 2nd April 2004 Ms Amanda Warwyn (AH's main social worker, having taken over from Graham Buddery on 2nd March) went to the Cheltenham possibly with Ms Anita Harrison. The visit was prompted by the restraints imposed on 29th March. At that stage it was agreed that AH would return home the following day and return to the Cheltenham on 13th April. Sadly, on 3rd April AH returned to the Cheltenham both late and drunk. He had to be restrained again [6/1800], and Ms Warwyn and Ms Harrison came back the following day to ascertain what was going on. The upshot of the visit was that it was agreed between Bedford and the home that AH's return to his mother would be put back to 8th April. Much to Ms Warwyn's subsequent irritation, however, the Cheltenham did not adhere to the agreed timetable and allowed AH home on 6th April, two days early. She told me in evidence that her impression of the Cheltenham had been that there were proper boundaries in place, a good structure, and that AH was being cared for appropriately. It might well be said that the degree of un-covenanted latitude given to AH on 6th April did not necessarily inspire confidence in the Cheltenham's ability to abide by a strict 'carrots and sticks' approach. Ultimately, though, this point cannot materially affect my overall assessment of the case, still less Bedford's contemporary assessment of the Cheltenham's performance over these four months.
- On 14th April Ms Warwyn visited AH at home: he had not returned to the Cheltenham on time. The care log for that day [6/1802] states that AH's mother told Ms Warwyn that she could not cope with AH. There was a tripartite discussion in the car when this news was imparted to AH. It was clear that he had to return to the Cheltenham, which he did reluctantly.
- Notwithstanding these events, including a further abscondence on 23rd April, AH's monthly report from the Cheltenham given on 25th April was in somewhat laudatory terms [6/1803]. Apparently, there had been 'a vast improvement
nothing but praise
all in a very good month'. The impartial reader would be entitled to view this with a measure of scepticism, if not cynicism. Even so, the Cheltenham's daily logs for AH are unavailable for this period, and I am not prepared to conclude on the balance of probabilities that the home was significantly over-egging the picture, still less misleading the Defendant. In reaching this conclusion I am not overlooking Mr Bishop's submission that the Defendant was entitled to trust what the Cheltenham was telling them, or Mr Ullstein's submission that it was incumbent on the Defendant not merely to monitor but to carry out checks of the underlying material. It seems to me that the right answer falls somewhere between these two submissions, in that Defendant was entitled to trust the Cheltenham unless matters came to its attention which reasonably might cause it to doubt what it was being told. At that point obligations to scratch below the surface and to examine the underlying material might well arise.
- May 2004 is a different month from the others in the sense that more evidence is available, namely the daily logs which the police took from the home after the events of 29th May [5/1237-1320]. This is described as the 'Venue, Activity, Suitability' ('VAS') book. Undoubtedly, it provides a more detailed perspective.
- 3rd May 2004 was characterised in the VAS book as a 'mixed day'. AH broke a door handle and a freezer handle, but was able to mend them both [10/2883]. 4th May was a much better day. Between 6th May and 14th May AH was at home; he had to be picked up from there because he failed to return as timetabled on 12th May [7/2306]. The next LAC review had been scheduled for 14th May, and in advance of that, on 10th May, the Cheltenham prepared a report [10/2883]. It was in very similar terms to the report of 25th April which I have already examined. Most significantly for the Defendant's purposes, it noted a 'vast improvement', particularly but not exclusively at school.
- The Defendant local authority's report for the LAC was positive too [6/1806]. AH was described as 'polite, chatty, a pleasure'. His one week in custody in January that year was being seen as a 'turning point'. At the LAC review meeting itself [9/2520; 10/3030] it was noted that there had been no offending behaviour since the last review. To my mind, this understated the position: we have seen that there had been abscondences, and more importantly at least two incidents of criminal damage. On the other hand, I suspect that 'no offending behaviour' in this sort of context is taken by these professionals to mean 'no criminal behaviour which has come to the attention of the police'. Ms Gray was cross examined on the basis that there was a mismatch between the Cheltenham's report dated 10th May and the underlying material. She did not accept this (although for my part I discern a lack of congruence), but pointed out that a home monitors a child's every move on a 'micro' level, whereas the purpose of a report is to provide a more 'macro' view. I would tend to agree with that, and I have already made the point (see paragraph 63 above) that it was not generally incumbent on local authorities to examine the underlying data. I should make it clear that I do not find that this obligation arose here.
- Mr Ullstein examined the VAS book for the period 15th 28th May 2004 with at least two witnesses. I must say that it presents a troubling picture, both in the sense of portraying a clear portrait of a boy who was disturbed and refractory and in a sense more pertinent to the Claimant's case, namely that on the face of things there appears to have been something profoundly 'wrong' going on here which at least arguably might not have been managed properly.
- 15th May: AH failed to return at 15:00 hours, and when he did return at 17:45 he was under the influence of drugs [5/1283]. 16th May: a good day, but AH was smoking cannabis [5/1281]. 17th May: a very bad day; abusive to staff with numerous incidents of absconding [5/1279]. AH was sanctioned for this. Significantly, although the point clearly cuts both ways, the Cheltenham was sufficiently concerned to contact the Defendant to ascertain whether there was anything in the LAC review which might explain a change in behaviour. From this it might reasonably be inferred that the previous three days had represented a deterioration in AH's comportment. Ms Warwyn telephoned the home for updates on the position during the day.
- 18th May was a very good day [5/1275], but the following day was decidedly not [5/1272] with AH absconding and being rude and arrogant to staff. 20th May was 'mixed', but 21st 24th May were very much better, save that on 22nd May AH was caught smoking cannabis in his bedroom [5/1261]. There was a further act of criminal damage on 25th May [5/1256] and abscondences on 26th - 28th.
- I have not yet noted all the occasions on which AH was found to be smoking cannabis. It is convenient to set these out now, omitting those already cited: viz. on 4th May [5/1307], on 17th May [5/1280], 18th May [5/1277], 23rd May [5/1261], 27th May (a possible instance) [5/1251] and 28th May [5/1246]. Mr Ullstein asked the Defendant's witnesses whether they drew the inference that AH must have obtained the money to buy his cannabis by involvement in criminal behaviour outside the home. They were not prepared to speculate. I am not prepared to speculate either, but I must say that applying some basic common sense I do consider that Mr Ullstein's point is well made. Although it is clear from the document base that the Defendant was told about the abscondences (I should add that on some occasions the police were not: see [7/2020-2041]), the better view on the evidence is that they were not informed about AH's cannabis use over the second half of May. Certainly with the advantage of hindsight, this could be seen as an important potential trigger to the events of 29th May. Even so, this point enables Mr Ullstein to advance the Claimant's case to second base but not, I am afraid, to home base. The fact remains that if it is correct to conclude that the Cheltenham was remiss in failing to transmit important information to the Defendant over this period (rather than waiting for the monthly report), that is a failure which cannot be visited on the Defendant. As I have pointed out, it is not as if the Defendant's social work team was failing to take an interest in AH over this period.
- I need to return now to the point I made under paragraph 67 above. I have said that the picture is a troubling one. One possible inference is that had the daily logs been available for early periods we would have seen a similarly concerning pattern of behaviour. Another is that AH's behaviour markedly deteriorated after the May LAC review. On reflection, I am simply not prepared to draw the first of these inferences. It would be tantamount to saying that the Cheltenham's monthly reports were misleading. There is no other evidence which begins to suggest that the Cheltenham, notwithstanding some of the failings which were later discovered, was other than frank with the local authority about AH. Their reports appear reasonably balanced, and the Cheltenham had little motive to distort the perceptions of the professionals at Bedford. Furthermore, the Defendant would be entitled to say in this regard that had this action been brought timeously there would have been a much better chance of obtaining other relevant documentation from the Cheltenham so that the Court could assess the matter properly. For all these reasons, I find that AH's behaviour did deteriorate over the fourteen day period following the LAC review in mid-May. Although this deterioration does not fully explain the events of 29th May, it provides a measure of insight into it. But the difficulty from the Claimant's perspective is that this deterioration comes too late in the day to avail his case.
- On 2nd June 2004 CSCI made an unannounced inspection of the Cheltenham. A number of failings were reported [5/1207-1224.2]. For example, the inspectors examined the placement reports for two boys (not, it seems AH and DCF) and assessed them to be inadequate: in particular, crucial documentation had not been collected in one place. Further, the Cheltenham had failed in its regulatory requirement to send reports to CSCI. In the light of these ascertained failings, and others, the home was closed with the Cheltenham's agreement at the end of June 2004.
- I was also asked by Mr Ullstein to bear in mind the evidence of Bernard Campion prepared for the purpose of the criminal trial [2/380]. This paints a picture of a somewhat unruly establishment. Even so, this type of evidence was not available to the local authority at the material time, and I do not believe that it takes the matter any further.
- Unsurprisingly, the Bedford Local Safeguarding Children Board commissioned a Serious Case Review from Mr David Lambert CBE, Independent Chair, Norfolk ACPC. He reported in September 2005 [6/1551]. The report covers the chronology from 1994-2004, and is critical of many aspects of Bedford's performance over this period, but says very little about AH's time at the Cheltenham. A number of witnesses were asked about the following opinion set out in paragraph 2.9.1 [6/1605]:
"With hindsight it comes as no surprise that AH, as a young person, would commit and be convicted for a violent sexual act. To some the surprise is that this had not happened earlier and involved even greater violence. As the detail of AH's life story has shown, from an early age there were many signs and pointers that would strongly suggest that his future sexual and personal development would be problematic and that, without appropriate intervention and help, the consequences for his life as an adult would give rise to great concern."
This opinion has to be read in conjunction with paragraphs 2.9.2 and 2.9.7, in particular the reference to research suggesting that various psychodynamic elements (Professor Sines' apt terminology) created the makings of a dangerous person. The Defendant's lay witnesses tended to agree with paragraph 2.9.1, emphasising though the adjectival phrase 'with hindsight'. Ms Gray did not, pointing out that a child's sexual behaviour is often most unpredictable. In the end, though, I abstain from coming to a conclusion on this issue, simply because (a) there are dangers in mixing hindsight and foresight, and it is so easy to be wise after the event, and (b) the Court has not received expert evidence from all the right quarters to enable a properly informed judgment to be reached. Instead, I prefer to observe that even if paragraph 2.9.1. may be read as, in part, a foresight judgment, unless it be said that AH should have been managed in a completely different way, for example placed in secure accommodation, which is not the Claimant's case, this point does not possess many teeth. The Defendant of course knew about AH's offending history including the gross indecency perpetrated on 27th November 2001, and in those circumstances needed to keep him well in scope of the radar whilst under the Cheltenham's direct care. The Defendant would say that the same principle applies to all the troubled children in their care, admittedly to varying degrees, and that they approach each different child on a case by case basis.
- Having set out the essential factual narrative, albeit at some length, I move on now to address the issue of limitation.
- As would be the case if this were an application under section 33 of the Limitation Act 1980 in a common law action for personal injuries, I have an untrammelled discretion. I must take into account the fact that the limitation period under the HRA is one year, not three years, and that it is clearly the policy of the legislature that HRA claims should be dealt with both swiftly and economically. All such claims are, by definition, brought against public authorities, and there is no public interest in these being burdened by expensive, time-consuming and tardy claims brought years after the event.
- I was taken to a number of authorities. The fact that the Claimant was a minor until November 2011 does not avail him: see Rix LJ in M v MoJ (2009) EWCA Civ 419 (paragraph 30). In Cameron v Network Rail (2007) 1 WLR 163 the Court had regard to all the circumstances of the case, and was not persuaded that the Claimant had demonstrated good grounds for an extension (paragraphs 43-47). In Dunn v Parole Board (2009) 1 WLR 728 Thomas LJ (as he was then) observed that the Court should not gloss the word 'equitable' in section 7(5)(b). In short (paragraph 32, at 743F-G):
"In my view, it is desirable to follow a similar approach in relation to the HRA and not to list the factors or to indicate which factor may be more important than another. It is for the court to examine in the circumstances of each case all the relevant factors and then decide whether it is equitable to provide for a longer period. It may be necessary in the circumstances of a particular case to look at objective and subjective factors, proportionality will generally be taken into account. It is not in my view appropriate to say that one particular factor has as a matter of general approach a greater weight than others. The court should look at the matter broadly and attach such weight as is appropriate in each given case."
- In Jeffrey and others v SST (2004) EWHC 2772 (Ch) Lindsay J stated that the absence of prejudice is a highly material factor but it is not in itself conclusive in favour of an extension of time being granted (paragraph 36). Delay should always be a relevant consideration.
- I have also considered the extent to which I should apply the common law principles relevant to section 33 by analogy. For example, is there a 'heavy burden' on the Claimant to persuade me to extend time (per the Court of Appeal in B v Nugent Care Society (2010) 1 WLR 516)? Although the burden of persuasion is undoubtedly on the Claimant, my starting point is that it is not necessarily a heavy one. I prefer to apply the more open-textured approach laid down by Thomas LJ. Nor do I think that there is any burden on the Claimant to prove the absence of prejudice. This is an assessment I must make having heard all the evidence. On the other hand, I do accept Mr Bishop's submission that I should banish from account my assessment of the substantive merits of the case. Had this been a trial of limitation as a preliminary issue, I would have taken the broad merits into account (see, by analogy, AB v MoD (2013) A.C. 78), but it is not. I am deciding the limitation issue first in the context of a trial on all issues.
- The Defendant has provided me with a helpful chronology relating to the course of the litigation to date, and I gladly adopt it, with some modifications.
July 2004: C's mother instructed Hooper & Wallen, solicitors in Torquay, to handle claims to the CICA and against the C's assailant [1/270]
November 2004: C's solicitors advised C's mother of a possible claim against the Cheltenham [1/271]
February 2005: C applied for legal aid for investigating claims against The Cheltenham and the local authority [1/286]
May to Sept. 2006: C obtained police witness statements and documents, including VAS book detailing AH's behaviour on a daily basis, restraints, sanctions and supervision levels whilst at the Cheltenham in May 2004
April 2007: C's conference with Counsel. Told no hope of a claim against the Cheltenham [1/273]
June 2007 to Nov. 07: C's current solicitor (Irwin Mitchell ("IM")) instructed; obtained full file for both CICA and negligence claims in November 2007 [2/301]
January 2008: IM spoke to Leading Counsel on the telephone, who advised that "further investigations" were necessary to consider a claim against The Cheltenham.
January 2009: Leading Counsel provided a written Advice, having been chased in August 2008. He advised no prospects of a common law claim against either The Cheltenham or D. Leading Counsel also advised there was an "arguable" claim under the HRA [2/303].
January 09 to March 11: C's solicitors attempted for no clear reason to obtain documentation concerning AH's medical history from the police [2/320/1]. They asked D for documentation concerning AH's period as a looked after child for the first time in October 2009
17th October 2011: Pre-action disclosure hearing. In response to D's submissions that a claim under the HRA was statute-barred, C's Counsel submitted that there was a potential claim in negligence for which time was still running [2/349]
28th October 2011: C issued proceedings, wrongly thinking that the limitation period was about to expire [2/310]
- Mr Bishop invited me to address each period of apparent delay in order to assess whether it was fairly designable as such; and, if so, its culpability. I now take up that invitation.
- The application for legal aid was made approximately three months after solicitors' initial advice; it is unclear why this was so. More importantly, the Claimant cannot in my judgment explain why it took up to 18 months to obtain police witness statements and documents, still less why no approach was made to either the local authority or the Cheltenham advising them of the possibility of a claim or seeking documents from them. I have been told that in April 2007 junior counsel advised that there was no hope of a claim against the Cheltenham, but it is unclear whether he was instructed to consider the position against the local authority, either at common law or under the HRA.
- In June 2007 Irwin Mitchell were instructed after initial procrastination by the Claimant's mother. They are extremely experienced in this type of work. Unfortunately, it was not until November 2007 that the case holder was able to obtain the full CICA and negligence files from Hooper & Wallen. Having examined the reasons for this (delay in obtaining payment from the LSC), I do not find that this period of delay was culpable. In January 2008 Irwin Mitchell spoke to Leading Counsel who advised that 'further investigations' were necessary. He was instructed to give a written advice in August 2008 but did not in fact do so until January 2009. In my view, this was unexplained and culpable delay in relation to the whole 12 month period. Most significantly, Leading Counsel in the end advised without the benefit of any further investigations and in the absence of any attempt to obtain documents from the Cheltenham or the local authority. The upshot was that Mr Ullstein advised that there was no possibility of a claim at common law, but that an HRA claim was 'arguable'.
- By January 2009 the limitation period for the HRA claim had expired: the first anniversary of the cause of action was 29th May 2005. Regardless of whether it was already too late to being proceedings under the HRA, I agree with Mr Bishop that at the very least there was now a heightened obligation to proceed with expedition: to obtain documents from the Cheltenham and the local authority (the latter was more important in my view), and if necessary to issue protective proceedings. That said, by 2009 it was already probably too late.
- Instead, the Claimant's solicitors did not progress matters with the requisite degree of urgency. It is patent that the whole tempo was dictated by their erroneous belief that the Claimant's limitation period did not expire until the anniversary of his 21st birthday. This may be an explanation for the delay but it is hardly an excusable one.
- There was also culpable delay in respect of the Claimant's solicitors' endeavour to seek medical records from the Police. It remains unclear to me what their purposes were in this regard. Their first communication with the Defendant was in October 2009 when, unfortunately, their request for documentation was not accompanied by even a succinct summary of the basis of claim. I agree with Mr Bishop that this was unhelpful. The Claimant's solicitors' attempts to obtain relevant documentation from the local authority were hampered by the latter's inability to find AH within the prison system (if he was still there: his minimum term had expired by July 2008, giving credit for time spent on remand) and obtain his consent to disclosure. In my view, Irwin Mitchell should have made their own expeditious inquiries of the prison authorities to ascertain AH's whereabouts, failing which they should have applied for an order for pre-action disclosure, as indeed they were compelled to do on 10th March 2011 [2/308, para 67].
- The Claimant's Skeleton Argument filed for the purposes of the pre-action disclosure hearing returnable on 17th October 2011 mentioned the possibility of a claim at common law. Mr Biggs, the Claimant's solicitor, was asked whether he was troubled by this (he was not the case holder at the time), and he said that he was. So am I. If junior counsel was intent on going off on a frolic of his own, however well-intentioned, the Court should have been told the gist of Leading Counsel's contrary advice. It is an exercise in speculation, though, what the Court would have done had it known the true position.
- Proceedings were issued shortly before what was believed to be the date the Claimant's limitation period was about to expire without the benefit of the documents ordered to be disclosed. Mr Bishop points out that this shows that proceedings could have been issued in 2009, if not earlier. I agree with him to some considerable extent, and certainly believe that protective proceedings could and should have been issued much earlier; but there is some force in Mr Biggs' point that by the time proceedings were issued the advent of documents was expected.
- In my judgment, the Claimants' solicitors' delay was lengthy as well as culpable. I fully understand the difficulties inherent in getting a claim of this complexity 'off the ground', and had proceedings been issued as late as the summer of 2008 (about one year after Irwin Mitchell was instructed) I would have been more favourably disposed to grant an extension of time.
- Mr Bishop argues that the local authority has been prejudiced by the delay. Here, I am not convinced that he is on such strong ground. He submitted that the test is 'is the Defendant likely to be prejudiced by the delay?' However, in my judgment such a test would be relevant to litigation where the Court is determining limitation as a preliminary issue, but not to the present situation where a full trial is not merely in the offing but has in fact occurred. I am able to assess the issue of prejudice on an actual not an anticipatory basis, drawing appropriate deductive conclusions where appropriate. Although there were occasions where the Defendant's witnesses were struggling to recall matters of fine detail (and I take that into account), my assessment is that in the main they were not significantly hampered by the delay. As regards documents, Mr Bishop identified a number of areas where the documentary base is sparse, but (without prejudice to the incidence of the overall burden of persuasion) one cannot know what the position would or might have been had earlier applications for pre-action disclosure been made. There is a paucity of documentation from the Cheltenham (e.g. the daily logs; behavioural management plans; risk assessments etc) but we know that the home was closed in June 2004. I do not infer that the Cheltenham destroyed relevant documentation upon closure, but the fact of closure has rendered the obtention of documentation more difficult. Moreover, I see force in Mr Ullstein's submission that the Court should be more interested in the Cheltenham's material held on the local authority's file (although this point cuts against aspects of his case on liability), and I also consider that in the absence of documentary evidence which might have been available at an earlier stage I should be very slow to draw inferences adverse to the Defendant. This last point applies not merely to documents such as behavioural management plans but also to those surrounding the events of 18th February 2004 in relation to which there are clear gaps. Overall, I consider that the Court is able to achieve justice in relation to any prejudice which might fall on the Defendant on account of the culpable delay by tending to give the local authority the benefit of the position where reasonable evidential dubiety exists on documentation which is believed to be incomplete. I should say that this point is particularly relevant as regards the events of 18th February 2004.
- Mr Ullstein urges me to show indulgence to the Claimant on the ground that the delay is hardly his or his mother's fault, and she should not be left with the spectre of having to sue her solicitors for their delay. I agree that the delay is not their fault but in my judgment this is not a relevant consideration. Further, I cannot ignore the fact that I will be coming to the conclusion that the Claimant would have no claim against his solicitors for other reasons.
- Thomas LJ mentioned the issue of proportionality, and I now come to it. Proceedings of this nature are extremely expensive to mount and advance, and difficult to prove. The local authority has had to obtain three detailed witness statements from its employees and complex expert evidence, and expend a considerable amount of managerial time in defending this case. I regret to say that I agree with Mr Bishop that this claim, even if made out under Article 8 of the Convention, would not have been very valuable. I have considered the approach taken to just satisfaction under Article 41 of the Convention by the European Court of Human Rights in E v UK, (loc. cit., paras 120-124). I must take into account the fact that the claim under the CICA has been accepted, that some regard must be had to the Claimant's actual or probable award under that Scheme, and that it is unlikely (as my subsequent findings make clear) that, on the balance of probabilities, any Article 8 violations caused the Claimant's injuries as opposed to contributed to the risk of their occurring. The highest it may be put is that they might have done. The Claimant's Schedule of Loss is entirely unrealistic for these purposes.
- My overall approach is to weigh up in the balance all the circumstances of this case, including in particular the culpable delay I have identified, the length of it, the (limited) degree of prejudice to the Defendant, and the issue of proportionality. Having carried out this exercise and having regard too to the issue of overall fairness which Mr Ullstein urged me to consider, I have come to the conclusion that it would not be equitable to extend time under section 7(5)(b) of the HRA. It follows that this claim fails for that reason alone.
- However, I have also come to the clear conclusion that it would not be right for me to leave the matter there. I have heard detailed evidence as well as full argument on all the substantive issues, and in my view I must determine them. I do so in the context of my finding that the Defendant has been prejudiced by the delay to some extent, and I therefore make some allowances for that; in particular, I will not draw inferences adverse to the Defendant in areas where I consider that a timeous claim might have supplied me with relevant evidence.
Findings on the Substantive Issues
- I have identified the first substantive issue as being: was there a real and immediate risk of serious harm to the Claimant which the local authority knew or ought to have known about? I frame the issue in that way because I have already explained in this judgment why I have come to the conclusion that the Osman test applies to this claim, notwithstanding that the Claimant has chosen to bring it under Article 8 of the Convention rather than under Articles 2 and/or 3.
- Mr Ullstein agrees that if this is the right test then his client could not hope to meet it. For the avoidance of doubt, I should explain why he has rightly made that concession. The risk manifesting itself in the form of AH was 'real' but it was not 'immediate'. Most pertinently though, it was not a risk specific to the Claimant; it was a risk to the public in general. Although that would be sufficient for many of the purposes of the common law, it is quite insufficient for the purposes of the Convention. So, the claim also fails for this reason regardless of all others.
- But I must proceed to consider the issues on the hypothesis that I am wrong about this and a lower threshold applies. Mr Ullstein puts the threshold in this way: did AH pose a risk to the community in relation to criminal acts including physical violence which the Defendant knew or ought to have known about? Mr Bishop sought to persuade me that even that test was not met: it was not foreseeable that AH might commit violent acts outside the home, still less acts of such seriousness that the Article 3 threshold was met. I reject that submission. In my view, having regard to all the circumstances of AH's case, including in particular the history between 2001 and 2004, his criminal record, and what had happened at the Cheltenham between January and May 2004, the Defendant ought to have assessed him as being a risk to the public at large. The distinction between violence committed within and without the home is really one without a difference: to discern such a difference is to mistake propensity for opportunity. Put bluntly, he was a potentially dangerous individual who was capable of committing acts of grievous bodily harm.
- This leads me then to the second main substantive issue I have identified, namely whether the Defendant took all reasonable steps to nullify or mitigate the risk. This issue entails an analysis of all the sorts of considerations which would be familiar to a court trying a negligence action at common law, once the existence of a duty of care has been established.
- Before addressing this issue in terms of the Claimant's pleaded case, it is necessary for me to say something about the witnesses I have heard and then to set out some conclusions of a more general nature.
- Mrs Susan Picton was a transparently honest and helpful witness who is still suffering emotionally from the appalling events of 29th May 2004.
- Mr Biggs, the Claimant's solicitor since early 2012, was also an honest, helpful and reliable witness who did not attempt to evade any of the questions put to him in cross examination.
- The Defendant's three lay witnesses, Graham Buddery, Anita Harrison and Amanda Warwyn, were honest witnesses who did their best to assist me. On the other hand, they were somewhat defensive in giving their evidence and often unable to understand the point of certain questions, preferring on occasion not to answer them directly. For example, I asked Ms Harrison (in the context of paragraph 2.9.7 of the Serious Case Review) whether she agreed with the conclusion that AH was dangerous. She was very slow to accept this, initially failing to understand my question at all, or rather the point of my asking it. From Ms Harrison's perspective, AH was vulnerable and traumatised, and should be seen and understood in that light. The point I was seeking to put to Ms Harrison was simply that AH was simultaneously vulnerable, traumatised and dangerous. Elsewhere, Mr Ullstein made a number of very good points in cross examination which these witnesses were either slow to understand or, where appropriate, to concede. For example, at least one witness agreed that AH was manipulating the situation to do exactly what he wanted, and when taken to the Cheltenham documentation witnesses were also disposed to row back from some of the sanguine assessments that were being given. Overall, my impression of the Defendant's lay witnesses was that they found it difficult to see beyond the rules and regulations, or to 'think outside the box'. Having said that, I am deeply conscious of the fact that social workers are working with extremely difficult and challenging children in usually under-resourced contexts. I must also accept the concerted view of these witnesses that AH was by no means the worst child with whom they had to work.
- As for the expert witnesses, I formed a generally favourable impression of Ms Gray. She was a careful and precise witness who did not overreach the extent of her knowledge or expertise, nor seek to advocate the Defendant's case. She was able to support her advice to the court with chapter and verse, being well acquainted with the voluminous material as well as the regulatory framework. At no stage did she fence with Mr Ullstein and rarely did she do other than answer his questions with fairness and courtesy, conceding points where necessary.
- Unfortunately, I was far less impressed by Professor Sines. He is Professor in community health nursing at Buckingham University but has very little experience in the realm of social work. He has plentiful experience of working in multi-agency contexts, in particular with children with special educational needs. His forte is behavioural management. Professor Sines explained to me that he was able to come to this case from the perspective of what he considered it would have been reasonable for a social services department to put into place, but would have to yield to Ms Gray on social work issues. I am not sure that I understand the distinction he is seeking to draw; it appears to me to be one without a difference. Overall, Professor Sines' perspective has more of the hallmarks of academia than 'hands on' practice. Thus, when for example Ms Gray told me that she felt that the level of supervision and monitoring of the Cheltenham which this local authority effectuated between January and May 2004 was reasonable, in the sense that a consensus of social workers and managers would share her view, I must prefer her evidence to Professor Sines, unless I believe that she was plainly wrong. In this particular instance, I do not.
- I should expand on what Professor Sines means by a behavioural approach. Although he also made reference to the psychodynamic factors operative in AH's case, the behavioural approach is predicated on the assumption that dysfunctional behaviours are capable of being modified by a system of incentives and disincentives which retrain aberrant behaviour. Professor Sines called this 'operant conditioning' and referred to 'Thorndike's law of effect', and a system of sanctions and rewards. Overall, this thesis was that a sounder behavioural regime, supported by explicit behavioural plans and multi-disciplinary strategies, should have been applied by the Cheltenham at the instigation of the local authority. When I taxed him about this at the very end of his evidence, Professor Sines fairly conceded that such an approach might have achieved benefit in AH's case. I am far from convinced that he is right about this, but it is unnecessary for me to make a definitive finding.
- Apart from the above, a real difficulty I had with Professor Sines' evidence is that he was somewhat of an advocate of the line he was taking rather than a dispassionate advisor to the court. He descended into the arena. Furthermore, there were too many occasions in my view when he was compelled to concede in answer to Mr Bishop's questions that his main report or what he said in the expert's joint statement was incorrect. I have in mind, in particular: 1/257.8, 1/257.13 and 1/257.21. There were also occasions on which Professor Sines had erroneously paraphrased underlying documentation in this report, always to the Claimant's apparent advantage. There were other occasions on which Professor Sines had simply misread documents: e.g. the risk assessment dated 28th April 2004 [7/2088] which he thought had been prepared for the purposes of the hearing on 21st January.
- Despite these deficiencies in Professor Sines' evidence, it should be recorded that at the end of the day many of the issues which I have to determine under this rubric are really for the court rather than the experts. The Claimant's mother should not feel that she has been significantly let down by him.
- I now propose to make some points of general application. These may help to provide some of the context for the specific criticisms the Claimant makes of AH's management at the Cheltenham after January 2004.
- First, Professor Sines accepted that the Cheltenham was an acceptable placement for AH at this juncture, and that the secure accommodation route was not viable, at least quite yet. Professor Sines also commented on the Cheltenham's 'Statement of Purpose' [10/2853] which made clear that this home was level to the challenge of managing 'damaged' children who had been subjected to physical, sexual or emotional abuse [10/2855]. He drew attention to [10/2858] which referred to SICS Ltd's policy on behavioural management. His criticism of the Cheltenham was that there was no evidence that it had provided the Defendant with a behavioural management plan in line with that policy. He had no other fundamental criticism to make of the 'Statement of Purpose'. But the difficulty with the criticism which Professor Sines confined himself to in this context is that the behaviour management policy is unavailable at this distance, and is not a document which one would inevitably have expected the Defendant to have sought. In its absence, the Court cannot infer that the policy required behaviour management plans to be produced, or (even if it did) to be sent to the placing authority. Professor Sines might be contending that it was best practice for this to happen, but he failed to cite any support for this view, if that was his view, and I am not prepared to accept him on this point. Furthermore, after all the delay which has accrued it would be unfair to draw adverse inferences to the Defendant from the material I have seen.
- It follows that I must proceed on the basis that the Cheltenham was an acceptable placement in all material respects, or at least reasonably perceived to be such by the Defendant. Furthermore, there is no evidence I have seen which suggests that the Cheltenham ever began to come to the conclusion that AH was too tough to handle. Indeed, the evidence points the other way.
- Secondly, it is appropriate to consider whether the Defendant put in place a proper system for superintending the management of AH. Professor Sines made reference to a number of sections and regulations which he found it impossible to substantiate. I have already referred to the applicable Statutory Instruments and Ms Gray assisted me further as to the frequency of LAC reviews, visits to the home (every six weeks) and the documentation (care and placement plans, reports etc.) which are mandatory requirements. There is no evidence that these requirements were breached. Of course, in addition to what the law required there is clear evidence in the documents of phone calls, home visits and other informal exchanges. Mr Ullstein submitted, on the back of Professor Sines' evidence, that a more stringent supervisory regime should have been implemented, but this seems to me to be pure assertion. The local authority took a professional view as to what was required based on their resources, experience and judgment, and there is no admissible evidence before me to indicate that this was outside the range of reasonable responses open to them.
- Thirdly, it was a constant theme of Mr Ullstein's cross examination of the Defendant's lay witnesses that they should have asked to see the underlying documentation rather than merely to rely on the Cheltenham's reports. But Ms Gray told me that this would not be standard practice, and I would agree. As I have already held, the local authority would have needed to have been alerted to some likely error or misrepresentation in the material it was being sent before it would have been reasonably incumbent on it to have delved further.
- Fourthly, Mr Buddery in particular told me that the Cheltenham was the only practical option left for AH; there was none other. Mr Ullstein submitted that this was both bare assertion and implausible. Whereas it may well have been the case that in extremis the Defendant local authority might have been able to find an alternative placement (and this is relevant to what happened on 18th February 2004, but not otherwise), the difficulties in securing one must not be under-estimated.
- Having set out some conclusions of a general nature, I now turn to address the specific criticisms made by the Claimant of AH's management at the Cheltenham under the aegis of the Defendant. I will follow the sequence taken in the Particulars of Claim as replicated in the parties' closing arguments. I will not address those points which are no longer being pursued.
- The first specific criticism is that the Defendant wrongly caused the ISSP, together with the curfew and tagging requirements, to be lifted.
- I have already pointed out that the Defendant reasonably believed that Torbay YOT considered that the ISSP programme as well as the tagging could be delivered at the Cheltenham; it was told as much before the Order was made on 21st January [9/2449]. However, it soon transpired, for reasons which remain opaque, that the local YOT was unable to put the ISSP requirement in place (see the emails at [9/2457 and 2458]). AH was returning to the Youth Court in any event on 18th February 2004 and the local authority decided to make some sort of application to that court to vary the Order made on 21st January to the extent that the ISSP and tagging requirements be lifted. An email dated 17th February 2004 [9/2463] indicated that YOT Torbay and the Cheltenham would prepare reports for the purposes of the hearing the following day, and indeed we know that the latter did prepare a report on that very day [6/1760-1763]. I am prepared to infer that the Youth Court was shown this document including the references within it to the offending perpetrated on 5th and 6th February. To complete the evidential picture, I was shown documents which stated that the ISSP element was lifted because 'it was not deemed to be a viable option' [11/3068.7] and/or it was 'no longer appropriate' [11/3068.8].
- It is quite clear that the reason that the Defendant applied to the Youth Court on 18th February 2004 for the ISSP element to be lifted was that YOT Torbay could not deliver the enhanced supervision and surveillance which this package entailed. Had YOT Torbay been able to do what it said it could deliver, it is not plausible than an application for revocation would have been made at such an early stage. However, the Defendant was not at fault for permitting this state of affairs to arise: insofar as culpability resided anywhere, it rested with the Devon County Council. The Claimant submits that the Defendant failed to put full information before the Youth Court on 18th February, and also failed to look for another placement. I reject both submissions. I have already explained that it is likely that the Youth Court was appraised of the events of 5th and 6th February, and in reaching that conclusion I am not prepared to draw an inference adverse to the Defendant at this temporal distance. Nor am I prepared to reason backwards from the suggested implausibility of the Youth Court lifting the ISSP element had it known of the full facts. Furthermore, whereas I have already said that another placement might have been found in extremis, I am not driven to conclude that the Defendant acted unreasonably in failing to take steps to find one in advance of this hearing.
- Ms Gray stated that the Youth Court was placed in a very difficult position, and I agree. On the one hand, the ISSP element was an important aspect of the sentence imposed on 21st January, and AH must have been within an ace of being sent down. On the other hand, the Cheltenham appeared to be a not unsatisfactory placement for AH and on any view was working out far better than 14a Dunstable Street. If the choice appeared to be one between keeping the ISSP but allowing AH to return home with all the obvious attendant risks, and lifting the ISSP and leaving AH at the Cheltenham, I myself can see why the Youth Court chose the second option. Professor Sines ultimately agreed with this, although pointed out that a multi-disciplinary meeting should first have taken place.
- Mr Ullstein submits that had the Youth Court declined to lift the ISSP, it is inevitable that a new placement would have had to be found for AH so that he would not have been at Torbay at all. Had the Youth Court declined to lift the ISSP, it is true that AH would not have remained at the Cheltenham, but I consider that he would have gone home instead. What would have happened in those circumstances is an exercise in extreme speculation. From the Claimant's perspective, AH would have been miles away from him, which is all that matters in terms of the events of 29th May. But from my perspective (not that I am other than wholly sympathetic to the way in which the Claimant and his mother would wish to view this), the issue is this: was the Defendant at fault in relation to what happened on 18th February? I have already, I trust, already sufficiently explained why I have concluded that it was not.
- The fact that the Youth Court might not have lifted the ISSP does not avail the Claimant either. It is true that the court might have made a different decision . The question for me is whether the Defendant placed all relevant information before that court and/or took all appropriate steps to explore alternative options.
- The second specific criticism is whether the Defendant failed to require the Cheltenham to impose similar restrictions to the ISSP. In essence, what the Claimant means by this is that the Cheltenham should have been required to carry out more intensive supervision of AH in a manner broadly analogous to the supervision and surveillance performed by a YOT in the discharge of any ISSP requirement. However, in my judgment the level of supervision carried out by the Cheltenham, as itself superintended by the Defendant, was a matter for its professional judgment having regard to the ever-fluctuating circumstances of the case. The documents show that AH was very closely supervised: this was the very essence of the regime at this home. Furthermore, I cannot accept the Claimant's submission that more intensive supervision at the home (as distinct from supervision outside the home) would have made any material difference to the outcome.
- The third specific criticism is that AH should not have been allowed out unsupervised. My initial understanding of this submission was that it relates to what happened on 29th May, but on that occasion AH was in fact supervised. It has become apparent from Mr Ullstein's closing argument that what the Claimant is now saying is that had AH been prevented from going out unsupervised before 29th May then it is probable that he would not have indulged in the illegal use of drink and drugs, and the spiralling decline in his behaviour would not have occurred.
- I have already paid considerable attention to the 14 day period leading up to 29th May 2004 during which I have ascertained a deterioration in AH's behaviour. I am anxious about the Cheltenham's decisions to continue to give AH 'mobility' on an unsupervised basis when it knew or ought to have known that he was probably obtaining drink and drugs via illegal means. But, this is not a claim brought against the Cheltenham, and in my judgment it was not incumbent on the Defendant to carry out further direct checks on or of the Cheltenham over this relatively short space of time. I have read, and re-read, Professor Sines' contributions to this issue [1/257.8] but remained unenlightened. Even approaching the issue without expert evidence, and even allowing the Claimant to modify his case to advance this point, I reject it.
- The fourth specific criticism is that the Defendant failed to ensure or require the Cheltenham to ensure that when AH was allowed out he was kept under sufficiently close supervision to prevent him from absconding on 29th May. It is clear from the daily log that Mr Raymont carried out some form of rudimentary risk assessment on the afternoon of 29th May and concluded that AH could be appropriately allowed out of the home with one other on a similar basis, subject to both of them being supervised by three members of staff. This ratio of 3:2 is criticised by Professor Sines on the basis that only 2:1 would have been reasonable. In my judgment, Professor Sines was shooting from the metaphorical hip on this point; it was mere assertion. Ultimately, this was an operational decision for the home, not for the local authority, and I fail to see how any causative negligence attaches.
- The Claimant also submits in this connection that such supervision as there existed was insufficiently close: for example, according to Mr Coulton's evidence two of the supervisors were playing frisbee when the boys disappeared [2/499]. This is the type of operational negligence which resonates with the facts of Home Office v Dorset Yacht (1970) AC 1004, although there the prison officers retired to bed, leaving the boys to their own devices. The Claimant is entitled to submit that the Cheltenham's employees might just as well have been asleep for all the difference it made. That said, this is precisely the sort of adventitious, operational error which confines itself to the Cheltenham and does not extend to this Defendant.
- It also needs to be recognised that there were clear limits on the powers the Cheltenham's employees might deploy in the event of an abscondence. Mr Ullstein sought to draw comfort from the fact that there were physical restraint powers which could be used within the confines of the home. That is true, but in my judgment these powers were based on the premise, whether arising at common law or under the Criminal Law Act 1967, that reasonable force may be used to prevent crime or harm to the person. Unless it might be said that AH was on the point of committing a criminal offence when he absconded, there would clearly have been difficulties, to put it at its lowest, in physically restraining him. The Claimant's alternative case, that firm verbal persuasion should have been used, is all very well but it would have led nowhere. It should also be recalled that the only scintilla of an opportunity the Cheltenham had to apprehend AH was at about 10pm on 29th May, but I will address that issue in a moment.
- The fifth specific criticism is that the Defendant failed to ensure that the Cheltenham took any or any specific steps to apprehend AH immediately he had absconded. The way in which this submission is advanced in paragraphs 76-79 of the Claimant's closing written argument is along the lines that the Cheltenham did not react in any way to the increased pattern of absconding in the second half of May 2004. As I have found, there was in my judgment a deterioration in AH's behaviour over that period, but having said that it was incremental rather than exponential. The real point here is that there is a wholly insufficient evidential basis for arriving at any conclusion that the Defendant was at fault. It should also be remembered that it is not the Claimant's case, on my understanding, that AH should not have been allowed out at all; his case instead is that there should have been greater supervision and greater instructions given, permitting for a rapid, effective response. As soon as the case is formulated in these terms, it is clear that it harnesses itself to operational decisions and judgments made by the Cheltenham rather than to the type of intervention the Defendant might have made.
- The sixth specific criticism is that the Defendant failed to instruct the staff at the Cheltenham that if AH was seen he was to be apprehended immediately and returned home, and to ensure that such instructions were carried out. I am far from clear how and why this differs from the Claimant's fifth specific criticism (on my numbering). The Claimant alights on the fact that at about 10pm an off-duty employee of the Cheltenham was working as a part time doorman at the 'Crazy Horse' nightclub [2/523] and had no more than a desultory exchange with the boys. This witness was aware that DCF should have been back home by 10.15pm, an event which was not going to occur. He would not necessarily have been aware that AH in particular had absconded. In any event, the witness was off-duty at the material time and could not reasonably have been expected to do more than he did, still less to have told the boys to wait until transport from the Cheltenham arrived. I regret to say that the better view must be that the boys would not have been so biddable.
- The seventh specific criticism is that the Cheltenham failed to provide a supervision and observation plan for AH in order to safeguard others. The Claimant based himself on Professor Sines' evidence that such a plan (the need for which I have seen no reference to in the bundles) should have been assembled, together with a behaviour management plan. In my view, there is no evidence that this was a regulatory, statutory or contractual requirement. What was required were risk assessments and supervision, both of which were within the operational discretion of the home. It was the Defendant's obligation to ensure that in general terms these duties were being discharged on the ground. I have seen no evidence that they were not.
- At this stage I should say something more about the issue of behaviour management beyond what I said under paragraph 104 above. Professor Sines' evidence was in danger of placing form over substance. We know from the daily logs, and from other available material (which is not complete), that the Cheltenham did have a system of sticks and carrots, sanctions and rewards. The Cheltenham also sought to modify AH's behaviour by setting up clear boundaries for him and attempting to lead him to ponder on, and to understand, the consequences of his actions. In practice, therefore, the essence of Professor Sines' system was in place, but without all possible documentation being completed. The sad reality is that AH was extremely difficult to manage. Even if the home failed to abide by its own procedures and practices at all material times (e.g. allowing AH to return to his mother on 6th April), these are not matters which can avail the Claimant against this Defendant.
- The seventh specific criticism is that the Defendant failed to ensure that thorough risk assessments of AH's behaviour were undertaken in order to safeguard others. I believe that I have already addressed this point. AH was being constantly monitored and there were daily risk assessments, albeit of a quite informal nature. There was no statutory obligation to perform these, or the weekly risk assessments of which Mr Ullstein makes specific complaint. Further, I agree with Mr Bishop that the delay renders it difficult for his clients to address all facets of this allegation.
- The Claimant's remaining criticisms are a repetition of the foregoing.
- This claim fails for three independent reasons: first, I have refused to extend time under section 7(5)(b) of the HRA; secondly, I have found that the Claimant has not satisfied the relevant test for the purposes of his claim under section 8 of the HRA involving Article 8 of the Convention; and, thirdly, I have found that the Claimant has failed to prove that the Defendant did not take reasonable steps to protect him from the criminal actions of AH.
- One can only speculate about why AH committed these appalling offences on 29th May 2004. It is too easy to conclude that he was so dangerous that offending of this sort was bound to occur sooner rather than later. I prefer to say that AH was a dangerous, volatile and unpredictable child whose behaviour was capable of significant variability. But something happened in the second half of May 2004 which increased the risk. Whether this related to his home visit between 6th and 14th May, his recent associations, his significantly increased predilection for cannabis, or to something else altogether is unclear. Fuelled by alcohol and drugs, these boys went on the rampage on 29th May 2004 and were a clear danger to the decent youth of Torbay. It is not difficult to depict all of this now, but at the time the picture was emerging, its contours were far from distinct.
- I have concluded on a number of grounds, both legal and factual, that the Defendant local authority owes no liability to the Claimant. This claim is accordingly dismissed, with judgment for the Defendant.
Note 1 It is convenient at this stage to footnote the relevant statutory provisions. The general power to make a Supervision Order lies under section 63 of the Powers of Criminal Courts (Sentencing) Act 2000. Under Schedule 6, paragraph 3, an ISSP is a specified activity which the court has power to attach to the S.O. It is not altogether clear whether the power to impose a curfew is a night-time restriction under paragraph 3 (where the maximum period permitted for a minor is 3 months) or a curfew order under section 37 of the Act (again, a maximum period of 3 months). As for electronic monitoring or tagging, the power to impose this requirement was originally created by section 38 of the 2000 Act but at the material time was to be found in section 36B (inserted into the 2000 Act by section 52 of the Criminal Justice and Court Services Act 2000). It is unclear from this section whether the tagging requirement could have been for more than 3 months. At all events, the 3 month period for which it was in fact imposed would have expired on 21st April 2004 had it not been revoked. [Back]
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