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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> X (Minors) v Bedfordshire CC [1995] UKHL 9 (29 June 1995)
URL: http://www.bailii.org/uk/cases/UKHL/1995/9.html
Cite as: [1995] Fam Law 537, (1995) 7 Admin LR 705, [1995] 3 FCR 337, [1995] 2 AC 633, [1995] 2 FLR 276, [1995] 3 All ER 353, [1995] UKHL 9, [1995] 3 WLR 152, 94 LGR313

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JISCBAILII_CASE_CONSTITUTIONAL

    Parliamentary Archives,
    HL/PO/JU/18/255

    P1 and others (minors) (A.P.) (Appellants) v. Bedfordshire

    County council (Respondents)
    In re M (a minor) (1994) (A.P.) and another (A.P.) (Appellant)

    In re E (a minor) (1994) (A.P.) (Respondent)
    Christmas (A.P.) (Respondent) v. Hampshire County Council

    (Appellants)

    Keating (A.P.) (Original Respondent and Cross-Appellant)

    v. Mayor etc. of the London Borough of Bromley

    (Original Appellants and Cross-Respondents)

    (Conjoined Appeals)


    JUDGMENT

    Die Jovis 29° Junii 1995

    Upon Report from the Appellate Committee to whom was
    referred the Cause PI and others (minors) against Bedfordshire
    County Council, In re M (a minor) (1994) and another, In re E (a
    minor) (1994), Christmas against Hampshire County Council and
    Keating against Mayor etc. of the London Borough of Bromley, That
    the Committee had heard Counsel as well on Monday the 10th as on
    Tuesday the 11th, Wednesday the 12th, Thursday the 13th, Monday
    the 17th, Tuesday the 18th, Wednesday the 19th, Thursday the
    20th, Monday the 24th, Tuesday the 25th, Wednesday the 26th and
    Thursday the 27th days of October last upon the Petitions and
    Appeals of P1, P2, P3, P4 and P5 (minors) suing by their next
    friend the Official Solicitor to the Supreme Court of 81 Chancery
    Lane, London WC2A 1DD, Kelly Mills (a minor) suing by her mother
    and next friend Trudy Page and also the said Trudy Page both of
    16 Stanley Rise, Chelmer Village, Chelmsford, Essex, Dorset
    County Council of County Hall, Colliton Park, Dorchester, Dorset
    DT1 1XJ, Hampshire County Council of The Castle, Winchester SO23
    8UJ and the London Borough of Bromley of Bromley Civic Centre,
    Stockwell Close, Bromley, Kent BR1 3UH, and upon the Petition and
    Cross-Appeal of Sefton James Keating, of 43 Steyning Close,
    Nottingham, London, SE9 4NG, praying that the matter of the
    Orders set forth in the Schedules thereto, namely Orders of Her
    Majesty's Court of Appeal of the 23rd day of February 1994 and
    the 29th day of April 1994, might be reviewed before Her Majesty
    the Queen in Her Court of Parliament and that the said Orders
    might be reversed, varied or altered or that the Petitioners
    might have such other relief in the premises as to Her Majesty
    the Queen in Her Court of Parliament might seem meet; as upon the
    cases of Bedfordshire County Council, the Mayor and Burgesses of
    the London Borough of Newham, the East London and the City Health
    Authority, Eileen Vizard, Martyn Oliver Edwards (a minor, by his
    father and next friend Derek Edwards), Mark John Christmas and
    Sefton James Keating lodged in answer to the said Appeals and as
    upon the case of the London Borough of Bromley lodged in answer
    to the said Cross-Appeal; and due consideration had this day of
    what was offered on either side in this Cause:


    HOUSE OF LORDS

    OPINIONS OF THE LORDS OF APPPEAL FOR JUDGMENT

    IN THE CAUSE


    P1 AND OTHERS (MINORS)

    (APPELLANTS)

    v.

    BEDFORDSHIRE COUNTY COUNCIL
    (RESPONDENTS)

    IN RE M (A MINOR) (1994) AND ANOTHER (A. P.)

    (APPELLANT)

    IN RE E (A MINOR) (1994) (A.P.)
    (RESPONDENT)

    CHRISTMAS (A.P.)
    (RESPONDENT)

    v.

    HAMPSHIRE COUNTY COUNCIL
    (APPELLANTS)

    KEATING (A.P.)
    (ORIGINAL RESPONDENT AND CROSS-APPELLANT)

    v.

    MAYOR ETC. OF THE LONDON BOROUGH OF BROMLEY
    (ORIGINAL APPELLANTS AND CROSS-RESPONDENTS)


    ON 29 JUNE 1995


    Lord Jauncey of Tullichettle
    Lord Lane
    Lord Ackner
    Lord Browne-Wilkinson
    Lord Nolan


    LORD JAUNCEY OF TULLICHETTLE

    My Lords,

    I have had the advantage of reading in draft the speech of my noble
    and learned friend. Lord Browne-Wilkinson. I am in entire agreement with
    his carefully detailed reasoning and with the conclusions which he has reached
    and I too would make the orders which he proposes.

    I would normally consider it wholly superfluous to add anything to
    what my noble and learned friend has said but in view of the importance of
    his conclusion in relation to the careless performance of a statutory duty I
    propose to add a few words of my own thereanent.

    - 1 -

    Where a statute confers a private law right of action a breach of
    statutory duty howsoever caused will found the action. Where a statute
    authorises that to be done which will necessarily cause injury to someone no
    action will lie if the act is performed with reasonable care. If. on the other
    hand, the authorised act is performed carelessly whereby unnecessary damage
    is caused a common law action will lie. This is because the act would, but
    for the statute, be actionable at common law and the defence which the statute
    provides extends only to the careful performance of the act. The statute only
    authorises invasion of private rights to the extent that the statutory powers are
    exercised with reasonable and proper regard for the holders of such rights.
    Thus careless performance of an authorised act rather than amounting to
    breach of a new duty simply ceases to be a defence to a common law right or
    action. This was. I believe, the situation which Lord Reid was addressing in
    Dorset Yacht Co. Ltd. v. Home Office [1970] A.C. 1004. 1030:

    "but there is very good authority for the proposition that if a person
    performs a statutory duty carelessly so that he causes damage to a
    member of the public which would not have happened if he had
    performed his duty properly he may be liable. In Geddis v.
    Proprietors of Bann Reservoir (1878) 3 App. Cas. 430 Lord Blackburn
    said, at pp.455-456:

    'For I take it, without citing cases, that it is now thoroughly
    well established that no action will lie for doing that which the
    legislature has authorised, if it be done without negligence,
    although it does occasion damage to anyone; but an action does
    lie for doing that which the legislature has authorised, if it be
    done negligently.'

    The reason for this is, I think, that Parliament deems it to be in the
    public interest that things otherwise unjustifiable should be done, and
    that those who do such things with due care should be immune from
    liability to persons who may suffer thereby. But Parliament cannot
    reasonably be supposed to have licensed those who do such things to
    act negligently in disregard of the interests of others so as to cause
    them needless damage." (The emphasis is mine)

    and to which Lord Blackburn was referring in the above quotation from
    Geddis v. Proprietors of Bann Reservoir. See also Metropolitan Asylum
    District v. Hill
    (1881) 6 App.Cas. 193. 213, per Lord Watson: Allen v. Gulf
    Oil Refining Ltd.
    [1981] A.C. 1001, 1011E. per Lord Wilberforce.

    Where a statute empowers or ordains the doing of an act which, if
    done with due care, will cause no harm to a third party but which, if done
    carelessly will be likely to cause harm, and the circumstances also satisfy the
    other two requirements in Caparo Industries Plc. v. Dickman [1990] 2 A.C.
    605. namely that the relationship between plaintiff and defendant is sufficiently

    - 2 -

    proximate and that it would be just and reasonable to impose a duty of care,
    an action will lie at common law. But it will lie simply because careless
    performance of the act amounts to common law negligence and not because
    the act is performed under statutory authority. Thus the owners of a National
    Health Service Hospital owe precisely the same duty of care to their patients
    as do the owners of a private hospital and they owe it because of the common
    law of negligence and not because they happen to be operating under statutory
    provisions. Conversely an act which, if performed in a particular manner by
    a private individual, would give rise to no cause of action will no more be
    actionable if it happens to be performed in the same way in exercise of a
    statutory power or duty, breach of which does not confer a private law right
    of action, even if such performance is careless.

    LORD LANE

    My Lords,

    I have read in draft the speech of my noble and learned friend Lord
    Browne-Wilkinson. I agree with his reasoning and conclusions.

    LORD ACKNER

    My Lords,

    I have read in draft the speech of my noble and learned friend Lord
    Browne-Wilkinson. I agree with his reasoning and conclusions.

    LORD BROWNE-WILKINSON

    My Lords,

    In each of these five appeals the plaintiffs by their statements of claim
    allege they have been injured by public authorities in the carrying out of
    functions imposed upon them by statute. The defendants have applied to
    strike out the claims on the grounds that they disclose no cause of action. In
    the first group of appeals (the Bedfordshire case and Newham case) the
    allegations are that public authorities negligently carried out, or railed to carry
    out, statutory duties imposed on them for the purpose of protecting children
    from child abuse. In the second group (the Dorset case, the Hampshire case
    and the Bromley case) the plaintiffs allege that the local authorities failed to
    carry out duties imposed upon them as education authorities by the Education
    Acts 1944 to 1981 in relation to children with special educational needs.

    - 3 -

    Although each case is different, all of them raise in one form or
    another the difficult and important question to what extent authorities charged
    with statutory duties are liable in damages to individuals injured by the
    authorities' failure properly to perform such duties. Such liability may be
    alleged to arise in a number of different ways: it can be based on breach or
    statutory duty simpliciter, on the failure to carry out the statutory duty without
    due care or on a breach of a common law duty of care. In considering the
    decided cases, and consequently the argument submitted on these appeals, it
    is not always clear which basis of liability is under consideration. I therefore
    propose, before turning to the individual appeals, to attempt a more general
    analysis of the problems raised in this field so far as they affect these cases.

    General Approach
    Introductory - Public Law and Private Law.

    The question is whether, if Parliament has imposed a statutory duty on
    an authority to carry out a particular function, a plaintiff who has suffered
    damage in consequence of the authority's performance or non-performance or
    that function has a right of action in damages against the authority. It is
    important to distinguish such actions to recover damages, based on a private
    law cause of action, from actions in public law to enforce the due performance
    of statutory duties, now brought by way of judicial review. The breach of a
    public law right by itself gives rise to no claim for damages. A claim for
    damages must be based on a private law cause of action. The distinction is
    important because a number of earlier cases (particularly in the field of
    education) were concerned with the enforcement by declaration and injunction
    of what would now be called public law duties. They were relied on in
    argument as authorities supporting the plaintiffs' claim for damages in this
    case: I will consider them in a little more detail later.

    Private law claims for damages can be classified into four different
    categories. viz:

    (A) Actions for breach of statutory duty simpliciter (i.e. irrespective or
    carelessness).

    (B) Actions based solely on the careless performance of a statutory duty
    in the absence of any other common law right of action.

    1. Actions based on a common law duty of care arising either from the
      imposition of the statutory duty or from the performance of it.

    2. Misfeasance in public office, i.e. the failure to exercise, or the
      exercise of, statutory powers either with the intention to injure the
      plaintiff or in the knowledge that the conduct is unlawful.

    - 4 -

    Category (D) is not in issue in this case. I will consider each of the
    other categories but I must make it clear that I am not attempting any general
    statement of the applicable law: rather I am seeking to set out a logical
    approach to the wide ranging arguments advanced in these appeals.

    (A) Breach of statutory duty simpliciter.

    This category comprises those cases where the statement of
    claim alleges simply (a) the statutory duty, (b) a breach of that duty,
    causing (c) damage to the plaintiff. The cause of action depends
    neither on proof of any breach of the plaintiffs' common law rights nor
    on any allegation of carelessness by the defendant.

    The principles applicable in determining whether such statutory
    cause of action exists are now well established, although the
    application of those principles in any particular case remains difficult.
    The basic proposition is that in the ordinary case a breach of statutory
    duty does not, by itself, give rise to any private law cause of action.
    However a private law cause of action will arise if it can be shown, as
    a matter of construction of the statute, that the statutory duty was
    imposed for the protection of a limited class of the public and that
    Parliament intended to confer on members of that class a private right
    of action for breach of the duty. There is no general rule by reference
    to which it can be decided whether a statute does create such a right
    of action but there are a number of indicators. If the statute provides
    no other remedv for its breach and the Parliamentary intention to

    protect a limited class is shown, that indicates that there may be a
    private right of action since otherwise there is no method of securing
    the protection the statute was intended to confer. If the statute does
    provide some other means of enforcing the duty that will normally
    indicate that the statutory right was intended to be enforceable by those
    means and not by private right of action: Cutler v. Wandsworth
    Stadium Ltd.
    [1949] A.C. 398: Lonrho Ltd. v. Shell Petroleum Co.
    Ltd. (No.2)
    [1982] A.C. 173. However, the mere existence of some
    other statutory remedy is not necessarily decisive. It is still possible
    to show that on the true construction of the statute the protected class
    was intended by Parliament to have a private remedy. Thus the
    specific duties imposed on employers in relation to factory premises
    are enforceable by an action for damages, notwithstanding the
    imposition by the statutes of criminal penalties for any breach: see
    Groves v. Lord Wimborne [1898] 2 Q.B. 402.

    Although the question is one of statutory construction and
    therefore each case turns on the provisions in the relevant statute, it is
    significant that your Lordships were not referred to any case where it
    had been held that statutory provisions establishing a regulatory system
    or a scheme of social welfare for the benefit of the public at large had
    been held to give rise to a private right of action for damages for

    - 5 -

    breach of statutory duty. Although regulatory or welfare legislation
    affecting a particular area of activity does in fact provide protection to
    those individuals particularly affected by that activity, the legislation
    is not to be treated as being passed for the benefit of those individuals
    but for the benefit of society in general. Thus legislation regulating
    the conduct of betting or prisons did not give rise to a statutory right
    of action vested in those adversely affected by the breach of the
    statutory provisions, i.e. bookmakers and prisoners: see Cutler [1949]
    A.C. 398; Reg. v. Deputy Governor of Parkhurst Prison, Ex parte
    Hague
    [1992] 1 A.C. 58. The cases where a private right of action
    for breach of statutory duty have been held to arise are all cases in
    which the statutory duty has been very limited and specific as opposed
    to general administrative functions imposed on public bodies and
    involving the exercise of administrative discretions.

    (B) The careless performance of a statutory duty - no common law duty or
    care.

    This category comprises those cases in which the plaintiff
    alleges (a) the statutory duty and (b) the "negligent" breach of that
    duty but does not allege that the defendant was under a common law
    duty of care to the plaintiff. It is the use of the word "negligent" in
    this context which gives rise to confusion: it is sometimes used to
    connote mere carelessness (there being no common law duty of care)
    and sometimes to import the concept of a common law duty of care.
    In my judgment it is important in considering the authorities to
    distinguish between the two concepts: as will appear, in my view the
    careless performance of a statutory duty does not in itself give rise to
    any cause of action in the absence of either a statutory right of action
    (Category (A) above) or a common law duty of care (Category (C)
    below).

    Much of the difficulty can be traced back to the confusion
    between the ability to rely on a statutory provision as a defence and
    the ability to rely on it as founding a cause of action. The source of
    the confusion is to be found in the dictum of Lord Blackburn in Geddis
    v. Proprietors of Bann Reservoir
    (1878) 3 App. Cas. 430, 455-456:

    "For I take it, without citing cases, that it is now thoroughly
    well established that no action will lie for doing that which the
    legislature has authorised, if it be done without negligence,
    although it does occasion damage to anyone: but an action
    does lie for doing that which the legislature has authorised, it
    it be done negligently. And I think that if by a reasonable
    exercise of the powers, either given by statute to the
    promoters, or which they have at common law, the damage
    could be prevented it is, within this rule, 'negligence not to
    make such reasonable exercise of their powers."

    - 6 -

    This dictum, divorced from its context, suggests that the careless
    performance of a statutory' duty in itself gives rise to a cause of action
    for damages. But it has to be read in context.

    In Geddis the defendants were authorised to construct and
    maintain a reservoir the water from which was discharged, via a new
    artificial watercourse, into an old watercourse which the defendants
    were authorised by the statute to widen and maintain. Water
    originating from the reservoir flooded from the old watercourse onto
    the plaintiff's adjoining land, such flooding being due to the
    "negligent" failure of the defendants to maintain the old watercourse
    adequately. The cause of action relied upon by the plaintiff is not
    clear from the report: it could have been either nuisance (including
    Rylands v. Fletcher (1868) L.R. 3 H.L. 330) or negligence. If the
    cause of action founded upon was in nuisance, the question was
    whether the statutory power to construct and maintain the works
    provided a defence to what would otherwise constitute an actionable
    wrong. It is well established that statutory authority only provides a
    defence to a claim based on a common law cause of action where the
    loss suffered by the plaintiff is the inevitable consequence of the
    proper exercise of the statutory power or duty: Metropolitan Asylum
    District v. Hill
    (1881) 6 App. Cas. 193: Allen v. Gulf Oil Refining
    Ltd.
    [1981] A.C. 1001. Therefore the careless exercise of a statutory
    power or duty cannot provide a defence to a claim based on a
    freestanding common law cause of action, whether in trespass,
    nuisance or breach of a common law duty of care. If Lord
    Blackburn's dictum in Geddis, 3 App. Cas. 430. 455-456, merely
    refers to the circumstances in which statutory authority can be used as
    a defence it raises no problems.

    In my judgment Geddis is best treated as a decision that the
    careless exercise by the defendant of a statutory duty or power
    provides no defence to a claim by the plaintiff based on a freestanding
    common law cause of action. It was so treated by Lord Wilberforce
    in Gulf Oil who said, at p. 1011:

    "It is now well settled that where Parliament by express
    direction or by necessary implication has authorised the
    construction and use of an undertaking or works, that carries
    with it an authority to do what is authorised with immunity
    from any action based on nuisance. The right of action is
    taken away: Hammersmith and City Railway Co. v. Brand
    (1869) L.R. 4 H.L. 171. 215 per Lord Cairns. To this there
    is made the qualification, or condition, that the statutory
    powers are exercised without 'negligence' - that word here
    being used in a special sense so as to require the undertaker, as
    a condition of obtaining immunity from action, to carry out the

    - 7 -

    work and conduct the operation with all reasonable regard and
    care for the interests of other persons: Geddis. ..."

    See also Sutherland Shire Council v. Heyman (1985) 157 C.L.R. 424,
    458 and the article by Sir Gerard Brennan "Liability in Negligence of
    Public Authorities: The Divergent Views" (1990) 48 The Advocate
    842, 844-846.

    In this context I must consider the decision in Dorset Yacht Co.
    Ltd. v
    . Home Office [1970] A.C. 1004 which was relied upon in
    argument as showing that there was a cause of action for the careless
    exercise of statutory powers. In that case it was alleged that Borstal
    boys detained under statutory powers had been taken to an island under
    the control and supervision of three Borstal officers. The boys escaped
    and sought to leave the island by stealing a yacht which they so
    mishandled as to damage the plaintiffs yacht which was at anchor
    nearby. It was alleged that the three officers were negligent in failing
    to control the Borstal boys and that the Home Office was vicariously
    responsible for their actions. This House rejected an application
    by the Home Office to strike out the claim. In later cases most
    attention has been concentrated on the speech of Lord Diplock.
    But in my judgment his views do not reflect the majority approach.
    Lord Morris of Borth y Gest and Lord Pearson both approached the
    case by first asking whether at common law there was a duty of care
    owed by the officers to the plaintiffs to take reasonable steps to control
    the Borstal boys so as to prevent them causing foreseeable damage to
    the plaintiffs property. They held that there was: see pp. 1034-1035:
    1054G-1055G. They further held that the extent of the duty owed to
    the plaintiff fell to be measured taking into account the fact that the
    boys were detained under statutory powers and the officers discharging
    statutory functions. But, applying Geddis 3 App. Cas. 430. 455-456,
    both held that the careless performance by the officers of statutory
    functions would not provide a defence to the common law claim:
    pp. 1036A; 1055H-1056E. Lord Reid also held that, apart from
    statutory authority, the officers owed a common law duty of care to
    the plaintiffs: pp. 1027D-1030E. He then relied on the Geddis
    principle and, although his language is not clear beyond doubt, in my
    view he relied on that principle as showing not that the statutory
    provisions imposed a statutory duty of care but that the negligent
    performance of the statutory duties would provide no defence to a
    claim for breach of the common law duty of care: p. 1030E-1030H.

    As I read Lord Diplock's closely reasoned speech his approach
    was different. First, he held that in the absence of the statutory
    provisions the prison officers would not have been under a duty of
    care at common law to prevent the Borstal boys damaging the
    plaintiffs property: pp. 1062C; 1064C; 1066H. He treated the

    - 8 -

    Geddis principle as being inapplicable to public Acts of Parliament
    conferring wide statutory discretions and pointed out that the principle
    only applies to negative reliance on statutory authority as a defence to
    a common law right of action which would otherwise have existed:
    pp. 1066H-1067F. At this stage (p. 1067) he expressed the view that
    in relation to acts done under statutory powers conferring discretions,
    no right of action at common law can exist unless the defendant has
    acted ultra vires those powers. He then held that the Home Office
    itself, in establishing a liberal regime for the treatment of Borstal
    offenders, could not have been acting ultra vires. However if the
    Borstal officers had exercised their powers in breach of their
    instructions they would have acted ultra vires the powers delegated to
    them. He further held that, in the circumstances, if the prison officers
    had acted ultra vires, they might owe a common law duty of care to
    the plaintiff.

    It is clear that in many respects, particularly in relation to the
    introduction of the ultra vires doctrine, Lord Diplock's approach
    differed from that of the other members of the House. But all the
    majority members of the committee agreed in treating the Geddis
    principle as operating only as a means of rebutting a defence to an
    action for breach of a common law duty. Dorset Yacht is not a case
    which establishes that a cause of action for damages can be based on
    the mere "negligent" exercise of statutory powers. It is a case founded
    on common law duties of care and the circumstances in which a
    defence of statutory authority can succeed.

    In my judgment the correct view is that in order to found a
    cause of action flowing from the careless exercise of statutory powers
    or duties, the plaintiff has to show that the circumstances are such as
    to raise a duty of care at common law. The mere assertion of the
    careless exercise of a statutory power or duty is not sufficient.

    (C) The common law duty of care

    In this category, the claim alleges either that a statutory duty
    gives rise to a common law duty of care owed to the plaintiff by the
    defendant to do or refrain from doing a particular act or (more often)
    that in the course of carrying out a statutory duty the defendant has
    brought about such a relationship between himself and the plaintiff as
    to give rise to a duty of care at common law. A further variant is a
    claim by the plaintiff that, whether or not the authority is itself under
    a duty of care to the plaintiff, its servant in the course of performing
    the statutory function was under a common law duty of care for breach
    of which the authority is vicariously liable.

    Mr. Munby, in his reply in the Newham case, invited your
    Lordships to lay down the general principles applicable in determining

    - 9 -

    the circumstances in which the law would impose a common law duty
    of care arising from the exercise of statutory powers or duties. I have
    no doubt that, if possible, this would be most desirable. But I have
    found it quite impossible either to detect such principle in the wide
    range of authorities and academic writings to which we were referred
    or to devise any such principle de novo. The truth of the matter is
    that statutory duties now exist over such a wide range of diverse
    activities and take so many different forms that no one principle is
    capable of being formulated applicable to all cases. However, in my
    view it is possible in considering the problems raised by these
    particular appeals to identify certain points which are of significance.

    1. Co-existence of statutory duty and common law duty of care.

    It is clear that a common law duty of care may arise in the
    performance of statutory functions. But a broad distinction has to be
    drawn between:

    1. cases in which it is alleged that the authority owes a duty or
      care in the manner in which it exercises a statutory discretion:

    2. cases in which a duty of care is alleged to arise from the
      manner in which the statutory duty has been implemented in
      practice.

    An example of (a) in the educational field would be a decision
    whether or not to exercise a statutory discretion to close a school,
    being a decision which necessarily involves the exercise of a
    discretion. An example of (b) would be the actual running of a school
    pursuant to the statutory duties. In such latter case a common law
    duty to take reasonable care for the physical safety of the pupils will
    arise. The fact that the school is being run pursuant to a statutory duty
    is not necessarily incompatible with a common law duty of care arising
    from the proximate relationship between a school and the pupils it has
    agreed to accept. The distinction is between (a) taking care in
    exercising a statutory discretion whether or not to do an act and (b)
    having decided to do that act, taking care in the manner in which you
    do it.

    2. Discretion: justiciability and the policy/operational test.
    (a) Discretion

    Most statutes which impose a statutory duty on local
    authorities confer on the authority a discretion as to the extent
    to which, and the methods by which, such statutory duty is to
    be performed. It is clear both in principle and from the
    decided cases that the local authority cannot be liable in

    - 10 -

    damages for doing that which Parliament has authorised.
    Therefore if the decisions complained of fall within the ambit
    of such statutory discretion they cannot be actionable in
    common law. However if the decision complained of is so
    unreasonable that it falls outside the ambit of the discretion
    conferred upon the local authority, there is no a priori reason
    for excluding all common law liability.

    That this is the law is established by the decision in
    Dorset Yacht and by that part of the decision in Anns v. Merton
    London Borough Council
    [1978] A.C. 728 which, so far as I
    am aware, has largely escaped criticism in later decisions. In
    Dorset Yacht Lord Reid said, at p. 1031:

    "Where Parliament confers a discretion the position is
    not the same. Then there may, and almost certainly
    will, be errors of judgment in exercising such a
    discretion and Parliament cannot have intended that
    members of the public should be entitled to sue in
    respect of such errors. But there must come a stage
    when the discretion is exercised so carelessly or
    unreasonably that there has been no real exercise of the
    discretion which Parliament has conferred. The person
    purporting to exercise his discretion has acted in abuse
    or excess of his power. Parliament cannot be supposed
    to have granted immunity to persons who do that."

    See also per Lord Morris, at p. 1037F.

    Lord Diplock, as I have said, took a rather different
    line, making it a condition precedent to any common law duty
    arising that the decision impugned should be shown to be ultra
    vires in the public law sense. For myself, I do not believe that
    it is either helpful or necessary to introduce public law concepts
    as to the validity of a decision into the question of liability at
    common law for negligence. In public law a decision can be
    ultra vires for reasons other than Wednesbury unreasonableness
    (Associated Provincial Picture Houses Ltd. v. Wednesbury
    Corporation
    [1948] 1 K.B. 223) (e.g. breach or the rules of
    natural justice) which have no relevance to the question of
    negligence. Moreover it leads, in my judgment mistakenly, to
    the contention that claims for damages for negligence in the
    exercise of statutory powers should for procedural purposes be
    classified as public law claims and therefore, under O'Reilly v.
    Mackman
    [1983] 2 A.C. 237 should be brought in judicial
    review proceedings: see Lonrho Plc. v. Tebbit (1992] 4 All
    E.R. 280. However, although I consider that the public law

    - 11 -

    doctrine of ultra vires has, as such, no role to play in the
    subject under discussion, the remarks of Lord Diplock were
    plainly directed to the fact that the exercise of a statutory
    discretion cannot be impugned unless it is so unreasonable that
    it falls altogether outside the ambit of the statutory discretion.
    He said [1970] A.C. 1004. 1068:

    "These considerations lead me to the conclusion that
    neither the intentional release of a Borstal trainee under
    supervision, nor the unintended escape of a Borstal
    trainee still under detention which was the consequence
    of the application of a system of relaxed control
    intentionally adopted by the Home Office as conducive
    to the reformation of trainees, can have been intended
    by Parliament to give rise to any cause of action on the
    part of any private citizen unless the system adopted
    was so unrelated to any purpose of reformation that no
    reasonable person could have reached a bona fide
    conclusion that it was conducive to that purpose. Only
    then would the decision to adopt it be ultra vires in
    public law."

    Exactly the same approach was adopted by Lord Wilberforce
    in Anns v. Merton London Borough Council [1978] A.C. 728
    who, speaking of the duty of a local authority which had in fact
    inspected a building under construction, said, at p. 755E-F:

    "But this duty, heavily operational though it may be, is
    still a duty arising under the statute. There may be a
    discretionary element in its exercise - discretionary as
    to the time and manner of the inspection, and the
    techniques to be used. A plaintiff complaining of
    negligence must prove, the burden being on him, that
    action taken was not within the limits of a discretion
    bona fide exercised, before he can begin to rely upon a
    common law duty of care."

    It follows that in seeking to establish that a local
    authority is liable at common law for negligence in the exercise
    of a discretion conferred by statute, the first requirement is to
    show that the decision was outside the ambit of the discretion
    altogether: if it was not, a local authority cannot itself be in
    breach of any duty of care owed to the plaintiff.

    In deciding whether or not this requirement is satisfied,
    the court has to assess the relevant factors taken into account
    by the authority in exercising the discretion. Since what are
    under consideration are discretionary powers conferred on

    - 12 -

    public bodies for public purposes the relevant factors will often
    include policy matters, for example social policy, the allocation
    of finite financial resources between the different calls made
    upon them or (as in Dorset Yacht) the balance between
    pursuing desirable social aims as against the risk to the public
    inherent in so doing. It is established that the courts cannot
    enter upon the assessment of such "policy" matters. The
    difficulty is to identify in any particular case whether or not the
    decision in question is a "policy" decision.

    (b) Justiciability and the policy/operational dichotomy.

    In English law the first attempt to lay down the
    principles applicable in deciding whether or not a decision was
    one of policy was made by Lord Wilberforce in Anns v
    Merton London Brorough Council
    [1978] A.C. 728. 754C:


    "Most, indeed probably all, statutes relating to public
    authorities or public bodies, contain in them a large
    area of policy. The courts call this 'discretion' meaning
    that the decision is one for the authority or body to
    make, and not for the courts. Many statutes also
    prescribe or at least presuppose the practical execution
    of policy decisions: a convenient description of this is
    to say that in addition to the area of policy or
    discretion, there is an operational area. Although this
    distinction between the policy area and the operational
    area is convenient, and illuminating, it is probably a
    distinction of degree; many 'operational' powers or
    duties have in them some element of 'discretion.' It
    can safely be said that the more 'operational' a power
    or duty may be, the easier it is to superimpose upon it
    a common law duty of care."

    As Lord Wilberforce appreciated, this approach did not
    provide a hard and fast test as to those matters which were
    open to the court's decision. In Rowling v. Takaro Properties
    Ltd.
    [1988] A.C. 473 the Privy Council reverted to the
    problem. In that case the trial judge had found difficulty in
    applying the policy/operational test, but having classified the
    decision in question as being operational, took the view that as
    a result there was a common law duty of care. Commenting
    on the judge's view. Lord Keith of Kinkel said, at p. 501:

    "Their Lordships feel considerable sympathy with
    Quilliam J.'s difficulty in solving the problem by
    reference to this distinction. They are well aware of
    the references in the literature to this distinction (which

    - 13 -

    appears to have originated in the United States of
    America), and of the critical analysis to which it has
    been subjected. They incline to the opinion, expressed
    in the literature, that this distinction does not provide a
    touchstone of liability, but rather is expressive of the
    need to exclude altogether those cases in which the
    decision under attack is of such a kind that a question
    whether it has been made negligently is unsuitable for
    judicial resolution, of which notable examples are
    discretionary decisions on the allocation of scarce
    resources or the distribution of risks: see especially the
    discussion in Craig on Administrative Law (1983).
    p. 534-538. If this is right, classification of the
    relevant decision as a policy or planning decision in this
    sense may exclude liability; but a conclusion that it
    does not fall within that category does not, in their
    Lordships' opinion, mean that a duty of care will
    necessarily exist." (Emphasis added.)

    From these authorities I understand the applicable
    principles to be as follows. Where Parliament has conferred a
    statutory discretion on a public authority, it is for that
    authority, not for the courts, to exercise the discretion: nothing
    which the authority does within the ambit of the discretion can
    be actionable at common law. If the decision complained of
    falls outside the statutory discretion, it can (but not necessarily
    will) give rise to common law liability. However, if the
    factors relevant to the exercise of the discretion include matters
    of policy, the court cannot adjudicate on such policy matters
    and therefore cannot reach the conclusion that the decision was
    outside the ambit of the statutory discretion. Therefore a
    common law duty of care in relation to the taking of decisions
    involving policy matters cannot exist.

    3. If justiciable, the ordinary principles of negligence

    apply. If the plaintiffs complaint alleges carelessness, not in
    the taking of a discretionary decision to do some act, but in the
    practical manner in which that act has been performed (e.g. the
    running of a school) the question whether or not there is a
    common law duty of care falls to be decided by applying the
    usual principles, i.e. those laid down in Caparo Industries Plc.
    v. Dickman
    [1990] 2 A.C. 605. 617-618. Was the damage to
    the plaintiff reasonably foreseeable? Was the relationship
    between the plaintiff and the defendant sufficiently proximate?
    Is it just and reasonable to impose a duty of care? See Rowling
    v
    . Takaro Properties Ltd. [1988] A.C. 473: Hill v. Chief
    Constable of West Yorkshire
    [1989] A.C. 53.

    - 14 -

    However the question whether there is such a common
    law duty and if so its ambit, must be profoundly influenced by
    the statutory framework within which the acts complained of
    were done. The position is directly analogous to that in which
    a tortious duty of care owed by A to C can arise out of the
    performance by A of a contract between A and B. In
    Henderson v. Merrett Syndicates Ltd. [1994] 3 W.L.R. 761
    your Lordships held that A (the managing agent) who had
    contracted with B (the members' agent) to render certain
    services for C (the Names) came under a duty of care to C in
    the performance of those services. It is clear that any tortious
    duty of care owed to C in those circumstances could not be
    inconsistent with the duty owed in contract by A to B.
    Similarly, in my judgment a common law duty of care cannot
    be imposed on a statutory duty if the observance of such
    common law duty of care would be inconsistent with, or have
    a tendency to discourage, the due performance by the local
    authority of its statutory duties.

    4. Direct liability and vicarious liability.

    In certain of the appeals before the House, the local
    authorities are alleged to be under a direct duty of care
    to the plaintiff not only in relation to the exercise of a
    statutory discretion but also in relation to the
    operational way in which they performed that duty.

    This allegation of a direct duty of care owed by the
    authority to the plaintiff is to be contrasted with those claims
    which are based on the vicarious liability of the local authority
    for the negligence of its servants, i.e. for the breach of a duty
    of care owed by the servant to the plaintiff, the authority itself
    not being under any relevant duty of care to the plaintiff.
    Thus, in the Newham case the plaintiffs' claim is wholly based
    on allegations that two professionals, a social worker and a
    psychiatrist, individually owed professional duties of care to the
    plaintiff for the breach of which the authorities as their
    employers are vicariously liable. It is not alleged that the
    authorities were themselves under a duty of care to the
    plaintiff.

    This distinction between direct and vicarious liability
    can be important since the authority may not be under a direct
    duty of care at all or the extent of the duty of care owed
    directly by the authority to the plaintiff may well differ from
    that owed by a professional to a patient. However, it is
    important not to lose sight of the fact that, even in the absence
    of a claim based on vicarious liability, an authority under a

    - 15 -

    direct duty of care to the plaintiff will be liable for the
    negligent acts or omissions of its servant which constitute a
    breach of that direct duty. The authority can only act through
    its servants.

    The position can be illustrated by reference to the
    hospital cases. It is established that those conducting a hospital
    are under a direct duty of care to those admitted as patients to
    the hospital (I express no view as to the extent of that duty).
    They are liable for the negligent acts of a member of the
    hospital staff which constitute a breach of that duty, whether or
    not the member of the staff is himself in breach of a separate
    duty of care owed by him to the plaintiff: Gold v. Essex
    County Council
    [1942] 2 K.B. 293. per Lord Green at p. 301:
    Cassidy v. Minister of Health [1951] 2 K.B. 343. per Denning
    L.J.: Roe v. Minister of Health [1954] 2 Q.B. 66: see also
    Wilsons & Clyde Coal Ltd. v. English [1938] A.C. 57:
    McDermid v. Nash Dredging & Reclamation Co. Ltd. [1987]
    A.C. 906. Therefore in the cases under appeal, even where
    there is no allegation of a separate duty of care owed by a
    servant of the authority to the plaintiff, the negligent acts or
    that servant are capable of constituting a breach of the duty of
    care (if any) owed directly by the authority to the plaintiff.

    Summary

    In accordance with the principles I have discussed. I propose to
    approach each of these cases as follows. I will consider first (if such claim
    is advanced) whether the statutory provisions by themselves give rise to a
    private law claim in damages (Category (A)). I will turn then to consider
    whether in each case there is a common law duty of care owed to the plaintiff.
    I will consider the following matters in turn, to the extent that they are relied
    upon:

    (1) Direct duty of care owed by the local authority.

    1. Is the negligence relied upon negligence in the exercise of a
      statutory discretion involving policy considerations: if so the
      claim will pro tamo fail as being non-justiciable;

    2. were the acts alleged to give rise to the cause of action within
      the ambit of the discretion conferred on the local authority; if
      not

    (c) is it appropriate to impose on the local authority a common law
    duty of care.

    - 16 -

    (2) Vicarious liability of the local authority

    1. Is the duty of care alleged to be owed by the servant of the
      local authority consistent with the proper performance of his
      duties to the local authority: if so

    2. is it appropriate to impose on the servant the duty of care
      alleged.

    Striking out.

    In all these cases the defendants are seeking to strike out the claims at
    an early stage, before discovery has taken place and before the facts are
    known. It is therefore necessary to proceed on the basis that the facts alleged
    in the various statements of claim are true. It must be stressed that these
    allegations are not admitted by the defendants.

    Actions can only be struck out under RSC Ord. 18, r. 19 where it is
    clear and obvious that in law the claim cannot succeed. Where the law is not
    settled but is in a state of development (as in the present cases) it is normally
    inappropriate to decide novel questions on hypothetical facts. But I agree with
    Sir Thomas Bingham M.R. [1994] 3 W.L.R. 853, 865 that there is nothing
    inappropriate in deciding on these applications whether the statutes in question
    confer private law rights of action for damages: the answer to that question
    depends upon the construction of the statutes alone.

    Much more difficult is the question whether it is appropriate to decide
    the question whether there is a common law duty of care in these cases.
    There may be cases (and in my view the child abuse cases fall into this
    category) where it is evident that, whatever the facts, no common law duty of
    care can exist. But in other cases the relevant facts are not known at this
    stage. For example, in considering the question whether or not a
    discretionary decision is justiciable, the answer will often depend on the exact
    nature of the decision taken and the factors relevant to it. Evidence as to
    those matters can only come from the defendants and is not presently before
    the court. I again agree with the Master of the Rolls that if. on the facts
    alleged in the statement of claim, it is not possible to give a certain answer
    whether in law the claim is maintainable then it is not appropriate to strike out
    the claim at a preliminary stage but the matter must go to trial when the
    relevant facts will be discovered.

    THE ABUSE CASES [1994 1 VV.L.R. 554
    The facts - the Bedfordshire case.

    I gratefully adopt the Master of the Rolls' summary of the allegations
    made in the statement of claim, the truth of which has to be assumed for the
    purposes of the present appeal. The plaintiffs are five children of the same

    - 17 -

    parents who sue by the Official Solicitor as their next friend. The eldest child
    was born in October 1982 and the youngest in May 1990. The only defendant
    is the county council which is sued as the local authority responsible for social
    services in the area where the children lived. The facts pleaded fall into
    various periods. The first runs from November 1987 to December 1989.
    During this period reports about these children were made to the county
    council by relatives, neighbours, the police, the family's general practitioner.
    the head teacher of the school which the two older children attended, the
    NSPCC. a social worker and a health visitor. The reports were to the effect
    that the children were at risk, including the risk of sexual abuse; the children
    were locked out of the house for long periods of time with the oldest child
    (aged five) supervising the next two (aged three and two); the third child was
    observed to have an abrasion which could have been caused by cigarette burns
    with the oldest child being found to be pale, depressed, pathetic and possibly
    hungry; the children's bedroom had been found to be squalid and to have
    faeces smeared on the walls; their home was in a disgusting state, with the
    second and third children's beds sodden with urine; the two older children
    attended school looking dishevelled and smelly; there was concern for the
    children's emotional well being. In December 1989 the county council
    rejected a health visitor's recommendation that the first four children be
    placed on the child protection register. No case conference was held.

    The second period runs from March 1990 to January 1991. During
    this period reports of a similar kind were made to the county council. A case
    conference was held in January 1991. It was decided not to place any of the
    children on the child protection register and not to apply for any court orders.

    The third period began in July 1991 when the children's father asked
    the county council to take the children into care for adoption, a suggestion he
    made again in May 1992. The county council took no action. For nine days
    in August 1991 the three older children were placed on their mother's
    application with foster parents who found them dirty, underfed and with poor
    personal hygiene. In September 1991 the county council was told the
    condition of the second and third children's bedroom had deteriorated further;
    that the children were said to have been locked outside the family home and
    to have screamed constantly; that the children were left in their bedrooms for
    long periods and smeared faeces on the windows; and that the second, third
    and fourth of the children had been seen stealing food. No action was taken
    save that respite care was recommended to assist the mother. In November
    1991 the mother asked the county council to accommodate the three older
    children: the county council offered her short term respite care. On their
    mother's application, the three older children spent much of the early months
    of 1992 with foster parents with whom they gained in weight. In March 1992
    the county council considered the results of this foster placement and respite
    care and monitoring were recommended. In April 1992 the mother asked the
    county council to remove the second and third children from her care and
    place them for adoption. In June 1992 the mother told the county council that
    if the children were not removed from her care she would batter them. As a

    - 18 -

    result the county council placed the children with foster parents. On 22 June
    1992 the children were placed on the child protection register hut the county
    council took no steps to seek care orders. The county council did accept that
    the children should not return to live with their parents. In October 1992 the
    county council decided to seek care orders and took steps to that end. As a
    result interim care orders were made in December 1992 and final orders in
    April 1993. It is fair to add that the children's plight was not being ignored.
    The statement of claim refers to no less than 13 meetings held to discuss their
    position.

    In June 1993 the five children launched these proceedings. The county
    council applied to strike out the proceedings and. on 12 November 1993.
    Turner J. struck them out.


    The facts - the Newham case.

    The first plaintiff in this action is a girl born in January 1983. The
    second plaintiff is her mother who was 17 when the child was born. There
    was originally a third plaintiff in the action who lived with the mother and is
    the father of another of her children, although not of the child. I will call him
    "XY". There are three defendants. The first, the borough council, is the
    local authority with responsibility for child care services in the area. The
    second is the local health authority. The third is a consultant child psychiatrist
    employed by the health authority ("the psychiatrist").

    Between 1984 and 1986 the mother and the child had dealings with the
    local authority's social services department and the health authority. Concern
    was expressed that the child had been sexually abused. In June 1987 a social
    worker employed by the local authority ("the social worker") visited the
    mother's home and obtained details of her situation including the fact that XY
    was the mother's current boyfriend. The social worker reported his findings
    to a case conference which decided to place the child on the child protection
    register. In 1987 the child's doctor expressed concern that she might be the
    subject of sexual abuse. An appointment was made for the child to be
    examined by a psychiatrist to ascertain whether the child had been sexually
    abused and, if she had, the identity of the abuser. This interview took place
    on 13 November 1987.

    The child was interviewed by the psychiatrist in the presence of the
    social worker. The mother was not present but was in an adjoining room.
    The interview was recorded on videotape. It is pleaded that the social worker
    and/or the psychiatrist concluded that the child had been sexually abused and
    that XY (the mother's boyfriend) was the abuser. This identification was
    based on the child indicating that the first name of the abuser was "X". which
    was the first name of XY. The fact was that the child was referring not to
    XY as the abuser but to a cousin with the same first name who had previously-
    lived at the mother's address. It is alleged that, had the psychiatrist and the
    social worker taken the full history of the mother's domestic circumstances.

    - 19 -

    they would have discovered that XY was not the abuser and that the abuser
    was no longer living at the mother's home. At the end of the interview the
    mother was told by the psychiatrist and social worker that the child had been
    sexually abused and that XY was the abuser. The mother asked the child
    privately if XY had abused her. The child said he had not. The mother told
    the social worker of this denial but the social worker and the psychiatrist
    wrongly took this as an attempt to persuade the child to retract the allegation
    which they understood her to have made.

    The doctor and the social worker concluded that the mother would be
    unable to protect the child against further abuse by XY. The mother was not
    asked if she was willing to require XY to leave her home. On the same day.
    13 November 1987, the local authority applied for a place of safety order ana
    an order for 28 days was made by the Newham Justices.

    The mother excluded XY and all other men from her home and on the
    24 November applied to Anthony Lincoln J. for the child to be made a ward
    of court and for her to be given care and control. In accordance with the
    local authority recommendation, the judge ordered that the child be made a
    ward of court, the local authority be granted care and control, that the child
    should not return home and the mother's access be limited, such order to
    remain in force until further order. The child was placed with foster parents.
    In December, another judge continued the existing arrangement.

    Up to this time the mother had not seen the video recording or read the
    transcript of the interview on 13 November 1987. At a later stage she did
    obtain a sight of the transcript from which it was apparent that the child had
    not identified XY as the abuser and that there was not sufficient evidence to
    support that conclusion. The local authority were informed and shortly
    thereafter confirmed that it no longer suspected XY of having sexually abused
    the child. On 21 November 1988 Anthony Lincoln J. made an order under
    which the child was to be reunited with her mother and with XY. The child
    was returned to her mother. The child and the mother had been separated for
    almost a year.

    The child and the mother make many allegations of negligence against
    the defendants, the central allegation being that the social worker and the
    psychiatrist failed to investigate the facts with proper care and thoroughness
    and failed to discuss their conclusions with the mother. The child and the
    mother claim that as a result of their enforced separation each of them has
    suffered a positive psychiatric disorder diagnosed as anxiety neurosis.

    The proceedings were started in November 1990. After amendment,
    on 19 November 1992 Master Topley struck out the amended statement of
    claim. Judge Phelan, sitting as a judge of the Queen's Bench Division,
    dismissed the appeal of the child and the mother on 17 March 1993.

    - 20 -

    The decision in the Court of Appeal

    The appeals against the judges' decisions in both child abuse cases
    were heard together by the Court of Appeal (Sir Thomas Bingham M.R..
    Staughton and Peter Gibson L.JJ.) [1994] 2 W.L.R. 554. Shortly stated, the
    Court of Appeal were unanimous in striking out claims based on breach of
    statutory duty simpliciter (Category (A) above) but were divided on the issue
    whether the local authorities and (in the Newham case) the psychiatrist and the
    health authority were under any duty of care whether direct or vicarious
    (Category (C) above). Staughton and Peter Gibson L.JJ. held that there was
    no common law duty owed either to the child or the mother. The Master of
    the Rolls, whilst agreeing that the mother's claim could not succeed, thought

    there could be a duty of care to the children.


    The statutory provisions

    Since 1932 there has been legislation designed by Parliament to provide
    protection for children in need of care and protection. The first statute
    directly relied upon in the abuse cases is the Children and Young Persons Act
    1969. Section 1 provided that a court could make a care order in care
    proceedings if satisfied, inter alia, that the child was being neglected or ill
    treated. Under section 2(1) a duty was imposed on the local authority which
    received information "suggesting that there are grounds for bringing care
    proceedings" to cause inquiries to be made. Section 2(2) provided:

    "If it appears to a local authority that there are grounds for bringing
    care proceedings in respect of a child or young person who resides or
    is found in their area, it shall be the duty of the authority to exercise
    their power under the preceding section to bring care proceedings in
    respect of him ..."

    The Child Care Act 1980, sections 1 and 2 provide so far as relevant as
    follows:

    "1(1) It shall be the duty of every local authority to make available
    such advice, guidance and assistance as may promote the welfare of
    children by diminishing the need to receive children into or keep them
    in care under this Act or to bring children before a juvenile court . . .

    2(1) Where it appears to a local authority with respect to a child in
    their area appearing to them to be under the age of 17 - . . .

    (b) that his parents . . .are, for the time being or permanently,
    prevented by reason of mental or bodily disease or infirmity or
    other incapacity or any other circumstances from providing for
    his proper accommodation, maintenance and upbringing: and

    - 21 -

    (c) in either case, that the intervention of the local authority
    under this section is necessary in the interests of the welfare of
    the child.

    it shall be the duty of the local authority to receive the child into their
    care under this section."

    Section 76(1)(a) gave the Secretary of State power to direct an inquiry in
    relation to the child care services. Those were the only directly relevant
    statutory duties in force during the events complained of in the Newham case.

    The Children Act 1989, came into force on 14 October 1991 and is
    therefore relevant in relation to the later stages of the Bedfordshire case. Part
    III of the Act includes section 17(1) and (2) which provide as follows:

    "(1) It shall be the general duty of every local authority (in addition to
    the other duties imposed on them by this Part) -

    1. to safeguard and promote the welfare of children within
      their area who are in need; and

    2. so far as is consistent with that duty, to promote the
      upbringing of such children by their families,

    by providing a range and level of services appropriate to those
    children's needs.

    (2) For the purposes principally of facilitating the discharge of their
    duty under this section, every local authority shall have the specific
    duties and powers set out in Part I of Schedule 2."

    Schedule 2. Part I paragraphs 1(1) and 4(1) provide:

    "1(1) Every local authority shall take reasonable steps to identify the
    extent to which there are children in need within their area."

    "4(1) Every local authority shall take reasonable steps, through the
    provision of services under Part III of this Act, to prevent children
    within their area suffering ill-treatment or neglect."

    Part III of the Act includes section 20 (1) which reads:

    "20(1) Every local authority shall provide accommodation for any
    child in need within their area who appears to them to require
    accommodation as a result of - . . .

    - 22 -

    (c) the person who has been caring for him being prevented
    (whether or not permanently, and for whatever reason) from
    providing him with suitable accommodation or care."

    In Part V of the Act. section 47(1) and (8) provide:
    "(1) Where a local authority - ...

    (b) have reasonable cause to suspect a child who lives, or is
    found, in their area is suffering, or is likely to suffer significant
    harm,

    the authority shall make, or cause to be made, such enquiries as they
    consider necessary to enable them to decide whether they should take
    any action to safeguard or promote the child's welfare. "

    "(8) Where, as a result of complying with this section, a local
    authority conclude that they should take action to safeguard or promote
    the child's welfare they shall take that action (so far as it is both within
    their power and reasonably practicable for them to do so)."

    Amongst the steps the local authority can take to safeguard the child's welfare
    is to apply to the court for a care order under section 31. If a care order is
    made, the local authority is under a duty to receive the child into its care.

    Since 1 April 1991 there has been a statutory complaints procedure
    applicable to these provisions. Under section 7(B) of the Local Authority
    Social Services Act, 1970, (as inserted by section 50 of the National Health
    Service and Community Care Act 1990) provision was made for the Secretary
    of State to require, as from 1 April 1991. the local authority to establish a
    complaints procedure in accordance with his directions. This power was
    exercised by the Local Authority Social Services (Complaints Procedure)
    Order 1990 (S.I. 1990 No. 2244) which came into force on 1 April 1991.
    Under that procedure, complaints can be brought relating to all the local
    authorities duties under the Children Act 1989. In addition, section 26 (3) of
    the 1989 Act contains a provision requiring the local authority to establish a
    complaints procedure relating to its function under Part III of the Act.
    Therefore since 1 April 1991 there have in effect been statutory complaints
    procedures applicable to all the local authorities functions under the 1989 Act.

    In the course of the argument before your Lordships, an additional
    factor emerged which was not drawn to the attention of the Court of Appeal.
    Section 7 of the Local Authority Social Services Act 1970 provides:

    "7(1) Local authorities shall, in the exercise of their social services
    functions, including the exercise of any discretion conferred by any
    relevant enactment act under the general guidance of the Secretary of
    State."

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    As from 1 April 1991. the 1970 Act was amended by section 50 of the
    National Health Service and Community Care Act 1990 to include a new
    section 7 A which provides:

    "(1) Without prejudice to section 7 of this Act. every local authority
    shall exercise their social services functions in accordance with such
    directions as may be given to them under this section by the Secretary
    of State."

    "Social services functions" include the child welfare functions of a local
    authority.

    The Secretary of State has given relevant guidance under these
    provisions in the form of a publication called "Working Together". The latest
    edition (1991) is directed to the 1989 Act procedures. An earlier edition
    (1988) is similar though less precise. As its title suggests, the guidance
    (which has statutory force) emphasises the importance in this field of inter-
    disciplinary and inter-agency links and the need for a close working
    relationship between "social service departments, the police service, medical
    practitioners, community health workers, the education service and others who
    share a common aim to protect the child at risk". The central supervising
    body in each area is the Area Child Protection Committee ("ACPC") on which
    all the interested agencies are represented. The ACPC is responsible for
    establishing and monitoring procedures. The Child Protection Conference is
    an essential stage in each individual case. It brings together the professionals
    involved in that case and the family. It decides whether a child should be put
    on the child protection register and makes recommendations for action.

    The claim for breach of statutory duty: Category (A)

    The Court of Appeal were unanimous in striking out these claims in
    both actions. I agree. My starting point is that the Acts in question are all
    concerned to establish an administrative system designed to promote the social
    welfare of the community. The welfare sector involved is one of peculiar
    sensitivity, involving very difficult decisions how to strike the balance between
    protecting the child from immediate feared harm and disrupting the
    relationship between the child and its parents. Decisions often have to be
    taken on the basis of inadequate and disputed facts. In my judgment in such
    a context it would require exceptionally clear statutory language to show a
    parliamentary intention that those responsible for carrying out these difficult
    functions should be liable in damages if, on subsequent investigation with the
    benefit of hindsight, it was shown that they had reached an erroneous
    conclusion and therefore failed to discharge their statutory duties.

    It is true that the legislation was introduced primarily for the protection
    of a limited class, namely children at risk, and that until April 1991 the
    legislation itself contained only limited machinery for enforcing the statutory
    duties imposed. But in my view those are the only pointers in favour of

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    imputing to Parliament an intention to create a private law cause of action.
    When one turns to the actual words used in the primary legislation to create
    the statutory duties relied upon in my judgment they are inconsistent with any
    intention to create a private law cause of action.

    Thus, the duty imposed by section 2 (2) of the 1969 Act to bring care
    proceedings is made conditional upon the subjective judgment of the local
    authority that there are grounds for so doing. Similarly, the duty to receive
    a child into care under section 2 (1) of the 1980 Act only arises 'where it
    appears to a local authority" that the parents are prevented from providing
    properly for the child and that its intervention is necessary in the interest of
    the child. So far as the 1989 Act is concerned, the duty relied on in section
    17 is described as "a general duty" which has two pans: (a) to safeguard the,
    children and (b) "so far as is consistent" with (a) to promote the upbringing
    of the children by their families. Thus not only is the duty not a specific one
    but the section itself points out the basic tension which lies at the root of so
    much child protection work: the decision whether to split the family in order
    to protect the child. I find it impossible to construe such a statutory provision
    as demonstrating an intention that even where there is no carelessness by the
    authority it should be liable in damages if a court subsequently decided with
    hindsight that the removal, or failure to remove, the child from the family
    either was or was not "consistent with" the duty to safeguard the child.

    All the duties imported by Schedule 2 to the Act of 1989 are to "take
    reasonable steps" to do certain things. The duty to make enquiries under
    section 47 is limited to "such enquiries as they consider necessary". Thus all
    the statutory provisions relied upon in the Bedfordshire case are. as one would
    expect, made dependent upon the subjective judgment of the local authority.
    To treat such duties as being more than public law duties is impossible.

    The decision in Thornton v. Kirklees Metropolitan Borough Council
    [1979] Q.B. 626 was relied upon as showing that a statute can create a private
    law cause of action for damages for breach of a statutory duty even if the duty
    is dependent upon the defendant having first formed a subjective belief. That
    decision is in some respects a puzzling one and may need to be reconsidered
    at some future date: see Cocks v. Thanet District Council [1983] 2 A.C. 286.
    It is sufficient to say that it has no application to the present case since in that
    case it was conceded by the defendants that the condition precedent to the
    creation of the statutory duty (i.e. the formation of the belief) had been
    satisfied (see at pp. 636B-C and 643G) and that a legal duty was owed to the
    plaintiff as an individual: p. 638F-G.

    In the Newham case, the claim by the plaintiffs for damages for breach
    of statutory duty (Category (A)) was founded solely on sections 1 and 18 of
    the 1980 Act: the 1989 Act was not in force at the relevant time. The claim
    was only faintly pursued by Mr. Munby and. for the reasons given by Peter
    Gibson L.J. in the Court of Appeal [1994] 2 W.L.R. 554. 590, in my
    judgment it is ill founded.

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    For these reasons, (which are in substance the same as those of the
    Court of Appeal) the claims in both abuse cases to the extent that they are
    based on a claim for damages for breach of statutory duty simpliciter were
    rightly struck out.

    Direct common law duty of care owed by the local authorities

    In the Newham case it is not alleged that the borough council was
    under any direct duty of care to the plaintiffs: the case is based solely on the
    vicarious liability of the council and the health authority for the negligence of
    their servants.

    In the Bedfordshire case, Mr. Jackson formulated the common law
    duty of care owed by the county council as being "a duty to children in
    respect of whom they receive reports of neglect or ill-treatment to take
    reasonable care to protect such children". The first question is whether the
    determination by the court of the question whether there has been a breach of
    that duty will involve unjusticiable policy questions. The alleged breaches of
    that duty relate for the most part to the failure to take reasonable practical
    steps, e.g. to remove the children, to allocate a suitable social worker or to
    make proper investigations. The assessment by the court of such allegations
    would not require the court to consider policy matters which are not
    justiciable. They do not necessarily involve any question of the allocation of
    resources or the determination of general policy. There are other allegations
    the investigation of which by a court might require the weighing of policy
    factors, e.g. allegations that the county council failed to provide a level of
    service appropriate to the plaintiffs' needs. If the case were to go to trial, the
    trial judge might have to rule out these issues as not being justiciable. But
    since some of the allegations are justiciable, it would not be right to strike out
    the whole claim on this ground.

    Next, do the allegations of breach of duty in the operational field all
    relate to decisions the power to make which Parliament has conferred on the
    local authority, i.e. are they all decisions within the ambit of the local
    authority's statutory discretion? I strongly suspect that, if the case were to go
    to trial, it would eventually fail on this ground since, in essence, the complaint
    is that the local authority failed to take steps to remove the children from the
    care of their mother, i.e. negligently failed properly to exercise a discretion
    which Parliament has conferred on the local authority. But again, it would
    not be right to strike out the claim on this ground because it is possible that
    the plaintiffs might be able to demonstrate at trial that the decisions of the
    local authority were so unreasonable that no reasonable local authority could
    have reached them and therefore, for the reasons given by Lord Reid in
    Dorset Yacht [1970] A.C. 1004, 1031, as at p. 15, fall outside the ambit of
    the discretion conferred by Parliament.

    I turn then to consider whether, in accordance with the ordinary
    principles laid down in Caparo [1990] 2 A.C. 605, the local authority in the

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    Bedfordshire case owed a direct duty of care to the plaintiffs. The local
    authority accepts that they could foresee damage to the plaintiffs if they
    carried out their statutory duties negligently and that the relationship between
    the authority and the plaintiffs is sufficiently proximate. The third
    requirement laid down in Caparo is that it must be just and reasonable to
    impose a common law duty of care in all the circumstances. It was submitted
    that this third requirement is only applicable in cases where the plaintiffs'
    claim is for pure economic loss and that it does not apply where, as in the
    child abuse cases, the claim is for physical damage. I reject this submission:
    although Caparo and many other of the more recent cases were decisions
    where only pure economic loss was claimed, the same basic principles apply
    to claims for physical damage and were applied in, for example, Hill v. Chief

    Constable of West Yorkshire [1989] A.C. 53.


    Is it, then, just and reasonable to superimpose a common law duty of
    care on the local authority in relation to the performance of its statutory duties
    to protect children? In my judgment it is not. The Master of the Rolls took
    the view, with which I agree, that the public policy consideration which has
    first claim on the loyalty of the law is that wrongs should be remedied and
    that very potent counter considerations are required to override that policy
    [1994] 2 W.L.R. 554, 572F. However, in my judgment there are such
    considerations in this case.

    First, in my judgment a common law duty of care would cut across the
    whole statutory system set up for the protection of children at risk. As a
    result of the ministerial directions contained in "Working Together" the
    protection of such children is not the exclusive territory of the local
    authority's social services. The system is inter-disciplinary, involving the
    participation of the police, educational bodies, doctors and others. At all
    stages the system involves joint discussions, joint recommendations and joint
    decisions. The key organisation is the Child Protection Conference, a multi-
    disciplinary body which decides whether to place the child on the Child
    Protection Register. This procedure by way of joint action takes place, not
    merely because it is good practice, but because it is required by guidance
    having statutory force binding on the local authority. The guidance is
    extremely detailed and extensive: the current edition of "Working Together"
    runs to 126 pages. To introduce into such a system a common law duty of
    care enforceable against only one of the participant bodies would be
    manifestly unfair. To impose such liability on all the participant bodies would
    lead to almost impossible problems of disentangling as between the respective
    bodies the liability, both primary and by way of contribution, of each for
    reaching a decision found to be negligent.