Court rules against suing in child abuse cases

BMJ 1995; 311 doi: (Published 08 July 1995) Cite this as: BMJ 1995;311:79

Local authorities in Britain cannot be sued if they wrongly take children into care or leave them unprotected when they should have acted, five law lords ruled last week. The judgment by the House of Lords in two test cases, which had been anxiously awaited for eight months, will halt dozens of cases pending against local councils over the exercise of their child protection functions.

The judgment also protects paediatricians and child psychiatrists from actions for negligence over their investigation and advice in cases of suspected child abuse. Had the point been taken after the child abuse crisis in Cleveland, the £1m settlement for the families that were involved could probably have been avoided.

M, now aged 12, and her mother, 29, had sued the London Borough of Newham, Newham Health Authority, and a child psychiatrist, Dr Eileen Vizard, after the girl was taken into care at the age of 4 and separated from her mother for nearly a year. The decision was taken after Dr Vizard wrongly concluded that the girl had been sexually abused by her mother's boyfriend. In fact the abuser was a cousin with the same first name.

In the second case the Ps, a family of five children aged between 5 and 12, sued Bedfordshire County Council for knowingly leaving them to suffer at least five years of emotional abuse and neglect from their parents before taking them into care. Reports about their plight from relatives, police, their general practitioner, the head teacher of their school, and the National Society for the Prevention of Cruelty to Children dated back to 1987, but the council delayed seeking care orders until October 1992.

In both cases lawyers for the councils asked the High Court to strike out the claims, arguing that individuals harmed by any failure to carry out their duties properly had no right to sue for damages. All the defendants deny that they were negligent or in breach of their statutory duty, and the court will not now be called on to decide the issue.

The High Court struck out the claims, and the Appeal Court confirmed the decision by a 2 to 1 majority. The master of the rolls, Sir Thomas Bingham, would have allowed the children in both cases, though not the mother in the case of M, to sue for negligence. Delivering the leading judgment in the House of Lords, Lord Browne-Wilkinson said that to allow councils to be sued for negligence over their child protection duties would “cut across the whole statutory system set up for the protection of children at risk.” The system was interdisciplinary, with the police, educational bodies, doctors, and others having a role, and involved joint recommendations, discussions, and decisions. To introduce into the system a duty of care enforceable against only one of these bodies would be “manifestly unfair.” To impose it on all would lead to “almost impossible problems of disentangling.”

If they were to be liable for damages local authorities might adopt a more cautious and defensive approach, leading to delays, which would prejudice those who had suffered child abuse, and a heavier workload, which would reduce the time available for other children to be dealt with. “In my judgment the courts should proceed with great care before holding liable in negligence those who have been charged by parliament with the task of protecting society from the wrongdoings of others,” said Lord Browne-Wilkinson.--CLARE DYER, legal correspondent, BMJ

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