On 15 February 2000, the Report of the Tribunal of Inquiry into the Abuse of Children in Care in Wales, entitled "Lost in Care" was published. On the same day the Court of Appeal (Lord Justice Robert Walker, Lord Justice May and Lord Justice Tuckey) began the hearing of two appeals in child abuse cases - S v Gloucestershire County Council and L v London Borough of Tower Hamlets and London Borough of Haveringi. Both these cases raised similar issues, in that, in both cases:

(a) the Claimant alleged he/she had been sexually abused as a child in care;

(b) the Claimant alleged negligence against a local authority which had placed the Claimant with foster parents who had perpetrated the abuse (in the S v Gloucestershire CC case it was also alleged that after removal of the Claimant from the foster home he should have been given counselling and medical treatment and found a suitable alternative long term placement);

(c) the Defendant had applied to strike out the claim before the introduction of the CPR and pursuant to RSC Order 18 rule 19 as showing no cause of action;

(d) the Judge in each case [Toulson J. in S and HH Judge Platt in L] had allowed the Defendant 's application and struck out the claims applying the reasoning in: X v Bedfordshire CCii ; H v Norfolk iii [ and Barrett v Enfield London Borough Council, C of Aiv;

(e) the Claimant had been granted leave to appeal by the Court of Appeal;

(f) the hearing of the appeals had been adjourned from June 1998 until after the decision in the House of Lords in the case of Barrett v Enfield LBC; H of Lv

(g) the Defendant sought to argue in the Court of Appeal that the case should now be struck out under CPR part 3(4)(2)but if the Court declined to strike out the claim then there should be summary judgment for the Defendant under CPR part 24.2.

The two cases were originally listed with other post Barrett appeals. However the other cases were all resolved on this point prior to the hearing date.

In the course of hearing the S and L appeals, the Court of Appeal considered it was right to entertain applications for summary judgment as alternative applications to the strike out applications from which the appeals were brought. In case of S v Gloucstershire CC, both the applications for striking out and for summary judgment under the CPR were successfully resisted, the appeal was allowed and the Court of Appeal ordered that the case should go to trial. In the case of L v London Boroughs of Tower Hamlets and Havering the Court concluded having examined social services records that the case had no real prospect of success and dismissed the appeal.

The Defendants in both cases argued that the decision in the House of Lords in Barrett v Enfield LBC applied only to children who had been in care but not been abused. That is that if the case could properly be categorised as a "child abuse case" then it was in the same category as the claims relating to child abuse in the X v Bedfordshire CC litigation and was unaffected by Barrett v Enfield CC. The Claimants argued that the label "child abuse claims" had only been used in the X v Bedfordshire litigation to distinguish the social services claims from the education claims and did not properly identify a category of case covered by the ruling of the House of Lords in X v Bedfordshire CC. The Claimants drew attention to the distinction made in Barrett v Enfield LBC between the situation where a child was in the care of a local authority and the authority had assumed responsibility for the child's welfare and those cases where a child remained at home with its natural parents and removal involved a multi-disciplinary decision and a possible conflict with the parents.

The judgment of Lord Justice May (with which the other Judges agreed) reviews in depth this developing area of the law and provides a detailed analysis of the cases. Having examined and summarised the principles that emerge, Lord Justice May concluded that:

"It is clear from these principles that in an ordinary case a local authority defendant is unlikely to establish a defence which relies on a blanket immunity. It would be a blanket immunity for this purpose if it were decided without reference to particular facts that all cases which have similar characteristics were not justiciable; or that in every case with certain characteristics it was not just or reasonable to impose a duty of care. Thus it seems to me it would be incorrect to say, as counsel for the local authorities were inclined to submit in appeals before this court, that cases which may be labelled child abuse cases are bound to fail as a class. The "child abuse cases" was no more than a convenient label under which the Bedfordshire and Newham cases travelled"

Lord Justice May went on to consider the status of the case of H v Norfolk which the Defendants relied on for the proposition that a child placed with foster parents could not have a cause of action against the local authority arising out of the activities or abuse of the foster parents. The House of Lords in Barrett v Enfield had not specifically found it necessary to overrule the decision in H v Norfolk and nor had they approved it. There is however considerable difficulty in reconciling the decision in H v Norfolk (a ruling on leave to appeal only) with Barrett v Enfield. In particular as the distinction between a child in care and a child still at home was found by the Court of Appeal in H v Norfolk to be unhelpful and found by the House of Lords in Barrettv Enfield LBC to be of considerable significance. Lord Justice May stated:

"...I am inclined to think that the House of Lords' decision in Barrett v Enfield requires the court to say that H v Norfolk was wrongly decided.....I do not consider that the decision in H v Norfolk can withstand the intrinsic reasoning in Barrett v Enfield in the House of Lords."

This is a n important and significant part of the judgment in these cases. The unresolved status of H v Norfolk was causing some considerable uncertainty in respect of any cases involving foster parents. Defendants have continued to argue, as they did in these cases, that foster care was a ring-fenced area in which no claims could be brought. Further Defendants sought to argue that children placed in care homes or schools were in a similar position to children placed with foster parents and likewise the Defendant authority could have no responsibility for the children in those placements. Claimants on the other hand argued either that their particular cases were distinguishable or that H v Norfolk was inconsistent with Barrett v Enfield.

The impact of this ruling that H v Norfolk must be overruled is therefore to re-enforce the House of Lords ruling in Barrett v Enfield that these type of cases need to be examined on their own facts. Bearing in mind the huge spectrum of complaints made in claims against local authorities this is obviously the fair approach. Once these claims start to be heard on their facts the strengths and weaknesses of particular types of allegations will start to form a pattern. Further once the claims begin to be heard the standard expected of social workers as measured by the test in Bolam v Frien Hospital Management Committee vi will become clearer for each relevant era.

The judgments in S v Gloucestershire and L v London Boroughs of Tower Hamlets and Havering were handed down on 14 March 2000. Two days later the House of Lords delivered their opinions in the case of W v Essex CCvii. In this case the claim against the local authority is brought by foster parents and their natural children as a result of the children being sexually abused by a foster child placed in the family. The Claimants allege the family were told the foster child had no record of sexually abusing other children but this was incorrect as the social services records themselves revealed a history of sexual abuse by the foster child. In these circumstances the parents who had been responsible (albeit innocently) for bringing the foster child into their family, where he abused their own children, claimed for the psychiatric damage they suffered as a result of these events.

The children claimed for both psychiatric and physical damage. The Court of Appeal by a majority (Lord Justice Stuart-Smith dissenting) allowed the children's claims to proceed but struck out the parents' claims. The reasoning in the Court of Appeal was set out very shortly y Lord Justice Stuart-Smith (with whom the other Judges agreed on this point). The reasoning depended on analysing the parents as secondary victims who failed to bring themselves within the strict rigours of the test in Alcock v Chief Constable of South Yorkshire Policeviii in that they had not actually witnessed their children being abused or been involved in the immediate aftermath.

The Claimant parents argued that either they were primary victims within the Lord Oliver classification in Alcock or they were secondary victims who were sufficiently connected to the events that they could claim. The need for proving proximity did not arise in the same way as the Alcock type cases as there was a pre-existing relationship between the parents and the local authority which had given rise to the circumstances in which injury was sustained.

On the basis that at this stage the House of Lords was only concerned with whether the claim was arguable Lord Slynn (with whom the other 4 Judges agreed) stated that:

"...the categorisation of those claiming to be included as primary or secondary victims is not as I read the cases finally closed..."

In respect of the parents potential as primary victims he stated:

".................I do not consider that any of the cases to which your Lordships have been referred conclusively shows that, if the psychiatric injury suffered by the parents flows from a feeling that they brought the abuser and the abused together or that they have a feeling of responsibility that they did not detect earlier what was happening, they are prevented from being primary victims................"

In respect of their potential as secondary victims he stated:

"I am not persuaded that in a situation like the present the parents must come across the abuser or the abused "immediately" after the sexual incident has terminated. All the incidents here happened in the period of four weeks before the parents learned of them ..."

Lord Slynn suggests that whilst a Judge might after investigation find the necessary temporal and spatial limitations not met it was not clear that he must do so. Applying the flexibility contemplated by Lord Scarman the necessary limitations might be satisfied.

The decision in W v Essex like that in S v Gloucestershire stresses the importance of actual findings in abuse cases rather than the application of blanket legal principles. Investigation of the facts is a necessary pre-requisite for establishing the parameters in cases of this type. The law is developing and there are no comparable cases from which the principles can be lifted and then applied. In the course of the next year some of these cases will finally come to trial. The application of the principles set out by the House of Lords in the strike out cases will then be tested and the boundaries of the responsibility of a local authority for social services provision be more clearly drawn.