Parents Can Sue Council Over Sex-Abuse Foster Child

W v Essex County Council

Before Lord Slynn of Hadley, Lord Steyn, Lord Hope of Craighead, Lord Hobhouse of Woodborough and Lord Millett

Speeches March 16, 2000

A claim by parents for damages in negligence for their psychiatric injury arising from the placement with them of a foster child who was known to the placing authority as a sexual abuser and who subsequently abused the parents' own children was not so clearly bad that it ought to be struck out.

The House of Lords so held in allowing an appeal by the parents against the dismissal by the Court of Appeal (Lord Justice Stuart-Smith, Lord Justice Judge and Lord Justice Mantell) (The Times April 9, 1998; [1999] Fam 90) of their appeal from the decision of Mr Justice Hooper (the Times July 16, 1997; [1997] 2 FLR 535) to strike out their claim in negligence against the defendants, Essex County Council and Anthony Golden, a social worker.

Mr Allan Levy, QC and Ms Elizabeth Anne Gumbel, QC, for the plaintiffs; Mr Edward Faulks, QC and Mr Andrew Warnock for the defendants.

LORD SLYNN said that it could not be said that the claim that there was a duty of care owed to the parents and a breach of that duty by the defendants was unarguable, that it was clear and obvious that it could not succeed.

On the contrary whether it was right or wrong on the facts found at the end of the day, it was on the facts alleged plainly a claim which was arguable.

In their case the parents made it clear that they were anxious not to put their children at risk by having a known sex abuser in their home.

The council and the social worker knew that and also knew that the boy placed had already committed an act or acts of sex abuse. The risk was obvious and the abuse happened.

Whether the nature of the council's task was such that the court should not recognise an actionable duty of care, in other words that the claim was not justiciable, and whether there was a breach of the duty depended, in the first place, on an investigation of the full facts known to, and the factors influencing the decision of the defendants.

There had been important developments in the cases dealing with liability for psychiatric injury which beyond doubt could constitute a head of damage. In McLoughlan v O'Brien ([1983] 1 AC 410) it was accepted that there were limitations to the category of persons not suffering physical injury who could claim.

Those limitations were spelt out in Alcock v Chief Constable of South Yorkshire Police ([1992] 1 AC 310) in which it was accepted that the person claiming who was not directly involved in the incident must have seen or heard the incident or come upon it in the immediate aftermath.

On a strike out application it was not necessary to decide whether the parents' claim must or should succeed if the facts they alleged were proved.

On the contrary, it would be wrong to express any view on that matter.

The question was whether if the facts were proved they must fail. it was not enough to recognise, as his Lordship did, that the parents might have difficulty in establishing their claim.

On the other hand it was impossible to say that the psychiatric injury they claimed was outside the range of psychiatric injury which the law recognised. Prima facie pleaded it was more than "acute grief": see dicta of Lord Steyn in Frost v Chief Constable of South Yorkshire Police ([1999] AC 455, 493-494).

Nor was it possible to say that a person of reasonable fortitude would be bound to take in his or her stride being told of the sexual abuse of his or her young children when that person had, even innocently, brought together the abuser and abused.

A judge might find on a full investigation of the circumstances that they might. His Lordship did not feel sufficiently informed on the detailed facts to rule it out.

That, however, was only the beginning. Was it clear beyond reasonable doubt that the parents could not satisfy the necessary criteria as "primary" or "secondary" victims?

As to being primary victims it was beyond doubt that they were not physically injured by the abuse and on the present allegations it did not seem reasonably foreseeable that there was a risk of sexual abuse of the parents.

But the categorisation of those claiming to be included as primary or secondary victims was not finally closed. It was a concept still to be developed in different factual situations.

None of the cases to which their Lordships had been referred conclusively showed that, if the psychiatric injury suffered by the parents flowed from a feeling that they had brought the abuser and the abused together or that they had a feeling of responsibility that they did not detect earlier what was happening, they were prevented from being primary victims.

While it was accepted that there had to be some temporal and spatial limitation on the persons who could claim to be secondary victims, very much for the reasons given by Lord Steyn in Frost, the concept of "the immediate aftermath" of the incident had to be assessed in the particular factual situation.

His Lordship was not persuaded that in a situation like the present one the parents had to come across the abuser or the abused "immediately" after the sexual incident had terminated.

All the incidents in the instant case happened in the period of four weeks before the parents learned of them. It might be that if the matter were investigated in depth a judge would think that the temporal and spatial limitations were not satisfied.

The parents' claim could not be said to be so certainly or clearly bad that they should be banned from pursuing it to trial.

Lord Steyn, Lord Hope, Lord Hobhouse and Lord Millett agreed.

Solicitors: Sternberg Reed Taylor & Gill, Barking; Barlow Lyde & Gilbert.