COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHESTER COUNTY COURT
His Honour Judge Hale
LEEDS COUNTY COURT
His Honour Judge Grenfell
MANCHESTER DISTRICT REGISTRY
The Hon Mr Justice Simon
London, WC2A 2LL
B e f o r e :
LADY JUSTICE HALE
LORD JUSTICE LATHAM
| (1) JD, (2) MAK and RK (3) RK and Anor
|- and -
|(1) East Berkshire Community Health
(2) Dewsbury Health Care NHS Trust and Kirklees Metropolitan Council
(3) Oldham NHS Trust and Dr Blumenthal
As Approved by the Court
Crown Copyright ©
AS APPROVED BY THE COURT
CROWN COPYRIGHT ©
Crown Copyright ©
Lord Phillips, MR :
This is the judgment of the Court.
The first general issue
"On that understanding the court considers that applicants must be taken to have a right, derived from the law of negligence, to seek an adjudication on the admissibility and merits of an arguable claim that they were in a relationship of proximity to the police, that the harm caused was foreseeable and that in the circumstances it was fair, just and reasonable not to apply the exclusionary rule outlined in the Hill case. In the view of the court the assertion of that right by the applicants is in itself sufficient to ensure the applicability of article 6(1) of the Convention."
"Having so defined the ambit of article 6, the Strasbourg Court held that there was in the Osman case a breach of such right of access to the English court, such breach lying in the application of a blanket exclusionary rule which excludes all claims against the police for negligent failure to investigate or protect from crime. In the view of the Strasburg Court, apparently, the applicability of such exclusionary rule has to be decided afresh in each individual case. If this is not done then it is impossible to determine whether the public interest in an efficient police force is or is not proportionate to the seriousness of the harm suffered by the plaintiff in the individual case: see paragraph 150. On these grounds, the Strasbourg Court held that the English court had breached article 6 by striking out the claim made by the Osmans against the police without hearing any evidence by reference to which the proportionality of the rule in that particular case could be judged. The Court said that the police had been granted a "blanket immunity" which was disproportionate and therefore an unjustifiable restriction on the Osmans' right of access to the court. The Osmans were entitled to have their case against the police determined in deserving cases: see paragraphs 151 and 152.
The problems in applying this reasoning to the English law of negligence are many and various. For example, the correct answer to the following points is not immediately apparent. 1. Although the word "immunity" is sometimes incorrectly used, a holding that it is not fair, just and reasonable to hold liable a particular class of defendants whether generally or in relation to a particular type of activity is not to give immunity from a liability to which the rest of the world is subject. It is a prerequisite to there being any liability in negligence at all that as a matter of policy it is fair, just and reasonable in those circumstances to impose liability in negligence. 2. In a wide range of cases public policy has led to the decision that the imposition of liability would not be fair and reasonable in the circumstances, eg some activities of financial regulators, building inspectors, ship surveyors, social workers dealing with sex abuse cases. In all these cases and many others the view has been taken that the proper performance of the defendant's primary functions for the benefit of society as a whole will be inhibited if they are required to look over the shoulder to avoid liability in negligence. In English law the decision as to whether it is fair, just and reasonable to impose a liability in negligence on a particular class of would-be defendants depends on weighing in the balance the total detriment to the public interest in all cases from holding such class liable in negligence as against the total loss to all would-be plaintiffs if they are not to have a cause of action in respect of the loss they have individually suffered. 3. In English law, questions of public policy and the question whether it is fair and reasonable to impose liability in negligence are decided as questions of law. Once the decision is taken that, say, company auditors though liable to shareholders for negligent auditing are not liable to those proposing to invest in the company (see the Caparo Industries case (1990) 2 AC 605), that decision will apply to all future cases of the same kind. The decision does not depend on weighing the balance between the extent of the damage to the plaintiff and the damage to the public in each particular case."
"In so far as the Osman case  1 FLR 193 underlined the dangers of a blanket approach so much better. However, it would be wrong for the Osman decision to be taken as a signal that, even when the legal position is clear and an investigation of the facts would provide no assistance, the courts should be reluctant to dismiss cases which have no real prospect of success. Courts are now encouraged, where an issue or issues can be identified which will resolve or help resolve litigation, to take that issue or those issues at an early stage of the proceedings so as to achieve expedition and save expense. There is no question of any contravention of article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd 8969) in so doing. Defendants as well as claimants are entitled to a fair trial and it is an important part of the case management function to bring proceedings to an end as expeditiously as possible. Although a strike out may appear to be a summary remedy, it is in fact indistinguishable from deciding a case on a preliminary point of law."
"The striking out procedure, now contained in r.3.4(2) of the Civil Procedure Rules 1998 in force since 1999, is regarded as an important feature of English civil procedure, performing the function of securing speedy and effective justice, inter alia by allowing it to be decided promptly which issues need full investigation and trial and disposing summarily of the others. By means of this procedure, it can be determined at an early stage, with minimal cost to the parties, whether the facts as pleaded reveal a claim existing in law."
"100. The applicants, and the Commission in its report, relied on the Osman case ( 1 FLR 193, (2000) 29 EHRR 245) as indicating that the exclusion of liability in negligence, in that case concerning the acts or omissions of the police in the investigation and prevention of crime, acted as a restriction on access to court. The Court considers that its reasoning in the Osman judgment was based on an understanding of the law of negligence (see, in particular, paras 138 and 139 of the Osman judgment) which has to be reviewed in the light of the clarifications subsequently made by the domestic courts and notably the House of Lords. The Court is satisfied that the law of negligence as developed in the domestic courts since the case of Caparo Industries plc v Dickman and Others  2 AC 605 (cited above, para 58) and as recently analysed in the case of Barrett v London Borough of Enfield (above) includes the fair, just and reasonable criterion as an intrinsic element of the duty of care and that the ruling of law concerning that element in this case does not disclose the operation of an immunity. In the present case, the Court is led to the conclusion that the inability of the applicants to sue the local authority flowed not from an immunity but from the applicable principles governing the substantive right of action in domestic law. There was no restriction on access to court of the kind contemplated in Ashingdane v United Kingdom (1985) 7 EHRR 528.
101. The applicants may not therefore claim that they were deprived of any right to a determination on the merits of their negligence claims. Their claims were properly and fairly examined in light of the applicable domestic legal principles concerning the tort of negligence. Once the House of Lords had ruled on the arguable legal issues that brought into play the applicability of Art 6(1) of the Convention (see paras 87-89 above), the applicants could no longer claim any entitlement under Art 6(1) to obtain any hearing concerning the facts. As pointed out above, such a hearing would have served no purpose, unless a duty of care in negligence had been held to exist in their case. It is not for this Court to find that this should have been the outcome of the striking out proceedings since this would effectively involve substituting its own views as to the proper interpretation and content of domestic law.
102. It is nonetheless the case that the interpretation of domestic law by the House of Lords resulted in the applicants' case being struck out. The tort of negligence was held not to impose a duty of care on the local authority in the exercise of its statutory powers. Their experiences were described as 'horrific' by a psychiatrist (see para 40 above) and the Court has found that they were victims of a violation of Art 3 (see 74 above). Yet the outcome of the domestic proceedings they brought is that they, and any children with complaints such as theirs, cannot sue the local authority in negligence for compensation, however foreseeable - and severe - the harm suffered and however unreasonable the conduct of the local authority in failing to take steps to prevent that harm. The applicants are correct in their assertions that the gap they have identified in domestic law is one that gives rise to an issue under the Convention, but in the Court's view it is an issue under Art 13, not Art 6(1)."
"Whether a person has an actionable domestic claim may depend not only on the substantive content, properly speaking, of the relevant civil right as defined under national law but also on the existence of procedural bars preventing or limiting the possibilities of bringing potential claims to court. In the latter kind of case Article 6(1) may have a degree of applicability. Certainly the Convention enforcement bodies may not create by way of interpretation of Article 6(1) a substantive civil right which has no legal basis in the State concerned. However, it would not be consistent with the rule of law in a democratic society or with the basic principle underlying Article 6(1) - namely that civil claims must be capable of being submitted to a judge for adjudication - if, for example, a State could, without restraint or control by the Convention enforcement bodies, remove from the jurisdiction of the courts a whole range of civil claims or confer immunities from civil liability on large groups or categories of persons."
The Court added at paragraph 67:
"It is not always an easy matter to trace the dividing line between procedural and substantive limitations of a given entitlement under domestic law. It may sometimes be no more than a question of legislative technique whether the limitation is expressed in terms of the right or its remedy."
"The uncertain shadow of Osman still lies over this area of the law"
The second issue
What did the Bedfordshire cases decide?
The child abuse cases
"…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.
…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."
"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 follow:
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(2) 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 (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 cases.
The Children Act 1989 come into force on 14th October 1991 and is therefore relevant in relation to the later stages of the Bedfordshire cases. 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)-(a) to safeguard and promote the welfare of children within their area who are in need: and (b) 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 1 of schedule 2.
Schedule 2, Part 1, 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 20(1) which provides:
(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-… (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) provides:
(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 inquiries 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 that 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."
"….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 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" [to give rise to a duty of care].
He held, however, that there were special considerations for concluding that it was not just and reasonable to impose such a duty.
"(1) A common law duty of care would cut across the whole statutory system set up for the protection of children at risk. This is inter-disciplinary, involving the participation of the police, education bodies, doctors and others. It would be almost impossible to disentangle the respective liability of each for reaching a decision found to be negligent. (2) The task of the local authority and its servants in dealing with children at risk is extraordinarily delicate. (3) If there were potential liability for damages, it might well mean that local authorities would adopt a more cautious and defensive approach to their duties. (4) The relationship between the social worker and the child's parents is often one of conflict. This would be likely to breed ill feeling and often hopeless litigation which would divert money and resources away from the performance of the social service for which they were provided. (5) There were other remedies for maladministration of the statutory system for the protection of children in statutory complaints procedures and the power of the local authorities ombudsman to investigate cases. (6) The development of novel categories of negligence should proceed incrementally and by analogy with decided categories. There were no close such analogies. The court 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 wrong doings of others."
"The social workers and the psychiatrists were retained by the local authority to advise the local authority, not the plaintiffs. The subject matter of the advice and activities of the professionals is the child. Moreover the tendering of any advice will in many cases involve interviewing and, in the case of doctors, examining the child. But the fact that the carrying out of the retainer involves contact with and relationship with the child cannot alter the extent of the duty owed by the professionals under the retainer from the local authority.
In my judgment in the present cases, the social workers and the psychiatrist did not, by accepting the instructions of the local authority, assume any general professional duty of care to the plaintiff children. The professionals were employed or retained to advise the local authority in relation to the well being of the plaintiffs but not to advise or treat the plaintiffs.
Even if, contrary to my view, the social workers and psychiatrist would otherwise have come under a duty of care to the plaintiffs, the same considerations which have led me to the view that there is no direct duty of care owed by the local authorities apply with at least equal force to the question whether it would be just and reasonable to impose such a duty of care on the individual social workers and the psychiatrist"
The educational cases
"Whilst not casting doubt on the validity of these factors in the context of the investigations, or the steps which it was said should have been taken, in those cases of child abuse and neglect of educational needs, it does not seem to me that they necessarily have the same force separately or cumulatively in the present case. Thus, although once a child is in care, there may well be co-operation between different social welfare bodies, the responsibility is that of the local authority and its social and other professional staff. The decision to remove the child from its home is already taken and the authority has statutory powers in relation to the child which do not necessarily involve the exercise of the kind of discretion involved in taking a child from its family into care. As to the likelihood of an authority being over-cautious, I am of the same opinion as Evans LJ in the Court of Appeal in this case  QB 267, 380:
"I would agree that what is said to be a 'policy' consideration, namely, that imposing a duty of care might lead to defensive conduct on the part of the person concerned and might require him to spend time or resources on keeping full records or otherwise providing for self-justification, if called upon to do so, should normally be a factor of little, if any, weight. If the conduct in question is of a kind which can be measured against the standards of the reasonable man, placed as the defendant was, then I do not see why the law in the public interest should not require those standards to be observed."
Nor do I think the remedies accepted to be available in the Bedfordshire case  2 AC 633 are likely to be as efficacious as the recognition by the court that a duty of care is or may be owed at common law. I agree with Sir Thomas Bingham MR in his dissenting judgment in the Court of Appeal in the Bedfordshire case, at p.662G: "I cannot accept, as a general proposition, that the imposition of a duty of care makes no contribution on the maintenance of high standards."
In summary the Bedfordshire case establishes that decisions by local authorities whether or not to take a child into care with all the difficult aspects that involves and all the disruptions which may come about are not ones which the courts will review by way of a claim for damages in negligence, though there may be other remedies by way of judicial review or through extra judicial routes such as the Ombudsman.
The question in the present case is different since the child was taken into care; it is therefore necessary to consider whether any acts or omissions and if so what kind of acts or omissions can ground a claim in negligence. The fact that no completely analogous claim has been accepted by the courts previously points to the need for caution and the need to proceed 'incrementally' and 'by analogy with decided cases'."
"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. There would be a blanket immunity for this purpose if it were decided without reference to a particular fact that all cases which have certain basic 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 that 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 as child abuse cases are bound to fail as a class. The "child abuse cases" was no more than a convenient label under which X (Minors) v Bedfordshire County Council and M (A Minor) v Newham London Borough Council  2 AC 633 travelled. Remembering always that the critical question is a composite one which embraces alleged duty of care and its breach in the context of the damage alleged to have been caused, the court has to consider the nature of the actions and decisions of the local authority which are said to have been negligent. From this it may be seen that a decision whether or not to take a child said to have been abused away from its natural parents and into care may often be acutely difficult. But many of the decisions about care and upbringing of a child once he or she has been taken into care, difficult though they may be, may not have the acute complications, strains and conflicts identified in the Bedfordshire cases."
"This reinforces my reading of the Barrett case to the effect that it is unlikely that claims of the kind presently before this court will be seen as non-judiciable or ones where it is not just and reasonable to impose a duty of care without a proper examination of the individual facts."
"I accept that, as was said in X (Minors) v Bedfordshire County Council  2AC 633, there may be cases where to recognise such a vicarious liability on the part of the authority may so interfere with the performance of the local education authority's duties that it would be wrong to recognise any liability on the part of the authority. It must, however, be for the local authority to establish that: it is not to be presumed and I anticipate that the circumstances where it could be established would be exceptional."
He added at p.654:
"But where an educational psychologist is specifically called in to advise in relation to the assessment and future provision for a specific child, and it is clear that the parents acting for the child and the teachers will follow that advice, prima facie a duty of care arises."
"Since the authority can only act through its employees or agents, and if they are negligent vicarious liability will arise, it may rarely be necessary to invoke a claim for direct liability. After the argument in these cases, I do not, however, accept the absolute statement that an education authority "owes no common law duty of care … in the exercise of the powers … relating to children with special educational needs" under the 1981 Act. That issue, however, as I have said does not fall for decision in Pamela's case. I would accordingly allow the appeal and restore the order of Garland J."
"Another circumstance which may give rise to difficulty in the present context is that there may be a multi-disciplinary unit concerned in the giving of the advice. But that is a practical problem which cannot constitute a legal bar on a claim. Even where such a situation exists it should be possible to disentangle the relevant parts played by particular individuals and identify where the alleged negligence occurred."
A little later, however, he commented:
"The distinction noted by Lord Browne-Wilkinson in E (A Minor) v Dorset County Council  2 AC 633, 763-764 is drawn between education cases and child abuse cases. In the former case it may more readily be concluded that the involvement of the parents is both consistent with and supports the conclusion that a duty of care existed through them to the child. In the latter, despite the general intention that all the interested parties should work together, the opportunity for conflict between parents and the professional advisers may be far greater than in the educational context."
The effect of the decisions
New Zealand decisions
"In the Bedfordshire case Lord Browne-Wilkinson at p.739 emphasised that the question whether there is 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. In the various respects we have been discussing the Children and Young Persons Act 1974 is clearly distinguishable from the statutes before the House of Lords in the Bedfordshire case and the statutes under consideration in the large number of cases (but few in the child protection field) canvassed in argument. Little is to be gained from a point-by-point comparison. Also, the rescue cases are not comparable because in those cases any statutory framework was very different from the 1974 Act.
There are other policy considerations to be considered although we would not weigh them as heavily in this case as the scheme and policy of the 1974 Act. First, the difficulty and delicacy of the social worker's task and its judgemental nature are relevant. Intrusion into the family has been handled with tact in the interests of the child or young person. The social worker must also have regard to the advantages of not disrupting the family environment and to the advantages and disadvantages of other options for the care of the young person. Clearly a plaintiff would have difficulty in establishing that an assessment made by a social worker fell outside the bounds sanctioned by professional opinion. Nevertheless considerations of the kind cannot absolve the department and social workers from the responsibility of considering and responding to specific complaints with professional skill and care.
Next, the Solicitor-General submitted that the imposition of a duty would or could cause the department and social workers to adopt a more cautious and defensive approach to their duties. He drew our attention to a considerable body of professional literature on that point and to the recognition of it in the Bedfordshire case (see also Barrett v Enfield London Borough Council  3WLR 628 at pp636 and 638). But like lawyers and doctors, social workers are professionals. At that triggering step (and at other steps) they should be expected to have shouldered willingly a standard of reasonable skill and care that their private sector counterparts were expected to discharge. And in the absence of any data as to potential claims based on the roles and responsibilities of the department and social workers under the 1974 Act, which was replaced eight years ago by a very different legislative scheme, it would be unwise to give any particular weight to the resource implications of allowing for a common law duty of care.
Finally, and as pointing against the imposition of a duty, there are the obvious difficulties of reaching conclusions as to causation and damages. Clearly any such claims would be very difficult to establish. That in itself cannot, we think be adequate justification for ruling out the possibility of any claim for negligence whatever the circumstances.
For these reasons, on the pleadings as they stand, we would not strike out the cause of action in negligence"
"…their Lordships consider no common law duty of care was owed to the father. He stands in a very different position. He was the alleged perpetrator of the abuse. In an inquiry into an abuse allegation the interests of the alleged perpetrator and of the children as the alleged victims are poles apart. Those conducting the inquiry must act in good faith throughout. But to impose a common law duty of care on the department and the individual professionals in favour of the alleged victims or potential victims and, at one and the same time, in favour of the alleged perpetrator would not be satisfactory. Moreover, a duty of care in favour of the alleged perpetrator would lack the juridical basis on which the existence of a common law duty of care was largely founded in Prince's case. The Prince's case rests heavily on the feature that the duty imposed on the Director-General by section 5(2)(a) of the 1974 Act is for the benefit of the particular child. Self-evidently this statutory duty was not imposed for the benefit of alleged perpetrators of abuse. To utilise the existence of this statutory duty as the foundation of a common law duty in favour of perpetrators would be to travel far outside the rationale in Prince's case"
The distinction between the position of children and the position of their parents is a matter to which we shall revert.
The impact of the Human Rights Act 1998
"There should however be available to the victim or the victim's family a mechanism for establishing any liability of State officials or bodies for acts or omissions involving the breach of their rights under the Convention. Furthermore, in the case of a breach of Arts 2 and 3 of the Convention, which rank as the most fundamental provisions of the Convention, compensation for the non-pecuniary damage flowing from the breach should in principle be available as part of the range of redress."
The United Kingdom was held to have been in breach of both Article 3 and Article 13.
"There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
"In determining whether the impugned measures were 'necessary in a democratic society', the Court will consider whether, in the light of the case as a whole, the reasons adduced to justify them were relevant and sufficient for the purposes of para 2 of Art 8 of the Convention. Undoubtedly, consideration of what lies in the best interest of the child is of crucial importance in every case of this kind. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned. It follows from these considerations that the court's task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody and access issues, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their power of appreciation (see Hokkanen v Finland  1 FLR 289, (1995) 19 EHRR, and mutatis mutandis, Bronda v Italy (9 June 1998) Reports of Judgments and Decisions 1998-IV, p.1491, s59).
The margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake. Thus, the Court recognises that the authorities enjoy a wide margin of appreciation, in particular when assessing the necessity of taking a child into care. However, a stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by those authorities on parental rights of access, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between the parents and a young child would be effectively curtailed (see, amongst other authorities, Johansen v Norway (1996) 23 EHRR 33, 67-68 (para 64)).
The Court further recalls that whilst Art 8 contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to afford due respect to the interests safeguarded by Art 8:
What has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as 'necessary' within the meaning of Article 8. (see W v United Kingdom (1988) 10 EHRR 29, 50).
It has previously found that the failure to disclose relevant documents to parents during the procedures instituted by the authorities in placing and maintaining a child in care meant that the decision-making process determining the custody and access arrangements did not afford the requisite protection of the parents' interests as safeguarded by Art 8 (see McMichael v United Kingdom (1995) 20 EHRR 205, 241). "
"As concerns the measure taken to remove the second applicant into care, the Court considers that this was supported by relevant and sufficient reasons, namely, the strong suspicions that she had been abused and the doubts which existed as to the first applicant's ability to protect her (see paras 10-16 above). In the latter context, it may be noted that the abuse had taken place in the first applicant's home without her apparently being aware and that the first applicant's reaction, however natural in the circumstances, tended towards a denial of the allegations. It also appears from the interview that while at one point the second applicant had described the abuser as having been thrown out of the house, at another point she referred to X as coming to the house the next day (see para 14 above).
The Court is not persuaded however that the mistake made by Dr V and Mr P in assuming that the second applicant was referring to the first applicant's boyfriend XY was of such a nature as to deprive the decision to remove the second applicant into care of a legitimate basis. The second applicant was less than 5 years old at the time of the interview and the process of questioning her was a sensitive and delicate one, as was interpreting the sense of her responses, verbally and with regard to her body language. The second applicant frequently did not speak in grammatical sentences and appeared to contradict herself on several occasions. The fact that the second applicant shook her head would not necessarily indicate an unequivocal denial of the question put. Dr B, the consultant psychiatrist instructed by the first applicant, commented positively on the way in which Dr V handled the interview and agreed with her conclusions as to the existence of the abuse and the identity of the abuser (see para 23 above).
The Court finds therefore that the use of the emergency procedure to take the second applicant into care may be regarded as a proportionate measure and 'necessary in a democratic society' for protecting the second applicant's health and rights."
"The Court concludes that the question whether to disclose the video of the interview and its transcript should have been determined promptly to allow the first applicant an effective opportunity to deal with the allegations that her daughter could not be returned safely to her care. The local authority's failure to submit the issue to the Court for determination deprived her of an adequate involvement in the decision-making process concerning the care of her daughter and thereby of the requisite protection of their interests. There was in this respect a failure to respect their family life and a breach of Art 8 of the Convention."
"The Court considers that the applicants should have had available to them a means of claiming that the local authority's handling of the procedures was responsible for the damage which they suffered and obtaining compensation for that damage. It does not agree with the Government that pecuniary compensation would not provide redress. If, as is alleged, psychiatric damage occurred, there may have been elements of medical costs as well as significant pain and suffering to be addressed. The Court does not consider it appropriate in this case to make any findings as to whether only court proceedings could have furnished effective redress, although judicial remedies indeed furnish strong guarantees of independence, access to the victim and family enforceability of awards in compliance with the requirements of Art 13 (see, mutatis mutandis, Klass and Others v Germany (1980) 2 EHRR 214, 239). The possibility of applying to the ombudsman and to the Secretary of State did not however provide the applicants with any enforceable right to compensation."
"The Court recalls that the applicants were re-united after a year's separation (see para 29 above). Though it cannot be asserted that they would have been reunited earlier if the video had been available at the initial stage of the procedure, it cannot be excluded either that it might have reduced the duration of their separation. They thereby suffered a loss of opportunity. In addition, the applicants certainly suffered non-pecuniary damage through distress and anxiety and in the case of the first applicant through feelings of frustration and injustice."
"… whether the local authority (acting through its social work department) was, or ought to have been, aware that the applicants were suffering or at risk of abuse and, if so, whether they took the steps reasonably available to them to protect them from that abuse."
"…While the authorities enjoy a wide margin of appreciation in assessing the necessity of taking a child into care, in particular where an emergency situation arises, the Court must still be satisfied in the circumstances of the case that there existed circumstances justifying the removal of the child, and it is for the respondent State to establish that a careful assessment of the impact of the proposed care measure on the parents and the child, as well as of the possible alternatives to taking a child into public care, was carried out prior to implementation of a care measure.
The taking into care of a child should normally be regarded as a temporary measure to be discontinued as soon as the circumstances permit, and any measure of implementation of temporary care should be consistent with the ultimate aim of reuniting the natural parent and child. In this regard a fair balance has to be struck between the interests of the child remaining in care and those of the parent in being reunited with the child. In carrying out this balancing exercise, the Court will attach particular importance to the best interests of the child which, depending on their nature and seriousness, may override those of the parent."
"The Court does not propose to attempt to untangle these opposed considerations, which raise difficult and sensitive issues concerning S's welfare. It considers rather that the complexity of the case, and the fine balance which had to be struck between the interests of S and her parents, required that particular importance be attached to the procedural obligations inherent in Article 8 of the Convention. It was crucial for the parents in this case be able to put forward their case as favourably as possible, emphasising for example whatever factors militated in favour of a further assessment of a possible rehabilitation, and for their viewpoints on the possible alternatives to adoption and the continuation of contact even after adoption to be put forward at the appropriate time for consideration by the court."
"The court reiterates that in judicial decisions where the rights under Art 8 of parents and those of a child are at stake, the child's rights must be the paramount consideration. If balancing of interests is necessary, the interests of the child must prevail (see Elsholz v Germany (2002) 34 EHRR 58,  2 FLR 486, para 52 and TP and KM v United Kingdom (2002) 34 EHRR 549, para 72)."
The effect of these decisions
Can Bedfordshire be distinguished?
"….I should be slow to impose any duty that could cut across public policy considerations relating to the care of children. The son, M, was a patient; to impose a concurrent duty in whatever terms in respect of the mother would lead to conflict with their duties towards her son. The conflict here is identical with sex abuse cases. The possibility that somebody who may be subjected to Munchausen's by Proxy endangering her son is one which the doctor must concern himself about in the context of his care for the patient, the son. Once a suspicion arises about someone who was the mother of a patient, there was a clear duty to investigate in the interests of M, even if initiating the process might damage the mother. In fact they could be negligent in certain circumstances to the child if they did not do so. The defendants add that the interests of the child are paramount and the questions of child protection override the possibility of the duty that the Claimant asserts, however it is expressed."
R's claim against the local authority
Can Bedfordshire be distinguished?
"In the present case, the psychiatrist was instructed to carry out the examination of the child for the specific purpose of discovering whether the child had been sexually abused and (if possible) the identity of the abuser. The psychiatrist must have known that, if such abuse was discovered, proceedings by the local authority for the protection of the child would ensue and that her findings would be the evidence on which those proceedings would be based. It follows in my judgment that such investigations having such an immediate link with possible proceedings in pursuance of a statutory duty cannot be made the basis of subsequent claims."
"But there is a crucial difference between statements made by police officers prior to giving evidence and things said or done in the ordinary course of preparing reports for use in evidence, where the functions that they are performing can be said to be those of witnesses or potential witnesses as they are related directly to what requires to be done to enable them to give evidence, and their conduct at earlier stages in the case when they are performing their functions as enforcers of the law or as investigators may, of course, become the subject of evidence. It may then be necessary for the police officers concerned to assume the functions of witnesses at the trial to describe what they did or what they heard or what they saw. But there is no good reason on grounds of public policy to extend the immunity which attaches to things said or done by them when they are describing these matters to things done by them which cannot fairly be said to form part of their participation in the judicial process as witnesses. The purpose of the immunity is to protect witnesses against claims made against them for something said or done in the course of fixing or preparing to give evidence. It is not to be used to shield the police from action for things done while they are acting as law enforcers or investigators."
Can Bedfordshire be distinguished?
"In my view this approach is unrealistic since inevitably the initial diagnosis will be refined as further information becomes available. Indeed, the Claimants themselves allege that there was an obligation to refine and develop an initial diagnosis. Furthermore, the diagnosis that was reached necessarily involved an obligation owed to the child and to the OMBC [Oldham] and there is no room for an additional duty owed to the parents, see Powell v Boladz  Lloyd's Rep Med 116 at 123r, and X v Bedfordshire ("the Newham case"): the observations of Sir Thomas Bingham MR at 665g:
…. the mother was not in any meaningful sense the psychiatrist's patient. The psychiatrist's duty was to act in the interests of the child, and that may very well mean acting in a way that that would be adverse to the interests of the mother …
Once there is material on which the doctor can properly initiate the multi-disciplinary investigation, the doctor cannot owe a duty to the parents in relation to the diagnosis which commences the process. In the present case the Claimants do not contend that there was no material upon which the doctor could act; and there is no point which they can identify when a special relationship with the parents can be said to exist, which is not in conflict with the duty to the child and the OMBC.
By setting in motion the multi-disciplinary process, the doctor acts in the interests of his patient, and begins a process, which is designed to ensure that recognition is given to a number of conflicting factors, including the interests of the parents, and which is ultimately resolved by the Court."