England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MR JUSTICE EADY)

		Royal Courts of Justice Strand, London, WC2A 2LL
		26th February 2008

Lord Justice Hughes:

1. The claimant sued the local authority, alleging negligent failure to take him into care when he was an infant in the late 1970s. The judge found that in one respect he succeeded, although in others he failed. The defendant local authority renews its application for permission to appeal.
2. The claimant was born in March 1976. There were undoubtedly real failings in the home. His father was alcoholic and sometimes in prison, and his mother certainly had some little difficulty in coping. One of the elder sisters was not going to school. On one occasion when social workers visited, the home was filthy; the mother was without any cooking equipment and father was in prison.
3. The outline history is this. In August 1976 social workers, who were keeping at least some sort of an eye on the family, found that they were having difficulty getting access. When they saw the claimant they observed what they judged to be frozen awareness, and the claimant was suffering from weight loss. He was moved to hospital, as much as a safe refuge, by the sound of it, as for any specific medical treatment. He remained there for a number of weeks and then was placed with foster parents, where he remained until November 1977. So he was away from home for about fifteen months. It is critical to highlight the fact that this was a voluntary removal; the local authority did not invoke any compulsory statutory powers, nor did it make any application under the Children and Young Persons Act 1969 section 1. It was acting under section 1 of the Children Act 1948 -- that gave it power to look after the child, but not against the parents' wishes.
4. In the summer of 1977 the social workers proposed that the family should be placed in a rehabilitation unit with some supervision or warden control. There was a plan for the claimant to join them there. Eventually, in November 1977, he was placed with his parents there. The attitude of mother, in the meantime, had not been entirely consistent. On one occasion, when social workers set a small test for her by staying out of contact for a while, she did not press them. On the other hand, whenever asked, she was described as adamant that she wanted the claimant to be returned to her.
5. It was the return of the claimant to the rehabilitation unit, with a view to rehabilitation to his parents and especially his mother, which the judge found was negligent. The claimant's case had been that the local authority was at fault in several other respects also. He had complained that he should have been taken into care eighteen months later in May of 1979, when he suffered a scalding injury and he had complained that the local authority was at fault in failing to take him into care sooner than it actually did approximately eleven years after that, in the summer of 1990, when, at the age of fourteen, he ran away from home and lived rough as a rent boy. He was, on that latter occasion, found and taken into care in March 1991. As for those additional claims, the judge found against the claimant. He was critical of the local authority's record-keeping in 1979, but he specifically found, on the basis of the expert evidence -- particularly that of the claimant's own expert, that an application to remove the claimant against the wishes of his parents would not have been regarded as likely to succeed under the then operative legislation and practice relating to intervention in families with these kinds of difficulties. As to 1990, the judge found that, whilst the local authority had probably been at fault in moving too slowly, no damage flowed from a breach of duty at that stage. The claimant suffers a congenital personality disorder. By then he was severely damaged by that, and was committed to heroin and damaging sexualised behaviour.
6. So the judge's finding depended upon the return to the rehabilitation unit in November 1977. He went on to find that, if that return had not been made, it was likely that the child would have been fostered, adopted, or lived in local authority care; and it seems that he found that it would have been likely that he would have remained there throughout his childhood.
7. The judge accordingly found that, as a result of what he found was a negligent return in November 1977, the claimant had been exposed to indifference, neglect and periodic violence between then and 1990. His personality disorder would still have caused him to be very damaged, but nevertheless the judge awarded the sum of £25,000 for the physical consequences of what flowed, on his judgment, from the 1977 decision.
8. The defendants wish to make a number of contentions on appeal. One of them, ground 2, is that the judge erred in making his assessment of the claimant's own credibility. What had happened to him between 1977 and 1990 did substantially -- although not only -- depend on the claimant's evidence. There is, I am satisfied, no prospect of this court allowing an appeal on that ground. The judge reviewed all the evidence, which went both ways, as to the credibility of the claimant. He dealt with it at paragraphs 1, 8-10 and 76. His review was realistic and, as it seems to me, perfectly justified; moreover, he had seen the claimant. He relied, at least in part, on his findings of fact upon matters which were established independently of the claimant's evidence. This was a pure fact-finding exercise and one with which this court would not, as it seems to me, interfere.
9. Much more fundamentally, by grounds 1 and 3, the defendants wish to argue that the judge was wrong to find there was any breach of duty in returning the claimant to his parents at a rehabilitation unit in November 1977. The evidence of the claimant's own expert was that an application for a care order at that stage would have been an unusual one to make and one that he personally would not have made. The submission to us has emphasised the difference between the care, legislation and practice which now obtains, especially after the Children Act 1989, and the position in the late 1970s. In effect, if a care order were wanted, an application would have to have been made under section 1 of the 1969 Act, either independently of a resolution under section 2 of the 1948 Act or following such resolution if the parents objected to it. The claimant's own expert's evidence was that such an application was one which would not have been made in 1977 and, as to the next year, his evidence was that if it had been made, it would have been unlikely to succeed.
10. Ms Gumbel has helpfully reminded us of the possible difference between a return made by the local authority on the one hand, and an application to seek to remove by way of a care order, subsequently, on the other. That there could be a difference in practice, I, for my part, would accept. It might perhaps be possible that a parent might not challenge a decision to keep a child already accommodated by the Authority, whereas he or she would challenge an attempt to remove him from living at home. That said, the statutory test for the care order remained precisely the same in each case and, for my part, I have considerable difficulty with the juxtaposition of findings that, firstly, a care order was not a viable option, yet, secondly, it was negligent to return the claimant - particularly to a rehabilitation unit. And thirdly, I have equal difficulty with the finding that, if the claimant had not been returned in November 1977, he would have remained in care throughout his minority in the absence of any form of care order. That those are inconsistent findings seems to me to be at any rate arguable. Accordingly, I would give leave to argue grounds 1 and 3.
11. Ground 4 relates simply to quantum. I am not convinced that I would have given leave to argue that if I had not been giving leave on 1 and 3, but it seems to me that the full court ought to be in a position to consider that as well, particularly in the light of its conclusions in relation to grounds 1 and 3.
12. The last proposed ground of appeal relates to the Limitation Act. The judge found that the limitation period had not run. The claim was treated as if it had been launched in 2004. The claimant contended that he did not have the necessary knowledge as defined in section 14(1)(b) of the Limitation Act 1980 until 2001 or later, because the local authority did not disclose its records satisfactorily until 2004. The judge substantially accepted that intention. He said at paragraph 88 this:

"In order to plead a case against the Defendant, the Claimant and his advisers needed to know the state of the Defendant's knowledge, at the various material times, such as would give rise to the obligation to address his plight and take steps for his protection. I accept that the only means open to him to acquire this knowledge was through consideration of the records, which were obtained in July 2004."

13. In consequence of that finding, the judge did not get to the alternative contention of the claimant -- that there should be a discretionary extension under section 33.
14. The defendant says the claimant was protesting that he had been injured by the failure of the local authority to take him into care, or to keep him in care, since at least the mid-1990s. Secondly, says the defendant, it is plainly not the law that section 14(1)(b) makes the knowledge of the defendant in any manner relevant. As to the second of those two points, I am quite satisfied that the judge was not, in the passage which I have cited, confusing the defendant's knowledge with that of the claimant, nor misdirecting himself that the defendant's knowledge was relevant to section 14. What he meant, I have no doubt, is that until the claimant knew what the local authority records showed about their handling of him and their monitoring of the family or lack of it, he did not know whether his present condition was attributable to the acts of negligence which he was alleging or not, and thus did not have the knowledge which started time running.
15. The arguable point, as it seems to me, is the first, which is founded upon the proposition that the test which the judge had set himself with the words:

"In order to plead a case against the Defendant, the Claimant and his advisers…….."

was the wrong test. That, as it seems to me, is arguable. It depends upon   the   proper approach, as explained by, amongst other cases, Nash v Eli Lilly & Co [1993] 1 WLR 782 and 796.d,   Whitfield v North Durham Health Authority [1995] 6 Med LR 32, noted in the White Book at 830 and Hallam-Eames v Merrett Syndicates Ltd [1995] 7 Med LR 122. It seems to me that that point is sufficiently arguable for this court to give leave in relation to ground 5 limitation point also.

16. For those reasons, for my part, I would grant leave to appeal on grounds 1, 3, 4 and 5, but refuse on ground 2.

Lord Justice Thorpe:

17. I agree.

Order: Application granted in part