England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
SWANSEA DISTRICT REGISTRY

		Cardiff Civil Justice Centre 2 Park Street Cardiff South Wales CF10 1ET
		11th May 2006

Mr. Justice Field :

1. This is an application by the defendants, Pembrokeshire County Council ("PCC"), to strike out the claimant's claim in negligence, alternatively for summary judgement under CPR 24.2 in respect of that claim.
2. The claimant is Mrs. Stephanie Lawrence. She sues both in negligence and under ss. 6 and 7(1)(a) of the Human Rights Act 1998 ("the HRA") for breach of Article 8 ECHR in respect of the way social workers employed by PCC dealt with her and her four children, Victoria, Daniel, Benjamin and William. In particular, she claims that her children's names ought never to have been placed on the Child Protection Register and as a consequence of the way she and the children were treated she has suffered psychiatric injury.
3. For the purposes of this application all of Mrs. Lawrence's pleaded allegations of fact must be presumed to have been proved even though many are denied by PCC.
4. PCC's social services became involved with Mrs. Lawrence and her family in 1999 after a clinical psychologist carried out an assessment of Benjamin who was having toileting difficulties. The psychologist referred Mrs. Lawrence's family to PCC's Child Protection Team expressing concerns about the safety of Mrs. Lawrence and her children. However, at an ensuing strategy meeting held without Mrs. Lawrence's knowledge on 20 March 2001 it was determined that there were no child protection issues and that Mrs. Lawrence's family should receive a "plan of support".
5. PCC assigned a Community Support Nurse to Mrs. Lawrence but when the nurse left she was replaced by A, who was neither a qualified social worker, nor specially trained and was without any expertise in toilet training.
6. By early March 2002 PCC social workers had become concerned that Mrs. Lawrence was at risk of violence from the father of the children and Mrs. Lawrence told A that occasionally she disciplined the children by threatening them with a wooden spoon.
7. On 13 March 2002 at a meeting attended by Mrs. Lawrence, the father of the children, A, the clinical psychologist and a community support nurse, the father (who no longer lived with the family) falsely alleged that Mrs. Lawrence had once hit him with the wooden spoon. Later that day, A and another PCC social worker, B, arrived unexpectedly at Mrs. Lawrence's shop and wrongly accused her in front of one of her children of striking another of the children with a wooden spoon. B's manner was hectoring and intimidating. The social workers wanted to interview the children at school before they had a chance to speak to their mother. Mrs. Lawrence objected and it was agreed that she would meet the social workers at the school at picking up time. When the four children came out of school the social workers wanted to put them in the three seats in the back of their car thereby keeping them separate from their mother. Mrs. Lawrence intervened and drove the children herself to a specified address where they were interviewed by the social workers in the company of the police. Mrs. Lawrence was separately interviewed by a senior social worker, F, in the course of which she said that the father had inadvertently hit one of the children during an argument with her earlier in the month.
8. On 17 April 2002 a Child Protection Conference ("a CPC") took place. It was chaired by H, manager of PCC's Child Protection Co-ordination and Quality Assurance. H had earlier agreed with Mrs. Lawrence that the CPC would have a two-tier format and Mrs. Lawrence would have the opportunity of speaking initially without the father being present. However, the CPC was not conducted with a two-tier format and when Mrs. Lawrence and the father tried to intervene to correct inaccuracies and to present their views they were repeatedly told to be quiet or they would be removed from the meeting. Mrs. Lawrence found the CPC an intimidating experience for which she had not been adequately prepared. She received C's report the day before the CPC and the psychologist's report just 5 minutes before the conference started.
9. In his report and at the CPC, C discounted the danger of physical harm to the children and those attending were all satisfied that there was no concern about physical harm to the children. However, it was decided that the children's names should be placed on the Child Protection Register ("the "at risk register"") under the category of "emotional harm" and C was named as the key worker. The CPC took this decision without any mention being made at the conference of the strategy meeting held on 20 March 2001 and despite the fact that no fresh evidence since that strategy meeting regarding the risk of emotional abuse was disclosed at the CPC.
10. A first review CPC chaired by officer H was held on 8 July 2002. It was decided at this conference that the children's names should be kept on the "at risk" register and that a core assessment should be carried out. This decision was taken notwithstanding there had been no contact between social workers and the children since the initial CPC other than one short visit by a key worker. Further, Mrs. Lawrence was only shown the social worker's report moments before the CPC started and she and the father were excluded from part of the meeting.
11. A second CPC review was held on 29 October 2002. Again the chair of the conference was officer H. The actions prescribed by the first review CPC had not been carried out. There had been no monthly meetings with the key worker, no core assessments, only 2 core group meetings, no visits by social workers and no provision to Mrs. Lawrence by C of relevant sections of the Child Protection Procedures. Mrs. Lawrence and the father were shown the reports for the conference just five minutes before the meeting started. Officer D (C's team manager) recommended that the children's names be removed from the register and a Child in Need plan be put in place. Mrs. Lawrence objected to further involvement by PCC in her family life. On 24 August 2002 a formal complaint she had made in April 2002 about PCC's failure to follow procedures leading up to the initial CPC and about the attitudes of officers B and F had been substantially upheld at the stage 3 level after having been rejected at stage 1 and upheld at stage 2. And on 2 September 2002, Mrs. Lawrence had raised a second formal complaint, this time against H, in which she also sought to appeal the decision of the initial CPC.
12. In light of Mrs. Lawrence's refusal any longer to cooperate with social services, it was decided by the second review CPC that the children's names should remain on the "at risk" register.
13. In December 2002 Mrs. Lawrence's second complaint was broadened to include the second review CPC. This complaint was investigated by an independent expert who on 2 June 2003 produced a report in which he said, inter alia, that the evidence did not justify placing the children's names on the register and social workers had misused the initial CPC and misled the chair in an attempt to "get their own way".
14. A third review CPC was held on 4 June 2003, this time chaired by an-out-of-county chairman. At this conference it was resolved that the children's names should be removed from the "at risk register" and this step was subsequently taken.
15. On 13 November 2003 a stage 3 review panel upheld Mrs. Lawrence's second complaint, finding, inter alia, that no support or information had been given before the review CPCs; the CPC chair had failed to ensure that Mrs. Lawrence and the father had been given access to the reports before their submission to the review CPCs; Mrs. Lawrence had not been allowed sufficiently to challenge critical inaccuracies; and the chair, H, had accepted that had she been aware of the strategy meeting held in March 2001, she would have adjourned the first CPC.
16. Mrs. Lawrence complained to the Ombudsman on 8 March 2003. He produced his report in December 2004. He found that the failure to raise or take into account the March 2001 strategy meeting at the first CPC amounted to maladministration and concluded that had the faults leading to and occurring at the initial CPC not occurred, then on the balance of probabilities that CPC would not have taken the decision to place the children's names on the "at risk register". He also found that the decision to keep the children on the register at the second review CPC was procedurally flawed and unreasonable because it was based not on any perception of real risk to the children but on Mrs. Lawrence's alleged failure to cooperate with input from social care. He further concluded that there was maladministration in failing to follow the All Wales Child Protection Procedures at the first and second review CPCs: Mrs. Lawrence should have had the opportunity to consider the reports at least 24 hours prior to the first review CPC; Mrs. Lawrence and the father should not have been excluded from any part of the initial review CPC; and H should have been replaced as chair at the second review CPC.
17. The Ombudsman recommended that PCC should pay Mrs. Lawrence £5000 in recognition of her distress and damage to her reputation and of her time and trouble in pursuing her complaints. This sum was subsequently paid to Mrs. Lawrence by PCC and she accepts that it should be set off against her claim for damages.
18. Mrs. Lawrence's particulars of negligence are the same as her particulars of breach of Article 8. PCC accepts that the pleaded allegations give rise to an arguable claim under ss. 6 and 7(1)(a) of the Human Rights of the HRA for breach of Article 8 but relies on the one year limitation period set by s. 7(5)(a). Whether it is equitable to extend that period pursuant to s.7(5)(b) is to be decided at another hearing. In respect of the claim in negligence, PCC contends that this claim must fail by reason of the decision of the House of Lords in D v East Berkshire Community Health NHS Trust and others [2005] UKHL 23; [2005] 2 AC 373.
19. In D, the House of Lords heard three conjoined appeals in which all of the pleaded facts occurred before the Human Rights Act 1998 came into force. The appellants were parents of children who had been removed from the family home because professionals responsible for investigating child abuse suspected that one or both of the parents had injured the children. Subsequently, those suspicions were shown to have been misplaced and the parents sued the employers of the professionals for negligence, alleging that by reason of the professionals' negligent diagnosis they had suffered a recognised psychiatric injury. Their Lordships held (Lord Bingham dissenting) that doctors who failed to exercise reasonable care and skill in erroneously concluding that a child was at risk of abuse from one or both of its parents were not liable in negligence to the parents of the child. Although their lordships' opinions all refer to claims against doctors, in one of the conjoined appeals, the Dewsbury case, the claim was brought not only against a NHS Trust for a doctor's negligence but also against Kirklees Metropolitan Council in respect of a social worker's negligence and it is common ground that the principles laid down by the majority in D apply not only to doctors but also to social workers who are engaged in investigating suspected child abuse.
20. Lord Nicholls said that whilst health professionals responsible for protecting a suspected victim of child abuse were obliged to act in good faith in their investigations they did not owe to a person suspected of having abused the child any duty of care when investigating the suspected abuse. This was because a duty of care owed to a person suspected of abusing a child could conflict with the duty owed to the child to protect it and act in its best interests. In paragraphs 85 to 90 of his speech he said:

85.  In my view the Court of Appeal reached the right conclusion on the issue arising in the present cases. Ultimately the factor which persuades me that, at common law, interference with family life does not justify according a suspected parent a higher level of protection than other suspected perpetrators is the factor conveniently labelled 'conflict of interest'. A doctor is obliged to act in the best interests of his patient. In these cases the child is his patient. The doctor is charged with the protection of the child, not with the protection of the parent. The best interests of a child and his parent normally march hand-in-hand. But when considering whether something does not feel 'quite right', a doctor must be able to act single-mindedly in the interests of the child. He ought not to have at the back of his mind an awareness that if his doubts about intentional injury or sexual abuse prove unfounded he may be exposed to claims by a distressed parent.

    86.  This is not to suggest doctors or other health professionals would be consciously swayed by this consideration. These professionals are surely made of sterner stuff. Doctors often owe duties to more than one person; for instance, a doctor may owe duties to his employer as well as his patient. But the seriousness of child abuse as a social problem demands that health professionals, acting in good faith in what they believe are the best interests of the child, should not be subject to potentially conflicting duties when deciding whether a child may have been abused, or when deciding whether their doubts should be communicated to others, or when deciding what further investigatory or protective steps should be taken. The duty they owe to the child in making these decisions should not be clouded by imposing a conflicting duty in favour of parents or others suspected of having abused the child.

    87.  This is not to say that the parents' interests should be disregarded or that the parents should be kept in the dark. The decisions being made by the health professionals closely affect the parents as well as the child. Health professionals are of course fully aware of this. They are also mindful of the importance of involving the parents in the decision-making process as fully as is compatible with the child's best interests. But it is quite a step from this to saying that the health professionals personally owe a suspected parent a duty sounding in damages.

    88.  The claimants sought to meet this 'conflict of interest' point by noting that the suggested duty owed to parents has the same content as the duty owed to the child: to exercise due skill and care in investigating the possibility of abuse. This response is not adequate. The time when the presence or absence of a conflict of interest matters is when the doctor is carrying out his investigation. At that time the doctor does not know whether there has been abuse by the parent. But he knows that when he is considering this possibility the interests of parent and child are diametrically opposed. The interests of the child are that the doctor should report any suspicions he may have and that he should carry out further investigation in consultation with other child care professionals. The interests of the parent do not favour either of these steps. This difference of interest in the outcome is an unsatisfactory basis for imposing a duty of care on a doctor in favour of a parent.

    89.  This was the conclusion reached by the High Court of Australia in Sullivan v Moody (2001) 207 CLR 562. In Australia, as in this country, the professional and statutory responsibilities of doctors and other health professionals involve investigating and reporting allegations that a child has suffered serious harm or is at risk of doing so. The High Court held unanimously that it would be inconsistent with the proper and effective discharge of these responsibilities that those charged with these responsibilities should be subjected to a legal duty, sounding in damages, to take care to protect persons suspected of being the source of that harm. Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ said, at para 62:

'The duty for which the [appellant fathers] contend cannot be reconciled satisfactorily, either with the nature of the functions being exercised by the [medical practitioners and others investigating allegations of child sex abuse], or with their statutory obligation to treat the interests of the children as paramount. As to the former, the functions of examination and reporting, require, for their effective discharge, an investigation into the facts without apprehension as to possible adverse consequences for people in the position of the appellants or legal liability to such persons. As to the latter, the interests of the children, and those suspected of causing their harm, are diverse, and irreconcilable. That they are irreconcilable is evident when regard is had to the case in which examination of a child alleged to be a victim of abuse does not allow the examiner to form a definite opinion about whether the child has been abused, only a suspicion that it may have happened. The interests of the child, in such a case, would favour reporting that the suspicion of abuse has not been dispelled; the interests of a person suspected of the abuse would be to the opposite effect.'

    90.  For these reasons I am not persuaded that the common law should recognise the duty propounded by Mr Langstaff. In principle the appropriate level of protection for a parent suspected of abusing his child is that clinical and other investigations must be conducted in good faith. This affords suspected parents a similar level of protection to that afforded generally to persons suspected of committing crimes.

21. Lord Rodger gave two reasons for finding that professionals investigating suspected child abuse owed no duty of care to parents suspected of being responsible for the abuse. First, consistently with the common law's general refusal to grant remedies to third parties for the effects of injuries to other people, the appellants and the investigating professionals were not in a sufficiently proximate relationship for a duty of care owed by the professionals to the parents to arise. The necessary degree of proximity could not be found in the fact that the appellants had themselves taken the children to see the doctor: it was unacceptable for a doctor to be liable to a father who took his daughter to the surgery, but not to a father whose daughter happened to be taken by someone else (para 108).
22. Secondly, it was not fair and just to impose the postulated duty of care because of the dangers of the potential conflict of the interests of the child and the suspected parent identified by Lord Nicholls. In paragraphs 108 – 111 Lord Rodger said:

    108.  That being so, [i.e that the appellants' claims do not come within the reach of the distinct line of authority concerned with recovery for nervous shock] on the assumption that the appellants are claiming the same duty of care as was owed to their children, it seems to me that there would have to be some factor, over and above the foreseeable harm which the parents suffered, before the law would hold that the doctors and parents were in sufficient proximity to give rise to a duty of care. Mr Langstaff suggested that the necessary degree of proximity could be found in the fact that the parents themselves had taken the children to see the doctor. That is indeed what happened in these cases. But in itself this can hardly be a criterion for attaching liability to the defendants. For example, there is nothing in the nervous shock cases to suggest that taking the child to the hospital would, in itself, create the necessary proximity for a successful claim by her parents. Something more, by way of actually experiencing the critical event, is required. More generally, it would in my view be unacceptable for a doctor to be liable in damages to a father who took his daughter to the surgery, but not to a father whose daughter happened to be taken by someone else who was looking after her for the day when her symptoms developed. If that supposed distinction is rejected, I am unable to see why it would be fair, just and reasonable for the doctors to owe the parents a duty of care of this kind when, for instance, a defendant who negligently injures a child travelling in his car owes no duty of care to the parents who may foreseeably develop a psychiatric illness as a result of the strain of caring for her. I would therefore reject the appellants' submission that the defendants owed substantially the same duty of care to the parents as to the children.

    109.  As I have said, counsel for the appellants was anxious to present their case as one where the duty to the child and the duty to the child's parents in effect coincided. In this way he sought to outflank the objection that there is a potential conflict of interest between the child and the parents in a case of alleged child abuse. But this bland version of the supposed duty of care underplays, if it does not eliminate, what I would regard as the most powerful element in the case for the appellants: that by concluding that the children had been the subject of abuse or deliberate harm, the doctors simultaneously indicated that the appellants themselves had been responsible for the abuse or harm. It was, one might suppose, this devastating suggestion which caused the appellants the distress that resulted in their illness. As the High Court of Australia put it in Sullivan v Moody (2001) 207 CLR 562, 581, para 54, "the core of the complaint by each appellant is that he [or she] was injured as a result of what he [or she], and others, were told." It is precisely this very personal defamatory wound which distinguishes their claims from, say, the claims of parents who become ill due to the strain of caring for a child who has become disabled as a result of a surgeon's negligence. On this more focussed approach the health authority would be under a specific duty to take reasonable care to avoid causing a parent psychiatric injury by concluding that he had abused or harmed his child. Viewed in isolation, much might indeed be said for a duty of this kind which would mean that, when deciding how to proceed where they suspected that a child had been abused, the doctors would have to take account of the very real risk of harming the parents in this way.

110.  In considering whether it would be fair, just and reasonable to impose such a duty, a court has to have regard, however, to all the circumstances and, in particular, to the doctors' admitted duty to the children. The duty to the children is simply to exercise reasonable care and skill in diagnosing and treating any condition from which they may be suffering. In carrying out that duty the doctors have regard only to the interests of the children. Suppose, however, that they were also under a duty to the parents not to cause them psychiatric harm by concluding that they might have abused their child. Then, in deciding how to proceed, the doctors would always have to take account of the risk that they might harm the parents in this way. There would be not one but two sets of interests to be considered. Acting on, or persisting in, a suspicion of abuse might well be reasonable when only the child's interests were engaged, but unreasonable if the interests of the parents had also to be taken into account. Of its very nature, therefore, this kind of duty of care to the parents would cut across the duty of care to the children.

    111.  The need to put the interests of the child first in any case of suspected abuse is a theme which runs through the guidance in Working Together (1991) which was issued under section 7 of the Local Authority Social Services Act 1970. Doctors and social workers must be alert to possible signs of abuse. If they suspect that a child is suffering, or is at risk of suffering, significant harm, they should refer their concern to the appropriate agency (para 5.11.1). They are specifically warned, moreover, that the interests of parents and children may conflict and that in such cases the child's interests should be the priority (para 6.12). The real dangers of such a potential conflict are more than amply vouched by the statements of Professor Sir Alan Craft and Mary Marsh which my noble and learned friend, Lord Brown of Eaton-under-Heywood, has quoted. I see no basis whatever for brushing them aside. On the contrary, the appropriate response of the law is to recognise and minimise these dangers. It does so by holding that in these cases the doctors do not owe a duty of care to the parents.

23. Lord Brown adopted the same approach as Lord Rodger. In paragraphs 129, 133 and 134 he said:

129. …. If the doctor is to be held liable in law for any injury to the parent occasioned by the taking of his child into care, that can only be because the doctor, in fulfilling his primary duty to safeguard the child against abuse, also owed the parent a separate duty to take account of his, the parent's interest, in not being unreasonably suspected of child abuse. I find it impossible to see how such a duty could fail to impact upon the doctor's approach to his task and create a conflict of interest. Of course, if he acts within the bounds of proper professional skill and care he is liable to no one. But if he were to act negligently he would know that whereas a negligent non-diagnosis of child abuse would expose him to liability only to the child, a negligent diagnosis based on suspicions unreasonably held would render him liable also to the parent.

    133.  There are other powerful considerations too militating against the imposition of a duty of care to parents arising out of the doctor's discharge of his role in combating child abuse. These perhaps are best discerned by reference to the legal principles applying in certain related situations. Take a doctor whose negligent diagnosis or treatment of a child causes it to die with the result that the bereaved parent suffers psychiatric injury. Whilst clearly in such a case the parent can bring a claim on behalf of the child's estate under the Law Reform (Miscellaneous Provisions) Act 1934, there can be no claim by the parent in respect of his own loss unless exceptionally he can bring himself within the narrow parameters recognised to give rise to secondary liability—see for example the decision of the Court of Appeal in North Glamorgan NHS Trust v Walters [2003] Lloyd's Rep Med 49. The law has always placed strict limitations upon the right to recover for psychiatric injury and it is not easy to see why, if no such right exists in a father whose child is negligently allowed to die, it should be given to a father wrongly suspected of child abuse. In the first case the child is lost forever; in the second for a comparatively short time.

    134.  If it be said that in the second case the father's reputation is blackened, the law's response must be that a defamatory communication in the context of reporting suspicions of child abuse would inevitably attract the defence of qualified privilege so that liability would arise only on proof of malice, not mere negligence. The reason for such a rule is obvious: the law is concerned to encourage candour in such communications; doctors should not feel inhibited in reporting their concerns.

24. Lord Steyn agreed that the appeals should be dismissed for the reasons given by Lords Nicholls, Rodger and Brown. It is also apposite to note that Lord Nicholls, Rodger and Brown said that they would dismiss the appeals not only for the reasons developed in their individual opinions but also for the reasons given by each of the others.
25. D was recently followed and applied by the Court of Appeal in AD &Ors v Bury Metropolitan Borough Council [2006] EWCA Civ 1. In this case all of the facts and matters relied on by the claimants predated 2^nd October 2000, the date when the HRA came into force. The relevant facts were that a child had sustained four rib fractures whilst in his parents' care and was made the subject of an interim care order by the respondent local authority which suspected that the injuries were non-accidental. Following a residential family risk assessment to which the child's mother consented, the interim care order was renewed and the child was placed with foster parents for four months. The local authority was then advised that the child suffered from brittle bone disease and that the rib fractures were accidental injuries. Thereupon the child was returned to his mother and the care proceedings were later discharged. Both mother and child sued the local authority for negligence alleging that they had each suffered psychological injury. The Court of Appeal upheld the order made below striking out both claims. The child's claim was struck out on the ground that he had not suffered a recognised psychiatric injury. The mother's claim was struck out following D. It was argued on behalf of the mother that once the interim care order had been made there was no conflict between the interests of the mother and the local authority and that therefore D was distinguishable. The local authority accordingly owed the mother a duty of care in carrying out the post interim order care plan and were liable in negligence for not carrying an adequate risk assessment. If an adequate risk assessment had been undertaken it would there and then have led to the child being returned to the mother. The Court of Appeal rejected this argument holding that the investigatory process contemplated by the House of Lords in D continued until the care proceedings were discharged. There was no community of interest between the mother and the local authority and no duty of care was owed to the mother to ensure that the risk assessment was properly carried out. The principal judgement was delivered by Wall LJ. In paragraph 30 he said:

……As I hope I have already made clear, it would, in my judgment, be both highly artificial and unprincipled if the protection afforded to social services and the doctors in the investigation of child abuse ceased (perhaps temporarily, or in relation to only to part of the investigation) when an interim care order was made, or otherwise where it might temporarily be argued that there was no actual conflict of interest between the parent and the local authority. In the context of a child abuse investigation, a duty of care cannot exist at one moment and then cease to exist the next because of a shift in the factual matrix. It either exists throughout the investigation or it does not.

26. Mr. Weir for Mrs. Lawrence accepts that the social workers who were involved in the decision to have the names of her children put on the "at risk register" were engaged in an investigation into child abuse and are accordingly within the principles enunciated by the majority in D. He also does not seek to distinguish D on the ground that in the instant case complaint is made not only about the evaluation of the evidence made by the social workers but also alleged procedural deficiencies in reaching and upholding the decision to put the children's names on the "at risk register". What Mr. Weir submits is that: (i) with the coming into effect of the HRA the courts should hold that a duty of care is owed by the investigating professionals acting after 2^nd October 2000 to a parent who is suspected of abusing his or her children and who is foreseeably at risk of suffering a consequential infringement of his or her right under Article 8 ECHR to respect for his or her family life; and (ii) on the pleaded facts of the instant case there was sufficient proximity between the social workers and Mrs. Lawrence for a duty care to be owed to Mrs. Lawrence as well as her to her children.
27. Before examining these submissions I should make clear the approach I intend to adopt in determining this application. CPR 3.4 (2) (a) and 24.2 respectively provide:

3.4 (2) (a) The court may strike out a statement of case if it appears to the court (a) that the statement of case discloses no reasonable grounds for bringing the claim.

Part 24.2 The court may give summary judgment against a claimant …. on the whole …. of a claim ….if (a) it considers that (i) the claimant has no real prospect of succeeding on the claim…..; and (b) there is no other compelling reason why the case or issue should be disposed of at a trial.

28. The wording of these provisions allows the court to dismiss PCC's application if, without finally deciding the relevant points of law, it concludes that the claim is reasonably arguable, or the pleaded legal principle is fact-sensitive, or is in the course of development. However, Mr. Weir has asked me finally to determine the points of law in issue, namely: now that the HRA is in force: (i) should the courts continue to hold that at common law there is no duty of care owed by investigating professionals to a parent suspected of child abuse; and (ii) was there on the pleaded facts a relationship of sufficient proximity between Mrs. Lawrence and the social workers for the latter to owe the former a duty of care. In other words, Mr. Weir wishes me to treat PCC's application as the determination of preliminary issues. He adopts this position because Mrs. Lawrence wants to know where she stands on the issues of law without the need for an expensive trial. In my opinion Mr. Weir's stance is both sensible and reasonable. I have heard full argument and accordingly I propose to determine finally the points of law raised in Mr. Weir's submissions as if I were determining them as preliminary issues.
29. In support of his submission that the conflict between the interests of the child and the parent suspected of harming it should no longer be a reason for holding that no duty of care is owed by investigating professionals to a parent suspected of child abuse, Mr. Weir strongly relies on the judgement of the Court of Appeal in D [2003] EWCA Civ 1151; [2004] QB 558. The issue in the Court of the Appeal was the same as in the House of Lords. However, the Court of Appeal felt it necessary to decide whether the House of Lords' decision in X (Minors) v Bedfordshire County Council [1995] 2 AC 633 that local authorities owed no common law duty of care to children when investigating whether they were the victims of child abuse or carrying out their duties under the Education Acts remained good law. To this end the Court of Appeal considered a number of decisions of the Strasbourg Court including Z v United Kingdom (2001) 34 EHRR 97; TP and KM v United Kingdom (2001) 34 EHRR 42; E v United Kingdom (2002) 36 EHRR 519; Venema v The Netherlands (2002) 36 EHRR 345; and Yousef v The Netherlands (2002) 36 EHRR 345.
30. In Z the applicants were the appellants in one of the child abuse appeals decided by the House of Lords in Bedfordshire. The Commission's finding that the local authorities had failed to bring to an end serious abuse and neglect suffered by the four applicants at the hands of their parents was endorsed by the ECtHR and the UK was held to be in breach of Article 3. In the court's opinion there should have been available to the victim or his or her family a mechanism for establishing the liability of state officials or bodies for breach of their rights under the Convention. In principle, compensation for consequential non-pecuniary for breach of Articles 2 and 3 should be available.
31. In TP and KM the applicants were a mother (KM) and her daughter (TP). Their local authority ("Newham") suspected that TP was being sexually abused and TP was interviewed in the absence of her mother by a consultant child psychiatrist employed by Newham. The interview was videotaped and in the course of it TP gave the first name of the man who had abused her. The name given was the first name of KM's boyfriend and the local authority, assuming (mistakenly as it turned out) that the abuser was the boyfriend, had the child taken into care. The videotape of the interview was not made available to the applicants after the interview. Later, TP's solicitors obtained a transcript of the interview from which it could be seen that the boyfriend could not have been the abuser and TP was returned to the care of KM. Mother and child then brought proceedings in the UK against Newham for negligence but the claim was struck out, the strike-out being upheld by the House of Lords in Bedfordshire. The applicants then applied to the ECtHR complaining, inter alia, that TP had been unjustifiably removed from her mother in violation of the applicants' Article 8 right to respect for family life. It was common ground that Article 8 (1) was engaged. The question was whether TP's removal was justified under Article 8 (2) as being necessary in a democratic society. The court held that in answering this question consideration of what is in the best interests of the child was of crucial importance and a wide margin of appreciation was to be accorded to the competent national authorities. However, a stricter scrutiny was required of limitations beyond the removal of the child such as restrictions on parental access since these involve the danger that family relations between child and parent could be effectively curtailed. In addition, Article 8 implicitly required that the decision making process must be fair and such as to afford due respect to the interests safeguarded by Article. 8.
32. The ECtHR held that the removal of the child into care was in the circumstances a proportionate measure and necessary in a democratic society. There had been strong suspicions that TP had been abused and there were doubts as to the mother's ability to protect her. A mistake had been made as to who the abuser was but the process of interpreting TP's responses in the interview was a sensitive and delicate one; she frequently did not speak in grammatical sentences and appeared to contradict herself on several occasions. However, the failure promptly to provide the video of the interview and the transcript to KM or have a court decide whether or not this information should be withheld was a breach of Article 8 because the mother was thereby deprived of an adequate involvement in the decision-making process concerning the care of the daughter.
33. The ECtHR further held (para 109) that the decision in Bedfordshire that Newham owed no duty of care to the applicants denied TM and TP an effective remedy contrary to Article 13. 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 could not be proved that mother and child would have been re-united earlier if the video had been provided at the outset but there was a possibility that this might have been the outcome and damages were awarded for this "loss of opportunity".
34. In E the ECtHR awarded compensation for breach of Article 3 to four children whose local authority in Scotland had failed to protect them from sexual abuse by their step-father. The children did not sue in a Scottish court because of the Bedfordshire decision in the House of Lords.
35. In P,C and S v United Kingdom P had been convicted in the US in 1995 of deliberately endangering her young son's health. She was adjudged by the US authorities to suffer from Munchausen's syndrome which had led her to induce illness in her child and exaggerate her own medical history. In 1996 P moved to the UK and having married C in 1997 became pregnant in 1998. P's local authority ("Rochdale"), learned of P's conviction for harming her son and began an investigation. A few hours after the child's birth Rochdale applied for and were granted an emergency protection order under which the child was forthwith removed from her mother and father. Rochdale later applied for a care order in the High Court during which proceedings P's legal representatives ceased to act for her. The High Court made the care order sought and in separate proceedings in which P again was not legally represented, the child, S, was freed for adoption.
36. The ECtHR found that the lack of legal representation in the High Court proceedings amounted to a breach of Article 6. The court also found that although the decision to obtain the emergency protection order was necessary in a democratic society, the steps taken under that order were in breach of Article 8 because S could have been protected without taking the drastic step of removing S from the hospital. The removal of S from her mother shortly after her birth was therefore not supported by relevant and sufficient reasons and was accordingly not necessary in a democratic society for the purpose of safeguarding S. The court also found that P and C had been prevented from being involved in the decision-making process to a degree sufficient to provide them with adequate protection of their interests under Article 8. Whilst it could not be asserted that S would not have been adopted but for the procedural shortcomings established by the applicants, damages were awarded for "loss of opportunity".
37. In Venema v The Netherlands the applicants' daughter was removed from them under a provisional order obtained by the Child Welfare Protection Board without holding any prior consultations with the parents. The mother was suspected of suffering Munchausen syndrome by proxy and of harming her daughter. The order was rescinded five months later, the domestic court being satisfied that the child was not at risk. The ECtHR held that the failure to allow the parents to participate in the decision-making process constituted a breach of Article 8 and awarded damages of 15,000 Euros for the distress and anxiety experienced by the parents.
38. Finally, in Yousef v The Netherlands the applicant, an Egyptian national, complained that the decision of the courts of the Netherlands that he should not be allowed to recognise his illegitimate daughter was in breach of Article 8. Under the law of the Netherlands, the mother of an illegitimate child could object to the father recognising the child if the objection was not an abuse of the right of veto. The applicant was absent from the jurisdiction for 2 ½ years, leaving mother and child behind. The mother became terminally ill and objected to the applicant recognising his daughter; she also stated in her will that the child should be brought up in her brother's family. After the mother's death her wishes were respected and the child went to live with her uncle. The ECtHR dismissed the applicant's claim. The court held that in seeking to recognise his daughter the applicant had the intention of disrupting her family situation: he wanted recognition of his paternity so that he could have his daughter live with him instead of with her legal family. Where the Article 8 rights of parents and a child are at stake, the child's rights must be the paramount consideration. If any balancing of interests is necessary, the interests of the child must prevail.
39. When reviewing these cases, the Court of Appeal noted that when deciding whether what had been done was necessary in a democratic society under Article 8 (2), the ECtHR was applying a test that approximates to the test whether there had been a breach of a duty of care in common law negligence. In paragraphs 79 to 87 the court said:

The effect of these decisions

79. Section 2(1) of the Human Rights Act requires the Court to have regard to the jurisprudence of the Strasbourg Court where relevant to proceedings under the Act. Thus any English court, when dealing with a claim under the Act in relation to action or inaction after October 2000 on the part of a local authority in relation to suspected child abuse, must take into account the decisions to which we have just referred. Where a claim alleges breach of Article 3, in circumstances such as those in Z v United Kingdom and E and others v United Kingdom, the court is likely to have to consider whether the local authority knew, or should have known, that positive action was called for. This will necessarily involve consideration of the conduct of the individuals involved. A claim of this nature will, so it seems to us, necessarily be a claim by a child rather than a parent.

80. Where a claim alleges breach of Article 8, on the ground that a child has been removed from a parent without justification, this will also require examination of the conduct of the individuals involved to see whether, on the particular facts, the action was 'necessary in a democratic society'.

81. Thus litigation involving factual enquiries of the nature considered above is now a potential consequence of the conduct of those involved in taking decisions in child abuse cases. In these circumstances the reasons of policy that led the House of Lords to hold that no duty of care towards a child arises, in so far as those reasons have not already been discredited by the subsequent decisions of the House of Lords, will largely cease to apply. Substantial damages will be available on proof of individual shortcomings, which will be relevant alike to a claim based on breach of section 6 of the Human Rights Act and a claim based on breach of a common law duty of care.

82. Can there, in these circumstances, be any justification for preserving a rule that no duty of care is owed in negligence because it is not fair, just and reasonable to impose such a duty? It is true that a claim under the Human Rights Act will only lie against public authorities and not against the individuals employed by them. But the reality is that claims in negligence are brought primarily to establish liability on the part of the local authorities and individuals are unlikely to be personally at risk. In so far as the risk of legal proceedings will inhibit individuals from boldly taking what they believe to be the right course of action in the delicate situation of a case where child abuse is suspected, we think that this factor will henceforth be present, whether the anticipated litigation is founded on the Human Rights Act or on the common law duty of care.

83. In so far as the position of a child is concerned, we have reached the firm conclusion that the decision in Bedfordshire cannot survive the Human Rights Act. Where child abuse is suspected the interests of the child are paramount - see S.1 Children Act 1989. Given the obligation of the local authority to respect a child's Convention rights, the recognition of a duty of care to the child on the part of those involved should not have a significantly adverse effect on the manner in which they perform their duties. In the context of suspected child abuse, breach of a duty of care in negligence will frequently also amount to a violation of Article 3 or Article 8. The difference, of course, is that those asserting that wrongful acts or omissions occurred before October 2000 will have no claim under the Human Rights Act. This cannot, however, constitute a valid reason of policy for preserving a limitation of the common law duty of care which is not otherwise justified. On the contrary, the absence of an alternative remedy for children who were victims of abuse before October 2000 militates in favour of the recognition of a common law duty of care once the public policy reasons against this have lost their force.

84. It follows that it will no longer be legitimate to rule that, as a matter of law, no common law duty of care is owed to a child in relation to the investigation of suspected child abuse and the initiation and pursuit of care proceedings. It is possible that there will be factual situations where it is not fair, just or reasonable to impose a duty of care, but each case will fall to be determined on its individual facts.

85. In reaching this decision we do not suggest that the common law duty of care will replicate the duty not to violate Articles 3 and 8. Liability for breach of the latter duty and entitlement to compensation can arise in circumstances where the tort of negligence is not made out. The area of factual enquiry where breaches of the two duties are alleged are, however likely to be the same.

86. The position in relation to the parent is very different. Where the issue is whether a child should be removed from the parents, the best interests of the child may lead to the answer yes or no. The Strasbourg cases demonstrate that failure to remove a child from the parents can as readily give rise to a valid claim by the child as a decision to remove the child. The same is not true of the parents' position. It will always be in the parents' interests that the child should not be removed. Thus the child's interests are in potential conflict with the interests of the parents. In view of this, we consider that there are cogent reasons of public policy for concluding that, where child care decisions are being taken, no common law duty of care should be owed to the parents. Our reasoning in reaching this conclusion is supported by that of the Privy Council in B v Attorney-General.

87. For the above reasons, where consideration is being given to whether the suspicion of child abuse justifies taking proceedings to remove a child from the parents, while a duty of care can be owed to the child, no common law duty of care is owed to the parents.

40. Mr. Weir relies on the fact that in all the Strasbourg cases reviewed by the Court of Appeal save for E (where the children alone were the applicants and the claim was under Article 3), the ECtHR upheld claims for breach of Article 8 brought by one or both parents of a child removed from parental custody on grounds of suspected abuse. He contends that if such parents are now able to sue under the HRA for breach of Article 8, the common law should abandon its stance that no duty of care is owed by investigating professionals to parents suspected of abusing a child. In his submission it would be odd, uneven and unfair for the remedy open to a child (actions in negligence and for breach of Article 8) to be different from the remedy open to the parent (an action for breach of Article 8 alone) where each has a remedy for breach of the shared right conferred by Article 8. The time has come, says Mr. Weir, for an incremental development of common law negligence. The Court of Appeal in D held that in light of the Strasbourg cases the common law should hold that a duty of care was owed to children who were the subject of an investigation into suspected child abuse. It was now appropriate to take the next step and hold that a duty of care was owed to the parents. In D, Lord Bingham (dissenting) said (para 50): "… the question does arise whether the law of tort should evolve, analogically and incrementally, so as to fashion appropriate remedies to contemporary problems or whether is should remain essentially static, making only such changes as are forced on it, leaving difficult and, in human terms, very important problems to be swept up by the Convention. I prefer evolution." Mr. Weir urges me to take the same approach.
41. Mr. Weir also argues that the concern of the majority of their lordships in D about a conflict of interest is analytically unsound because the interest of the innocent parent and the child are the same and it will only be established that a parent was not innocent after the investigation has been completed. He instanced the case of an employee (A) who suffers a psychiatric illness consequent on witnessing an injury suffered by a co-employee (B) due to the employer's negligence. In such a case maintained Mr. Weir, the employer will not know whether he owed a duty of care to A, whether as a primary or secondary victim, until all the facts have emerged.
42. As to the proximity point, Mr. Weir argued that here again the HRA had completely changed the legal landscape because the ECHR treats both the parent and the child (in appropriate cases) as victims. He also contended that on the pleaded facts there was a strong degree of proximity because Mrs. Lawrence was closely involved with the decisions and acts and omissions of PCC. In his submission she was in effect a participant in these critical events.
43. Despite the skill with which Mr. Weir developed his submissions, I cannot accept them. D was decided by the House of Lords as recently as April 2005 and in my judgement, the policy reason given by all four of their lordships in the majority for declaring that a duty of care was not owed by investigating professionals to parents suspected of child abuse --- the avoidance of conflicting duties that could prejudice the interest of the child --- is not rendered invalid or otherwise inapplicable by the fact that in a case based on acts and omissions occurring after 2^nd October 2000 such a parent may have a claim for breach of Article 8. Despite its review of the Strasbourg cases and its conclusion that Bedfordshire could no longer stand in the light of that jurisprudence, the Court of Appeal in D held that no duty of care was owed to the parents. Moreover, in D, Lord Nicholls also considered the Strasbourg jurisprudence and was likewise unpersuaded that this indicated that parents of suspected child abuse should be within the class to whom professional investigators owed a duty. In paragraphs 82 to 85 he said:

  82.  ….. Until recently it would have been unthinkable that health professionals owed a duty to parents; they did not owe a duty even to the child. But the law has moved on since the decision of your Lordships' House in X (Minors) v Bedfordshire County Council [1995] 2 AC 633. There the House held it was not just and equitable to impose a common law duty on local authorities in respect of their performance of their statutory duties to protect children. Later cases, mentioned by my noble and learned friend Lord Bingham of Cornhill, have shown that this proposition is stated too broadly. Local authorities may owe common law duties to children in the exercise of their child protection duties.

    83.  This development in the law gives no guidance on how 'wrongly suspected parent' cases should be decided. There have been a number of cases, in this country and in Strasbourg, involving claims by parents against local authorities in respect of the latter's discharge of their responsibilities regarding children. In only two cases, it seems, was the claimant a parent wrongly suspected of having abused his or her child. In L (A Child) v Reading Borough Council [2001] 1 WLR 1575 the Court of Appeal's decision concerned a striking out application. A police authority sought to strike out a claim in negligence brought by a father wrongly suspected of having sexually abused his daughter. Otton LJ held the police assumed no responsibility towards the father by interviewing him as a suspect. But it was arguable there was a legal assumption of responsibility when, there being no evidence to support criminal proceedings, the police officer nevertheless came to the conclusion that the mother's complaint was sufficient to show that the daughter was at risk of further abuse from her father. So the striking out application failed. The Court of Appeal left open the question whether there was a 'legal assumption of responsibility' on the alleged facts.

    84.  More recently a case concerning a wrongly suspected parent came before the European Court of Human Rights in Venema v Netherlands (2002) 39 EHRR 102. A young child aged 11 months was separated from her mother because of fears the mother was suffering from Munchausen syndrome by proxy. The child was returned five months later, following medical reports which found the child's arrested breathing had a physical explanation and that there was no sign the mother was suffering from any psychiatric disorder. The court noted that its approach in cases where a child has been taken into care is that it must be satisfied the circumstances justified taking such a step:

'In this respect, [the court] must have particular regard to whether, in the light of the case as a whole, the reasons adduced to justify the measure were relevant and sufficient such as to allow the conclusion that it was "necessary in a democratic society"'(para 90, emphasis added).

In that case the court held there had been a breach of article 8 because the parents had not been sufficiently involved in the decision-making process. They had not been able to put forward their point of view before the court order was made.

    85.  In my view the Court of Appeal reached the right conclusion on the issue arising in the present cases. Ultimately the factor which persuades me that, at common law, interference with family life does not justify according a suspected parent a higher level of protection than other suspected perpetrators is the factor conveniently labelled 'conflict of interest'. A doctor is obliged to act in the best interests of his patient. In these cases the child is his patient. The doctor is charged with the protection of the child, not with the protection of the parent. The best interests of a child and his parent normally march hand-in-hand. But when considering whether something does not feel 'quite right', a doctor must be able to act single-mindedly in the interests of the child. He ought not to have at the back of his mind an awareness that if his doubts about intentional injury or sexual abuse prove unfounded he may be exposed to claims by a distressed parent.

44. As I have already observed, Lord Steyn expressed agreement with the opinions of Lords Nicholls, Rodger and Brown and the latter three all said that they would dismiss the appeals not only for the reasons developed in their individual opinions but also for the reasons given by each other. It is right to note, however, that Lord Rodger said in paragraph 118:

Secondly, since the relevant events occurred before the Human Rights Act 1998 came into force, the appellants could not seek damages for any possible breach of their rights under article 8 (1). Especially in view of the decisions in Wainwright v Home Office [2004] 406, 423, para 34 and R (Greenfield) v Secretary of State for the Home Department [2005] 1 WLR 673 I should wish to reserve my opinion as to whether, in such a case, it would be appropriate to modify the common law of negligence, rather than to found any action on the provisions, including section 8, of the Human Rights Act 1998: cf Fairlie v Perth and Kinross Healthcare NHS Trust 2004 SLT 1200, 1209L, para 36, per Lord Keith.

45. As I have said, in my opinion there is no good reason why the law as propounded by the majority in D should be modified because a claim by a parent honestly but mistakenly thought to be guilty of abusing his child may be available under the HRA. The House of Lords have pronounced, and if I may respectfully say so, the reasoning of the majority is of great cogency. I reject Mr. Weir's criticisms of the majority's reasoning on the "conflict of interest" point. The proposition that if it were held that an investigating professional owed duties to both the child and the suspected parent or parents there would a real risk of the professional being deflected from deciding what is in the best interest of the child is an entirely straightforward one and is not falsified by the fact that in some exceptional cases well removed from the world of the investigation of child abuse a party may not know that he owed another a duty of care until after the event.
46. In my judgement, if it is against the public interest that professionals investigating child abuse should owe a duty of care to parents suspected of such abuse the common law should not pretend that the public interest is something different merely to keep pace with Convention jurisprudence. Indeed, in my view, the way forward is to apply Article 8 (2) so as to give effect to the public interest identified in D. Thus, if the interest of children suspected of being victims of child abuse demands that the investigating professionals should owe no duty of care to parents suspected of being responsible for the abuse, the courts of England and Wales should hold that the removal of a child or the inclusion of its name on the "at risk register" due to an honest but mistaken view that the abuse is the work of one or both of the parents is necessary in a democratic society. I can see nothing in the Strasbourg jurisprudence that compels a contrary approach.
47. Even if the Convention and the Strasbourg jurisprudence compels the court to give a remedy where for the reasons given in D the common law prefers non-justiciability, I think that the claimant should be restricted to a claim under the HRA. Justice does not require that he should also be able to sue in negligence. It is true that under s.7(5) of the HRA there is a limitation period of only one year but it is unlikely that a claimant would not quickly appreciate that his right to respect for family life has been interfered with and the period can be extended if in all the circumstances it is equitable to do so. It is also true that under s.8(3) damages can only be awarded if the court is satisfied that the award is necessary to afford just satisfaction, but pursuant to s.8(4), in deciding whether to award damages the court must take into account the relevant Strasbourg jurisprudence, and, as we have seen, the ECtHR awarded damages in TP and KM and P,C and S and Venema. Moreover, the ECtHR's approach to the award of damages for breach of Article 8 has been more generous than the common law's approach in that the ECtHR has awarded damages for the "loss of an opportunity" and for distress, whereas in analogous cases the common law requires proof on the balance of probabilities that the child would not have been removed from the parents if the measures not taken had been taken and that the claimant has suffered a recognised psychiatric injury.
48. Turning to Mr. Weir's submissions on the proximity point I reject the contention that the courts should depart from the reasoning of Lord Rodger because both parent and child might have claims under Article 8. Lord Rodger's reasoning was fully in accord with established principles and expressed the policy of the law as it has developed over a long period of time. Its wisdom and cogency have not melted away because of the incorporation of the HRA. I can also see no basis for holding that the pleaded facts establish a sufficient degree of proximity between Mrs. Lawrence and the social workers for the latter to owe her a duty of care. At bottom Mrs. Lawrence claims that she suffered psychiatric injury because PCC's social workers negligently concluded that her children were at risk of emotional harm from her and their father. It was the social workers' primary duty to protect the children from such harm. Accordingly, as a matter of substance, the pleaded facts of her case are not relevantly different from the facts alleged in D and the reasoning of Lord Rodger (with which Lords Nicholls, Steyn and Brown agreed) applies as much to Mrs. Lawrence as it did to the appellants in D.
49. My conclusion therefore is that Mrs. Lawrence's claim in negligence is bad in law and is bound to fail. PCC are accordingly entitled to have that claim struck out and to summary judgement on the claim, and I so order.