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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		21st October 2011

H H Judge Hampton

INTRODUCTION

1. The Claimants in this case are three brothers and a sister who, during part or all of their childhood, lived in the area for which Buckinghamshire County Council was responsible. The Defendants are the successor to that Authority.
2. Throughout their childhood each of the Claimants was the victim of sustained and serious sexual abuse, perpetrated by their father, between about 1990 and 2005, when he suffered a serious stroke. Details of the abuse suffered by the Claimants are clear from the documents filed. Each Claimant gave statements to the police, when the father was prosecuted in 2006/2007. The father pleaded guilty to 40 offences involving sexual abuse and was sentenced at Aylesbury Crown Court on 26 April 2007 to life imprisonment. 15 offences were perpetrated against the first Claimant, 14 against the second Claimant, 8 against the third Claimant and 3 against the fourth Claimant.
3. The father was also a long-standing abuser of drink and drugs.
4. The Defendants' predecessors became aware of the father's abuse of the first and second Claimants, in April 1992. The father admitted sexual abuse of the two older Claimants at a Alcoholics Anonymous meeting. The disclosure led to enquiries by the local police force and a referral to Social Services. The father moved to lodgings and the first three Claimants were placed on the child protection register. The fourth Claimant was born over two years later on 23 September 1994.
5. No charges were brought against the father, who returned to the family home on the day of a Child Protection Conference on 22 October 1992. During the relevant period the family were engaged in counselling and other therapeutic work, there were further meetings and conferences. On 22 April 1993 the Claimants' names were removed from the Child Protection Register and on 5 June 1993 the case was closed.
6. The father continued to abuse the three older Claimants and during her childhood, from the age of about 7 or 8, fourth Claimant. Each of the Claimants has suffered harm arising from that abuse. They now bring this claim against the Defendants as the successor of Buckinghamshire County Council.
7. In summary, they allege failure to investigate and analyse the background to the abuse and the relationships within the family adequately. It is alleged that the risks posed by the father were not adequately assessed and this led to the return of the father to the household and the exposure of the Claimants to a foreseeable risk of harm.
8. The Defendants deny liability. They contest the nature and extent of the duty of care owed, and deny a duty of care to the fourth Claimant who had not been born at the time of their Social Services Department's involvement. It is asserted that the response by the Department and its social workers in 1992 and 1993 was reasonable and competent. It is asserted that the Defendants are not liable for the harm caused by the criminal and tortious acts of the Claimants' father after his return to the family in 1993.
9. The Claimants seek compensation under various heads, pain and suffering, loss of earnings, disadvantage in the labour market and the cost of treatment. The Defendants accept that there has been injury, but not the extent to the losses claimed.
10. I have considered all the evidence put before me and the submissions made by both parties. I will deal with what I consider to be the most important or relevant issues in this judgment.

THE FACTS

11. There is little dispute as to the facts. It is not disputed that each of the Claimants has suffered the most appalling abuse at the hands of their father. The third Claimant, on the basis of the charges admitted by the father, fared the least badly. Mercifully, the father's activities were cut short by his stroke when the fourth Claimant was 11 years old. Nevertheless she suffered the indignity of being photographed in the course of the abuse. All the Claimants have received Criminal Injuries Compensation Authority ("CICA") compensation.
12. There is no factual dispute as to how the matters came to light and how they were dealt with by the Defendants' employees and other agencies, whose help was enlisted. The principal issue is that of the quality of social work practice adopted by the Defendants' employees and whether this fell below a reasonable standard.
13. It is apparent, that after Social Services closed the file, the Claimants' father continued his activities and concealed them from the Claimants' mother. It is also apparent that the Claimants were unaware that their siblings were being subjected to abuse. The abuse of the first and second Claimants was constant and sustained from about the age of four or five until they left home in 2003 and 2004 respectively. The abuse involved oral sex, masturbation, and buggery and incitement to carry out such acts on their father. The third Claimant was abused from the age of three in 1992 to the age of eight or ten. It is not entirely clear when the abuse of the fourth Claimant commenced. The first charge against the father in relation to her, dates from June 2005 when the fourth Claimant was ten. Although the fourth Claimant complained of vaginal rape, the father was not charged with such an offence. The abuse also involved masturbation and oral sex.
14. The first social worker to become involved in the case and who undertook a preliminary assessment, was Oona Moriaghty. She prepared a first report to the Child Protection Conference created by the Defendants to deal with the case. She reported at the first such conference held on 28 April 1992. Just over one month later the case was handed to Miss Angelico who became key worker for the family until the case was closed. She was a key witness. She was responsible for working with the family itself and organising and taking reports from other social workers and agencies, who became involved in assisting the family. She was supervised in her role by Mr Westlake, her immediate superior, and Miss Farr, who at that time was a Senior Social Worker. Miss Farr chaired the Child Protection Conferences. At the time of the events with which this trial is concerned she was the Case Manager and Coordinator.
15. On 14 May 1992, the Crown Prosecution Service decided not to prosecute. This was, perhaps, a surprising decision, the reasons for which are not entirely clear. The Defendants organised therapeutic work to be done with the family, although there were clearly difficulties in finding a suitable counsellor/therapist for the father himself. In due course counselling was arranged for the father with a Mr Robin Preston, who was part of the Pegasus organisation in the area. That organisation was principally concerned with alcohol and substance abuse. Miss Angelico confirmed, in her evidence, that Mr Preston was not known to have any background or training in dealing with child sex abusers. The counselling of the father by Mr Preston did not start until the end of August 1992. A Case Conference convened on 22 October 1992 recorded that the father's return home "should be carefully planned and a written agreement to be devised, setting out boundaries." (441)
16. After that Conference, there was a private meeting between the parents, Miss Angelico and Miss Farr. Despite the decision of the Conference, the father was permitted to return home the next day, with no written agreements in place and with no further planning.
17. A second child protection review was undertaken on the 29 April 1993. After that review the Claimants' names were removed from the Child Protection Register. There was follow-up work, but the case was closed on 5 June 1993. Regrettably, the father's activities continued unabated.
18. After the case was closed, two incidents were raised by the second Claimant's school in October 1993 and April 1998. These did not lead to the reopening of the case.
19. In 2005, after the father suffered a severe stroke, the first Claimant made a serious suicide attempt. Thereafter he disclosed the abuse he had suffered at the hands of his father. All the other Claimants made disclosures. Their allegations resulted in the father's convictions on 26 April 2007, on his pleas of guilty, to a 40 count indictment.
20. On 8 June 2010 these proceedings were commenced.

THE EVIDENCE

21. I heard evidence from each of the four Claimants and also their mother. Their evidence was fairly brief. They were not required to give evidence about the detail of the evidence they had suffered. Unsurprisingly they could recollect little of their dealings with social workers of the Defendants authority during their childhood. The fourth Claimant had no contact with social workers at all before the abuse was disclosed in 2005. The mother's evidence was also brief. She confirmed that she was unaware that the father's activities had continued after the case was closed by Social Services in 1993.
22. For the Defendants, I heard from Social Worker Miss Angelico, her immediate superior Mr Westlake, and also from Miss Farr. Mr Westlake's role in the matter was not particularly involved. His principal role was to assist Miss Angelico to organise her time. He was not involved in any of the important decisions.
23. I also heard expert evidence on social work practice from Miss Ruegger for the Claimants and Professor Payne for the Defendants.

THE LEGAL BACKGROUND

24. The statutory basis of the Defendants' duties is to be found in the Children Act 1989, Section 47. In summary, that section requires a local authority, which has reasonable cause to suspect that a child in the area is suffering or likely to suffer significant harm, to make enquires to enable them to decide whether they should take any action to safeguard or promote the child's welfare. If, as a result of compliance with this section, the local authority conclude that they should take action to safeguard or promote the child's welfare they are required to take that action, as far as it is within their power and reasonably practicable for them to do so. The section does not, in itself, provide a civil cause of action for those who assert that the duty has not been complied with.
25. That a duty of care is owed by social workers in local authority employment was established in JD and others v East Berkshire Community Health [2003] EWCA Civ 1151. In that case, Lord Phillips MR observed that a 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, each case will fall to be determined on its individual facts.
26. In the pleadings the Defendants takes the point that the duty was not owed by the authority itself. In argument it was accepted that the Defendants are vicariously liable for any negligence established in the conduct of investigations and the activities undertaken by social workers in the Defendants' employment.
27. A social worker's duty in common with other professionals, is to exercise reasonable skill and care and the test in Bolam v Friern Hospital Management Committee, applies. Accordingly in a social worker will not be negligent if she acts in accordance with practice accepted at the time as proper, by a responsible body of social work opinion, even though another social worker might adopt a different practice.
28. In reaching my conclusions in this case I take into account the fact that the events with which the court is concerned occurred between April 1992 and June 1993, some 18-19 years ago. The memories of the social workers dealing with the case have inevitably faded. They have had to rely on notes produced at the time to refresh their memories. The court must be careful not to assume, that simply because a matter has not been noted it was not taken into account or did not occur. However it is common ground that no detailed, and written, risk assessment of either parent was undertaken.
29. It is also necessary to be careful not to judge the social workers dealing with the very difficult and sensitive problems which arose in this case, by the standards which apply in 2011. However, judges do not leave their judicial experience at the courtroom door. As I indicated in the course of the trial, I have experience of dealing with care proceedings in applications made by local authorities under the Children Act 1989.
30. One can only feel sympathy for the Claimants in this case, who have suffered gross and persistent abuse at the hands of their father. They have received compensation from the CICA, but nothing can compensate them for the loss of innocence in childhood and the breach of trust they have suffered from one of the individuals from whom they ought to have been able to expect unconditional love, protection and care.

THE QUALITY OF THE EXPERT EVIDENCE

31. Both the experts called on behalf of the parties have considerable experience in social work. Miss Ruegger has had experience in the field as a social worker, undertaking a full range of cases, as well as undertaking academic work. She is currently a part time Consultant Guardian at Great Ormond Street Hospital. Professor Payne has a background in psychology. He has a long and distinguished curriculum vitae and has been involved in child guidance and education and has impressive academic credentials. However, he has had no experience of acting as a local authority social worker on a day-to-day basis. Nor has he acted as a Guardian in Children Act proceedings. His lack of practical experience was demonstrated when, in the course of evidence, in response to questions from me, he asserted that there had been no grounds for taking care proceedings under the Children Act 1989 in the present case.
32. I found a number of aspects of Professor Payne's evidence unconvincing. He did not accept any criticism of the Defendants' practices, although Miss Ruegger, for the Claimants, accepted reasonable and good practice where she found it. Professor Payne did not criticise the Defendants for failing to carry out a comprehensive and written risk assessment of either parent. It is clear that the social workers involved considered this, as the risks presented by the parents were referred to in the initial report of Miss Moriaghty (p418) and the report to the Case Conference by Miss Angelico in October 1992 (p435). In the present case, no assistance was sought from any professional with experience in psychology, or the investigation and treatment of the sex abuse of children. There was no psychological assessment of the father or the mother or of the Claimants themselves, although I recognise the difficulties there would have been in assessing the Claimants, when they were children of such tender years.
33. I was concerned as to the manner in which Professor Payne dealt with the social workers' failure to follow up information they had from the parents, about the father's previous sexual misconduct. It was clear that Miss Moriaghty knew that allegations had been made against the father, whilst the family were living in Israel (p417). A police report that pre-dates Miss Moriaghty's report, arising from a meeting at which Miss Moriaghty was present, indicates that the mother informed the meeting that "she and her husband had had to leave Israel because a neighbour's daughter had alleged indecent assault. [The father] was interviewed by police – NFA. This happened some two years ago." (p696)
34. The notes of the meeting go on to express concerns that "all present" had "about how much information (the mother) was holding back". Subsequent enquiries reveal that the father had actually been convicted of an indecent assault in Israel in 1982, a different, earlier incident to that referred to above. No attempt was made by Social Services to follow up any enquiries with the Israeli authorities. I was not impressed by Professor Payne's insistence that a telephone call or a letter to the Israeli Embassy in London, or a request made to the police force to pursue these enquiries, would have been a disproportionate use of resources.
35. In addition, there was an apparent inconsistency between what the father had said to a probation officer, namely that "the abuse had been going on for three years" (p542) and what the father had said to Miss Moriaghty, namely that the abuse continued "for approximately 18 months" (p417). Professor Payne was not critical of the failure to investigate this.
36. Miss Ruegger has more experience in field work and she has acted as a Children's Guardian. She identified problems with the Defendants's investigation at the outset and these are noted in her reports. They were repeated in her oral evidence, which I found convincing, well thought out, balanced and reasonable.
37. At the first Child Protection Conference, the plan was to re unite the family (p418)despite the fact that, no enquiries had been undertaken with the Israeli authorities, Miss Moriaghty had failed to follow up the remarks made to her by the probation officer (p542), that the father was not accepting responsibility for his actions and was impatient. Whilst I accept the fundamental proposition that it is important to keep families together wherever possible, it is apparent that the Defendants' social workers appeared to be accepting what they were told by the parents at face value, at an early stage, rather than pursue enquiries with an open mind and despite the reservations expressed by those involved in the first planning meeting that the mother was holding something back. I accept that this case had the unusual feature that the abuse was disclosed on the father's own admission. Long experience of cases of this nature indicates that one cannot assume that the perpetrator of child abuse is necessarily open and honest. There was an indication at an early stage in the course of Miss Moriaghty's conversation with Miss Enfield, a probation officer, that the father was minimising his responsibility and was impatient to sort things out (p542).

FINDINGS – PARTICULARS OF NEGLIGENCE

38. I find that there was a failure to investigate the history of this family thoroughly and to a standard that would be regarded as a reasonable by a responsible body of social work opinion. There was no attempt to follow up enquiries as to the family's history when in Israel, with the Israeli authorities. It does not appear to have even occurred to Miss Angelico to enlist the assistance of the Israeli Embassy, or the police force. I note that in the course of police enquires in 2007 the conviction in 1982 was disclosed without difficulty.
39. No adequate attention appears to have been paid to the mother's remarks about having to leave Israel some two years earlier, the concerns expressed at that meeting that the mother was holding something back, that she and the father had discussed the matter, before contacting Social Services or that the father had disclosed the abuse to the mother some 8 months earlier and she had not acted upon this information.
40. On 8 July 1992, the father admitted that "he still had sexual feelings for his sons and needs help to deal with…"(p549). This fact was not reported on in the notes for the next Core Group meeting held on 17 July 1992 (p425).
41. In a report to the case conference on 21^st October 1992 (page 433) it is stated that the father no longer had sexual feelings for his sons. This was after counselling had started in late August 1992. The report continues that the father had "such insight into his own behaviour that he is setting his own safeguards". Miss Angelico admitted that in reaching this conclusion, she had not seen Miss Moriaghty's earlier notes and the comments of the probation officer.
42. I accept that in providing suitable counselling for the father, there were difficulties in securing the assistance of a suitable therapist. The probation service was not able to provide assistance voluntarily as the father had not been convicted. In due course Mr Robin Preston (referred to above) offered counselling. Miss Angelico reported to the case conference in October 1992 that a suitable expert had been found. In her oral evidence she accepted that she did not think that Mr Preston had specific qualifications in rehabilitating or risk assessing, sex offenders.
43. Whilst I accept there may have been difficulties in securing resources, it is apparent that Miss Angelico made no attempt to enlist the assistance of mental health services, or seek help from outside the local area. This is in the context of serious abuse continuing over a period of at least 18 months (or according to the probation officer up to three years). The children had shown evidence of disturbed behaviour that had been referred to at the police planning meeting in April 1992 (page 696).
44. Miss Rueger's evidence, which I accept, was that it was standard practice at this time to seek expert advice when assessing the risk posed by sexual abusers. Whilst the Lucy Faithful Foundation had not been established, I accept Miss Rueger's evidence that there was other specialised assistance available. Although the correspondence shows that the probation service would not become formally involved, as there had been no conviction, there was no follow-up with that service, in seeking to identify an individual or service capable of treating sex offenders, by the social workers in this case.
45. Whilst I do not criticise Miss Angelico for enlisting the help of Mr Preston, it appears that despite the fact that she did not think that Mr Preston had qualifications in rehabilitating or risk assessing sex offenders, once Mr Preston's help had been enlisted, she made no further attempts to seek further specialised help from any other source, either for the father or for the family members.
46. I also find that there was a failure to make appropriate enquiries into the circumstances of the mother and her abilities to protect her children. It was known that the father had confessed his activities to the mother some eight months before the disclosure to Alcoholics Anonymous. Miss Moriaghty, who had been involved in the police planning meeting on 7th April 1992, had been one of those who had expressed concerns about how much information the mother was holding back (page 696). Documents produced for that planning meeting by PC Holdsworth indicated that when the female worker from Alcoholics Anonymous had spoken to the mother, she had told that worker that she, the mother, was not aware of abuse (page 692). In addition, the records of the Social Services indicated that in July 1990, the school had reported concerns about lack of supervision for the children (page 527). This occurred in the mornings, when the mother was sleeping after returning home from working at night. These problems occurred within months of the family's arrival in the United Kingdom. If the father's remarks to the probation officer that the abuse had been going on for 3 years was correct, then the abuse would have occurred during this period.
47. Miss Angelico accepted in evidence that the father was the dominant personality in family relationships. Whilst police enquiries were going on and whilst initial reports were being prepared, despite the father's admissions, the mother was anxious from the outset, for the father to return home. She was dependent on him (page 422). It was concluded in the report for the first Child Protection Conference that the mother felt "that she has no control over the situation, that she is unable to protect the children and she is asking for help and support".
48. The report to the Case Conference in October 1992 indicated that counselling for the mother, had only been obtained in the fortnight before that meeting and the counselling was from the Pegasus Organisation. That organisation was concerned with alcohol and substance abuse and had no known experience with child abuse. By the time of that report, the father's counselling had been proceeding for no longer than two months. The notes of the Child Protection Review indicated that the mother was irritable when counselling was taking place, that she loses her temper with the children and that she would like the father back home to support her with the children and in dealing with her own problems. (Page 440) There had been an increase in contact at the home, without consultation with Social Services by that time, but no concern was shown about this at the Child Protection Review. On the contrary, Miss Angelico's report to that review indicated confidence in the father's ability "to be a protecting parent alongside his wife, and therefore [I] feel that this may be the right time for the children's name to be removed from the register." In the event the children's names remained on the register. Although the decision of the conference was, as referred to above, that the father's return home should be carefully planned, the father was nevertheless allowed to return home the following day, without such careful planning or a written agreement in place.
49. I accept the criticisms made of this decision in Miss Rueger's report at 5.20 – 5.22.
50. I find that had a more objective and complete enquiry into the mother's history, her attitude to the father's disclosure and the relationship between the father and the mother been undertaken, there would have been less confidence in the mother's ability to protect the children, to restrain the father's activities and to report and act upon any difficulties that might arise. I reach the same conclusion with regard to the confidence that Miss Angelico expressed in the parents' abilities to cooperate with social workers. It is of particular concern that the reference in the earlier police report to the mother "holding back" information appears to have been unknown to Miss Angelico. Miss Angelico did not express concern that there had been a variation of contact arrangements made by the parents, without prior approval of Social Services. Her evidence suggested that she did not consider this to indicate a failure of the parents to cooperate with social services.
51. I also find that there was a continuing failure to assess the needs of the first three Claimants during this period. The initial assessment by Miss Moriaghty had been that the father presented a "high risk" (page 417). I have dealt with the failure to pursue enquiries with the Israeli authorities above. There was also the failure to make further enquiries into the inconsistency between what the father had said to the probation officer and to Miss Moriaghty about the period over which the abuse had continued (page 540 and page 542). The abuse was serious. It was more than simple touching and fondling and it was not an isolated occurrence.
52. The report for the Case Conference on 22 October 1992 referred to an incident where another child had bitten the first Claimant's penis. Miss Angelico's response in her evidence was that this was simple sexual exploration and experimentation between young children. I accept Miss Rueger's evidence that whilst sexual curiosity and exploration may not be unusual, oral contact between children of this age is abnormal and unusual. Despite this, Miss Angelico's reaction in court was that she was not unduly concerned by this episode. I find this lack of concern to be misguided. Although "keeping safe" work had been undertaken by Miss Angelico by October 1992, she was unsure how much the third Claimant was taking in (page 434). By April 1993, when the Claimants' names were removed from the Child Protection Register, Miss Angelico could only say that in the light of the ages of the first and second Claimants "I think they understood as much about early warning signals in their bodies as could be expected". The first Claimant had expressed confusion, the second Claimant had communication difficulties. The third Claimant was aged three at this time. The fourth Claimant being a later addition to the family, never received any keeping safe work at all. The father did not attend the final "keeping safe" sessions organised for the family. Miss Angelico did not regard this as a failure to cooperate.
53. When the decision was taken on 29 April 1993 to remove the Claimants' names from the Child Protection Register no concerns were raised with regard to matters of concern at the Claimants' school. In March 1993, the school had reported a deterioration in the first Claimant's concentration and several examples were given. This appears to have occurred after the father's return to the family home. In April 1993 there was report of inappropriate touching by another child at school (page 454). These matters had occurred following the father's return home in October 1992.
54. Miss Rueger indicated in the course of her evidence that a work entitled "Significant Harm" published in 1991 was, or should have been, well known to social workers dealing with child abuse. The research reported in that work under the heading "How do abusing families change?" on page 87, indicated that those who were involved in treatment for less than six months or over 18 months were less likely to make progress. It is noted that at the time the father returned to the family home, the family had been involved in treatment from individuals with no known experience in child abuse work, for only two months. Whilst Professor Payne expressed some doubts about the background research to this work, he accepted that it was well known guidance in the field at the time of the events with which the court is concerned. No heed was paid to this guidance by the Defendants' social services department.
55. It is of importance to my findings that, on the day before the second Child Protection Review held on 29 April 1993, the school nurse had contacted Miss Angelico with regard to the second Claimant. The nurse reported that the second Claimant had stated that he wished he was the first Claimant "then I wouldn't get hit so much" (page 556). Whilst I accept that the written report for conference had been prepared by Miss Angelico on 23 April 1993 and this report was made by the school nurse on 28 April, the notes of the review, (which indicated the school nurse attended) made no reference to this matter or any concerns about it. Miss Angelico accepted in cross-examination that this was not raised with the conference and she recognised that this was a mistake. Her report dated 23 April 1993 had stated that the "children" now feel safe. I find that the report made by the second Claimant to the school nurse, was clear indication that the second Claimant, at least, did not feel safe at home.
56. After the file was closed on 5 June 1993, there was a further referral to the Defendants social services department on 25 October 1993 which was not followed up. By this time Miss Angelico had moved to another department. The report (page 648) referred to an incident at school, in which the second Claimant had been involved, where five children had been discovered in a darkened room inspecting each others genitals by the light of torches. The school had raised this with the local police force and WPC Robinson had been requested to come to the school, to talk to the children at the school. The school had not reported directly to Social Services. The Defendants' response through Miss Farr had been to notify the school of its concern that the school did not raise these matters with Social Services, in a letter dated 26 October 1993. There was no further follow up with the Claimants family. I accept Miss Rueger's criticisms of this failure to act.
57. Accordingly I find that the evidence I have heard and read, supports the allegations of negligence against the Defendants' social workers. There was a failure to sufficiently investigate the father's past, the mother's ability or lack of ability to protect the Claimants and the effect upon the Claimants themselves.

CAUSATION

58. It is necessary, when considering causation, not to make assumptions on the basis of present practice. Accordingly I make my findings on the basis of the evidence which I have been given, in particular the expert evidence as to accepted standards and practice at the time. For the reasons given above I find Miss Rueger's evidence to be more persuasive than that of Professor Payne. Inevitably when considering causation the court must consider what would have happened if:

i. more detailed enquiries had been made about the father's history whilst he was in Israel,

ii. a more objective view had been taken of the mother's failure to protect in the past and her capacity to protect in future and her dependence on the father.

iii. The lack of cooperation with Social Services eg. in relation to the increase of contact had been given sufficient weight.

59. It is also necessary to consider what the decision of the Child Protection Conference in April 1993 would have been, if matters such as the increased sexual behaviour in both children since contact moved to the home, the decrease in school performance in both children after the father returned home and the incident on the day immediately before the decision to take the children's name off the register was made, had been properly considered.
60. The determination of causation is always difficult in cases such as the present. However, the court must deal with this task. Having given the matter much thought, on the evidence before me, I reach the conclusion that had Miss Angelico's enquiries and the decisions made on behalf of the Defendants in the Child Protection Conferences, been made on the basis of full and proper considerations, the father would not have been permitted to return to the home when he was and the file would not have been closed in June 1993. If the mother had been unable to separate from the father, on the balance of probabilities the children would have been accommodated outside the family. If this was not done voluntarily, care proceedings would and should have followed. Had there been adequate follow up after October 1993, which I find there should have been, on the birth of the fourth Claimant, taking into account the alleged abuse of girls in Israel, (had this been properly investigated) further child protection enquiries would have been made.
61. If Social Services had resisted the father insistence on returning home and the mother had been able to separate from the father, the Claimants would have been spared the years of abuse which followed.
62. Of particular concern is the question of causation with regard to the claim made by the fourth Claimant. She was born 15 months after the Defendants closed the file. Nevertheless, Miss Angelico remained in contact with the family on a social basis. That social contact was initiated by the father. Miss Angelico confirmed that there was social contact, approximately two or three times, and then in June 1997 the whole family attended her wedding. At that stage the fourth Claimant would have been two and a half years old. Miss Angelico remained employed by the Defendants (or its predecessor) until July 1997, the month after her wedding.
63. I have also found that there should have been further follow up after the incident at school in October 1993. The 4th Claimant was conceived approximately 2 to 3 months later.
64. In these circumstances I must consider whether it is fair, just and reasonable to impose a duty of care in relation to the fourth Claimant. Bearing in mind the father's history which involved the sexual abuse of both male and female children, I find that there was a foreseeable risk of harm posed by the father to children of either sex. For the reasons given above, this risk was not adequately assessed at the time that the Defendants were actively engaged in investigating and assisting the family. In allowing the family to reunite there was a foreseeable risk of harm being done to the first three Claimants and to any further child that may be added to the family, such as the fourth Claimant.
65. The fourth Claimant also relies on s.47 of the Children Act (1989). The duty to make appropriate enquiries and take appropriate action is a continuing duty. It is not logical to conclude that the breach of duty which I have found occurred in 1992 and 1993, operated in relation to the first three Claimants, and not in relation to the fourth Claimant. Miss Angelico knew of her existence after her birth. Although her contact was by that time social, she nevertheless remained a professional social worker employed by the Defendants. Had the earlier enquiries and the investigations been more thorough and carried with reasonable care, the risk posed by the father to any child in the family, whether male or female would have been established. Had it been established, either further, more intensive, treatment from a specialist in the appropriate field would have been secured, or alternatively such specialist advice would have established that the father remained a risk. I find that, had the case not been closed, there would have been further work with the family and the father would not have returned to the family to continue with the behaviour complained of and which was demonstrated by his guilty pleas to the forty counts of the indictment he faced in 2007.
66. If the mother had not been able to separate from the father, then on the birth of the fourth Claimant further enquiries would have been undertaken and the fourth Claimant would also have been accommodated outside the family and she would have been spared the years of abuse which she suffered at the hands of her father.
67. Accordingly I conclude that there has been negligence as alleged in the particulars of claim and that this has caused the losses now complained of by the Claimants. I find that the Claimants have established that the decisions taken by the Defendants' employees were not those that would or should have been taken by a responsible body of social work practitioners practising in the relevant period. I judge their work on the basis of reasonable standard taking into account the information known to them or which should have been known to them at the time.

QUANTUM

68. When considering the quantum of both general and special damages, I must take into account the fact that the family circumstances of the Claimants, whether or not they had suffered sexual abuse, were not ideal. The father was an alcoholic. The mother worked long hours and there were concerns about her ability to supervise and care for the children which were raised in 1990. The two older boys were bullied at school, apparently because they were Jewish. This had nothing to do with the care they received at home. The second Claimant has learning difficulties which are completely unconnected with the abuse which he has suffered. Had the children been separated from their family, they would inevitably have suffered emotional difficulties. Had the father being excluded from the home, the children would have been in the care of a single mother who had difficulty coping. These factors have been taken into account by the doctors who have reported on quantum. I have read all their reports, and it is not necessary for me to recount in detail the findings which they make. Helpful summaries are given in their joint reports. The joint reports relating to the first, second and third Claimants were produced in the course of the trial.
69. The assessment of damages for Claimants who have suffered sexual abuse always presents its own particular difficulties. No case can be described as typical. In many cases, those who suffer adverse effects as a result of sexual abuse will have other unconnected difficulties in their lives. The Judicial Studies Board Guidelines, whilst of some assistance, are not directly helpful in these cases. I have considered the cases relating to quantum put before me by the Claimants' counsel. Inevitably they all involve rather different circumstances. It is, however, to be noted that Claimants who have suffered sexual abuse are not to be denied compensation simply because they do not have any diagnosed psychiatric illness. The claimants are entitled to be compensated for the pain and suffering caused by the abuse itself, as well as its consequences. All the Claimants in the present case suffered personal difficulties as a result of the abuse they have experienced. I take into account that they are likely to have suffered difficulties either from the separation of their parents, or if they had been cared for outside the family.

THE FIRST CLAIMANT, ABB

70. The first Claimant experienced regular and persistent abuse from the age of about 4 until he was 17. It did not cease until he left home. It included fondling, oral penetration and a range of penetrative and intrusive sexual actions and of inducing the first Claimant to carry out similar actions on his father including regular anal and oral penal penetration.
71. The psychiatrists instructed to consider the injuries suffered by the Claimant, Professor Zeitlin for the Defendants and Dr. Turner for the Claimants, agree that it is probable that the abuse has had long-term adverse effects on the first Claimant. He has a long-standing and complex form of mixed drug and alcohol dependence. He is at risk of future difficulties in relationships. Both doctors considered that the first Claimant would fit a category of borderline personality disorder. They agreed that had the abuse ceased in 1992, the earlier abuse would have had relatively little contribution to his adult status, compared with the continuing abuse to the age of seventeen. Accordingly, some 5–10 per cent of later adult difficulties are attributable to unconnected family and environmental factors, the majority are attributable to the abuse described.
72. The claim for special damages for the first Claimant includes the costs of his alcohol dependency. A figure is claimed for impaired education, disadvantage in the labour market and travel costs.
73. In relation to the claim for financial loss caused by alcohol dependency, the Claimant relies on the decision in Eagle v. Chambers [2004] EWCA Civ 1033 in which a Claimant was compensated for wasted costs caused by excessive cigarette consumption. The award in that case was modest and decided on different facts. In the present case, I consider that the harm caused by alcohol abuse is a feature to be taken into account when assessing general damages. There is no firm evidence of the actual cost to the first Claimant of his excessive alcohol consumption. The claim made is speculative. He has not paid for any specific treatment in relation to his alcohol abuse. He does not refer to any specific loss caused as a result of alcohol abuse (e.g. loss of earnings caused by losing a driving licence). Accordingly I make no specific award under this head.
74. Similar considerations apply to the claim made for impaired education. This should be reflected in general damages. Family and environmental factors including a disrupted home life, if the father had not returned to the home, and the father's alcoholism may have caused problems with educational attainment in any event. The Claimant received a state education, there has not been, for example, any loss of school fees because the Claimant did not complete his education to sixth form level or has required extra tuition. He was in any event quickly employed after he left school. When giving his evidence he put forward no firm plans to return to study or other education that might put him to particular expense. There is no hard information as to the expense that he may face if he does return to education. He has served time in the Israeli army and appears to be using the skills he acquired in that capacity.
75. Nevertheless his personality problems, his alcohol dependency and the failure to complete his education caused by his desire to leave the family home, have put the first Claimant at a disadvantage in the labour market. I have very little information as to the level of income the Claimant might have enjoyed had it not been for the abuse referred to and/or the difference between that level of income and his present expected income. On the basis of the information disclosed in his witness statement, it would appear that the Claimant has a net earning capacity of approximately £11,000 per annum.
76. I award the first Claimant £70,000 general damages, and £20,000 for his disadvantage in the labour market.
77. As to the costs of future treatment, Professor Zeitlin does not contest the opinions given by Dr. Turner. Although Dr. Turner observes in an email dated 7 October 2011 that there is no need for present treatment, he advises that costs of future treatment as indicated in his report would be for up to twenty sessions of Cognitive Analytic Therapy at a cost of £80 - £150 per hour. Accordingly I allow the costs of future treatment in the sum claimed at £2,500.
78. In summary, I award the first Claimant £92,500.

THE SECOND CLAIMANT, BBB

79. The second Claimant experienced regular abuse from the age of five or six until he was seventeen, when he left home in 2004 to join the army in Israel. Assessment of quantum in his case is complicated by his learning disabilities which have been dealt with in the reports of the two psychiatrists instructed. The joint statement of the psychiatrists indicates that the second Claimant's anxiety-based problems, lack of confidence and difficulties with relationships are to be attributed as to 55 per cent to the abuse and 45 per cent to other factors unconnected with the abuse. They also agree that the other factors have increased the Claimant's vulnerability to the effects of the abuse.
80. In addition, the second Claimant has experienced episodes described by the neurologists who have reported, namely Dr. Warner and Dr. Foster, as non-epileptiform seizures (pseudo-seizures). These are described in the medical reports. They became prominent after the Claimant disclosed the abuse he had suffered in 2006 and 2007. They are triggered by upsetting events, for example, observations of violence or abuse on television. They cause considerable sleep disturbance which causes tiredness. The Consultant neurologists have reported on these seizures,. They agreed that whilst the prognosis of these non-epileptic attacks is difficult to predict, with the resolution of this claim and appropriate treatment, they believe the symptoms will improve enough to allow the second Claimant to return to full-time employment. They note that the attacks have played a role in his unemployment after December 2005. However, there is no organic neurological restriction on his earnings. The neurologists agree that this type of seizure is a "common manifestation of psychological disturbance and that the history of abuse has made a substantial contribution to the onset of these seizures."
81. For the reasons given above, I do not consider it appropriate to make a separate award for impaired education. In any event to a considerable extent, second Claimant's difficulties with education cannot be attributed to the abuse he suffered. He would have experienced difficulties in any event because of his cognitive problems.
82. The claim made for additional care in relation to the seizures is not established. The seizures were not evident before the father's stroke and subsequent prosecution. The second Claimant's witness statement indicates (page 316) that the flashbacks began after he disclosed the abuse to a social worker, who visited the home after the first Claimant had disclosed the abuse. He indicates that they have never really stopped since. The mother's witness statement indicates (page 345) that she had no idea about the seizures suffered by the second Claimant until recently. I have been supplied with a diary entry apparently prepared by the second Claimant's partner. The evidential value of this document is uncertain, it is not referred to in any witness statement. The second Claimant's present partner did not give evidence. I note that there is no reference to the seizures in any medical records before 2006.
83. As to disadvantage in the labour market, the second Claimant would have suffered disadvantage due to his cognitive difficulties in any event.
84. Taking into account the factors set out above I assess general damages at £70,000. Although a greater portion of the second Claimant's difficulties are attributable to family and environmental factors not connected with the abuse, in comparison with the first Claimant, the second Claimant has had the additional difficulty of the seizures referred to. I award £10,00 for disadvantage in the labour market.
85. As to past loss of earnings, the second Claimant has now had the good fortune to make a lasting relationship with a supportive partner and there are two children. The second Claimant's partner has taken on the role of breadwinner, and the second Claimant now cares for the children and intends to work from home after he has received further education and training. Such training was planned in the last year, but the second Claimant could not at that time afford it. The second Claimant's employment prospects would have been limited by his cognitive difficulties. As an unqualified individual, he would have been very vulnerable in the labour market in the present economic conditions. In these circumstances it is difficult to properly assess past loss of earnings on the basis suggested in the second Claimant's schedule. Nevertheless, the second Claimant's employment was affected by his seizures and it is appropriate to reflect this by a modest award. Using the figures provided in the schedule, which are based on the national minimum wage and a forty hour week, I find that it is appropriate to award losses at two-thirds of the rate claimed between 2006 to September 2009 when the Claimant's second child was born. This would produce an award of just over £43,500. I apply a further discount to reflect difficulties in securing stable employment for young adults in the present economic circumstances and award a figure of £40,000.
86. As to past travel costs, these are undocumented. Costs of travel to forensic experts are costs in the proceedings. The Defendants concedes a figure of £350 and that is the limit of my award under this head.
87. As to future losses, the medical evidence suggests that after treatment and the resolution of these proceedings, it is likely that the second Claimant will be able to return to work. It was clear from his evidence that he was content with his role as a full-time carer. He hoped in future to work from home. Accordingly I find that after treatment he is likely to be able to return to work from January 2013. When assessing future loss of earnings, the difficulties he would experience in the present economic situation must be taken into account. It is difficult to assess an award on the basis of a multiplier and multiplicand. This is particularly so when the second Claimant has the cognitive difficulties referred to and has no qualifications. I award future loss of earnings at £20,000.
88. As to further medical treatment, this is recommended by Dr. Turner, and not disputed by Professor Zeitlin. Accordingly I award £12,600. A substantial claim is made for costs of travel to future treatment by taxi. No location is given for the psychiatric counselling although the Eye Movement Desensitization and Reprocessing treatment recommended by Dr. Turner is presently available at a location over 24 miles from the Claimant's present home. I am not persuaded that all journeys for such treatment will be undertaken by taxi. Allowing a mileage rate of 50 pence per mile over the distance claimed and for weekly sessions in the first six months and fortnightly sessions thereafter, I award a figure for travel costs amounting to £2,537. As no location is given for counselling, and there are no certain costs of travel, I make no allowance.
89. I do not find the claim for future care and attendance established on the evidence. The second Claimant is presently occupied as a full-time carer for his two young children. The need for care and attendance over that which would normally be supplied in the course of family life is not proved and no allowance is made.
90. In summary, therefore, I award:

pain and suffering £70,000

disadvantage in the labour market £10,000

past loss of earnings £40,000

past travel £350

future loss of earnings £20,000

cost of treatment £12600

travel to treatment £2537

Total £155,487

THE THIRD CLAIMANT, CBB

91. The third Claimant escaped the prolonged and persistent abuse suffered by his brothers. The police papers and the joint report indicate that he suffered abuse on less than ten occasions. Unsurprisingly, therefore, the third Claimant has been the least affected by his father's abuse. He came over as the most optimistic of the Claimants in the course of his evidence.
92. The joint opinion of the psychiatrists indicates that his exam results at the end of his education were not markedly out of accord with his apparent ability. He is now in the army and it is difficult to discern whether there will be any effect on his earning capacity thereafter.
93. There is no distinctive and identifiable psychiatric disorder, although there are elements of anxiety and social avoidance, although these do not in themselves amount to a formal diagnosis. The psychiatrists agreed that the abuse suffered might contribute up to 10% of anxiety and future vulnerability. Nevertheless he is not presently in need of any formal psychiatric treatment. Despite this the joint report of the psychiatrists suggests that a contingency fund for counselling to allow for increased vulnerability would be appropriate.
94. I assess general damages at £10,000.
95. As for special damages, the travel costs are costs in the litigation. There is no evidence, that on the balance of probabilities, the abuse has put the third Claimant at a disadvantage in the labour market and no award is made. Relying on the report of the psychiatrists I award £2,000 for future therapy.
96. Thus the total award is £12,000.

THE FOURTH CLAIMANT, DBB

97. The fourth Claimant endured abuse for five or six years. This included frequent vaginal intercourse, oral penetration and posing in indecent postures in front of a camera. The abuse itself was serious, but presently the psychiatrists agree that there is not overt evidence of major depression or significant psychiatric disorder. The psychiatrists agree that at the time of the father's stroke and imprisonment there was a fall in academic performance. The fourth Claimant had received her GCSE results shortly before trial. She commented that she could have done better. Nevertheless, she has gained the college place that she had hoped for and was enjoying her studies. The psychiatrists instructed agreed that there was no indication that the abuse suffered would impair future career prospects, although it could affect relationships in future.
98. The only point of disagreement in the fourth Claimant's position was regard to the contribution made by the family environment. Professor Zeitlin was of the opinion there was a significant risk that the fourth Claimant would have low self esteem and negativity about herself together with episodes of depression because of the family background, the father's alcoholism and the mother's tiredness after regular night working. Dr. Benians did not agree that these were contributory factors. My experience of working in the family courts indicates that the children of alcoholic parents do have a much higher risk of suffering social and personality difficulties. Given the agreement in relation to the other Claimants that family and environmental background has some contribution to their adult difficulties, it would be inconsistent to dismiss that background in the case of the fourth Claimant. The psychiatrists do not offer a percentage contribution in relation to the background environment, no doubt because they did not agree on this issue. Noting the gravity of the abuse, and the opinions offered in relation to the other Claimants, I conclude that the family environment on the balance of probabilities has contributed up to 10% of the fourth Claimant's problems of low self esteem and negativity.
99. The psychiatrists agreed that there is "a significant probability" that the fourth Claimant might in future benefit from therapeutic intervention such as psychodynamic therapy or cognitive behavioural therapy. Professor Zeitlin was of the opinion that some twenty to twenty-four sessions of therapy might be appropriate. Dr. Benians advised between thirty and sixty might be indicated.
100. I assess general damages at £55,000.
101. In reaching this figure I have taken into account the drop in academic performance during 2007. For the reasons given above, a separate award for impaired education is not appropriate. On the basis of the joint psychiatric assessment, no award for disadvantage in the labour market is indicated.
102. I award the costs of future therapy for thirty sessions at £120 per session plus assessment costs of £130 to which Value Added Tax will have to be added. Accordingly I award £4,476 under this head.
103. The total award for the 4th Claimant is £59,476

CONCLUSION

104. For the reasons given, I find the Defendants vicariously liable for the shortcomings of the social work provided to the Claimants' family during 1992 and 1993 and the failure to follow up the family when the further incident occurred involving the second Claimant in October 1993. Accordingly I award damages to each of the Claimants at the figures referred to above.
105. I request that the parties should make the appropriate calculations of interest to be awarded

H H Judge Alison Hampton

21.^st October 2011