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House of Lords
Session 1998-99
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Judgments - Barret (A.P.) v. London Borough of Enfield


  Lord Browne-Wilkinson   Lord Slynn of Hadley Lord Nolan
Lord Steyn Lord Hutton





ON 17 JUNE 19999


My Lords,

When the plaintiff was 10 months old, he was the subject of a care order in favour of the defendant, London Borough of Enfield. He remained in the care of the defendant council until he was aged 17. In these proceedings the plaintiff alleges that the defendant council was in breach of a common law duty of care owed to him in consequence of which he suffered deep-seated psychiatric problems caused by the defendant's negligence.

The full circumstances of this case (as alleged by the plaintiff in the statement of claim) are set out in the speech of my noble and learned friend, Lord Slynn of Hadley. I gratefully adopt that statement but for my purposes it is sufficient to give a short summary of the plaintiff's case. The statement of claim alleges that under the Children Acts the defendant came under a series of statutory duties to exercise quasi-parental care in and about the upbringing of the plaintiff. Originally it was alleged that breach of such statutory duties in themselves gave rise to a cause of action for damages. But the plaintiff now accepts that he has no such cause of action. What he does allege is that the relationship between him and the defendant council arising by reason of the care order was such as to create a common law duty of care owed by the defendant to him. He alleges that, in breach of such duty of care, the defendant acting by its social workers and others negligently failed to safeguard the plaintiff's welfare. It is alleged that the plaintiff negligently made two placements with foster parents, moved him six times to different residential homes between 1976 and 1988, failed to make arrangements for his adoption, failed to provide him with proper social workers, failed to provide appropriate psychiatric advice and failed to make proper arrangements to re-unite him with his mother.

The plaintiff then alleges that such negligent treatment caused him to leave the care of the local authority when he attained the age of 18 without family or attachments and suffering from a psychiatric illness leading to his having an alcohol problem and a propensity to harm himself. I do not understand the plaintiff to allege that any one of the alleged acts of negligence by itself caused the injuries alleged. What he says is that the combination of all or some of the alleged acts of negligence produced that result.

The defendant council applied to strike out the claim on the ground that it disclosed no cause of action. The district judge refused to strike out the action but his decision was reversed by Judge Brandt who struck out the claim. The Court of Appeal (Lord Woolf M.R., Evans and Schiemann L.JJ.) upheld that decision. The Master of the Rolls based himself, by analogy, on the principles laid down in X v. Bedfordshire County Council [1995] 2 A.C. 633 and Stovin v. Wise [1996] A.C. 923. He held that the plaintiff's case substantially rested on showing that the defendant council had negligently exercised statutory discretions. Where such an allegation is made, the first necessity is to show that the exercise of the statutory discretion was "so unreasonable that it falls outside the ambit of the discretion": The X Case at p. 736B. The Master of the Rolls considered that there was very little chance that such unreasonableness could be demonstrated in the present case. Even so, he went on to consider whether, applying the three-stage test in Caparo Industries Plc. v. Dickman [1990] 2 A.C. 605, the defendant council could be liable in negligence. The first two of those requirements (foreseeability and proximity) are plainly satisfied on the facts alleged. The third requirement is that the imposition of liability in such cases must be just and reasonable. The Master of the Rolls held that it would not be just and reasonable to impose a duty of care on a local authority for the careless exercise of the statutory discretions applicable to children in care. Whilst recognising the position was not the same as that considered in the child abuse cases considered in The X Case (which involved a statutory discretion to remove a child from the custody of its parent) the Master of the Rolls thought that the analogy with that case was close and that to hold a local authority or its agents liable in cases such as the present would be to encourage a "safety-first" approach by social workers which would be detrimental to children in care as a whole, i.e. it would be bad public policy.

The Master of the Rolls also considered that the damage alleged (psychiatric illness) could not have been caused by the only kinds of negligence which could conceivably be actionable, i.e. operational acts done carelessly by the servants of the defendants in the course of carrying out policy decisions taken in relation to the plaintiff by the defendant council. He was of the view that the only damage suffered by the plaintiff must have flowed from the policy decisions which were not actionable and not from any operational acts which might be actionable. Evans and Schiemann L.JJ. reached the same conclusion, though both placed more emphasis on the inability of the plaintiff to show a causative link between any negligence capable of being proved against the defendants and the psychiatric damage alleged to have been suffered as a result of such negligence.

I find it impossible to say that all careless acts or omissions of a local authority in a relation to a child in its care are not actionable: indeed I do not read the Court of Appeal so to have held. If certain careless conduct (operational) of a local authority is actionable and certain conduct (policy) is not, it becomes necessary to divide the decisions of the local authority between those which are "policy" and those which are "operational." It is far from clear what the expressions "operational" and "policy" connote. Therefore unless it can be said (as did the Court of Appeal) that operational carelessness could not have caused the damage alleged in the present case it would be impossible to strike out any part of the claim. But causation is quintessentially a matter of fact and one would have thought that where there is a substantial doubt as to what is an operational decision there must equally be doubt as to the extent or nature of the damage capable of being caused by negligence in making such an operational decision.

Moreover, there have been two developments since the conclusion of the argument in the present case, both of which have been drawn to our attention by the parties. For reasons which I will seek to demonstrate, they both emphasise the extreme care which must be taken in striking out claims in this confused and developing area of the law, and clearly reinforce the conclusion that the case cannot be struck out.

Striking out

In my speech in The X Case (at pp. 740-741) with which the other members of the House agreed, I pointed out that unless it was possible to give a certain answer to the question whether the plaintiff's claim would succeed, the case was inappropriate for striking out. I further said that in an area of the law which was uncertain and developing (such as the circumstances in which a person can be held liable in negligence for the exercise of a statutory duty or power) it is not normally appropriate to strike out. In my judgment it is of great importance that such development should be on the basis of actual facts found at trial not on hypothetical facts assumed (possibly wrongly) to be true for the purpose of the strike out.

This latter point is graphically illustrated by the decision of the Court of Appeal in Phelps v. Hillingdon London Borough Council [1999] 1 W.L.R. 500. In that case, the plaintiff was claiming damages for the negligent failure of an educational psychologist employed by a local authority to identify that the plaintiff was dyslexic. The case went to trial and all relevant findings of fact made. The judge had held for the plaintiff, relying to a substantial extent on dicta of mine in The X Case (at p. 673) to the effect that where a local authority provides a psychology service such authority could be liable in damages for failure of the service to diagnose dyslexia. As the Court of Appeal rightly held in the Phelps case those remarks were based on the mistaken assumption that such psychology service would be a service open to the public in the same way as a hospital is open for the purpose of treating the child as the patient of the service. In fact the evidence at the trial had demonstrated that the arrangements in that case were of a different nature: the psychology service was established to advise the local authority as to the performance of its functions as educational authority: the child was no more the patient of the psychology service in that case than was the psychiatrist in the abuse cases who is advising the local authority as to its duties not the child: see the X case at p. 752G.

This erroneous dictum of mine made in the course of seeking to determine a striking out application on hypothetical facts has apparently given rise to "a proliferation of claims" against psychology services provided by local authorities in dealing with those suffering from reading disability. It vividly illustrates how important it is to decide these cases on actual facts and not on mistaken hypotheticals.

European Convention on Human Rights, Article 6

In Osman v. United Kingdom (The Times, 5 November 1998) the European Court of Human Rights upheld a claim by the Osmans that their rights under Article 6 of the Convention had been infringed. They had sought to bring proceedings in the United Kingdom against the police alleging negligence in the prevention and pursuit of crime. Those proceedings were struck out by the Court of Appeal applying the decision of this House in Hill v. Chief Constable of West Yorkshire [1989] A.C. 53: see Osman v. Ferguson [1993] 4 All E.R. 344.

I confess that I find the decision of the Strasbourg Court extremely difficult to understand. Article 6(1) of the Convention provides that "In the determination of his civil rights and obligations . . . everyone is entitled to a fair and public hearing." At first sight this would seem to require that the applicant has, under the local law, a right (right A) enforceable in the local court. Under Article 6 he is given as a separate right (right B) a right of access to the local courts to assert right A being a separate, free standing right. Thus one would assume that right A would consist of, for example, a contractual right or a tortious right not to be negligently injured. If a person is prevented from enforcing those rights that is not an infringement of right A but an infringement of right B, i.e. the right of access to the court. However, that is apparently not how the European Court of Human Rights construes Article 6. In paragraphs 139 and 140 of their judgment the court said:

     "139. On that understanding the court considers that the applicants must be taken to have had a right, derived from the law of negligence, to seek an adjudication on the admissibility and merits of an arguable claim that they were in a relationship of proximity to the police, that the harm caused was foreseeable and that in the circumstances it was fair, just and reasonable not to apply the exclusionary rule outlined in the Hill case. In the view of the Court the assertion of that right by the applicants is in itself sufficient to ensure the applicability of Article 6(1) of the Convention.

     "140. For the above reasons, the court concludes that Article 6(1) is applicable. It remains to be determined whether the restriction which was imposed on the exercise of the applicants' right under that provision was lawful."