|Judgment -House of Lords - Barret (A.P.) v. London Borough of Enfield continued|
At this early stage in the present case it is not clear in my opinion that if the action proceeds to trial the judge will be required to weigh policy factors which the court is not equipped to decide. It is not known at this stage what factors the defendant and its officials and social workers did take into account in making decisions relating to the plaintiff and in planning his future. It may be that no matters of policy involving the balancing of competing public interests or the allocation of limited financial resources were involved in the decision and it may be that at a trial the judge, in the words of Mason J. in the Sutherland Shire Council case, at p. 469, would be called upon:
Therefore I would not strike out the action at this stage on the ground that it gives rise to issues which are non-justiciable. If it does appear at the trial that the case gives rise to an issue which relates to a matter of policy such as the balancing of competing public interests, then the judge can at that stage rule out the issue as being non-justiciable.
The just and reasonable test
The Court of Appeal also held that the plaintiff's action should be struck out on the separate and distinct ground that it would not be just and reasonable to impose a duty of care on the defendant. The Master of the Rolls observed that in the present case the defendant was regarded as being in the position of a parent to the plaintiff. He said at p. 377C:
My Lords, I agree that it would be wholly inappropriate that a child should be permitted to sue his parents for decisions made by them in respect of his upbringing which could be shown to be wrong, and I also agree with the observation of Browne-Wilkinson V.-C. in Surtees v. Kingston-Upon-Thames Borough Council  2 F.L.R. 559, 583F:
But I do not agree, with great respect, that because the law should not permit a child to sue his parents, the law should not permit a child to sue a local authority which is under a duty by statute to take him into care and to make arrangements for his future. I consider that the comparison between a parent and a local authority is not an apt one in the present case because the local authority has to make decisions of a nature which a parent with whom a child is living in a normal family relationship does not have to make, viz. whether the child should be placed for adoption or placed with foster parents, or whether a child should remain with foster parents or be placed in a residential home. I think that it is erroneous to hold that because a child should not be permitted to sue his parents he should not be permitted to sue a local authority in respect of decisions which a parent never has to take. Moveover a local authority employs trained staff to make decisions and to advise it in respect of the future of a child in its care, and if it can be shown that decisions taken in respect of the child constitute, in the circumstances, a failure to take reasonable care, I do not think that the local authority should be held to be free from liability on the ground that it is in the position of a parent to the child. In A. v. Liverpool City Council  A.C. 363, 372G Lord Wilberforce stated:
Lord Wilberforce made this statement in rejecting the argument that the High Court could overrule the decision of the local authority as to the nature of the access which the mother should have, but that context does not, in my opinion, alter the weight of the observation that there is no parallel between the responsibilities of a natural parent and the responsibilities of a local authority who assumes the care of a child under a statutory provisions.
In the Bedfordshire case Lord Browne-Wilkinson said at p. 749G that "the public policy consideration which has first claim on the loyalty of the law is that wrongs should be remedied," but he held that in that case there were very potent counter- considerations to override that consideration. In the present case the circumstances are different in a number of important respects. Unlike the Bedfordshire case this is not a case where the child was in the care of his natural parent or parents when the negligence by the local authority is alleged to have occurred. And this is not a case, unlike the Bedfordshire case, where the local authority is alleged to have been negligent in respect of investigating or acting upon an allegation or suspicion of sexual abuse. Whilst I recognise that the arguments are closely balanced I have come to the view that the arguments on behalf of the local authority are not sufficiently powerful to outweigh the argument that if the plaintiff has suffered personal injury by reason of its negligence he should be compensated by the courts.
In the Bedfordshire case the counter-considerations which this House considered should prevail are those enumerated by Lord Browne-Wilkinson at pp. 749-751. In my opinion, by reason of the differences in the circumstances to which I have referred, these considerations become less powerful and are of insufficient weight to prevail. The first consideration was that a common law duty of care would cut across the whole inter- disciplinary system set up by statute for the protection of children at risk, which involved the participation of the police, educational bodies, doctors and others. But in the present case it appears that other disciplines were not involved, or were not closely involved. The second consideration was that the task of a local authority and its servants in deciding whether to remove a child from his parents because of the fear of sexual abuse was an extraordinarily delicate one. But in the present case, where the plaintiff was already removed from his natural mother, the duties of the defendant were not so delicate, although questions did arise as to whether the plaintiff should remain with particular foster parents. The third consideration was that if liability and damages were to be imposed it might well be that local authorities would adopt a more cautious and defensive approach to their duties. In the circumstances of this case I would not give this consideration great weight and I am in agreement with the opinion of Evans L.J. in this case at p. 380B that:
The next consideration was that the relationship between a social worker and a child's parents is frequently one of conflict, particularly in a case of child abuse, and a fertile ground in which to breed hopeless and costly litigation. But again, in the circumstances of the present case, this consideration is of less weight.
A further consideration was that there was a statutory procedure for complaint and for the investigation of grievances, and that the local authority Ombudsman would have power to investigate the cases. Again this consideration applies here, but if the plaintiff suffered psychiatric injury by reason of carelessness amounting to negligence at common law, I consider that the jurisdiction of the court should not be excluded because of the existence of other avenues of complaint. The final consideration in the Bedfordshire case was that there was no analogous category of cases to justify the imposition of liability on the local authority, and that the nearest analogy was cases where the courts had declined to impose common law liability on bodies, such as the police or statutory regulators of financial dealings, seeking to protect members of society from injury by criminals or from financial loss by the dishonesty of others. But in the present case the plaintiff was not a member of a wide class of society which the defendant was obliged to seek to protect, but was an individual person who had been placed in the care of the defendant by statute, and I consider that it would not constitute a novel category of negligence to hold that the defendant owed him a common law duty of care.
In support of his decision that the plaintiff's cause of action should be struck out the Master of the Rolls, at p. 376, cited the judgment of Simon Brown L.J. (with which Waite L.J. agreed) in H. v. Norfolk County Council  1 F.L.R. 384. In that case the plaintiff, who had been taken into care at the age of 4 and placed with foster parents until he was 14, alleged that he had been physically and sexually abused by his foster father and that the council had been negligent in failing to supervise his placement, to investigate reports of abuse and to remove him from foster care. The High Court struck out the action on the ground that the public policy considerations referred to by Lord Browne-Wilkinson in the Bedfordshire case were also applicable in that case, and that accordingly the council owed no duty of care. The circumstances of that case, involving allegations of sexual abuse by the foster father, were very different from the circumstances in the present case and, unlike the present defendant, the council was able to rely strongly on the point that the system for the protection of children at risk was an interdisciplinary one and that there would be difficulty in disentangling the respective roles of the various agencies concerned if there was to be liability. Therefore as, in my opinion, the case is clearly distinguishable I consider it unnecessary to express an opinion upon the correctness of the decision.
As I have reached the conclusion that under the common law principles applicable to a claim alleging negligence in the exercise of a statutory discretion the plaintiff's action should not have been struck out I consider it unnecessary to discuss the implications of the judgment of the European Court of Human Rights in Osman v. United Kingdom (28 October 1998) in relation to the present appeal
Having ruled that the plaintiff was not entitled to sue the defendant for negligence in the exercise of its statutory discretion the Court of Appeal went on to consider whether there was no realistic prospect of the plaintiff succeeding in establishing that negligence by individual social workers or other persons for whom the defendant would be vicariously responsible had caused injury to him, and concluded that there was no such prospect, Evans L.J. stating at p. 380H:
However the issue of causation arises in a different way if, as I would hold, the plaintiff is entitled to allege negligence against the defendant in the exercise of its statutory discretion. If the plaintiff can succeed in establishing negligence on the part of the defendant (and I refer to the standard of care at the conclusion of this judgment) he may well face a very difficult task in seeking to establish that that negligence was a cause of the psychiatric injury in respect of which he claims. But causation is largely an issue of fact to be determined on the evidence, and having regard to the last sentence in the passage of the report of the plaintiff's psychologist which I have set out in an earlier part of this judgment, I consider that it would not be right to strike out the claim on the ground that the plaintiff had no real prospect of establishing causation.
The standard of care
Although I would allow this appeal for the reasons which I have given and would permit the action to proceed to trial, I wish to emphasise that the considerations relied on by the defendant on the issue of justiciability will be of relevance and importance when the trial judge comes to consider the question whether the plaintiff has established a breach of the duty to take reasonable care. The standard of care in negligence must be related to the nature of the duty to be performed and to the circumstances in which the defendant has to carry it out. Therefore the standard of care to be required of the defendant in this case in order to establish negligence at common law will have to be determined against the background that it is given discretions to exercise by statute in a sphere involving difficult decisions in relation to the welfare of children. Accordingly when the decisions taken by a local authority in respect of a child in its care are alleged to constitute negligence at common law, the trial judge, bearing in mind the room for differences of opinion as to the best course to adopt in a difficult field and that the discretion is to be exercised by the authority and its social workers and not by the court, must be satisfied that the conduct complained of went beyond mere errors of judgment in the exercise of a discretion and constituted conduct which can be regarded as negligent.
I would allow the appeal.
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