Local authorities owe a certain standard of care to children within their area. This case explores the legal implications and consequences of that responsibility, if it is believed to not have been upheld

The facts
The claimant, 31 years old, was described as ‘a very disturbed man who has had serious mental health problems throughout his life’. He suffered from a borderline personality disorder with particular problems of anxiety and agoraphobia. He had had severe psychological problems in childhood, and required special schooling because of severe behavioural problems. In 1976, at the age of four months, he had been taken into care by the local authority because of significant loss of body weight and other symptoms of neglect.

While he was in care, social workers visited his mother from time to time. They were appalled by the condition of the home, which was filthy and smelly. Her other children never seemed to have anything to wear. There was a consistent pattern of poor parenting. The local authority made arrangements for the mother and the other children to go to a rehabilitation unit, with a view to the claimant joining them; but, on his one visit to them, he screamed at the top of his voice, and the mother could not manage him. Under Reg 22 of the Boarding Out of Children Regulations 1955, the local authority should have carried out regular reviews, but it did not do so.

Nevertheless, it returned the claimant to his mother after he had been in care for around 15 months. There was reference in the records to his having been returned to her ‘on trial’, to him having settled ‘as well as one could have hoped’, and being ‘reasonably well cared for’. After his return, he was again neglected and ill-treated. He was not properly fed or provided with an adequate level of hygiene. He was bullied and tormented by his family, and he did not attend school regularly.

The claimant claimed damages for negligence from the local authority. He alleged that the local authority knew, because of the circumstances in which it had taken him into care, that if it returned him to his mother, the neglect and ill-treatment would continue; that it knew, or ought to have known if it had carried out proper supervision and monitoring, that the neglect and
ill-treatment was in fact continuing, but that it did not carry out proper or indeed any supervision or monitoring; and that it failed to provide a reasonable standard of care and support for him in circumstances where it ought to have discovered the extensive neglect and ill-treatment which he was suffering. He argued that the neglect and ill-treatment which he suffered after being returned home caused or exacerbated his serious mental health problems and borderline personality disorder.

The local authority denied negligence, and alleged that in any event his claim was made too late and was statute-barred.

The judge held that the claimant’s claim was not statute-barred, because time did not run against him until he had the knowledge necessary to make the claim, and he did not acquire this knowledge until 2004, when he finally obtained the local authority’s records, after which he made his claim in time. He had indeed suffered neglect and ill-treatment as alleged. The local authority owed him a duty of care, and the standard of care to be expected of its staff and social workers was that of a competent department according to the prevailing professional climate. The judge accepted the evidence of an expert, who said that the local authority’s action in failing to make a proper assessment, and in making a decision to return the claimant to the care of his family, fell short of the standard of practice to be expected of a reasonably competent local authority.

The judge held that the local authority was in breach of its duty of care, i.e. negligent, in returning the claimant to his mother. The claimant was accordingly entitled to damages.

But his adult condition had not been caused solely, but merely exacerbated, by the negligence. The judge concluded that heredity had played a significant part in the development of his borderline personality disorder and psychological problems, and that many of his mental health problems in later life were not attributable to the negligence, but to distressing and traumatic incidents caused by his borderline personality disorder. He had, for example, been abused and raped while living on the streets.

The claimant claimed damages for the cost of psychiatric therapy, and for vulnerability on the labour market and loss of opportunity to find employment, but the judge found that these had not been caused by the local authority’s negligence. While recognising the difficulty of distinguishing between hereditary and environmental factors, the judge held that some damage could be shown to have flowed from the local authority’s negligence, i.e. the neglect, abuse and physical violence after he was returned home, for which he awarded the claimant damages of £25,000.

CommentIt is a principle of English law that the categories of negligence are never closed: that is, however novel or unusual the circumstances, it is always possible to ask the question, did

the defendant owe the claimant a duty to take reasonable care in all the circumstances of the case and, if so, what standard of care did the defendant owe? It has been suggested that the Human Rights Act 1998 may extend a claimant’s rights beyond those enjoyed under the law of negligence; but, to date, the law of negligence has been entirely capable of ensuring that an injured person is awarded damages in all those cases where the layman would instinctively feel that justice requires that such a person should be compensated for his injuries. The present case is an interesting example of such a case.

Michael Segal has been a district judge of the Principal Registry of the Family Division since 1985. This is a specialist family court and about two-thirds of its work concerns disputes about children.

The cases presented here aim to help the reader understand better the nature of and the types of decision making within the court system.

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