Negligence by the back door?

Williams J. & A. v London Borough of Hackney [2015] EWHC 2629 (QB)

Parents are awarded £20,000 for breach of their human rights after their children were kept in care unlawfully for two months.

The removal of children from the care of their parents is one extreme power which the state has over individuals. As such, it is subject to a strict statutory regime, extensive judicial scrutiny and numerous safeguards. The improper exercise of this power will attract severe criticism, but will not always lead to financial remedies. The House of Lords confirmed in JD v East Berkshire Community NHS Trust (2005) UKHL 23 that parents whose children are removed, due to the negligent investigation by health professionals or social workers into allegations of abuse by the parents, are not entitled to compensation. The justification for this prohibition is a public policy one: the protection of children must be paramount; and defensive behaviour by those involved in child protection must be avoided. This approach was confirmed even in light of the Human Rights Act 1998 (Lawrence v Pembrokeshire County Council (QBD, 2006)).

In order to circumvent this prohibition, parents have brought claims for misfeasance in public office but few succeed since the threshold to establish liability (‘deliberate or reckless disregard’) is so high. Increasingly, we have seen parents bring claims for breach of their human rights. Fairly modest awards were reported in early cases, although this reflected a failure to follow proper procedures, rather than a breach of substantive rights. We are now seeing more claims, and the courts are adopting a more generous attitude towards claimants in respect of both limitation and damages.

In the case of Williams v LB Hackney, eight children were removed from the family home under a police protection order due to concerns over physical abuse and neglect. A criminal investigation started. Instead of pursuing a care order, the local authority asked the parents to agree to the children being accommodated by the local authority pursuant to section 20 of the Children Act 1989 (a ‘s.20 agreement’). The parents agreed reluctantly. It later transpired that they had not been informed of their right to withdraw consent and require the children’s return, nor had they been told of their right to take legal advice, let alone encouraged to take such legal advice. It was ‘compulsion in disguise’. The father’s solicitors promptly asked for the return of the children, but this was delayed until the children had spent two months in foster care. The parents had been charged with offences, but after strong observations by a Crown Court judge, no evidence was offered and a not guilty verdict was entered on all charges. The parents complained against the authority’s actions all the way to the Local Government Ombudsman (‘LGO’). The claim was issued six years after the events, but within three months of the LGO’s report.

The judge rejected the claims in negligence and for breach of statutory duty, as well as for misfeasance or discrimination, but he allowed the claim for breach of HRA to proceed despite the delay. He found that the claimants’ rights under Article 8 of the Convention (right to a family life) were engaged: the initial removal was lawful, but the continued separation after the initial 72 hours was unlawful. He awarded £10,000 to each parent. This was higher than the very modest £5,000 award made in the Rabone case (in which a hospital had failed to prevent a highly vulnerable patient from committing suicide) but lower than the highest awards which have been made for breach of Article 8 (c. £40,000).

One thought: it is surprising that no claim was brought on behalf of the children. Maybe the records would have shown that the children did not do too badly whilst in foster care.

Finally, two conclusions to draw from this case: there is another route to damages for parents who have been wrongly suspected of abuse or badly treated by social services; and section 20 agreements continue to generate claims.


Author
Genevieve Rich

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Geneviève is an associate solicitor with 14 years PQE. She trained with BLM, after seven years as a university law lecturer. She read law in France as well as England & Wales. She is fluent in English and French.

Her practice is split between abuse claims and education negligence. She has particular expertise in dealing with sensitive and/or high profile cases with high reputational risk.

She acts for defendants and their insurers in professional negligence, discrimination and human rights claims. She specialises in abuse claims against social services departments, independent schools, church-run homes and private children’s homes. She has extensive experience of claims involving historical abuse, sexual abuse, child neglect and failure to take into care. She has acted in multi-party actions and high-value catastrophic injury cases, and is skilled in handling cases with voluminous documents.

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