| NEGLIGENCE — Duty of care to whom? — Parents suspected of child abuse — Children placed on child protection register due to maladministration — Parents claiming damages for negligence and breach of right to family life — Whether duty of care owed by social workers to parents — Human Rights Act 1998 (c 42), Sch 1, Pt I, art 8
Lawrence v Pembrokeshire County Council [2007] EWCA Civ 446
CA: Auld, Scott Baker and Richards LJJ: 14 May 2007
The Human Rights Act 1998 did not give rise to a duty of care to the parent of a child on the part of a local authority when exercising, through social workers, its duty to protect children from abuse. The local authority’s principal duty was to the child in need of protection, and there were powerful public policy reasons for not having a duty of care to the parents. There was no reason to treat social workers in this context any differently from policemen or doctors who were not subject to such a duty of care.
The Court of Appeal so held dismissing an appeal by the claimant, Stephanie Lawrence, from a decision of Field J on 13 June 2006 striking out her claim in negligence against the defendant, Pembrokeshire County Council, and entering judgment for the defendant on her claim.
AULD LJ said the claimant’s family, including the father of her children, had come to the attention of the council’s child protection team in about 1999. As a result of sporadic and inconclusive attention from various members of that team the council placed the children on the child protection register as being at risk of physical and/or emotional harm from either or both the parents. An Ombudsman upheld the claimant’s complaint of maladministration and as a result she was paid £5,000 in compensation by the council. The claimant argued that the 1998 Act required a development of the common law to recognise the duty to parents which had been rejected by the House of Lords in D v East Berkshire Community Health NHS Trust [2005] 2 AC 373. The judge held that the 1998 Act did not require a modification of the existing law, since to do so might deflect the professional investigator from deciding what was in the best interests of the child. It was for the claimant to establish that the council owed her a common law duty, not for the council to justify the absence of such duty. From the public policy point of view there was no reason why social workers should be treated differently in this respect from other professionals, such a doctors, involved in child protection decisions. An important difference between the art 8 right to respect for family life and the putative right of a claimant at common law to a duty of care was that art 8 was not concerned with the establishment of a duty but with a threshold of interference by a public authority with family life. To create a duty of care on the basis of art 8 would effectively require the local authority and/or social workers concerned to prove, by reference to their concern for the welfare of the children, that they were not in breach of such duty. To do so would be a plain distortion of the common law action in negligence. In his Lordship’s view, the advent of art 8 to domestic law did not undermine or weaken as a matter of public policy the primacy of the need to protect children from abuse or the risk of abuse from, among others, their parents. The common law had generally sought to avoid the imposition of duties potentially in conflict with each other. The fact that there were such conflicting interests in child protection cases did not mean that social workers could not have regard to both conflicting interests and yet behave professionally. The House of Lords had acknowledged as much in Brooks v Commissioner of Police of the Metropolis [2005] 1 WLR 1495, holding that in general, the police owed no duty of care to victims or witnesses in respect of their activities when investigating suspected crimes. It was difficult to see why a different rule should apply to social workers from that which would apply to police investigating suspected child abuse.
SCOTT BAKER LJ delivered a concurring judgment and RICHARDS LJ agreed.
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