CEDH · CASELAW;REPORTS;ENG — 10 septembre 1999

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display:inline-block } .s1B325EC3 { width:18.66pt; display:inline-block } .sEB86F1CA { width:25.34pt; display:inline-block } .sBF11BE31 { width:22.68pt; display:inline-block } .sD7042CE7 { width:20.01pt; display:inline-block } .s5DF77665 { width:22.65pt; text-indent:0pt; display:inline-block } .s5BA4079A { width:22.66pt; display:inline-block } .s98A7B623 { margin-top:0pt; margin-bottom:0pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s307223E7 { width:5.98pt; display:inline-block } .s76EAD327 { width:12.64pt; display:inline-block } .sCDAF610C { width:207.07pt; display:inline-block } .sC208EB85 { width:259.73pt; display:inline-block } .sD8C8644 { width:206.7pt; display:inline-block } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }           EUROPEAN COMMISSION OF HUMAN RIGHTS                         Application No. 28945/95     TP and KM     against     the United Kingdom                             REPORT OF THE COMMISSION   (adopted on 10 September 1999) TABLE OF CONTENTS   Page I.   INTRODUCTION   (paras. 1-22) ......................................................... 1     A.   The application     (paras. 2-4) ..................................................... 1     B.   The proceedings     (paras. 5-17) .................................................... 1     C.   The present Report     (paras. 18-22) .................................................. 2     II.   ESTABLISHMENT OF THE FACTS   (paras. 23-61) ....................................................... 4     A.   The particular circumstances of the case     (paras. 23-47) .................................................. 4     B.   Relevant domestic law     (paras. 48-61) ................................................. 11     III.   OPINION OF THE COMMISSION   (paras. 62-110) ..................................................... 16   Complaints declared admissible (para. 62) ..................................................... 16     B.   Points at issue     (para. 63) ..................................................... 16     C.   As regards Article 8 of the Convention     (paras. 64-77) ................................................. 16       CONCLUSION     (para. 78) ..................................................... 20     D.   As regards Article 6 of the Convention     (paras. 79-93) ................................................. 20       CONCLUSIONS     (paras. 94-95) ................................................. 24     E.   As regards Article 13 of the Convention     (paras. 96-103) ................................................ 24     Page       CONCLUSIONS     (paras. 104-105) ............................................... 25     F.   Recapitulation     (paras.106-110) ................................................ 25   PARTLY DISSENTING OPINION OF SIR NICOLAS BRATZA JOINED BY MM A. WEITZEL, J.-C. SOYER, B. MARXER B. CONFORTI AND K. HERNDL .......................................... 27   DISSENTING OPINION OF MR E.A. ALKEMA .............................. 29   DISSENTING OPINION OF MR E.A. ALKEMA JOINED BY MR M.P. PELLONPÄÄ ........................................ 30   APPENDIX : DECISION OF THE COMMISSION AS TO THE ADMISSIBILITY OF THE APPLICATION ........................ 32           I.   INTRODUCTION   1.   The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.   The application   2.   The first applicant, TP, is a British citizen born in 1965. She is the mother of the second applicant, KM, also a British citizen born in 1983. Both applicants live in Chelmsford, Essex. They were represented before the Commission by Clinton Davis and Co., solicitors of Clapton, London.   3.   The application is directed against the United Kingdom.   The respondent Government were represented by their Agent, Ms Susan McCrory of the Foreign and Commonwealth Office, London.   4.   The case concerns the applicants’ complaints about the actions and procedures whereby the local authority removed the second applicant into care on the basis of careless assumptions of fact. They complain of a lack of procedural safeguards, of a lack of access to court and of a lack of effective remedies in respect of their complaints. They invoke Articles   6, 8 and 13 of the Convention.   B.   The proceedings   5.   The application was introduced on 2 August 1995 and registered on 26 October 1995.   6.   On 19 January 1997, the Commission decided, pursuant to Rule 48 § 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.   7.   The Government’s observations were submitted on 29 April 1997, after an extension of the time-limit fixed for this purpose.   The applicants replied on 24 September 1997 also after an extension of the time-limit.     8.   On 28 May 1997, the Commission granted the applicants legal aid for the representation of their case.   9.   On 1 December 1997, the Commission decided to hold a hearing of the parties to take place consecutively with a hearing in the case of Z and others v. the United Kingdom (No.   29392/95).   10.   On 24 April 1998, the Commission decided to join this application to No. 29392/95 for the purposes of the oral hearing only.   11.   The hearing was held on 26 May 1998 in Strasbourg.   The Government were represented by their Agent, Ms Susan McCrory, Baroness Scotland Q.C., and Mr David Anderson as Counsel, and Ms Sue Ryan, Ms Ann Gross and Ms Jenny Gray, as Advisers.   The applicants were represented by Mr Robert Sherman, as Counsel and Ms Nuala Mole, legal adviser.   12.   On 26 May 1998, the Commission declared the application admissible.   13.   The text of the Commission’s decision on admissibility was sent to the parties on 2   June 1998 and the Government were requested to provide further information. The parties were informed that the Commission had decided to adjourn further examination of the case pending the Court’s judgment in the Osman case (Mulkiye and Ahmed Osman v. the United Kingdom, No. 23452/94, Comm. Rep. 1.7.97).   14.   On 24 July 1998, the Government submitted the information and documents requested by the Commission.   15.   On 6 November 1998, the Commission invited the parties to make their final submissions in light of the Court’s judgment in the Osman case (Eur. Court HR, Osman v. the United Kingdom judgment of 28 October 1998, Reports of Judgments and Decisions 1998 ‑ VIII, p. 3124).   16.   Following an extension in the time-limit fixed for the purpose, the Government and the applicants submitted their final observations on 15 January 1999.   17.   After declaring the case admissible, the Commission, acting in accordance with former [1] Article 28 § 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties’ reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.   The present Report   18.   The present Report has been drawn up by the Commission in pursuance of former Article   31 of the Convention and after deliberations and votes, the following members being present:       MM   S. TRECHSEL, President       A. WEITZEL       J.-C. SOYER     Mrs   G.H. THUNE     Mrs   J. LIDDY     MM   L. LOUCAIDES       M.P. PELLONPÄÄ       B. MARXER       M.A. NOWICKI       B. CONFORTI     Sir   Nicolas BRATZA     MM   D. ŠVÁBY       G. RESS       K. HERNDL       E. BIELIŪNAS       E.A. ALKEMA       M. VILA AMIGÓ     Mrs   M. HION     Mr   A. ARABADJIEV     19.   The text of this Report was adopted on 10 September 1999 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with former Article 31 § 2 of the Convention.   20.   The purpose of the Report, pursuant to former Article 31 of the Convention, is:   (i)   to establish the facts, and   (ii)   to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.   21.   The Commission’s decision on the admissibility of the application is annexed hereto.   22.   The full text of the parties’ submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.   ESTABLISHMENT OF THE FACTS   A.   The particular circumstances of the case   23.     Between 1984 and 1987, the local authority, the London Borough of Newham, suspected that   the second applicant was being been sexually abused, partly as a result of the second applicant having a persistent urinary tract infection, partly because of her behaviour, including a remark made to a member of staff at the children’s hospital where she was admitted for treatment. In or about March 1986, a surgery took place to re-implant her right ureter into her bladder. At a date unspecified, she also had surgery to remove a false second kidney. She continued to have urinary problems and associated infections. There were case conferences held by the local authority on 13 May 1986, 26 June 1986 and 8 October 1986.   24.     In June 1987, during a visit to their home, social workers obtained information regarding their living arrangements including the fact that “XY”, the first applicant’s boyfriend, lived with the applicants. Concern was expressed regarding the first applicant’s care of her daughter and a case conference was held on 2 July 1987 to which the first applicant was not invited. As a result of the conference the second applicant was placed on the Child Protection Register under the category of emotional abuse. It was also agreed at the conference that the social worker Mr. P would obtain the first applicant’s consent for the second applicant to have a disclosure interview at a child guidance clinic. A further medical examination of the second applicant at the children’s hospital discovered no medical cause for her recurrent urinary infection. The hospital considered it necessary that the second applicant should be admitted to hospital for further tests but agreed to await the outcome of the interview at the child guidance clinic.   25.   On 13 November 1987, at a child guidance clinic, the second applicant was interviewed by a consultant child psychiatrist, Dr V, employed by Newham health authority. The social worker, “Mr P”, was present during the interview whilst the first applicant waited in an adjoining room. The interview was recorded on videotape. The second applicant was aged four at this time.   26.   In the course of the interview the second applicant disclosed that she had been abused by someone named “X”. The social worker asked the first applicant for the names of her husband, father and boyfriend. The boyfriend, “XY”, shared the same first name, “X”, as the abuser. However, the second applicant indicated that “XY” was not the abuser and stated that “X” had been thrown out of the house.   27.   The first applicant was then interviewed, again on video, and informed that the second applicant had disclosed that she had been sexually abused by “XY”. She was told that the second applicant could not be returned home but would be taken to a local hospital for further examination. When the first applicant asked whether or not her daughter was being taken into care, she received no reply. Dr V also told the first applicant that she could see the recording of the interview with her daughter at some point.   28.   After the interview, the first applicant asked her daughter if she had been abused by “XY”. The first applicant stated   that the second applicant denied that she had been abused by “XY” and told this to Mr P. When the first applicant became agitated and angry, Dr V and Mr   P both concluded that the first applicant would be unable to protect the second applicant from abuse and that she was attempting to persuade the second applicant to retract her allegation. Mr P and Dr V came to the conclusion that it would be necessary to remove the second applicant from the care of her mother immediately. In comments made to the first applicant in her interview, the possibility that in due course she could see the video of the disclosure interview was referred to by Dr V and Mr P.   29.     Later, on 13 November 1987, the local authority applied successfully to Newham magistrates court for a place of safety order. The local authority stated that the second applicant had been abused, had identified “XY” as the abuser and there was a risk of further direct abuse or that the first applicant would pressure the second applicant into retracting her allegation. The first applicant was not in court. A place of safety order was granted for 28 days.   30.       On 18 November 1987, the second applicant was examined by a doctor who found that there were signs consistent with anal interference but no significant vaginal findings.   31.     On 24 November 1987, the first applicant, having excluded all men from her home, applied for the second applicant to be made a ward of court. The local authority attended the application and argued that they should have care and control of the second applicant in order to protect her from the risk of abuse. The local authority was awarded care and control of the second applicant and the first applicant was granted limited access. The local authority did not volunteer the videos of the interviews with the child.   32.   Contact between the first and the second applicant was severely restricted between November 1987 and November 1988. The first applicant had only two hours of supervised contact with her daughter each week. The second applicant was also denied contact with her extended family, including her maternal grandmother who was terminally ill and died whilst the second applicant was in the care of the local authority.   33.       During this period the second applicant continued to have urinary problems, including incontinence. In April 1988, she underwent another operation, which improved her condition, though she remained subject to frequent infections.   34.   During 1988, the first applicant gave birth to a son, D, fathered by “XY”. D was made a ward of court but the local authority did not apply to remove D from the care of his mother and “XY”.   35.       In or about October 1988, Dr B, who had been instructed on behalf of the second applicant in order to assist her in reaching a conclusion regarding the allegations that the second applicant had been sexually abused, obtained the consent of Dr V to view the video recording of the second applicant’s disclosure interview. In his letter dated 17 October 1988 to the first applicant’s solicitor, he gave his firm opinion that the interview disclosed a high probability that the second applicant had been abused sexually and recommended that the first applicant be allowed to see the video. He referred to Dr V’s continual insistence that the court would not approve of the first applicant seeing the video and gave his own opinion that the best interests of the second applicant would be served by her mother having access to the fullest possible information. He noted generally that the mothers of abused children would often be in a position to clarify details, including the identity of the alleged abuser. He also understood that the video had already been shown by the police to “XY” in the course of their investigation into the allegations of abuse and considered that it would appear against natural justice to deny the first applicant similar opportunity.   36.     On 1 November 1988, during the wardship proceedings regarding D, Registrar Conn ordered that the video be disclosed within seven days. The health authority and Dr V   issued a summons proposing to intervene in the proceedings and applying for the video and transcript not to be made available to the first applicant. In her affidavit of 8 November 1988, Dr V expressed her opinion that medical confidentiality attached to the video and that it should only be disclosed if in the interests of the child, which the circumstances showed was not the case. She had no objection to the lawyers and medical experts seeing the tape and transcript. By reports dated 11 November 1988, Dr B and a social worker for the local health authority gave their opinions that it was good and desirable practice for parents to see the interviews involving their children.   37.   On an unspecified date at or about that time, the first applicant’s solicitors had sight of the transcript. The transcript showed that the second applicant had said that “XY” had not abused her and that she had identified her abuser as having been thrown out of the house by the first applicant. These matters were raised by the first applicant’s solicitors with the local authority on or about 11 November 1988, when the summons concerning the video was to be heard.   38.   On 21 November 1988, at a hearing in the High Court the local authority recommended that the second applicant be rehabilitated to the first applicant and “XY” for a trial period of four to six months at which point a final proposal would be made. In a report dated 18 November submitted for that hearing, a social worker for the local authority stated that the fact that the second applicant had been sexually abused had been acknowledged by all the psychiatrists in the case, that there was now doubt as to the identity of the abuser but that whoever it was, the second applicant had suffered a seriously damaging experience from which her mother had been unable to protect her. While there had been doubts as to the first applicant’s ability to be a “good enough parent”, it was noted that her situation had changed – she had “matured”, had had a second child and was in a stable relationship with the second child’s father. If over the trial period, any further abuse occurred, it was proposed that the second applicant be removed permanently with a view to adoption and that D’s future be assessed. Mr Justice Lincoln ordered by consent that the second applicant remain a ward of court and that interim care and control be committed to the local authority who had leave to place her with the first applicant. The matter was adjourned for a period of not more than six months.   39.       The second applicant remained with the first applicant from that time onwards. In about November 1989, the final hearing took place in the High Court. The local authority advised the judge that there was no longer any concern that required the second applicant to remain a ward of court. The wardship was discharged.   40.   Both applicants were seen by a psychiatrist who diagnosed that they were suffering from psychological disturbance known as anxiety neurosis.   41.   On 8 November 1990, the applicants issued proceedings making numerous allegations of negligence and breach of statutory duty against the local authority, the central allegation being that the social worker, Mr P and the psychiatrist, Dr V, failed to investigate the facts with proper care and thoroughness and failed to discuss their conclusions with the first applicant. The health authority and Dr V were also named as defendants. The applicants claimed that as a result of their enforced separation each of them had suffered a positive psychiatric disorder.   42.   On 19 November 1992, Master Topley struck out the application on as revealing no cause of action on the basis that Dr V enjoyed immunity in suit as a witness or potential witness in proceedings concerning the abuse of the second applicant and that this acted to bar the applicants’ claims. The applicants appeal to the High Court was dismissed on 17 March 1993 by Judge Phelan who held that no claim could arise from any alleged right to custody of a child which would give rise to a right to damages.   43.   In the Court of Appeal the High Court’s striking out decision was upheld on 23   February 1994. The majority found that no claim for breach of statutory duty in respect of sections 1 and 18 of the Child Care Act 1980 could arise, due to the general nature of the duty, the imprecise terms in which it is couched and the fact that the alleged breach of duty took place before the child was taken in care under the statutory duty in question. They held in respect of the claims that Mr P and Dr V were liable in damages as professional persons who caused personal injuries that the local authority arranged for the disclosure interview to enable to decide whether or not to intervene in the performance of its statutory functions. The psychiatrist Dr V was acting in order to advise the local authority and owed a duty of care to the local authority, not to the first or second applicant.   Nor could the local authority be held liable for the negligent mistake made by the social worker in carrying out the statutory function of the local authority to make enquiries. Reference was made to the policy considerations weighing against imposing liability in such matters. However, the Master of the Rolls, Sir Thomas Bingham, dissented and stated that he believed that it could be argued that a common law duty of care was owed to the second applicant by the psychiatrist and the local authority (reported as M v Newham LBC; X v Beds CC (CA) 2WLR 554). He held as regarded the child and the local authority:     “Those who engage professionally in social work bring to their task skill and expertise, the product partly of training and partly of experience which ordinary members of the public are bound to lack. I have no doubt that they should be regarded as members of a skilled profession. Their task is one of immense difficulty, and frequently they are exposed to unjust criticism: but both these things may, to a greater or lesser extent be said of other professions also.   In considering the legal relationship between the child and the local authority, much of what I have said above concerning the child’s relationship with the psychiatrist is in my view equally applicable. I will not repeat the conclusions already expressed about foreseeability, proximity, witness immunity, public policy, causation and damage, which mutatis mutandis apply in this context also. But a number of different points arise also.   It was argued that since, as I have accepted, Parliament has omitted to impose on local authorities a specific statutory duty breach of which will entitle an injured party to recover damages, the courts should not themselves step in to impose such a duty. If there were any indication that Parliament intended no such duty to be imposed, I would agree, But I find no such indication. Parliament’s omission is to my mind more readily explained by the extreme difficulty of adequately defining and circumscribing such a duty in a general provision; I can see no reason to suppose Parliament would have wished to deny the child a claim against the local authority on the detailed (if assumed) facts of this particular case. Had it wished to do so it could have adopted some such formula as is found in section 1(4) of the Banking Act 1987...   One argument on public policy was addressed to us which seemed to have more relevance to the local authority than to the health authority and the psychiatrist. If a duty of care were imposed on the local authority and claims such as the child’s were permitted to continue, the already overstretched resources of local authorities, human and financial, would be diverted from the valuable purpose of looking after children and wasted on the sterile processes of litigation. One must accept that this must to a greater or lesser extent be so, and a somewhat similar argument found favour in Hill v Chief Constable of West Yorkshire [1989] AC 53 p. 63. But this is an argument frequently (and not implausibly) advanced on behalf of doctors: it has not prevailed. Other professions resist liability on the ground that it will in the end increase the cost to the paying customer; that resistance has not on the whole been effective either. Save in clear cases, it is not for the courts to decide how public money is best spent nor to balance the risk that money will be wasted on litigation against the hope that the possibility of suit may contribute towards the maintenance of the highest standards.”   44.   On appeal to the House of Lords the decision of the majority of the Court of Appeal was upheld on 29 June 1995. Lord Browne-Wilkinson delivered the leading judgment concerning three cases, the Bedfordshire case, the Newham case (the applicants’ case) and the Dorset case (reported as X and others v. Bedfordshire County Council [1995] 3 AER 353).   45.   As regarded the claims for breach of statutory duty, he held:       “... My starting point is that the Acts in question are all concerned to establish an administrative system designed to promote the social welfare of the community. The welfare sector involved is one of peculiar sensitivity, involving very difficult decisions how to strike the balance between protecting the child from immediate feared harm and disrupting the relationship between the child and its parents. In my judgment in such a context it would require exceptionally clear statutory language to show a parliamentary intention that those responsible for carrying out these difficult functions should be liable in damages if, on subsequent investigation with the benefit of hindsight, it was shown that they had reached an erroneous conclusion and therefore failed to discharge their statutory duties. ...     When one turns to the actual words used in the primary legislation to create the duties relied upon in my judgment they are inconsistent with any intention to create a private law cause of action.”   46.   In respect of the applicants’ claim that the local authority and the health authority were vicariously liable for the actions of the social worker, Mr P, and psychiatrist Dr V respectively, Lord Browne-Wilkinson said as follows:     “Like the majority in the Court of Appeal, I cannot accept these arguments. The social workers and the psychiatrists were retained by the local authority to advise the local authority, not the plaintiffs. The subject matter of the advice and activities of the professionals is the child ... the fact that the carrying out of the retainer involves contact and relationship with the child cannot alter the extent of the duty owed by the professionals under the retainer from the local authority ...     In my judgment in the present cases, the social workers and the psychiatrist did not, by accepting the instructions of the local authority assume any general professional duty of care to the plaintiff children ...     Even if contrary to my view the social workers and psychiatrist would otherwise have come under a duty of care to the plaintiffs, the same considerations which have led me to the view that there is no direct duty of care owed by the local authorities apply with at least equal force to the question whether it would be just and reasonable to impose such a duty of care on the individual social workers and the psychiatrist.”   47.   The applicants in this case had not alleged that the local authority had been under any direct duty of care towards them. However, in the Bedfordshire case, where the applicant children did so claim, Lord Browne-Wilkinson stated, insofar as relevant, as follows:     “I turn then to consider whether, in accordance with the ordinary principles laid down in Caparo [1990] 2 A.C. 605, the local authority ... owed a direct duty of care to the plaintiffs. The local authority accepts that they could foresee damage to the plaintiffs if they carried out their statutory duties negligently and that the relationship between the authority is sufficiently proximate. The third requirement laid down in Caparo is that it must be just and reasonable to impose a common law duty of care in all the circumstances ...     The Master of the Rolls took the view, with which I agree, that the public policy consideration that has first claim on the loyalty of the law is that wrongs should be remedied and that very potent counter considerations are required to override that policy (see [1994] 4 AER 602 at 619). However, in my judgment there are such considerations in this case.     First, in my judgment a common law duty of care would cut across the whole statutory system set up for the protection of children at risk. As a result of the ministerial directions contained in “Working Together” the protection of such children is not the exclusive territory of the local authority’s social services. The system is inter-disciplinary, involving the participation of the police, educational bodies, doctors and others. At all stages the system involves joint discussions, joint recommendations and joint decisions. The key organisation is the Child Protection Conference, a multi-disciplinary body which decides whether to place the child on the Child Protection Register. This procedure by way of joint action takes place, not merely because it is good practice, but because it is required by guidance having statutory force binding on the local authority. The guidance is extremely detailed and extensive: the current edition of “Working Together” runs to 126 pages. To introduce into such a system a common law duty of care enforceable against only one of the participant bodies would be manifestly unfair. To impose such liability on all the participant bodies would lead to almost impossible problems of disentangling as between the respective bodies the liability, both primary and by way of contribution, of each for reaching a decision found to be negligent.     Second, the task of the local authority and its servants in dealing with children at risk is extraordinarily delicate. Legislation requires the local authority to have regard not only to the physical well-being of the child but also to the advantages of not disrupting the child’s family environment. ... In one of the child abuse cases, the local authority is blamed for removing the child precipitately; in the other for failing to remove the children from their mother. As the Report of the Inquiry into Child Abuse in Cleveland 1987 (Cmnd. 412) (“Cleveland Report 1987”) said, at p. 244:     ‘...It is a delicate and difficult line to tread between taking action too soon and not taking it soon enough. Social services whilst putting the needs of the child first must respect the rights of the parents; they also must work if possible with the parents for the benefit of the children. These parents themselves are often in need of help. Inevitably a degree of conflict develops between those objectives.’     Next, if liability in damages were to be imposed, it might well be that local authorities would adopt a more cautious and defensive approach to their duties. For example, as the Cleveland Report makes clear, on occasions the speedy decision to remove the child is sometimes vital. If the authority is to be made liable in damages for a negligent decision to remove a child (such negligence lying in the failure properly first to investigate the allegations) there would be a substantial temptation to postpone making such a decision until further inquiries have been made in the hope of getting more concrete facts. Not only would the child in fact being abused be prejudiced by such delay, the increased workload inherent in making such investigations would reduce the time available to deal with other cases and other children.     The relationship between the social worker and the child’s parents is frequently one of conflict, the parent wishing to retain care of the child, the social worker having to consider whether to remove it. This is fertile ground in which to breed ill-feeling and litigation, often hopeless, the cost of which both in terms of money and human resources will be diverted from the performance of the social service for which they were provided. The spectre of vexatious and costly litigation is often urged as a reason for not imposing a legal duty. But the circumstances surrounding cases of child abuse make the risk a very high one which cannot be ignored.     If there were no other remedy for maladministration of the statutory system for the protection of children, it would provide substantial argument for imposing a duty of care. But the statutory complaints procedures contained in section 76 of the 1980 Act and the much fuller procedures now available under the 1989 Act provide a means to have grievances investigated though not to recover compensation. Further, it was submitted (and not controverted) that the local authorities Ombudsman would have power to investigate cases such as these.     Finally, your Lordships’ decision in Caparo [1990] 2 A.C. 605 lays down that in deciding whether to develop novel categories of negligence the court should proceed incrementally and by analogy with decided categories. We were not referred to any category of case in which a duty of care has been held to exist which is in any way analogous to the present cases. Here, for the first time, the plaintiffs are seeking to erect a common law duty of care in relation to the administration of a statutory social welfare scheme. Such a scheme is designed to protect weaker members of society (children) from harm done to them by others. The scheme involves the administrators in exercising discretion and powers which could not exist in the private sector and which in many cases bring them into conflict with those who, under the general law, are responsible for the child’s welfare. To my mind, the nearest analogies are the cases where a common law duty of care has been sought to be imposed upon the police (in seeking to protect vulnerable members of society from wrongs done to them by others) or statutory regulators of financial dealing who are seeking to protect investors from dishonesty. In neither of these cases has it been thought appropriate to superimpose on a statutory regime a common law duty of care giving rise to a claim in damages for failure to protect the weak against the wrongdoer. ... In my judgment, the courts should proceed with great care before holding liable in negligence those who have been charged by Parliament with the task of protecting society from the wrong doings of others.”   B.   Relevant domestic law     Local authority’s duties in respect of child care   48.   Prior to the coming into force of the current legislation, the Children Act 1989, on 14   October 1991, the local authority’s duty in respect of child care was governed by the Child Care Act 1980.   49.   Sections 1 and 2 of the Child Care Act 1980 provided that     “1.   It shall be the duty of every local authority to make available such advice, guidance and assistance as may promote the welfare of children by diminishing the need to receive or keep them in care.     2(1)   Where it appears to a local authority with respect to a child in their area appearing to them to be under the age of seventeen-   (a)   that he has neither parent nor guardian or has been and remains abandoned by his parents or guardian or is lost;   (b)   that his parents or guardian are, for the time being or permanently, prevented by reason of mental or bodily disease or infirmity or other incapacity or any other circumstances from providing for his proper accommodation, maintenance and upbringing; and   (c)   in either case, that the intervention of the local authority under this section is necessary in the interests of the welfare of the child, it shall be the duty of the local authority to receive the child into their care under this section.”   50.   Section 17 of the Children Act 1989 provides, inter alia, that:     “17. Provision of services for children in need, their families and others            (1)   It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)-   (a)   to safeguard and promote the welfare of children within their area who are in need; and   (b)   so far as is consistent with that duty, to promote the upbringing of such children by their families, by providing a range and level of services appropriate to those children’s needs.     (2)   For the purpose principally of facilitating the discharge of their general duty under this section, every local authority shall have the specific duties and powers set out in Part 1 of Schedule 2 ...     (10)   For the purposes of this Part a child shall be taken to be in need if-   (a)   he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining a reasonable standard of health or development without the provision for him of services by a local authority under this Part;   (b)   his health or development is likely to be significantly impaired or further impaired, without the provision for him of such services; or   (c)   he is disabled...     (11)   ... in this Part   “development” means physical, intellectual, emotional, social or behavioural development; and   “health” means physical or mental health.”   51.   Part III of the Children Act 1989 deals with local authority support for children and families. The policy of the Act is made clear by paragraph 7 of Part I of Schedule 2, which requires local authorities to take reasonable steps designed to reduce the need to bring proceedings relating to children.   52.   Section 20 provides that     “20(1) Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of-   (a)   there being no person who has parental responsibility for him;   (b)   his being lost or having been abandoned; or   (c)   the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.     (4)   A local authority may provide accommodation for any child within their area (even though a person who has parental responsibility for him is able to provide him with accommodation) if they consider that to do so would safeguard or promote the child’s welfare.”   53.   Part V of the Children Act 1989 deals with the protection of children. Section 47 provides as follows     “47(1)   Where a local authority - ...   (b)   have reasonable cause to suspect that a child who lives or is found, in their area is suffering, or is likely to suffer, significant harm, the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare...     (8)   Where, as a result of complying with this section, a local authority conclude that they should take action to safeguard or promote the child’s welfare they shall take action (so far as it is within their power and reasonably practicable for them to do so).”     The complaints procedures   54.   The complaints procedure is provided by section 26 of the Children Act 1989     “26   Review of cases and inquiries into representations....     (3)   Every local authority shall establish a procedure for considering any representations (including any complaint) made to them by –   (a)   any child...who is not being looked after by them but is in need;   (b)   a parent of his;...   (e)   such other person as the authority consider has a sufficient interest in the child’s welfare to warrant his representations being considered by them, about the discharge by the authority of any of their functions under this Part in relation to the child.   (4)   The procedure shall ensure that at least one person who is not a member or officer of the authority takes part in-   (a)   the consideration; and   (b)   any discussions which are held by the local authority about the action (if any) to be taken in relation to the child in the light of this consideration...   (7)   Where any representation has been considered under the procedure established by the local authority under this section, the authority shall –   (a)   have due regard to the findings of those considering the representation; and   (b)   take such steps as are reasonably practicable to notify (in writing)-   (i)   the person making the representation;   (ii)   the child (if the authority consider that he has sufficient understanding) and   (iii)   such other persons (if any) as appear to the authority to be likely to be affected, of the authority’s decision in the matter and their reasons for taking that decision and of any action which they have taken, or propose to take.   (8)   Every local authority shall give such publicity to their procedure for considering representations under this section as they consider appropriate.”   55.   The powers of the Secretary of State to investigate the actions of the local authority are set out in sections 81 and 84 of the Children Act 1989:     “81(1) The Secretary of State may cause an inquiry to be held into any matter connected with –   (a)   the function of the social services committee of a local authority, in so far as those functions relate to children;...     84   Local authority failure to comply with statutory duty: default power of Secretary of State   (1)   If the Secretary of State is satisfied that any local authority has failed, without reasonable excuse, to comply with any of the duties imposed on them by or under this Act he may make an order declaring that authority to be in default with respect to that duty....   (3)   Any order under subsection (1) may contain such directions for the purpose of ensuring that the duty is complied with, within such period as may be specified in the order, as appears to the Secretary of State to be necessary.   (4)   Any such directions shall, on the application of the Secretary of State, be enforceable by mandamus.”   Wardship   56.   The power of the High Court to make a child a ward of court derives from its inherent jurisdiction. The effect is that the court assumes responsi