CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 10 mai 2001

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AND K.M . v. THE UNITED KINGDOM   (Application no. 28945/95)                     JUDGMENT       STRASBOURG   10 May 2001           This judgment may be subject to editorial revision. In the case of T.P. and K.M. v. the United Kingdom , The European Court of Human Rights, sitting as a Grand Chamber composed of the following judges:   Mr   L. Wildhaber , President ,   Mrs   E. Palm ,   Mr   C.L. Rozakis ,   Mr   J.-P. Costa ,   Mr   L. Ferrari Bravo ,   Mr   L. Caflisch ,   Mr   P. Kūris ,   Mr   J. Casadevall ,   Mr   B. Zupančič ,   Mrs   N. Vajić ,   Mr   J. Hedigan ,   Mrs   W. Thomassen ,   Mrs   M. Tsatsa-Nikolovska ,   Mr   E. Levits ,   Mr   K. Traja ,   Mr   A. Kovler ,   Lady Justice Arden , ad hoc judge , and   also   of   Mr   P.J.   Mahoney, Deputy Registrar , Having deliberated in private on 22 November 2000 and 4 April 2001, Delivers the following judgment, which was adopted on the last ‑ mentioned date: PROCEDURE 1.     The case was referred to the Court, in accordance with the provisions applicable prior to the entry into force of Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”), [1] by the European Commission of Human Rights (“the Commission”) on 25 October 1999 (Article 5 § 4 of Protocol No. 11 and former Articles 47 and 48 of the Convention). 2.     The case originated in an application (no. 28945/95) against the United Kingdom of Great Britain and Northern Ireland lodged with the Commission under former Article 25 of the Convention by two British nationals, T.P. and K.M., on 2 August 1995. 3.     The applicants allege that K.M. had been unjustifiably taken into care and separated from her mother T.P. and that they had had no access to court or effective remedy in respect of that interference with their rights. 4.     The Commission declared the application admissible on 26 May 1998. In its report of 10 September 1999 (former Article 31 of the Convention), it expressed the opinion by 17 votes to 2 that there had been a violation of Article 8 of the Convention; by 18 votes to 1 that there had been no violation of Article 6 in respect of the first applicant T.P.; by 10 votes to   9 that there had been no violation of Article 6 in respect of the second applicant K.M.; by 18 votes to 1 that there had been a violation of Article 13 in respect of the first applicant; and by 10 votes to 9 that no separate issue arose under Article 13 in respect of the second applicant. [2] 5.     Before the Court the applicants, who had been granted legal aid, were represented by Mr Robert Sherman, counsel practising in London, and Ms   Nuala Mole from the AIRE Centre, London. The United Kingdom Government (“the Government”) were represented by their Agent, Ms   Susan McGrory of the Foreign and Commonwealth Office. Having originally been designated before the Commission by the initials T.P. and K.M., the President of the Court acceded to the applicants’ request not to have their names disclosed (Rule   47 §   3). 6.     On 6 December 1999, the panel of the Grand Chamber determined that the case should be decided by the Grand Chamber (Rule 100 § 1 of the Rules of Court). The composition of the Grand Chamber was determined according to the provisions of Article   27 §§   2 and   3 of the Convention and Rule   24 of the Rules of Court. The President of the Court decided that in the interests of the proper administration of justice, the case should be assigned to the Grand Chamber that had been constituted to hear the case of Z. and Others v. the United Kingdom, application no. 29392/95 (Rules 24, 43 § 2, and 71). Sir Nicolas Bratza, the judge elected in respect of the United Kingdom, who had taken part in the Commission’s examination of the case, withdrew from sitting in the Grand Chamber (Rule 28). The Government accordingly appointed Lady Justice Arden to sit as an ad hoc judge (Article   27 § 2 of the Convention and Rule   29 §   1). 7.     The applicants and the Government each filed a memorial. Third-party comments were also received from Professor Geraldine Van Beuren, Director of the Programme on International Rights of the Child, University of London, who had been given leave by the President to intervene in the written procedure (Article   36   §   2 of the Convention and Rule   61   §   3). 8.     A hearing took place in public in the Human Rights Building, Strasbourg, on 28 June 2000 (Rule   59   §   2). There appeared before the Court: (a)     for the Government Ms   S. McGrory , Foreign and Commonwealth Office,   Agent , Mr   D. Anderson QC, Foreign and Commonwealth Office, Ms   J. Stratford , Foreign and Commonwealth Office,   Counsel , Ms   S. Ryan , Foreign and Commonwealth Office, Ms   J. Gray , Foreign and Commonwealth Office, Mr   M. Murmane , Foreign and Commonwealth Office,   Advisers ; (b)     for the applicants Mr   R. Sherman QC,   Counsel , Ms   N. Mole , of the AIRE Centre, Mr   H. Dervish , Solicitor,   Advisers .   The Court heard addresses by Mr Anderson and Mr Sherman. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 9.     T.P., the first applicant, gave birth to her daughter, K.M., the second applicant, on 29 January 1983. T.P. was then aged 17 years. 10.     Between 1984 and 1987, the local authority, the London Borough of Newham, suspected that the second applicant was being 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 at the children’s hospital where she was admitted for treatment. She had told a social worker that B., the first applicant’s then boyfriend, had “hurt my bum”. In or about March 1986, surgery took place to re-implant the second applicant’s 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. 11.     There were case conferences held by the local authority on 13 May 1986, 26 June 1986 and 8 October 1986. Concern was expressed, inter alia , about the applicants’ home situation, where there was “a steady stream of young men” and about the first applicant’s ability to protect the second applicant and general parenting skills. The social worker Mr P. had mentioned the possibility of sexual abuse with the first applicant. In a later affidavit, he stated that she appeared angry that it was a concern and claimed that she never left K.M. alone with anyone and that K.M. would tell her if anyone hurt her. 12.     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. 13.     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 years and nine months at this time. 14.     In the course of the interview, the second applicant disclosed that she had been abused by someone named X. The first applicant’s boyfriend, XY, shared the same first name, X, as the abuser. The transcript recorded inter alia : “Dr V.: (referring to a drawing made by K.M.) Whose face is that then?... Is that anyone, anybody special that face or just any face? K.M.: X’s. Dr V.: X’s face OK. Then who’s X? Is X someone you know? K.M.: My mum’s X. Dr V.: Oh your mum’s X. What is that mummy’s boyfriend. Is it? K.M. shakes her head. ... Dr V.: ... Is X still living at home with you? K.M.: shakes her head. Dr V.: He’s not. K.M.: Thrown him out my mum. Dr V.: Your mum throwed him out did she. ... K.M.: He’s coming in tomorrow. Dr V.: He’s coming in no more. K.M.: No he’s coming in tomorrow. Dr V.: He’s coming in tomorrow. What X. K.M. nods.” 15.     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. 16.     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. 17.     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. 18.     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. 19.     On 24 November 1987, the first applicant, having excluded all men from her home, applied to the High Court 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 video of the interview with the child. 20.     Contact between the first and the second applicant was severely restricted between November 1987 and November 1988. The first applicant was permitted initially two hours of supervised contact with her daughter each week at the foster parent’s home. Following concerns that the first applicant was trying to induce her daughter to retract her evidence and was causing her distress, that access was altered to no telephone calls and one supervised access visit per week at the social services’ office. The second applicant had no 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. 21.     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. 22.     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. 23.     In or about October 1988, Dr B., who had been instructed on behalf of the first 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 that there appeared to be little doubt that she was identifying the mother’s boyfriend as the perpetrator. He 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. Dr V. informed Dr B. that she would not consent to the first applicant having access to the video until after the full hearing in the wardship trial. 24.     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. 25.     In her affidavit of 8 November 1988, Dr V. expressed her opinion that medical confidentiality be 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. “It is my professional belief that for the parties to see the video recording is not in the interests of children, and in particular not in this case. The possible harm to children arises from them being in the position whereby their words or actions, given in confidence, may control events or decisions. Anger, unforgiveness or victimisation may well be directed at the child especially if the purpose of the viewing is to enable a party to seek to establish his or her innocence of alleged Child Sexual abuse or to confirm a party’s view that no Child Sexual abuse has taken place and that the child must be lying.” She had no objection to the lawyers and medical experts seeing the tape and transcript. 26.     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. Dr B. 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. He saw no risk of harm flowing to the second applicant from such disclosure. 27.     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 shaken her head when asked whether the abuser was living at home and that she had identified her abuser as having been thrown out of the house by the first applicant. These matters, which were inconsistent with the identification of XY as the abuser, 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. 28.     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. In her affidavit of 21   November 1998, the first applicant said that she had been informed, and believed, that the video and transcript had been reviewed by the local authority who had concluded that her boyfriend XY was no longer a suspected abuser. 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. 29.     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. 30.     On 8 November 1990, the applicants issued proceedings making 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 psychiatric disorder. 31.     Both applicants were seen by a psychiatrist who diagnosed that they were suffering from psychological disturbance known as anxiety neurosis. He issued two reports, one dated 21 February 1991 and the second undated, concerning the effects of the separation and proceedings. 32.     On 19 November 1992, Master Topley struck out the application 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 an award of damages. 33.     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 was couched and the fact that the alleged breach of duty took place before the child was taken into 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. Bedfordshire CC (CA) 2WLR 554). Leave was granted to appeal to the House of Lords. 34.     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). 35.     As regarded the claims for breach of statutory duty made in both the Newham and Bedfordshire cases, Lord Browne-Wilkinson 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.” 36.     In respect of the applicants’ claim in the Newham case 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: “In the Newham case [the applicant’s case] the pleadings and Mr Munby’s submissions make it clear how the case is put. The social worker and the psychiatrist, as professionals, owed a personal duty to the first plaintiff, the child, and to the second plaintiff, the mother, to exercise reasonable professional skills in the conduct of the interview with the child and to make proper enquiries. The social worker and the psychiatrist were each personally in breach of this duty, for which breach their employers ... are vicariously liable. ...” 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. ... In the Newham case [the applicant’s case] it is not alleged that the borough council was under any direct duty of care to the plaintiffs: the case is based solely on the vicarious liability of the council and the health authority for the negligence of their servants.” 37.     In the Bedfordshire case, where the applicant children had argued that the local authority owed them a direct duty of care in the exercise of their child care functions, 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.” II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Local authority’s duties in respect of child care 38.     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. 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.” B.     Place of safety orders 39.     Under section 28(1) of the Children and Young Persons’ Act 1969 any person, including a local authority could apply to a magistrate for the authority to detain a child and take him/her to a place of safety. There was power to grant the application if the magistrate was satisfied that the applicant had reasonable cause to believe inter alia that the child’s proper development was being avoidably prevented or neglected or that he/she was being ill-treated or exposed to moral danger. The order could last a maximum of 28 days, with no possibility of extension. Before the expiry of the order, it was necessary for the local authority to institute care proceedings under section 1 of the 1969 Act or to make the child a ward of court if it wished either to intervene in the exercise of parental control. 40.     The place of safety order was replaced with the emergency protection order under section 44 of the Children Act 1989, which came into force on 14 October 1991. This provided for removal of a child on emergency grounds for a maximum period of 72 hours. C.     Complaints procedures concerning local authorities 41.     Section 76 of the Child Care Act 1980 permitted the Secretary of State to cause an inquiry to be held into any matter relating, inter alia : “the functions of the social services committee of a local authority, in so far as those functions relate to children.” 42.     Pursuant to Part III of the Local Government Act 1974, as amended, the Local Commissioner for Administration (the Local Government Ombudsman) had the function, inter alia , of investigating written complaints by persons who claim to have sustained injustice “in consequence of maladministration in connection with ... action taken in exercise of administrative functions of local authorities”. On conclusion of an investigation, Local Government Ombudsmen could recommend an appropriate remedy, including the payment of compensation, where maladministration was found. D.     Wardship 43.     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 responsibility for the child and may make orders concerning any aspect of the child’s life. The child’s welfare must be the first consideration of the court. 44.     As soon as the originating summons was issued, the custody of the child vested in the court. From that moment, the parties to the proceedings, including the local authority, only had such power and authority over the child as was conferred by the court. E.     Actions against the local authority for damages 45.     In England and Wales, there is no single tort which imposes liability to pay compensation for civil wrongs. Instead there are a series of separate torts, for example, trespass, conversion, conspiracy, negligence, defamation etc. 46.     Negligence arises in specific categories of situations. These categories are capable of being extended. There are three elements to the tort of negligence: a duty of care, breach of the duty of care and damage. The duty of care may be described as the concept which defines the categories of relationships in which the law may impose liability on a defendant in damages if he or she is shown to have acted carelessly. To show a duty of care, the claimant must show that the situation comes within an existing established category of cases where a duty of care has been held to exist. In novel situations, in order to show a duty of care, the claimant must satisfy a threefold test, establishing: –     that damage to the claimant was foreseeable; –     that the claimant was in an appropriate relationship of proximity to the defendant; –     that it is fair, just and reasonable to impose liability on the defendant. These criteria apply to claims against private persons as well as claims against public bodies. The leading case is Caparo Industries v. Dickman ([1990] 2 AC 605). 47.     If the courts decide that as a matter of law there is no duty of care owed in a particular situation, that decision will (subject to the doctrine of precedent) apply in future cases where the parties are in the same relationship. 48.     The decision in X and Others v. Bedfordshire County Council ([1995] 3 AER 353) is the leading authority in the United Kingdom in this area. It held that local authorities could not be sued for negligence or for breach of statutory duty in respect of the discharge of their functions concerning the welfare of children. The leading judgment is reported at length in the facts above (see paragraphs 45-46). 49.     Since the X. and Others case, there has been two further significant judgments regarding the extent of liability of local authorities in child care matters. 50.     The Court of Appeal gave judgment in the W and Others v. Essex County Council ([1998] 3 All ER 111, judgment of 2 April 1998). This case concerned the claims by a mother and father (first and second plaintiffs), who had agreed to act as foster parents, that the defendant local authority placed G, a 15 year old boy, in their home although they knew that he was a suspect or known sexual abuser. During G’s stay in their home, the plaintiffs’ three children (fourth to sixth plaintiffs) were all sexually abused and suffered psychiatric illness. The plaintiffs brought an action against the local authority and the social worker involved, claiming damages for negligence and for negligent misstatement. On the defendants’ application to strike out the statement of claim as disclosing no reasonable cause of action, the judges struck out the parents’ claims but refused to strike out the claims of the children. The Court of Appeal upheld his decision. The headnote for the judgment summarised the Court of Appeal’s findings as follows: “(1)     ... In the instant case, the giving of information to the parents was part and parcel of the defendants’ performance of their statutory powers and duties, and it had been conceded that it was arguable that those decisions fell outside the ambit of their discretion. Accordingly, since it had also been conceded that the damage to the children was reasonably foreseeable and that there was sufficient proximity, the question for the court was whether it was just and reasonable to impose a duty of care on the council or the social worker. Having regard to the fact that the common law duty of care would cut across the whole statutory set up for the protection of children at risk, that the task of the local authority and its servants in dealing with such children was extraordinarily difficult and delicate, that local authorities might adopt a more defensive approach to their duties if liability in damages were imposed, that the relationship between parents and social workers was frequently one of conflict and that the plaintiff children’s injuries were compensatable under the Criminal Injuries Compensation Scheme, it was not just and reasonable to do so. It followed that no duty of care was owed to the plaintiff parents ... (2)     (Stuart-Smith LJ dissenting) It was arguable that the policy considerations against imposing a common law duty of care on a local authority in relation to the performance of its statutory duties to protect children did not apply when the children whose safety was under consideration were those in respect of whom it was not performing any statutory duty. Accordingly, since in the instant case, the plaintiff children were not children for whom the council had carried out any immediate caring responsibilities under the child welfare system but were living at home with their parents, and express assurances had been given that a sexual abuser would not be placed in their home, their claim should proceed ...” 51.     On further appeal by the parents, the House of Lords on 16 March 2000 held that it was impossible to say that the psychiatric injury allegedly suffered by the parents, flowing from a feeling that they had brought the abuser and their children together or from a feeling of responsibility for not having detected the abuse earlier, was outside the range of psychiatric injury recognised by the law, nor was it unarguable that the local authority had owed a duty of care to the parents. The parents’ claim could not be said to be so certainly or clearly bad that they should be barred from pursuing it to trial and their appeal was allowed. 52.     The House of Lords gave judgment on 17 June 1999 in Barrett v. the London Borough of Enfield ([1999] 3 WLR 79). That case concerned the c