This post follows a recent report of an adult who has taken legal action against a local authority for failures to do their job properly or at all, resulting in harm to that individual. It is an attempt to provide a brief over-view of the likely routes to a claim for compensation in such circumstances. These are complicated areas of law and you will need specialist legal advice if you are contemplating this kind of action. 

The Sun reported  on 14th January 2017 that a 24 year old woman had been awarded £35,000 after complaining that Peterborough Borough Council had ignored her reports that she had been seriously sexually abused by her foster carer when she was aged between 6-9 years old.

A formal investigation into the local authority’s procedural failings, found that agencies involved did not follow established procedures when responding to the allegations and left her at potential risk of harm. The woman had turned to drink and drugs at the age of 11, due to her awful experiences in care.

The police could not take action as there was not enough evidence to prosecute after many years had gone by. However, she was also eventually awarded £12,000 from the Criminal Injuries Compensation Authority (CICA) a government organisation that deals with claims from people who have been physically or mentally injured because they were the blameless victim of a violent crime.

The newspaper reports do not clarify the legal basis on which the woman made her claim. There are a number of possible routes to compensation in such a situation and this post will attempt to provide a brief explanation. However, it is clear that this is potentially a very complex area of law and if you are contemplating similar legal action you are likely to need specialist legal advice.

The possible routes to compensation

If you are concerned that a public body has done something, or failed to do something that it should have done, and this failure has caused you harm, you may be entitled to financial compensation for the harm suffered. There are a number of possible routes. You can make an application to court regarding misfeasance in public office, breach of statutory duty, action in negligence or action under the Human Rights Act 1998 (HRA).

You can also complain to the Local Government Ombudsman who may be able to award small amounts of compensation.

However, there do not seem to be a great number of reported cases dealing with applications relating to misfeasance or breach of statutory duty. The same factual matrix may well apply to all and the most most common route to compensation in terms of reported cases appears to be applications concerning breach of human rights. It is worth remembering that under the HRA, damages are meant to be kept at a relatively low level because they are not awarded as either punishment or deterrence. The remedy for wrong doing under the HRA is ‘just satisfaction’ which could be provided by the court simply declaring that the local authority had acted wrongly.

The recent case involving Kirklees Council CZ (Human Rights Claim: Costs) [2017] EWFC 11 (16 February 2017), was a good example of how the costs of bringing a claim could far outweigh the damages that the court will award.

For more detailed consideration of misfeasance, breach of statutory duty and negligence, see this post from the Child Protection Resource. 

Misfeasance in public office/breach of statutory duty

Misfeasance in public office can be established in two ways; first by proving ‘targeted malice’ by a public officer, i.e. conduct specifically intended to injure a person or persons. Second, is where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bad faith inasmuch as the public officer does not have an honest belief that his act is lawful. This is probably going to be quite difficult to prove and explains the lack of existing case law.

To prove breach of statutory duty you will have to prove that the local authority acted against the clear requirements of the relevant statute. An interesting case where the court at first instance did find a breach of statutory duty is London Borough of Hackney v Williams & Anor [2017] EWCA Civ 26 (26 January 2017). The couple’s 9 children were taken into foster care in 2007 and thereafter the parents pursued action against the local authority, saying it had taken the children into foster care under section 20 of the Children Act without the parents’ consent and this was unlawful. In 2015 the court decided Hackney was in breach of its statutory duty and awarded the parents £10,000 each. In addition, Hackney was ordered to pay 75% of their costs. Hackney appealed.

The Court of Appeal agreed with Hackney. At the time the children were accommodated pursuant to section 20, the parents were subject to bail conditions that prevented them from providing suitable accommodation for their children. There was no requirement in these circumstances that the parents ‘consent’ and thus there was no breach of statutory duty or the HRA and damages should not have been awarded.

Negligence

This is part of the civil law which is called ‘torts’ (coming from the French word for ‘a wrong’). It means a failure to exercise the kind of care that could reasonably be expected in all the circumstances; it is about acting carelessly, not maliciously. In order to succeed in getting compensation because of a negligent act you will need to show:

• you are owed a duty of care;
• there has been a negligent breach of that duty of care;
• damage has flowed as a direct result.
• you bring your claim within 6 years of the negligent act, otherwise you may not be allowed to proceed – the court has a discretion to extend this in cases of personal injury (see the Limitation Act 1980).

Duty of Care

‘Duty of Care’ is a very important concept here. Without it, you cannot establish negligence. A duty of care may arise in the following circumstances, which overlap to some degree:

• is there a relationship of proximity between the parties?
• was the harm you suffered foreseeable?
• is it fair, just and reasonable to impose a duty? See Caparo Industries plc v Dickman [1990] 2 AC 605.

Duty of care owed to parents or children?

There is an important distinction to be made between parents who complain of negligence in the course of an investigation in the child’s welfare and negligence about other aspects of how professionals deal with a family.  At the moment, the law does not allow the existence of a duty of care towards parents who are under investigation. But a duty of care has been found to exist in other circumstances, such as when local authorities don’t give full information about the background of an adopted child.

The reasons why professionals do not have a duty of care to parents that they are investigating, was discussed at length before the House of Lords (now the Supreme Court) in the case of JD (FC) v East Berkshire Community Health NHS Trust [2005] UKHL 23. The arguments against imposing a duty of care in these circumstances are largely based on ‘public policy’ – that local authorities need to investigate harm done to children without worrying if they are going to be subject to legal action afterwards. Lord Bingham gave a very strong dissenting judgment; saying that offering ‘blanket immunity’ to professionals could lead to serious breaches of rights under the ECHR.

It is clear that a duty of care is owed to children by local authorities and other professionals. This was initially denied by the House of Lords decision in X v Bedfordshire CC [1995] 3 All ER 353]; this decision refused to recognise a duty of care to children who were not removed from abusive parents sufficiently quickly  However, this decision did not survive challenge in the European Court, which found that the United Kingdom had breached Article 3 of the ECHR (protection against torture, inhuman or degrading treatment and punishment) and Article 13 (effective remedy before a national authority). The children were awarded substantial damages.

JD V East Berkshire, recognised that the ECtHR decision, together with subsequent domestic cases, lead to the conclusion that that it could not now be plausibly argued that a professional had no common law duty of care towards a child with whom that professional is dealing.

Is a local authority ‘vicariously liable’ for actions of a foster carer?

One of the big problems with an action in negligence is that there is little point suing someone who doesn’t have any money. Local authorities have much ‘deeper pockets’ than the average foster carer and some people have tried to sue local authorities for what was done to them by local authority foster carers. Making a local authority responsible for what was done by someone else is known as ‘vicarious liability’.

However, case law has decided that a local authority was NOT vicariously liable for the actions of abusive foster carers and did not have a non delegable duty of care to the child concerned. So if the local authority have followed all their procedures correctly, you will not – at least as case law stands at the moment – have a remedy against them for any harm perpetrated by the foster carer.

The Court of Appeal in NA v Nottinghamshire County Council [2015] EWCA Civ 1139 considered vicarious liability at paragraph 8:

The judge not unnaturally adhered closely to the approach adopted by Lord Phillips of Worth Matravers in his judgment in Various Claimants v Catholic Child Welfare Society and Others [2012] UKSC 56, [2013] 2 AC 1. He identified as the relevant issue whether the relationship between the local authority and the foster parents was sufficiently akin to an employment relationship to be capable of giving rise to vicarious liability. It was accepted that if it was, there was a relevant connection linking that relationship and the acts of abuse by Mrs A and Mr B.

The Court of Appeal cited approvingly an earlier Canadian authority:

Foster families serve a public goal – the goal of giving children the experience of a family, so that they may develop into confident and responsible members of society. However, they discharge this public goal in a highly independent manner, free from close government control. Foster parents provide care in their own homes. They use their own ‘equipment’, to use the language of Sagaz. While they do not necessarily ‘hire’ their own helpers, they are responsible for determining who will interact with the children and when. They gave complete control over the organization and management of their household; they alone are responsible for running their home. The government does not supervise or interfere, except to ensure that the child and the foster parents meet regularly with their social workers, and to remove the child if his or her needs are not met.

With regard to the issue of whether or not the LA owed a ‘non-delegable duty’, the Court of Appeal considered the factors identified by the Supreme Court in the case of Woodland v Swimming Teachers Association and Others [2013] UKSC 66, [2014] AC 537 and agreed with the judge at first instance that it would not be right to impose such a duty on the local authority in this case.

However, it is clear that the boundaries of the tort of negligence are constantly shifting, as public policy considerations change. There may be other or different court decisions in the future.

For further discussion about negligence see this post from the Child Protection Resource. 

The Human Rights Act 1998

The technicalities of an argument of negligence, and the fact that a duty of care does not necessarily extend to everyone who claims to be victim of a careless act, means that an application under the Human Rights Act 1998 may be a more useful route to compensation. For a more detailed consideration of the process, see this post from the Child Protection Resource. 

The Human Rights Act (HRA) gives direct effect to the articles of the European Convention (ECHR)  into domestic law. Prior to the HRA, if you wanted to claim that your human rights had been breached you had to take out an action in the European Court of Human Rights in Strasbourg. Now, it is unlawful for any public body – including the courts and local authorities – to act in a way which is incompatible with a Convention right, unless they have no choice because they have to obey current statute law.

You can make an application if you are or would be a ‘victim’ of an unlawful act by a public body. You can either make a free standing application or apply within current proceedings.

However, applicants who are receiving legal aid will need to consider carefully the implications of the ‘statutory charge’ on any award of damages. This allows the Legal Aid Agency to ‘claw back’ any damages awarded to go towards your legal costs. As damages available for ‘just satisfaction’ for breach of the ECHR are usually low, it seems  likely that in many cases, pursuing an HRA application as a legally aided party, is simply not viable. See further our discussion of the recent Kirklees case. 

The most likely Articles of the ECHR which are in play in regard to child protection cases are:

Article 8 – the right to respect for family and private life;
Article 6 – the right to a fair hearing.

General principles about awards of damages

See this information from the European Court in 2016.

A clear causal link must be established between the damage claimed and the violation alleged. The Court will not be satisfied by a merely tenuous connection between the alleged violation and the damage, nor by mere speculation as to what might have been.
Compensation for damage can be awarded in so far as the damage is the result of a violation found. No award can be made for damage caused by events or situations that have not been found to constitute a violation of the Convention, or for damage related to complaints declared inadmissible at an earlier stage of the proceedings.
The purpose of the Court’s award in respect of damage is to compensate the applicant for the actual harmful consequences of a violation. It is not intended to punish the Contracting State responsible. The Court has therefore, until now, considered it inappropriate to accept claims for damages with labels such as “punitive”, “aggravated” or “exemplary”.

Reported cases about damages

There have sadly been an ever growing number of reported cases where damages have been awarded to parents and children for breach of their human rights by local authorities. See for example:

• P, C, S v the UK [2002] the European court awarded each parent €12,000 for breaches of their Article 8 and 6 rights in a case which involved removal of a baby at birth. This case also has some useful commentary as to how damages should be assessed.
• Northamptonshire CC v AS [2015] – damages £16K.
• Ferrari v Romania in the European Court of Human Rights in April 2015 where a father was awarded €7,500 after the state failed to properly engage with Hague Convention proceedings and caused delay.
• In re A (A Child) in August 2015, the mother was awarded £3,000 for unlawful removal of her child.
• Medway Council v M and T October [2015] awarded £20K to both mother and child for unlawful use of section 20 accommodation under Children Act 1989.
• B (A Child) [2016] EWFC B10 January 2016 – £5K awarded for 3 year delay in revoking placement order that meant B lost out on developing a relationship with his siblings.
  Case Soares de Melo c. Portugal (Application No 72850/14) [Feb 2016] award of €15,000 for decision to have children adopted without offering family sufficient support.
• X, Y & Z re (Damages: Inordinate Delay in Issuing Proceedings) [2016] EWFC B44 (23 February 2016) – £65K awarded, highest level of damages known to date for misuse of section 20, and particular criticism of the failure of two IROs to act.
• BB (A Child) [2016] 27th June EWFC B53 £7,500 awarded for misuse of section 20.
• GD & BD (Children) [2016] 10-18 October 2016 EWCH 3312 – example of very poor police, LA and legal practice, described by Suesspiciousminds as ‘the worst case of the year’. £10,000 awarded to the mother and £5,000 to each child. The Transparency Project considered that case in this post.