(1) A (2) B v Essex County Council [2002] EWHC 2707 (QB)

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

[2002] EWHC 2707 (QB)

Case No Case No: 01/TLQ/1541

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Between

(1) A (2) BClaimants

Essex County CouncilDefendant

Before

Mr Justice Buckley

Gavin Millar QC and Mrs. Carole Parry-Jones (instructed by Fisher Jones Greenwood) for the Claimants

Edward Faulks QC and Andrew Warnock (instructed by Barlow Lyde Gilbert) for the Defendant

Hearing dates : 16th, 17th, 18th, 21st, 22nd, 23rd, 24th, 25th and 29th October 2002

Date 18 December 2002

[1]Mr Justice Buckley: A (Mr.) and B (Mrs.) were married in 1985. Both had been married before and A had two children, a girl and a boy, from his first marriage. By 1990 they had no children together and applied to be approved as prospective adoptive parents. Their local authority, to whom I shall refer as Essex (the Defendant), was the relevant adoption agency pursuant to the Adoption Act 1976. A and B were interviewed by Mr. Alan Kearsley, a social worker and adoption advisor, employed by Essex. He prepared Form F (Information on Prospective Substitute Parents) dated 1 st May 1991, in which he recommended A and B and in June 1991 they were approved by the adoption panel, established by Essex pursuant to the Adoption Agencies Regulations 1983.

[2]In 1994 the adoption panel recommended two young children, a brother and sister, for adoption. I shall refer to them as "the children" or "the male/female child". The male child was born in 1990 and his sister in 1993. By 1994 they were in the care of Essex. In October 1995 the adoption panel recommended linking A and B with the children. In February 1996 the children were formally placed with A and B and finally, on 1 st May 1997, the court made adoption orders in respect of the children.

[3]It is alleged that since the placement and adoption the male child has proved impossible to control, to such an extent that he has damaged A and B's home, health and family life. In September/October 1997 he was diagnosed as suffering from Attention Deficit Hyper-activity Disorder and is medicated with Ritalin. Since 1999 he has been in care appropriate to his special needs.

[4]A and B now seek damages from Essex. It is alleged that Essex, its servants or agents, were negligent, in particular, in failing to inform A and B of the extent of the male child's difficulties of which it knew; had A and B been properly informed they would not have agreed to the placement.

[5]Their case was described in Mr. Millar QC's opening as one of "lack of informed consent".

[6]The trial before me was to decide liability only and I was told that it was the first case of its kind to come before the courts. Essex denies negligence, in the sense of carelessness, but also denies that it owed A and B a duty of care; it also denies causation. This is therefore another of those cases in which the court has to decide whether a local authority owes a common law duty of care when acting pursuant to a statutory framework. The relevant provisions here are to be found in the Adoption Act itself and Regulations made under it, in particular, the Adoption Agencies Regulations 1983. The Statutory Framework

[7]The Adoption Act 1976 provides:

"1. Establishment of Adoption Service (1) It is the duty of every local authority to establish and maintain within their area a service designed to meet the needs, in relation to adoption, of – (a) children who have been or may be adopted, (b) . . . . . ( c) persons who have adopted or may adopt a child, and for that purpose to provide the requisite facilities, or secure that they are provided by approved adoption societies (2) The facilities to be provided as part of the service maintained under subsection (1) include – (a) . . . . . (b) arrangements for assessing children and prospective adopters, and placing children for adoption; ( c) . . . . . (3) The facilities of the service maintained under subsection (1) shall be provided in conjunction with the local authority's other social services and with approved adoption societies in their area, so that help may be given in a co-ordinated manner without duplication, omission or avoidable delay. (4) The services maintained by local authorities under subsection (1) may be collectively referred to as "the Adoption Service", and a local authority or approved adoption society may be referred to as an adoption agency. 6. Duty to promote welfare of a child. In reaching any decision relating to the adoption of a child a court or adoption agency shall have regard to all the circumstances, first consideration being given to the need to safeguard and promote the welfare of the child throughout his childhood; and shall so far as practicable ascertain the wishes and feelings of the child regarding the decision and give due consideration to them, having regard to his age and understanding."

[8]Regulation 5 of The Adoption Agencies Regulations 1983 provides that: "An adoption agency shall establish at least one adoption panel . . . . .;" and provides for the panel's constitution, including that one of its members must be the agency's medical adviser (who must be appointed and be a registered medical practitioner (R. 6(4).).

[9]Regulation 6 provides for the agency's arrangements for adoption work, in particular, that the arrangements shall be set out in writing and reviewed at least every three years. The arrangements must include provisions for maintaining confidentiality and safekeeping of information and case records and authorising access to them, and so forth.

[10]Regulation 7 provides for the agency's duties in respect of a child and his parents or guardian; it must, when considering adoption: "7. (2) (a) set up a case record in respect of the child and place on it any information obtained by virtue of this regulation", (b), (c), (d) and (e) mandate the obtaining of specified information about the child and its parents, a written report by a registered medical practitioner on the child's health, arranging such examinations of the child as are recommended by the medical adviser and the preparation of a report containing the agency's observations on such matters.

[11]The written report by the registered medical practitioner shall include: ". . . . . and evidence of emotional disorder." (7. (2). (c) and Part II of the Schedule).

[12]Regulations 9, 10 and 11 provide that the adoption panel must consider the agency's proposals and make recommendations to the agency; the agency then makes the decision but "only after taking into account the recommendation . . . . ."

[13]The adoption panel "consider and take into account all the information and reports passed to it by virtue of certain of the Regulations including the agency's written report. (7. (2). (e).).

[14]As soon as possible after making its decision on whether a prospective adopter would be suitable for a particular child (linking) the agency must notify in writing the prospective adopter. (11. (2). (d).).

[15]Regulation 12 is important and is in these terms: "(1) Where an adoption agency has decided in accordance with Regulation 11.(1) that a prospective adopter would be a suitable adoptive parent for a particular child it shall provide the prospective adopter with written information about the child, his personal history and background, including his religious and cultural background, his health history and current state of health, together with the adoption agency's written proposals in respect of the adoption, including proposals as to the date of placement for adoption with the prospective adopter."

(2) provides that if the prospective adopter accepts the adoption agency's proposals the agency shall inform various identified parties and take various other steps including: sending a written report of the child's health history and current state of health to the prospective adopter's registered medical practitioner before the proposed placement, ensure that the child is visited within one week of the placement and thereafter as the agency considers necessary and ensure that written reports of such visits are obtained.

[16]Regulation 12 makes it mandatory for the agency to provide written information about the child to the prospective adopter before placement (which may lead to adoption). "Written information about the child, his personal history and background" is fairly comprehensive, even if it does permit a degree of discretion. But it is expressed to include "his health history and current state of health, together with the adoption agency's written proposals in respect of the adoption . . . . ." Those words clearly cover the matters which it is here alleged Essex failed to communicate to A and B and I did not understand there to be any issue about that. The real factual issue is whether the information in question was in fact communicated.

[17]Those provisions are no more than one would expect. Any suggestion that a prospective adopter should go ahead without the fullest information about the child in question would be untenable, at least as a general proposition. There may, of course, be some confidential information about the birth parents, which is not deemed relevant to the child or the adoption, but I need not pursue that. Broadly speaking, no witness in this case, including the two experts called, was of the view that anything less than the fullest information about the children should have been provided. Those views were expressed not just having regard to the Regulations but based on common sense and practice. It is also to be noted that the Regulations mandate "written" information. It is against that regulatory background that the existence and nature of any common law duty falls to be considered. Common Law Duty of Care

[18]In approaching this question I have in mind the findings of fact that I shall make in due course. However, I think it convenient to decide the matter at this stage because the facts which are most relevant to the question are not in dispute and, in the light of recent House of Lords authority, I consider the answer to be reasonably clear.

[19]The outline facts to which I refer specifically are: Essex, as the relevant adoption agency, had decided that the children should be adopted; it had approved A and B as prospective adoptive parents and on 19 th October 1995 decided to link A and B with the children; it was very important that A and B should be given the fullest information about the children, including the agency's proposals in respect of adoption, before placement (that was also the agency's clear duty (under Regulation 12); the task of providing that information to A and B fell to the social workers involved in the case, in particular: Helen Nys, Jo Willoughby and Alan Kearsley; Dr. Lehner, the medical adviser to the adoption panel, was also involved as I shall detail later; those individuals were all specifically assigned to or involved in this case and knew that A and B wanted to adopt; they must be taken to have known (if indeed it was not admitted) that A and B would rely upon what they told them and would trust them to give a full and fair picture of the children, at least to the extent that they had such knowledge; all those individuals had actual knowledge of the information which it is alleged was not given to A and B.

[20]Mr. Millar submitted that the claim was simply based on Essex's vicarious liability for the acts of its employees or agents, namely, the social workers and doctor I have mentioned. In his closing submissions he underlined what his case did not involve, namely: any criticism of a discretionary, financial or policy decision of the agency; any multi-disciplinary judgment of the agency or the adoption panel, in particular, the decision to offer the placement; any matter of expert or professional judgment of any individual. In short, the Claimant's case is that Essex's social workers on the case failed to give relevant information which they had to A and B or to ensure that it was given to them. He further submitted that the claim easily passed the fair, just and reasonable test for a common law duty of care.

[21]Mr. Faulks submitted that the alleged duty fell within an area of non-justiciability; that the court was being asked to "second guess experienced and dedicated social workers and a doctor"; that it was inappropriate for the court to be asked to isolate just one part of the adoption process and that adoption had the "extra security of court proceedings". Mr. Faulks also submitted that the claim failed the fair, just and reasonable test for various reasons (fully deployed in his opening submissions) including: that the whole process of adoption was a delicate and uncertain one; it is a multi-disciplinary process; a duty of care might deter agencies from making placements; issues of confidentiality could arise and, in all, that such a duty would or might tend to undermine the fact that the welfare of the child is paramount (s. 6 Adoption Act 1976). He also relied upon the particular facts of this case.

[22]I was referred to numerous cases, but in my judgment the decision of the seven member committee of The House of Lords in Phelps v. Hillingdon London Borough Council and other related cases

(2001) 2 AC 619

provides sufficient guidance for me to answer the question here.

[23]Mr. Millar did not suggest that he could maintain an action for breach of statutory duty directly against Essex but submitted, correctly in my view, that a common law duty of care in the present case would not be contrary to or interfere with the presumed statutory purpose of promoting and regulating adoption. I accept Mr. Millar's identification of what is and is not in issue and can see no reason for holding that the allegation of a simple failure to pass on relevant and important information to A and B falls anywhere near the area of non-justiciability, despite Mr. Faulks' valiant effort to so describe it.

[24]I understand Phelps to decide that a person exercising a particular skill or profession might owe a duty of care in its performance to those who might foreseeably be injured if it was carelessly exercised; that such duty does not depend on contract and that a local authority could be vicariously liable for any such breach of duty, notwithstanding that the "professional" was acting in furtherance of the authority's performance of a statutory duty, a breach of which did not itself sound in damages. That seems to me to cover the present case so far as it goes, but I must consider specifically whether the "professionals" here owed such a duty on the facts. That a child with serious behavioural problems, particularly one displaying violence towards property and people, was foreseeably likely to cause injury seems to me to be plain. That the relationship between A and B as prospective adoptive parents and the social workers and doctor, who between them had the task of assessing and examining the children and telling A and B about them, passes any sensible test of proximity, I regard as equally obvious.

[25]However, Mr. Faulks' submissions were really directed towards the reasonableness or justice of holding that a common law duty arose in the circumstances. Despite all his skill, I am afraid I cannot accede to his submission. I cannot see how such a duty would detract from the importance of a child's interests or in any way interfere with the statutory regime. On the contrary, as has been pointed out in some of the cases, it might encourage those involved to perform their tasks better. It is clearly in the public interest that professionals and those with special skills who are paid to offer their services to the public, should act to the appropriate standard and, at least in the context of this case, I can see no danger of such a duty encouraging unacceptably defensive behaviour. Indeed such, if displayed here, might well have avoided the problems. It was a somewhat cavalier approach to the agency's own written forms, in one instance at least, that permitted the lack of proper information for A and B to arise and continue undetected. I refer to the written agenda form for the important panel meeting on 16 th January 1996, to which I shall return. Generally, there was also evidence to suggest that the standards to which the social workers themselves aspired were not met. Nevertheless, I should like to record my thanks to them for the straightforward manner in which they gave their evidence, a remark I also address to the two experts. In the event I did not find that expert evidence was really necessary but they both assisted by giving me a general feel for the way things operate in this field and I found them both extremely fair and objective.

[26]I hold that a common law duty of care was owed by the individuals mentioned and that Essex is vicariously liable for any breaches established. I do not need to attempt to define the scope of the duty, it is enough to hold that it includes taking reasonable steps to provide all relevant information about the children to A and B or to take such steps to ensure that it was provided. That duty was owed by Helen Nys, the social worker for the children, Alan Kearsley, the social worker for A and B and Jo Willoughby, their superior and adoption team leader. Dr. Lehner only owed a duty to give full information to the extent that she involved herself in the process. It was not her prime responsibility.

[27]The one point I do regard as problematic and to which Mr. Faulks drew attention, was whether psychiatric illness to A and B was foreseeable. It is B who makes such a claim and it will, of course, be for her to establish the necessary criteria in due course. But I must consider whether foreseeability of a recognised psychiatric illness or injury, arising from the placement of the children on the present facts, is established. The sensitivity of the adoption process was not in dispute, indeed Mr. Faulks himself relied upon it. That emotions are stirred and that great stress and distress may be caused if things do not work out can hardly be doubted. More specifically, the question which arises here is, whether psychiatric illness or injury was foreseeable as a result of placing the male child with A and B, in circumstances where they had stated that only mild behavioural problems were acceptable and yet he had displayed very serious behavioural problems. I must bear in mind the whole circumstances and, in particular, those involved. I also pay particular attention to the findings I set out later concerning what was known about the behaviour of the male child and his problems. I do not find this an easy question to answer. The psychiatric illness or injury is not, I think, said to have arisen from witnessing any particularly shocking event, rather it is alleged to arise from the overall impact of the male child's behaviour on B, her relationship with A, their family and social life generally. Mr. Millar also submitted that if physical injury was foreseeable but psychiatric injury was sustained either instead or in addition damages were recoverable. There was physical injury to B, but, in addition, I find that psychiatric injury was foreseeable in all the circumstances of this particular case. Information Allegedly Not Given to A and B.

[28]What then is the information that it is alleged was not communicated in this case? It is described in the Statement of Case as the male child's "serious behavioural difficulties." The highlights of the Particulars that are given include: Two assessments of Dr. L.V. Briscoe, a consultant psychiatrist, in November 1993 and October 1994, the first of which contains references to the male child's "disturbed behaviour and thinking" and expresses the opinion that "it would be prudent to refer him to a child guidance clinic for more detailed examination" and that "there are reasons to suggest that (the male child) needs some special help." Information set out and opinion expressed in Form D compiled by the agency's medical adviser, Dr. Lehner, dated 14 th February 1996. Form D is a medical report, developmental assessment of a child 5 – 10 years referred for adoption. It includes references to the male child's behavioural difficulties and "requiring constant adult supervision, he will test his carers to the absolute limits", that "he may require specialised carers to support his adoptive parents due to his need for constant supervision" and referred to Dr. Briscoe's recommendation of a child guidance clinic and that he may have special education needs. Information from Helen Nys, a social worker employed by Essex, who handled the male child's case from about mid-1992, including references to him displaying hyper-active behaviour, throwing himself against walls, head banging and that he "is very disturbed, exhibiting quite severe violence towards (the female child) and needs supervision 24 hours a day." This was information from 1993. There is no question but that Essex had all this information and more, the question remains did they sufficiently and fairly communicate it to A and B. The Parties' Factual Cases.

[29]During the trial evidence was given by A and B and by several social workers for Essex. Each side called an expert and among numerous documents placed before me were, in particular, the minutes of adoption panel meetings, various forms which Essex used and which were filled in by one or other of the witnesses, and certain other reports and correspondence.

[30]As will become apparent from the evidence, to which I shall refer, A and B expected a measure of behavioural problems or disturbance and were prepared to accept it. Their complaint is that they were not prepared to accept the degree of disturbed behaviour they were faced with and about which they say they were not told. The particular points that would have caused them to reject the children had they been aware of them were said to be: the fact that the male child's behaviour may well have had a psychiatric origin or connection and that it could even be permanent in the sense of requiring ongoing specialist support; the references in the papers to past violence, that the male child had seen a psychiatrist; that respite care would be needed; a recommended reference to child guidance and 24 hour supervision. Respite care was described in evidence as the identification of another family with whom a working relationship could be developed and who would take over the children from the adoptive parents for suitable periods, whether a day, a weekend or perhaps even longer. Both A and B maintain that had they been aware of these factors they would at least have asked for more information and, assuming honest answers had been provided, would probably have rejected the children. B said in evidence, that would have been the case even after placement, although she would have been prepared to keep the female child.

[31]Essex's case on the facts is simply that a fair and sufficient amount of information was conveyed; further, that it is not accepted that A and B would have rejected the children in any event. In particular, it is maintained that Helen Nys, and/or Mr. and Mrs. Sweeting (the then foster parents), would have imparted sufficient details of the male child's behaviour and that a letter in November 1995 (the receipt of which is denied) from Dr. Lehner gave a full and fair picture and its contents would also have been discussed during a visit from Dr. Lehner to A and B in December 1995.

[32]Thus I turn to the evidence to consider the information Essex had leading up to the placement, the extent to which it was conveyed to A and B and the effect on them that any information not so conveyed, would have had. Information in Essex's Possession

[33]Alan Kearsley saw A and B when they first applied for approval as adoptive parents. There are references in his reports and the Form F he completed, to the fact that they expected a child to have "a degree of emotional disturbance" but that they felt unable to consider a child who had a physical or mental handicap or was likely to be a slow learner. Form F is a form which provides information on prospective substitute parents. Subsequently, A and B withdrew for family reasons but were reinstated as prospective adopters in 1994. The various forms and minutes of meetings over this period are not entirely consistent, but the agency decision following the recommendation of the adoption panel of 5 th January 1994, recorded A and B as suitable for: 1. Age range 0 – 60 months 2. Number of children 1 or 2 7. Handicapped child Physically: No Mentally: No Emotionally: Yes, mild Behaviourally: No 8. Child needing special education outside mainstream school No Those entries reflected the then current Form F which A and B had signed, which also stated that "any child beyond babyhood will have a degree of emotional handicap". The agency's letter to A and B dated 6 th January 1994 confirming their reinstatement also noted their willingness " to accept, if necessary:a. A child with mild medical complications provided these do not lead to a disabling condition.

b. A child with possible emotional disturbance." The later agency approval of A and B of 19 th July 1995, the last to which I was referred, notes their suitability for: 5. Medical conditions Mild 7. Handicapped child Physically: No Mentally: No Emotionally: Yes, mild – could consider child who has been sexually or physically abused. Behaviourally: Yes, mild. 8. Child needing special education outside mainstream school No

[34]Overall, it seems and I find that A and B had said they would accept and the agency had approved them for a child with mild emotional or behavioural problems, but not one needing special education outside the mainstream or with physical or mental handicaps. Clearly they had been told and expected a child to have " a degree of emotional disturbance", but there is no evidence that they were approved for or agreed to accept a child with serious behavioural problems and certainly not if those were thought to be associated with any medical or psychiatric conditions. All this is relevant generally to the agency's placement of the children with A and B and the information they were or ought to have been given and also to the credibility of A and B's assertion that they would have rejected the male child at least, if they had been given all the information about him.

[35]The care file for the children was not disclosed, I know not why, but some relevant documents were in evidence. A document, apparently compiled in October 1997 by Jo Willoughby indicates that she had looked at the file and sets out some quotations from it, including:

"In April 1993, Helen Nys' initial visit to the family, she reported (the male child) was very active, running around everywhere, hitting the walls and doors and banging into them. I'm concerned about (the male child's) chaotic behaviour and the strain controlling him will put on (the mother)." "

In July 1993, birth parents came to the office, wanting to discuss (the male child). They can't cope with his behaviour and feel he is disturbed and wonder if he is hyperactive. (The male child) was very disturbed in the interview. He threw himself at walls, windows and doors. He had no concept of personal danger." There is also reference to the mother complaining that the male child was hyperactive and getting worse and a suggestion put by Helen Nys to the mother that he was better when in care and that his behaviour reflected what he saw going on between his parents.

[36]In the event the children were taken into care and care orders were made in December 1993. They were placed with the Sweetings in about September 1993 after several other foster placements had broken down as a result of the male child's behaviour.

[37]It is plain to me and I find, that the agency came to know that the male child had serious behavioural problems and that these would probably need specialised professional help. A few references from the contemporaneous documents, in addition to those I have already given, will suffice to illustrate this. The Sweetings were experienced foster parents. Their descriptions of the male child are recorded, for example in an Annex to Form C dated June 1995. Form C is a "profile of behavioural and emotional well-being of a child aged one and a half to five years." It includes the following:

"We were (the male child's) sixth foster carers in the space of three months because he was so disruptive and very difficult to manage, e.g. swearing, kicking, throwing (the female child) across the room, strangling her. Running around uncontrolled. He didn't know right from wrong. We had to hold him very tightly when out (shopping, etc.) or he would run away and/or knock things off the shelves . . . . . He would pinch food and eat it while running. We could not leave knives laying around as he would pick them up and threaten to kill you. (The male child) has calmed down quite a lot but still has his moments of going haywire. He pushes us to the limits . . . . . At school (the male child) is very good but when he comes out he goes mad, running off, not doing as he is told . . . . ."

Janice Sweeting was a member of the adoption panel. The minutes of a meeting held on 21 st September 1995 at which she was present record her as informing the panel:

"When placed with her, (the male child) was just three years old and had enormous behaviour problems, he knew no boundaries, did not speak English, merely swore, he could not be left alone and blamed his little sister for everything, he was violent with knives, etc.; this was his sixth placement and they had taken him on the understanding they would not give up on either him or his sister; his behaviour was appalling, he could not even be taken shopping, he was an uncontrollable and vicious child; it took him 6 months to learn to eat properly and they had been through a lot of troubled time with him; . . . . . He went on to playschool and in time improved at nursery school; he is still an aggressive and angry child but there has been much improvement; when told he was to have a new Mummy and Daddy his behaviour immediately got worse and reverted to what it had previously been."

She is also recorded as telling the panel that it would require a "very special family for this placement of this child to be successful." It is of interest to note that the minutes record Suzanne Fallon, the chairperson, asking if the male child is having any help. Helen Nys is recorded as replying that he is not and Dr. Lehner stated that she had advised that the child should have input from child guidance. It will be recalled that Dr. Briscoe had so advised but none of this advice was acted on. Helen Nys is recorded as confirming that A and B had the capacity to cope with the children and stating that they "know about the behaviour problems, they are not expecting these children to get better, they think that they would be really good parents for these children." I shall refer to the oral evidence of Helen Nys in due course. Dr. Lehner is recorded as being "terribly concerned in respect of the panel matching merely "good enough" parents with these children."

[38]The adoption panel had originally recommended the children for adoption at a meeting on 24 th November 1994. Dr. Briscoe's reports were then referred to. Helen Nys disagreed with the recommendation of child guidance, at least for the purpose of confirming what the male child was saying about not returning to his birth parents, but is also reported as stating:

"there were concerns in respect of the psychiatric state of the male child."

Dr. Lehner examined the children on 18 th September 1995 and then had a meeting with Helen Nys and Janice Sweeting after which she dictated an all purpose report which is incorporated in the minutes of an adoption panel meeting on the same date. The meeting was to consider an adoption allowance for the children and recommended that they would meet the criteria of the Adoption Allowance Scheme Guidelines 1994 noting that "there would be significant financial implications in respect of medical follow-up, etc. as previously mentioned for each child." Dr. Lehner's report obviously included information received from Janice Sweeting and Helen Nys and as reported in the minutes, records in respect of the male child:

"He had multiple foster placements until the age of three and a half years because of behaviour difficulties . . . . ." "

His concentration is very poor. Because of his behaviour he requires constant adult supervision, he will test his carers to the absolute limits, including running away." "He has been seen by a child psychiatrist who recommended on-going child guidance therapy." Under a subheading "Implications for current care, education, long-term prognosis the following was recorded:

"Due to his behaviour and poor concentration, he may have difficulties in the school situation and may have special educational needs. He will need child guidance input to come to terms with his early traumatic years. He may require specialised carers to support his adoptive parents due to his need for constant supervision."

And at d. Services needed . . . . .: 1. Possible special educational needs. 2. Child guidance input. 3. Specialised respite care. 4. Home providing very clear, firm, boundaries and constant adult supervision.

[39]On 21 st September 1995 there was an adoption panel meeting to which I have already referred and on 19 th October the adoption panel, by a majority, recommended a matching of the children with A and B and Suzanne Fallon, as chairperson and executive officer, accepted the majority recommendation on behalf of the agency. The minutes of this meeting record that no other couple had become available as prospective adopters. A panel member enquired of Alan Kearsley whether the couple were aware that the male child wanted to stay where he was and " will test to the upper limits, he thinks that if he is naughty enough he will be returned to his foster carers which is exactly what he wants to happen." Alan Kearsley is noted as replying that as far as he could tell "they are prepared for the worst." Janice Sweeting commented that:

"Unless the couple have some experience as a couple with young children they will not know what lies ahead, it will be beyond their wildest imagination . . . . . The male child will do his utmost for the placement to fail; if he succeeds and it breaks down, he will be so damaged that he will then become unable to be adopted."

Suzanne Fallon stated that: ""If the panel approve the matter, there must be a comprehensive support package to go along with it." Dr. Lehner abstained in the voting. In accepting the majority recommendation to match, Suzanne Fallon directed that the "support package must be ensured."

[40]The support package directed by Suzanne Fallon was not provided. The fact of the recommendation is further clear evidence of the seriousness with which the panel viewed the male child's behavioural problems.

[41]The final reference I make in support of my finding at paragraph 37 that Essex knew the male child had serious behavioural problems is Form D which is a medical report and developmental assessment prepared by Dr. Lehner pursuant to her examination of the children and includes references to and opinions based on the information she had acquired from others. It appears to have been completed by Dr. Lehner on 14 th February 1996, only five days before the formal placement. The form contains numbered sections or paragraphs. In Section 6 under the heading Social behaviour and play there appears:

"Tantrums and aggression, needs help, not normal behaviour."

Under Section 7 there appears:

"May have educational difficulties because of behaviour problems and poor concentration."

Under Section 8 headed: Areas of concern, including emotional behavioural difficulties and any other observations:

"Behaviour Concentration . . . . ."

In answer to the question "is there a need for follow-up examination or consultation" the answer given was "yes" and opposite "action required" there appeared "child guidance once settled. Close monitoring educationally." On the final page of Form D, albeit one that seems to be independent of the first three pages and which is stated to contain a "summary and interpretation of preceding medical information for the agency panel, the prospective adoptive parents or care givers, the court, etc.", Dr. Lehner again refers to the matters set out in her earlier medical report and which I have mentioned, including the reference to constant adult supervision, child guidance, specialised carers to support his adoptive parents, special educational needs and her recommendation as previously set out.

[42]Sadly the bleakest of the above references has been borne out by subsequent events. A and B's witness statements and evidence give details of behaviour which by any standards is extreme in a child and "abnormal" even by the standards to be expected of adopted children who may well have emotional or behavioural problems as a result of earlier experiences. It was not seriously suggested before me that the male child had not displayed very serious behavioural problems, but, in any event, I would have no hesitation in so finding. A few brief references to the evidence, which I accept, will suffice. B described his behaviour as "spiralling out of control". She has suffered black eyes, split lips and bruises on various occasions and ended up in hospital as a result of being attacked by him while pregnant. He smashed their green house with a spade, damaged their conservatory, poured gloss paint on the walls and carpets of the hall and their bedroom and generally behaved violently, including attacking other children. On one occasion at a party for the girls he attacked A's father and bit him, he attempted to attack the girls, took a carving knife and threatened to kill A, and attempted to electrocute himself with bare wires from his bedside lamp which he had destroyed. On this occasion a doctor was apparently called who stated that he had never seen anything like it before. Was The Information Given to A and B?

[43]The next question is whether A and B were provided with the information which the agency had.

[44]Mr. Faulks QC, for Essex, identified several sources or means by which the information was given, both orally and in writing. I shall consider each of these. Form E

[45]This is a form containing "details of child needing family placement". It was completed by Helen Nys and dated 22 nd November 1994. It was said to be a form to provide the adoption panel and any prospective adoptive parents with information about the male child. The evidence about it remained somewhat unsatisfactory and unclear. Helen Nys said in evidence that the form would have been completed in its entirety at one time and was always provided to adoptive parents as a matter of practice. She believed she would have given it to A and B when she first met them.

[46]At first it appeared to be the Claimants' case that they had received Form E but during Mr. Millar's opening it was said that they had only received Part 1. Later, in A's evidence, he said he had only received the first two pages of Part 1. He also said that he had not seen Form E in its entirety until shortly before the trial. I do not think the last remark can be correct because he refers to a passage from Part 2 in his letter dated 23 rd April 1999 to Mrs. Fallon.

[47]In the end it probably doesn't matter, save as to A's accuracy of recollection, because he agreed in evidence that even if he had seen the entire Form E it would not have caused him to reject the children. Further, I find that the information contained in Form E cannot fairly be said to convey an accurate assessment of the male child and his serious behavioural problems. That view seems to have been accepted by at least two senior personnel employed by Essex. For example Lyndsay Davidson, team manager, investigated A and B's complaints in 1999. In writing to Suzanne Fallon on 6 th April 1999 she referred to Form E and an Assessment Document (from the Marigold Centre) and refers to the October 1997 summary of information, to which I have referred, and continues:

"as a prospective adopter if I was just reading the Form E and Assessment Document I probably would not pick up the level of (the male child's) likely disturbance from these documents; the latter document clearly is written only looking at parenting skills, not (the male child's) psychological state."

This view was referred to and repeated by Michael Leadbetter, director of social services, in a letter dated 13 th April 1999 to A and B where he attributes the opinion to Suzanne Fallon herself.

[48]Helen Nys, herself, accepted in cross-examination that the tenor of her description of the male child in Form E was different from Janice Sweeting's and was more favourable. She insisted, however, that she believed it to be an accurate account of her own view.

[49]There are various references to the male child and his behaviour in the Form E, for example:

". . . . . very outgoing, chatty child, sociable in his play. Can be aggressive in play occasionally. Also aggressive and "naughty" when he is anxious." and in Part 2: "

At times, (the male child), can play aggressively and he has on one occasion injured another child in his foster placement. He is most inclined to be aggressive or naughty when he is confused and unable to understand what is going on. (He) responds well to calming actions and being spoken to . . . . . " "This placement has been very successful for (the male child) and he has been able to develop appropriately." "(The male child) has a very warm and affectionate relationship with his current carers, Janice and Mike Sweeting. They give (him) abundant love and affection. He responds well to discipline and direction by them. It is clear that (he) loves Janice and Mike very much."

[50]I am satisfied that the Form E itself did not give a full or fair picture of the male child's serious behavioural problems. It did not, as Helen Nys herself accepted, match the description of him given by the Sweetings. The Marigold Assessment

[51]A and B admit receiving this but neither side made much of it. Only with hindsight might one detect one or two clues to the male child's later serious problems. Addendum to Form E

[52]This was not completed by Helen Nys until 30 th January 1996. A and B denied ever having had this Addendum and Mr. Faulks in his closing written submissions accepted that it was "somewhat unclear whether or not this was received prior to the placement." In the event it doesn't matter because it adds nothing relevant to the original Form E. However, there is, perhaps, an aspect of it that has some general relevance. Helen Nys had apparently been aware of the need for this since the previous July and it evidences a degree of inefficiency on her part at the material time. This may well have been caused by the fact that she had moved on but retained responsibility for the children in her new position. Two references will suffice. In a memorandum to Suzanne Fallon dated 10 th January 1996 Jo Willoughby said this:

"An additional problem is that the written information of the adoptive parents is still only in rough draft. The adopters must have this, before introductions begin so that they have time to consider it. Helen has been aware since last July that this will be necessary. (A and B) have been waiting for it and I cannot see how it can be ready in time now."

In her memo of the same date in answer to Jo Willoughby Suzanne Fallon said:

"Thank you very much for your memo, the contents of which I have discussed with Helen Nys. I do agree with you completely that there has been an unnecessary and therefore unacceptable delay in progressing these children through to adoption. . . . . . I am very sorry this has occurred. I think it is largely to do with Helen managing a very busy Child Protection Team and trying to complete the residual work associated with her former role."

Dr. Lehner's Report

[53]I have already mentioned this report as recorded in the minutes of the adoption allowance meeting on 18 th September 1995. It was also apparently set out in a letter addressed to A and B dated 6 th November 1995. A and B denied receiving this letter. B was particularly adamant on this point. The only copy that was produced was not signed by Dr. Lehner. Mr. Leadbetter enclosed a copy of this letter with his letter to A and B dated 13 th April 1999 in answer to complaints that they had been making up to that time. In their reply dated 23 rd April A and B then maintained that they had never received it. Dr. Lehner's evidence was that she had nothing to do with the sending of the letter and did not sign it. She simply prepared her report which appeared in the panel minutes and the panel administrator, that is Marilyn Martlew, would have been responsible for putting it in letter form and sending it. There is a memo from Marilyn Martlew to Julia Venables/Jo Willoughby, team leader, dated 3 rd April 1996, the last paragraph of which reads as follows:

"Somewhere during my conversation with (A), he mentioned that he was still waiting for copies of the Form E in respect of the children, I queried this and it appears that, or at least (A) is saying that, he has not received any written information in respect of the children; I have no way of knowing if this is the case but, maybe, it needs to be checked out."

This memo is, of course, over a month after the children were formally placed with A and B. It is consistent with A and B's present assertions that they received no and certainly no written information other than that which I have identified. As Mr. Millar pointed out, it is also revealing in that it appears inconsistent with any assertion that Miss Martlew would have sent out the letter dated 6 th November 1995. Miss Martlew was not called to give evidence. It does not appear from the memo as though Miss Martlew had sent the letter or even realised it was her responsibility to do so. If it was "checked out" no further evidence has been revealed.

[54]I found A and B's denials concerning the receipt of this letter, convincing. They are also consistent with subsequent complaints made by them concerning the lack of written information about the children and, on the evidence as a whole, I find that this letter was never sent. Letter dated 14 th February 1996

[55]Mr. Faulks also relied upon this letter from Jo Willoughby to A and B it was just five days before the formal placement. The final paragraph reads:

"I enclose the original Birth Certificates for your use when you lodge your adoption application with the Court, a copy of "

Information for Adopters" for your use and a copy of the final pages of medical forms C for your information." The reference to "medical forms C" was, in substance, a reference to Dr. Lehner's report. Again, A and B whilst admitting receipt of this letter, and indeed the Birth Certificates, deny receipt of either the "Information for Adopters" or the "medical forms C". Mr. Faulks relied on the fact that this was the second occasion upon which the substance of Dr. Lehner's report was apparently sent to A and B and thus the probabilities were that they received it, at least on one of these occasions. Mr. Millar pointed out that the form in question was only completed and dated by Dr. Lehner on the same day as the letter, namely 14 th February 1996 and Dr. Lehner was unable to say what she did with the completed form after she signed it. Jo Willoughby said in evidence that she sent the letter because Marilyn Martlew was on sick leave, but understandably could not now recall the enclosures. Mr. Millar also submitted that it was improbable that Dr. Lehner would have completed the form, as she said, at her clinic in Stanstead, discovered that Jo Willoughby was on the same day sending a letter to A and B and provided her with a copy all on the same day. An odd feature of the available copy is that there are asterisks against the references to "Information for Adopters" and "medical form C". No one could explain these to me and I have wondered whether they may have indicated that these intended enclosures, whilst anticipated by the writer, were not immediately to hand and the letter was sent without them. However, this is bordering on speculation and is not determinative of my finding. The fact that this form was to be enclosed with a letter at such a late date and without any cross-reference to the alleged letter dated 6 th November 1995 is not impressive. Further, there was no evidence before me of any reaction at all from A and B. Even if A and B may not now be entirely accurate on every detail, the fact that they were only prepared to accept a child with "mild" behavioural problems is recorded as I have previously mentioned. The last two pages of this form, from which I have previously quoted, are sufficiently dramatic to prompt some reaction from a couple of prospective parents who were only prepared to accept a child with "mild" behavioural problems. Again, looking at the evidence as a whole I accept A and B's denial that the final pages of the form were enclosed and find that they were not. That is also consistent with A's complaint as recorded in Marilyn Martlew's memo that I referred to. Oral Information

[56]Mr. Faulks also submitted that it was overwhelmingly probable that one or other of Mr. Kearsley, Helen Nys, Dr. Lehner or Janice Sweeting would have conveyed the serious nature of the male child's problems to A and B before the placement. A and B strongly denied that had happened.

[57]I consider it important to keep in mind here the nature of A and B's complaint; they understood that the children had a troubled past and that there would be problems to be faced; they were prepared to accept a child with "mild" behavioural problems. However, they maintained they were not prepared to accept a child whose problems were so serious that they gave rise to the various matters identified by Dr. Lehner and one that had already seen a psychiatrist who had indicated the need for professional help. I note this because I am satisfied that A and B were made aware that there would be some behavioural problems, they accepted as much; they did not expect an easy passage nor that any problems would be short lived. However, as B said, and I accept, she understood that they would be facing the sort of problems that could arise with children who were to be adopted and who had a troubled start in life, not a particular and more serious problem such as was encountered here with the male child. Dr. Briscoe's view that the male child needed help and his recommendation to child guidance, was not limited to ascertaining from him his reaction to returning to his birth parents and it is clear that Dr. Lehner did not so interpret it. Her reference to his behaviour as "not normal" has to be understood in context, that is in the context of children from a troubled background awaiting adoption. She was clearly there expressing something not normal even in those circumstances and she was proved right. The Sweetings were experienced foster parents, yet their description to the adoption panel was extreme and expressed in dramatic language. Dr. Lehner and Suzanne Fallon clearly both felt that the adoption should only proceed with the appropriate and identified support package and said so. None was implemented, but more importantly A and B were, as I find, never told that. I accept their evidence that had they been told that Dr. Lehner's and Suzanne Fallon's (on behalf of the agency) view was that they should only adopt the children and proceed to placement, on the basis that respite carers and professional help from child guidance were to be involved, they would have asked why; had they then been given the information that the panel had they would not have proceeded.

[58]Essex faced the evidential difficulty that the Sweetings were not called to give evidence and its other witnesses could only suggest what "would" have happened or what they believed they "would" have said, since none could now recall. In fairness to Essex such evidence must nevertheless be considered carefully, it can be persuasive; particularly if supported to some extent by contemporary memos, notes or other documents, but I am unable to find that such is the case here.

[59]Dr. Lehner was confident that she would not have driven from Harlow to Colchester to see A and B for a short informal chat on 11 th December 1995. She said it was unusual, at that time for her to see the adoptive parents and she was satisfied she would have discussed the letter dated 6 th November 1995 and its contents with them. It appeared that was now her practice, but not necessarily at the material time. She made no notes of the meeting, but of far more importance is her report to the adoption panel on 14 th December, only two days later, as recorded in the minutes. Dr. Lehner accepted in evidence that she would have seen and approved the minutes, which was the practice at the time. The relevant passage is as follows:

"Dr. Lehner met the prospective adopters at the beginning of this week. She felt the most striking thing was how much their sitting room was like Janice's, which felt good. She was quieter than him, very positive and very much has her feet on the ground. He was very confident, chatty and forward. He had a list of things to do for (the male child), such as taking him to football matches, swimming. They saw photos and asked questions about what (the male child) liked and could do. They were very aware of (the female child) and accepted it would be very difficult but never had any thought that they would not be able to cope. He said "when we take them on we take them on"." (There then follows a reference to A's 17 year old daughter and 19 year old son.) . . . . . "

They have contacted the local school and found out where the local child guidance clinic is. They said the relationship with the foster carers was important and they must work very closely with them." I find it quite impossible to square that minute with the alleged fact of an important visit during which Dr. Lehner satisfied herself that A and B were fully informed of the male child's problems, were prepared to face them and to do so with child guidance and respite carers' support. B explained that child guidance had been mentioned at some stage, but only in the context of helping the children to come to terms with their early life experiences and in due course, not in the particular context of immediate professional help for the male child's behaviour. I accept her evidence on that. She was very clear in her recall and convincing. Further, there is no other reference to these matters in any subsequent documents; no record that A and B understood and were prepared to accept the proposed support package. Margaret Bishop, A and B's expert, said she would have expected A and B's acceptance of such a package to have been considered important by the agency and as an indication of their willingness to accept the placement of such a child. I agree. There is no record of any discussions or reports from Dr. Lehner to anyone else about the meeting and the proforma Agenda for the important Placement Planning Meeting on 16 th January 1996 (to which I will return) simply records:

"25. Post Adoption Support: to be discussed."

I prefer the evidence of A and B that the meeting was relatively short and informal, that it dealt with routine health matters including whether to test the children for HIV and hepatitis B, and included some discussion of activities as evidenced by the minutes. B had a particularly clear recollection of the meeting and was able to recall several mundane details convincingly. Both A and B were adamant that Dr. Lehner did not refer to her letter let alone discuss its dramatic contents. I believed them. In any event, although Dr. Lehner may well have wished to meet A and B and see their home, the main responsibility for communicating information about the children lay with Helen Nys who was the social worker responsible for them and who knew most about them, not the medical adviser to the panel. Dr. Lehner told me that if a child exhibited abnormal behaviour (which she recorded in the male child's case), it needed a diagnosis; child guidance with its team of professionals including, child psychiatrists and psychologists, would do that but only after placement; thus the prospective adoptive parents needed to be carefully informed of all this. There is no record anywhere of such a serious matter being discussed with A and B I also note that Dr. Lehner's meeting with A and B was some weeks after the adoption panel had formally recommended the match on 19 th October 1995. Suzanne Fallon had accepted the majority recommendation on behalf of the agency, thus the decision had been taken. Dr. Lehner had abstained from voting at the meeting. The minutes record Dr. Lehner as stating that she wished to meet the selected prospective adoptive parents before introductions with the children began. There is no suggestion in the minutes that such a meeting was to form an important part of the information imparting process and I would have thought that it was somewhat late in the day in any event. The minutes of the adoption panel meeting on 21 st September 1995 record Dr. Lehner pointing out:

"she must meet with them (A and B) prior to any introductions because of the implications of HIV and hepatitis B, quite apart from anything else."

It is also clear from the minute that Dr. Lehner was particularly interested in A and B and to satisfy herself that they were suitable medically. This, I also find, is more consistent with B's detailed account of the meeting.

[60]As to Helen Nys herself, I listened carefully to her evidence. I have no doubt she is a committed and caring social worker, a remark which I am happy to make of all of Essex's witnesses, but there is no doubt she was under great pressure at the time, having moved on to another post whilst retaining responsibility for these children. There are one or two clear and pretty strong references in the papers to delays or matters left undone, for which she was responsible. She accepted as much and I need not recite them. She also believed she would have imparted her knowledge of the children to A and B and accepted the importance of doing so. However, as I have mentioned, she also accepted that her written references to the children were markedly more favourable than, for example, those made by the Sweetings. Since I have to choose between A and B's very clear insistence that they were never told the matters I have identified and Helen Nys' evidence that she believed she would have informed them of such matters, I prefer the evidence of A and B. In particular I consider it probable that whatever Helen Nys did communicate it would have been broadly in line with her written comments at the time. If she took a more sanguine view of the male child than, for example, the Sweetings, Dr. Lehner and Dr. Briscoe, which from the documents it appears she did, it is probable that is the impression she would have conveyed to A and B.

[61]Alan Kearsley was the social worker for A and B. It was not his prime responsibility to gather or pass on to them the information about the children. However, he had a good relationship with A and B at the time and I accept, was protective of them. There are references in the minutes of panel meetings which indicate that he had talked to A and B about behaviour problems that they should anticipate and doubtless he would have discussed adoption generally in order to satisfy himself that A and B were suitable, a fact he communicated to the panel without guarantee. However, here again, there is an important difference between a general warning of behavioural problems with adopted children from a difficult background, even if it included that such problems could be long term, and a particular warning of a particular problem with the male child that would require to be diagnosed and addressed professionally. I have not seen or heard any direct evidence that the latter was given.

[62]There was a curious difference between Dr. Lehner's clear recollection that Alan Kearsley was present at her visit to A and B and A and B's insistence that he was not. Alan Kearsley could not remember but felt it "inconceivable" that he was not, since he was protective of his "parents". Mr. Faulks understandably submitted that if I found he was present, that illustrated the unreliability of A and B's evidence, or at least, that their own recollection was not as infallible as they thought. I find this a difficult point to resolve. I was impressed by Dr. Lehner's and Alan Kearsley's apparent certainty concerning this, but also by the recollection that B, in particular, had of much detail about the meeting and how it was arranged and A and B's conviction that Alan Kearsley was not present. It is surprising that the minutes of the adoption panel meeting on 14 th December 1995, to which I have referred, do not refer to Alan Kearsley being present. I have pondered this point, but in the end, it does not affect the findings I have made. If I had to resolve it, I would find that Alan Kearsley was not present on that occasion.

[63]As I have remarked the Sweetings were not called to give evidence. There is no doubt that introductions were arranged in the lead up to the placement. A and B and the Sweetings were present at the formal placement planning meeting on 16 th January 1996. Further meetings were planned and then took place before the placement on 19 th February 1996. B gave a vivid description of circumstances at the Sweetings' and of Janice Sweeting herself. It had the ring of truth about it. Mrs. Sweeting must be a remarkable woman and society is indeed fortunate to have couples like the Sweetings to call upon, who are prepared to share their home and family with the most difficult of children. B, however, described the Sweetings' house as chaotic, like a whirlwind full of children, parents, psychologists, extended family and others. She said it was simply not possible to sit down and have a detailed conversation about the children. Indeed her view, with the benefit of hindsight, was that Janice Sweeting had been able to cope with the male child, partly at least, because of the chaos and other people around. She accepted that Janice Sweeting had told her that she did not encourage (the male child) to play – fight with toy guns and the like because he could get out of hand and that he was very excitable and needed firm boundaries. She had been told that he knew how to hot-wire a car and that his manners and eating habits were dreadful. She had discussed his favourite food with Janice Sweeting and routines and so forth. She also accepted that Janice Sweeting had told her that the male child had run away and she thought it was because the male child had been told he would be getting a new Mummy and Daddy and that she agreed with Janice Sweeting that his behaviour was probably an indication that he was uncertain about his future and felt unsafe. She insisted that she had not been given the impression by Janice Sweeting that she had given to the adoption panel and which I have quoted. Broadly speaking I accept A and B's evidence on these matters. I bear in mind that they both desperately wanted a child by this time and were very keen for the adoption to go through. Of course, that may give rise to a tendency to put a more favourable interpretation on information given to them than would be the case in other circumstances. However, the other side of that coin is that the agency through its professional workers should have well understood that basic psychology and have ensured that the important matters concerning the male child were really brought home to A and B. I am satisfied they were not.

[64]A good illustration of the failings in this case is afforded by the Agenda/Proforma which I mentioned earlier. This form is a printed agency form, presumably to assist in implementing its own systems and obligations under the Regulations. It is an agenda for the Placement Planning Meeting after linking has been approved. It appears this meeting took place on 16 th January 1996. As its title suggests the meeting was to plan introductions to the children, but the agenda, very sensibly, comprises a check list of matters that should by then have been dealt with and details of future actions. The three social workers in question are recorded as attending the meeting together with A and B and the Sweetings. There are several aspects of the completed form which are not impressive, for example, several of the numbered sections are not completed and some are dealt with very briefly. For example s. 6 headed Developmental and Care Needs Including Special Needs – Physical/Emotional/Behavioural/Social/Therapeutic/Other. Against emotional/behavioural there is simply recorded one word – Yes. At s. 25 Post-Adoption Support, the entry is simply "to be discussed". In view of the panel's serious concern over the male child's behaviour and the clear direction of its chairperson Suzanne Fallon that "a support package must be ensured", these are not very satisfactory answers. However, s. 5 which is headed: Written pre-placement information – Date written information received and acknowledged by the prospective adopter(s), including foster carer profile, medical form C. . . . . . . is a very important section and one apparently designed to ensure compliance with Regulation 12, which I have previously quoted. This section is completed as follows:

"Medical information received from Dr. Lehner. Fully aware of parents circumstances. Form E and assessment document received. Up-dated information still required."

No dates are included, no indication is given as to whether the information, apart from the reference to Form E, was in writing and there is no identification of acknowledgement at all. Clearly, the agency's intention was that written information should be given and acknowledged but, that does not appear to have happened apart from one letter to which I will refer. The "foster carer profile" reference seems to have been ignored. Had this section of the agenda been handled competently it would either have recorded in writing A and B's acknowledgement of specific information, including for example the much disputed letter from Dr. Lehner, or would have revealed that such information had not been received. Had that occurred this case may well not have arisen. I am afraid I find that it is symptomatic of the way this particular case was handled. The document placed in evidence is very unsatisfactory in any event. It is not the original document but a later typed version. Jo Willoughby's evidence was that she would have filled in the proforma at the meeting and A and B and others present would have signed the form and dated it. It would have been typed up later. However, there has only been disclosed a copy of page 7 of 8 of the form which contains the parties' signatures and is dated 16 th January 1996. On this page, presumably a copy of the original, sections 23 – 27 have simply been crossed out. The unsigned and undated version which was typed up later and from which I have quoted, differs. Sections 24 and 25 have been filled in "No" and "To be discussed", respectively. Further, there are hand written additions to the version before me. It is not therefore simply a typed up version of Jo Willoughby's hand written original which presumably the parties signed. This is all very unsatisfactory and regrettably does not reflect any credit on the system operated in respect of this very important meeting.

[65]The letter to which I referred above is an undated letter from A and B to the "Director of Social Services" which is noted as received by Jo Willoughby on 9 th February 1996. It reads as follows:

"Dear Sir/Madam, We are writing to confirm, after having now received (the children's) details, that we would like the placement to go ahead."

B's evidence was that Jo Willoughby telephoned A and B just before their visit to the Sweetings on 9 th February 1996 requesting written confirmation that they wished to proceed with the placement; the wording of the letter was agreed on the telephone at Jo Willoughby's suggestion; it was written out and given to Jo Willoughby at the Sweetings on 9 th February. Jo Willoughby could not recall the background to the letter and thus could not contradict B's account, which I accept. This was only ten days before the formal placement; the obvious inference, which I draw, is that Jo Willoughby was concerned to record some written acknowledgement of information received and that A and B wished to go ahead. A and B had of course received some "details" concerning the children and the letter gives no further clue as to the nature of such information. If the Agenda had been handled properly this letter would not have been necessary. In my judgment it takes the matter no further save to serve as an illustration of the unfortunate manner in which this placement was handled. Breach of Duty

[66]It follows from the above that I find the named social workers failed to give A and B the relevant and important information that they had acquired about the male child or to ensure that it was provided; they, in particular Jo Willoughby, did not properly operate the agency's own procedure for ensuring and recording that such information was given. As I have already remarked, I was grateful for the straightforward manner in which the social workers gave their evidence and I do not for a moment doubt their commitment to serving the community in this area of work. But in this particular case they failed to do that which every witness agreed was important, namely, to give to A and B the fullest information about the children. I therefore find breach of duty established and hold that Essex is vicariously liable for it. Causation

[67]Mr. Faulks submitted that A and B were at an age when they felt they were coming to the end of their time for having children; they were desperate to adopt; frustrated by the delays they had experienced; had indicated that they were prepared to take children with some problems and by the time of the placement had met the foster parents, the children and others involved on numerous occasions. He also pointed out that they knew that they were not finally committed until the adoption orders. He further submitted that the documents show that behavioural problems had been discussed and that they knew several of the male child's tendencies, for example: running away, an ability to hot-wire cars and let off handbrakes and a tendency to aggression. Further, that possible respite care was intended to help if the need arose and that that should if anything have reassured A and B. As to child guidance, B was a psychiatric nurse and A had considered child guidance for his own daughter. In short had they known more about these children it would have made no difference, they would still have gone ahead.

[68]I have already anticipated my finding that had A and B known the full extent of the male child's problems and in particular, the matters I have identified, they would not have proceeded to the placement. I mention as touchstones the fact that they had refused at least one other offer and, as recorded, had made plain what they could and could not accept. I should also mention briefly their own direct evidence on this matter. Both expressed themselves carefully in their witness statements and I saw no reason not to accept their evidence having heard them in court. In his witness statement A says at paragraph 91:

"We were prevented from making an informed decision. Had Dr. Lehner shared the information about (the male child's) previous behaviour with us we would certainly have asked for more information. We might also have asked about the possibility of adopting (the female child) only. We would definitely not have adopted (the male child). We would have been able to make an informed decision not to proceed. As it was by the time we were aware of the full extent of his problems, we were already committed to him."

And at paragraph 92:

"We had in the past turned down the opportunity of adopting a child with serious behavioural problems through the "

Be My Parent" scheme." In a supplemental witness statement A added at paragraph 5:

"Had I known of (the male child's) attempt to strangle (the female child), the suggestion that he would need 24 hour supervision and his tendency to be violent with knives I would have been concerned and would have wanted to know a lot more before meeting the children."

And at paragraph 6:

"I'm not simply saying this with the benefit of hindsight. Our concerns about the absence of paperwork and information are well documented in my telephone call to Marilyn Martlew on 27 th March 1996 and my subsequent telephone calls to Jo Willoughby and my own solicitor to try to get to the bottom of what was causing (the male child's) problems."

And at paragraph 8:

"I had no idea that Child Guidance had been recommended for (the male child), nor of the concerns expressed by (the male child's) birth parents about his bizarre behaviour nor of Jan Sweeting's strong views on how difficult he could be to manage."

And at paragraph 10:

"Had this detailed information been made available to me prior to meeting the children I would definitely have reconsidered the whole thing. A probability is that I would have not have wanted to go ahead and meet the children. B and I were prepared for a life as a childless couple and had been making parallel contingency plans in case we were unsuccessful in our application."

And at paragraph 12:

"We were effectively denied the opportunity of making an informed choice about the children. We were not desperate or wholly besotted with the idea of adoption. As B points out in her supplemental statement, we did reject, in the sense of not enquiring further about, a number of children whose problems we felt unable to cope with. Although it would have been an extremely difficult choice for us to make we would at least have had that choice if all relevant information had been shared with us."

[69]B in her witness statement agreed with A that had they known the contents of Dr. Briscoe's report they would have asked many more questions and she would have recognised that the reference to weekend respite care would have resulted from pretty serious problems and that would really have worried her. In a supplemental witness statement she points out that she had just finished her Registered Mental Health Nurse training and felt that they were in a position to make rational choices about bringing a child into their lives. She says that they had not followed up on various other children because of their history and, in particular they rejected a little boy who had been sexually abused and who was manifesting serious behavioural problems; they also rejected three girls who had severe learning problems. At paragraph 9 she states:

"For my part serious alarms bells would have started to ring if I had been told that it might be necessary to share my new child with a respite carer every weekend. I would have wanted to know the reason for this, why the Panel felt that we would be unable to cope with (the male child) on a full time basis."

She then refers to the need for 24 hour supervision and the fact they were unaware that the male child had attacked other children and attempted to strangle (the female child). At paragraph 12:

"We were not aware of the fact that (the male child) had seen a child psychiatrist who had recommended further investigation. This would have worried me and led me to realise that (the male child) might have problems that were more than just being lively and excitable (as he was presented to us)."

At paragraph 13:

"The Minutes of the Adoption Panel meetings that I have now seen make it clear how worried various members of those Panels were about the proposed placement. Had any of those fears been shared with us I would have definitely begun to doubt myself and our ability to cope. This would have made me think twice about taking on the children."

At paragraph 14:

"Neither of us in my view were afforded an informed choice. I'm quite clear in my own mind that had this information been shared with us before we met the children I would never have accepted them into my life. I find this very difficult to say even now."

And at paragraph 16:

"I have been asked whether, once I had met the children and they had been placed with us, I would have rejected them if Helen Nys had suddenly produced to us all the evidence about (the male child) that we have now seen."

At paragraph 17:

"I find this very difficult question to answer. The extent of (the male child's) desperation to be part of a new family was clear for all to see at our first meeting. However, had I been given the opportunity of keeping (the female child) alone I am sure that I would not have wanted to take on the greater risk that (the male child) represented. If it was not possible to keep (the female child) alone my feeling is that for the same reason I would reluctantly have had no choice but to reject them both."

In evidence B added that had she known, in particular, that the male child had seen a psychiatrist and been assessed as he was, that would have caused her to consider the situation very seriously and she would probably have rejected the children even during the placement. She said that the real crux of the matter was not knowing that there were potential psychiatric problems, nor the full extent of the violence exhibited by the male child and the adoption panel's recommendation of respite care and the support package. Placement

[70]A and B's case, as set out in Mr. Millar's opening submissions under "causation" was simply that they would not have consented to the proposed placement for adoption if they had been given all the information about the children and the damages complained of would never have occurred (paragraph 65).

[71]Mr. Faulks' opening submissions were, in effect, the reverse. That is that the placement and adoption order would have been made in any event; further, that A and B had ample opportunity to assess the children during the placement, a period of some fourteen months (paragraphs 35/36).

[72]In his closing submissions Mr. Faulks denied causation in the above sense on the facts (paragraph 5, conclusion of closing submissions). He also submitted that it could not be right to hold an adoption agency liable for losses during and after placement when, in effect, the placement is a statutory trial period and either side may withdraw. Further, that by concealing some of the difficulties encountered during placement, which A and B admitted, Essex was prejudiced in its right to remove the children and thus avoid the losses; it would not therefore be just to hold Essex liable for on-going losses (paragraphs 14-18).

[73]Mr. Millar's answer to this was to identify the issue as:

"When did (A and B) proceed (in reliance on the inadequate advice/information) upon the course of action which caused the damage?"

He submitted the answer was plain; when A and B accepted the placement. He denied that Essex could avoid liability on the basis that A and B brought the loss on themselves or failed to mitigate since he alleged the negligence continued to operate and the damage crystallised at placement (paragraphs 8/9). In the main body of his closing submissions at paragraphs 44 and 45 he further relied on A's evidence that once the children came to live with them they were committed and that their minimising the problems resulted from the lack of information which caused A and B to believe that they were "settling in" problems, or arose from their own failings as carers.

[74]These submissions raise serious issues in this case. For example, if, as I have found, there was negligent non-disclosure which caused A and B to accept placement and (as I assume for present purposes) suffer damage; what is the position if A and B acquire some relevant knowledge during the placement but feel morally and emotionally committed to proceed to adopt?

[75]Mr. Millar's submission that because Essex's negligence caused the placement and continued to operate, it caused all and any damage suffered thereafter, cannot, in my judgment be right, at least without more. If A and B did acquire sufficient relevant information during the placement, but chose to continue when they could have withdrawn, it seems to me that the negligence or causation had run its course. The only answer I can see to that is if, as a matter of law, it was to be held that in such circumstances A and B had no choice or that the law would not recognise the literal choice that they had, being sensitive to the inevitable emotional bond that probably arose soon after placement. I have great sympathy for A and B and have no difficulty at all in understanding the emotional investment that they made in the children and the bond that would quickly arise on placement, but I could not so hold as a matter of law; it would, I believe, be contrary to the statutory scheme which provides for a placement in these cases and that each side may withdraw prior to adoption. At first blush it may be thought better from A and B's point of view to regard the problem as one of mitigation and since it would be difficult to say that they acted unreasonably in proceeding to adoption, damages should be at large as Mr. Millar submitted. However, I do not find that approach satisfactory. It may be said that but for Essex's negligence they would not have become involved in the placement, but once they were, they were involved in a statutory process which involved the choice of adoption or not. I cannot think it would be right or in accordance with the statutory scheme, for the common law to allow a claim to continuing damages notwithstanding the statutory procedure for adoption I had described. If that is a matter of legal policy, so be it.

[76]It seems to me that two matters arise from the above; firstly, did A and B acquire sufficient relevant knowledge before the adoption order; secondly, what damage had they suffered by that date. I believe I am only concerned with the first question, albeit it also involves a consideration of what constitutes sufficient relevant knowledge. The best answer I can give to that is: such knowledge as informed them of the substance of the information that would have caused them to refuse the placement.

[77]Thus I now consider what A and B learned during the placement, which must, of course, be looked at against the background they already knew.

[78]In her witness statement B refers to the male child's initial behaviour becoming very challenging but that they regarded it as "settling in" (paragraph 48). At paragraph 49 she states that nothing could have prepared them for the way in which the male child behaved. "He gradually spiralled out of control". At paragraph 50 she says that:

"Towards the end of 1996 we found ourselves in a very difficult situation. We blamed each other for (the male child's) behaviour and were taking it out on each other. We felt ashamed and embarrassed about our inability to control a seven year old."

At paragraph 53 B recalls that in November 1996 she first began to have counselling; she felt that things were going wrong and beyond their control and she wanted advice on what they were and should be doing with the male child. Paragraph 61 reads as follows:

"I guess that it was in the beginning of 1997 when we finally decided that we needed to know more about (the male child's) history. We had been waiting for things to change for the better and had doubted ourselves. By then however, it had become apparent that the problem was greater than that. It was at this time that (A) unsuccessfully contacted our solicitor to try and obtain further information about (the male child's) family and medical background."

It will be recalled that the adoption orders were finally made on 1 st May 1997. And finally, at paragraph 65 B confirmed that she agrees with A's witness statement insofar as it records evidence of the male child's uncontrollable behaviour. She recalls the most serious incident as being:

"(The male child) going berserk when he had a friend home to play in March 1997, him jumping up and down on the bathroom cistern so that it flooded the bathroom. I also remember him taking a spade, smashing our conservatory and throwing gloss paint down our hall walls and carpet and all over our bedroom wall and bed."

She then goes on to refer to a holiday in Greece in the summer of 1997, but that was after the adoption order in May.

[79]In A's witness statement at paragraph 47 he records that he became "seriously concerned about (the male child's) behaviour long before the adoption order was made in May 1997". At paragraph 48 he refers to attempts to obtain more information about the male child's history and recalls writing to his solicitor in an attempt to obtain more information and states:

"I believed that there was more to (the male child's) problems than met the eye."

In paragraph 49 he records that his solicitor told him that he had things disclosed to him that he thought A should see but he was not allowed to disclose them. At paragraph 50 he states:

"I believe that at this stage (which, in context, clearly means the period leading up to the adoption order) I was panicking. There were fundamental problems with (the male child's) behaviour which didn't add up. He needed 24 hour supervision, he was increasingly violent and doing things that were patently abnormal."

At paragraph 51 he recalls telling the solicitor that he was "going to adopt this boy and I know nothing about him!". At paragraph 54 he records telephoning Jo Willoughby before the adoption hearing and asking if she had more information about the male child's medical history "that might help us as we were having serious problems with (the male child)". At paragraph 65, A accepts that during the period leading up to the adoption, (that is during the placement) they had a lot of problems but kept them to themselves. They feared that social services would label them as bad parents and take the children away. At paragraph 66, A refers to the male child's bad behaviour during the first few months which they put down to "testing" and "settling in". At paragraph 68, A says this:

"I remember an alarm bell going off in my head at (the female child's) birthday party on I think 8 th March 1997. (The male child) put his fist through (the female child's) cake for no reason. I was concerned about this and did not regard it as normal."

At paragraph 72, A records that the male child had been unable to sit still at all since day one and that he would buzz around the house constantly; gradually his behaviour became more violent and destructive. In evidence A's attention was drawn to certain reports compiled by Essex's social workers during the placement. Referring to one dated June 1996 A confirmed that they had problems that they did not tell the reviewers but more importantly that by then the male child had flooded the bathroom, was aggressive, played chicken-in-the-road and had been found at 5 a.m. by the postman. He also confirmed that he had "misgivings" by the time of the adoption orders and he felt there must be more information on the male child in Essex's possession. He said that his attitude at that time was that the male child was his son and he was going to "sort it". He also said "he was committed" by the time the children came to live with him but that if he had had the information before then he would not have gone ahead.

[80]I have already referred to A and B's evidence that if they had had the information identified prior to placement they would not have proceeded. B also said in evidence that if she had known that the male child had been assessed by a psychiatrist that would have led to her giving very serious consideration to the matter and she felt she would probably have rejected him even if that had occurred during the placement but that she would not have wished to give up the female child.

[81]In view of the above mentioned evidence it is clear that A and B soon came to realise that the male child presented serious behavioural problems which had not resolved during the fourteen months placement. They described some dramatic incidents and in particular A stated that they came to realise that the male child required 24 hour supervision and that his behaviour was "patently abnormal". Clearly they had been exposed to the male child's violent and destructive behaviour to such an extent that B had sought counselling because things seemed to be out of control. As A and B said, they did not know at this time that the male child's behaviour was part of his history, nor that he had been seen by a psychiatrist who had recommended child guidance. The fact remains that, as A made plain, he realised that there was more to the male child than met the eye and that Essex must have more information about him which up to the time of adoption, and despite his enlisting the help of his solicitor, he had not seen. Nevertheless, A and B proceeded with the adoption. The impression I gained from both of them but in particular A was that once the placement had occurred they felt emotionally and morally committed.

[82]Their present attitude, as powerfully expressed by A, was that they will never give up on the male child and will always "be there for him". They love him despite everything.

[83]Having considered all this evidence the conclusion I have come to is that, although they would probably have rejected the children before placement, they would not have done so afterwards and would have gone on to adopt them even if they had been successful in extracting the outstanding information about the male child. I cannot believe it would have come as a great surprise by the time they had lived with the male child for fourteen months and they proceeded with the adoption despite A's clear view that there was more information about the male child which they had not received, indeed, their solicitor told him as much. I do not doubt it would have annoyed them to learn that Essex had more information and I sympathise with and understand that. However, I find that it would simply have confirmed what, in substance, they had discovered for themselves. I find that during the 14 months placement A and B did come to know the substance of the information they had not previously been given. In my view the result of these findings is that any damage sustained by A and B after the adoption was not caused by Essex's breach of duty.

[84]The effect of all this on A and B's claim for damages is that they are entitled to damages for such injury, loss and damage that they may prove they sustained during the placement but not thereafter. That will be assessed at a further hearing, if the parties cannot come to terms. - 0 – 0 – 0 – 0 -

Cited in 1 later judgment

JD (FC) (Appellant) v. East Berkshire Community Health NHS Trust and others (Respondents) and two other actions (FC) 2005