L & Anor v Reading Borough Council & Ors Rev 1 [2006] EWHC 2449 (QB)

[2006] EWHC 2449 (QB)Case No S/06/0032
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 6 October 2006
(Amended 12 October 2006)
Before
MR JUSTICE KEITH
Between
(1) LClaimants(2) BClaimant(1) Reading Borough CouncilDefendants(2) Wokingham District CouncilDefendant(3) The Chief Constable of Thames Valley PoliceDefendant
Mr Nicholas Bowen (instructed by Gabb & Co.) for ClaimantsMr Andrew Miller (instructed by Watmores) for First and Second Defendants
Judgment

Introduction

[1]The claimants are father and daughter. The father was suspected of sexually abusing her when she was very young. He was not allowed to see her for many years. The allegation was later held to be unfounded, and in these proceedings damages are sought for the actions of the social workers and the police officers involved. An application has now been made to strike out some of the causes of action pleaded against some of the defendants, and this is the court’s judgment on that application. Although the application originally related to other causes of action pleaded against the first and second defendants, and sought summary judgment on those causes of action under rule 24.2 of the Civil Procedure Rules, the application is being pursued only in respect of two of the causes of action, and is being made only under rule 3.4(2)(a) of the Civil Procedure Rules, namely that the Re-amended Particulars of Claim disclose no reasonable grounds for bringing the claim in the sense that the facts asserted in them do not disclose legally recognisable claims against the first and second defendants on those two causes of action.[2]The application was issued on 30 January 2006, and on 6 March Master Rose ordered that it be heard by a judge. At the hearing of the application, I directed that nothing should be said or reported which would result in the daughter being identified. Accordingly, the daughter will be known as L, the father as B, and L’s mother as S. For the purposes of this application, the facts set out in the Re-amended Particulars of Claim are to be treated as correct, but it should, of course, be emphasised that no trial has yet taken place of the accuracy or otherwise of the allegations. Having said that, the Re-amended Particulars of Claim are not quite as clear as they might be in some respects, and I have had to make one or two assumptions about what is being alleged.

The assumed facts

[3]L was born in 1987. Her parents, S and B, were not married. In June 1988, the relationship between S and B broke down, and they went their separate ways. B used to see L every week until March 1989 when S stopped B seeing L. For three months B did not see L at all, but contact was resumed in June 1989, and from then until April 1990, he was allowed to see L irregularly. Despite the sporadic nature of their contact, they enjoyed an affectionate and companiable relationship.[4]In the early part of 1990, S became concerned that B may have been sexually abusing L. After discussing her concerns with her doctor and a health visitor, S got in touch with the Social Services Department of Berkshire County Council (“Berkshire”). As a result, L was interviewed by a social worker employed by Berkshire, Sandra Sullivan, and a police officer, WPC Grey, at her home on 10 April 1990. The interview was not video-recorded, nor were contemporaneous notes made of it by Ms Sullivan or WPC Grey. But L said things which made them think that B had sexually abused her, even though they were subsequently to accept that what L had told them had not amounted to evidence of sexual abuse.[5]Ms Sullivan and WPC Grey interviewed L again the following day. This time the interview was video-recorded. The claimants’ case is that the questioning of L was “outrageous and oppressive”, she was pestered and pressed until she became upset, she was exposed to a number of inappropriate sexual suggestions, but despite all that nothing was elicited which could have been described as evidence of sexual abuse. Specifically, L denied that a game she had played with her father, and which had led Ms Sullivan and WPC Grey to suspect sexual abuse, had been “naughty”, she said that she had played the game with her mother, and she said that B was not the only person she referred to as “Daddy”. That was what she called one of her mother’s boyfriends.[6]B was arrested following this interview. In the course of his interview, WPC Grey told him that the police had medical evidence that L had been sexually abused. That was untrue. Despite that, B denied having ever abused L. He was released without charge, but on 25 April 1990 Ms Sullivan attended a child protection case conference about L, at which she claimed that L had said things which could only have meant that fellatio had taken place. The Re-amended Particulars of Claim do not state whether she recommended that L be placed on the child protection register as a child who had suffered sexual abuse, but what is pleaded is that that was the consequence of Ms Sullivan’s claim that what L had said B had done amounted to fellatio. That decision was confirmed on subsequent occasions, and B was not allowed to see L. It looks as if it is being alleged that those decisions were based on the recommendations of the various social workers who were responsible for L’s case subsequently.[7]In due course, B issued an application for contact with L. That application was eventually consolidated with Berkshire’s application for a care or supervision order in respect of L. Those applications were considered by Judge Kenny in Reading County Court in 1993. He urged the social workers to “take a fresh look” at the case. Despite that, and despite the doubts expressed in the psychiatric evidence filed in those proceedings about the propriety of the actions of the social workers and whether B had indeed sexually abused L, it looks as if it is being alleged that the social workers continued to recommend the retention of L’s name on the child protection register. Eventually, following a lengthy hearing in 1995, Judge Kenny found that B had not sexually abused L in any way, and he made various orders intended to promote contact between L, B and B’s parents. Eventually, a full care order was made in favour of Berkshire so that L could receive such support and counselling as she needed. In October 1996, she went to live with B, and has lived with him and his new family ever since.

L’s attitude to these proceedings

[8]The proceedings were issued in 1998. L was only 11, and her father was her next friend (as a litigation friend was then called). Instructions to their solicitors were given by B. However, as L approached her 18th birthday in 2005, it was thought appropriate to ascertain from her whether she wished to continue to be a party to the litigation, and if so the extent to which she wished to participate in it. Her solicitor says that she confirmed that she wished to continue to be a party to the litigation, but that she wanted her father to continue to deal with it on her behalf. L herself has claimed that she informed her solicitor that she did not wish to continue to be a party to the litigation. Be that as it may, her solicitor accepts that she no longer wants to be a party to the litigation. He suspects that she may have been under some pressure from her mother to take that stance, but he acknowledges that that is her current state of mind. Accordingly, a notice of discontinuance was filed on her behalf on 2 June 2006. B has consented to her discontinuance as required by rule 38.2(c)(i) of the Civil Procedure Rules if the court’s permission to discontinue is to be dispensed with. Accordingly, B is now the only claimant.

The causes of action

[9]Since the issue of the proceedings, Reading Borough Council, the first defendant, has succeeded to Berkshire’s liabilities, and Wokingham District Council, the second defendant, has succeeded to the liabilities of the first defendant. Accordingly, Berkshire (which has ceased to exist) has dropped out of the proceedings, and Reading Borough Council and Wokingham District Council are now the two local authority defendants. The third defendant is the Chief Constable of Thames Valley Police, who is alleged to be responsible for the acts and omissions of WPC Grey.[10]For reasons which will become apparent shortly, the Chief Constable is not a party to the present application. It is therefore necessary to focus on the allegations pleaded against Berkshire and its staff, since the first and second defendants are the only parties making the present application. Three causes of action are pleaded against Berkshire and its staff:(i) Breach of the duty of care. Four social workers – Sandra Sullivan and three others – are alleged to have been in breach of the duty of care they owed to B to discharge their professional functions with the care which could reasonably be expected of a reasonably competent social worker. Ms Sullivan is alleged to have failed to question L properly at both interviews or to record her responses and demeanour during the first interview or to represent what L had said at both interviews accurately or to provide the appropriate information about L. In addition, she and the three other social workers are alleged to have failed to support contact between L and B if that had been possible, or to follow and apply the Council’s policies and guidelines relating to the assessment of allegations of sexual abuse and the making of recommendations to the Child Protection Committee. Berkshire is alleged to have been vicariously liable for all these breaches of duty.(ii) Misfeasance in a public office. Two aspects of the conduct of Ms Sullivan are alleged to have amounted to the deliberate, malicious and dishonest abuse of power on her part. They are her failure to correct WPC Grey’s statement to B at the second interview that the police had medical evidence that L had been sexually abused, and her misrepresentation at the child protection case conference of what L had said at both of the interviews by her and WPC Grey. Since Ms Sullivan has not been joined as a defendant, the allegation presumably is that Berkshire was vicariously liable for Ms Sullivan’s misfeasance in a public office, although that vicarious liability has not been pleaded.(iii) Conspiracy to injure. The allegation is that Ms Sullivan and WPC Grey conspired together to injure B by fabricating evidence of what L had said when she had been interviewed by them. The predominant purpose of that conspiracy was to harm B by getting him convicted in a criminal court or by obtaining a finding against him in a civil court that he had sexually abused L. Again, Berkshire’s vicarious liability for that conspiracy has not been pleaded, but that is presumably what is alleged.[11]The present application of the first and second defendants to strike out some of the causes of action pleaded in the Re-amended Particulars of Claim no longer relates to the causes of action alleging misfeasance in a public office or conspiracy to injure. Subject to one reservation, the present application relates only to the cause of action relating to Berkshire’s vicarious liability for the breach of the social workers’ duty of care owed to B. The one reservation is this. In addition to the duty of care owed by the social workers themselves for which Berkshire was vicariously liable, para. 43 of the Re-amended Particulars of Claim alleges that Berkshire owed a duty of care in its own right to B to take “reasonable care in the practical manner” in which its statutory functions under section 1(1) of the Child Care Act 1980 and the provisions of the Children Act 1989 were carried out. The nature of the duty of care is pleaded in paras. 44, 46 and 47 of the Re-amended Particulars of Claim. In short, it is alleged that Berkshire was obliged to put in place systems and policies which would ensure that allegations of sexual abuse were investigated competently, that staff were aware of the relevant local and national guidance, and that they were properly trained in their application. However, there is no allegation that Berkshire was in breach of this duty. To be precise, there is no allegation that Berkshire had failed to have such systems or policies in place, or that staff were not made aware of the relevant local and national guidance, or that they were not properly trained in their application. The breach of the duty of care pleaded in paras. 50 and 51 of the Re-amended Particulars of Claim relates only to the breaches by the social workers of the duty of care they owed to B for which Berkshire is alleged to have been vicariously liable. There is no allegation that Berkshire was in breach of the “direct” duty of care they are alleged to have owed to B. This does not appear to have been noticed before now. Para. 8 of the skeleton argument prepared by Mr Andrew Miller for the first and second defendants for the hearing of this application referred to para. 51 of the Re-amended Particulars of Claim as alleging breach of both the duties of care. No doubt that is why the first and second defendants are applying to strike out both causes of action relating to breach of duty.[12]Following the hearing, I sought counsel’s views on this issue. Mr Miller adopted my view that breach of the “direct” duty had not been pleaded. For his part, Mr Nicholas Bowen for B contended that breach of the “direct” duty of care was pleaded in para. 45. I disagree. Para. 45 is in part of the statement of case headed “duties of care [at] common law”. It identifies the nature of the duty, not the breach. So the words “[i]n the absence of a reasonable or indeed any” are not capable of meaning that Berkshire did not have such a system. They can only be treated as meaning that if Berkshire did not have such a system, the obligation of the social workers was to follow such other guidance as was available.[13]In addition, Mr Bowen made the point that the breach of the “direct” duty was intended to encapsulate the criticisms of Berkshire’s Social Services Department made in a report by an independent investigating officer under section 26 of the Children Act 1989. I have not read the report for the same reasons as the Court of Appeal when it was considering an appeal from an earlier decision in this case declined to read Judge Kenny’s judgment. An application to strike out a statement of case on the basis that it discloses no legally recognisable cause of action is to be decided on the statement of case alone, and not by reference to the evidence intended to prove the pleaded allegations. But no particulars are given of the investigating officer’s findings which are said to form the basis of the allegation of breach of the “direct” duty – leaving aside the fact that no criticisms are actually made in the Re-amended Particulars of Claim of the Social Services Department as opposed to the individual social workers. Mr Bowen has pointed out that Master Rose was not prepared to approve the Re-amended Particulars of Claim while it contained the evidence relied upon to prove any particulars of breach of the “direct” duty. That may be so, but that did not mean that breach of the “direct” duty could not be pleaded, and appropriate particulars given.[14]Mr Bowen prepared a form of amendment to para. 51 to cure this deficiency, but the draft which he has submitted fails to meet the nub of the criticism. It refers to the matters pleaded in paras. 20-35 and 45-46 of the Re-amended Particulars of Claim, but the matters pleaded in paras. 20-35 do not contain any criticism of the Social Services Department, the matters pleaded in para. 45 relate only to the duties of the social workers, and the matters pleaded in para. 46 relate to the nature of the “direct” duty owed by Berkshire, not its breach.[15]When a draft of this judgment was sent to counsel, Mr Bowen responded by making two points. First, he complained that he had not been given a proper opportunity to meet the court’s concern about the inadequacy of the pleading. This is not correct. When I sought counsel’s views on the issue, I specifically made the point that my view at that stage was that breach of the “direct” duty had not been pleaded. Mr Bowen attempted to cure the deficiency, but that attempt failed. Secondly, he argues that I have failed to give sufficient reasons for striking out the claim based on the breach of the “direct” duty. The answer is that there is no question of any liability arising from that cause of action – breach of the duty is a necessary pre-condition of liability, and that was not pleaded.

The position of the Chief Constable

[16]The same three causes of action are also pleaded against the Chief Constable. The torts of misfeasance in a public office and conspiracy to injure are pleaded in identical terms, and the Chief Constable is alleged to be vicariously liable under both section 19 of the Police Act 1964 and the common law for the breaches of the duty of care on the part of WPC Grey, which mirror the breaches of duty of care alleged against Ms Sullivan.[17]In December 1999, the Chief Constable issued an application to strike out. It is unclear whether the application was to strike out the Particulars of Claim under rule 3.4(2) of the Civil Procedure Rules or to strike out the claim under rule 24.2. But whatever the technical position was, the Chief Constable’s case – in part at least – was that it was not fair, just or reasonable for a duty of care to be imposed on a police officer in the position of WPC Grey. Goldring J decided that, had there been a sufficient degree of proximity between B and WPC Grey, B had a sufficient prospect of successfully establishing at trial that it was fair, just and reasonable for a duty of care to be imposed on WPC Grey for the claim to proceed. But be nevertheless struck out the claim against the Chief Constable on the ground that the doctrine of witness immunity applied to WPC Grey.[18]L and B appealed to the Court of Appeal against the striking out of the claim. The case is reported at [2001] 1 WLR 1575. The Court of Appeal allowed the appeal on the issue relating to witness immunity, and it concluded that B’s claim for breach of the duty of care to B should proceed. Its view was that there was a sufficient degree of proximity between B and WPC Grey (contrary to what Goldring J had concluded), but also (here agreeing with Goldring J) that whether it was fair, just and reasonable for a duty of care to be to be imposed on WPC Grey should be decided at the trial of the action when the balancing exercise between the interests of public policy and those considerations which supported the imposition of a duty of care could best be carried out.

Should the application be determined now?

[19]The first and second defendants claim that the legal landscape has changed since the Court of Appeal’s judgment. In particular, the House of Lords held in D v East Berkshire Community Health NHS Trust [2005] 2 AC 373 that it was not fair, just or reasonable for a duty of care to be owed by doctors and social workers to parents who were being investigated in cases of suspected child abuse. That is the basis on which the current application to strike out B’s claim against the first and second defendants for breach of duty is made. But before that question is addressed, it is necessary to deal with a point made by Mr Bowen, which is that this application should not be determined on its merits prior to the trial of the action.[20]At first sight, it is difficult to see the justification for taking that course. The application to strike out had been listed for hearing, skeleton arguments had been prepared, sufficient time had been reserved for the application to be fully argued, and I heard the arguments on their merits without prejudice to the contention that the determination of the application was premature. On the face of it, there was little to be gained by putting off the determination of the application until the trial of the action. The right course for B’s advisers to have taken would have been to ask for a short hearing before the judge in charge of the non-jury list to enable him to determine, well in advance of the hearing of the application to strike out on its merits, whether the hearing should proceed. It was no answer to that point for Mr Bowen to say that the effect of Master Rose’s order that the application to strike out should be heard by a judge meant that only the judge hearing the application on its merits could determine whether the application should be determined at the trial of the action. His order did not provide, whether expressly or impliedly, for anything of the sort.[21]Mr Bowen nevertheless contended that there was a significant disadvantage in determining the application now. There was a distinct possibility that there would be an appeal from whatever order was made on the application, and that would result in further delays in the trial of the action on top of the delays which have occurred so far. That additional delay will be avoided if the possibility of time spent pursuing an appeal can be discounted. I am wholly unpersuaded by this argument. There is no certainty that this judgment will be the subject of an appeal, but even if there is an appeal, the time which will be lost while the parties devote their energies to the preparation of the appeal will not be very much in the context of the time which has elapsed so far since the occurrence of the matters complained of. Moreover, it is far better for the parties to be able to prepare for the trial knowing the causes of action which can be pursued, and for claims which have no prospect of success to be disposed of before trial.[22]I acknowledge, of course, that the allegations of misfeasance in a public office and conspiracy to injure will have to be tried in any event. Nor have I overlooked that at present the allegation of breach of duty against the Chief Constable will have to be tried – though if the present application succeeds, he may wish to apply again to strike out the allegation of breach of duty against him, especially as I have been told that he intends to argue at trial that in any event the allegation of breach of duty cannot survive the decision of the House of Lords in Brooks v Commissioner of Police of the Metropolis [2005] 1 WLR 1495. It is true that the allegations of misfeasance and conspiracy are based on substantially the same facts as the allegation of breach of duty in connection with the questioning of L at the second interview and the misrepresentation of what she had said at both interviews. That means that much of the same evidence will have to be given whatever the outcome of the current application. But the whole complexion of the case will change if the allegations of breach of duty cannot be pursued. The allegations of misfeasance and conspiracy require proof of a high degree of culpability. To prove misfeasance in a public office, it must be shown that the defendant either intended to harm the claimant in some way, or knew that the claimant would probably be harmed in some way as a result of an act which the defendant knew he had no power to do. And to prove conspiracy to injure, it must be shown that when the defendant agreed to do the acts complained of, his intention was to harm the claimant in some way.[23]I should add that Mr Bowen argued that it was now too late for the first and second defendants to apply for the striking out of the allegations of breach of duty. This was an application which should have been made years ago. D may have represented an important clarification of the law, but he claimed that the law before D was even more favourable to the first and second defendants, and the decision of the House of Lords in X v Bedfordshire County Council [1995] 2 AC 663 would have supported an attempt to strike out L’s claim against the first and second defendants as well as B’s claim. And even if it had been appropriate for the first and second defendants to hold their fire while D was going through the courts, there would have been nothing to prevent the first and second defendants filing their application to strike out shortly after 31 July 2003 when the judgment of the Court of Appeal in D, reported at [2004] QB 558, and which the House of Lords was eventually to uphold, was handed down. These are telling points, but the application could only sensible have been made once the Particulars of Claim had been finalised, and they were only finalised when the Re-amended Particulars of Claim were served on 24 October 2005. In any event, it would be quite wrong to allow a claim to proceed – without considering on its merits an application to strike out the claim as disclosing no legally recognisable claim – simply because the application to strike out could have been issued earlier. After all, it is not as if this application was made when the trial was imminent and would have had the effect of putting the date which had been fixed for the trial in jeopardy. The trial was still some time off in January 2006 when the application to strike out was issued.[24]For these reasons, I do not think that the first and second defendants’ application to strike out B’s claim of breach of duty against them should be put off until the trial of the action. The application should be determined now, and I do so in this judgment.

The merits of the application to strike out

[25]In D, the House of Lords considered three cases in which the parents of young children had brought claims for damages for psychiatric injury after they had been suspected of and investigated for harming their children. In two of the cases, there had been a prolonged period of separation between parent and child. In all of the cases, the professionals included members of the medical profession, but in one of them a claim was brought in respect of the negligence of a social worker as well. That was why Lord Nicholls said at [53] that the appeals were concerned, not merely with whether doctors and health trusts were liable in damages to the parents, but also with “the liability of a local authority in respect of its investigation of suspected child abuse”. Neither Lord Nicholls nor Lord Rodger at [97] saw any difference in principle between the position of doctors and social workers.[26]The House of Lords held that it would not be right to impose a duty on the professionals, when they were investigating whether a child had been abused, to take account of the real risk that the parent might be harmed. The problem with the imposition of such a duty was expressed by Lord Rodger in this way at [110]:
“In considering whether it would be fair, just and reasonable to impose such a duty, a court has to have regard, however, to all the circumstances and, in particular, to the doctors’ admitted duty to the children. The duty to the children is simply to exercise reasonable care and skill in diagnosing and treating any condition from which they may be suffering. In carrying out that duty the doctors have regard only to the interests of the children. Suppose, however, that they were also under a duty to the parents not to cause them psychiatric harm by concluding that they might have abused their child. Then, in deciding how to proceed, the doctors would always have to take account of the risk that they might harm the parents in this way. There would be not one but two sets of interests to be considered. Acting on, or persisting in, a suspicion of abuse might well be reasonable when only the child’s interests were engaged, but unreasonable if the interests of the parents had also to be taken into account. Of its very nature, therefore, this kind of duty to the parents would cut across the duty of care to the children.”
Lord Rodger concluded at [111] that the appropriate response of the law should be to minimise the danger which arose when the professionals were confronted with this conflict of interest. Since the conventional wisdom was that the interests of the child must be put first in any case of suspected abuse, the conflict of interest would be minimised if the professionals did not owe a duty of care to the parents. Liability would arise, of course, if the professionals acted otherwise than in good faith, but not if they acted in good faith but carelessly. Similar reasoning informed the speeches of Lord Nicholls at [70-78] and Lord Brown at [132 and 137-138].[27]On what basis, then, is it said that the social workers for whom Berkshire were vicariously liable owed a duty of care to B in their investigation of S’s concerns that B may have sexually abused L? The answer lies in what Mr Bowen contends to be a critically important factual feature of the present case, namely that the allegations being made against the social workers relate to their operational competence, and not to any decisions which called for evaluation and judgement. Decisions about whether to intervene in a child’s upbringing, which may often be very finely balanced, have a strong element of subjective judgement, and social workers could well be influenced by the interests of the parent when deciding what is best for the child if a duty of care to the parent is imposed on them. But it is different when one looks at how a child is interviewed, whether (and if so, how) the child’s responses and demeanour are to be recorded, how those responses are to be relayed to those who have to make decisions about whether intervention is required, and what information is to be given to them. Though these functions are, of course, very important, they are simply operational functions, the proper performance of which are not affected in any way by the conflict of interest which the House of Lords was naturally keen to minimise.[28]I see the force of this argument, but I cannot go along with it. Its effect would be to impose a duty of care on social workers to the parents of children who are the subjects of investigation of abuse in respect of some aspects of the investigation and not others. The interviewing of the child, and the relaying of the contents of that interview, are just as much part of the investigation as the evaluation of that and other material to decide whether intervention is necessary. In AD v Bury Metropolitan Borough Council [2006] EWCA Civ 1 – in a passage which was quoted in one of the authorities cited to me, Lawrence v Pembrokeshire County Council [2006] EWHC 1029 (QB) at [25] – Wall LJ said at [30]:
“… it would, in my judgment, be both highly artificial and unprincipled if the protection afforded to social services and the doctors in the investigation of child abuse ceased (perhaps temporarily, or in relation to only… part of the investigation) when an interim care order was made, or otherwise where it might temporarily be argued that there was no actual conflict of interest between the parent and the local authority. In the context of a child abuse investigation, a duty of care cannot exist at one moment and then cease to exist in the next because of a shift in the factual matrix. It either exists throughout the investigation or it does not.”
By parity of reasoning, a duty of care cannot exist for some purposes in the course of an investigation into child abuse and cease to exist for other purposes because of a shift in the factual matrix. It either exists for all purposes in the investigation or for none. To hold otherwise would put social workers in an impossible position. They would have to assess in every case whether the particular function on which they were engaged at any one time was one which attracted the duty of care – in which case they would have to take the parents’ interests into account as well as the child’s – or whether the function was one which did not attract the duty of care. Assuming that they understood the test to be applied in deciding which functions fell on which side of the line, they may well be tempted to adopt an overly cautious stance in order to protect themselves against possible legal action. Indeed, it is noteworthy that the distinction between decisions which call for evaluation and judgement and the performance of purely operational functions was expressly disavowed by counsel for the parents in Lawrence at [26].[29]The validity of this distinction is further undermined by the facts in one of the cases decided along with D. In RK v Oldham NHS Trust, one of the allegations of negligence was that when the child was first taken to hospital, the medical staff failed to take an accurate history from the child’s parents and her grandmother. That feature of the case was specifically referred to by Lord Nicholls at [66]. That was a classic example of staff failing to perform an operational function carefully, and yet the House of Lords did not say that that allegation, assuming that a case for causation could be made out, could proceed to trial. It may be that the House of Lords was not expressly asked to consider whether there was a distinction between operational functions and decisions which call for evaluation and judgement, but it would be surprising if the distinction had passed them by altogether if it was arguably a valid one. Indeed, Lord Nicholls in Phelps v Hillington London Borough Council [2001] 2 AC 619 at p. 665E referred to the speech he had made in Stovin v Wise [1996] AC 923 in which he had cautioned against any attempt to draw a sharp-edged distinction between policy and operational decisions. It can, I think, be inferred that the reason why none of the members of the House of Lords in their speeches went into the facts in any detail is because they considered that a duty of care was not owed to parents in respect of any aspect of an investigation into the abuse of children.[30]In any event, if the allegations being made against the social workers who had responsibility for L’s case at various times are that they continued to recommend that she be kept on the child protection register, it is difficult to see how that cannot be characterised as a decision involving evaluation and judgement. They were having to make an assessment whether, in the light of Judge Kenny’s concerns, the evidence which suggested that L had been abused by D was as clear or as strong as it had appeared to be when L was first placed on the register.[31]A number of other arguments were deployed by Mr Bowen, but they were, on analysis, all variations on the same theme. For example, it may be that the social workers assumed responsibility for L, but that did not mean that they owed a duty of care to B. The arguments did not advance B’s case further, and it is unnecessary for me to address them.

Conclusion

[32]For these reasons, I have concluded that it would not be fair, just or reasonable to treat the social workers employed by Berkshire who handled the investigation of L’s alleged abuse at the hands of B as owing a duty of care to B in the conduct of the investigation. It follows that the cause of action alleging a breach of that duty is not a claim which the law recognises, and I direct that paras. 41-42, 44-45 and 51, together with the words “the vicarious and” in line 1 of para. 47, the words “of the Council pleaded at paragraph 43-4 and”, the words “paragraph 46(i)-(iv) and”, the words “Sandra Sullivan and” and the words “1st, 2nd and” in para. 50, of the Re-amended Particulars of Claim be struck out.[33]I do not at present strike out paras. 43 or 46, or the remainder of para. 47, because they relate to the “direct” duty of care. Mr Bowen may wish to apply to amend the Re-amended Particulars of Claim yet again to plead breaches of that duty, and he should have a final opportunity to do so. Such an application will have to be made quickly, and if no such application is made within 28 days, paras. 43 and 46, and the remainder of para. 47, will be struck out as well. It will be open to the first and second defendants to argue on that application that the amendment should not be allowed and that the remaining paragraphs should be struck out, on the basis that the “direct” duty of care was not owed to B. It would, of course, not have been right for me to address that question without there having been a properly pleaded case of breach.[34]When Master Rose ordered that this application be heard by a judge, he also ordered, subject to any order made by the judge, that the judge should give directions for the further conduct of the action. I have not heard submissions as to what orders should be made to progress the action, and I want to avoid the expense of the parties having to come to court when this judgment is handed down. In any event, Mr Bowen told me that the Chief Constable wished to be heard on the subject. Accordingly, I propose to leave it to Master Rose to make whatever directions are appropriate for the future conduct of the action in the light of this judgment at a hearing which all parties can attend. He too can decide what is an appropriate order to make on the discontinuance by L of her claim. Although Mr Bowen contended that the appropriate course was to make no order for the costs of her claim, Mr Miller did not address me on the topic, and in any event it would not be appropriate to deal with the issue without knowing what the Chief Constable’s position is.[35]Since I do not want to put the parties to the trouble of attending court when this judgment is handed down, I leave it to them to see if they can agree the costs of the application. If they cannot agree an appropriate order for costs within 14 days of the handing down of the judgment, they should refer the issue to me, and I will decide the appropriate order to make without a hearing on the basis of any written representations which are made. If B wishes to apply for permission to appeal, my clerk should be notified of that within 7 days of the handing down of this judgment, and I will consider that question as well without a hearing.