TCD v Harrow Council & Ors [2008] EWHC 3048 (QB)

[2008] EWHC 3048 (QB)

Case No HQ06X03778

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

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

Date 10 December 2008

Before

THE HONOURABLE MR JUSTICE EADY

Between

TCDClaimant

(1) HARROW COUNCILDefendants

(2) WORCESTERSHIRE COUNTY COUNCILDefendant

(3) BIRMINGHAM CITY COUNCILDefendant

Elizabeth Anne Gumbel QC (instructed by Irwin Mitchell) for Claimant

Steven Ford (instructed by Browne Jacobson) for First Defendant

Patrick Blakesley (instructed by Vizards Wyeth) for Second Defendant

Edward Faulks QC and Nicholas Fewtrell (instructed by Birmingham City Council Legal Services) for Third Defendant

Hearing Hearing dates: 24 & 25 November 2008

Judgment

Mr Justice Eady :

The nature of the claim

[1]In these proceedings the Claimant, known as TCD, seeks remedies against three local authorities in respect of historic child abuse. She is now nearly 42 years of age and the allegations of abuse relate to the period between 1975 and 1981; that is to say, over the period when she ranged from 8 to 14 years of age.

[2]The First Defendant is the London Borough of Harrow, within whose jurisdiction the Claimant resided up to November 1977. Between about November 1977 and January 1979, she lived in Redditch, which falls within the area of the Second Defendant, Worcestershire County Council. Thereafter, from January 1979 to the end of the material period, in 1981, she lived within the purview of Birmingham City Council, which is the Third Defendant.

[3]The essence of the complaint is that the Claimant was allowed to live with a man called Dennis Hayes, together with one or other of his partners over the relevant period (each called Wendy), despite the fact that he had convictions for sexual offences going back to the early 1960s. In particular, so far as the records show, he had been convicted of indecently assaulting his mother, his sister and another 16-year-old girl. This would ordinarily ring warning bells.

[4]Hayes began assaulting the Claimant on her eighth birthday (28 January 1975) and pleaded guilty to indecent assault in December 1977 in the magistrates’ court. Extraordinarily, as it now seems, he was put on probation for two years and shortly thereafter returned to the family home. A few weeks later, however, Hayes left his wife to live with another woman by the name of Wendy Fisher in Birmingham. Over the following year or so, it appears that the Claimant stayed with Hayes and Wendy Fisher from time to time in the course of access visits until in February 1979 the Claimant went to live with them permanently – largely (as she told me) because she was treated kindly by Wendy Fisher. According to her recollection, the abuse was resumed almost immediately and she was later raped on a number of occasions. She finally plucked up courage and reported the matter in October 1981 whereupon, after considerable delay, he was convicted of rape in July 1982 following a contested hearing at which she had to give evidence before the court. On this occasion, Hayes was sentenced to five years’ imprisonment.

[5]The evidence shows that the Claimant suffered a great deal during her childhood and also, through the long-term consequences of abuse, well into her adult life.

[6]These proceedings began in December 2006 following an agreed “limitation holiday”. The evidence would appear to disclose a strongly arguable case to the effect that, at various times, each of these local authorities permitted her to have contact with Hayes, or to continue to live in his care, despite knowing of one or more of his convictions for indecent assault. Indeed, it seems clear that the Second and Third Defendants permitted her to have contact or reside with Hayes in the knowledge that he had pleaded guilty to indecently assaulting her.

The limitation issues

[7]The sole issue which I have to determine at this stage is whether or not the claims are statute barred. It is agreed that the material date for assessing when the Claimant acquired the relevant knowledge is in or about August 2002. It is necessary for me to consider the terms of sections 11, 14 and 33 of the Limitation Act 1980.

[8]The questions I have to decide are as follows: i) whether the Claimant had relevant knowledge for the purposes of s.14 of the Act; and ii) whether, if she did, the court’s unfettered discretion should be exercised to allow her to continue with these proceedings notwithstanding the expiry of the limitation period.

[9]The relevant provisions are as follows:

“s.11 (1) This section applies to any action for damages for negligence, nuisance or breach of duty … where damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person; … (3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) below; (4) … The period applicable is three years from: (a) the date on which the cause of action accrued; or (b) the date of knowledge (if later) of the person injured. s.14 (1) … In [section] 11 … of this Act references to a person’s date of knowledge are references to the date on which he first had knowledge of the following facts: (a) that the injury in question was significant; and (b) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and (c) the identity of the defendant; and (d) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant; and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant. (2) For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment. (3) For the purposes of this section the person’s knowledge includes knowledge which he might reasonably have been expected to acquire: (a) from facts observable or ascertainable by him; or (b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek; but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice. s.33 (1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which – (a) the provisions of section 11 [or 11A] or 12 of this Act prejudice the plaintiff or any person whom he represents; and (b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents; the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates. … (3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to – (a) the length of, and the reasons for, the delay on the part of the plaintiff; (b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 [by section 11A] or (as the case may be) by section 12; (c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant; (d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action; (e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant to which the injury was attributable, might be capable at that time of giving rise to an action for damages; (f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.” (a) the date on which the cause of action accrued; or (b) the date of knowledge (if later) of the person injured. (a) that the injury in question was significant; and (b) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and (c) the identity of the defendant; and (d) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant; and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant. (2) For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment. (a) from facts observable or ascertainable by him; or (b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek; but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice. (a) the provisions of section 11 [or 11A] or 12 of this Act prejudice the plaintiff or any person whom he represents; and (b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents; the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates. … (a) the length of, and the reasons for, the delay on the part of the plaintiff; (b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 [by section 11A] or (as the case may be) by section 12; (c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant; (d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action; (e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant to which the injury was attributable, might be capable at that time of giving rise to an action for damages; (f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.”

[10]So far as the law is concerned, counsel are agreed that the most important case to which I must have regard in the present context is the recent decision of the House of Lords in A v Hoare

[2008] 1 AC 844

. As often happens in cases of this kind, their Lordships were considering a number of conjoined appeals. The case most relevant to the present circumstances would appear to be Young v Catholic Care (Diocese of Leeds).

The issue of knowledge (actual and imputed)

[11]The first question is that of knowledge for the purposes of s.14. The critical question is what is the nature of the Claimant’s knowledge. Clearly the Claimant does not need to know the exact nature of the role of the local authorities in relation to child protection and welfare. She does not need to understand the law of negligence. The authorities make clear that she must be shown to have had knowledge of the factual allegations underlying her claim in respect of each of the Defendants. It is clear in this case that she knew that she was abused from the outset, on 28 January 1975, and that she was aware that what Hayes was doing to her was unlawful – certainly no later than her reporting the matter to the police and his being punished (albeit only by way of probation) in December 1977.

[12]The Claimant obviously was aware that she had not been taken into care or made the subject of a place of safety order until October 1981. But that is a neutral fact in this context, rather as the removal of the breast was of itself a neutral fact in Dobbie v Medway Health Authority

[1994] 1 WLR 1234

. The essential ingredient for knowledge in that case was that the medical team had removed a healthy breast. Here, correspondingly, it is necessary to show that the Claimant had at least some degree of awareness that the various local authorities would have had relevance to her plight by virtue of child welfare responsibilities; in other words, that it was at least possible that responsibility might be attributed to one or other of the three Defendants. No doubt each should be separately considered.

[13]In evidence, the Claimant was asked about her recollection, if any, of visits from social workers at various stages of her life. Not surprisingly, she had no recall of early visits as recorded, for example, in available documents from the First Defendant. Her only recollection of any interface with “authority” was with Hayes’ probation officer who, it seems, had a brief conversation with her towards the end of his two-year probation period (i.e. at the end of 1979). She had been put on the “at risk” register in July 1979, but her name was removed for reasons which are now unclear on 17 March 1980.

[14]The probation officer (Mr Thomas) wrote to a Mrs Wightman of the Third Defendant’s social services department on 29 November 1979, referring to the current “at risk” situation, as he put it, and recommending that “a divorce welfare supervision order should be requested” in view of the decree nisi (about to be pronounced that day) in anticipation of any custody and access issues that might arise. The purpose was to provide for statutory supervision and safeguard the Claimant’s welfare.

[15]On 3 November 1981, by which time it was too late, concern was expressed at a case conference at “the decision to remove [her] name from the Child Abuse Register in view of her father’s previous offences”.

[16]One basic fact which is not the subject of dispute is that the judge at the Crown Court trial in July 1982 was critical of the shortcomings in the discharge of the social services’ responsibilities in regard to the Claimant’s welfare. By this time, she was 15 years old. She described her own recollection of this, to the effect that the judge had been angry. What matters is the voicing of disapproval. That, at least, must have brought home to her that her unhappy circumstances could not be ascribed solely to Hayes’ misbehaviour, but rather that one or more of the various social services departments had also fallen down in their responsibilities.

[17]She could not be expected at the age of 15 to have taken responsibility for claiming redress against any of the local authorities. Indeed, she said in evidence that it was only recently that it occurred to her that the First and Second Defendants might be possible targets. She originally thought only of Birmingham, because she lived within that jurisdiction from the age of 12 onwards, during the period when sexual abuse was resumed and the rapes occurred.

[18]Nevertheless, by no later than the age of 15 she was aware of the child welfare responsibilities of local authorities, in broad terms, and yet put no complaint on the record against any of them until she was 37. I shall need to turn to the reasons given for this delay when I address the statutory jurisdiction under s.33, but for the moment all I need say is that the Claimant places considerable emphasis on the fact that she only discovered the extent of the Defendants’ knowledge of Hayes’ early convictions (those occurring in the 1960s) when she saw the written records some time after her solicitors’ complaint.

[19]Yet it is clear that she knew of the conviction for indecent assault, upon herself, in December 1977. That was a matter of public record and she must have been aware that it was information that should have been available to any social services department bearing responsibility for her welfare thereafter (such as those of the Second and Third Defendants). It is surely that stark fact which would ring the loudest warning bells, rather than the teenage offending against others (some 15 years earlier), unusual though it was.

[20]The Claimant’s state of knowledge, therefore, by the time she attained her majority on 28 January 1985 may be summarised, so far as is material, in the following terms: i) She had been abused from her eighth birthday by her adoptive father and later raped. ii) He had already been convicted of indecently assaulting her in December 1977. iii) The Claimant knew also at least of family rumours to the effect that Hayes had committed some form of sexual offence(s) in respect of other people before she had been abused. (In fact, as her letter of complaint seems to make clear, she was under the impression that he had committed one or more offences of indecent exposure. She was unaware that he had three convictions for indecent assault, including against his own mother and sister.) iv) The judge at the rape trial in 1982 highlighted the shortcomings of at least one social services department as to her protection and welfare. v) She had not been removed from Hayes’ care and placed in a safe environment until October 1981. vi) She was suffering continuing psychological trauma as a result of the abuse over a long period of time. vii) She knew that she had lived at various addresses and could have established, without difficulty, which were the relevant local authorities. (It was in 1985 that she was awarded compensation by the Criminal Injuries Compensation Board.)

[21]These in general terms are the factual allegations now forming the basis of the claims. In considering, for the purposes of s.14(3), any knowledge that should be imputed to the Claimant, it is now established that her psychological or mental state (which may have meant that she was “in denial” and/or could not face reliving her abuse for the purposes of a claim) should not be taken into account. That is a matter more appropriate to be addressed in the context of the s.33 discretion.

[22]Against that background, I can determine the first issue before me in favour of the Defendants; that is to say, I find that the Claimant was fixed with knowledge, at least from the time of attaining her majority, of the relevant facts for the purposes of s.14. It can safely be said that she knew enough to make it reasonable for her to begin to investigate whether or not she had a case against any of the relevant local authorities: see the observations of Hoffmann LJ in Broadly-Guy v Clapham

[1994] 4 All ER 439

, 449g.

The exercise of the court’s s.33 discretion: (1) Harrow Council

[23]In the context of the s.33 discretion, I turn first to the position of Harrow Council. If allowed to proceed, the claim against it would involve consideration of events between 1967 and 1977. There are some records available which demonstrate that when the Claimant was adopted in June 1972, by Mr and Mrs Hayes, not only was the First Defendant aware of the convictions ten years before, but also this information was before the court. Originally the claim had been put on the speculative basis that the council should have drawn the convictions to the attention of the court, but the stance had to be shifted once it became clear that the information had indeed been passed on. This emerged only in October 2007 when the Harrow Juvenile Court file was disclosed. This illustrates only too clearly the dangers of inviting inferences (or leaping to conclusions) on the basis of incomplete records.

[24]Now the criticism is made that the social workers should have pointed out the risks and/or recommended against the adoption. As early as May 1968 Mr and Mrs Hayes had been informed that their application to become foster parents in the Ealing Borough Council area had been rejected. Precisely why cannot now be determined, but there seems no reason to doubt that the convictions would have played at least a contributory part. On 4 January 1968 the children’s officer at Harrow (almost certainly Susan Boag) had informed an opposite number at Ealing (Mr Hurley) of the nature of the convictions. There is a written note within Harrow documents recording that “obviously this home is unusable” (i.e. apparently that the Hayes’ household was unsuitable for fostering because of the convictions for indecent assault).

[25]Despite these concerns, it seems that in December 1969 the Claimant (and her brother) went to live with Mr and Mrs Hayes by way of a family arrangement. There is a note of 20 October 1970 indicating that one of the Harrow child care officers, called Winifred Terrell, was informed of this by a Mr Collier of Watford Children’s Department. After a gap of over a year, in December 1971, Harrow received the application by Mr and Mrs Hayes to adopt both children. Meanwhile, rightly or wrongly, no attempt had been made to remove the Claimant to a place of safety or to take her into care. Despite the consent of the Claimant’s natural parents to the proposal, it was greeted with considerable scepticism within the Harrow Social Services Department. There is a written record of 21 December 1971 expressly raising the concern that Hayes might not “keep away” from the Claimant. The writer (Miss Murray) envisaged the scenario ten years hence, when she would be 14 years of age and Hayes, at 37, still at his “peak”. The significant observation was also made, “I cannot imagine any Judge granting this adoption”.

[26]One of the primary criticisms of the First Defendant relates to the lead up to the adoption formally granted on 7 June 1972, more than 36 years ago. In order to have a fair trial (which must be the paramount consideration) the Council needs to know what (if anything) it advised or recommended in relation to the adoption either from personal recollections or documentary records. If there is a strong prima facie case against it, on the basis of inference, it becomes all the more critical to be able to mount an explanation by way of defence. It is a question not only of establishing what was, or was not, done but also of assessing it against the standards of the time.

[27]It has become apparent from the contemporaneous court file that the court had a report from Harrow. Reference is made to it in the report of the guardian ad litem (a Mrs Welch, who had been appointed to act in that capacity on 25 April 1972). The content of that report could clearly be central to the resolution of the issue. It is at least possible that the missing report advised against the adoption (and that the court approved it nonetheless). That would be consistent with the comments of 21 December 1971. It would also be consistent with concerns expressed in reports prepared in connection with the adoption application and completed, respectively, on 17 and 21 January 1972. On 25 January Miss Murray had mentioned the concerns in a conversation with Mr Ashworth. He was a probation officer who acted as the Claimant’s guardian ad litem between 13 March and 25 April 1972. The missing Harrow report could thus well have been critical to the issues both of breach of duty and causation of damage.

[28]Research was carried out in order to establish whether, after all these years, any relevant witness remained available to offer any cogent recollection of those events. Not surprisingly, the answer is in the negative. Things might have been different if a claim had been launched (say) 20 years ago. One of the disadvantages from which the First Defendant suffers (unlike the Second and Third) is that running logs of the period are missing, which could be expected to record contact and contemporaneous assessment of the Claimant’s best interests.

[29]There is in my judgment very serious prejudice to the First Defendant brought about largely by the long delay. Indeed, I do not consider that a fair trial is possible. I need to turn next to the reasons given for the delay.

[30]First, it is said that the Claimant only relatively recently acquired information as to the state of the First Defendant’s knowledge of Hayes’ teenage convictions. But it is important to recall that the Claimant herself knew many years ago of at least rumours of Hayes’ involvement in early sexual offending and knew also, or at least could easily have established, that she was living as a child within the jurisdiction of Harrow Social Services Department.

[31]Secondly, it is said that the Claimant did not feel ready to confront the abuse to the extent that would be necessary for the purposes of litigation. There are, understandably, some aspects of the abuse that she is not prepared even now to confront. She cannot be criticised, still less blamed, for that. It cannot be a complete answer, however, and has to be seen against the background, as I have found, that it is no longer possible for the First Defendant to have a fair trial of the issues raised.

[32]More importantly, perhaps, all three Defendants rely on the explanation given by the Claimant to their own psychiatric expert (Professor Murphy); namely, that she wished to delay bringing proceedings until her children were old enough. Again, it is not a matter of criticism, but if this reason has accurately been attributed to her, it was a matter of personal judgment and choice, rather than something out of her control (such as lack of knowledge). It is to be assessed, not in isolation, but against the prejudice caused to the relevant defendant by the ensuing delay.

[33]As was observed by Lord Brown in A v Hoare, at [86], by no means everyone who brings a late claim for damages for sexual abuse, however genuine his or her complaint may be, can reasonably expect the court to exercise the s.33 discretion favourably. A fair trial (which must surely include a fair opportunity to investigate the allegations) is in many cases found to be quite simply impossible after a long delay.

[34]In some cases, of which Dobbie (cited above) is an example, the discretion may be exercised against the claimant after long delay, even though the facts may be largely undisputed and the available documents provide a full enough picture for a fair trial to take place. That is far from true in this case.

[35]Although the discretion is unfettered, and must be addressed in the light of all the individual circumstances of the case, the court should never lose sight of the public policy considerations underlying the legislative regime governing limitation periods. Public authorities, as well as commercial entities and individuals, should not remain exposed indefinitely to the threat of litigation based upon historic allegations. Fairness requires a balancing of all relevant factors and their interests have to be taken into account. There is a public interest in certainty and finality and such considerations must not be lightly discounted, especially not on the basis of sympathy for an individual litigant – even where there is, or might be, a strong case on liability and causation.

[36]No doubt most people involved in this case will feel disquiet and frustration as to the plight suffered by this Claimant over the years. Yet, when everything is taken into account as it must be, the conclusion has to be that there is no sufficient justification for imposing on this Defendant a trial relating to historic allegations in respect of which its information has been significantly depleted.

The exercise of the court’s s.33 discretion: (2) Worcestershire County Council

[37]I turn to the Second Defendant, Worcestershire, whose involvement with the Claimant came next in point of time, and was for a much shorter period. The point is made on its behalf that between November 1977 and February 1979 she lived in the same household as Hayes for no more than 33 days, although it seems that there were also fortnightly access visits.

[38]As with the case against the First Defendant, the basis on which liability against the Second Defendant is claimed has had to shift significantly. It was pleaded that it failed to protect her from abuse which continued during all the time she was living in the area of Worcestershire City Council. That is plainly unsustainable in the light of her own evidence. There was a hiatus between her reporting Hayes to the police in November 1977 and the resumption of abuse in or about February 1979. This illustrates, again, the speculative nature of the case when litigation was commenced.

[39]The records now available show that the Claimant’s interests were monitored regularly at this time.

[40]There would appear to be no significance in a recorded visit to her GP in July 1978. There was a diagnosis of thrush and no evidence to link it to sexual abuse.

[41]Nor is there any evidential basis on which it could be suggested that the Claimant should have been taken into care, whether because of ongoing abuse or for any other reason, during the short time for which the Second Defendant took responsibility.

[42]It would thus seem that the s.33 discretion needs to be addressed rather differently in relation to this Defendant. The submissions of Mr Blakesley on its behalf came close to applying the criterion normally associated with CPR Part 24. The emphasis was not so much on prejudice through inability to defend its position, but rather on the absence of a realistic prospect of success. There would be no point in dis-applying the limitation period because no case of negligence could be established on the available evidence. That is a perfectly sound argument.

[43]In the alternative, however, reliance is placed on evidence as to the very limited availability of the personnel involved 30 years ago. The only such witness would be likely to be Mrs Hooper, who only has a vague recollection of the Claimant. The Defendant would thus be at a significant disadvantage in seeking to identify or defend its child care policies and systems in operation at the relevant period. I regard this as more theoretical than real in this instance, since the primary case is powerful enough. There is no sufficient evidence of a breach of duty such that justice requires dis-application of the limitation period.

The exercise of the court’s s.33 discretion: (3) Birmingham City Council

[44]Finally, I need to address the position of Birmingham City Council in the period of February 1979 to October 1981. Here, it is accepted that the Claimant was abused and raped by Hayes and he was ultimately convicted of the relevant offences in July 1982.

[45]It could well be especially important to determine how the Claimant came to be placed on the “at risk” register in July 1979, how custody came to be awarded to Hayes in about January 1980, and then why she was removed from the “at risk” register two months later. The relevant events took place between 27 and 30 years ago. Here, the primary case is that she should have been removed from Hayes’ care and placed in care at some point significantly earlier than October 1981. The case is put high on the Claimant’s behalf, in that it is said that this Defendant never had any defence (knowing of Hayes’ proclivities). As I have already observed, where there appears to be a strong prima facie case against a defendant, particularly applying modern standards and criteria, it is all the more important that the defendant should have the opportunity of fully investigating the case and explaining its reasoning – especially in the context of child care thinking at the relevant time.

[46]The Third Defendant argues that a fair trial of the issues is no longer possible.

[47]One point taken is that if the claim had been brought at an earlier date, when the position was governed by the House of Lords decision in X v Bedfordshire County Council

[1995] 2 AC 633

, it would have been possible to succeed on the basis that no duty was owed to the Claimant. In that respect, of itself, the Third Defendant can be shown to have suffered prejudice. The position has changed subsequently in the light of the enactment of the Human Rights Act 1998. I do not need to decide that point in the circumstances of the present case.

[48]Another point taken by Mr Faulks QC, on Birmingham’s behalf, is that it remains the case that decisions whether or not to take children into care cannot be reviewed by way of a claim for negligence. On this basis, he argues that there is no cause of action. That he describes as the “core proposition” for which the X v Bedfordshire case still stands: see e.g. the remarks of Lord Phillips MR (giving the judgment of the Court) in D v East Berkshire Community NHS Trust

[2003] EWCA Civ 1151

at [49]:

“So far as child abuse cases are concerned, much of the reasoning advanced by Lord Browne-Wilkinson to justify holding that there was no duty of care was called into question. Lord Slynn in Barrett stated that Bedfordshire established that decisions by local authorities whether or not to take a child into care were not reviewable by way of a claim in negligence. We consider that the effect of Barrett and the other decisions that we have considered above is to restrict the effect of Bedfordshire to that core proposition.”

[49]Ms Gumbel QC on the Claimant’s behalf rejects this submission and argues that even that core proposition has been overtaken by events. Moreover, she submits that it is simply incompatible with another passage, at [84], in the same case, in the light of which Lord Phillips’ earlier observations have to be construed:

“It follows that it will no longer be legitimate to rule that, as a matter of law, no common law duty of care is owed to a child in relation to the investigation of suspected child abuse and the initiation and pursuit of care proceedings. It is possible that there will be factual situations where it is not fair, just or reasonable to impose a duty of care, but each case will fall to be determined on its individual facts.”

This would suggest that the law recognises that there may indeed be a legally recognised duty of care and the question will turn upon the facts of the particular case. I can see an apparent tension between the two passages and I will proceed on the assumption that Ms Gumbel’s interpretation is correct.

[50]It thus becomes necessary to consider whether a fair trial is still possible with regard to the allegations of breach on Birmingham’s part. In particular, Mr Faulks submits that it would be difficult now, if not impossible, to establish the policy climate in which child care decisions inevitably had to be taken at the time. He cites, by way of example, the strange fact (as it seems to modern minds) that even in 1985, when the Claimant attained her majority, allegations of sexual abuse were not among the national criteria for triggering a child protection case conference. Moreover, as is well known, a high priority was accorded generally in those days to the desirability of keeping families together.

[51]In themselves, of course, it is not difficult to establish these propositions. What may be more difficult is to determine what decisions were actually made in the particular historic case and how those decisions related to the contemporary policies and criteria.

[52]There is evidence as to the considerable efforts made to track down witnesses and documents. The upshot is that much has become untraceable.

[53]As I have said, custody was granted to Mr Hayes at the beginning of 1980. It would clearly be of importance to investigate how this came about and the role played by the social workers. One particular aspect of the case needs to be borne in mind; namely, that after the plea of guilty in December 1977 Mr Thomas (Hayes’ probation officer) played a significant part in monitoring him and his relationship with the Claimant. Indeed, I have already noted that he had a talk with her towards the end of 1979. The relationship, and relative responsibilities, between the probation service and the Third Defendant would need to be carefully probed in meeting allegations of negligence. In the light of the evidence, I have no doubt that the Birmingham team would be significantly hampered in their task through gaps in the documentation and lack of personnel. Again, I am afraid that a fair trial of the issues is not going to be possible after so many years.

Overall conclusion

[54]In these circumstances, I would decline to exercise the s.33 discretion in respect of any of the claims. I am naturally very sorry that this will be a disappointment to the Claimant after so much worry and stress, but I cannot believe it would be in the overall interests of justice to allow the matter to proceed.