NXS v London Borough of Camden [2009] EWHC 1786 (QB)

[2009] EWHC 1786 (QB)Case No HQ07X02011
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16/07/2009
Before
THE HON. MRS JUSTICE SWIFT DBE
Between
NXSClaimantLondon Borough of CamdenDefendant
Ms Elizabeth Anne Gumbel QC (instructed by Irwin Mitchell LLP) for ClaimantMr Steven Ford (instructed by Browne Jacobson LLP) for DefendantHearing Hearing dates: 8-10 June 2009
Judgment
[1]An order pursuant to section 11 of the Contempt of Court Act 1981, CPR 5.4C and 39.2 and the inherent jurisdiction of the court, prohibiting publication of details revealing the claimant’s identity was made in this case by Master Yoxal on 22 May 2008. That order continues in force.[2]The claimant (known for the purposes of these proceedings as NXS) was born on 25 November 1975 and is now 33 years old. As a child, she lived in the area of the defendant authority. In 1989, she was taken into the defendant’s care. The claimant claims damages against the defendant in respect of personal injury alleged to have been suffered by her as a result of the defendant’s negligent failure to protect her from abuse by her earlier removal into care.

Brief summary

[3]During the period from her birth on 25 November 1975 until February 1977, the claimant lived with her mother, Miss P, her grandmother, Mrs P, and a number of Miss P’s siblings. The Social Services Department of the defendant was involved in supporting the family at that time. There were concerns about the claimant’s safety and welfare. After February 1977, the claimant and Miss P lived mainly at addresses separate from the rest of the family. It seems that the defendant remained in contact with them for some time after February 1977 but that contact ceased before 1989.[4]In March 1989, following an admission to the Royal Free Hospital (RFH), concern was expressed about possible emotional abuse of the claimant by her mother. Concerns were heightened in April 1989 when Miss P’s sister, AB, made a complaint to the National Society for the Prevention of Cruelty to Children (NSPCC), about an incident when Miss P had bitten the claimant. She alleged that the claimant had been physically abused by Miss P for years. On 4 May 1989, the claimant was placed on the Child Protection (CP) Register (in earlier times known variously as the Non Accidental Injury (NAI) Register or the At Risk Register). Matters came to a head in November 1989 when Miss P took the claimant to a police station, saying that she could no longer cope with her. The claimant was taken into voluntary care and remained in care until she attained the age of 18 years in November 1993.[5]In 2004, the claimant made a complaint to the police about Miss P’s ill-treatment of her. A prosecution followed as a result of which, on 13 June 2005, Miss P pleaded guilty to an offence of child neglect relating to her treatment of the claimant between November 1975 and November 1990. On 15 July 2005, she was sentenced to a two year Community Rehabilitation Order. The claimant commenced these proceedings on 23 May 2008. The issues Breach of duty

The issues

[6]Since the decision of the Court of Appeal in JD and Others v East Berkshire NHS Trust and Others [2003] Lloyds Law Rep Med 552, it has been well established that a local authority which carries out investigations into suspected child abuse owes a duty of care to a child who is potentially at risk. In this case, it is accepted that the defendant owed a duty of care to the claimant, which included a duty to take reasonable steps to avoid or prevent her from suffering personal injury. It is further admitted that professional employees of the defendant owed the claimant a similar duty for which the defendant is vicariously liable.[7]It is accepted also that the standard of care was that set out in the case of Bolam v Friern Hospital Management Committee [1957]1WLR 582, i.e. the practice of a reasonably competent Social Services Department or social worker, judged by the professional standards prevailing at the material time.[8]It is further accepted by the defendant that, if the available documents relating to its contact with the claimant and Miss P between the claimant’s birth and February 1977 are a full and accurate reflection of the defendant’s involvement in the claimant’s case, the standard of care provided to the claimant fell below the accepted standard. The majority of the contemporaneous documents (including a running record of contact with the family) were contained in what has been termed the “family file” covering the period from July 1974 until July 1987. The defendant contends that there must have been further documents which are not now available and that, because they are not available, I can draw no conclusions about the adequacy of the care provided during this period. For the claimant, it is not accepted that there were any further documents. In any event, it is contended that, whatever documents originally existed, they could not alter the fact that the defendant took no steps to remove the claimant from Miss P’s care and were thereby negligent.[9]Very few documents relating to Miss P and the claimant are available for the period from February 1977 until 1989. It is common ground that there was a file dealing with their case which has since been lost. The defendant maintains that, in the absence of the relevant documents, no conclusions can be drawn as to the quality of monitoring during this period. The claimant contends that, had the defendant been carrying out competent and adequate monitoring, it would have known that the claimant was being physically and emotionally (and possibly also sexually) abused and (if it had not done so before) should have taken steps to remove her from her home. Since the defendant did not do so, its care must have fallen below the required standard.[10]The Particulars of Claim contain allegations of negligence relating to the care provided to the claimant from 1989 onwards. These have not been pursued, it being agreed that they were not causative of any harm over and above that which the claimant had already suffered by 1989.

Factual Causation

[11]The claimant contends that, but for the defendant’s breach of duty, she would have been removed from Miss P’s care in 1976 or shortly thereafter and would thus have been spared the abuse she suffered subsequently. The defendant disputes that removal from home would have been the inevitable outcome of a proper standard of care.

Injury

[12]It is accepted by the defendant that the claimant was physically assaulted and emotionally neglected by her mother. It is not accepted (although not denied) that the claimant suffered the sexual abuse she now alleges. The consultant psychiatrists instructed by both parties for the purposes of these proceedings agree that she suffers from an emotionally unstable personality disorder and dependence on drugs to which the physical and emotional abuse contributed. Their opinions as to the severity of the disorder and the extent of the contribution made by the abuse are somewhat different. Limitation[13]It is agreed that the claim was commenced outside the primary limitation period and is therefore prima facie statute-barred. The claimant asks the court to exercise its discretion under section 33 of the Limitation Act 1980 (the 1980 Act) to allow the claim to proceed. The defendant contends that, having regard in particular to the absence of the documents previously referred to and the unavailability of relevant witnesses (in particular the social worker responsible for the family between November 1975 and February 1977) it is impossible for there to be a fair trial, as a result of which the defendant would be grossly prejudiced if the court were to exercise its discretion under section 33 of the 1980 Act.

Quantum

[14]Notwithstanding the differences between the consultant psychiatrists, and in the event that the claimant establishes breach of duty and factual causation and surmounts the limitation hurdle, the parties agree that, as a result of the abuse, she suffered personal injury for which the reasonable assessment of damages is the sum of £60,000.

The history

[15]The history of events which follows is taken from the defendant’s documents.

The family

[16]Miss P’s family was well known to the defendant’s Social Service Department before the claimant’s birth.[17]In the early 1960s, there had been child protection issues relating to one of Miss P’s brothers, G, who was known to have sexually abused his siblings. In 1965, G, who was then 17, was in a Remand Centre in connection with that abuse. An Intermediate Case Conference was held which resolved to inform the psychiatrist in charge at the Centre that it was essential that G did not return home at that time, no doubt because of the continuing risk he would pose to his siblings.[18]There was further involvement with the family in the early 1970s. The family file contains a running record of contact with the family made by Faith Coller, the designated social worker. The available documents date from July 1974. At that time, the defendant’s intervention was mainly directed at giving general support to Mrs P, who had a large number of children (probably 11, although there are inconsistencies in the documents). She was a widow who suffered from poor health and had difficulty coping with her children, some of whom had physical and/or mental problems. Several of her adult children, as well as the younger ones, were still living with her. As a consequence, her flat was overcrowded and there were constant financial difficulties. There were constant arguments, sometimes erupting into violence. Miss P had left home by 1974, by which time she was 18 years old and was working. At that time, Mrs P was having difficulties with her teenage daughter, AB, who was somewhat rebellious and constantly at odds with her mother.

The claimant’s birth

[19]On 25 November 1975, Miss P gave birth to the claimant. Later entries in the records suggest that she had spent the previous two or three months living with the baby’s father, LS, who lived very close to Mrs P’s flat. This arrangement ended because the couple were always arguing and Miss P moved back to live with her mother. LS was considerably older than Miss P (he was about 40 years old) and was said by Mrs P to have “raped” Miss P, as a result of which she became pregnant. 1976[20]The first reference to the claimant in the running record was in an entry dated 4 February 1976, reporting that Miss P’s sister, AB, had told her boyfriend’s social worker that she and Mrs P were worried about Miss P who was getting “very frustrated” with the claimant and “sometimes hits her and bites her”. At that time, the claimant was just ten weeks old. Miss Coller telephoned the Family Health Clinic at Gospel Oak attended by Miss P. She was told by Mrs Newman, Nursing Officer at the Clinic, that Miss P took the claimant there regularly. The staff were not aware of anything worrying but would keep their eye on the situation.[21]On 12 February 1976, Miss Coller visited Mrs P. Mrs P said that Miss P did get frustrated with the baby sometimes and had been known to slap her. However, she was “not unduly worried”. Mrs P was putting pressure on Miss P to move out of her house. Currently, Miss P and the claimant were sleeping in the same room as Miss P’s two youngest sisters who were still of school age.[22]On 24 February 1976, Miss Coller received an urgent message to telephone Mrs P because Miss P was behaving violently towards her and the claimant. Mrs P said that Miss P was slapping the claimant. She told Miss Coller that something must be done and Miss P must leave the flat although she doubted whether she would leave voluntarily. Miss Coller responded that she could do nothing about finding Miss P alternative housing unless Miss P asked her to do so. She noted that Mrs P “really has it in for” Miss P. Mrs P was alleging that “A” (presumably Miss P) had kicked her on the knee, as a result of which she was unable to walk.[23]The next entry in the running record is dated 14 March 1976. It begins, “I have visited twice since last entry.” (There are no separate entries in relation to those visits although it seems likely that one of them took place on 11 March 1976, since a visit by Miss Coller on that date is recorded in the entry for 14 March 2006.) The entry records that Miss Jones, the Health Visitor, had managed to visit and see the baby who was not marked in any way. The entry goes on to record that Miss P admitted “slapping the baby sometimes”. Mrs P seemed less anxious about it than “the younger girls”.[24]The entry continued by describing the visit on 11 March 1976. On that occasion, Miss Coller was able to talk to Miss P and see the claimant. She recorded that Miss Jones had seen the claimant undressed earlier that day and that there had been no signs of bruising. (It is not clear whether this was the same or a different visit to that previously mentioned.) Miss Coller recorded that Miss P presented as an “attractive and quite pleasant girl” but that she “does not seem to have much real concern for the baby”. She related how the claimant had been “somewhat monopolised” by a young woman called C, who was known to have been unable to cope with her own child at the same age. C was apparently acting as a child minder for the claimant by private arrangement with Miss P. C’s social worker, Jenny Benjamin, was said to be keeping an eye on the arrangement. Miss P told Miss Coller that she was not working (observing “Why should I?”) and made clear to Miss Coller that she would not agree to be re-housed unless she was offered “the best”. Otherwise she was prepared to stay where she was and aggravate her mother. She did however agree to complete an application for re-housing and for a place at day nursery for the claimant. Miss Coller expressed the fear that Mrs P might provoke Miss P into violent behaviour.[25]The next entry appears to be dated 5 March 1976, although it plainly post-dated the discussions with Miss P on 11 March 1976. Its correct date may be 15 March 1976 (i.e. the day after the previous entry). The entry records that Miss P went to Miss Coller’s office, where she completed application forms for re-housing and a day nursery place. Miss Coller recorded that, while she and Miss P were completing the application for a nursery place, Miss P said “archly”, “I’m a baby batterer – that’s what you are all thinking aren’t you?”. Miss Coller asked her if she thought that she was in danger of harming the claimant, to which Miss P replied, “I slap her but I couldn’t hurt her badly or I shouldn’t have said that about being a baby batterer”. Miss Coller went on to record:
“We agreed the circumstances at home were very difficult and that she’d feel less angry if she had her own home and help with the baby’s care. She agreed, but she only wants Gospel Oak Nursery, and she only wants to live in this part of Camden, and she wants a decent flat not old property etc. I told her that if she was too particular as to area, it would take much longer to house her.”
[26]On 5 April 1976, the defendant’s Duty Officer noted a telephone message from Miss Jones, Health Visitor. Mrs P’s [presumably Miss P’s] mother had telephoned to say that her daughter was hitting the claimant. Miss Jones had apparently felt that this was “not serious” but that she ought to let Social Services know.[27]The following day, Miss Coller was on leave. Her Team Leader, Olive O’Kelly, spoke to Miss Jones and to Mrs P. The claimant was at C’s home. Miss Benjamin visited and saw the claimant undressed. She had no marks and was said to present as a “normal happy baby”.[28]On returning after her period of leave, Miss Coller made an undated note recording that, whilst she had been on leave, there had been a report of a violent scene at night during which the claimant had been struck by one of Miss P’s brothers. Miss Benjamin had visited the flat and Miss P had requested that the claimant be taken into care. Miss Benjamin was considering placing the baby in foster care until Miss P was re-housed. It had been suggested to Miss P that she and the baby should attend a day nursery where support for mothers was available and where an assessment of her ability to care for the claimant could be undertaken. Alternatively, it had been suggested that both Miss P and the claimant should be placed with a foster mother. Miss P had rejected both these suggestions. The matter had been left in abeyance until Miss Coller’s return.[29]On 15 April 1976, Miss P attended Miss Coller’s office. Miss Coller’s note stated:
“We discussed the whole question of [theclaimant’s] reception into care; what this could mean for [the claimant] especially if the period till re-housing was very long and with the danger [of] the mother/child relationship being damaged; the uncertainty of the surroundings and child’s future when placed under these circumstances. [Miss P] sensed I might be trying to dissuade her and said so adding “I’m only asking for the baby to be f--cking fostered”, and later “All right then don’t take her and it’ll be your fault if she gets hurt”
. At the same time she had said earlier she did not think [the claimant] was in any danger and when I reminded her of this she repeated this but insisted she didn’t want the baby to remain in the atmosphere of violence at home”.[30]Miss P and Miss Coller completed the forms for fostering although Miss Coller made clear she could make no commitment until the issue had been discussed at a higher level.[31]Easter then intervened. The following week, on 21 April 1976, Miss Coller discussed the situation with Mrs O’Kelly. Mrs O’Kelly pointed out the “pitfalls” of the defendant receiving the claimant into care and finding itself “stuck” if the mother disappeared and no plans about the child’s future had been agreed. Miss Coller went on to note: “On the other hand, if one is concerned enough about the violence at home one has to weigh up the pro’s and con’s”.[32]Miss Coller and Mrs O’Kelly had agreed that the presence of Miss P and the claimant was adding to an “already explosive” family situation. Thus, they should be removed from the flat although there was real doubt as to Miss P’s ability to manage unsupported. There was also doubt as to her feelings for the baby. They suspected that she was extremely manipulative and could be using the claimant for her own ends (i.e. to get a flat of her own) without really wanting the trouble of caring for the claimant. Miss Benjamin had told them that C’s impression was that Miss P did not want the baby and she had heard her say as much. She had said that Miss P hardly involved herself in the care of the claimant at all. Miss Coller and Mrs O’Kelly also agreed that it would be valuable to get some assessment of Miss P’s abilities as a mother and of her interest in the claimant by insisting on her involving herself in the baby’s care while with a foster mother. Whether or not she would be re-housed would depend a great deal on the result of this assessment.[33]On 26 April 1976, Miss P telephoned Miss Coller to ask if there was any news. She told Miss Coller that there had been a fight at her mother’s flat the previous day and that the police had been called. Miss Coller telephoned Mrs P to find out what had happened. Mrs P told Miss Coller that Miss P and one of her sisters had been fighting while Mrs P was holding the claimant. The fight ended with Miss P snatching the claimant from Mrs P and slapping her hard. Miss P’s sister had telephoned the police who had attended and seen that the claimant had a black eye. (AB gave oral evidence about this incident: see paragraph 144 of this judgment). Mrs P told Miss Coller that she wanted Miss P out of her flat. She doubted whether Miss P wanted the claimant. She said that, the previous weekend, she had heard Miss P telling the baby, “Only a few weeks now and I’ll be free of you. I’ll be away sun bathing”. Mrs P told Miss Coller that hardly a day passed when Miss P did not strike the baby. Following that conversation, Miss Coller spoke to the police who confirmed their attendance the previous day and told her that they would be submitting a report about the incident.[34]Miss Coller noted that, before the report of this latest incident, she had spoken to the Assistant Director of Social Services who had felt that the defendant had gone too far with its discussions with Miss P not to go ahead and foster the claimant. He had stressed that efforts should be made to involve Miss P as much possible and to assess her feelings for the baby. He had also commented that special housing for Miss P and the claimant would be difficult to obtain unless the defendant could say that they were satisfied Miss P was likely to keep the claimant.[35]By 29 April, 1976, a potential foster home for the claimant had been identified. It was situated some distance away from Miss P’s home. After discussions between Miss Coller, Mrs O’Kelly and others, it was decided that, if Miss P did not accept the offer of the foster home, a Place of Safety Order (PSO) would have to be sought the following day, a Friday. Miss Coller spoke to Mrs Newman, Nursing Officer at the Family Health Clinic, Gospel Oak, and told her what had been planned. She had known the family for many years and told Miss Coller that she strongly suspected Miss P of using the baby for her own ends. She believed that it might help Miss P to clarify her feelings about the baby if she was removed some distance away.[36]Miss Coller went to visit Miss P the same day. She saw her with the baby and observed that she was playing “quite sweetly” with her. She saw what looked like a “fading bruise” over the baby’s right eye and a mark at the top of her left cheek where the skin was punctured with small regular pin points at a distance of about one cm square. She asked what had caused the mark but Miss P said that she did not know. (The claimant was later to allege that she had frequently been struck by her mother with a “spiky” hairbrush.) Miss P refused the offer of the foster home. Miss Coller told her that, because of the events of the previous few weeks, the defendant may have to remove the claimant from the household. At that, Miss P became very angry and asked why she could not be re-housed. Miss Coller reminded her that she herself had requested that the claimant should be fostered because of the violence in her current home. Miss P said that she was now withdrawing that request. Miss Coller told Miss P that she would much prefer not have to obtain a care order and mentioned that there was one other possibility of a local foster home which could be explored. Miss P did not reject that suggestion out of hand.[37]On 30 April 1976 (a Friday), Miss Coller recorded that she had told Mrs O’Kelly of the previous evening’s interview and Miss P’s refusal of the foster home. Mrs O’Kelly had expressed the view that action must be taken before the weekend.[38]Accordingly, on the afternoon of 30 April, 1976, Miss Coller collected the claimant from C, who had been minding her, and took her to the Accident and Emergency Department at the RFH for medical examination. A record of the admission and the events that followed was made by Christine Tolaini, a social worker employed by the defendant and based at the RFH. She recorded that the claimant was “possibly at risk from mother”. The paediatric registrar on duty, Dr Hardy, recorded a fading bruise on the claimant’s forehead and some “prickle like marks” on her face which could have been caused by rough use of a hairbrush. Miss Coller had told Dr Hardy that, the previous weekend, Miss P had admitted to the police that she had struck the baby once. She had explained the family circumstances and it had been arranged that the claimant would be admitted to the paediatric ward, although there were no medical reasons for doing so. At that point Miss Coller had left, explaining that she had hoped to obtain a PSO.[39]Ms Tolaini recorded that, later, Miss P had come to the ward with LS. They demanded aggressively to take the child out of hospital. In the absence of a PSO, the medical staff had no grounds for refusing their demands. The best that they could do was to obtain Miss P’s agreement to bring the baby to the Hospital Clinic the following Monday morning. In a discharge summary sent to the claimant’s General Practitioner (GP), Dr Hardy described the claimant as “very happy”. He remarked that Miss P was “somewhat ambivalent” about the prospect of being re-housed away from the rest of the family.[40]On Monday, 3 May 1976, Ms Tolaini spoke to Mrs O’Kelly about the case. Mrs O’Kelly told her that Miss P was now accusing C of causing the bruising and the prickle marks on the claimant’s face. Ms Tolaini went on to record: “Faith Coller had been sufficiently anxious about the possibility of another aggressive incident occurring over the weekend 1st/2nd May that she had collected the child from the child minder on Friday pm. However, having left the child at RFH, she was not able to obtain a Place of Safety Order from the Magistrate…as he felt that there were insufficient grounds. It was most unfortunate that Faith had not communicated this to the paediatric ward. (The whole question of the magistrate’s decision and the basis of bringing the child to the hospital is being considered by Area 4, Kate Atherton and possibly Leo Goodman as Assistant Director.)”.[41]Ms Tolaini’s note indicated that, while she was speaking to Mrs O’Kelly, she was informed by Dr Hardy that Miss P had brought the claimant to the Clinic. He asked whether it was safe to let her and the claimant leave the hospital after the claimant had been examined. Mrs O’Kelly asked Ms Tolaini whether the hospital staff could find out where Miss P was taking the baby. She said that the best plan would be to arrange for a daily visit from Miss Coller. When Dr Hardy returned to the Clinic, he found that Miss P had become tired of waiting and had left. This was reported to Mrs O’Kelly who observed that this was in keeping with Miss P’s “typical impulsive behaviour”. Dr Hardy agreed to write to Miss P and offer the claimant another appointment at the Clinic. Ms Tolaini noted that the defendant should be informed of any further contact with Miss P and the claimant.[42]Later on 3 May 1976, a doctor who worked at the Family Health Clinic, Gospel Oak, informed Miss Coller that Miss P had taken the claimant to the Clinic for her inoculation. The baby had been examined and was “perfectly healthy and unmarked”.[43]Also on 3 May 1976, the defendant wrote to the Claimant’s GP, informing him that the claimant might be at risk, asking him for any relevant information about the claimant’s family and requesting him to contact the Social Services Department if he had any concerns about the claimant’s home situation in the future.[44]Miss P telephoned Miss Coller on 10 May 1976. It is clear from the note Miss Coller made following that conversation that she did not know where Miss P and the claimant were living at that time and that no one from the defendant’s Social Services Department had visited Mrs P’s flat during the preceding week.[45]On 25 May 1976, Miss P telephoned Miss Coller by arrangement. Miss Coller informed Miss P that there was a vacancy at a day nursery for the claimant although, because of the staffing situation, Miss P would have to spend most of her time there looking after the baby. Miss P did not like the idea of this. She said that she would be “bored hanging around there with little to do there most of the time. She preferred to be free to go round to a girlfriend’s house in the day time”. She told Miss Coller that she did not leave the baby with anyone else now - or not much. It seems that there were some concerns about LS. Miss Coller recorded that she suspected that Miss P visited LS quite often although she had denied that he made any contribution towards the claimant’s care except for her clothes occasionally. Miss P had assured her that she had no intention of living with LS in the future. During the conversation she observed that the fuss she had made when the defendant “kidnapped the baby” (referring to the incident on 30 April 1976) should convince the defendant how much she wanted to keep the claimant.[46]Later that same day Miss Coller and two colleagues discussed the possibility of obtaining special housing for Miss P and the claimant. One of Miss Coller’s colleagues expressed doubt about Miss P’s ability to care for the claimant adequately if she were living on her own. Notwithstanding those doubts, Miss Coller completed the necessary documentation in an attempt to get special housing for Miss P.[47]On 15 June 1976, Miss Coller made the following note:
“NAI see review passed to Hugh Toomey”
. I shall refer to the possible significance of that entry later in this judgment .[48]On 17 July 1976, Miss Coller visited Miss P at home. Miss Coller did not see the claimant since Miss P was waiting for a friend, who had been looking after her, to bring her back. She told Miss Coller that the claimant was well. She was pleased that an application had been made for special housing but was very specific about the accommodation she wanted.[49]During the evening of 13 August 1976, Miss P and her sister, AB, took the claimant to the Accident Unit at the RFH. The claimant had a bruise on her right cheek. The two women gave conflicting accounts to the doctor on duty. Miss P (who had a black eye) said that she had been walking in the street holding the claimant when LS attacked her, accidentally hitting the claimant on the cheek. AB told the doctor that she had been holding the baby when her boyfriend attempted to punch her but hit the baby by mistake. The injury to the claimant was found to be “very slight” and in every other respect the claimant was well. Nevertheless, she was admitted to the paediatric ward. RFH staff contacted the defendant’s Duty Officer who went to the Hospital and agreed to obtain a PSO for three days. This was done.[50]On Monday, 16 August 1976, Ms Tolaini telephoned Miss Coller to tell her what had happened. Before taking any decision about what to do, Miss Coller went to visit the family. Meanwhile, Miss P and LS arrived at the RFH, demanding to take the claimant home. LS adopted a conciliatory attitude. However, when the existence and effect of the PSO (which was still in force) was explained to Miss P, she “flared up and started to swear about the hospital”. LS told her to be quiet and behave herself and she eventually agreed to return home and wait for Miss Coller to visit.[51]Miss Coller visited that afternoon. Miss P told her that, the previous Friday, she had been sitting on a wall in the street with AB and the claimant. LS drew up in his car and proceeded to assault her. (Apparently, he was angry because, in a fit of jealousy, she had reported to the police that he was in possession of some stolen goods.) Miss P explained that she and AB had called the police who had suggested that they should go to hospital so that the injuries sustained by the claimant and herself could be examined and recorded. Miss P said that, after waiting at the hospital for about ten minutes, she had become “fed up” and upset so she went home, leaving AB to take the claimant in to see the doctor. Miss P believed that AB must have pretended to the doctor that she was the baby’s mother and told him that it was she who had been assaulted by her boyfriend. Miss Coller noted that this “seemed a perfectly reasonable explanation”. She insisted on seeing LS who confirmed that he had lost his temper and assaulted Miss P. He said that he was not aware of the claimant having been hurt in any way by his action but conceded that it was possible that the baby had been “bumped” although neither he nor Miss P had realised it at the time.[52]Miss Coller discussed the matter with a doctor at the RFH who “agreed there was no serious harm done” to the claimant. She then discussed the situation with Mrs O’Kelly. Afterwards, she telephoned Ms Tolaini to say that Miss P could be permitted to remove the claimant from the RFH. She told Ms Tolaini that the family had now explained the incident satisfactorily. She described their behaviour (presumably that of Miss P and LS) as “very much part of a general aggressive pattern in the family”. Miss Coller told Ms Tolaini that she intended to renew her efforts to re-house Miss P and the claimant away from the family home which was very overcrowded with a tense atmosphere (although she observed that the arrangement did have the advantage that the extended family helped in caring for the claimant). Ms Tolaini recorded that, when Miss P telephoned her later that afternoon to find out whether she could take the claimant home, she had “refused to respond to any further questioning in a rather off-hand way”.[53]The running record kept by Miss Coller contains no entries between 16 August 1976 and October 1976. Notes made at the RFH, probably by a social worker, record that Mrs P was admitted on 29 September 1976 in a very anxious state with pains that she believed were caused by problems with Miss P. She wanted to discuss her problems and was advised that these should be referred to Miss Coller. Mrs P was discharged on 14 October 1976 and Miss Coller was informed.[54]On 25 October 1976, Mrs P telephoned Miss Coller, reporting that she was “very low” after her hospital admission. Miss Coller recorded “Can’t cope with [Miss P]”. She telephoned the special housing department to inform them of the present situation.[55]Three days later, on 28 October 1976, Miss Coller received angry telephone calls from Miss P’s brother, G (with whom Mrs P was staying temporarily), and from one of Miss P’s sisters. They were demanding that the defendant should “throw [Miss P] out” of their mother’s flat. They believed that Mrs P was near to death. They blamed the defendant “for doing nothing”. Miss Coller calmed them down and told them that she had been in touch with the special housing department earlier that week and would telephone again. She pointed out that she had no authority to turn Miss P out of Mrs P’s flat. After these conversations, she alerted the Duty Officer of the danger that there might be a violent scene at the flat in which the claimant might get hurt. She suggested that, if any trouble arose, bed and breakfast accommodation might be needed for Miss P and the claimant. However, there was no incident.[56]On 29 October 1976, another of Miss P’s brothers, S, telephoned Miss Coller. He told that, since AB had now moved out of her mother’s flat, Miss P was thinking that she might stay there. S told Miss Coller that Mrs P was “quite incapable of coping with [Miss P] in the flat and the effort to do so makes her illness worse”.[57]A few days later, S telephoned Miss Coller again to tell him that Miss P had been offered a property which she had rejected. He said that he was going to try and help Miss P to solve her housing problem and “try to avoid violent scenes if at all possible”. Meanwhile Mrs P was to live with one of her married daughters.[58]On 8 November 1976, Miss Coller visited Mrs P’s family. She saw three of Miss P’s sisters, who were very concerned about their mother. Miss P and the claimant were not there.[59]On 19 November 1976, Mrs P attended an out-patient appointment at the RFH. A note, probably made by one of the defendant’s social workers, records that she reported that her main problem was Miss P. Because of her, she felt that she could not return to her flat and she was having to move from place to place. She “wants something done”.[60]On 3 December 1976, Miss Webster, a Superintendent of the Gospel Oak Day Nursery, which the claimant was by this time attending, telephoned Miss Coller to report that the claimant, who was by this time just over 13 months old, had a “tiny cut” just below her eye. Staff at the Nursery had been told that Miss P was ill. LS had been taking the claimant to the Nursery that week and had apparently been caring for her at his home the previous weekend. The cut was described as “very slight” and Miss Webster did not think that it was anything to question. Miss Coller telephoned Mrs P’s flat and spoke to Miss P who said that she had had a bad dose of ’flu. She told Miss Coller that the claimant was back at home now. Miss Coller did not record any discussion about what had caused the injury to the claimant. 1977[61]An entry in the running record covering the period December 1976 to February 1977 was concerned solely with Mrs P who was still unwell and spending long periods away from home with her married sons and daughters. Miss P and the claimant were not mentioned.[62]In February 1977, Miss Coller recorded that Miss P been offered a flat and was going to accept it. The claimant was said to be “fine” and Miss Coller had received a good report from the Day Nursery.[63]On 30 May 1977, the claimant was seen by a Consultant Orthopaedic Surgeon, Mr Madgwick, at the RFH to whom she had been referred for bowing of the legs. He observed that she had lots of grazes and bruises on her knees. However, he expressed the view that they were likely to be due to falls, rather than any non-accidental cause. 1978[64]The next entry in the running record is a summary of events between February 1977 and 1978. Miss Coller recorded that, since Miss P had moved out of the family home, her own contact with Mrs P had decreased and she had made only about eight visits during the year. Mrs P was back in her flat. Her main problems during the last year had been financial. Miss Coller anticipated that future contact would be about once every four/six weeks, perhaps aiming at eventual “banking”, i.e. closing the case. It is clear from this entry that by February 1978, the defendant held a file for Miss P and the claimant which was separate from the family file.[65]On 6 February 1978, when the claimant was about 26 months old, she was seen by a Community Health doctor for possible speech delay, having been referred by the Medical Officer at the Gospel Oak Day Nursery. The doctor reported that the claimant was a “delightful child with good language development”.[66]On 7 February 1978, the claimant was seen at the paediatric clinic at the RFH. It appears from the documents that she had missed four follow-up appointments at the Clinic during the previous year. It seems that, on this occasion, the claimant had been referred to the Clinic by the Medical Officer at the Gospel Oak Day Nursery because of bruising on her legs. The events at the RFH were related to Miss Coller in a letter dated 10 February 1978 from Ms Tolaini. Ms Tolaini described how Dr Williams, the Senior House Officer who first examined the claimant, had found the claimant to be well apart from several bruises on her lower legs. There were three bruises on the right leg which could be fingertip bruises, two fading bruises on the left leg and the nail of the left big toe was missing. Dr Williams had asked the Consultant, Dr Flynn, to examine the claimant. Ms Tolaini informed Miss Coller that his opinion was that “the bruises were within normal limits for a toddler”. The doctors had suggested that Miss P should bring the claimant back for blood tests to see if there was any medical reason why she bruised easily, but she refused to do so, saying that “If the doctors wanted to see [the claimant] they could come to her house”. Ms Tolaini had informed the doctors of the past history. They did not feel it appropriate to admit the claimant. It was decided that those agencies (Social Services, GP, and Health Visitor) which were already involved with the claimant should be informed about the incident so that they could follow the matter up. Ms Tolaini concluded the letter to Miss Coller by apologising in advance for missing a Case Conference to be held the following week.[67]In a letter dated 7 February 1978 to the claimant’s GP, Dr Williams said that the claimant had had multiple small bruises on the lower legs. Miss P had claimed they had been caused by her swinging the claimant round. He observed that she was “very hostile and angry” and that he suspected that this might very well not have been the case. He reported that Miss P had “totally refused” further out-patient appointments. He said that he and Dr Flynn had thought the injuries insufficient to warrant a care order at that stage. They were checking to ensure that the defendant’s staff were visiting the family regularly.[68]On 11 February 1978, Miss Coller telephoned Ms Tolaini to say that she had now seen Miss P and the claimant. Miss P had been very annoyed that the doctor had suggested she had caused the bruises on the claimant’s legs and her reaction had been very defensive. Miss Coller had also raised with Miss P the occasion in 1976 when doctors had noted marks on the claimant’s face which could have been caused by a hairbrush. Miss P was adamant that she had nothing to do with this, insisting that it had been C’s fault. Miss Coller observed that “unfortunately Miss P flares up and gives a very bad impression, but within her limits is trying to be a mother to [the claimant]”. Ms Tolaini’s notes refer to a “review” (presumably the Case Conference previously referred to) which was to be held on 14 February 1978 and indicated that Miss Coller would contact doctors if further information was needed.[69]On 8 June 1978, the claimant fell from a slide at the Gospel Oak Day Nursery. She complained of pain and was seen by the Medical Officer who felt that she had only “had a bump”. The following morning, Miss P took the claimant to the Nursery complaining that she was in obvious pain. The doctor at the Clinic sent her to the Accident and Emergency Department at the RFH where she was found to have a fracture of the left leg. Ms Tolaini recorded in her note of this incident that, “as usual”, Miss P was “very difficult with the doctors”. Initially, there was concern that the fracture may have been non-accidental although that concern was allayed when it was discovered that the accident had been witnessed by staff at the Day Nursery.[70]The claimant’s leg was placed in plaster and she was admitted to the paediatric ward. Miss P stayed with her during the first day and was “rather difficult and demanding”. She “taunted the staff” by her behaviour towards the claimant. Ms Tolaini reported that “one moment she would cuddle [the claimant] and then the next, she would shout at her and hit her”. The claimant was just over two and a half years old at this time. This was described as Miss P’s “usual pattern” by the claimant’s Health Visitor and by Miss Coller.[71]On 16 June 1978, while the claimant was still in hospital, a couple approached the Social Services Department at the RFH and expressed concern about a mother (subsequently identified as Miss P) hitting a child in a coffee bar on the ground floor. Ms Tolaini explained to them that the situation was known to Social Services and thanked them for their concern. At about the same time, a neighbour of Miss P had telephoned the NSPCC, reporting that Miss P ill-treated the claimant. The NSPCC officer dealing with the matter telephoned Ms Tolaini, wanting full details of the accident. Ms Tolaini assured him that the accident had been genuine but commented to him that “concern about management of child remains”. Just below Ms Tolaini’s note about this incident (which is dated 21 June 1978), an undated manuscript note has been written saying: “CHILD STILL ON NAI REGISTER”.[72]An entry made by Miss Coller in August 1978 in the family file recorded, that some weeks previously, there had been a “flare up” when the family had reported that Miss P had been ill-treating the claimant. Miss P’s sisters, AB and E, were said to be the most “incensed” about it. Mrs P “was inclined to play down the incident” which had occurred at her flat. Miss Coller noted that Miss P left the claimant with E for weekends from time to time and that E would announce every now and again that she wanted to adopt the claimant. Miss Coller said that she tried not to get involved in that issue. Her view was that Miss P would never give her consent to adoption.[73]A further entry in Miss Coller’s notes for November 1978 recorded that AB had telephoned to say that she had reported MissP to the NSPCC for ill-treating the claimant. She referred to Miss P’s file for further details.[74]On 5 December 1978, Miss Coller visited Mrs P’s flat. AB had returned to live there and was “feeling desperate about her housing prospects”. She told Miss Coller that the frictions at home were such that Mrs P, who had just come out of hospital, had had to go and live with her son. Part of the problem was that Miss P had returned to her mother’s home with the claimant while her own flat was redecorated. AB suggested that the real reason for Miss P’s return was that she did not like living alone. 1979[75]On 3 January 1979, Miss Coller went to visit Mrs P at her request. Miss P, who was again staying at her mother’s flat after having returned to her own flat briefly, was present. Mrs P appeared nervous of saying anything about Miss P even when she was out of the room. She said it was AB who was causing all the trouble and was flaring up frequently. Miss P returned to the room while her mother and Miss Coller were discussing AB’s application for re-housing. Miss Coller reported that Miss P had soon provoked a row between herself and her mother. The result was Miss P: “….shrieking and threatening her mother and finally kicking her and calling her every unpleasant name, including you’re only an f…..g, dirty old Greek peasant”.[76]Miss Coller observed that Miss P expressed a great deal of apparently “irrational anger” against her mother and her family. She wondered whether this was caused by jealousy. The conversation then turned to the claimant. E, who was expecting twins and (with Miss P’s consent) had taken the claimant to stay with her over the Christmas holiday, had not yet returned her. Miss P was very angry with both the claimant and E. She told Miss Coller:
“I’ll kill [the claimant] when I see her. I’ll kick the twins out of [E’s] stomach”
. Miss Coller noted that, moments later, Miss P was talking quite normally. Mrs P told Miss Coller that the claimant had an ordered existence when she was with E but not when she was with Miss P, who gave her no regularity in her life at all. 1980 and 1981[77]On 19 May 1980, Miss Coller noted a conversation with Mrs P, during which Mrs P informed her that the claimant who was then four and half years old, was attending full-time at the Nursery Class of a local school. Mrs P reported that she had not noticed any signs of physical maltreatment lately although she did not see Miss P and the claimant as often as she used to do. In September 1980, Mrs P informed Miss Coller that Miss P had got the claimant into Gospel Oak Infants School. On 15 July 1981, when Miss Coller visited Mrs P, the claimant was there. Miss Coller noted that she was “very pert and chirpy and talkative - apparently quite OK”. By that time, the main problems experienced by the family appeared to be financial.[78]It is clear from later documents that, throughout the claimant’s time at the Gospel Oak School, there were concerns about her poor attendance, her lack of punctuality and the difficulties she experienced in relating to other children. 1982[79]It appears that, towards the end of 1982, a decision was taken to “bank” Mrs P’s case. In a Summary written prior to banking, Miss Coller recounted the problems experienced by the family over the years. She stated: “The main involvement I have had since 1974…has been over school attendance, disruptive and violent behaviour on the part of [Miss P] and [AB] both of whom had pregnancies, and their subsequent rehousing … and general supportive work with several family members. [The claimant] was on the At Risk Register for several years. Her case is now being dealt with by the Talacre Team, Area 4”.[80]On 27 September 1982, the claimant was seen at the University College Hospital (UCH) with a febrile illness and possible urinary tract infection. The Paediatric Registrar who examined her described her as appearing to be “in perfect health”.[81]In November 1982, the claimant was again referred to UCH, this time with swollen tonsils. A tonsillectomy was recommended. However, Miss P disclosed that she was a Jehovah’s Witness and would not consent to a blood transfusion in the event that it was required. In those circumstances, the ENT Surgeon concerned refused to carry out surgery. 1983-1987[82]Even after the case was banked, entries were made in the running record of the family file from time to time. These were mainly concerned with financial matters and, in 1984 and 1985, with the mental health of Miss P’s sister, D. Between 1982 and 1987 (apart from one entry, recording Miss P’s concerns about D) Miss P and the claimant were not mentioned in the running record on the family file. Mrs P died in February 1987 and, from then on, the defendant’s involvement with the family related mainly to D and another of Miss P’s sisters, S. It seems from the available documents that contact between the defendant and the family ceased in mid-1987.[83]On 26 October 1986, when she was almost 11 years old, the claimant attended the Accident and Emergency Department at UCH. She was said to have fallen onto her right forearm. An x-ray revealed no fracture. Her arm was placed in a tubigrip and sling. She was not required to return for treatment.[84]On 17 December 1987, when she was 12 years old, the claimant was taken to the Accident and Emergency Department at the RFH with an injury to her right foot which was said to have followed an accident while doing a cross country run. She had previously seen her GP who had diagnosed a sprained tendon. The Senior House Officer who examined her formed the view that she had sustained a soft tissue injury only. However, she continued to complain of problems with the foot. She was referred by her GP to the Accident and Emergency Department at the RFH on 31 December 1987. 1988[85]The claimant was seen again at the RFH in January 1988 when she was complaining of diffuse, ill-defined tenderness in the right foot. She was examined by Mr Madgwick. No swelling, bruising, restriction of movement or other abnormality was detected. Her family were said to be acutely worried that she had a serious condition and were keeping her off school and mainly in bed.[86]On 29 February 1988, the claimant again saw Mr Madgwick about her foot. Both he and a physiotherapist examined her but could find no significant abnormality. He considered that there might well be a psychological basis for her problems. Miss P refused to accept his findings. In a letter to the claimant’s GP, Mr Madgwick described Miss P as having a “most unpleasant and abnormal demeanor”.[87]The claimant’s GP also referred her to Great Ormond Street Hospital in connection with her foot complaints. The Senior Orthopaedic Registrar who examined her could find nothing abnormal. He referred to the claimant’s “inappropriate response of pain” and the fact that he could move her joints without any complaint of pain when she was distracted. He could find no organic cause for her reported symptoms. Miss P meanwhile was concerned that he might be concealing a diagnosis of cancer.[88]In November 1988, the claimant attended the British College of Naturopathy and Osteopathy complaining of pain in her joints, particularly the hips, knees and wrists. Various investigations were conducted but no organic cause appears to have been identified. 1989[89]On 13 January 1989, the claimant attended the Accident and Emergency Department at the RFH following a minor head injury which had been sustained the previous day. No details of the circumstances of the injury were recorded. She was said to have been “behaving oddly, talking rubbish and staying up all night”. She was seen by a paediatrician who formed the view that she was “manipulative and antagonistic”. Miss P was reassured and the claimant was discharged.[90]On 18 January 1989, the claimant returned to the RFH, still complaining of the effects of her head injury. This time, an account of the injury was given by Miss P. She said that the claimant had been rocking in a chair. Miss P had asked her to attend to her baby cousin. When she refused, Miss P had pushed her, causing her to hit her head on a wall. Miss P said that she “feels v[ery] guilty”. The claimant was complaining of headaches and loss of memory and was said to be behaving oddly. When examined, her responses were inconsistent. She had a “strange affect” and avoided questions by constantly shrugging. Medical staff spoke to the claimant and Miss P at some length. The history given by Miss P was noted to be “incongruous”. She claimed that the claimant suffered from Still’s disease but was unable to say who had diagnosed the condition. She also insisted that the claimant had osteochondritis of the feet. She said that the claimant, who was then 13 years old, shared her bed because she (i.e. Miss P) wanted company. She gave unsatisfactory and inconsistent explanations for the claimant’s non-attendance at school. The claimant said that she wished she could sleep in her own bed but there were no sheets on it. Examination of the hospital records revealed the history of suspected non-accidental injuries in the 1970s. The staff were concerned that the claimant had severe social and educational problems which required investigation. Meanwhile, she was admitted for observation.[91]After overnight observation, medical staff concluded that the claimant’s symptoms were psychological in origin. Information was obtained from her school which revealed that her attendance was poor and that, when there, she spent a lot of time in the medical room, behaved poorly and did not form good relationships with other children. Miss P stated that she did not want the claimant to go to school as she was giving her adequate tuition at home. She refused any psychological help for the claimant. The claimant was discharged from hospital on 19 January 1989 and it was decided that a Case Conference should be convened to discuss what future action should be taken in her case.[92]The Case Conference was held on 13 March 1989 at the RFH and was attended by Mrs Gottlieb, Second Year Head from the claimant’s school, a Senior Registrar from the Child Psychiatry Department and Lynda Thompson, social worker at the RFH. Concerns were expressed that the claimant was being emotionally abused, that her mother appeared to be abnormally dominating and that intervention was needed to enable her to grow up and separate from her mother. It was decided that an Educational Social Worker should be asked to intervene and an appointment should be arranged with the school doctor. There was also to be liaison with her GP. In the event, the claimant was taken out of school altogether on 22 March 1989. Miss P stated that she would teach her at home. Thus, it was not possible for her to be seen by an Educational Social Worker or the school doctor. Her GP, when contacted, proved to be new to the practice and did not know the claimant.[93]On 24 April 1989, Miss P’s sister, AB, reported to the NSPCC that the claimant was being ill-treated by Miss P as a result of which she and other members of the family were concerned for her safety. She said that, the previous Friday, Miss P had bitten the claimant’s cheek and leg, causing swelling and bruising. She said that such injuries were “commonplace”. She expressed surprise that the claimant’s school had not noticed them although the claimant appeared to stay at home when she had sustained injuries. She told the NSPCC officer that the claimant “may have been on the NAI Register years ago”.[94]The report was passed to the defendant’s Duty Officer, Ms Pat Finnigan, who telephoned AB. AB told her of her concerns for the claimant’s safety and referred to Miss P’s “temper tantrums”. She explained that the family were Jehovah’s Witnesses and, hitherto, had sought to contain the problem within their own community. (The claimant was to tell the police that some of her mother’s sisters had become Jehovah’s Witnesses after her early years when they had made reports of Miss P’s treatment of her.) Efforts had been made to talk Miss P into acceptable behaviour, especially towards the claimant. However, when AB saw the claimant’s bite marks, she thought it was time to call the NSPCC. She said that she thought the claimant was on the NAI Register although there had been no social worker involvement for some time.[95]Ms Finnigan went to see Miss P and saw marks on the claimant’s face and legs. Miss P readily admitted that she had bitten the claimant when she was being “rude and disobedient”. Ms Finnigan got the impression that the claimant was intimidated by her mother. After her interview with Miss P, Ms Finnigan met AB and members of her family, who told her that they wanted the claimant removed from Miss P’s care and placed with a family member. They described the atmosphere in Miss P’s home as “constantly hostile and threatening” with the claimant always having to be watchful. Ms Finnigan was concerned about the situation, particularly the claimant’s removal from school. She felt that the situation warranted proper assessment.[96]On 25 April 1989, AB telephoned the defendant to find out what was happening. She told Bharti Majundar, the social worker to whom she spoke, that Miss P had always battered the claimant from when she was a baby. She had been placed on the CP Register but no action had been taken to protect her. She reported that, only a few months previously (this would be the incident of 13 January 1989), she had been admitted to the RFH with concussion because Miss P had beaten her. AB went on to say that the claimant was “literally afraid” of her mother and that, one day, one of them “would kill the other”. She stressed the need for urgent action.[97]A few days later, an anonymous caller reported to the defendant that the claimant was being subjected to “extreme emotional cruelty” and physical abuse. Enquiries of Mrs Gottlieb at the claimant’s school revealed that there had been concerns that she was being emotionally abused and that it was “common knowledge” among her peers that her mother “beats her up”. Meanwhile, Miss P had taken the claimant out of school and Mrs Gottlieb was concerned that she was at risk.[98]At that point, attempts were made to locate any previous file(s) relating to Miss P and the claimant. A note dated 26 April 1989, made by an unidentified Duty Officer who had been tasked to read the latest information about the claimant, recorded:
“There does not seem to be a file in its own right for [Miss P] and [the claimant] so old family file and these papers are all we’ve got…. Admin tell me no other papers.”
The file relating to Miss P and the claimant has never been located.[99]On 27 April 1989, Mr Peter Jarman, the social worker dealing with the claimant’s case, spoke by telephone to Ms Linda Thompson, social worker at the RFH, and reported on recent events. Ms Thompson expressed concern about the relationship between Miss P and the claimant, which she described as “bizarre and unhealthy”. She queried whether the claimant was being subjected to emotional abuse. It was agreed that a Case Conference should be convened.[100]Before that Case Conference took place, Mr Jarman visited the claimant and her mother. Miss P described to him how she was “not able to cope” when she moved out her mother’s flat with the claimant in 1977. She told Mr Jarman that she had never learned to cope with the claimant as a baby. As to the recent biting incident, she described how she had become upset when one of her sisters failed to arrive as arranged. She bit the claimant on the arm, then stopped herself and tried to smack her. The claimant would not let herself be smacked whereupon Miss P bit her leg instead. Miss P acknowledged that she should not have done this but said that it was a “one off”.[101]Miss P told Mr Jarman that she had removed the claimant from school because she was being bullied there. Mr Jarman’s impression was that she was “using” the bullying to keep the claimant at home and in her control. He assessed her as a “very controlling mother with little understanding of being a mother” and “a very strange woman”. She refused to attend the Case Conference, saying that she was “sick of social workers”.[102]The Case Conference took place on 4 May 1989. It was decided that the claimant should be put on the CP Register on the grounds that she was at risk of physical injury and uncertain parenting. In addition, there was to be a joint interview of Miss P and the claimant by a social worker and the police in order to ascertain the true position about the biting incident and to bring home to Miss P the seriousness of what she had done. (In the event Miss P refused access to the police for such an interview and it never took place.) It was also decided that attempts should be made to obtain psychiatric assistance for the claimant and to ensure that she had a medical examination by her GP. A key social worker was to be appointed and was to liaise with the Educational Social Worker in respect of the claimant’s non-attendance at school.[103]Thereafter, Mr Andrew Maynard was appointed as the social worker responsible for the claimant. He visited Miss P on 19 May 1989, when she was initially hostile but later professed to welcome Social Services involvement. She admitted biting the claimant on the cheek and the leg as a punishment for disobeying her when she was “in a rage of anger”. She told Mr Maynard that “she could not control herself”. She described how, when she became “wound up” and “angry”, her anger would become “temporarily out of control”. Mr Maynard recorded: “[Miss P] said that [the claimant] has been a “noose around her neck”, a burden which she has not enjoyed having. This has been the case since she has been a young baby. [Miss P] also maintains and feels that [the claimant] has held her back from realising her potential. Even to this day, [the claimant] remains a “noose around her neck””.[104]On 25 May 1989, when Mr Maynard visited, there was some discussion of Miss P’s past history during which she described sexual and physical abuse of her siblings (but not herself) by her brother, G. She gave further details of the abuse during a visit on 8 June 1989. On 12 June 1989, Miss P permitted the claimant to return to school saying that she could not longer cope with her at home.[105]Mr Maynard became increasingly concerned about the relationship between Miss P and the claimant. Miss P was rigid and controlling and demanded certain types of behaviour. The claimant was beginning to challenge her mother’s authority although she still tended to hide behind her mother in a “submissive way”. In June 1989, Miss P admitted to Mr Maynard that she sometimes beat or hit the claimant when she was disobedient. She told him that, when she was young, she could not cope with theclaimant’s demands as a baby as she had “never wanted her”.[106]On 14 June 1989, Mr Maynard had a meeting with Mrs Gottlieb at the claimant’s school. She described Miss P as a “very manipulative and controlling person” who presented as “plausible and rational” on occasions. She was concerned about the claimant’s relationship with Miss P, especially the fact that they slept together. She believed that the claimant was afraid of her mother for reasons that she (i.e. Mrs Gottlieb) did not understand. However, she was “loyal” and “protective” towards her mother.[107]On 23 June 1989, Mr Maynard interviewed AB. He recorded: “[AB] explained that [the claimant] has been physically and mentally abused from her conception. She said that [Miss P] would punch her pregnant belly in the hope that it would probably induce a miscarriage. She would also punch her belly and say “I don’t want you”. [AB] told me that ever since the birth of [the claimant] she has been abused on a regular basis up until the most recent incident. She explained the uncontrolled rage of [Miss P] has existed for a very long time…”.[108]ABalso told Mr Maynard that the head injury suffered by the claimant in January 1989 had been caused by Miss P punching her.[109]On 5 July 1989, Mr Maynard discussed with Miss P her handling of the claimant. He noted: “[Miss P] explained the present situation and the problems she was experiencing with [the claimant]. [Miss P] said that [the claimant] had driven her to the verge of resorting to smacking and being aggressive with her. She said she would often smack her on the bottom which would invariably leave marks on her skin. [Miss P] was worrying about her handling of the situation in relation to chastising. She said that she frequently over-reacted to [the claimant’s] attitude and behaviour, tending to hit her unnecessarily. [Miss P] spoke of her dislike of [the claimant] and said that sometimes she wants to beat her to pulp. [Miss P] acknowledges that she flies of the handle very quickly and has a very bad temper which she finds very difficult to control”.[110]They also spoke about the relationship between Miss P and the claimant which is described in Mr Maynard’s note as “a sort of boy/girl relationship”. When recording his conclusions about the visit, Mr Maynard expressed concern about their sleeping arrangement and about Miss P’s comment that she “finds it easy to be affectionate when [the claimant] is sleeping with her”, but not in other circumstances.[111]In September 1989, Miss P reported to Mr Maynard that the claimant had been difficult over the summer and that she had resorted to smacking the claimant and to being aggressive with her “for no reason”. She again referred to the claimant as “a noose around her neck”.[112]There were several episodes in October 1989, when the claimant ran away from home, as a result of which Miss P became very distressed. The claimant expressed hostility to Mr Maynard’s visits, saying that he was interfering with her mother’s problem. In November 1989, Miss P reported to Mr Maynard that she had been trying hard to change her attitude towards the claimant and to refrain from hitting her. She said that claimant found it “strange” that she was “not smacking her as much”. However, the claimant was continuing to run away and to challenge Miss P’s authority.[113]On 16 November 1989, after the claimant had disobeyed her mother and gone out to a local youth club and refused to be taken home, Miss P took her to a police station, declared that she was out of control and asked for her to be taken into care. The claimant was immediately placed with foster parents, Mr and Mrs Petch. After discussions with Miss P and the claimant, it was decided that the claimant would stay with Mr and Mrs Petch for a fortnight.[114]At a Case Conference held on 24 November 1989, Mrs Petch related how, when Miss P came to visit the claimant, she would threaten her. On one occasion, she had tried to attack the claimant. She had not managed to strike her but the claimant had been “very frightened”. Miss P had told Mrs Petch, “I want to get hold of her and hurt her”. (In September 2004, Mrs Petch gave a police statement in which she gave a graphic account of that incident.)[115]At the same Case Conference, it was noted that Miss P was from a large family where the children had been abused sexually and physically by their brother, G. The Conference Minutes recorded that: “[Miss P] had openly talked about this with [Mrs Petch] and had also threatened [the claimant] with sending for him [i.e. G] as a punishment. Andrew [Maynard] reported that [Miss P] and [the claimant] had been sharing a bed and he feels that something may have gone on. [Mrs Petch] had also sensed that there was a secret that [the claimant] must not talk about”.[116]Those present at the Case Conference were concerned about the physical risk posed to the claimant and about possible exposure to G and possible sexual abuse by Miss P. They resolved that the claimant should not return home and that advice should be sought from the defendant’s legal department about obtaining a care order.[117]On 27 November 1989, Mrs Petch reported that, after some difficulty, she had begun to make progress with the claimant who had confided some of her problems with her mother. The note of this conversation made by a social worker records: “Lots of innuendoes about possible sexual abuse but nothing definite”.[118]On 28 November 1989, during a long discussion with Mr Maynard about the possibility of the claimant returning home, Miss P told him that, if she returned home and was disobedient, Miss P would “kill her”. Mr Maynard did not take the threat very seriously, although he noted that it must be considered in the light of the previous history. Miss P made a similar threat a couple of weeks later. Some time after, there were problems with the claimant’s behaviour and non-attendance at school. She left the Petchs’ home and had four further foster care placements before Christmas 1989. 1990-1993[119]In March 1990, the last foster home placement broke down after the claimant had been found playing on live railway lines at an underground station. She was placed in a residential care home known as Florizel. A report submitted by Mr Maynard in July 1990 indicated that the placement was working well and it was hoped at that stage that the claimant might be able to return home eventually. In the event she never did so, although she had spasmodic contact with Miss P. She stayed at Florizel until 1992. She was removed from the CP Register in October 1992 when she was not considered to be at further risk from Miss P. She then had a number of bed and breakfast placements until the birth of her first child B, in 1993. Thereafter, she and B were placed at mother and baby units. She left care on her 18th birthday in November 1993 but continued to receive a good deal of help and support from the defendant thereafter.

The criminal proceedings

[120]On 28 April 2004, the claimant contacted the police, stating that she wanted to report physical and mental abuse by her mother. She stated that she had been physically abused by her mother from a very early age and had had “numerous presentations at GP and hospital”.[121]On 21 May 2004, the claimant underwent a video interview in which she gave an account of a relentless pattern of abuse by Miss P extending from her earliest childhood until the time she was taken into care and even (in respect of the incident described by Mrs Petch in 1989: see paragraph 114 of this judgment) beyond. Her first memory was being struck on the forehead by her mother with a wooden clog, an incident that left a scar which is still present today. She recalled that her mother and a friend who had observed the incident had taken her to hospital where they explained the injury by saying that she had fallen off a skateboard.[122]The claimant described how her mother controlled every aspect of her life and would make her do the housework and wait on her. She used violence virtually on a daily basis. She would slap, punch and kick the claimant, and strike her with shoes and other objects. She burned her with an iron and made marks on the palm of her hand with a knife. She threw hot tea and buckets of urine over her. The claimant related how Miss P had fractured her leg on one occasion and, when she took her to hospital, claimed that she had fallen off a bicycle. Usually, she would take care not to mark the claimant but, on occasion, she bit her, leaving marks, or punched her, blacking her eye or cutting her lip. On such occasions, she would insist that the claimant stayed away from school in order to avoid her injuries being seen. The claimant described how Miss P would do “a war dance” round her, shouting that she was going to beat her and would then attack her in whatever way she could.[123]The claimant also described how Miss P laughed as she told her that LS had died (this would have been in about 1982) and, when the claimant cried, Miss P beat her for doing so. On the day of LS’s funeral, Miss P sent the claimant on an errand deliberately so she would see his cortege. (This account corresponds with the account given by Miss P at hospital in 1988, when she described how she was glad when LS died and said that she had done a “cruel thing” by sending the claimant out to the shops where she saw his funeral procession.) Her grandmother protested at what Miss P had done and there was a row. Afterwards, the claimant was “battered” by Miss P for causing the row.[124]The claimant did not report to the police any sexual abuse. Indeed, at two points in the witness statement that was prepared from the video interview, it is recorded that she remarked, “If I was abused sexually it would be easier”.[125]On the basis of the claimant’s witness statement, and that of Mrs Petch, Miss P was charged with an offence of child neglect, namely that on various days between 25 January 1975 and 24 November 1990, she wilfully ill-treated the claimant in a manner likely to cause her unnecessary suffering or injury to health.[126]The claimant told me that Miss P had at first offered a plea of guilty to two assaults which occurred towards the end of the period specified in the charge. The claimant, who was consulted by the Crown Prosecution Service, was unhappy with such a plea. She wanted Miss P to acknowledge the fact that she had ill-treated her throughout the relevant period. The plea was not accepted and, in due course, Miss P pleaded guilty to the charge as laid. On 15 July 2005, she was sentenced to a two-year Community Rehabilitation Order.[127]Subsequently, the claimant made an application to the Criminal Injuries Compensation Authority (CICA). She made no allegations of sexual abuse. She accepted an award based solely on the effects of her physical injuries. The claimant’s evidence Physical and emotional abuse

The claimant’s evidence

[128]In her witness statement prepared for these proceedings, the claimant confirmed the account of physical and emotional abuse which she had given to the Police.[129]In oral evidence, the claimant told me that she now remembered the occasion when she fell off the slide at the Nursery. She said that, on the evening of her fall, her mother had performed “one of her war dances” and had jumped on her leg, breaking it. She had used the fall as the excuse for the fracture. The claimant was adamant that, despite the fact that she would only have been two and a half years old at the time, she remembered this incident, which bore a strong resemblance to the episode involving the bicycle which she described to the police.[130]The claimant said she had been taken to hospital repeatedly for treatment for injuries sustained as a result of Miss P’s attacks upon her. On those occasions, Miss P would lie about the cause of her injuries. In cross-examination, it was suggested to the claimant that, leaving aside the incidents when she was a small baby, the available records showed only a few attendances at hospital with injuries. The claimant was insistent that there had been other occasions. She referred to the incident when Miss P struck her with a clog, and also to the occasion when she had fallen off her bicycle and Miss P had subsequently beaten her, as a result of which she had been taken to hospital. She recalls that she had usually been taken to the RFH, although she had also attended the UCH, as well as private hospitals in Hampstead.[131]The claimant said that she remembered only one visit from a social worker, when she had been required to stand up in the bath so that the social worker could look for bruises. She had had two chapped legs at the time. Otherwise, she did not remember any Social Services involvement before 1989. Sexual abuse[132]The claimant’s Particulars of Claim contained an unparticularised allegation of sexual abuse by Miss P and the claimant’s brother, G. This was the first mention of sexual abuse. There was no reference to it in the pre-action documents, nor had any sexual abuse been reported to the police or the CICA. It had not been mentioned to Dr Mason, the consultant psychiatrist instructed on behalf of the claimant in these proceedings.[133]The claimant’s first witness statement, dated 1 April 2009, contained a similar unparticularised allegation as that which had appeared in the Particulars of Claim, but no further details. The defendant made a CPR Part 18 request for further information, seeking, inter alia, particulars of the allegations of sexual abuse. The Response drafted on behalf of the claimant referred to the account given by her to Dr Mason and stated: “[The claimant] provided a reasonable account with such details she is able to recall and discuss to the police and Dr Mason”.[134]On 2 June 2009 (only a few days before the hearing), the claimant made a supplemental witness statement, giving details of the sexual abuse alleged. She said that she had not previously been ready to disclose those details. She described how Miss P had forced her to share a bed with her and, three or four times a week, would compel the claimant to masturbate her and to perform oral sex on her. She would also request the claimant to perform sexual acts on G and to masturbate her while G watched. She said that, at times, Miss P and G (who were of course siblings) had a sexual relationship and she was forced to watch them having intercourse. She said that the sexual abuse by her mother took place from as long as she could remember until she was removed into care. The abuse by G ended when he died some time in the 1980s.[135]The claimant explained that she had not felt able to tell anyone what had happened. The abuse had made her feel “dirty and unclean” and she had tried to “bury it”. She said that, when she thinks about the abuse, she feels physically ill. Indeed, when the matter was first raised during a conference with her legal team, she felt so physically sick that she had to run out of the room. Although she had been asked by her solicitors to provide details about the abuse, she had not been able to do so. The claimant said that she had eventually been able to put down details of the abuse in an email from which her supplemental witness statement had been prepared. She had found that easier than speaking about it.

The claimant’s attempts to gain access to documents relating to her

[136]The claimant’s evidence was that she began asking the defendant for her Social Services records when she was 17 years old. At that time, she was not considering making a civil claim. Nor was she aware that the defendant knew about the abuse to which she had been subjected as a young child. She believed – although she could not be sure – that her purpose at the time had been to achieve “closure”. She said that May Beeston, who was her social worker from 1992 until October 1995 and again in the early 2000s, had “fobbed her off” by telling her that “now was not the time” or that she had “other things to sort out”. It is relevant to note that an entry in the Social Services record made on 13 October 1992 (just before the claimant’s 17th birthday) records that she was seeking access to her files then. The claimant said that she continued to ask for her files and that, at some point, she had been told (possibly by Teresa Ganley, Ms Beeston’s successor) that the relevant files had been lost.[137]The claimant said that, in 1996, when she was almost 21 years old, she had been having discussions with one of the defendant’s social workers about her first child, B. The social worker referred to her past. She was upset and wanted to find out exactly what the defendant knew about her past. She left the Social Services’ office and went straight to a Legal Advice Centre, whose premises were situated opposite. As a result, an adviser at the Centre sent a letter dated 15 November 1996 to Ms Ganley which read: “We have been consulted by the above named and believe you are aware that our client was the victim of abuse during her childhood and as a result was under the care of your department for many years. Our client wishes us to enquire into the events concerning her upbringing and care by Camden during that period but in order to do this we need sight of as much documentation as possible. We assume such papers are held by your department although these may be in storage and thus take time to make them available. We enclose consent and await hearing. We should point out that at present we have formed no view on this matter”.[138]The claimant heard no more. When she returned to the Centre to enquire about progress, she found that it had closed. The defendant did not provide the records requested.[139]The claimant said that, between 1996 and 2004, she had taken no further steps to obtain the records. When investigating the allegations made to them in April 2004, the police wanted access to the records. They were told that the files were missing. The claimant went to see her GP to ascertain whether he had any relevant records. While there, she removed from his file a document (it seems to me likely that this was the document at B158) in which there was a report of the slapping incident of April 1976 and a reference to a request by Miss P to the defendant that the claimant be fostered. It was then clear to the claimant that the defendant had been aware that she had been ill-treated when she was a baby.[140]In October 2004, the claimant again raised with the defendant the issue of access to her files. She was advised to make a written complaint about the failure to provide them, which she did. In her letter of complaint, dated 5 October 2004, she stated that she had been asking to see her files since she was about 17 years old, possibly before. Having seen the document on her GP’s file, she was questioning why she had been left in Miss P’s care for so long. She was also asking why her mother had not been prosecuted for the attack on her at her foster home in 1989. She said that she had been compelled to initiate criminal proceedings herself so that she could achieve closure and be satisfied that justice had been done.[141]On or about 18 October 2004, a decision was taken by the defendant to suspend investigation of the claimant’s complaint, pending the conclusion of the police investigation. At about the same time, files relating to the claimant’s family (including the family file to which I have made reference) were located, together with various other documents. They were subsequently disclosed to the police following a court order. There was a great deal of internal debate within the defendant’s organisation as to what material should be disclosed to the claimant. It seems that a limited amount of information was released to her in 2004. In January 2005, the claimant made a complaint to the Information Commissioner about the failure to provide her files. She was told that she could not have them until after the conclusion of the criminal proceedings. However, even when they were concluded in July 2005, no steps were taken by the defendant to provide full disclosure of the documents.[142]During 2004, apparently at the suggestion of a police officer, the claimant consulted a solicitor about a possible claim to the CICA. She said that there was no discussion at that time about a possible claim against the defendant. A claim to the CICA was commenced. In October 2004, she consulted her current solicitors, Irwin Mitchell who took over the CICA claim. They also advised that she had a potential claim in negligence against the defendant and applied for public funding on her behalf. A letter of claim was sent in August 2005. In February 2006, an award of £5,500.00 was made by the CICA.[143]Irwin Mitchell requested full disclosure of documents from the defendant. Files were sent to them in February and September 2006 but were incomplete. In early 2008, the claimant obtained an order for further disclosure and additional documentation was received in April 2008.

The evidence of AB

[144]AB’s evidence was that she had contacted Social Services “about six times” regarding Miss P’s ill-treatment of the claimant. In cross-examination, she said that she was guessing at the number of times. She remembered her sister, M, calling the police when Miss P slapped the claimant who was then a baby. The police attended and took photographs of the claimant’s injuries. AB said that the claimant often suffered from cuts and bruises.[145]After a period living at her mother’s flat, Miss P had moved to her own accommodation. However, for two or three years after her move, she frequently stayed at her mother’s flat as she did not like being on her own with the claimant. From about 1980, she moved out properly. AB said that the claimant continued to be ill-treated. She believed that she and the family reported Miss P to the defendant about three times a year, but nothing was ever done. She thought that the claimant had been on the CP Register at some point, although she was not clear when this was, or if or when her name had been taken off the Register.

The defendant’s evidence

[146]The defendant adduced witness statements from Ms Maggie Slaughter (currently employed by the defendant as Manager of their Independent Reviewing Services for Children Looked After and, in 1978, a Social Services Team Manager), Mr Peter Jarman (now employed by the defendant as Team Manager in Safeguarding and Social Care and Manager of Schools Team and, in 1989, Area 4 Team Leader), Mrs Lynda Marsh (formerly Lynda Thompson, in 1989 a social worker employed at the RFH); Ms Beeston (now employed by the defendant as a Senior Social Worker in the Kentish Town Team and, from 1992 until October 1995 and for another period thereafter, the claimant’s social worker), Ms Vivienne Adler (formerly Deputy Head at the school attended by the claimant), Mr Tom Devenish (employed by the defendant as Records Information Governance Manager and Data Protection Act Manager of Children’s Schools and Families since 2004), Mr Nick Harvey (currently Child Protection Co-ordinator for the London Borough of Islington Childrens’ Services and, from 1988 until September 2003, employed by the defendant as a Child Protection Officer) and Ms Faye Koe (an Associate at the defendant’s solicitors, Browne Jacobson LLP). The contents of these written statements were not disputed and none of the witnesses gave oral evidence. Much of the evidence was directed at criticisms which had been made about the defendant’s care of the claimant from 1989 onwards. Since the allegations relating to that period were not pursued, this was of little or no relevance to the issues to be decided. The relevant evidence can be briefly summarised.[147]Ms Slaughter’s evidence was that, up to the mid-1970s, the defendant had kept two NAI Registers, one for children in respect of whom there was an actual cause for concern, and the other for children where there was a possible cause of concern. She said that the purpose of the Registers was to hold information centrally so that if a third party (e.g. a health professional) contacted the defendant with a concern about a child, it was possible to ascertain whether the local authority also had concerns about that child. At that time, regular Case Conferences were not held for children included on the Registers.[148]Ms Slaughter went on to explain that, following a DHSS circular of April 1974, a new system, whereby local authorities were required to establish CP Registers, was introduced. Registration triggered (or should have triggered) regular CP Case Conferences. She did not know precisely when the new system was introduced in Camden. Mr Harvey explained that, in the 1970s and 1980s, Case Conferences could make recommendations as to what action should be taken by various professions and agencies. However, they were only recommendations, not orders. A child would remain on the CP Register until the concerns about him or her abated and/or until the family no longer posed a risk.[149]Ms Beeston referred to her personal knowledge of the claimant. At the time when she had responsibility for the claimant, the claimant was difficult, rebellious and generally disruptive. She was causing concern to those who had to deal with her. Nonetheless, Ms Beeston found her intelligent and likeable and in particular commended her qualities as a mother. She observed that, throughout her involvement with the claimant, a recurring theme had been:
“why was she not taken into care sooner?”
The claimant had spoken to her in general about abuse inflicted on her by Miss P but had not gone into any detail. It is clear from the evidence of both Ms Beeston and the claimant that the two had a generally good relationship and that Ms Beeston did all she could to support and assist the claimant at a very difficult time of her life.[150]Mr Devenish described the detailed search that had been made for Social Services files relating to the defendant. It was not suggested on behalf of the claimant that the search had been in any way inadequate. Mr Devenish said that he had also searched the CP Register but had found no record either of the claimant or any of her children. (This is surprising since both the claimant (at least from 1989) and her eldest child were on the Register at some point. Presumably, the records must be incomplete.) Mr Devenish said that it had to be assumed that any other files relating to Miss P and the claimant which had existed must have been lost in circumstances which could not now be ascertained.[151]Ms Koe referred to various potential witnesses (in addition to those from whom statements had been obtained) whom she had identified as being relevant to the defendant’s case. She considered that the most important of these were Miss Coller and Mrs O’Kelly. She had made enquiries of the defendant’s pension department and of the General Social Care Council about Miss Coller but had received negative responses. Nor could she find Mrs O’Kelly. It does not appear that she attempted to trace Ms Tolaini (the social worker based at the RFH) and I was told that no search had been made for Mr Toomey, who was mentioned in the note made by Miss Coller on 15 June 1976: see paragraph 47 of this judgment. Mr Maynard, the claimant’s social worker from 1989 until 1992, was traced but said that he remembered nothing about the claimant and declined to assist. Ms Koe also attempted to trace various other witnesses of whom only two (Carol Pincott and Sue Riddell) related to the period of the claimant’s early childhood. Their involvement appears to have been minor and it was not seriously contended that the defendant was significantly prejudiced by their absence. The expert evidence Background[152]I heard evidence from two witnesses with expertise in the field of child protection work. Ms Maria Ruegger, instructed on behalf of the claimant, is currently a part-time Consultant Guardian in the Department of Psychological Medicine at the Great Ormond Street Hospital for Children and an independent Social Worker. She was previously a Senior Lecturer in Applied Social Work. She has extensive practical experience of child protection matters. Between June 1978 and January 1983, she worked as a social worker at Haringey Social Services. She worked as a guardian adlitem for a period and as a consultant in the field of child protection. In the course of her training, between 1975 and 1978, she underwent various practice placements. She was therefore familiar with social work practice at the relevant time.[153]Mr David Lane, the expert instructed by the defendant, was a residential childcare worker for eight years, after which he became Assistant Director responsible for residential and day services in the London Borough of Hillingdon for ten years, then Director of Social Services for Wakefield Metropolitan District Council for eight years. He is involved with policy development in the field of residential services and training at a national level. He is an independent Consultant in Social Services.[154]Both experts produced written Reports, setting out their respective views. Their Joint Statement, prepared after discussions between them, revealed a good deal of agreement. There were, however, important areas of disagreement which were further explored in their oral evidence.

The period from November 1975 to February 1977

[155]As I have already said, the experts agreed that, if the available documents covering the period from the claimant’s birth to February 1977 represented a full and accurate reflection of the defendant’s involvement with her during that time, its care fell below the accepted standards at the relevant time.[156]As to the possible existence of other documents, the first specific reference to the fact that the defendant was keeping a file for Miss P separate from the family file for Mrs P occurs in Miss Coller’s note made in February 1978: see paragraph 64 of this judgment. There are several further references to the file after that date. There is, however, no direct evidence as to when the new file was opened.[157]Although, in his Report, Mr Lane had canvassed a number of possibilities as to when the new file was opened, in oral evidence he said that “the obvious time” would have been at some point in the period from 3 December 1976 (the date of the last note in the family file mentioning Miss P) and February 1977 (when Miss P and the claimant moved into their own flat).[158]Mr Lane said that, at that point, documents such as Minutes of Case Conferences and other Meetings relating to Miss P and the claimant would have been removed from the family file and placed onto the new file. He believed that, since there is no means of knowing what documents originally existed on the family file, it was impossible to make any proper assessment as to the quality of care provided by the defendant during the period from November 1975 until February 1977, still less after that date. Mr Lane conceded in cross-examination that he would not have expected documents forming part of the running record of contact with the family to have been removed from the family file, although he said that, if there were whole pages devoted to visits connected with Miss P and the claimant, they may have been transferred to the new file.[159]Mr Lane took the view that the claimant had at some time been placed on the CP Register. In support of that view, he relied on Miss Coller’s statement, in the summary written in about December 1982, that the claimant had been on the At Risk Register for several years. He also relied on the entry in the defendant’s records on 15 June 1976, “NAI see review passed Hugh Toomey” and to the handwritten note in the RFH notes written below the entry for 16 June 1978, stating “CHILD STILL ON NAI REGISTER”. He also relied on the reference in the RFH documents to a “review” (elsewhere described as a Case Conference) which had apparently taken place on 14 or 15 February 1978. He suggested that the use of the term “review” in the note of 15 June 1976 might well indicate that the claimant had been placed on the CP Register some time prior to that date, probably following the defendant’s failure to obtain a PSO on 30 April 1976. He did not consider that, if the claimant had not been registered prior to February 1977, the failure to register her would have been negligent. He said that the injuries sustained by the claimant had not been serious and, in the 1970s, children who were put on the Register tended to be those with serious injuries or a history of lesser injuries. However, registration would have been desirable and a high level of monitoring was required in the claimant’s case.[160]Ms Ruegger could find no evidence that a separate file on Miss P and the claimant had been in existence prior to Miss P’s move away from the family home in February 1977. She said that there were entries in the family file (e.g. those relating to the claimant’s hospital admission on 13 August 1976, records of visits relating solely to Miss P and the claimant and a note of a telephone call from the Day Nursery in December 1976) that she would have been expected to have been put onto Miss P’s file had it existed at the time those entries were made.[161]Ms Ruegger accepted that it was likely that the claimant had been placed on the CP Register at some time. She considered it unlikely that this had happened prior to February 1977. She pointed out that the running record showed that Miss Coller had conducted investigations into the incident in August 1976. She had recorded the report from the Day Nursery of the injury to the claimant’s face in December 1976. There was no reference, in the entries relating to either of those incidents, to any liaison or consultation with colleagues or the calling of a Case Conference, as would be expected if the claimant had been on the CP Register at the time. Nor was there any reference in the hospital records for 1976 to the fact that the claimant was on the CP Register. There was no regular pattern of visits from the social worker and/or Health Visitor. This was not typical of a child who was on the CP Register.[162]Ms Ruegger was asked about the entry in the running record dated 15 June 1976, “NAI see review passed to Hugh Toomey”. She said that it was difficult to know what the entry meant. She agreed that it could indicate that the claimant had been on the CP Register and that a Case Conference was to be or had been held. She believed that this was unlikely for the reasons already set out and because, if there had been a Case Conference at that time, she would expect to have seen reference to a plan for systematic monitoring of the claimant and evidence that the plan had been carried out. That was absent. The entry could mean that there had been another incident of suspected non-accidental injury. It could mean that the case was being passed to Mr Toomey for a managerial review. It was impossible to say.[163]In cross-examination, Ms Ruegger agreed that it was likely that the decision to place the claimant on the CP register would have been precipitated by a significant injury. She said that it would have been a reasonable response to the failure to obtain a PSO in April 1976. She agreed that a letter to the claimant’s GP dated 3 May 1976, requesting information, suggested that the defendant was considering registration at that time. However, there was no evidence in the running record or in the hospital records that the claimant was on the register after that time. Ms Ruegger agreed also that the hospital admission in August 1976, when a temporary PSO was granted, could have led to registration. However, she pointed out that there was no reference in the running record to registration at the time or thereafter. If the claimant had been registered at that time, she would have expected there to have been an enquiry into the facial injury reported by the Day Nursery in 1976. There was no indication that this had occurred. Ms Ruegger agreed that registration was unlikely to have occurred as a result of the incident on 7 February 1978 and that there was no recorded incident in 1977 that could have precipitated it.[164]Ms Ruegger pointed out that the mere fact that a child was on the CP Register afforded no protection. The level of protection given to the child depended on the competence of the staff responsible for formulating and carrying out the care plans. Registration should have resulted in regular and systematic monitoring of mother and child by social workers, Health Visitors and other professionals. Whether or not the defendant had put the claimant on the CP Register in April or August 1976, the fact was that no such monitoring had occurred.[165]It was suggested to Ms Ruegger in cross-examination that Minutes of Meetings and/or Case Conferences might have been removed from the family file at the time the new file was opened. She believed that, if there had been meetings or Case Conferences generating Minutes in separate documents, there would have been some cross-referencing contained within the family file, as occurred after February 1977.[166]Ms Ruegger said that there was evidence in the family file of a failure by Miss Coller to respond adequately to reports that Miss P had hit, slapped and/or bitten the claimant. There was no effort to record precise details of the incidents reported, to make an assessment of the risks or to arrange for regular monitoring by the Health Visitor. Despite the fact that the first report was dated 4 February 1976, it did not appear that Miss Coller had actually seen Miss P and the claimant together until 11 March 1976. On that occasion Miss P admitted to her that she slapped the claimant. Again, no detail was recorded of how often or in what circumstances this happened.[167]Thereafter, there was no evidence of regular visiting. Nor was there any evidence of any assessment of the risk posed by the claimant’s (unidentified) uncle who was reported to have struck her in early April 1976. The report that Miss P had struck the claimant on 25 April 1976 and caused a black eye should, the experts agreed, have given rise to real concern. Yet there was no evidence in the family file of any immediate visits by Miss Coller to see the claimant or to check on her safety. Given the circumstances any such visit should have been documented. It was not until 30 April 1976 that Miss Coller took the claimant to hospital for a medical examination. At that time the bruise was fading. Both experts agreed that the delay in seeking a medical examination represented a lack of competent care.[168]Mr Lane agreed that, if the visits recorded in the family file were the only visits made by Miss Coller to see Miss P and the claimant, they would have been insufficient. However, he believed that there must have been visits that went unrecorded. He agreed that a failure to record visits would have been poor and incompetent practice.[169]Miss Coller then attempted to obtain a PSO, a process which at that time involved the relevant social worker attending before a Magistrate at home and presenting the application informally. No record of what happened at the hearing is contained in the family file. The only reference is in the RFH records. Ms Ruegger said that it would have been grossly incompetent and unacceptable if Miss Coller had made no record of the application. She agreed that it was possible that she had made a note separately from the running record and that note had subsequently been removed and put on the new file. Both experts agreed that, if all relevant evidence had been placed before the Magistrate, they would have expected a PSO to have been made. Ms Ruegger said that her impression was that Miss Coller did not have expertise in child protection work and did not fully grasp the seriousness of the risks to which the claimant was exposed. Thus, she may not have conveyed that seriousness to the Magistrate. Mr Lane observed that it was impossible to say why a PSO was not made. It could have been because of insufficient evidence. The Magistrate might not have considered the claimant’s injuries sufficiently serious or he may have considered that they had happened incidentally, rather than in the course of targeted abuse of the claimant. Alternatively, it could have been a perverse decision.[170]The experts agreed that, after the failure to obtain a PSO, the defendant should have held a Case Conference and considered placing the claimant on the CP Register. Mr Lane’s view was that this may have happened and that the entry dated 15 June 1976 may have related to a review of decisions reached at an earlier Case Conference. He said that the relevant documents may well have been removed from the family file when the new file was created. Ms Ruegger could find no evidence that this had been done. She pointed out that (save for that at 3 May 1976) the entries in the running record made in May 1976 all related to the provision of a nursery place and/or housing for Miss P. They were not related to child protection.[171]The experts agreed that, after the failure to obtain a PSO, there should have been regular (at least weekly) visits to the claimant by a social worker or (on a planned basis) the social worker and the Health Visitor. In fact, the running record suggests that Miss Coller did not see the claimant before the time of her next hospital admission in August 1976. (There was a visit to Mrs P’s flat on 17 July 1976 but the claimant was with one of Miss P’s friends at the time.) Ms Ruegger considered that the failure to see the claimant represented a lack of competent care. Mr Lane suggested that there may have been visits which went unrecorded.[172]The experts agreed that, following the incident on 16 August 1976, the defendant should have sought an interim care order or a supervision order. This would have allowed it to take more control of the situation, to establish basic standards for parenting, to monitor the extent to which those standards were being achieved and to insist on the claimant being fostered if that was considered to be in her best interest.[173]The experts agreed that regular visits should have been made to the claimant after the incident in August 1976 and that, if this was not done, it represented a lack of competent care. There is a note of only one visit to the family home between August 1976 and February 1977, when Miss P and the claimant were absent. Mr Lane suggested that records of visits may have been put on the new file. Ms Ruegger considered that, if the available documents constituted an accurate representation of the defendant’s involvement with the claimant, the defendant failed to take adequate steps to protect her from harm during the period between her birth and February 1977. There was a picture of non-accidental injury, poor emotional care and, at best, negligent physical care. There was inadequate monitoring and the attention of Miss Coller and her supervisors was not focused, as it should have been, on the claimant. Miss Coller was the allocated social worker for Miss P at the time and was engaged in supporting Mrs P and her family and encouraging and assisting Miss P to obtain her own accommodation. She dealt with concerns about the claimant as and when they arose in the context of her work with the family, rather than as a child protection issue. She was taking insufficient notice of the full picture.[174]Ms Ruegger did not accept that her views would have been different if there had been further documents available. Such additional material might, she said, have cast light on why Miss Coller acted as she did but could not excuse her. She regarded it as likely that the real reason for Miss Coller’s inadequate response was her lack of expertise in child protection matters and a failure on the part of the defendant to supervise her properly.[175]Mr Lane said that he had difficulty in forming a clear opinion about the quality of care during this period. However, on the information available, he considered that Miss Coller’s approach had been reasonable. She had seen the aggressive atmosphere in the home as the main threat to the claimant and had been active in her attempts to find alternative accommodation for Miss P and the claimant. By the standards of the time, the physical abuse suffered by the claimant would not have been considered very serious. The reports of slapping ceased within the first few months. The claimant was recorded as having been examined and found to be healthy on at least six occasions and none of the other professionals involved with her was concerned about her safety. Mr Lane considered that, although there were elements of poor practice as already referred to, the overall approach was reasonable.[176]Mr Lane did not accept that, had there been a greater degree of monitoring, the defendant would necessarily have become aware of the nature and scale of the abuse. Nor did he accept that, had the defendant exercised proper care, the claimant would have been removed from her mother’s care prior to February 1977. He considered that there were insufficient grounds for taking such a step. There was no specific incident or incidents which suggested that she would be at risk in her mother’s care. Her injuries had occurred when she had got in the way of adult arguments. Miss Coller was trying to minimise the risk by removing her to other accommodation.[177]Ms Ruegger disagreed. She said that, had the concerns about the claimant been addressed within a child protection context, steps would have been taken (as were contemplated in late April 1976) to assess and improve Miss P’s parenting skills within a safe environment. Had that been done, it is highly unlikely that Miss P would have co-operated or that her behaviour towards the claimant would not have raised further concerns about emotional abuse. In addition, had the defendant undertaken proper investigation of the various incidents and regular monitoring, the likelihood is that the defendant would have been able to make a more accurate assessment of the risks to the claimant. The most likely outcome would have been that the claimant would not have remained in Miss P’s care and that she would have been taken into care and ultimately adopted.

The period from February 1977 to January 1989

[178]The Joint Statement of the experts contained the following questions and answers:
“4(b) On the assumption (for the purposes of this question) that the Claimant is found by the court to have been physically and emotionally abused by her mother between February 1977 and January 1989 can it be agreed that if there had been competent social work monitoring and regular visits to the Claimant including discussions with the Claimant alone, then with competent assessment it would have been ascertained that the Claimant was being: (i) physically and emotionally abused by her mother; (ii) required to be removed from her mother’s care? We are agreed that this would have been likely had there been consistent monitoring throughout the period. We are also agreed that Social Services probably ceased to monitor at some point during the early 1980s. David Lane notes that when [the claimant’s] case was re-opened, mother dominated visits by Social Workers and excluded [the claimant] from discussion, preventing her from expressing her concerns. If this pattern had been evident in the early 1980s, mother might have concealed her cruelty towards [the claimant] from Social Workers, and it was noted later that [the claimant] remained loyal to her mother and did not complain. Maria Ruegger thinks it unlikely on the basis of the albeit scarce information available for the period up to 1980 and the more detailed material for the period post 1989, that the mother engaged with the authorities sufficiently to allay concerns. 4(c)Can it be agreed that given the history up until 1977 it was lack of competent care to fail to monitor the claimant sufficiently closely to ascertain the abuse that was on the balance of probabilities in fact occurring? Assuming that this question applies to the period from February 1977, we are of the opinion that no opinion can be formed about the quality of monitoring in this period given the absence of records. ”
[179]The information about Miss P and the claimant during this period is very limited. It is agreed that a separate file must have existed. This of course is not available. In oral evidence, Ms Ruegger said that it appeared that Miss Coller remained the social worker responsible for Miss P and the claimant even after February 1977. It was she who investigated the incident in February 1978, when the claimant’s legs were found to be bruised and a toe nail missing. She was to attend a Case Conference about the claimant shortly afterwards and was the person who was going to contact the RFH if any further information from doctors was required. She was informed, during the claimant’s hospital admission in June 1978, of the staff’s concerns that Miss P alternated between cuddling the claimant and shouting at her and hitting her. Miss Coller and the Health Visitor are recorded as describing that behaviour as Miss P’s “usual pattern”. Miss P was refusing out-patient appointments and blood tests for the claimant. Concerns were expressed during 1978, not only by the hospital staff, but also by members of the public, Miss P’s next door neighbour and (in August and November) by Miss P’s sister. In January 1979, Miss Coller was present at Mrs P’s home when Miss P inflicted violence on her mother. On the same occasion, Miss P threatened to “kill” the claimant when her sister brought her back after a prolonged Christmas visit, and to kick the unborn twins out of her sister’s stomach. Ms Ruegger said that, whatever monitoring was being undertaken after February 1977, it must have been inadequate. There was clear evidence of very poor care by Miss P together with violent behaviour, yet no action was taken to protect the claimant.[180]At some point during the early 1980s (probably some time before December 1982: see paragraph 79 of this judgment), the defendant had decided to take the claimant off the CP Register and (some time later) all monitoring had ceased and the file had been closed. Ms Ruegger said that, given the history, it could not have been appropriate to cease monitoring the claimant. Without knowing more, she could not comment on the decision to de-register the claimant.[181]In expressing those views about the standard of care given by the defendant after February 1977, Ms Ruegger departed in her oral evidence from the agreed statement referred to at paragraph 178 of this judgment. It was suggested to her in cross-examination that she had changed her evidence very significantly since the preparation of the Joint Statement. Ms Ruegger did not accept that this was the case. She explained that there had been difficulties in drafting that particular answer and that she had been working under pressure. She had intended to say that, while the level of care during this period was not known, that did not mean that it was not possible to draw inferences from the other information that was available.[182]Mr Lane remained of the view that it was impossible, without more information, to assess the quality of care being given by the defendant during this period. The episodes and reports about which there was evidence were infrequent. There was no indication of constant problems. In his view, it was not possible to draw the inference that the care had been below the appropriate standard.

The period after 1989

[183]The experts differed in their assessment of the quality of care given after the claimant’s admission into care in November 1989. Mr Lane considered that there was a lack of competent care, while Ms Ruegger’s view was that, although there may have been some aspects that were less than satisfactory, they did not amount to negligence. The law on

Limitation

[184]The primary limitation period expired on 25 November 1996, the claimant’s 21st birthday. The letter of claim was sent in August 2005. A claim form was issued in September 2007, but allowed to lapse. The current claim form was issued on 23 May 2008, 11½ years after the expiration of the primary limitation period.[185]The relevant provisions relating to date of knowledge are contained in sections 11 and 14 of the 1980 Act. The combined effect of section 11(3) and (4) is that an action for personal injuries cannot be brought more than three years after the date on which the cause of action accrued or (if later) the date of knowledge of the person injured. The claimant does not contend that her date of knowledge was less than three years before she commenced proceedings. The sole question to be determined on limitation is whether, despite the fact that the claim was commenced outside the limitation period, I should exercise my discretion under section 33 of the 1980 Act.[186]Section 33 provides: “(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 section11 … 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.” ((1A) and (2) are not relevant for these purposes) (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 …;(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 provisions of section11 … 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; (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 …; (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”.[187]In the leading case of A v Hoare and Ors [2008] UKHL 6, the House of Lords considered, interalia, the approach to be adopted by a court when considering when a claimant acquired the requisite knowledge under section 14. In particular, the court considered the extent, if any, to which account should be taken of characteristics personal to the claimant, whether pre-existing or consequent upon his injury. The court concluded that the test was an objective one and disapproved the partly subjective test which had been applied in the earlier cases of McCafferty v Metropolitan Police District Receiver [1977] 1WLR 1073 and KR v Bryn Alyn Community (Holdings) Ltd [2003] QB 1441.[188]However, Lord Hoffmann made clear that the question of whether the claimant, taking into account his psychological state in consequence of the injury, could reasonably have been expected to institute proceedings is not irrelevant to the issue of limitation. At paragraph 45, he said that the law:
“…deals with that question under section 33, which specifically says in subsection (3)(a) that one of the matters to be taken into account in the exercise of the discretion is “the reasons for … the delay on the part of the plaintiff” ”
. Hewent on to observe at paragraph 49:
“The judge is expressly enjoined by subsection (3)(a) to have regard to the reasons for the delay and in my opinion this requires him to give due weight to evidence, such as there was in this case, that the claimant was for practical purposes disabled from commencing proceedings by the psychological injuries which he had suffered.”
[189]Lord Carswell referred to the different approach which would now be applicable to the exercise of discretion. At paragraph 70, he said: “If, as I think to be the case, section 14 should be construed in this manner, which is less favourable to a claimant, there requires to be a more liberal approach to the exercise of discretion than has always been the case. For the reasons which my noble and learned friends and I have set out, that less favourable construction of section 14 is correct in principle, but it must follow that the favourable factors which have hitherto been taken into account in reaching a conclusion under section 14 should form part, and in appropriate cases a very significant part, of the judge’s determination in exercising his discretion under section 33”.[190]At paragraphs 85 to 87 Lord Brown, made three comments on the exercise of discretion:
“85 First, insofar as future claims may be expected to be brought against employers (or others allegedly responsible for abusers) on the basis of vicarious liability for sexual assaults rather than for systemic negligence in failing to prevent them, they will probably involve altogether narrower factual disputes than hitherto. As Lord Hoffmann suggests, at paragraph 52, that is likely to bear significantly upon the possibility of having a fair trial. 86 Secondly, through the combined effects of Lister v Hesley Hall Ltd and departing from Stubbings v Webb, a substantially greater number of allegations (not all of which will be true) are now likely to be made many years after the abuse complained of. Whether or not it will be possible for defendants to investigate these sufficiently for there to be a reasonable prospect of a fair trial will depend upon a number of factors, not least when the complaint was first made and with what effect. If a complaint has been made and recorded, and more obviously still if the accused has been convicted of the abuse complained of, that will be one thing; if, however, a complaint comes out of the blue with no apparent support for it (other perhaps than that the alleged abuser has been accused or even convicted of similar abuse in the past), that would be quite another thing. By no means everyone who brings a late claim for damages for sexual abuse, however genuine his complaint may in fact be, can reasonably expect the court to exercise the section 33 discretion in his favour. On the contrary, a fair trial (which must surely include a fair opportunity for the defendant to investigate the allegations-see section 33(3)(b)) is in many cases likely to be found quite simply impossible after a long delay. 87 Hitherto the misconstruction of section 14(2) has given an absolute right to proceed, however long out of time, to anyone able to say that he would not reasonably have turned his mind to litigation (more than three years) earlier (the Bryn Alyn test described by Lord Hoffmann at paragraph 36). It is not to be supposed that the exercise of the court's section 33 discretion will invariably replicate that position. ”
[191]Hoare was a case of attempted rape and the related cases concerned vicarious liability for sexual abuse. The evidence in that type of claim is in general more straightforward than in a case of professional and/or systemic negligence.[192]The Scottish case Bowden and another v Poor Sisters of Nazareth and others [2008] UK HL32 was concerned with allegations by former residents of a children’s home of physical abuse suffered in the 1960s. In setting out the approach to the exercise of discretion under the Scottish provisions equivalent to section 33 of the 1980 Act, Lord Hope said at paragraph 25 of his judgment: “…the context in which that discretion is to be exercised is plain enough. Its effect will be to reimpose a liability on the defender which has been removed by the expiry of the limitation period. The issue on which the court must concentrate is whether the defender can show that, in defending the action, there will be the real possibility of significant prejudice…The burden rests on the party who seeks to obtain the benefit of the remedy. The court must, of course, give full weight to his explanation for the delay and the equitable considerations that it gives rise to. But proof that the defender will be exposed to the real possibility of significant prejudice will usually determine the issue in his favour. This is a question of degree for the judge by whom the discretion … is to be exercised”.[193]As to prejudice, Parker LJ made the following observations in Hartley v Birmingham City Council [1992] WLR 979 at 979 G – 980 C: “… In my view, however, as the prejudice resulting from the loss of the limitation defence will always or almost always be balanced by the prejudice to the plaintiff from the operation of the limitation provision the loss of the defence as such will be of little importance. What is of paramount importance is the effect of the delay on the defendants' ability to defend. The specific example given in section 33(3) (b) so indicates…”.[194]The case of Donovan v Gwentoys [1990] WLR 472 established that, although section 33(3) of the 1980 Act refers only to delay occurring after the expiration of the primary limitation period, the court must nevertheless take into account all the circumstances of the case, including any prejudice that might be faced by a defendant relating to delay before the limitation period expired.[195]I shall bear all these principles in mind when reaching my decision on the issue of limitation. The parties’ submissions The claimant’s submissions

The parties’ submissions

[196]For the claimant, Ms Gumbel referred to the efforts which the claimant had made to obtain access to her Social Services records from 1992 onwards. In 1996, the First Step Centre had made a request on her behalf for the records. Whilst she had not taken any further steps to pursue the matter for the next eight years, that was a very difficult period in her life. She had young children, a violent partner and was struggling to come to terms with her difficult childhood. She was also affected by the psychiatric condition from which she still suffers. The police inquiry, which started in April 2004, further delayed disclosure of her records. It was not until 2005 and 2006 that documents were disclosed to her. Even then, it took an order of the court before full disclosure was given. This is not, Ms Gumbel submitted, a case where the claimant had deliberately delayed. Her delay was excusable in the circumstances.[197]Ms Gumbel pointed out that, at the time the primary limitation period expired, the file on Miss P and the claimant was already missing. It had been closed in the 1980s and could not be found in 1989, when the claimant again came to the defendant’s notice. It was still missing in 2004, when the police were requesting the relevant documents. It has not come to light since. The defendant had advanced no reason for its disappearance and it appeared that it must have been misplaced in some way. This must have happened relatively shortly after the file was closed, at a time when the claimant was still a child and it must have been foreseeable that she might once again come to the notice of the defendant. The defendant had also apparently lost all record of the claimant having been on the CP Register. No evidence had been adduced to show that it would have been any easier to locate important witnesses (e.g. Miss Coller and Mrs O’Kelly) in 1996 than it was in 2009. In any event, without the file, it was unlikely that they would have been able, 20 years or more after the event, to remember sufficient detail to be of assistance.[198]Ms Gumbel submitted that it was highly unlikely that a separate file on the claimant existed before February 1977. She said that, while there may have been other documents relating to the period 1976-February 1977, which had been placed on the new file, they would not have formed part of the running record which accurately showed the nature and extent of the defendant’s involvement with the claimant during the relevant period. The defendant’s expert had conceded that he would not have expected records of visits to be removed from the file unless there were whole pages devoted to a visit or visits. It was evident from the documents (and accepted by the defendant) that Miss Coller’s conduct had fallen below current standards of competence in a number of respects. In particular, there was a failure to visit the claimant immediately after reports of violence towards her and (after the April 1976 incident) to take prompt steps to have her medically examined. These failures, coupled with her failure (evidenced by the records) to focus on the issue of risk to the claimant and to look at the full picture, formed the basis of Ms Ruegger’s view that Miss Coller did not have a real understanding of child protection issues. Even if there had been other documents showing that the claimant had been placed on the CP Register in April or August 1976 and/or containing records of Case Conferences and/or other meetings, these would not have affected the fact that the claimant was not being regularly monitored and information about her was not being systematically gathered. Consequently, any decisions taken cannot have been properly informed.[199]Ms Gumbel submitted that the available documents show a picture of abuse of the claimant by Miss P and a failure by her to protect the claimant from violence by others, a reluctance to assume responsibility for her care and a lack of interest and inability on her part to form a proper relationship with the claimant. They also show that Miss P was in general frank about her feelings (or lack of them) for the claimant and about her violence towards her.[200]Ms Gumbel argued that it was relevant also to look at what had happened subsequently. It was now clear, from the evidence of the claimant and AB and from Miss P’s plea of guilty, that the claimant had been subjected to physical abuse throughout her early years. In 1989, Miss P had frankly admitted that, from the time of the claimant’s birth, she had regarded her as a “noose around her neck”. She had formed no proper maternal relationship with her. There was every reason to think that, had there been regular monitoring of Miss P and the claimant by a social worker with experience in child protection matters, and had the social worker concerned been focused on the claimant’s welfare, the risks to her would have become evident and the need to take action to protect her from those risks would have been recognised. As it was, visits to Miss P and the claimant were very infrequent and enquiries into matters concerning the claimant’s safety were superficial and ineffective in nature. Miss Coller accepted Miss P’s rejection of the various placements offered and her refusal to accompany the child to nursery. There was no insistence on an assessment of her parenting skills. The existence of further notes and records and/or the availability of Miss Coller and Mrs O’Kelly (had they had any useful independent recollection of events) would not have made any difference. In the circumstances, Ms Gumbel submitted that a fair trial was still possible in this case.[201]Ms Gumbel argued also that the available evidence showed that Miss P’s care of the claimant did not improve. In 1977 and 1978, she missed out-patient appointments and refused blood tests for the claimant. Bruising was observed on the claimant’s legs in February 1978. At best, this was caused by Miss P swinging her round in an inappropriate manner, although Dr Williams clearly doubted that that was the true explanation. There were reports of ill-treatment from hospital staff, members of the public, a neighbour and members of the family. Miss Coller herself witnessed a violent incident in January 1979 when Miss P attacked her mother. These incidents could not be consistent with Miss P being a satisfactory mother. They were, however, entirely consistent with the situation as it had been in 1976 and as it was eventually found to be in 1989. It was clear that Miss Coller had still been the social worker responsible for Miss P and the claimant in 1977 and 1978. Ms Gumbel argued that any proper system of monitoring would have revealed the risk to the claimant caused by Miss P’s behaviour. She referred to the agreement to that effect contained within the expert’s Joint Statement: see paragraph 178 of this judgment.[202]Ms Gumbel argued that, if the defendant had recognised, (as it should have done) the true extent of the risk to the claimant, it should and would have obtained an interim care order or a supervision order and taken steps, with or without an assessment of Miss P’s parenting abilities, to protect the claimant. Any proper assessment would have revealed a lack of abilities and motivation and would have resulted in the removal of the claimant from her care.

The defendant’s submissions

[203]For the defendant, Mr Ford pointed to the length of the delay. He accepted that, for part of that period, the claimant had been a child. However, she had sought legal advice as early as 1996 after which there had been an unexplained delay until 2004. She had instructed two sets of solicitors that year and had issued a claim form in September 2007 that had been allowed to lapse. She had suggested for the first time in evidence that her social worker, Ms Beeston, had “fobbed her off” when she asked for her records. He said that the defendant was unable to challenge this assertion because Ms Beeston’s evidence had been agreed. He submitted that there was no evidence of a concerted attempt on the part of the defendant to keep the documents from the claimant. Nor had the conduct of the defendant caused or contributed to the delay. Mr Ford argued that, even if the claimant had had a good reason for not pursuing her claim earlier, that did not mean that the defendant had not suffered prejudice as a result of the delay.[204]Mr Ford said that the two principal points of prejudice on which the defendant relied were the absence of Miss Coller and the absence of the file dating from (at the latest) February 1977. In order to succeed, the claimant must show that Miss Coller had been negligent to the standard set out in the case of Bolam. He submitted that, without her evidence, significant areas of uncertainty must remain. He cited three examples. He referred to the entry in the running record on the family file dated 14 March 1976, stating “visited twice since last entry”. The experts had speculated as to whether Miss Coller had succeeded in seeing the claimant on those two occasions, or whether the visits had been abortive. This was important since it was agreed that, if Miss Coller had not visited Miss P and observed her with the claimant promptly following the report of slapping on 24 February 1976, that would have been negligent. He said that, had Miss Coller given evidence, she may have been able to explain the entry. Furthermore, she may have been able to explain why she did not succeed in obtaining a PSO on 30 April 1976. She may also have been able to say when the claimant was placed on the CP Register. That was of particular importance since, if she had been placed on the Register prior to February 1977, it was clear beyond doubt that the documents on the family file did not show the complete picture of the defendant’s involvement during the period to February 1977.[205]Mr Ford said that it was clear that there had been a file for Miss P and the claimant which came into existence some time between December 1976 and February 1977. That file had not been located, despite extensive efforts by the defendant to do so. He argued that it could not be assumed that the file had been lost by 1989. The entry relating to the missing file was unsigned and gave no details of the thoroughness of the search which had been undertaken at that time. A more extensive search might have discovered the file. If it was lost at that time, there was no evidence as to how that had happened. It would be wrong to impute the loss of the file to any fault on the part of the defendant.[206]Mr Ford submitted that it was overwhelmingly likely that, at the time of the creation of the new file, significant documents relating to Miss P and claimant would have been removed from the family file and placed on the new file. That would have been good practice. Moreover, there were clearly some documents which were missing from the family file. One example was a document relating to the failure to obtain a PSO in April 1976 and the steps to be taken thereafter which must, he said, have existed. If, as Mr Ford suggested was likely, the claimant was placed on the CP Register at that time (or failing that, in August 1976), there would be documents in relation to the registration which must have been transferred to the new file. There would also be documents about Case Conferences and other meetings.[207]Mr Ford submitted that the absence of the relevant documents, together with that of Miss Coller, caused the defendant real prejudice in defending the claim. He urged me not to speculate on what the missing documents might have said. The reality was that they might have shown that there was negligence or they might have revealed that there was not. It was impossible to say.[208]Mr Ford also relied on the fact that the claimant had made allegations of sexual abuse very late in the day, giving the defendant no opportunity to investigate them. He acknowledged, however, that, given the claimant’s stated reasons for not making the allegations sooner, the prejudice caused may not weigh very heavily in the balance.[209]As to factual causation, Mr Ford submitted that the damage to the claimant could only have been avoided if the claimant had been permanently removed from her mother’s care. He relied on the evidence of Mr Lane to the effect that, judged by the standards of the mid-1970s, the recorded incidents would not have been considered sufficiently serious as to justify removal. There were other measures (such as registration, residential assessments, a supervision order or an interim care order) which could have been taken to protect the claimant and which would have been attempted before resorting to foster care and adoption. Discussion and conclusions on the basis of the available documents The physical and emotional abuse

Discussion and conclusions on the basis of the available documents

[210]The defendant accepted that the claimant was physically and emotionally abused by Miss P throughout her childhood up to the time when she was taken into care. The ill-treatment occurred on a daily basis and affected all aspects of the claimant’s life. Miss P appeared to take pleasure in hurting, frightening and humiliating the claimant.[211]The claimant was a compelling witness. It may be, as Mr Ford suggested to her in cross-examination, that there were not as many hospital visits as a result of injuries as she now believes. (This would not be surprising since Miss P had a pre-occupation with health issues and the claimant was taken to hospital for a number of apparently non-existent ailments. It may be that she has confused some of these visits with attendances by reason of injury.) Nevertheless, I am satisfied that there were more attendances on account of injuries than the available hospital notes would suggest. Other records have no doubt been mislaid or are held at a different hospital.[212]I am unable to be satisfied either, on a balance of probabilities, that the injury following the accident on the slide at the Day Nursery was caused in the way the claimant described. It would be surprising if she could accurately recall an incident that happened when she was so young. Nevertheless, I accept that there was an episode of the nature she described, albeit (as she originally suggested) at a later date. I am quite satisfied that the claimant was doing her best to give me an accurate picture of events and in general I accept her evidence about the nature and scale of the ill-treatment to which she was subjected.[213]The claimant’s evidence was supported by that of her aunt, AB, who confirmed that the claimant was subjected to regular physical abuse. It is clear from the entries in the family file that AB had concerns about the claimant which were reported to the defendant in February 1976, August and November 1978, as well as at the time of the biting incident in 1989 and after that incident. The available documents also record concerns reported by other members of the family on 24 February 1976, 14 March 1976, 5 April 1976, 25 April 1976, and in August 1978. It is possible that there were other occasions when concerns were raised and were recorded in documents that have since been lost. However, I do not accept that AB and other members of the family made regular complaints several times a year during the whole period up to 1989. The records suggest that some of Miss P’s sisters, including AB, became Jehovah’s Witnesses and, for a time, attempted to deal with matters through their church, rather than the defendant. I find that they did not take active steps to alert the defendant to their concerns over the whole of the relevant period. Nevertheless, I accept that their concerns persisted throughout the period and were entirely justified. The

Sexual abuse

[214]Although, in usual circumstances, a failure to mention sexual abuse to the police, a doctor, the CICA and in pre-action correspondence might well cast serious doubts on the veracity of later allegations, I am quite satisfied in this case that the sexual abuse described by the claimant occurred. There are a number of references, in the history which I have set out, to suspicions of sexual abuse held by those dealing with the claimant (social workers, foster parent and teacher) in 1989. They were understandably concerned about Miss P’s continuing insistence that the claimant should sleep in her bed. Miss P had told social workers about the sexual abuse of her siblings by her brother, G, and there was concern that she seemed happy for him to have contact with the claimant. In 1989, in the presence of the claimant’s foster mother, Mrs Petch, Miss P threatened the claimant with sending for G as a punishment. These matters provide strong support for the claimant’s allegations.[215]Moreover, the claimant had mentioned the fact of sexual abuse to her solicitors prior to June 2008, when the Particulars of Claim were filed but had declined to give any details. I find her explanation for not doing so entirely convincing. Her distress when the matter was raised while she was in the witness box was very evident.

The relevance of later events

[216]It is of course very important to ensure that I do not permit information about the extent and duration of the claimant’s ill-treatment, which has become available since 1989 but was not available to the defendant at the material time, to colour my judgment about what the defendant should or should not have known or done in the 1970s. It would be easy to say with hindsight that the defendant took the wrong decision in not removing the claimant from Miss P’s care.[217]However, the evidence about subsequent events does have considerable relevance. First, it sheds light on what was actually happening in the years between 1979 and 1989. Second, and very significantly, it provides the opportunity to compare aspects of Miss P’s character and behaviour towards the claimant as it was in 1989 with those she exhibited as a young woman in 1976. That comparison reveals that many facets of her personality, and her attitude to and treatment of the claimant, remained remarkably constant over the years.

Important features

[218]The available records for 1976 demonstrate a number of potential causes for concern. Miss P’s family reported instances of casual violence towards the claimant. When the claimant was only ten weeks old, Miss P was said to hit and bite the claimant. This was not an isolated incident; it is plain that Miss Coller was being told that it was a regular occurrence. Miss P herself admitted slapping the claimant sometimes. In April 1976, there was the incident when, at the end of a fight with one of her sisters, Miss P snatched the claimant from Mrs P and (presumably to relieve her anger with her sister) slapped the claimant hard, causing bruising. The day after that incident, Mrs P told Miss Coller that Miss P was striking the claimant virtually on a daily basis.[219]Another potential cause for concern was the fact that Miss P appeared unable to protect the claimant from violence inflicted by others. The claimant was struck by one of Miss P’s brothers and by her father, LS, both during violent incidents involving Miss P. At one point, Miss P was suggesting that C, her chosen childminder, had caused injury to the claimant. C was a person who was known to the defendant to have been unable to cope with caring for her own baby.[220]There were also potential concerns relating to Miss P’s interest in caring for the claimant and her ability to do so. On seeing Miss P and the claimant on 11 March 1976, Miss Coller observed that she did not seem to have any real concern for the claimant. Despite the fact that she was not working, she had engaged C as the claimant’s childminder and the claimant spent much of her time with C. Miss P declined the opportunity to go to a foster home with the claimant and was not prepared even to accompany her to a Day Nursery on the ground that she would be bored and preferred to be free to visit her girlfriends. She did not wait to see the doctor at the paediatric clinic in April 1976, thereby exhibiting what was said by Mrs O’Kelly to be “typical impulsive behaviour”. After Miss P and the claimant had been struck by LS, Miss P could not be bothered to stay at the hospital until the claimant had been examined, but left her in AB’s charge. C had reported hearing Miss P saying that she did not want the claimant. Mrs P doubted whether she wanted the claimant and had heard her gloating to the claimant about being “free of her” when she went on holiday. Miss P asked for the claimant to be fostered to get her out of the way of potential violence in the family home but would not accept the options offered to her and attempted to withdraw her request. Concerns were voiced by Miss Coller, Mrs O’Kelly and Mrs Newman (Nursing Officer at the Family Health Clinic) that Miss P was using the claimant to obtain housing without really wanting the trouble of looking after her. There was plainly a real doubt as to whether Miss P had any genuine affection for or interest in the claimant.[221]In 1976, Miss P was still a young girl who was living in overcrowded and difficult conditions. Some of the concerns referred to above might have resolved with time. Plainly Miss Coller hoped that they would. In the event, however, it is clear that they did not. In 1989, Miss P told social workers that she had never wanted the claimant and had not been able to cope with the claimant’s demands as a baby. She said that she had always resented the claimant and regarded her as a “noose round her neck”. She told them how much she disliked the claimant and how she sometimes wanted to “beat her to pulp”. She admitted that she had bitten the claimant in April 1989 and would beat her when she lost her temper. I have already referred to the physical and sexual abuse suffered by the claimant over the years.[222]I suspect that, sadly, the catalogue of physical, emotional – and even sexual – abuse to which the claimant was subjected is not exceptional. However, there are two features of this case in particular which do seem to me very unusual and which I regard as particularly significant.[223]The first of these is the frankness with which Miss P was prepared to admit her feelings about the claimant and the fact that she ill-treated her. This was a feature of her behaviour in 1989, as I have described at paragraph 221 of this judgment. She exhibited similar frankness in 1976, when she readily admitted slapping the claimant and made no secret of her disinterest in spending time caring for the claimant at a Day Nursery. When she thought that Miss Coller was seeking to dissuade her from pursuing her request for the claimant to be fostered, her immediate response was, “All right then don’t take her and it’ll be your fault if she gets hurt”. In 1979, in Miss Coller’s presence, she threatened to “kill” the claimant because her aunt had kept her for too long.[224]The second unusual feature is the fact that the presence of other people did not appear to deter Miss P from using violence. She hit the claimant in front of members of her family, a friend (the clog incident), hospital staff, members of the public in the hospital canteen (in June 1978) and even (in 1989) the foster parents with whom the claimant was placed. In 1979, she kicked and abused her mother in the presence of Miss Coller.

The expert evidence

[225]Mr Ford suggested that I should treat Ms Ruegger’s evidence with caution in view of the fact that, in the witness box, she had resiled from the agreement in the Joint Statement to the effect that no conclusions about the quality of the defendant’s monitoring during the period from February 1977 could be reached because of the absence of documents for that period. He suggested that she had been unwilling to accept that the claimant had at any time been on the CP Register. She had also, he said, been reluctant to concede that there had at any time been a separate file on Miss P although it was now accepted that this was the case. He suggested that all these features cast doubt on the reliability of her evidence.[226]I do not accept those criticisms of Ms Ruegger, whom I considered to be a fair and careful witness. I accept her explanation for the answer given in the Joint Statement. I note that the position she adopted in her oral evidence was broadly consistent with that set out in her Report. I do not accept that there was any reluctance on her part to accept the fact of registration or the existence of a separate file. In my view, she was attempting at all times to give accurate and considered answers on the basis of the written material available to her. My view that she was a fair witness is supported by the fact that she did not seek to suggest that there had been any negligence on the part of the defendant after November 1989. To that extent, her evidence was less favourable to the claimant than that of Mr Lane.[227]I have no doubt also that, in giving his evidence, Mr Lane was doing his best to be fair. He readily conceded that, in a number of respects (and on the footing that the available documents gave the whole picture), the defendant’s handling of the claimant’s case in 1976 was below the accepted standard. He accepted that competent social work monitoring and regular visits (including discussions alone with the claimant) between February 1977 and January 1989 would (provided that the claimant had voiced her concerns and was not prevented from doing so by Miss P) have revealed the fact that she was being physically and emotionally abused by Miss P and should be removed from her care. As I have said, he suggested that there had been negligence on the defendant’s part in the period from November 1989.[228]Nevertheless, I formed the view that Ms Ruegger had a greater practical understanding of child protection issues than did Mr Lane. It seemed to me that Mr Lane failed to take into account the full picture of concerns about Miss P’s suitability to care for the claimant. He concentrated on the extent of physical violence and the relatively minor injuries which resulted. However, there were other potential concerns about Miss P’s suitability as a carer which, as Ms Ruegger emphasised, should have been taken into account.

The file on Miss P and the claimant

[229]Although it was at one stage suggested that a file for Miss P and the claimant may have been created during early or mid 1976, it now appears to be accepted by the defendant that it is likely to have come into existence between December 1976 and February 1977. I consider that the overwhelming likelihood is that it was created in February 1977 when Miss P and the claimant left the family home. The setting up of a new household would have been the obvious time for a new file to be started. References to the new file appear in the family file after that time, whereas there is no evidence that there were two files running in parallel during 1976. It seems from the fact that Miss Coller was involved in incidents that occurred in 1978 that she retained responsibility for Miss P and the claimant until at least the end of 1978 and was therefore responsible for maintaining both files during that period.[230]I accept Mr Lane’s evidence that, at the time the new file was created, free-standing documents relating solely to Miss P and the claimant are likely to have been transferred from the family file to the new file, thus creating a history for the assistance of anyone using the file. The documents transferred would not, as Mr Lane conceded, in general have included extracts from the running record. That would have been preserved on the family file. I accept, however, that, if there had been entire documents devoted to visits to Miss P and the claimant, those documents might have been transferred. In practice, since it appears to have been rare for Miss Coller to visit Mrs P’s home without seeing members of the family other than Miss P and the claimant, the existence of more than the odd document solely relating to visits to Miss P and the claimant seems unlikely.

Registration

[231]A manuscript entry in the RFH social worker’s records stated that the claimant was “STILL ON NAI REGISTER”. The entry is undated and unsigned but appears immediately under an entry made on 21 June 1978. There is no further entry on the page. That entry, together with the reference in Miss Coller’s summary of December 1982 to the effect that the claimant had been “on the At Risk Register for several years” and the evidence of AB, make it virtually certain that the claimant was on the CP Register at some point.[232]It seems to me that the claimant must have been on the CP Register prior to February 1978. There is reference in the RFH social worker’s records to a Case Conference or review held on 14 or 15 February 1978. Although there was an incident (bruising of the legs) that gave rise to a visit to hospital shortly before that date (on 7 February 1978), the clear impression I have is that the Case Conference had been arranged before that incident, not as a result of it.[233]It was agreed by the experts that the likelihood was that registration would have been initiated as a result of an injury suffered by the claimant. There is no evidence of her sustaining any significant injury during 1977. The RFH records refer to only two admissions for suspected non-accidental injuries (i.e. those of April and August 1976) before February 1978. Although the possibility that there was an injury in 1977 of which nothing is now known cannot be altogether ruled out, it is far more likely that the precipitating event was the injury suffered by the claimant in either April or August 1976.[234]I regard it as probable that registration occurred shortly after the incident in April 1976, probably in mid-late May 1976. The letter dated 3 May 1976 written by the defendant to the claimant’s GP appears to be a standard letter intended as a preliminary step to possible registration. It is clear from the note made by the RFH social worker after the failure to get the PSO on 30 April 1976 that the claimant’s case was to be considered at a fairly high level within the defendant’s Social Services Department. The discussions which led to the application for the PSO show that there was real concern for the claimant’s safety at that time. Having failed to get a PSO, it would have been a logical step to proceed to registration. The note of 15 June 1976, referring to “NAI see review passed to Hugh Toomey” can best be explained in the context of the claimant having been on the CP Register at that time.[235]I agree with Ms Ruegger that it is surprising not to see a greater degree of cross-referencing of matters relating to registration (e.g. Case Conferences and other meetings) within the running record on the family file, together with more evidence of liaison between Miss Coller and other professionals. One example of a lack of liaison was in December 1976, after receipt of the report from the Day Nursery that the claimant had a cut under her eye. There is no suggestion in the running record that Miss Coller consulted anyone else about the injury or did anything to follow it up. She appears to have been content to accept the opinion of the Nursery Superintendent that it was not “anything to question”. However, it seems to me that the lack of reference in the running records to issues related to registration may well be a reflection of Miss Coller’s attitude to child protection matters, rather than evidence that there was no registration in place. The fact that the Day Nursery Superintendent telephoned Miss Coller to report what she considered to be a non-suspicious injury is in my view likely to have been because she was aware that the claimant was on the CP Register.[236]It follows from my finding that the claimant was placed on the CP Register in mid-late May 1976 that there must have been documents relating to the registration which were transferred to the new file when it was opened and have subsequently been lost. There would have been documents dealing with the failure to obtain the PSO and the decision to register, and relating to any subsequent Case Conferences or other meetings. There may have been other documents recording decisions taken in the claimant’s case and the reasons therefor.

Breach of duty

[237]I turn now to consider the precise nature of the defendant’s breach of duty during the period November 1975 to February 1977, as revealed by the available documents. I make clear that my findings are on the basis of the standard of care applicable in the mid 1970s.[238]Despite the fact that she first received a report of violence towards the claimant, a young baby, on 4 February 1976, the running record shows that it was not until 11 March 1976 that Miss Coller first met Miss P, and observed her and the claimant together. If there was such a delay in visiting Miss P and the claimant, it was, in the circumstances, completely unacceptable and a breach of duty. Even when she did visit, Miss Coller appears to have made no detailed enquiries about the frequency with which, or the circumstances in which, the incidents of slapping had occurred, why Miss P should have struck the claimant or whether she was likely to do so again. On 15 March 1976, she seemed reassured when Miss P told her that she slapped the claimant but “couldn’t hurt her badly”. Given the claimant’s young age at the time (four months), that also was unacceptable.[239]On 11 March 1976, Miss Coller formed the view that Miss P did not appear to have much real concern for the baby. That fact, coupled with the admitted violence, should plainly have alerted Miss Coller to the need to monitor the position closely. Yet the running record shows no further sighting by her of Miss P with the claimant for seven weeks. Meanwhile, there had been further reports of violence, including an incident involving one of Miss P’s brothers. Miss Coller had been on leave when that incident occurred but she was told about it on her return. At that time, Miss P was asking for the claimant to be fostered. Miss Coller sought to dissuade her. It was then that Miss P told her “All right then don’t take her and it’ll be your fault if she gets hurt.”[240]Just over a week later, on 26 April 1976, Miss P herself assaulted the claimant and the matter was reported to the police. The running record indicates that Miss Coller did not immediately visit the claimant after that incident or arrange for her to be medically examined. She visited the family home three days later on 29 April 1976, saw Miss P playing “quite sweetly” with the claimant (her second recorded sighting of them together) and observed bruising and the prickle marks on the claimant’s face for which Miss P could offer no explanation. There is no indication in Miss Coller’s note that she sought any details about either of the reported assaults on the claimant.[241]At the time of the claimant’s release from hospital following the defendant’s unsuccessful attempt to obtain a PSO on 30 April 1976, Mrs O’Kelly informed the hospital social worker that the best plan for the claimant’s protection would be for Miss Coller to visit her daily. Yet the subsequent entries in the running record clearly show that no member of staff from the defendant’s Social Services Department visited Miss P during the subsequent week. They also show that, a week after the claimant’s discharge from hospital, Miss Coller did not know where the claimant and Miss P were living and, when Miss P telephoned her, did not press her to say. This is very surprising, given the fact that it was at this time that the defendant had (as I have found) started the process of placing the claimant on the CP Register. Having regard to the events of the previous weeks, this failure on the part of Miss Coller and those supervising her to implement any proper system of monitoring the claimant’s safety and welfare amounted to a clear breach of duty.[242]According to the running record, Miss Coller did not see the claimant and Miss P together again before the claimant’s admission to hospital in August 1976. The running record contains no evidence that, after dealing with that incident, Miss Coller saw Miss P and the claimant together again before they left the family home in February 1977. During the whole of this period, as I have found, the claimant was on the CP Register, yet the available documents disclose no regular monitoring of her safety and welfare or any assessment of the potential risk to the claimant of permitting her to live alone with Miss P. This was particularly important since the defendant had failed to get the PSO it had been seeking and it must have been evident that, if any further order were to be required, systematic gathering of evidence would have to be undertaken.[243]I accept Ms Ruegger’s evidence that the available evidence demonstrates that Miss Coller had an imperfect understanding of child protection issues. One example of this was her failure on 30 April 1976 to inform the paediatric ward of the fact that her application for a PSO had been unsuccessful. That failure left the hospital staff in a very difficult position when Miss P and LS came to reclaim the claimant. An experienced child protection practitioner would have realised the importance of keeping the hospital informed about the claimant’s status.[244]Even more significantly, however, there is no indication in the documents that Miss Coller properly understood the implications of the violence used by Miss P on the claimant. She appears to have considered that, if it did not cause serious or lasting damage, it was not a matter of great concern. She never undertook any investigation into its frequency or its cause. Nor did she make any real attempt to assess the level of Miss P’s motivation and ability to care adequately for the claimant. Her observations of the two together were, it appears from the running record, very infrequent and extremely superficial. She did not make any adequate assessment of the risks to the claimant. She failed to consider the whole picture and the cumulative effect of all that she knew of Miss P and her attitude and behaviour towards the claimant. I accept Ms Ruegger’s evidence that this failure was probably the result both of a lack of expertise in child protection issues and of confusion between those issues and her role as supporter of Mrs P and her family. Whatever its cause, I find that it constituted a breach of duty.[245]The fault, however, was not wholly that of Miss Coller. Even before the abortive application for the PSO on 30 April 1976, other employees of the defendant had been involved in discussions about Miss P and the claimant. It is clear that senior staff were also involved immediately afterwards. If Miss Coller was not an expert in child protection matters, she should have been subject to close and careful supervision or replaced by a social worker with the appropriate expertise. Proper supervision would or should have revealed the inadequacies in her dealings with Miss P and the claimant to which I have already referred. If, as I have found, the claimant was placed on the CP Register in May 1976, other professionals would or should thereafter have been involved in decisions made about the claimant. Yet there is no sign – either then or later – of the type of systematic monitoring that one would have expected for a child who was on the CP Register. If there had been regular and structured discussions about the claimant at Case Conferences and other meetings or reviews, the lack of systematic monitoring should have become evident. It may, however, be that such discussions did not take place regularly. I have already referred to the absence during the relevant period (apart from the note dated 15 June 1976) of any references in the family file (or indeed the RFH social work records) to Case Conferences and the like. That might indicate that, despite registration, there was not much activity going on in the claimant’s case. In that event, responsibility for the breach of duty would lie with others as well as Miss Coller.

Limitation

[246]The question that I must address is whether it would be equitable to allow the action to proceed, despite the fact that it was commenced well outside the primary limitation period. I remind myself that the burden of showing that it would be equitable to do so lies on the claimant and that it is a heavy burden. With those matters in mind, together with the principles to which I have already referred, I shall address separately the considerations set out in section 33(3) of the 1980 Act.[247]Section 33(3)(a) requires the court to have regard to the length of, and the reason for, the delay on the part of the claimant. The length of the delay in this case is very substantial indeed: 32 years from the beginning (and 19 years from the end) of the abuse to the commencement of proceedings. I must give weight to that fact. At the time of the abuse, the claimant was a child. She did not attain the age of 18 until November 1993. By that time, she had already begun to seek information about her early life. She had asked to see the defendant’s records on her in October 1992 and her evidence, which I accept, was that she repeated that request from time to time thereafter. The records were not provided. In November 1996, just before her 21st birthday, she made a formal written request through a Legal Advice Centre. It does not appear that the defendant responded to that request. The claimant took no further active steps to pursue the matter until 2004.[248]During those intervening years, I find that the claimant was facing considerable difficulties. In 1990, when she was only 15 years old, she formed a relationship with a partner who had criminal convictions and took drugs. According to Ms Beeston, he was a bad influence on her and she too became involved with drugs and other criminal activities. Her partner was in and out of prison and was often violent (sometimes seriously violent) towards her. Her first child was born in September 1993 when she was only 17 years old. She had a second child in 1996. She and her partner had frequent separations after which they would become reconciled. The relationship ended in late 2002 after a serious assault which put her in hospital. She formed another relationship soon afterwards and, in 2003, gave birth to a child with disabilities. It seems that, from that time, her life became rather more settled. Throughout the whole of this period, the consultant psychiatrists who have examined her agree that she was suffering from an emotionally unstable personality disorder and drug dependence. When, in May 2004, she was asked by the police why it had taken her so long to report the abuse by her mother, she told them that she had “tried to pursue it before” but was having a lot of trouble with her ex-partner and his abuse. She said that she now felt “a lot more steady”.[249]The claimant cannot be criticised for her failure to take any active steps to investigate a possible claim against the defendant up to her 18th birthday. She remained in voluntary care until that time and had continuing contact with and support from its Social Services Department for some time afterwards. Furthermore, given the circumstances of the claimant’s childhood, her disrupted adolescence and the difficulties which she faced in the years following her 18th birthday, it is not in my view surprising that she did not make any steps to pursue enquiries into a possible claim during that period. She had attempted to obtain sight of her Social Services records in 1992 and 1996 (and, as I have found, at other times also) but her efforts met with no success. Without those records, she would have had no grounds for believing that the defendant had or might have been negligent in her early childhood. It was not until she obtained the document from her GP’s file (see paragraph 139 of this judgment) that she became aware that the defendant had known of Miss P’s violence towards her and yet had not removed her from Miss P’s care. That was after she had reported Miss P’s conduct to the police in late April 2004.[250]Once the claimant had reported the matter to the police, there was further delay while they attempted to obtain records from the defendant. The claimant tried to assist that process by making a written complaint to the defendant in October 2004 but the defendant decided to suspend investigation of that complaint until the police investigations had been concluded. Even when the criminal proceedings were concluded in July 2005, the records were not provided. By that time, however, the claimant had consulted her current solicitors. They sent a letter of claim in August 2005. They pressed the defendant for full disclosure of the documentation and, when that was not forthcoming, made an application to the court. Meanwhile they issued a claim form in 2007 which was allowed to lapse. It was not until April 2008 that all the relevant documents were received. The current claim form was issued in May 2008.[251]Section 33(3)(c) requires the court to consider the conduct of the defendant after the cause of action arose, including the extent (if any) to which it responded to requests reasonably made by the claimant for information or inspection for the purpose of ascertaining facts which were or might be relevant to the claimant’s cause of action. The defendant’s failure to respond to the claimant’s requests for the records is relevant here. In saying that, I am not suggesting that there was any concerted attempt to conceal information from the claimant. It may well be that those involved with the claimant’s care in 1992 and thereafter genuinely felt that it would not be in her best interests to dwell on what had happened in the past and gave her what they felt was good advice not to pursue her requests. However, the request by the Law Centre in 1996 should have received a positive response. If the records had been provided at that stage, it is in my view highly likely that, despite the claimant’s difficulties, she would have sought legal advice on their contents and proceedings would have been commenced much earlier than was in fact the case. Furthermore, while it was possibly understandable that, once the criminal proceedings were under way, the defendant should have suspended consideration of the claimant’s complaint about its failure to provide the records, there can have been no excuse for not having dealt with the matter promptly after those proceedings were concluded. I find on a balance of probabilities that the defendant’s conduct made a significant contribution to the delays that have occurred.[252]Another aspect of the defendant’s conduct that might be of relevance is the loss of the file relating to Miss P and the claimant. I shall refer to that matter later in this judgment.[253]Section 33(3)(d) requires the court to have regard to the duration of any disability of the claimant arising after the date of the accrual of the cause of action. I have taken into account when considering section 33(3)(a) the fact that the claimant did not attain her majority until November 1993 and have observed that no criticism can be made of her for any delay which occurred before that time.[254]Section 33(3)(e) and (f) require me to have regard respectively to the extent to which the claimant acted promptly and reasonably once she knew that she might have an action for damages and the steps which she took to obtain medical, legal or other advice and the nature of that advice. The claimant first sought legal advice in 1996 with a view to obtaining her records from the defendant. Her evidence was that, at that stage, she was not considering a civil claim but just wanted to know what the defendant knew about her past. The letter written on her behalf stated that she wished the Centre to “enquire into the events concerning her upbringing and care” by the defendant. I am satisfied that the request for the records was very much an exploratory step at that stage and that the claimant’s primary motive at that time was to find out what had happened to her in the past and precisely what part the defendant had played. It was not until she had obtained the document from her GP in April or May 2004 that she knew that the defendant had been aware of Miss P’s ill-treatment of her as a baby.[255]After that time, the claimant sought legal advice very promptly. At first, that advice was directed at a claim to the CICA. Once her current solicitors were instructed, they notified the defendant of a potential claim and began the process of seeking disclosure of documents. Until the relevant documents were available, it was not possible for the claimant to obtain expert or medical evidence in support of her claim. As I have said, the disclosure process took a considerable time due to the defendant’s failure to deal promptly with it.[256]I find that the claimant acted promptly and reasonably and that the delay which occurred was not – or not to any significant extent – the fault of her or her solicitors.[257]Section 33(3)(b) requires me to consider the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the claimant or the defendant is or is likely to be less cogent, than if the action had been brought within the primary limitation period. In particular, I must consider the effects of the delay on the defendant’s ability to defend the action.[258]I have already found that there were documents relating to the claimant which came into existence in 1976 and which would have been transferred to the new file in February 1977. These documents are likely to have included information about the failure to obtain a PSO in April 1976 and the successful application for a PSO in August 1976, together with Minutes of Case Conferences and meetings following the claimant’s inclusion on the CP Register. All the defendant’s documents from February 1977 onwards (except those kept by the RFH social worker and a few references in the family file) are missing. The defendant contends that that fact, coupled with the unavailability of Miss Coller, makes a fair trial impossible. It is said that, without the missing documents, it is impossible to determine whether or not the decisions taken by Miss Coller and others of the defendant’s Social Services Department staff were below the standard of decisions made by reasonably competent practitioners at the time. There may, it is said, have been circumstances of which we are unaware and which would have justified their actions and decisions. For example, any conclusions as to a failure on the part of Miss Coller to visit the claimant may be erroneous since there may have been visits or other incidents that went unrecorded. It is suggested that Miss Coller might, if she had been available to give evidence, have been able to shed light on her practice with regard to visiting and/or the recording of visits. As it is, no confidence can be placed on the completeness of the running record in the family file.[259]It is to be noted that section 33(3)(b) requires the court to consider the cogency of the evidence now, as compared with its cogency if the action had been brought within the primary limitation period. It is therefore, appropriate to consider what the position would have been if the case had been tried in, say, 1996. The relevant documents could not be found in 1989. Nor have they come to light since. There is in my view no reason to suppose that the search for documents conducted by the defendant in 1989 was inadequate. The defendant was at that time anxious to gather information about its past involvement with the claimant and had every reason to make a thorough search. I conclude that the documents had been mislaid by 1989 and would not have been available in 1996.[260]The defendant has provided no evidence as to the date when Miss Coller left its employment. It seems likely that she did so before 1989 since there is no indication in the records that she was consulted when the claimant came to the defendant’s notice that year. Nor is there any reason to believe that Miss Coller, Mrs O’Kelly or any of the other potential witnesses would have been traceable in 1996. Even if they had been, it is highly unlikely that, without the relevant records, they would have been able to provide a significant amount of additional detail about events which had happened 20-25 years earlier.[261]As to the other evidence, neither the claimant’s evidence nor that of AB is in my view likely to have been of materially better quality in 1996. Nor, since quantum is agreed, can any problems with the cogency of evidence relating to medical causation arise.[262]Thus, I do not regard the evidence as adduced by the claimant and the defendant as a whole as significantly less cogent than if the action had been brought within the primary limitation period.[263]That, however, is not the end of the matter. Section 33(3) requires me to consider all the circumstances of the case. I must take into account delay arising before the expiration of the primary limitation period. The relevant file must have been mislaid some time between the early 1980s (when it was closed) and 1989 (when it was found to be missing). During that period, the claimant was still a young child and in Miss P’s care. There could have been no realistic prospect of her bringing proceedings at that time.[264]At the time it was lost, the file was (or should have been) within the defendant’s control and the defendant should have had proper arrangements for storing it in such a way that it could be readily retrieved if necessary. It is clear that, for reasons that are not known, this did not happen, as a consequence of which the file could not be found when it was needed in 1989. There is no suggestion that there was any fire, flood or other extraneous event beyond the defendant’s control that caused the loss of the file. Nor, as the defendant conceded, would it have been the subject of any routine file destruction programme. Therefore, the failure must be attributable to the actions of one or more of the defendant’s employees and the defendant must bear the responsibility for its loss. That matter is not, of course, determinative. It merely one factor which I must put into the scale when reaching my decision.[265]Section 33(1) requires me to consider the degree to which any decision under the section would prejudice the defendant. I must therefore consider carefully whether, if I use my discretion in the claimant’s favour, this would give rise to the real possibility of significant prejudice to the defendant in defending the action.[266]At paragraphs 218-220 of this judgment, I summarised the potential causes for concern relating to the claimant’s care which existed in 1976. It is true that she had sustained no serious injuries which would in themselves have given rise to the conclusion that she should be removed from her mother. However, there was evidence of regular (said to be virtually daily) use of violence on the claimant. I am quite satisfied that that violence, coupled with the concerns as to Miss P’s ability and motivation to care for the claimant and her apparent lack of concern and affection for her, should have raised a serious question over the safety of the claimant if she were to remain in Miss P’s care, particularly after a move to separate accommodation. The available documents suggest that Miss Coller failed properly to address that question.[267]I am not persuaded that there were any, or any significant number of, additional visits to Miss P and the claimant over and above those which Miss Coller recorded in the family file. It is true that there is a reference in the entry for 14 March 1976 to there having been two unrecorded visits since the previous entry in the running record. However, the two visits were at least noted on 14 March 1976. One of those visits was that of 11 March 1976 which is fully described in the entry of 14 March 1976. I am satisfied that the visit of 11 March 1976 was Miss Coller’s first meeting with Miss P and the claimant. The entry she made on that occasion included her impression of Miss P and a reference to her personal appearance, which would have been unnecessary if she had met Miss P before. Furthermore, if she had seen the claimant on previous occasions, the overwhelming likelihood is that she would have followed the correct practice and made a note recording details of the claimant’s condition and how Miss P was handling her.[268]If the visit of 11 March 1976 was the first visit at which Miss Coller saw Miss P and the claimant, it follows that she cannot have seen them before that date. Miss P visited Miss Coller in her office on 15 March 1976 and it seems very unlikely that Miss Coller saw Miss P and the claimant again in the intervening period. The second visit referred to in the entry dated 14 March 1976 must therefore have been abortive, certainly in the sense that Miss Coller did not see Miss P and the claimant (she may have seen other members of the family). Thus, I do not accept that the reference to the two visits which went unrecorded at the time supports the conclusion that there were visits when Miss Coller saw Miss P and the claimant which were not included in the running record.[269]Given the background of concerns about the claimant throughout 1976, I do not regard it as likely that Miss Coller would have failed to record an episode of contact with the claimant during 1976. The fact that she did not make a practice of visiting regularly is demonstrated by her failure to visit the claimant (or arrange for another social worker to do so) after her failure to obtain the PSO on 30 April 1976. As I have said, she did not even know where Miss P and the claimant were living at that time and apparently made no effort to find out. I accept that it is just possible that there may have been the odd visit that was recorded on a separate sheet of paper in the running record which was later transferred to the new file. However, I am satisfied that the record of any such visit, had it been available, would not have affected the overall picture.[270]It is quite clear from the documents we have that what was required was a period of systematic monitoring and/or assessment to ascertain whether Miss P was capable of caring properly for the claimant. That view was shared by Miss Coller and those senior to her in April 1976 at the time when the unsuccessful application for a PSO was made. Yet it never materialised. Instead, the defendant allowed itself to be deflected by Miss P’s refusal of the various options offered to her. However many Case Conferences, reviews and other meetings may have taken place in connection with the claimant’s case after April 1976 (and, from the lack of cross-referencing in the available documents, it is my view probable that, in 1976, they were few in number), it is clear that no systematic monitoring and/or formal assessment was undertaken and no court order sought in order to compel Miss P to choose between submitting to such monitoring and/or assessment or risking the claimant being removed from her care.[271]It is impossible to say with certainty why no such step was taken. However, the views of Miss Coller, as the social worker dealing with the family, would no doubt have been highly influential. Given the infrequency and superficiality of her observations of Miss P and the claimant, her evident lack of experience in child protection matters and her failure to take account of the overall picture, it is difficult to see how Miss Coller could adequately have conveyed the seriousness of the risk to the claimant to the other professionals who were involved in making the relevant decisions. They may well have accepted at face value her apparent belief that many, if not all, Miss P’s problems would be solved by a move to her own accommodation.[272]I regard it as highly unlikely that, if the missing documentation from 1976 were available, it would significantly change the picture which emerges from the existing documents. Certainly, there is no indication in the family file that Miss P’s conduct underwent any material improvement during 1976. On the contrary, during the later part of the year, she was causing such problems at Mrs P’s flat that Mrs P was compelled to move out and live elsewhere. It is true that no allegations of violence towards the claimant were recorded between August 1976 and February 1977. However, since neither Mrs P nor AB were living at the flat, any ill-treatment of the claimant by Miss P would not necessarily have been observed by others. Furthermore, having regard to the events of 1978 and what we know about the subsequent history, there is no reason at all to believe that there was any change in Miss P’s behaviour which should have caused the defendant to consider that no systematic monitoring and/or formal assessment of her parenting skills was necessary.[273]Nor do I consider that the evidence of Miss Coller would have materially assisted the defendant. I have already rejected the suggestion that there were visits (save possibly for the very odd one) where she observed Miss P and the claimant together and which went unrecorded. It is difficult to see how, given the records of the visits which exist, she could successfully have claimed that she made careful observations and assessments of risk, as a result of which she concluded that no systematic monitoring and/or formal assessment of Miss P’s parenting skills was necessary. She may have claimed that she was not solely responsible for the decisions that were made and that more senior staff, such as Mrs O’Kelly, bore a greater responsibility for such decisions. Such contentions may have had some force, but they would not have assisted the defendant. I have already expressed the view that senior staff should have recognised Miss Coller’s lack of experience in child protection matters and given her proper supervision or allocated an alternative social worker to the claimant’s case. I do not consider that the evidence of Mrs O’Kelly or other witnesses would have materially altered the position.[274]We now know that Miss P ill-treated the claimant continuously from the time of her birth. She did not hesitate to use violence in front of other people. In 1976 and 1989 (and by her guilty plea in the criminal proceedings), she admitted her use of violence towards the claimant. She spoke frankly at various times of her feelings towards the claimant. She was prone to outbursts of temper. She admitted in 1989 that she had been unable to cope with the claimant even when she was a baby. It is notable that, during the claimant’s admission to hospital in June 1978, when there was an opportunity to observe Miss P at close quarters, hospital staff were concerned by her behaviour towards the claimant which veered unpredictably between cuddling her and shouting at and hitting her. During that same admission, members of the public were concerned enough at her behaviour to report the matter to social work staff. Had the defendant undertaken (as they should have done) systematic and competent monitoring and/or a formal assessment of Miss P’s skills as a mother in 1976, or indeed at any time thereafter, it is inconceivable in my view that her total unsuitability as a carer for the claimant would not have rapidly been recognised. Indeed, the strong probability is that she would have failed to co-operate consistently or at all with any programme of monitoring and/or assessment.[275]Thus, while in many cases, the absence of documents and/or of a witness intimately concerned with the relevant events may cause a defendant very substantial prejudice, in the unusual circumstances of this case, I do not consider that it has significantly prejudiced the defendant in its defence of the case.[276]Balancing the various factors and taking into account all the circumstances of the case, in particular the various issues set out in section 33(3) to which I have already referred, I am entirely satisfied that the claimant has established that it would be equitable to allow the action to proceed. I take the view that, notwithstanding the delay that has occurred, the ability of the defendant to defend the issues of liability and factual causation has not materially been affected. I therefore direct that the provisions of section 11 of the 1980 Act shall not apply to this action.

Factual causation

[277]I have already found that a consistent course of competent monitoring and/or a proper assessment of Miss P’s parenting skills would inevitably have revealed her unsuitability as a mother. All the indications are that she would have been unable to conceal her violent tendencies or her lack of maternal feeling for the claimant. It is highly likely that she would not have co-operated in the monitoring and/or assessment process.[278]I accept the defendant’s submissions that the incidents of violence recorded in 1976 would not in themselves have been considered sufficiently serious to justify the removal of the claimant from Miss P’s care. Miss P was still a young woman and it would have been entirely appropriate for the defendant to attempt to support and encourage her to develop her parenting skills, while taking steps to protect the claimant. Those steps should have involved a high degree of monitoring and/or assessment of Miss P’s parenting skills. That was, for the reasons I have already set out, bound to expose her unsuitability as a carer for the claimant and would or should inevitably have led to the claimant’s removal from her care. Given her lack of affection for the claimant, it is very probable that Miss P would not seriously have opposed her removal. In 1989, she acquiesced in the claimant remaining in care so that a formal care order was never required. Even if she had opposed the claimant’s removal, I am satisfied on a balance of probabilities that, armed with the information obtained as a result of the monitoring and/or assessment, the defendant would have succeeded in obtaining the necessary care order and would thereafter have proceeded to long term fostering and adoption.[279]It may be that removal would not have occurred in 1976. Monitoring may have continued beyond that time and there may (in the unlikely event that Miss P co-operated) have been attempts to improve her parenting skills. However, I am entirely satisfied on a balance of probabilities that, had it not been for the defendant’s breach of duty, the claimant would have been removed from Miss P’s care and that removal would have taken place no later than the end of 1978, as a result of which the claimant would have been spared the years of abuse that followed and her resultant injuries.[280]I therefore give judgment for the claimant in the agreed sum of £60,000.

Cited in 4 later judgments