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Professional Negligence claims in child protection
cases increase
Claimants’ solicitors are making much of a recent court decision
against Doncaster Metropolitan Council Social Services Department,
reported as Pierce –v- Doncaster MBC [13 December 2007]. They are
using it to encourage more claimants to come forward and,
presumably, the Legal Service Commission to fund more claims.
Mr Pierce was removed from his family shortly after birth in
1976 and then returned to them in November 1977 remaining there
until towards the end of 1990. He alleged that during that time his
parents mistreated him, causing psychiatric damage. Mr Pierce
claimed that the Council's original decision to return him home in
1977 was made without any proper assessment or investigation to
justify it. The judge upheld this claim and awarded the claimant
£25,000.
This case is the first of its kind to get to trial. Until 1999
the courts were unwilling to impose a duty of care on professionals
addressing child protection issues because of the delicate and
multi-disciplinary nature of the work. It was regarded as contrary
to public policy for professionals to have to make difficult
decisions concerning children and their families, knowing that the
spectre of litigation may be hanging over them.
In 1999 the House of Lords looked again at the law, encouraged
by various decisions of the European Courts. It commented that the
European Commission had taken the view that the multi-disciplinary
aspect of child protection work “may provide a factual complexity
to cases but cannot by itself provide a justification for excluding
liability from a body found to have acted negligently” and applied
that principle in the UK.
So, for claimants, the gloves are off! Claims are being made
left, right and centre:
- By children who claim they are not removed
from abusive homes when Council know or ought to know that they are
at risk
- By children who allege that child protection
investigations have been mishandled, resulting in their removal
from their parents’ care without proper need, causing unnecessary
distress
- By parents who allege they have been wrongly
accused of abuse or are the victims of mishandled child protection
investigations
…and the claims aren’t just against children’s
service departments. Recognising the multi-disciplinary nature of
this work, Health Trusts and Police Forces are also being named as
defendants.
So far, the Court of Appeal has dismissed all
the claims from parents, most recently in December 2007 in a case
called B -v- Wokingham DC and others, on the basis that
professionals cannot simultaneously owe a duty both to children and
their parents.
However, the other two types of claim from
children are on the increase, and to succeed claimants will need to
show that particular individuals have been negligent.
As the Court of Appeal said in B:
"……………… it is necessary………. to establish a
breach of duty of at least one social worker. The question in each
case is whether the social worker acted or failed to act in a way
in which a reasonably competent social worker would have done.
Whether the reason for the social worker’s breach of duty is some
failing of his own or solely because he or she was inadequately
instructed, managed or supervised by his or her local authority
supervisor seems to us to be immaterial …..."
So what is the practical effect of
these decisions?
1. Staff (eventual
witnesses) – professionals involved with the children need
to know that this type of claim is on the increase. Health
professionals will already be alive to the increase in claims
against doctors and hospital staff, and Social Workers must face
the fact that their profession will be challenged more frequently
in the same way. The way to defend these cases is to make sure that
all staff receive regular child protection training, that they all
keep careful, clear, dated records of decisions made, along with
the reasons for those decisions, that filing is kept up to date and
that all plans are properly implemented. It sounds obvious,
but time and time again we see defendants face difficulties
demonstrating that professionals have met acceptable standards
because they don’t have the contemporaneous records to prove it, or
because a care plan has drifted when a member of staff has
left.
2. Performance
management – some staff will under perform. It is
necessary to find the time and resources to manage and address that
underperformance, both to give staff the opportunity to improve and
to remove those who simply cannot meet the standards needed to
provide a proper child protection service. If employers conclude
that there has been any misconduct on the part of social workers
currently employed by them that might call into question their
registration as social workers, they should report this to the
General Social Care Council, in accordance with the GSCC Code of
Practice for Employers of Social Workers of Sept 2002.
3. Handling claims
a. Claims by parents –
based on the current law, these claims are likely to fail at an
early stage. However, expect to see parents pleading their claims
in novel and unexpected ways to avoid current legal hurdles.
b. Letters of claim–
claimants continue to set out their cases widely, making sweeping
allegations both in terms of dates and allegations of negligence.
In each case we recommend making a very simple request for
information about which professionals were negligent and how.
This means rather than trying to defend the whole of a
department’s practice over a period of many years, you can seek to
focus the issues, avoid fishing expeditions and hopefully save
costs.
For more information please contact
Sarah Erwin-Jones or David Maggs.
The content of this bulletin is provided for
the purposes of general interest and information. It contains only
brief summaries of aspects of the subject matter and does not
provide comprehensive statements of the law. It does not constitute
legal advice and does not provide a substitute for it.