In each of three appeals heard together, parents brought actions in negligence against healthcare professionals, and in one case a social services department, claiming damages for alleged psychiatric harm caused by false allegations that the parents had abused their children.
i. In the first case, a boy suffered from allergic reactions and asthma attacks, so that he had to sleep in his mother’s room. When his mother took him to hospital, aged 6, to see if it would be possible to monitor his breathing from his own room, she was wrongly diagnosed as suffering from Munchausen’s syndrome by proxy and accused of inventing her son’s condition. This incorrect diagnosis was maintained for three years, during which time the boy was put on the ‘at risk’ register for six months, until it was confirmed that he did, indeed, suffer from allergies and asthma. As a result of all of this, the mother suffered acute anxiety and depression.
ii. In the second case, a nine-year-old girl was suffering from Schamberg’s disease, which produces discoloured patches on the skin. Following an accident on her bicycle, her mother took the child to see a doctor, who concluded that the marks on the child’s legs were caused by sexual abuse and had her admitted to hospital. Her Father went to visit her in hospital and was publicly banned from doing so. He and his son were also forbidden by social services from staying at home when the child was released from hospital. After ten days, the correct diagnosis was made and it was accepted that there was no question of abuse.
iii. In the third, a two-month-old girl was taken to hospital by her parents because she was clearly in great pain. It turned out that she had a spiral fracture of the femur. This was caused by brittle bone disease, but because the medical staff failed to take an accurate history from the parents, this was not considered at the time. Instead, the consultant paediatrician concluded that the child was suffering from an inflicted injury, and the parents were separated from their child for the next eight months, until a proper diagnosis was made. As a result of this, the parents suffered from a psychiatric illness.
In each case it was determined as a preliminary issue that no duty of care was owed to any of the claimants by any of the defendants, on the ground that it was not fair, just and reasonable to impose such a duty. Each claim was accordingly dismissed without actually being tried.
The claimants appealed on grounds including that the preliminary hearings infringed their right to a fair hearing under Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms as scheduled to the Human Rights Act 1998; that in the light of recent authority and the 1998 Act it was fair, just and reasonable to impose a duty of care on the defendants; that there was sufficient proximity between the various claimants and defendants for such a duty to exist and that witness immunity did not preclude any liability on the part of the social workers.
In the Court of Appeal,6 Lord Phillips made the following observation:
“In so far as the position of a child is concerned, we have reached the firm conclusion that the
decision in X (Minors) v Bedfordshire County Council [1995] 2 AC 633 cannot survive the Human Rights Act. Where child abuse is suspected the interests of the child are paramount: see section 1 of the Children Act 1989. Given the obligation of the local authority to respect a child's Convention rights, the recognition of a duty of care to the child on the part of those involved should not have a significantly adverse effect on the manner in which they perform their duties. In the context of suspected child abuse, breach of a duty of care in negligence will frequently also amount to a violation of article 3 or article 8. The difference, of course, is that those asserting that wrongful acts or omissions occurred before October 2000 will have no claim under the Human Rights Act 1998. “This cannot, however, constitute a valid reason of policy for preserving a limitation of the common law duty of care which is not otherwise justified. On the contrary, the absence of an alternative remedy for children who were victims of abuse before October 2000 militates in favour of the recognition of a common law duty of care once the public policy reasons against this have lost their force.” para 83
“It follows that it will no longer be legitimate to rule that, as a matter of law, no common law duty of
care is owed to a child in relation to the investigation of suspected child abuse and the initiation and pursuit of care proceedings.” para 84
That, however, was not the issue here. The Court of Appeal held that whatever the duty owed to the abused children, health professionals responsible for investigating suspected child abuse did not owe the persons suspected of having committed the abuse a duty of care beyond that to carry out the investigation in good faith. Carelessness was not enough to give rise to an action in damages. There was a balance to be made between the public interest need to protect children from abuse and the private interests of the suspected individual. This was the same balance as in any criminal investigation. The duty of care owed to the children in these cases was not the same as that owed to their parents since the parents were not in sufficient proximity to give rise to a duty of care. There were cogent reasons of public policy for holding that no common law duty of care should be owed to the parents and that it was accordingly not fair, just and reasonable to impose such a duty.
The House of Lords upheld this decision.
"The essence of the claims is that health professionals responsible for protecting a suspected child victim owe a person suspected of having committed a crime against the child a duty to investigate their suspicions, a duty sounding in damages if they act in good faith but carelessly.”
per Lord Nicholls at para 76 "Stated in this broad form, this is a surprising proposition. In this area of the law, concerned with the reporting and investigation of suspected crime, the balancing point between the public interest and the interest of a suspected individual has long been the presence or absence of good faith. Good faith is required but not more. A report, made to the appropriate authorities, that a person has or may have committed a crime attracts qualified privilege. A false statement ("malicious falsehood") attracts a remedy if made maliciously. Misfeasance in public office calls for an element of bad faith or recklessness. Malice is an essential ingredient of causes of action for the misuse of criminal or civil proceedings…” per Lord Nicholls at para 77
"This background accords ill with the submission that those responsible for the protection of a child against criminal conduct owe suspected perpetrators the duty suggested. The existence of such a duty would fundamentally alter the balance in this area of the law. It would mean that if a parent suspected that a babysitter or a teacher at a nursery or school might have been responsible for abusing her child, and the parent took the child to a general practitioner or consultant, the doctor would owe a duty of care to the suspect. The law of negligence has of course developed much in recent years, reflecting the higher standards increasingly expected in many areas of life. But there seems no warrant for such a fundamental shift in the long established balance in this area of the law." per Lord Nicholls at para 78
"In considering whether it would be fair, just and reasonable to impose such a duty, a court has to have regard, however, to all the circumstances and, in particular, to the doctors' admitted duty to the children. The duty to the children is simply to exercise reasonable care and skill in diagnosing and treating any condition from which they may be suffering. In carrying out that duty the doctors have regard only to the interests of the children. Suppose, however, that they were also under a duty to the parents not to cause them psychiatric harm by concluding that they might have abused their child. Then, in deciding how to proceed, the doctors would always have to take account of the risk that they might harm the parents in this way. There would be not one but two sets of interests to be considered. Acting on, or persisting in, a suspicion of abuse might well be reasonable when only the child's interests were engaged, but unreasonable if the interests of the parents had also to be taken into account. Of its very nature, therefore, this kind of duty of care to the parents would cut across the duty of care to the children.” per Lord Rodgers at para 108
29.7 D v. East Berkshire Community Health NHS Trust and Others [2005] has been applied in several cases with similar facts, including: L v. Pembrokeshire CC [2007] PIQR 1 and L v. Reading BC [2006] EWHC 2449
29.8 The obiter dictum concerning the duty owed to abused children was applied in Pierce v. Doncaster MBC [2009].