AD v OH (a child) & Anor

These two appeals, which we heard together on 3 and 4 November 2005, arise from different aspects of the same set of facts. The two appellants, whom I will identify as “Mrs. AD” and “OH” respectively, are mother and son. Each was a claimant in separate proceedings heard by HH Judge Knopf in the Oldham County Court. OH was born on 8 August 1996, and brought proceedings by his mother as his litigation friend. In each case, the defendant to the proceedings was the Bury Metropolitan Borough Council (the local authority).

In each case, the appellant claimed damages arising out of alleged negligence by the local authority in the context of care proceedings taken by the local authority under Part IV of the Children Act 1989 (CA 1989) in relation to OH on the mistaken premise that he had suffered non-accidental injury caused by Mrs AD. Those proceedings resulted in the enforced separation of mother and child for a period of some four months, as a result of which, it was alleged, each had suffered justiciable damage.

Neither claim succeeded. In Mrs. AD’s case the judge gave a reserved judgment on 9 September 2003. He held, on a preliminary issue, that the local authority did not owe Mrs. AD a duty of care in tort, and dismissed her claim on that basis. However, he gave her permission to appeal.

In OH’s case, the local authority acknowledged that it owed him a duty of care. It argued, however, that OH could not be shown to have suffered any damage as a result of any negligence on its part (which was not admitted); alternatively, that any injury to his health which OH had been caused was transient, and did not sound in damages. In an extempore judgment given on 11 September 2003 after hearing evidence, the judge dismissed OH’s claim. He refused permission to appeal, which was granted on the papers by Hale LJ (as she then was) on 18 December 2003. She directed that the appeal should be listed with Mrs. AD’s appeal, but that both appeals should be stayed until the outcome of the petition to the House of Lords in D v East Berkshire Community Health NHS Trust and others (hereinafter East Berkshire) [2005] UKHL 23, judgment in which was given by the House of Lords on 21 April 2005, and is reported at [2005] 2 AC 373.

In early January 1997, when he was about 5 months old, OH sustained four rib fractures whilst in the care of his parents. These injuries led the local authority to suspect non-accidental injury to OH, and to place his name on its Child Protection Register on 30 January 1997. Care proceedings followed on 1 May 1997.

On 7 May 1997, the Bury Family Proceedings Court made an interim care order under CA 1989 section 38, and directed an assessment of OH pursuant to section 38(6), as a consequence of which, OH and his parents resided for a period of some 12 weeks at a family resource centre in Bristol. The intention was that the centre should carry out a full residential risk assessment in relation to OH and his parents. Mrs. AD’s case was that the local authority failed to ensure that a risk assessment was undertaken, with the result that on 12 August 1997, OH was placed with foster parents, and separated from his mother for the first time.

As a matter of fact, OH’s placement in foster care on 12 August 1997 followed a four day contested hearing before HH Judge Urquhart sitting in the Salford County Court, at the conclusion of which the judge declined to return OH to Mrs. AD’s care, and renewed the interim care order in accordance with the local authority’s interim care plan. We were not shown a copy of Judge Urquhart’s judgment.

On 6 December 1997, the local authority received advice from the National Society for the Prevention of Cruelty to Children (NSPCC) that as a result of a risk assessment it had carried out, OH should be speedily rehabilitated with his parents. OH returned to his parents’ care on 8 December 1997, although the care proceedings themselves were not discontinued until July 1998.

Although OH’s rib fractures had been initially diagnosed as resulting from inflicted, non-accidental injuries, the local authority accepted before Judge Knopf that OH suffered from a rare condition known as osteogenesis imperfecta (OI), or brittle bone disease. The rib fractures, accordingly, had an innocent explanation and were not the result of non-accidental injury.

Mrs. AD asserted that, as a result of OH being wrongly taken into care and separated from his parents, she had suffered psychological shock and upset. Her relationship with OH’s father had ended. The allegation that she had harmed OH had resulted in her becoming depressed. She re-lived the experience regularly and had been referred for psychological counselling.

East Berkshire consisted of three conjoined appeals. In each case, the parents of young children had brought actions for negligence against health care authorities and, in one case a local authority, claiming damages for alleged psychiatric harm caused as a result of unfounded allegations made by healthcare and child care professionals that the parents had abused their children. In each case the judge had determined as a preliminary issue that no duty of care in tort was owed to the parents by any of the defendants on the ground that it was not fair, just and reasonable to impose such a duty. Each of the three actions was, accordingly, dismissed and in each case, this court (Lord Phillips of Worth Maltravers MR, Hale and Latham LJJ) [2004] QB 558, affirmed the judge’s ruling.

By a majority (Lord Bingham of Cornhill dissenting) the House of Lords dismissed the parents’ appeals. The majority view, in summary, was that, given the seriousness of child abuse as a social problem, healthcare and other child care professionals should not be subject to conflicting duties when deciding whether a child might have been abused and what further steps should be taken to protect the child. The potential disruption to the suspected parent's family life did not justify according to that parent a higher level of protection than that afforded to other suspects of crime. Whilst investigations should be conducted in good faith, it was not fair, just and reasonable that the common law duty of care claimed by the parents should be imposed.

Perhaps the nearest case on the facts to an instant case is that identified by Lord Nicholls of Birkenhead as “the Oldham case”, which he summarises in the following terms ( [2005] 2 AC 373 at 402):-

“66.

The claimants in the Oldham case are RK and his wife AK. They are the parents of a girl M born in July 1998. On 26 September 1998, when she was two months old and in the care of her grandmother, M started to scream when her grandmother lifted her from a settee. Her parents and grandmother took her to the Royal Oldham Hospital. On admission the medical staff failed to take an accurate history from them and the grandmother. Dr Blumenthal, a consultant paediatrician, diagnosed the baby as having an "inflicted injury", a spiral fracture of the femur. The police and social services were informed. Dr Blumenthal did not investigate further the possibility of a diagnosis of osteogenesis imperfecta ("brittle bones").

67.

Oldham Metropolitan Borough Council applied for an interim care order. The order was made on 16 October 1998. On 23 October, M was discharged from hospital into the care of an aunt, with supervised access for the parents. At a hearing on 23 December the court decided M's injuries were non-accidental and care was given to the aunt. In March 1999 M sustained further fractures. More tests were carried out, and the revised medical opinion was that the history and injuries were consistent with brittle bone disease. On 17 June 1999, nearly nine months after being admitted to hospital, M was returned to the care of her parents. It is now accepted that the initial diagnosis of non-accidental injury was wrong.

68.

Thus in this case the mother was separated from her young baby for a period of eight months, being permitted only supervised access.

69.

The parents claim damages in negligence from Oldham NHS Trust and Dr Blumenthal for psychiatric injury resulting from their separation from M. On the hearing of preliminary issues Simon J [2003] Lloyd's Rep Med 1 held that neither defendant owed a duty of care to the parents. The daughter M was herself a claimant in the proceedings, but Simon J held that the evidence produced for the preliminary issues disclosed no injury for which the law provided a remedy: M had suffered no physical harm or recognisable psychiatric disorder. She did not appeal against that part of the judge's order.”

For present purposes, two extracts (one short and one rather longer) from one of the speeches given on behalf of the majority will suffice. At [2005] 2 AC 400, Lord Nicholls of Birkenhead identified the issue in the first paragraph of his speech : -

“52.

My Lords, it must be every parent's nightmare to be suspected of deliberately injuring his or her own child. In the three cases before your Lordships' house doctors suspected a child had been the subject of non-accidental injury by a parent or, in one case, false reporting carrying a future risk of non-accidental injury. In each case after further investigation it turned out this was not so. In each case the parent then brought proceedings against the hospital trust and, in one instance, the doctor personally claiming damages for negligence in the clinical investigation, diagnosis and reporting of the child's condition.”

After a detailed analysis of the arguments, Lord Nicholls continued at [2005] 2 AC 373 at 406:-

“85.

In my view the Court of Appeal reached the right conclusion on the issue arising in the present cases. Ultimately the factor which persuades me that, at common law, interference with family life does not justify according a suspected parent a higher level of protection than other suspected perpetrators is the factor conveniently labelled "conflict of interest". A doctor is obliged to act in the best interests of his patient. In these cases the child is his patient. The doctor is charged with the protection of the child, not with the protection of the parent. The best interests of a child and his parent normally march hand-in-hand. But when considering whether something does not feel "quite right", a doctor must be able to act single-mindedly in the interests of the child. He ought not to have at the back of his mind an awareness that if his doubts about intentional injury or sexual abuse prove unfounded he may be exposed to claims by a distressed parent.

86.

This is not to suggest doctors or other health professionals would be consciously swayed by this consideration. These professionals are surely made of sterner stuff. Doctors often owe duties to more than one person; for instance, a doctor may owe duties to his employer as well as his patient. But the seriousness of child abuse as a social problem demands that health professionals, acting in good faith in what they believe are the best interests of the child, should not be subject to potentially conflicting duties when deciding whether a child may have been abused, or when deciding whether their doubts should be communicated to others, or when deciding what further investigatory or protective steps should be taken. The duty they owe to the child in making these decisions should not be clouded by imposing a conflicting duty in favour of parents or others suspected of having abused the child.

87.

This is not to say that the parents' interests should be disregarded or that the parents should be kept in the dark. The decisions being made by the health professionals closely affect the parents as well as the child. Health professionals are of course fully aware of this. They are also mindful of the importance of involving the parents in the decision-making process as fully as is compatible with the child's best interests. But it is quite a step from this to saying that the health professionals personally owe a suspected parent a duty sounding in damages.

88.

The claimants sought to meet this "conflict of interest" point by noting that the suggested duty owed to parents has the same content as the duty owed to the child: to exercise due skill and care in investigating the possibility of abuse. This response is not adequate. The time when the presence or absence of a conflict of interest matters is when the doctor is carrying out his investigation. At that time the doctor does not know whether there has been abuse by the parent. But he knows that when he is considering this possibility the interests of parent and child are diametrically opposed. The interests of the child are that the doctor should report any suspicions he may have and that he should carry out further investigation in consultation with other child care professionals. The interests of the parent do not favour either of these steps. This difference of interest in the outcome is an unsatisfactory basis for imposing a duty of care on a doctor in favour of a parent.

89.

This was the conclusion reached by the High Court of Australia in Sullivan v Moody (2001) 207 CLR 562. In Australia, as in this country, the professional and statutory responsibilities of doctors and other health professionals involve investigating and reporting allegations that a child has suffered serious harm or is at risk of doing so. The High Court held unanimously that it would be inconsistent with the proper and effective discharge of these responsibilities that those charged with these responsibilities should be subjected to a legal duty, sounding in damages, to take care to protect persons suspected of being the source of that harm. Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ said, at para 62.

"The duty for which the [appellant fathers] contend cannot be reconciled satisfactorily, either with the nature of the functions being exercised by the [medical practitioners and others investigating allegations of child sex abuse], or with their statutory obligation to treat the interests of the children as paramount. As to the former, the functions of examination, and reporting, require, for their effective discharge, an investigation into the facts without apprehension as to possible adverse consequences for people in the position of the appellants or legal liability to such persons. As to the latter, the interests of the children, and those suspected of causing their harm, are diverse, and irreconcilable. That they are irreconcilable is evident when regard is had to the case in which examination of a child alleged to be a victim of abuse does not allow the examiner to form a definite opinion about whether the child has been abused, only a suspicion that it may have happened. The interests of the child, in such a case, would favour reporting that the suspicion of abuse has not been dispelled; the interests of a person suspected of the abuse would be to the opposite effect."

90.

For these reasons I am not persuaded that the common law should recognise the duty propounded by Mr Langstaff. In principle the appropriate level of protection for a parent suspected of abusing his child is that clinical and other investigations must be conducted in good faith. This affords suspected parents a similar level of protection to that afforded generally to persons suspected of committing crimes.”

In my judgment, the view of the majority in East Berkshire is fatal to Mrs. AD’s appeal. However, with an ingenuity and skill honed by his many years in practice at the bar, Mr. Ben Hytner QC, for Mrs. AD sought to advance an argument that East Berkshire could be distinguished from what he argued was the critical aspect of the instant case. The argument, as I understood it, ran along the following lines: -

Mr. Hytner submitted that on an application of his analysis of East Berkshire to the facts of the instant case, the local authority owed Mrs. AD a duty of care in the period following the making of the interim care order on 7 May 1997. The care plan involved the uprooting of Mrs. AD, OH and the child’s father from their home in Bury, to stay at a hostel in Bristol for the purpose of the making of a risk assessment by others as to the suitability of the parents, despite the finding of abuse, to retain custody of their child. The judge had found that the local authority had obtained the consent of Mrs. AD and her partner for these arrangements.

In the premises, and arguing from first principles, Mr. Hytner submitted that the local authority owed a duty to Mrs. AD to carry out their administrative part in the care plan with reasonable skill and care; alternatively, they assumed such a duty by obtaining the consent of Mrs. AD to stay at the hostel. Such a duty, Mr. Hytner argued, involved the exercise of reasonable skill and care in making the necessary travel arrangements to Bristol, arrangements for the reception of Mrs. AD at the hostel, and arrangements for the assessment to be carried out. It was reasonably foreseeable that if no risk assessment (as envisaged by the local authority and necessary for the implementation of the interim care plan) was carried out, OH would not be returned to Mrs. AD, a finding of abuse, albeit erroneous, having already been made.

The interim care order having been made, and the interim care plan having been approved by the court, it was, Mr. Hytner submitted, in the interests of both OH and his parents that the risk assessment should be carried out. No possible conflict of interest arose. Indeed, there was total community of interest in this respect with the local authority as well. Furthermore, those at Bristol charged with making the risk assessment would have owed a duty of care to the child to carry it out with reasonable skill and care; although Mr. Hytner accepted that they would have owed no such duty to Mrs. AD, since at that stage a conflict of interests could have arisen between parent and child.

Skilfully as this argument was advanced, I am wholly unable to accept it for two principal reasons. Firstly, I do not accept Mr. Hytner’s analysis of the reasoning of the majority in East Berkshire. Secondly, however, the argument, in my judgment, misunderstands the nature and function of care proceedings under CA 1989 Part IV in two important aspects, namely; (1) it imposes a wholly artificial compartmentalisation of the investigatory process by distinguishing between events which occur before an interim care order is made, and events which occur thereafter; and (2) it is predicated on the argument that a duty of care may arise in some parts of the investigation, but not in others.

As the longer extract which I have cited from Lord Nicholls’ speech in East Berkshire makes clear, the question of public policy which underpins the decisions in those cases is that care professionals charged with questions of child protection and the investigation of child abuse must be free to exercise their professional functions without having at the backs of their minds “an awareness that if (their) doubts about intentional injury or sexual abuse prove unfounded (they) may be exposed to claims by a distressed parent” (paragraph 85).

In my judgment, that freedom lasts throughout the investigatory process; and where (as here) care proceedings are instituted, the investigatory process itself lasts until such time as a final care order is made, or the proceedings are discharged. In particular, the investigatory process does not come to an end when an interim care order is made.

It is, I think, helpful to set out the relevant provisions of CA 1989 section 38, and in particular to identify the criteria which have to be satisfied before an interim care order can be made.

no such examination or assessment; or

Although the so called “threshold criteria” for the making care orders under CA 1989, section 31 are well-known, it is, I think worth setting them out: -

Furthermore, although expressed to be interim, an order under section 38 is, nonetheless, a care order (see CA 1989, section 31(11)) with the consequence that section 33(3) applies: -

The points to note from the statutory provisions are, I think; (1) that the court cannot make an interim care order unless it is satisfied that there are reasonable grounds for believing that the child is suffering or is likely to suffer significant harm attributable to parental care (or lack of it); (2) pursuant to an interim care order, the local authority is given parental responsibility for the child, and can determine the extent to which a parent may meet his or her parental responsibility; and (3) that the child can only be medically or psychiatrically examined or otherwise assessed pursuant to an order of the court under section 38(6). This is plainly the basis upon which the Bury FPC made its order on 7 May 1997.

In my judgment, therefore, it is plain beyond any argument that the order made by the Bury FPC on 7 May 1997 was part of the ongoing investigation in the care proceedings, and that Mr. Hytner’s argument that there was or came into existence at that point a community of interest between the local authority and OH’s parents is simply wrong. No doubt at that point in the proceedings there was an agreement that an assessment under CA 1989 section 38(6) was necessary; and, as Mr Hytner pointed out, Mrs. AD and her partner plainly consented to such an order being made. No doubt also it was in everybody’s interests that the assessment should be effectively conducted and produce a clear result. But none of these propositions, in my judgment, imports either a community of interest between parents and a local authority or a common law duty of care owed by the local authority to Mrs. AD to ensure that the assessment is properly carried out. Parents frequently do not accept the conclusions of such assessments if they are adverse to their case. It would in my judgment be unprincipled if a community of interest were to be deemed to exist at the outset of the investigation, only to come to an end when the assessment was concluded.

That a conflict between Mrs. AD and the local authority remained is demonstrated by the fact of the contested proceedings before Judge Urquhart in August 1997 in relation to a further extension of the interim care order. Mrs. AD clearly wanted OH returned to her care: the local authority did not agree. Since the local authority had parental responsibility for OH under the interim care order, and were proposing to exercise it by placing OH with foster parents, Mrs AD did the only thing open to her: she sought the discharge of the interim care order by the court. She did not succeed. By necessary inference, Judge Urquhart must have been satisfied that the CA 1989 section 38(2) criteria were satisfied, and he must have taken the view that it was in OH’s best interests to be placed in short term foster care. Otherwise, he could not have extended the interim care order.

The care proceedings relating to OH did not, of course, in the instant case result in a final care order: they were, by consent, discharged (as it happens by myself, as a judge of the Family Division sitting in Manchester) in July 1998. It was only then, in my judgment, that the investigatory process came to an end. Accordingly, in my judgment, there was no point in the care proceedings at which the local authority owed a common law duty of care to Mrs. AD in relation to its investigation of OH’s fractures, and the judge was plainly right to dismiss the proceedings on that ground.

For completeness, I ought perhaps to make it clear that I do not reach this conclusion on a black letter construction of the provisions of CA 1989, section 38. As I hope I have already made clear, it would, in my judgment, be both highly artificial and unprincipled if the protection afforded to social services and the doctors in the investigation of child abuse ceased (perhaps temporarily, or in relation only to one part of the investigation) when an interim care order was made, or otherwise where it might temporarily be argued that there was no actual conflict of interest between the parent and the local authority. In the context of a child abuse investigation, a duty of care cannot exist at one moment and then cease to exist the next because of a shift in the factual matrix. It either exists throughout the investigation or it does not.

This is not the place to expand on the varying functions of interim care orders, or orders under CA 1989 section 38(6) although in the period over which this judgment has been reserved, they have been the subject of further examination in the House of Lords: - see Kent County Council v G and others [2005] UKHL 68. It is, in my judgment, sufficient for present purposes to say that the mere fact that a child is subject to an interim care order, or that an investigation continues under the aegis of an interim care, does not mean that circumstances may arise in which a local authority owes a duty of care to a parent of the child who is the subject of the care proceedings. Thus, in the instant case, the making of an interim care order and the directions given by the court consequential to it have had no effect on the policy that the investigator requires and retains the protection afforded by East Berkshire.

Whilst I therefore share the sympathy which Lord Nicholls expressed for any parent wrongly accused of injuring their child, I am satisfied that at no stage did the local authority owe Mrs AD a duty of care in tort, and that she does not, accordingly, have an action in negligence against the local authority, The judge, therefore, reached the right conclusion, and I would dismiss Mrs. AD’s appeal.

OH’s appeal is more complex, since in his case the local authority, on the pleadings, admitted that it owed OH “a duty of care to carry out its reasonable plans of child protection in a professional manner”. The question, therefore, is whether or not the Defendant’s negligence (which for the purposes of this argument is assumed) caused or materially contributed towards harm suffered by OH of a nature and degree sufficient to give rise to an action for damages in tort. In granting permission to appeal, Hale LJ commented: -

The main thrust of the complaint made on OH’s behalf relates to damage said to have been caused to him during and as a consequence of the period of approximately four months between 12 August 1997. when he was placed with foster parents, and 8 December 1997, when he was restored to his parents’ care. The argument is that the failure to ensure that the risk assessment in Bristol was properly carried out, followed by the abrupt removal from the care of those with whom he had lived all his short life to the care of strangers, caused him psychological harm. It was, however, conceded by Mr. Hytner, on OH’s behalf, that (assuming causation was established) no claim for injury to OH’s health could be sustained beyond a relatively short period in 1998.

It is, however, I think, worth pointing out that, as initially pleaded in 2001, when the proceedings were instituted, the loss and damage alleged in the particulars of claim to have been suffered by OH were much more extensive, namely: -

In its defence, the locals authority put causation in issue, relying on a passage from Dr Schauder’s report which I set out in paragraph 38 below.

The judge heard oral evidence from Mrs. AD and from OH’s maternal grandmother, Mrs. Dorothy Potterton. He also heard expert evidence from Dr. Schauder, to whom reference has already been made, and from a consultant child psychiatrist, Dr. Mary Oppenheim, who had been jointly instructed to advise on the question of whether or not OH suffered from Autistic Syndrome Disorder (ASD). The judge also appears to have had before him a bundle of papers from the care proceedings relating to OH.

Dr. Schauder wrote two reports in addition to the oral evidence he gave to the judge. In the first report of 4 September 2000, he adopted passages from a report written in the care proceedings relating to OH by Dr Mary Rodgman, a consultant paediatrician in Bristol. She had said that it would be “very emotionally damaging for OH to be separated from his parents”, a statement which she then amplified. However, in paragraph 13.1 of his first report, Dr. Schauder said: -

The events in question have had a significant negative impact on OH. It is also a fact that life could never be the same for him now that his parents are no longer together. He is growing up in a single parent family without regular access to a male model.

While he has made significant progress with the limited assistance received to date, and while he could be expected to continue this process with specialist input, it is impossible to predict what the long term consequences of these events will be for him. The local authority has been criticised in an independent report over certain aspects of their management of the process. While these specific issues, particularly their delay in rehabilitation of OH with his family appears to have exacerbated his sense of insecurity and overall emotional and behavioural difficulties, it remains impossible to quantify or to distinguish between the relative contribution to his medical and physical state, the absence of his father and his mother’s emotional state and so on.

The passage which I have italicised was that pleaded by the local authority in its defence. Unsurprisingly, the problem raised by OH’s multiple difficulties re-emerged in Dr. Schauder’s oral evidence, of which we have a transcript. His view was that OH suffered from both an attachment disorder and ASD, which overlapped, and the aetiology of which was not clear. Miss Margaret de Haas QC (as she then was) who acted for the local authority in the court below, put to Dr. Schauder that OH also suffered from OI, which had led to fractures, stays in hospital and absences from school. He also had a growth problem and feeding problems, and there were several problems relating to the allegations against his parents, which would have caused them stress and stress at home. There was then the removal to Bristol, then into foster care and then rehabilitation. His parents had then separated. The following exchange concludes Miss de Hass’ cross-examination of Dr. Schauder: -

Dr. Audrey Oppenheim had not been asked to advise why or how any features of ASD in OH had arisen. Her view, as recorded by the judge, was that OH presented with a number of symptoms consistent with ASD, although she stressed that in this regard, as in others, the aetiology was unclear. The judge conducted a thorough review of Dr. Oppenheim’s evidence, which he summarised in paragraphs 20 and 21 of his judgment in the following terms: -

“20.

This was a very complex case, she said, with a number of interrelated factors. She referred, as I already have, and as Mrs. AD did, to the feeding difficulties, the growth problems, the other factors that we talked about, and she therefore talked in terms of a multi-factorial aetiology. She told me she had not seen or she did not think she had seen all the relevant papers but she had seen the GP records and had noted that for the period from January 1997 to July 1998 those records did not reveal or make any reference to any developmental delay or behavioural disturbance and she had also seen the guardian ad litem’s report which can be found in Section D of the trial bundles. But it was her opinion that she was expressing and it was her opinion with which the court was concerned.

21.

She did make the point and she makes the point in her report (reference given) that she did not feel able to comment on the impact of the separation of the child from the parents in terms of development or exacerbation of autistic spectrum disorder. She noted that there was no clear evidence of insecure attachment disorder as one might expect from such a period of separation. She said that it strongly suggests that the attachment to the mother was relatively unaffected by the separation and she commented further at paragraph 5.4 of her report that the underlying autistic spectrum disorder had perhaps been further complicated by his distressing early life experiences.”

Dr. Oppenheim ruled out the suggestion that OH was suffering from an attachment disorder, and told the judge that both ASD and attention deficit disorder (ADD) were usually genetic. There were strong indications that OH was suffering from the latter, but in her opinion this was not related to his experiences whilst in care. OH also had OI and associated growth problems. He would undoubtedly have suffered as a consequence of his separation from his mother, but his problems were multi-factorial.

The judge summarised Dr Oppenheim’s views on the effect of OH’s separation from his mother in paragraph 26 of his judgment in the following terms:

“26.

So she accepts, therefore, that trauma from separation can arise but that this child had the difficulties and the problems to which I have already referred, intra-gastric feeding, she mentioned as well, and, although it is likely that separation would be traumatic, when a child is sent to fostering parents (sic), as a matter of general principle it would be traumatic, but here there was no evidence, she said, that it had a traumatic effect and it may or may not be traumatic depending on the quality of the foster parents, the nature and quality of contact and so on. The child’s presentation, she said, was not classical and it was difficult to establish what is due to the various factors to which I referred. She said this child had a whole series of experiences.”

As is apparent from the passages from her evidence to which the judge referred, Dr. Oppenheim’s inability, as the judge put it, to “break down what led to what” was shared by Dr. Schauder.

After a careful analysis of the evidence of Dr. Schauder, and a clear summary of the arguments put to him on both sides, the judge expressed his conclusions in paragraph 43 and 44 of the judgment in the following terms:

The judge’s reference to Fairchild is to the decision of the House of Lords in Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32, in which employees who had been exposed to asbestos dust were held to be entitled to recover damages against their different employers despite the fact that they had been so exposed at different times and by different employers and it had not been possible to attribute their subsequent development of mesotheliomas to any one particular period with any particular employer.

The judge’s reference in paragraph 43 of the judgment to the question being whether the effect of the separation had made a contribution or a material contribution “to the condition which the child faces” is, no doubt, the source of Hale LJ’s comment, which I have recorded in paragraph 30 above, that the judge appeared to have thought it necessary to prove a causal connection between the alleged negligence and OH’s current psychiatric conditions.

In the appellant’s notice, the only point which is taken is that the judge was wrong to conclude on the evidence that causation had not been established. However, the observations made by Hale LJ when granting permission to appeal enabled Mr. Hytner to expand the argument considerably.

Mr. Hytner told us that it had been made clear to the judge (as it had been to the Legal Services Commission) that OH’s damages claim was modest, the estimated verdict range being £2,000 to £3,000. Moreover, it had never been in dispute that the OH suffered from a number of problems that had arisen constitutionally, though the precise medical aetiology was to a large extent in doubt. OH had feeding problems from an early age and had failed to grow normally; he was investigated for ASD and ADD, but no firm diagnosis had been made. He did of course suffer, as claimed by the parents but mistakenly disputed by the local authority, from OI. Further, it was not in dispute that from 7 May to 12 August, prior to the period of separation imposed following the hearing before Judge Urquhart, OH had been living with his parents in a hostel in Bristol, where, no doubt due to the distress of his mother, he had himself suffered distress, manifested in fits of crying. He had then been removed from the care of his parents for four months.

Mr Hytner accepted that normal human emotions of a transient nature are not justiciable in damages, and that damages could only be obtained for harm recognised by the law. He argued that general damages for personal injury were traditionally expressed as being for “loss of amenity pain and suffering”, and that each of these terms had a separate meaning. A person may be subject to suffering even if no loss of amenity has been occasioned, and no pain has been experienced. Mr. Hytner submitted, accordingly, that distress, such as that suffered by OH, which was not transient, but which had, over a prolonged period, caused sleep disturbance, loss of confidence and crying fits would, in an adult, be regarded beyond doubt as “suffering”, and medication would be prescribed.

Mr. Hytner submitted, therefore, that the judge had been wrong to accept the argument advanced on behalf of the local authority that some technical label was a pre-requisite for liability for a psychiatric illness. He submitted that the true pre-requisite was suffering which gave rise to a behavioural disturbance other than that arising from a transient emotion.

There was, Mr. Hytner submitted, ample evidence before the judge that, quite apart from, and in addition to, symptoms arising from his constitutional condition, OH suffered prolonged distress leading to symptoms of sleep disturbance and crying fits over a period of many months due to the enforced separation from his parents; indeed, Dr Oppenheim had accepted that his symptoms were multi-factorial. Her doubts had simply been whether the separation from the parents had had “ long term consequences”.

Accordingly, once it had been established that the separation had contributed to OH’s suffering, and that the sleep deprivation and crying fits were not simply transient manifestations of normal emotions, it was then the duty of the judge to make an assessment of the part played by the separation, and award damages accordingly.

Mr. Hytner sought to build on the observations of Hale LJ when giving permission to appeal. He accepted that, in the court below, no reference had been made by either side to the provisions of CA 1989, although it had been argued that the harm sustained by OH (falling short of harm to which a psychiatric label had been attached) was indeed recognised by the law of tort,

Mr. Hytner argued that on a close analysis of the judgment, the judge had become confused between two discrete issues: These were: (1) the actual effect on the child’s health, at the time and shortly afterwards, of a four month separation from his parents, and (2) the effect of that separation on his health six years later in 2003. Despite the concession made on OH’s behalf that no claim could be established for injury to health beyond a relatively short period in 1998, and that a causal effect of the separation on the child’s current condition could not be established, the judge’s principal (if not only) findings related to that latter non-issue.

Mr Hytner pointed out that the only direct evidence of the effect at the time of the separation on the child’s health came from Mrs AD and OH’s maternal grandmother Beyond simply recording that they had given evidence the day before, the judge had made no further reference to their evidence, and made no findings thereon. However, the local authority appeared by implication at least to have accepted that during the separation the child would have suffered “upset, shock, anxiety, distress apprehension and fear” and this appears also by implication to have been the finding of the judge in paragraph 43 of the judgment.

These matters, Mr. Hytner submitted, were supported by medical evidence. Dr. Oppenheim, whose evidence was accepted by the Judge, “did not feel able to comment on the impact of the separation of the child from the parents in terms of development or exacerbation of ASD”, but had said that “if a child was separated at twelve months from a parent for a period of four months disturbance would result in the normal general case…” She had also said: “…. it is likely that separation would be traumatic when a child is sent to foster parents as a matter of general principle it would be traumatic, but here there was no evidence…” . She had also qualified the first observation by the words “here it was not that simple”. However, she did not see the child until six years had elapsed, by which time it was conceded that the effects of the separation had worn off.

Mr. Hytner argued that Dr. Schauder’s evidence relating to the effect on the child’s health in 2003 was in conflict with that of Dr. Oppenheim whose evidence on that issue was preferred by the Judge. However, Dr Schauder had referred to and relied on a report of a Dr. Rodgman, prepared in August 1997, contemporaneous with the separation, in which that doctor was of the view that “a separation would be very emotionally damaging for Owen and it would cause severe emotional trauma if he was separated, severe stress and anxiety and so on.”

Mr. Hytner therefore submitted that, taking into account the evidence of the mother and grandmother (certainly not rejected by the judge), the implied concession by the local authority and the totality of the medical evidence as to the likely result of the separation in the short term, the judge, at paragraph 43 of his judgment had in effect found as a fact that, as a result of the separation, the child, for a period of time suffered “upset, shock anxiety stress apprehension and fear” resulting in emotional trauma.

The two questions which arose on the appeal, therefore, were formulated by Mr. Hytner as follows: -

was OH entitled to damages for loss of amenity pain and suffering according to the conventional principles of the common law?

was OH entitled, as a child, to damages pursuant to common law principles in the light of section 31 (2) of the Children Act 1989?

In relation to (1) Mr Hytner submitted that, in respect of an infant or baby, the strict application of dicta relating to adults was artificial. For example, an adult whose grief extended beyond what was regarded as “the norm” and was subject to weeping fits after a short period of “normal grief” recovered damages, the condition being given the “label” of “pathological grief”. The adult, even during the period of “normal” grief would often be prescribed some medication for sedation.

In respect of a baby, it would not be possible so to communicate with him / her as to make a diagnosis leading to a label being attached to suffering. Furthermore, the dicta in the various cases relied upon by the local authority and the judge related to transient conditions. If an adult, as the result of an accident, suffered for a period of, say, six months from weeping fits, sleep disturbance anxiety, stress and emotional trauma, it was inconceivable that damages would not be recoverable. Indeed, Mr. Hytner submitted that “emotional trauma” and “anxiety” were sufficient “labels” in themselves to bring an adult or child within the various dicta excluding “normal emotions” in the absence of a psychiatric illness.

Mr Hytner further submitted that it was clear, as appeared to have been accepted by the judge in paragraph 42 of his judgment, that where a condition is multi-factorial, and the doctors cannot apportion with certainty the proportion of the condition caused by the tort, the duty of the court is to make its own assessment, rather than dismiss the claim.

As to CA 1989, section 31 (2) set out the criteria for the taking of a child into care by a local authority. “Harm” was defined by s. 31 (9) as “ill-treatment or the impairment of health or development”; and “development” was defined as “physical intellectual emotional social or behavioural development”. Mr. Hytner submitted that it would be anomalous to apply to a child dicta relating to adult claimants if the result in law was that a local authority that had, by reason of negligence, caused or exacerbated the very conditions that it had relied upon in an application to take a child into care, was immune from suit because those conditions did not amount to “psychiatric illness”.

In the instant case, Mr. Hytner submitted, having suffered “anxiety, stress, emotional trauma, sleep disturbance”, OH had clearly suffered impairment of health. In adults, and even in the case of infants, medication was frequently prescribed for these conditions. Indeed, it was arguable (though the argument is not necessary for the success of the instant appeal) that merely by being deprived of the loving care of his parents, OH had suffered “ill-treatment” and therefore harm within the meaning of section 31 (2) of the Act: see Re M (A Minor) (Care Order) [1994] 2 FLR 577, at p 580.

Notwithstanding that the Human Rights Act 1998 had not been incorporated into English Law at the date of the events occurring in this case, Mr. Hytner sought to bring in ECHR by citing a dictum of Lord Denning in Schering Chemicals Ltd. –v- Falkman Ltd [1982]1 QB 1 at 19 that English law “should conform as far as possible with the provisions of the European Convention of Human Rights”; and by relying on a further dictum in the speech of Lord Scarman in Att. Gen. –v- BBC [1981] AC 303 at p.354 C-D that “there is a presumption, albeit rebuttable, that our municipal law will be consistent with our international obligations”:

Consequently, although the point was not taken before the Learned Judge, it is submitted that it would not be in conformity, nor consistent with the United Kingdom’s international treaty obligations, in this case the Human Rights Convention, if CA 1989 was so construed as to deprive OH of damages for suffering – even if falling short of a psychiatric illness – due to being separated from his mother.

Prior to her appointment to the Circuit Bench, Miss De Haas QC had settled a lengthy skeleton argument on behalf of the local authority in answer to the appeal. In essence, however, the case she advanced was simple, and contained in three propositions. Firstly, no identifiable damage had been caused to OH during the period when he had been separated from his parents pursuant to the interim care order made by HH Judge Urquhart. Secondly, and in the alternative, if there had been any damage, it was limited to distress at times of contact between OH and his mother, a form of distress not capable of being compensated in law. Thirdly, if there was any identifiable damage, it had not been caused or materially contributed to by the period of separation. There were, Miss de Haas argued, many other factors which could be causative of such damage (assuming it to have been proved).

Miss de Haas conducted an extensive review of the evidence available to the judge in support of her argument that there was no evidence, apart from that of Mrs. AD to support the contention that OH had suffered prolonged distress leading to symptoms of sleep disturbance and crying over many months due to his enforced separation from his parents. She argued that the judge had been right on the causation issue, both as to the facts and as to the law.

Mr. Geoffrey Tattersall QC, appearing for the local authority before us, adopted his predecessor’s argument, and allowed himself only a modest expansion of her submissions. He pointed out that it had not been contended that OH had suffered any physical injury. The judge had found that to obtain an award of damages OH had to prove that either he had suffered physical harm or a recognisable psychiatric condition and that, for example, apprehension, fear and discomfort were not compensatable. Such a finding, he submitted, was correct and consistent with that made by Simon J in RK and MK v Oldham NHS Trust [2003] Lloyds Rep Med 1.

In that case, which was one of the decisions forming part of the East Berkshire decision, and the facts of which as recorded by Lord Nicholls of Birkenhead I have already set out at paragraphs 13 above, Simon J had dismissed the child’s claim. That dismissal was not the subject of an appeal. The child in that case has been separated from her parents for a period of 8 months, during which they had daily supervised visiting contact with her. Each day her mother spent all day sharing her care, and her father visited in the evening after work. The conclusion of the consultant psychologist advising the parents was that: -

On the basis of these findings, counsel submitted that M had suffered “an injurious interference with her well-being as a result of the physical separation from her parents”. Whilst no psychological injury had been diagnosed, it had been submitted that the court should recognise the difficulties in identifying potential harm in young children who may not be able to vocalise their feelings. It was also submitted on M’s behalf that an abnormal period of development of “the attachment dynamic” amounted to an injury recognisable by law.

Simon J dealt with these submissions in the following way: -

Mr. Tattersall invited us to apply Simon J’s reasoning to the facts of the instant case. He submitted that after a thorough consideration of the evidence, the judge had found that OH had failed to prove any physical harm or recognisable psychiatric condition (such as those pleaded) which was a consequence of his separation from his parents. The highpoint of the submissions made on behalf of OH was recorded by the Judge [para 41] thus :

Mr. Tattersall argued that this was an ambitious submission which was not justified by the totality of the evidence. Mr. Tattersall relied on the judge’s conclusions in paragraph 43 and 44, which I have set out above. Those conclusions, he submitted, were justified by the evidence.

In relation to the supplementary points advanced by Mr. Hytner in response to Hale LJ’s reasons when granting permission to appeal, Mr. Tattersall submitted that there had been no confusion on the part of the judge. Although Drs Oppenheim and Schauder were invited to consider whether OH had suffered the conditions pleaded in paragraph 11 of the Particulars of Claim, this was in the context of whether such conditions had been caused by OH`s separation from his parents, which was the case advanced on behalf of OH, and neither could say that such was the case. There was no evidence to suggest that OH had suffered any kind of trauma by being separated from his parents.

The doctors’ inability to determine whether any of OH’s symptoms were caused by the period of separation from his parents had been influenced by aspects of the factual matrix on which Mr. Tattersall relied. These included OH’s extreme feeding difficulties prior to 12 August 1997, the fact that he needed more medical attention than most babies and that he caused anxiety, distress, crying and loss of sleep to the mother which must in turn have been communicated to OH.

Mr. Tattersall submitted that it was simply inaccurate to contend that the only relevant evidence came from OH`s mother and grandmother. The judge had, rightly, given consideration to the contemporaneous reports made by the NSPCC, the Guardian-ad-Litem, the foster-parents, the family support worker and doctors as well as to the contemporaneous records of the general practitioner and the statutory review. The judge had not found that OH suffered “upset, shock, anxiety, stress, apprehension and fear” resulting in emotional trauma`. He had simply stated, in paragraph 43 of the judgment that: “upset, shock, anxiety, stress, apprehension and fear are not an identifiable psychological injury”. In saying that he was correct.

It appeared to be common ground that normal human emotions of a transient nature (such as fright, shock or grief) cannot justify an award of damages. Mr. Tattersall submitted that there can be no justification for some lesser test to be applied to an infant such as OH. It was for the judge to decide whether it had been proved on behalf of OH that the consequences to him of the separation from his parents went beyond normal human emotion. The judge had not been so satisfied.

As to the argument under CA 1989, there was no anomaly in applying to children and adults alike the same principles of law as to whether an injury or condition, resulting from negligence, was of sufficient severity to justify an award of damages. Indeed, Mr. Tattersall argued, it would be anomalous if different principles applied to children and adults. Furthermore, to apply such principles of law whether an injury or condition, resulting from negligence, was of sufficient severity to justify an award of damages, was not inconsistent with any Article 8(1) right. The judge had made no finding that, by being temporarily separated from his parents, OH had suffered “anxiety, stress, emotional trauma, sleep disturbance”, or any impairment of health.

Mr. Tattersall invited us to distinguish Re M (A Minor)(Care Order) [1994] 2 FLR 577. In that case, Bracewell J had found that the child had suffered ill-treatment by being permanently deprived of the love and care of his mother when she was murdered in his presence. That was a wholly different case. The judge had been right, and the appeal should be dismissed.

In my judgment, there is some force in Mr. Hytner’s submission that in paragraphs 43 and 44 of his judgment the judge was not addressing the relevant issue. As Hale LJ pointed out when granting permission to appeal, the question was not whether the alleged negligence caused OH’s current difficulties: the question was whether the alleged negligence either caused or contributed to harm which is recognised by the law. However, this legitimate criticism of the judgment does not, in my judgment, avail OH, and I have come to the clear conclusion that the appeals fails on all three of the grounds advanced in Miss de Haas’s skeleton argument.

The first point taken by Miss de Haas was that it had not been established that OH had suffered any identifiable damage during the period from August to December 1997 when he had been separated from his parents pursuant to the interim care order made by HH Judge Urquhart. In my judgment, this point is made out. Given the subsequent diagnoses of ASD and ADHD (neither of which had been caused by the separation from his parents) and given OH’s multiple difficulties, it is, in my judgment, quite impossible to identify any psychological harm of a kind properly giving rise to an action for damages suffered by OH by being removed from the care of his parents for a period of 4 months at the age of 12 months.

Apart from the general proposition that any child of 12 months removed from competent and loving carers with whom he has lived since birth is likely to suffer some degree of trauma from a change of carer, neither of the doctors who gave evidence to the judge was able to identify any specific harm suffered by OH. Dr. Oppenheim’s evidence, moreover, was to the effect that the extent of any harm suffered by the removal of a child of OH’s age from the care of his parents was to a substantial extent dependent on the care given to him by those with whom he was fostered, and the skill with which they catered for his needs.

Furthermore, the evidence in the care proceedings was that OH had not suffered as a consequence of his experience in care. OH was represented by a guardian in the care proceedings, charged under CA 1989 section 41(2) with the duty of safeguarding OH’s position before the court. The view of OH’s guardian in her report dated 27 January 1998 (which I must have taken into account when I discharged the care proceedings) was that OH had not suffered any harm. She said:

The guardian is not, of course, a psychiatrist or a psychologist, but she is an experienced social worker, and her evidence was supported by that of the social workers and the foster parents in the care proceedings. That evidence, which was before the judge in written form, supports the proposition that OH did not suffer any identifiable harm in foster care.

Equally, the contemporaneous evidence of the foster carers, Rev and Mrs. Stannard, was that OH had thrived in foster care. This was not a matter investigated by the judge, but the need for OH to be fostered had been considered by HH Judge Urquhart over four days, and, as I have already stated, the fact that he made an interim care order carries the irrebuttable inference that he thought temporary placement in foster care was in OH’s best interests.

In my judgment, therefore, there was simply no evidence apart from that given by Mrs. AD and her mother that OH had suffered harm, and although their evidence was of OH suffering distress, there is nothing in the medical evidence to suggest that this was anything other than transitory.

In the alternative, if it can properly be said, based on the evidence of Mrs. AD and her mother, that OH must have suffered some harm by being removed into foster care, such harm as he may have suffered is not, in my judgment, justiciable, and does not give rise to a claim in damages. In this respect, I accept Mr. Tattersall’s invitation to adopt the approach of Simon J in RK and MK v Oldham NHS Trust [2003] Lloyds Rep Med 1, which I have set out at paragraph 72 above.

Miss de Haas’ third proposition is, effectively, the basis on which the judge has decided the causation issue. The origins of OH’s difficulties are multi-factorial: it is quite impossible to isolate the period of separation as causing or contributing to any harm he had suffered or continued to suffer. Although the judge put it slightly differently that is, in effect, what he was deciding, and on the evidence he was entitled so to find.

Speaking for myself, I do not find Hale LJ’s reference to significant harm under CA 1989 applicable to this case. The fact or likelihood of significant harm (“significant” not being defined in the Act) are, of course, the so called “threshold criteria” for the making of care orders under CA 1989 section 31(2). In its context, however, such harm is attributable to the care given to the child, or likely to be given to him by his parents, if a care order is not made. Such harm would not, accordingly, fall to be considered in the context of an application for damages by a child against a local authority.

That said, however, I respectfully agree with Hale LJ that on the facts of a given case, harm caused by a local authority to a child which could properly be described as significant may well be of a sufficient nature and severity to found an action in tort for damages. On the facts, however, I do not think the point arises in the instant case.

Nobody has suggested that OH suffered significant harm in the CA 1989 context. There has never been a judicial finding that OH has suffered significant harm. The threshold for the two CA 1989 section 38 interim care orders was the satisfaction on the part of the justices on 7 May 1997 and Judge Urquhart in August 1997 that there were reasonable grounds for believing that the threshold criteria under section 31 were met. The fact that the local authority subsequently applied to discharge the care proceedings is a clear indication that it accepted OH had not suffered (and was unlikely to suffer) significant harm. Judge Knopf certainly made no finding that OH had suffered significant harm by being separated from his parents, and on the material available to him no such finding was open to him (whether applying CA 1989 criteria or the law of tort).

In my judgment, a fair reading of paragraph 43 of his judgment shows that the judge was making two points. The first was that the doctors had been unable to identify the effect of the separation on OH and the extent to which (if at all) it had contributed to his subsequent difficulties. Secondly, he was saying that “upset, shock, stress, apprehension and fear” (the highest the case could be put on OH’s behalf) did not sound in damages. I have already agreed with Hale LJ that the judge appears to place the absence of proof in the context of an assessment of OH’s current state, although the judge was fully aware - and had earlier said so – that the claim for damages was limited to a relatively short period following his return to his parents. But even allowing for that as a slip by the judge, the fact remains that his finding was of transient and non-justiciable damage consequent upon his separation from his parents.

In my judgment, therefore, although paragraphs 43 and 44 of the judgment could have been more felicitously expressed, the essential building blocks are there. Any damage OH suffered by being removed from his parents was transient and non-justiciable. That was a sufficient finding to dispose of the case. In my judgment, however, the judge would have been entitled to go further, and hold that it had not been established that OH had suffered any damage.

Despite Mr. Hytner’s valiant efforts, therefore, and despite the way he has reined in the claim from the broad way in which it was originally pleaded (see paragraph 32 above) I am entirely satisfied that OH’s claims fails.

Mr Hytner’s attempt to invoke ECHR and the Human Rights Act 1998 (HRA 1998) is, in my judgment, inadmissible. The Act did not come into force until 1 October 2000 and cannot, accordingly, be prayed in aid in relation to injuries allegedly suffered in 1997 / 8. Moreover, the importation of an Article 8 right to respect for OH’s family life also imports the Article 8(2) qualification. Neither is, I think, admissible in the context of a negligence action based on events which occurred prior to the implementation of HRA 1998.

Furthermore, the growing jurisprudence in relation to actionable breaches by local authorities of parents’ and children’s ECHR article 6 and 8 rights cannot assist OH or his mother for the same reason, although in future cases they may provide a remedy which the common law does not. For present purposes, however, both HRA 1998 and ECHR are, in my judgment, irrelevant.

For the reasons I have given, I would dismiss both appeals.

I agree.

I also agree.