B&B v A County Council

This unusual and unfortunate case arises out of errors that were made by the respondent county council during an adoption process. In order to protect the interests of the two of the claimants who are children, and in respect of whom an order has been made under section 39 of the CYPA 1933, and also because of the particular nature of the subject-matter, the parties and all of the individuals concerned will be identified only by letters (which are not their actual initials).

The claimants are four members of the B family: the father and mother, CB and FB, and their two adopted children, K (born on 17 September 1992) and M (born on 16 February 1994). They contend that contrary to undertakings given to the parents, and also contrary to good practice and commonsense, the identity of the adopting family, and the area in which they lived, were during the adoption process in respect of M revealed to members of M’s “birth family”. That expression is used for convenience, but I shall have later in the judgment to revert to the nature of the family and of the relations between the various persons said to comprise it. The disclosures were made to M’s mother, D, and on a separate occasion to M’s maternal grandmother FC. The claimants allege that, as a result of those disclosures, once M had been adopted by the Bs that family was subjected to a campaign of harassment by the birth family. That, and other aspects of the handling of M’s case to which the Bs took exception, led to a number of claims in the present action, of which however only the following survive before us.

First, all four claimants seek damages for psychiatric injury and loss and damage arising out of the campaign of harassment that they allege to have been consequential upon the wrongful disclosure of their identity during the adoption process. This claim was put under a number of legal heads: breach of contract; breach of confidence; “assumption of responsibility”; and negligence. The first three of these were rejected by the judge, and only pursued in a somewhat limited way before us. The judge however did find that the respondents had owed the claimants a duty of care in negligence to keep their identity confidential, which duty had been broken, but he nonetheless dismissed the negligence claim because he considered that it had not been proved that the B family had been subjected to the “campaign” of interference and aggression that was the damage on which the constitution of the action depended; and that to the extent that the incidents complained of did occur it had not been proved that the birth family had been responsible for them. The claimants appeal against those findings of the judge; the county council cross-appeals against the judge’s conclusion that it owed a relevant duty of care to the claimants.

The second claim that is pursued before us is by CB and FB alone, and alleges a failure on the part of the county council to provide promised support to the B family in the face of actual or feared harassment by the birth family. The main purpose of this claim was to enable the B family to be compensated for the expense of moving to a different part of the country in order to escape harassment by the birth family. The basis of this claim in law was and remains difficult; and additionally the claim must fail in any event if the judge was right in finding that the Bs’ belief in the harassing activity of the birth family, although accepted as genuinely held, was nonetheless not correct as a matter of objective fact.

Before addressing these claims in detail it is necessary to say more about the factual situation in which they arise. That can be done by reference to the careful exposition of the judge.

It will be recalled that M was born on 16 February 1994. The judge continued with her history in these terms, at §§ 4-7 of his judgment:

“In May 1994 her maternal grandmother was concerned that she had been physically abused by her father and reported her concerns to social services. A hospital examination found no injury.

On 28 June 1994 she was again at hospital with multiple fractures some of which were old and it was then accepted that the diagnosis in May was wrong. Her father, DG, admitted causing injuries to the child and on 19 June 2005 he was placed on probation for two years.

M was placed on the Child Protection Register on 6 July 1994 and remained living with her mother, D. DG lived away from the family but had supervised contact. The contact went well and on 23 October 1995 approval was given for DG to resume living with D and M. On 16 November 1995 D gave birth to a second child, L.

L was not placed on the child protection register and on 29 March 1996 M’s name was taken off the register.

On 4 June 1996 L died and the post mortem concluded that this was a non- accidental injury. DG and D were arrested and M was placed with her maternal grandmother, FC. On 23 December 1996 the grandmother was approved as a short term carer for M.

In due course DG was sent to prison for the manslaughter of L. The defendant had to make long-term plans for M and on 17 February 1997 it was granted a care order. The care plan was for adoption and proposed moving M from grandmother to bridging placement pending the identification of a suitable adoptive family. The judge questioned whether it was necessary to move M in the short term, only for her to have to move again to a final placement. The defendant reviewed its plan and decided that M could remain with the grandmother until placed with potential adopters. The grandmother was co-operating with the defendant.

At this point it is necessary to say something about the birth family of M. Her Mother, D, and D’s siblings were all abused by their stepfather, LC. He received two concurrent 7 year prison sentences and is regarded as a “powerful and dangerous man”. He is a paedophile and therefore presents a risk to children. There is a question mark over the extent to which maternal Grandmother, FC, was aware of the stepfather’s activities with her children. I should say that the grandmother has never been charged with any offence. On any view however there must be concern that she was unable to protect her children from their stepfather. D’s younger siblings, [N] and J, have been involved in criminal activities such as violence, criminal damage, and in respect of one of them, arson. These have been the subject of warnings and cautions but no criminal convictions. M’s father, DG, has convictions for assaults on M as well, of course, as his conviction for manslaughter.

In the months of July and August 1997 M was introduced to Mr and Mrs B and K, and on 12 August 1997 the adoption panel approved the match. On 25 August 1997 M was finally placed with the B family. In the months that followed two significant things happened, First, M made various disclosures which showed that she had been subjected to sexual and physical abuse while in the care of her birth family. Secondly, almost immediately following the placement, there began a series of incidents which continued for almost 7 years and which the claimants maintain was a campaign of terror and harassment by the birth family. It is the firm belief of the claimants that the defendant negligently revealed their names and address to the birth family and that this made the harassment possible.”

The judge further reverted in more detail to the troubled nature of the birth family when he recorded the following specific findings of fact in §54 of his judgment:

“(a)

the maternal birth family was regarded, correctly, by the defendant as a very troubled family and one traumatised by the sexual abuse of M’s mother and her siblings by LC (the stepfather).

(b)

this sexual abuse caused massive dysfunction within the family.

(c)

LC was regarded by the defendant as a dangerous paedophile, and psychologically “powerful and dangerous”.

(d)

younger members of the maternal family, J and N, had police “records” for dishonesty and criminal damage. J also had a warning for arson and [N] had cautions and warnings for assault.

(e)

N had reported to social services that he had been assaulted by his brother, sister and mother on 20 August 1996.

(f)

M’s father, DG, was known to social services as a man capable of violence towards his children. He had been convicted of assaults on M and, of course, caused the death of L.”

The appellants criticised this account of the birth family as omitting various characteristics or incidents relevant to the issues in the appeal, and I shall have to return to that criticism in due time. However, it was not disputed that the judge’s passage broadly indicates the problems from which the birth family suffered.

K was adopted by Mr and Mrs B on 20 December 1994. The judge recorded that they spoke highly of the way in which the defendant county council had dealt with the process, and that the adoption had been a great success for K and doubtless also for his adoptive parents. In due course Mr and Mrs B decided that they would like to adopt another child, provided that would not cause difficulties for K, and approached the defendant, specifying that they did not want a child who had been sexually abused. The defendant matched the Bs with M, in respect of whom, it will be recalled, the county council had been granted a care order on 17 February 1997. In the months of July and August 1997 M was introduced to Mr and Mrs B and to K; on 12 August 1997 the adoption panel approved the match; and on 25 August 1997 M was finally placed with the B family. As we have seen, it is alleged that the campaign that is the subject of these proceedings started almost immediately on M’s arrival in the B household, the first incident relied on having taken place on 8 October 1997. Apart from those matters, the placement was a success. On 6 December 1999 M was freed for adoption, and Mr and Mrs B adopted her on 27 June 2000. The judge made the following findings of fact in relation to aspects of the process. I take these substantially verbatim from §53 of his judgment, but omitting the considerable references to the evidence by which he supported the findings.

It will be logical to look first at the nature in law of the claims made by the claimants, against the background of the foregoing findings of fact, before turning to the objections raised to the judge’s finding that in any event no loss had been proved.

This claim was not withdrawn, but was not pursued with any force before us. As the judge records, the claim was put differently at different stages of the case. In the particulars of claim a “collateral” contract was pleaded, in terms that the Bs agreed to adopt M in return for the defendant’s representation or warranty that their identities would not be disclosed to the birth family. In closing submissions at the trial, the contract was put in terms that Mr and Mrs B were induced to embark upon the adoption process in return for a promise by the defendant that their identity would be kept secret.

As Hale LJ (as she then was) pointed out in her seminal judgment in A v Essex CC [2004] 1WLR 1881[72], the general adoption process is not in law a matter of contract at all, and contractual analysis cannot be applied to it. What is alleged to be the special and particular agreement between the Bs and the defendants, introducing the condition of anonymity, cannot therefore be a collateral contract, because there is no larger contract for it to be collateral to. Nor can the agreement be analysed as in law a separate contract, or alternatively as an undertaking that the Bs can now enforce.

First, if adoption is not a contractual transaction, and is not to be characterised in contractual terms, as Hale LJ authoritatively held in A, then it is very difficult to see how a person’s agreement to enter into the adoption process can be in law consideration for a promise made by another person, whether or not that latter is himself involved in the process. That is a point not merely based upon public policy, even though to uphold the contract contended for in this case would undermine the policy considerations recognised in A. Rather, as the judge correctly recorded in his §41, a contract in law must be mutually binding on both parties. Because Mr and Mrs B had no obligation to persist with the adoption, but could withdraw at any stage of the process, any promise that they made in return for the promise of anonymity was not binding on them and could not be enforced against them. That is not just a matter of practicality, but something inherent in the law and nature of adoption. A promise that is unenforceable as a matter of law cannot provide the consideration that forms the basis of a contract.

Second, even if that is not correct, as the judge again pointed out, in his §42, the defendants’ failure to observe their part of the bargain was known to Mr and Mrs B well before M was placed with them, and three years before the adoption was formalised. I deal below with the implications of that circumstance for the claim in negligence. So far as the law of contract is concerned, if the agreement is to be analysed (for the reasons already stated, artificially) as an undertaking by Mr and Mrs B to persist in the adoption provided that their confidence was respected, then even if that was in law technically a contract Mr and Mrs B had, equally technically, in law affirmed the contract many times over in the face of the defendants’ breach, and the defendants had acted on that affirmation by collaborating with Mr and Mrs B in going ahead with the adoption process. Whether that be called affirmation or estoppel, the position in law is that if there was a contractual obligation imposing strict liability on the defendant the claimants cannot now complain of the breach of that obligation.

The judge was accordingly right to dismiss the contractual claim for the reasons that he gave.

The judge recorded that it was common ground between the parties, in the light of the jurisprudence of Caparo v Dickman [1990] 2 AC 605, that the case had to be considered under the well-known trilogy of proximity; foreseeability; and “fair just and reasonable”.

The first two of these requirements can be taken fairly shortly. The judge in his §61 found that it was foreseeable that if the identity of the adopters were revealed some damage to the claimants would (he correctly should have said, and the rest of his judgment shows that he meant to say, “might”) follow. That was a finding of fact based not merely on assessment by the judge but on the evidence that he heard, to which he made reference in explaining his finding. The defendants challenged that finding on the basis that (i) Mr and Mrs B could have withdrawn from the process when the disclosure was made; and (ii) it was not foreseeable that disclosure would lead to the damage complained of in this case, a criminal campaign causing psychiatric injury. The latter event, deliberate infliction of damage by third parties, required a particularly high degree of foreseeability, that had not been met in this case: Smith v Littlewoods [1987] 1 AC 241.

The first of these objections overlooks that a duty of care in negligence is a duty to guard against the risk of a detrimental event occurring. Mr and Mrs B might have withdrawn, in which case the foreseeable outcome of the disclosure would not have occurred. But, equally, it was foreseeable that, as in the event was the case, they would not withdraw, in which case the risk of the detrimental event remained in place. On the facts of this case, the future reaction of Mr and Mrs B was a factor to be taken into account in assessing the risk of damage created by the disclosure, but it could not be decisive in removing or relevantly reducing that risk unless it was certain, or very likely, that Mr and Mrs B would withdraw: certainty of an order that was neither foreseeable nor borne out by what in fact occurred.

The second objection overlooks that in order to constitute an action in negligence, which at this stage of the argument is the step that we are concerned with, it is only necessary to establish, as the judge found, that some damage of a relevant kind, in this case damage from the birth family in or related to the adoption process, is foreseeable. The detailed conduct of the birth family, its criminality, and its disastrous effect upon the B family, will if established be recoverable under that rubric as damage of the foreseeable type, albeit more extensive than that on the basis of which the action was constituted. For that familiar principle see for instance Page v Smith [1996] 1 AC 155 and Jolley v Sutton LBC [2000] 1 WLR 1082.

As to proximity the judge, after rightly pointing out the limits, some would say the impossibility, of that concept as a practical test, held that there was no difficulty in this case in finding proximity. He said in his §60:

“The defendant had been specifically asked to keep the address and identity of the claimants confidential. It agreed to this and therefore assumed a responsibility over and above the normal adoption process.”

The respondents challenge this finding, on the basis that when the undertaking was given Mr and Mrs B were only prospective adopters. They took the decision to become actual adopters already knowing that confidentiality had been sacrificed, so any “proximity” arising from the original promise had dissipated. That chain of events is certainly of importance in the case, and I discuss its implications more fully under the rubric of “fair just and reasonable”, where the respondents revert to the point. I do not however think that it suffices to destroy the proximity between the parties in the sense in which that concept is used in Caparo. The parties were plainly in a close relationship with each other, irrespective of whatever was asked for and given in relation to confidentiality: obviously closer, one would have thought, than for instance the auditors and the prospective investors in Caparo. And they remained in that relationship throughout the process. If the decision of Mr and Mrs B to continue with the process deprives them of relief, that is not because the relationship of proximity had disappeared, but because that step on their part disqualified their claim under limb three of Caparo, fair just and reasonable. To that, the centre of the claim in negligence, I now turn.

The judge treated this question very shortly. First, he pointed out that the defendant by its undertaking had accepted a specific and defined responsibility over and above the duties normally imposed on it by the adoption process. To enforce that duty did not, therefore, infringe the inhibition against using the law of negligence to judge and control the difficult discretionary decisions of an authority operating in the social services field that was recognised in, for instance, X and others v Bedfordshire CC [1995] 2 AC 633, and reiterated in the decision of this court in A v Essex County Council. That particular point having been established, he continued in more general terms in his §62:

“Is it fair just and reasonable to impose the duty? Why not? I do not consider that there is anything unfair, unjust or unreasonable in imposing a duty on the defendant who has freely accepted this responsibility in the knowledge of the claimants’ fears.”

And to that the judge might have added that the defendant had an (entirely proper) interest in securing the resolution of the difficult case of M by her adoption by successful and responsible adopters like Mr and Mrs B. It is merely commonsense to say that the assurance of anonymity was given to help the defendant in securing that end. Although, for reasons already set out, that relationship cannot in law be analysed as one of contract, the interest that the defendant had in giving the undertaking strongly supports the view that it is fair just and reasonable for it to be liable for a careless failure to honour that undertaking.

Before us, at least, the defendant raised two arguments against that conclusion, one of them an argument of general policy, the other based on the particular facts of this case.

As to general policy, the defendant stressed the importance of the practice of “open” adoptions, and the need not to discourage adoption agencies in pursuing such adoptions if they think that to be in the best interests of the child. Here, moreover, the claimants knew that the adoption was to be an open one, with the contingent danger of their identity being disclosed by accident, including possible disclosure by the adopted child at a contact meeting. The imposition of a duty of care not only would inhibit the general adoption process but also was unnecessary, again since the claimants could protect themselves by withdrawing at any stage.

I am not persuaded by these arguments. The particular circumstance of this case was, as the judge emphasised, that a specific undertaking had been sought and given; but as we understood it at least the starting point of even an open adoption will always be confidentiality of the identity of the adopters. If the authority fears that it may not be able to maintain that confidentiality; or reaches a stage where there may be good reasons for revealing the identity of the adopters; then the course that it should take is to discuss the implications of that with the potential adopters before the latter commit themselves. The authority did not do that in this case because it did not expect its officers to breach the confidence that had been requested. And similarly, if the authority thinks that such an assurance on its part may not be of much use to the adopters because their names may become known from other sources, the example given in argument being the child when in contact with her natural parents, then the implications of that must also be discussed with the potential adopters before any assurance is given. These considerations do not place an unreasonable burden on adoption agencies, because they do no more than hold the agency to what ought to be good practice.

Furthermore, in the specific circumstances of this case, to hold the defendant liable when an express undertaking was asked for and given will not undermine the general system of adoption; and certainly should not have a chilling effect on the important activities of adoption agencies. If an agency is in the future asked to give such an undertaking it will have to decide whether it can prudently do so, balancing the possible liability accruing to it from a future breach of the undertaking against its interest in securing the adoption. It will also have to assess how certain it can be that its own agents will not carelessly breach the undertaking. I mention that last point because as we have seen the defendant argued that imposition of a duty of care was inappropriate or unfair because the identity of the adopters might be revealed by persons for whom the defendant was not responsible. But if that happened the defendant would not have committed any breach of its undertaking: indeed, part of the defendant’s case at trial, rejected by the judge as unfounded in fact, was that Mr B had himself been responsible, or primarily responsible, for the birth family discovering his identity. And that such collateral disclosures might occur is no reason for not enforcing the fuller and more direct assurance about its own conduct that the adopting agency has chosen to give.

I have also had the benefit of reading the observations on this issue of Bodey J, drawing on his great experience in the field of adoption. I respectfully adopt what he says.

The second way in which the defendant resists the imposition of a duty of care is based on the undoubted fact that the claimants persisted with the adoption process even after they knew that confidentiality had been broken, and that (on their case) the feared targetting of them by the birth family had begun. That was put in a number of ways including, as the judge had indeed observed in his §82, that Mr and Mrs B’s decision to persist in those circumstances might cause difficulties if the causal basis of their loss had to be pursued. At the present stage of the argument, however, the point is used to deny the existence of a relevant duty of care. It is said that whether or not the original undertaking generated a duty to perform the undertaking, as soon as the undertaking was seen to be broken but Mr and Mrs B persisted in the adoption process no further duty was owed. The argument is said to be on all fours with that in relation to the alleged contractual obligations, which the judge found, and I agree, to have ceased to be enforceable in the light of the B family’s reaction to the knowledge that confidence had been broken.

Although I see the force of this argument, I do not think that it is correct. Liability in the law of negligence, by contrast with the law of contract, depends not on bringing the case within a technical structure wherein relevant promises are absolutely binding, but at the same time exempted from liability by formal rules such as those of waiver; but rather, more generally, upon what is reasonable. When Mr and Mrs B found out about the breach and (as they thought) resultant campaign, they were placed in a considerable dilemma. On the one hand they wished to escape the attentions of the birth family; but on the other hand they wished to adopt M. In the circumstances as they believed them to be they could only escape the birth family by giving up M. It was the defendant’s breach of its original promise that put them in that dilemma. Bearing in mind the defendant’s own strong interest in carrying the adoption through, I do not think that it lies in the defendant’s mouth either to complain that Mr and Mrs B’s persistence was unreasonable; or to contend that that persistence caused the defendant’s original obligation to them to expire. In other cases with a similar course of facts but a different policy background the outcome might be different; but the particular circumstances here, of a mutual interest in carrying through the adoption process, makes it fair just and reasonable for the defendant to be liable for the original breach despite the opposite party’s carrying on of that process in the knowledge that the breach had occurred.

Miss Thirlwall also sought in this connexion to obtain support from that part of A v Essex County Council that dealt with the period of time in respect of which damages could be obtained. In that case, the complaint was that the adoption authority had not sufficiently warned the prospective adopters about the dangerous and destructive tendencies of the child. This court accepted that in principle a claim in negligence was available to the adopters, but upheld the judge’s decision that the date of the finalisation of the adoption was the “cut-off point” of the authority’s liability. Hale LJ said, [2004] 1 WLR 1881[69]:

“The judge was entitled to find that by the time the adoption order was made quite enough had happened to enable the claimants to know enough about William to be able to make a decision for themselves. In those circumstances, it would be contrary to the statutory scheme for liability to continue beyond the date of the adoption order. The purpose of the probationary period is for all concerned to test out the arrangement. Each side is free to withdraw at any time.”

Miss Thirlwall suggested that by the same token it would be contrary to the statutory scheme to give the Bs relief in respect of the period after they knew that confidence had been broken. I am entirely satisfied that when Hale LJ spoke as she did in A v Essex County Council she was not suggesting that there was any incompatibility in law between the statutory scheme and a claim in negligence. The issue is, as always, one of reasonableness. If the adopters have had the full benefit of the statutory scheme, have become fully aware from daily contact with the child of the problems facing them, and have decided to finalise the adoption, then it is a tenable view, taken by the trial judge in A, that they cannot thereafter complain. But our case is very different on its facts. Mr and Mrs B were left in a state of complete uncertainty as to the eventual outcome, and no doubt hoped that what they saw as the campaign would simply disappear: as for long periods it indeed did. For the reasons already set out, it cannot be said that they were unreasonable in persisting.

I therefore conclude that the judge was correct in holding that the county council owed and continued to owe a duty of care towards Mr and Mrs B to ensure that the terms of its undertaking were respected by its employees.

In his §§ 44-45 the judge referred to this as an alternative ground on which the harassment claim was based, which however had not been fully pursued before him. Before us the notion of assumption of responsibility was mentioned not in that context, but in relation to the “promised support” claim, but I will say something more generally about it here. The judge said that he did not understand this part of the case, and in view of the way in which it was presented to him that is not a matter for surprise.

“Assumption of responsibility” is a control mechanism developed by the courts to identify cases in which the defendant is not in a direct relationship with the claimant, but has conducted himself in such a way as reasonably to invite the claimant to rely upon him or on his representations. Where the law finds an assumption of responsibility, that supersedes or fulfils the Caparo requirement of fair just and reasonable: for that, see Lord Goff of Chievely in Henderson v Merrett Syndicates [1995] 1 AC 145 at p181C. As illustrations of the application of this concept, the auditors did not assume responsibility to the investors in Caparo, but the managing agents did assume responsibility to the names in Merrett. The concept is supererogatory in a case such as ours, where the parties are unquestionably in a direct relationship with each other, and the issue turns not on that but on whether it was reasonable for the claimant to rely on the defendant in a particular respect arising out of that relationship.

Somewhat different issues might arise in what might be called a more free-standing claim, such as is the promised support claim in this case, and I will deal with that distinction in its proper place.

This claim again seems to have been dealt with below in very limited terms. The judge said that the cases relied on by the claimants did not apply to a relationship such as adoption; and in any event the claim added nothing to the claim in negligence. He therefore did not consider it further.

Before us Mr Blunt QC said that, even if he succeeded in establishing a duty in negligence, he nonetheless wished to keep the claim in breach of confidence alive. That was because the measure of damages in the two different chapters of the law might be different. The example given was based on the Bs’ claim for the cost of rehousing. Mr Blount said that under the head of breach of confidence he might hope to avoid what he said was the unduly restrictive measure of damages given in respect of new accommodation in personal injury cases, as set out in the decision of this court in Roberts v Johnstone [1989] QB 878. I found that argument surprising and unpersuasive. It would be very odd if simply by bringing the very same facts under a different chapter of the law a different measure of liability were to be created. And that will not happen in any event in the particular case relied on, because the process adopted in Roberts v Johnstone is a means of calculating the monetary value of a loss, not a rule as to the types of loss for which relief can be obtained; and so it would apply to value the loss contingent on moving house whatever the legal basis on which that loss was recoverable.

Since the claimants in my view have a right of action in negligence, it would therefore merely unduly complicate the case to descend into the law of confidence, as the judge rightly concluded. That makes it unnecessary to form any concluded view on a further formidable difficulty that the claimants would face. As the respondents correctly urged in this connexion, the fault of the defendants consisted of the careless release, not the intentional or deliberate misuse, of the confidential information. That is a relevant distinction because the law of breach of confidence depends on the equitable obligation of a person in possession of information to which he knows confidence attaches not to use that information for his own benefit: a principle best summarised by Denning MR in Seager v Copydex [1967] 1 WLR 923 at p 931E. That analysis does not extend to the acts of a merely negligent handler of information, who does not act for his own benefit, however much what he does may damage the owner of the information. Mr Blunt sought to meet that objection by showing us a decision previously unknown to me, Swinney v Chief Constable of Northumbria [1997] QB 464, where this court, on a very late application to amend pleadings, held that it was arguable that a party could claim damages for the merely negligent disclosure of information about him. As a decision on arguability the case is not binding on us, and under the terms of the Practice Direction (Citation of Authorities) [2001] 1 WLR 2001 should not have been cited to us, since it was not relied on as presenting a new principle or extending the present law. I would however be remiss if I did not say that I see no basis for the relief proposed separate from liability in contract or in negligence. I would respectfully adopt the as yet unpublished view of the leading authority in this field:

“There is a distinction between an equitable duty of confidentiality and a duty to take care to prevent confidential information or documents from falling into the hand of someone else. The former is an obligation of conscience, which requires the recipient not to misuse the information or documents. The latter is a duty of a different character and is not an automatic concomitant of the former. In the absence of a relevant contract, it will only arise if there is a special relationship between the parties giving rise to a duty of care under the law of negligence.”

Because the point is of importance later in the argument, we should remind ourselves that the relevant damage in the negligence action is the foreseeable damage to the claimants committed by the birth family; because the negligence of which the defendants are accused is the release of the names and whereabouts of the Bs to the birth family, thus making it possible for the birth family, if so minded, to harass them.

Having found that the defendant owed the claimants a duty of care in terms of keeping the Bs’ identity confidential, and that that duty had been broken by the release of that information to the birth family, the judge nonetheless dismissed the action, because he did not find it proved to the necessary level of cogency that the birth family carried out the campaign of harassment which the B family said that it had suffered. The claimants appeal against that finding.

Put shortly for the moment, the judge accepted that almost all of the individual incidents alleged by Mr and Mrs B had occurred. He however found himself unable to conclude from the nature and frequency of those incidents that they formed part of a “campaign”, as alleged by the B family. If there were no campaign, the question of whether it was orchestrated by the birth family strictly speaking did not arise; but the judge went on to hold that it was improbable that birth family would have entered upon the campaign. The claimants came close to contending that because the judge’s conclusions depended on inferences that he drew from his findings of primary fact this court was not precluded from in effect retrying the case on the basis of those findings. The issue is not, however, as simple as that. In the extreme case, where the evidence is all in documentary form, this court is in as good a position as is the trial judge to draw inferences from it; while nonetheless always giving respectful weight to the trial judge’s opinion. Beyond that, however, the judge is in a better position than is this court to draw inferences from evidence that only he has seen and heard, and in particular in a case such as the present to assess the impact, range and context of the various incidents. The enquiry must therefore start from and be an enquiry into the judge’s judgment, rather than a new enquiry by this court itself.

Since all of what follows turns on the way in which the judge handled the evidence, the rest of this judgment will not be comprehensible unless I set out his findings verbatim, much though that extends the length of this judgment.

The judge approached the evidence on the basis of the claimants’ case and pleadings, heading the relevant section of his judgment “Did the birth family carry out a campaign against the claimants?” He explained his task in more detail in §65 of the judgment:

“a)

Apart from one incident, namely the dead cat on 6 March 2001, I accept the evidence of Mr and Mrs B and find that the incidents of which they complain did take place. They are set out in the particulars of claim and amplified in the very helpful schedule prepared by the Defendant as part of its final submissions. I annex the schedule to this judgment.

b)

I find that Mr and Mrs B from the very start fervently believed that these incidents are the deliberate work of the birth family.

c)

I find that the defendants took the belief of Mr and Mrs B at face value and worked on the assumption that this was a campaign by the birth family

d)

However I must look at the incidents myself and decide whether I can find such a campaign

e)

I remind myself that the burden of proving that there was such a campaign lies on the claimants; that they must do so on the balance of probabilities and that the less likely an allegation the more cogent is the evidence required to reach the standard of proof

f)

I remind myself, and this is of crucial importance in this case, that whilst I can draw common-sense inferences from the facts I find I cannot and must not be drawn into speculation.”

The schedule that the judge refers to in his sub-paragraph (a) is of considerable importance as demonstrating the matters that the judge had in mind. Some criticism was made of the fact that the judge relied on a schedule prepared by one side only, but Mr Blunt very properly told us that the schedule had been available to him at the trial, and was the subject of four pages of criticism in his written closing submissions. I do not append it to this judgment, but have had it well in mind in what follows, not least in addressing the criticisms that Mr Blunt repeated before us.

The judge then turned to the evidence, in a passage headed “The Incidents” that is to be found in §§ 69-80 of his judgment:

“The Telephone Calls

69.

There are “silent calls” on 30 August 1997, 7 November 1997, 21 March 1998 and 9 April 1998.

A phone call on 5 June 1999 and again in 20 June 1999 which were both traced by the police and found to have no connection with the birth family.

A call on 5 July 1999 traced to a local public house.

2 calls on 17 October 1999 which Mr B was able to trace by dialling 1471.

So no attempt by the callers to conceal their identity.

A threatening call on 20 November 2000 not reported to the police.

70.

There are a number of difficulties with the phone calls. In the first place if they are a deliberate campaign of harassment they are very haphazard – 2 occasions in 1997, 2 in 1998, then nothing for over 12 months until June 1999 and for the last 5 years nothing at all. This hardly sounds like a sustained and deliberate campaign by the birth family.

Furthermore how did the family get the number? Initially it could be because the social worker telephoned the grandmother from the B house but, at about the same time Mr B did exactly the same thing so I could not possibly say that it was the fault of the defendant.

There is also the problem that almost at once or maybe even before the first call (the evidence here is confusing) the claimants went ex-directory and that they changed their number on about 6 occasions in the following years.

71.

I have reached the clear conclusion that the evidence regarding the telephone calls is nowhere near cogent enough to enable me to draw the inference, and that is all that it could be, that these were the work of the birth family.

The other incidents

72.

On 8 October 1997 (the date in the pleadings is accepted to be wrong) the claimants’ motor car is “attacked”. The petrol cap is removed and petrol stolen. It is also broken into and documents disturbed. However two other cars also have the petrol caps removed and petrol stolen. I do not see how I could reach the conclusion that this was part of any campaign. I also note, in considering this and other allegations, that vehicle crimes have been committed in D Close in 1996(see bundle 1 at page 112) and that in December 1998 Mr B was complaining to the police about “the amount of crime which is committed every week in the village”(see Bundle 1 at page 182.)

73.

On 14 May 1999 the head teacher at the local school saw a red Montego motor car outside the school with two youths in it. There is nothing whatever to link this incident with the birth family or with the claimants or with M. It is an example of how every incident is seen in a suspicious light once one starts from the belief that a campaign is being pursued.

74.

On 10 June 1999 a man with a moustache is seen loitering outside the school. Again the claimants believe this is a member of the birth family – probably Mr LC. There is no suggestion that this man did anything suspicious and no cogent evidence that he is Mr LC or that he has any link with the birth family.

75.

On 22 June 1999 there was a bang on the door of the claimants’ home. Again no evidence whatever as to the cause of this.

76.

On 23 August 1999 the burglar alarm went off at the house and the police attended with dogs but found nothing. No evidence that this was other than a false alarm, let alone that it had anything to do with the birth family.

77.

On 27 October 1999 Mrs B saw two men climb over the back garden wall and in December 1999 three men were seen loitering in the back lane. Again no evidence whatever to link this with a campaign by the birth family.

78.

I could go on through all the allegations pleaded but I would have to make the same comment in respect of each.

Perhaps I should just deal with just two more.

On 25 January 2001 Mrs B parked her motor car beside the C Police Station. She left the two children in the car. When she returned to it the children were distressed and said that two men, and possibly a woman had banged on the car window and said that they were going to take them and the car away. Again this is now blamed on the birth family. This might be thought to be one of the most significant incidents but it was not reported to the police and, indeed, Mrs B did not appreciate that it had any significance for “several days” Again there is nothing to link this with the birth family or any campaign.

On 6 March 2001 a dead cat was placed in the post box outside the front door of the claimants’ home and the words “Your Next” sprayed on the door. I accept that there was a cat and those words were on the door but again there is no evidence to link this with the birth family and furthermore the contradictory evidence of the claimants and the conflicting evidence of the postman leaves me unable to say how this incident arose or what significance, if any, it may have.

It may perhaps be helpful to summarise as follows (and I am excluding the phone calls):-

In 1997 there is alleged to be one incident

In 1998 there are no incidents pleaded. This seems to me to be of considerable significance. If this was a sustained campaign by the birth family why is there a gap of over 18 months when nothing happens (from 24 October 1997 – 14 May 1999)? And why after 18 months should the campaign suddenly resume?

In 1999 there are alleged to be 6 incidents.

In 2000 there are alleged to be 2 incidents.

In 2001 there are alleged to be three incidents.

In 2002 one incident.

In 2003 one incident.

In 2004 2 incidents.

Since 22 April 2004 (18 months ago) no incidents at all.

This pattern does not appear to me to be a sustained and deliberate campaign by anyone, let alone the birth family.

79.

For all the reasons that I have given above I have no doubt that the evidence presented to me falls short of the cogency required before I could find that these incidents were a sustained campaign of harassment and were carried out by the birth family.

80.

Of course, if one starts from this belief then all can be made to look suspicious. If, however, one starts with an open mind as I must do then not only is there no cogent evidence which would enable me to reach such a finding, there is in fact no evidence at all. Such a finding would be mere speculation on my part.”

The Grounds of Appeal alleged though, I venture to suggest, in somewhat ritualistic fashion, that the judge’s conclusion was one to which no judge properly directing himself could have come. That broad and, in my judgement, unjustified submission however contained within it more specific complaints about the judge’s handling of the evidence, which were said to demonstrate at least that this judge was not justified in the conclusion that he reached by the approach that he adopted. The case changed somewhat in the course of argument before us, and it is necessary to set out with some care the way in which it was put at the end of the day.

The case as originally presented had two separate limbs, not always sufficiently distinguished. Those were that the judge (i) overlooked or did not give weight to significant items of evidence; and (ii) failed properly to analyse the implications of the evidence to which he did refer, an analysis made only the less cogent by the absence from it of the evidence referred to in (i) above. Before us, a more specific complaint was raised. That was that in assessing the weight and implications of the various incidents the judge had paid too much attention to whether each separate incident could be plausibly attributed to the birth family. That was the wrong approach. He should first have considered whether the incidents or some of them were on the balance of probabilities part of a campaign or vendetta, without reference to who were the perpetrators. If he had done that, he would have concluded that enough of the incidents were “targeted” at the Bs, and were not accidental, bad luck or the expected product of the society in which they lived, to establish that someone wished to harm them. That established, then but only then should the judge have addressed the next question, of was who was behind the campaign. For that role, on the evidence, there was only one candidate.

Before addressing these complaints in detail it is important to remind ourselves of the structure and nature of the claim, and of various general considerations affecting the case.

The claimants alleged that there had been (i) a “campaign” of harassment; (ii) orchestrated and perpetrated by the birth family. It was necessary for the claimants to establish that the incidents had been in the nature of a campaign because, first, if the incidents were casual and unconnected there was no, or at least substantially less, reason for thinking that they were motivated by the birth family’s objection to the process of adoption; and, second, it was only if the negligent revelation of the claimants’ identity had led to a significant and sustained attack on them by the persons to whom the revelation had made that the losses that they claimed, and in particular the cost of moving house, could be attributed to the defendants.

That indeed was how the case was presented. I understand my Lords to criticise as running two issues into one the judge’s question, “Did the birth family carry out a campaign against the claimants?” But that was the question that the claimants invited him to answer. And it was important for the claimants, and in the circumstances of the case a matter of commonsense, to treat the question as one single issue. That was because the claimants needed to avoid arguments that it was implausible that the incidents were connected; or that their random and sporadic nature was not what one would expect from a “campaign”; by saying that that was not surprising when the campaign was being conducted by a group as dysfunctional as the birth family. I give two examples. It will be recalled that the judge, in his §78 quoted above, was particularly exercised by the fact that the incidents were often separated by lengthy periods of time, in one case a gap of 18 months, which he thought to be clearly inconsistent with any “campaign”. Mr Blunt argued that the judge had erred, because he had ignored the assumption that the campaign was being conducted by the birth family, who were known to be irrational and unpredictable. Second, on the issue of how the burden of proving that the campaign might be discharged (see §52 below) it was argued that in determining whether it was unlikely, on the strength of the incidents, that they were part of a campaign, the judged erred in not factoring into his assessment of probability what he should have concluded as to the propensity of the birth family to engage in that sort of anti-social behaviour.

I do not say that these arguments were not open to Mr Blunt; clearly they were. But they put in perspective any criticism of the judge that he, like the claimants, had the effect of the involvement of the birth family in mind when trying to decide whether a campaign had been proved; and any criticism of his use of the locution that particular incidents did not seem to indicate a campaign by the birth family.

At the start of the passage in his judgment dealing with findings of fact the judge said, Judgment §47, that he reminded himself that

“a)

the burden of proof is on the claimants at all times

b)

the standard of proof is the normal civil standard-the balance of probabilities-or “is it more likely than not”

c)

the more unlikely the allegation the greater the cogency of evidence required to reach the required standard of proof.”

I should briefly say something about the first of these requirements. There seemed to be a tendency on the part of the appellants to argue that once they had established that the defendants had committed an act of negligence, then the court had to decide whether that act of negligence had resulted in damage by applying some sort of plausibility test, with no reference to burden. If that was the submission, it is not correct. The claimant bears the burden of establishing both factual limbs of the claim, both the breach and the loss caused by it. That means that in this case the claimants bear the burden of establishing that there was a campaign, and that the campaign was orchestrated by the birth family.

That apart, the main attack on this part of the judgment was that by his reference to a need to look for cogent evidence to establish unlikely allegations the judge might have set too high a test for himself, in particular in view of the argument that it was not at all unlikely that the birth family would behave in the way complained of. I have already commented in §48 above on the implications of that last argument for the way in which the claimants’ case generally was pursued. There is no sign in the rest of the judgment that the judge did apply a “cogency” test to resolve against the claimants issues on which he might otherwise have found in their favour. The criticism would therefore appear to have no substance, but the general issue bears a little more consideration.

In expressing himself in terms of cogent evidence being required to prove an unlikely allegation the judge was quoting in effect verbatim from part of the speech of Lord Nicholls of Birkenhead in Re H(minors) [1996] AC 563 at p586. That speech, and the issue of the civil standard of proof that it addresses, has since been the subject of a significant further amount of judicial attention, culminating in the decision of this court in R(N)v Mental Health Review Tribunal(Northern Region) [2005] EWCA Civ 1605; [2006] 4 All ER 194. This court summarised the position thus in its §62:

“Although there is a single standard of proof on the balance of probabilities, it is flexible in its application. In particular, the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities. Thus the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved (such that a more serious allegation has to be proved to a higher degree of probability), but in the strength or quality of the evidence that will in practice be required for an allegation to be proved on the balance of probabilities.”

That guidance has obvious relevance for at least the second question that the judge had to ask himself. It was proved to his satisfaction that a series of criminal acts had been committed, at least one of them, the removal of the wheel nuts on the Bs’ car, potentially dangerous to life. But before he concluded that those acts had been committed (on the claimants’ case, must have been committed) by one or other of the members of the birth family, the guidance set out above required the judge to be cautious before finding that there had been a campaign by the birth family. That would have been a finding of criminal conduct, persisted in over a period of seven years. Two members of the birth family, LC (the step-grandfather) and DG (the father) had serious criminal records, but the members who appear to have been most involved in the exchanges leading up to the adoption, FC (the maternal grandmother) and D (the mother), on the evidence before us did not. The claimants put forward the latter two persons as very serious candidates for at least having organised the campaign, and told us a good deal that was detrimental to them, a matter to which I shall have to return. As I shall explain further in due time, it is too easy to say that the claimants have necessarily discharged the burden that rests on them of proving that some member or members of the birth family committed the significant acts complained of by simply proving that those acts occurred.

In the light of those general considerations I turn to consider the case as presented by the claimants. Although I have noted the artificiality of so doing, I will out of deference to the claimants’ argument, and in line with the structure of the judge’s judgment, consider separately first whether there was a campaign; and, if so, whether it can be attributed to the birth family.

I need to address two general objections to the judge’s treatment.

First, I return to the complaint mentioned in §46 above. The judge held, in his §68, that there was no obvious reason why the birth family should have embarked on a campaign such as that alleged, or what they could have hoped to gain from it. That view is criticised in this appeal, and I shall have to return to it. It is however important to note that although the judge said that it was in that light that he reviewed the schedule of incidents in order to see whether he could draw from it the inference that there had been a campaign by the birth family, it is clear from the terms of his judgment that his finding that the existence of a campaign had not been established was reached independently of his view on the separate issue of the motivation of the birth family. That in my view is apparent from a fair reading of the passages in his judgment already set out, and in particular from the terms of his summary passage in his §78, which I venture to emphasise: “This pattern does not appear to me to be a sustained and deliberate campaign by anyone, let alone the birth family”.

I am, therefore, not able to agree with the criticism of the judge expressed by Sedley LJ in §90 below, that by his approach the judge deprived himself of the opportunity of considering whether the most serious incidents probably had a single source: that is, whether they were part of a campaign. Although specifically invited by the appellants not to approach the matter in that way, the judge did indeed consider the implications of the incidents abstracted from any issue as to the identity of their perpetrator, and his analysis, that I review in §§ 61-71 below, was not vitiated by a concentration, inappropriate at that stage of the argument, on whether it was the birth family that was responsible.

Second, on a matter of much more detail, in his §66(c), set out in full below, the judge said that there was no evidence that the birth family knew the name or address of the claimants. That would seem to have been a slip, and inconsistent with assumptions elsewhere in the judgment that the disclosures by the defendants of the surname and general location of the Bs would place at least the means of knowledge of those matters in the hands of the birth family. Again, there is no indication in the judgment that the judge acted further on that finding, which if he had adopted it in the rest of the judgment would have been, or at least would have come close to being, a complete answer to the claim, rendering the rest of the judge’s careful analysis redundant.

When addressing the campaign, I deal first with the complaints of failure to refer to significant evidence. Much of that relates to evidence about the motivation of the birth family, rather than to specific incidents, and I shall deal with it later in the judgment. However, one matter that might be thought to apply to both aspects of the issue is the complaint made in §7 of the Grounds of Appeal, where the importance attached to it causes it to be emphasised in bold type:

“The judge overlooked entirely the evidence of [Mr B] that on an occasion on [sic] 22 August 1997 [FC] and [P] had said to him and his wife that they would never be left alone, that they would always be watching, and that in this context, reference was made to [N] (then aged 17).”

The judge was, however, well aware of that incident. It was one of the occasions on which the birth family demonstrated that they knew the identity of Mrs and Mrs B, as recorded in the judge’s § 53(j): see §9 above. The respondent was, however, able to demonstrate that the evidence of Mr B as to this incident was that the only threat of actual violence was directed at the social worker, SB (who was not present). In the event, nothing occurred to trouble SB. Although the judge might perhaps have alluded to this incident in his survey of the alleged campaign, that alone cannot undermine the rest of his judgment. He may well have thought that the language was that of a very stressed family, who on the judge’s findings, analysed further below, thereafter reconciled themselves to the adoption.

Apart from that, the thrust of the complaint was that the judge had undervalued, or not even mentioned, either in his judgment or in the schedule, incidents that were unlikely to be accidental or bad luck, but which demonstrated targeted animus by someone against the Bs. I need to consider these seriatim. It will be noted from comparison with the judge’s judgment that they form only a small part of the catalogue of events on which the claimants relied at the trial.

Attack on the car on 8 October 1997. This is of significance because it came comparatively shortly after M had joined the B family in August 1997. The judge however pointed out, in his §72, that it came at a time when Mr B himself was complaining of vehicle crime generally in his area. In his evidence to the judge Mr B said that those complaints had not been about crime generally, but about attacks specifically directed at him. The judge did not accept that evidence, which was inconsistent with the contemporary police record.

The dead cat (Judgment §78). This incident, as described, was certainly not accidental, but it is plain that the judge was very unhappy about the evidence that he received about it. It would have been better if he had made a specific finding on the issue, but the terms of his §65(a), set out in §41 above, indicate clearly that he did not accept the evidence of Mr and Mrs B about this incident. He was therefore justified in not seeing this a proof of the existence of a campaign.

The head of a toy dog impaled on the car door handle in February 2004. The judge did not mention this, and it would have been better had he done so. He may have, legitimately, taken the view that although the incident was unusual and disturbing it was hard to see it as uniquely menacing, and on the pleaded case it was (apart from telephone calls with which I deal separately) the first incident complained of since September 2002, some eighteen months previously.

In January 2001 one of the tyres of the Bs’ car was slashed with a knife when in a car park away from the Bs’ home. The potential significance of that incident was not immediately apparent to the Bs, and was not reported to the police until some days later. In September 2002 wheel nuts were loosened on the Bs’ car. That was undoubtedly a hostile and dangerous act. Miss Thirlwall was however entitled to make the cogent comment that if the motivation for the incidents was as alleged, the attachment of the birth family to M, it was very unlikely that this act, plainly potentially dangerous to M as a passenger in the car, would have been done by them.

The most pressing point made by the claimants is that on two, and possibly on three occasions (on one occasion where excrement was alleged the evidence was of “mud and debris”), dog excrement had been smeared in the Bs’ car when it was broken into, thus indicating something more than casual vehicle crime. The judge did not mention these incidents. He was caused some difficulty by the way in which the point was presented to him, only one of these incidents having been specified in the claimants’ closing submissions at trial. Nonetheless, given that this is the high water mark of the claimants’ case, the implications of the evidence that has been made plain to us must be considered. However, the most obvious point is that the two incidents in respect of which the evidence is reliable occurred respectively in February 2000 and April 2004, four years apart from each other. That is far from sufficient to undermine the judge’s approach to the history of the incidents as a whole.

As to other omissions complained of, the judge did not overlook the incidents, as witness their presence on the schedule; but it was well open to him to say, as he did, that he was not going to detail every incident in the judgment because he had concluded that none of them established the case that the claimants had to make.

The judge in his §§ 69-71, set out in §43 above, indicated that he was not going to give weight to the telephone calls, pointing out that if they really were part of a campaign of harassment there were singularly few of them over the first three years; two of those were proved not to have any connection with the birth family; and for the last five years there were none at all. Further, the judge was very concerned as to how the birth family had obtained the telephone number of the Bs, which was ex-directory and frequently changed. Before us, though not in closing submissions to the judge, a wide range of suggestions were made as to how that might have been achieved: use of a corrupt enquiry agent; investigation through the internet; grossly improper and deliberate further breaches of confidence by officers of the defendant; or use by LC, a (disgraced) former police officer, of his own knowledge or that of associates in the force. All of these were no more than speculation. And they all suffer from the difficulty that because the number frequently changed the process, whatever it was, would have to be repeated on several occasions to ensure the continuation of the campaign. Even assuming that a family as dysfunctional as the birth family was alleged to be for the purposes of other parts of the case could initiate and persist in that process, it is highly implausible that having taken that trouble serially to find out the numbers no more extensive use was made of that knowledge. Nothing was said to us to undermine this part of the judgment.

The second criticism made of this part of the judgment is that the judge, as it is put in §§ 11-13 of the Grounds, disaggregated the various incidents, taking them separately so that he undervalued the cogency of the whole series as casting light on the nature and source of the incidents. That complaint is unjustified. Paragraph 78 of the judgment, quoted above, shows that the judge did look at the range of incidents as a whole, and concluded in particular that their timing and incidence, and the presence of considerable gaps in activity, seriously undermined the allegation of a “campaign”.

The judge accordingly held that there had been no “campaign”. He made no significant error in his approach, and it was well open to him, in a way with which this court should not interfere, to reach that conclusion. Strictly speaking, therefore, it was not necessary for him to go on and consider whether the incidents, or any of them, could be attributed to the birth family; but since the judge addressed that second issue in detail, and his conclusions are said to have been unjustified, and possibly to have infected his approach to the first issue of the existence of the campaign, I will go on to address his conclusions and the criticisms made of them in this appeal.

As to the involvement of the birth family, the judge carefully set the issues, and his view of the evidence, in his §§ 66-67 which, again, can only be properly understood by being set out in full:

I ask myself the following questions:-

(a)

Is there any evidence which links any incident with any specific member of the birth family? The answer is “No”.

(b)

Is there any evidence which links any incident with the birth family generally? The answer again is “No”. For the reasons I have already given in paragraph 57 above I do not think that this is fatal to the case if the only common-sense inference that I can draw from the incidents as a whole is that the birth family is behind them, but it does make drawing such an inference more difficult.

(c)

Is there any evidence that the birth family did know the name or address of the claimants? Yet again the answer is “No” and such little evidence as there is, namely letters from the father and from maternal great grandparents suggests quite the opposite.

(d)

If this was such a campaign what was the reason for it? Presumably to get revenge on the claimants for taking M and to disrupt her placement. Is this likely? The result of such a campaign if it succeeded would be that M would be forced to move to another placement wholly unknown to the birth family. The birth family would clearly not be allowed to know anything about the new adopters, let alone meet them. Why should they want this? Furthermore although the birth family would have liked to keep M such evidence as there is suggests that:-

(i)

the maternal grandmother FC accepted the care order decision and worked with the defendant to prepare M for a handover. Indeed she so impressed the judge that he expressed the hope that M could stay with her and not have to move to a bridging placement. The meeting between the claimants and the grandmother went very well (see FH’s statement paragraph 35).

(ii)

the father, DG, while initially hostile to the idea came round to it and seemed to accept the placement with the claimants and explained to M in a very caring way why she had to move to a new family (see the statement of SH at paragraph 31) See also his letter to M at defendant’s bundle 7 document 891.

(iii)

the mother, D, did try to keep the child but in the end accepted the position and did not dispute the defendant’s application to terminate contact.

(iv)

when the child was handed over to the claimants there was no trouble even though the grandmother had feared that some of the birth family might make difficulties.

. The evidence before me does not suggest any reason why the birth family would want to harm M by such a campaign. Furthermore if this was revenge for M being taken away from them why was such a campaign not pursued also against the social workers who would surely have been seen by the family as the real villains? Apart from 2 anonymous and silent phone calls there is not the slightest hint of such a campaign.

The claimants were very critical of this analysis. There were two limbs to this part of the case. First, the judge had not given sufficient weight to, and had not addressed in sufficient detail, the known violence, aggression and criminality of birth family; and their irrationality and unpredictability, perceived by the defendants’ officers, which seriously undermined the judge’s basing of his argument on the belief that there was no rational reason for the family to conduct the campaign. Second, and as an aspect of that, the judge’s belief that the birth family had reconciled itself to the adoption was unreliable and (although this expression was not expressly used) unworldly.

As to omissions, particular complaint was made in §8.2 of the Grounds that nothing was said of actual or feared threatening behaviour by the birth family in connexion with DG’s arrest and trial for the killing of L, M’s brother; threats made in a letter by DG himself, and also by his own family; and an incident unconnected with the adoption in which J (the mother’s step-brother) was shot in the eye with an airgun and in revenge a petrol-soaked rag was (reportedly) pushed through the door of the perpetrator’s family.

As to these latter matters, the last, if it happened, was a direct response to a serious physical injury. If the birth family was capable of that, it remains the fact that no such incident or anything like it was directed at the B family. As to ill-will associated with the death of L, threatening scenes outside court in connexion with the death of a child are, unhappily, not unknown in the case of families a good deal more socially balanced than the birth family appears to be. And the posture of hostility that the birth family is said to have adopted towards DG makes it difficult to attribute anything done by him to a campaign orchestrated by them. However, more generally, and importantly, the judge was perfectly well aware of the dislocated and criminal nature of the birth family, and certainly did not approach them in any spirit of naivete.

The judge’s reference to the lack of rational reason for a campaign may be more open to question, but it is very important to note that he immediately followed that general reference with a specific account of the evidence as to the birth family’s behaviour and attitude in the actual adoption process. That latter was said to be falsified by other evidence, and by commonsense. D, the birth mother had in the event withheld her consent to the adoption, as had DG the father. FC, the maternal grandmother, was regarded by the defendant’s officers as devious and unreliable. Affectionate letters written by DG to M and apologies advanced by him to the Bs, should have been seen as self-serving, since they were written by him when on remand awaiting sentence for killing his son L.

In assessing the force of these complaints, and whether we can act on them, it is very important to remember two things. First, the judge is very experienced in family work and deals with situations such as the adoption of M, albeit from a somewhat different focus, day in and day out. Second, his perception of the attitude of the various members of the birth family to whom he referred was based on evidence given to him from observation by trained social workers. The judge spends his life assessing that type of evidence from that type of source. When, for instance, he intervened in argument to observe that the refusal of M and DG positively to approve the adoption was very common amongst parents in their situation he was drawing on a well of experience. When he considered DG’s letters, I cannot accept that either he or the social worker who gave evidence about DG’s attitude was simply taken in. And it is very important to note what the judge said in § 66(d)(i), that the maternal grandmother had so impressed, not this judge, but another judge handling the adoption process that he wanted M to stay with the grandmother rather than be removed to a bridging placement.

Particularly in view of the seriousness of the allegation against the birth family that have to be proved by the claimants (as to which see §§ 53-54 above) I do not see any way in which we can disturb the judge’s conclusion that the birth family had not been proved to be responsible for the incidents complained of.

Finally under this heading I should refer to a particular complaint made by the appellants. They annexe to their Grounds of Appeal a letter dated 22 September 2004 (that is, over a year before the trial) from a WPC X to the defendant complaining that, as the Domestic Violence Officer for the area in which Mr and Mrs B lived and with an obligation to protect them she had not been made aware of information relevant to LC in the form E relating to the adoption, in particular in relation to his criminality and that he was regarded as a “dangerous and powerful man”. The letter was not disclosed on discovery. We agreed to look at this material de bene esse. It does not add anything to the picture that was already before the judge. This characterisation of LC was notorious, and was indeed quoted by the judge in his account of the birth family: see § 6 above. It was known to Mr B from form E before he ever met M. And WPC X gave evidence at the trial, for the claimants, and no doubt would have drawn attention to this correspondence if she had thought it significant.

Mr Blunt however said that the significance of the letter was that if the police had known about LC’s reputation when they were investigating the incidents they might have taken steps to determine whether he was responsible for them. As it was, LC’s whereabouts and his connexion with other members of the birth family were left in the air, at least after 1996. Two things must be said about this. First, there was no evidence that LC had ever concerned himself with the matter of M. As the respondent put it, LC’s interest was in her mother D, whom he had abused, and not in the child that D produced when she became involved with DG. Second, the Bs were certainly well aware of the reputation of LC, and ready to suspect malign activity on his part: see §74 of the Judgment, set out in §43 above. I would be very surprised indeed if those fears were not ventilated with the police. I do not think that the letter complained of adds anything.

I accordingly conclude that the judge was justified in finding that neither part of the allegation of damage had been sufficiently proved.

Put shortly, it is claimed that shortly before the actual adoption of M in June 2000 the defendants undertook to “support” the B family in dealing with any further difficulties arising out of that adoption. That is pleaded in two ways. First, in §§ 20-21 of the Grounds, what can only be described as general statements in letters that the defendant would recognise a “responsibility” to the B family even when the adoption was completed. Second, a more specific statement by one of the defendant’s officers just before the adoption that the defendant would ensure that the Bs were protected from the birth family. In order to seek that protection the B family wishes to move to another part of the country, at very considerable expense, and considers that the defendants undertook to underwrite that expense.

In argument before us Mr Blunt accepted that the specific statement of the officer added nothing to what had gone before. But the letters are far too general to base any obligation in law. A claim in contract would also fail inter alia because of the inability of Mr and Mrs B to provide consideration for the defendant’s promise, just as the main claim in contract fails. The claimants argued that this exchange fell under the rubric of assumption of responsibility, again already discussed. That would be at least a somewhat novel use of that principle; but in any event it could not be reasonable for Mr and Mrs B, on the basis of the very general statement alleged, and without more, to have incurred the very large obligations that they seek to be insured against.

As I said at the beginning of this judgment, this is an unfortunate case. Mr and Mrs B are accepted as genuinely believing that they have been persecuted by the birth family. The judge said, and I respectfully agree, that it is to their great credit that in those circumstances they nonetheless persisted with the adoption in order to give M, a seriously damaged child, a happy and welcoming home. They have every reason to complain of the defendant’s errors in revealing their identity. But, like the judge, I do not see the way to find that those errors resulted in the consequences on which this case has to be based. I would dismiss both the appeal and the Respondents Notice. Since I understand that both of my Lords agree with those orders in the result, those will be the orders of the court.

The completeness of Lord Justice Buxton’s judgment makes it possible for me to go directly to what I regard as the critical issue in this case. It is whether we are bound by the judge’s conclusions of fact, or whether these are vitiated by an erroneous approach which requires us to make our own appraisal of the case (or, failing that, to remit it for retrial). For reasons to which I now turn, I consider that the judge’s approach to the facts was materially flawed and that this court can and should substitute its own appraisal of the facts found below. On reappraisal, however, although I am satisfied that this was a vendetta on somebody’s part, I am not satisfied on balance of probability that the birth family was responsible for it. It follows that the local authority’s negligence cannot be shown to have been what caused the undoubted harm this family has suffered.

The initial error of approach emerges plainly from the series of questions which the judge set himself and which are quoted in full by Lord Justice Buxton in paragraph 69 above. All four questions are predicated on the assumption that it was for the claimants to show that one or more of the incidents was the work either of a member of the birth family or of that family as a whole. If they had been able show this, it is likely that the judge would have been disposed to attribute a good many of the other incidents to the birth family as well. But if they could not, the questions make it clear that the claimants were going to fail, as they did.

While the judge was perfectly entitled to look at the case in the way he did, and to reach the answers he did, his questions and answers were not exhaustive. They left open the question whether, albeit no single incident could be traced directly to the birth family, the more significant incidents taken together constituted, on the balance of probability, a vendetta on somebody’s part. If they did, it is Mr Blunt’s case that the only candidate for its authorship was the birth family.

I do not mean to criticise the judge for overlooking this issue. Neither party appears to have argued it below, and it was only when it was pointed out in this court that Mr Blunt adopted it as part of his appeal. But it was a question that emerged logically from the evidence, and fairness required it to be considered.

If one looks from this perspective at the account of events accepted by the judge, it is very difficult to avoid the conclusion that it was something more sinister than a run of bad luck for the claimants. To have one’s car repeatedly broken into, with or without wanton damage, may be a fact of life nowadays even in a rural village. But to find on three such occasions that the seats have been smeared with dog excrement or mud suggests malice towards the owner. So does the placing of a dead cat near the door of the house and of a severed toy dog’s head on the car door handle. So do the loosening of the car’s wheelnuts and, arguably, the slashing of one of its tyres. So do repeated silent phone calls. One or two or even three such events might legitimately be written off; but the more there are, the harder it becomes to repel the inference that they are orchestrated and targeted. It is an inference which is not weakened by the fact that there have been a good many other unpleasant events which cannot be attributed to a vendetta.

I do not therefore think, with respect, that the main critique of the judgment is the one addressed by Lord Justice Buxton. The main critique is that, by limiting his inquiry to whether any of the incidents could be attributed to the birth family, the judge deprived himself of the opportunity to consider the more logical question whether the most serious incidents probably had a single source, and then, if appropriate, to consider what that source might be.

In my respectful view, the incidents expressly taken into account by the judge together with the incidents apparently overlooked by him demonstrated, on a clear balance of probability, a vendetta on someone’s part.

If this point was reached, it was Mr Blunt’s submission that there was only one group of candidates, namely the birth family’s members or adherents. He submitted with some force that the fact that the family had cooperated with the adoption and had no logical reason to try to wreck it or to punish the claimants has little or no relevance to a family known to social services for its dysfunctionality, inconsistency and sporadic violence. If they were the culprits, it was not really disputed that it was probably the accidental disclosure of the claimants’ surname and location which had enabled them to target the claimants. And I agree with Lord Justice Buxton, for the reasons he gives, that the disclosure was a breach of the local authority’s duty of care towards the claimants.

The alternative explanation was that the vendetta, if there was one, was one of those spiteful campaigns that are sometimes conducted for no reason, or for some trivial reason, by one or more individuals in a small community: village crime, in other words. When set against the reasons, adopted by a judge with great experience of family law, for thinking it unlikely that the birth family would have any motive for conducting a vendetta, this possibility is not inconsiderable. But, although mentioned, this possibility was not explored, and there is no finding as to relative likelihood of the two sources. It would be open to this court to send the case back for rehearing on this question, but I do not consider that the major expense and stress involved would be justified, since we are in a satisfactory position to reappraise the evidence and to reach our own conclusion.

I have not found this task easy, not least because of the great sympathy one has for the adoptive family. There is the striking fact that the nuisance calls began the weekend after the child’s placement with the claimants; but that cannot bring their case home against the birth family, whether alone or when aggregated with the reported propensities of the birth family. Nobody was ever caught in the act. In the end, for reasons which are more fully explained in Mr Justice Bodey’s judgment, it cannot be said that this was more probably a vendetta by the birth family than maliciously targeted village crime. We just do not know.

For these reasons I too would dismiss the appeal.

I respectfully agree with Lord Justice Buxton’s analysis of the legal aspects of the various causes of action under which this case was brought and with his conclusions in those particular respects.

There is only one point I would wish to add, which relates to the submission on behalf of the local authority that for public policy reasons there should not be liability for breaking the confidentiality of “open” adoptions, that is to say adoptions with some (usually very infrequent) ongoing contact by the key members of the natural family. It is suggested that this would be contrary to the interests of children, by discouraging Adoption Agencies from pursuing such adoptions, given the difficulty of ensuring confidentiality in the absence of a complete break with the natural family.

Under regulation 14 of the Adoption Agency’s Regulations 1983, all information obtained by virtue of the Regulations is treated as confidential. In an open adoption coupled with confidentiality, there will always be a risk of local authority staff letting their guard slip; also a likelihood that the identity and or address of the adoptive family will leak out to the natural family, if only because the child himself or herself is likely to disclose such details at some point.

But these are not in my view reasons for saying that as a matter of principle or policy a duty of care should not be imposed on local authority staff not to break the intended confidentiality. There would be no certainty in any given case that such confidentiality would in fact be broken by some other route and in any event it might not come to be broken for some time into the future, by when emotions would have had a chance to settle down. This is a case in point where (although set up as an open adoption) the intended contact never in fact took place.

Further, it must be unusual in an open adoption for there to be a compelling need to keep the identity of the adopters from the natural family. The very fact that such an adoption is regarded as being in the interests of the child implies a natural family of sufficient perceived insight as to be able to support the adoptive placement and not undermine it. So the number of occasions when an open adoption needs to be coupled with robust confidentiality is in practice likely to be modest.

Accordingly I see no reason, in this or any open adoption coupled with an intention to preserve confidentiality, why the local authority should not be under a duty of care to preserve that confidentiality, as it would be in a fully confidential adoption.

I turn to the question at the heart of the case (given that such a duty of care on the local authority existed here and was broken) namely as to whether the distress and financial loss for which compensation is claimed was proved to have been caused by the breach in question. I need not repeat any of the facts which are fully set out in the Judgment of Lord Justice Buxton.

It is possible to ‘roll up’ the key question (as per paragraph 56 (3) of the Judgment) as follows: “did the birth family carry out a campaign of terror and harassment of the Claimants?” Alternatively, as Sedley LJ suggests, it can be broken down into two separate parts: “(1) Was there (in shorthand) targetted malice? (2) If so, was it occasioned by the birth family?”

The above ‘rolled-up’ question can be answered by looking at each individual incident separately and asking whether there is any evidence to link it to the birth family (an approach which runs the risk of leading to a flawed answer in respect of the underlying issue). The two stage approach on the other hand cannot conceptually be dealt with and disposed of in that way. For that reason, I agree with Sedley LJ that the two stage approach is the preferable one of the two. It is therefore the route I propose to take.

Looking then at the first of the two numbered questions set out above (“was there targetted malice?”), a brief summary of the main factors capable of indicating that someone “had it in for” the adoptive parents is as follows.

There are on the other hand, it has to be said, features of the schedules of incidents before the Judge which militate against a “campaign” having been established. There were (as rightly noted by the Judge) long gaps between the incidents, which were themselves spread over nearly 7 years. There was the fact that at the time of the trial nothing had happened during the last 18 months; and the fact that the only two of the many silent telephone calls which were positively traced turned out to have nothing whatsoever to do with the birth family. Further, in December 1998, the adoptive father was complaining to the police about crime being committed on a weekly basis in the village. This was at a time when he cannot have been referring to crime against his own family (as he suggested in his oral evidence) since the record shows that the family had not suffered any incidents for some 14 months at that particular time. His complaints clearly showed that there was crime in the village generally.

Nevertheless, even with these considerations factored into the decision, the identified features in sub-paragraphs (a) to (i) above stretch credulity too far for it to be concluded that the adoptive parents were simply “unlucky”. There was, in my judgment, sufficient in the peculiar circumstances of the above incidents to show that a person or persons “had it in for” the adoptive family.

This leads to the second and more difficult question, as to whether the birth family are shown to have been behind the various incidents, of which there were many more in total than just those listed above, the first occurring shortly after M was placed.

The test is the balance of probabilities, remembering that the more serious the allegation (and the more improbable something is) the more cogent needs to be the evidence to establish it on the balance of probabilities: Re H and R 1996 AC 563; Home Secretary v Rehman 2003 1AC 153 at 193.

Understandably enough, the natural family did not give evidence. So assessing them and their likely behaviours was largely dependent on records, mostly historical, made about them by others; and to a much lesser extent, on the impressions formed about them by witnesses who did give evidence at the trial. It was by no means an easy task.

I fully take into account the “massive dysfunction” within the natural family. The many Social Services records over the years justify that expression used by the Judge in his Judgment. There are records of threats; inconsistencies of behaviour and expressed intention; lies; incidents of violence, criminal damage and so on: even direct evidence of a particular threat by D’s sister prior to the placement that “they” would always be watching and that the adoptive family would “never be left alone” - all familiar territory for a Judge like the trial Judge, accustomed to hearing Care proceedings.

On the other hand, it is quite clear that at the material time the ‘key players’, namely D (the natural mother), D.G. (the natural father) and F.C. (the maternal grandmother) were all saying, with some vacillations, that they had come to terms with M’s needing to be placed for ‘permanency’ elsewhere. D.G (the father) sent M at the time of the placement a very sensible and kind letter praising the adoptive parents; and he has since that time sent her a number of sensitive and entirely appropriate cards. D (the mother) is recorded in January 1999 as saying that, although she was not happy about M’s placement, “… she did not want to do anything to upset M – she was settled”: she told Social Services that she had listened to the experts and realised it was best for M. F.C. (the maternal grandmother) is recorded by Social Services as having worked really hard to make the transfer of M from her own care to the adoptive parents work well, in the interest of the child.

Nor was there any active opposition by the natural family to the freeing order; nor to the order terminating their intended annual contact with M; nor to the adoption order itself. On no occasions during the entire process were expressed fears as to the birth family’s threats and other expected disruptive reactions actually borne out by events; no “riots on the streets” at the time of the handover, as anticipated by F.C.

Further, if this “massively dysfunctional” natural family was behind the ‘campaign’, it has to be said that they managed to do everything with great skill and ingenuity, sufficient to escape detection by both the Police and the local authority, each being alive to the perceived likelihood of their (the natural family) being the perpetrators. This included their managing to get hold of the adoptive family’s ex-directory telephone number, which was changed on many occasions.

It is noteworthy too that the Judge (not the trial Judge) who heard the original care proceedings went out of his way to persuade the Local Authority to leave M with F.C. (the maternal grandmother) pending an adoptive placement being identified, rather than moving M to a bridging-placement; further that the Local Authority was prepared to proceed on the basis of an open adoption at all. Both these factors, in spite of all the negative historical recordings about the birth family, imply a measure of confidence in its members being able to conduct themselves in a reasonably responsible way and to put the interests of M first. Otherwise, M would have been removed from the grandmother to a ‘safe’ bridging-placement, and the adoption would have been a “closed” one.

A good example of the difficulty in the way of the Appellants’ case concerns D’s (the mother’s) stepfather, who in 1988 was sent to prison for sexually abusing D and one or more of her siblings. Records exist of D and her mother (FC) complaining to Social Services of his “stalking” D after his release from prison, knocking on their windows and generally harassing and frightening them. FC is recorded as having described this as being “his way”. Records also suggest that he (D’s stepfather) was around and about in the general locality of the adoptive parents in 1997. So he is suggested as a possible perpetrator of the incidents in question. But one simply cannot in my view make the necessary quantum leap, absent any evidence, to conclude reliably that he had anything to do with those incidents. It is quite possible that he did; but equally possible that he did not.

Against this background, even in the context of a natural family suffering “massive dysfunction”, was it established (by process of elimination and because no one else has been identified) that “they”, or one or some of them, were responsible for this unpleasant and sometimes serious criminal behaviour? I am not persuaded that it was so established. Where there was no evidence at all to pin any single aspect of the behaviour on any one or more of the birth family, it would not seem to me right to do so, simply on the basis of “their” track-record, taken against them in the round and by association.

Of course it might all have been the work of the ‘wider’ members of the extended natural family; or else one or more of the ‘key players’ might have had a change of mind, becoming vengeful and vindictive. But to my mind these possibilities stray out of the realms of evidence and into the realms of speculation. It is simply not possible on the evidence to evaluate reliably the degree of likelihood of such possibilities. What might have happened, might equally not have happened. The burden of proof was on the Appellants and the Judge held in a conspicuously careful Judgment that they failed to discharge that burden to the required standard. Merely to establish the ‘least improbable’ cause of something is not necessarily to establish the actual cause of it on the balance of probabilities - unless all and any other possible causes can, on the balance of probabilities, be ruled out.

Putting it at its lowest, therefore, I do not find the decision of the Judge to be outside the range of possible determinations properly open to him on all the evidence which he heard, read and carefully weighed up. Accordingly, he has not at its lowest been shown to have been plainly wrong. The identity of the perpetrator(s) of the various incidents remains simply unestablished and cannot in fairness (whether fairness to the local authority or to the natural family) be put down by default to the ‘least improbable’ candidates.

Whilst I do not pretend that this will appear to be a very satisfactory outcome, it is a product of (a) the burden (and standard) of proof, coupled with (b) a complete absence of any evidence connecting any of the incidents to the birth family, and (c) the quite cogent evidence that the ‘key players’ in the birth family had ultimately accepted the inevitability of M’s being placed with the adoptive family.

For the above reasons, I am of the view that this appeal should be dismissed.