Lawrence v Pembrokeshire County Council

This is an appeal by the claimant, Mrs Stephanie Lawrence, from an order of Field J of 13^th June 2006 striking out her claim in negligence against Pembrokeshire County Council (“the Council”) and entering judgment for the Council on that claim.

The issue on the appeal is whether, in the light of the advent of Article 8 of the European Convention on Human Rights (“the ECHR”) to our law on the coming into force in October 2000 of the Human Rights Act 1998 (“the HRA”), a local authority may owe a duty of care to a parent of a child when exercising, through social workers, its duties to protect children from their parents, in this instance by placing them on the Child Protection Register as being at risk. More generally, the issue is whether the common law should now recognise that those, whether public authorities or individuals employed by them, responsible for the protection of children from abuse by their parents or others owe a duty of care to parents when investigating and/or taking steps in protection of their children whom they consider to be at risk of parental abuse.

In JD v East Berkshire Community Health NHS Trust & Ors [2005] 2 AC 373 (“East Berkshire”), the House of Lords, in a number of appeals arising out of facts that pre-dated the coming into force of the HRA, by a majority, upheld the ruling of the Court of Appeal ([2004] QB 558), that the common law, notwithstanding the important interest of both parent and child in their family life reflected in Article 8, should not be developed to recognise such a duty. The common ratio of the Court of Appeal and the House of Lords was that it would be contrary to principle to recognise such a duty, for it would conflict with the more pressing duty to the child to protect him or her from the risk of parental abuse when suspected.

When the matter reached the Court of Appeal it consisted of three conjoined appeals from determinations of a judge on a preliminary issue of law in claims by parents of children whom professionals employed by public authorities had removed from the family home because of their suspicions - later discovered to be unfounded – of child abuse within the home. The House of Lords, Lord Bingham dissenting, upheld the Court of Appeal’s ruling that lack of care and skill of doctors and social workers, leading to the removal of the children from their homes could not render them or their employers liable in negligence to the parents.

In this case Mrs Lawrence’s claims against the Council were, under sections 6 and 7(1)(a) of the HRA, for breach of her Article 8 right to respect for her family life with her four children, alternatively in negligence for personal injury. Her claims arose out of conduct of social workers employed by the Council towards her and her children in placing the children’s names on the Child Protection Register, conduct that she claimed, not only wrongly interfered with their family life, but also caused her psychiatric injury.

In the proceedings before Field J, Mrs Lawrence’s pleaded complaints were the same under both heads of claim. Whilst the Council acknowledged that she had an arguable claim under Article 8, it relied on the one year limitation period imposed by section 7(5)(a) of the HRA, which had elapsed before she brought the proceedings. Whether, pursuant to section 7(5)(b), it may be equitable to extend that period has yet to be decided. As to the claim in negligence, the Council contended, as it does on this appeal, that it was bound to fail because of the rulings in East Berkshire that the law does not recognise a duty of care by healthcare or local authorities to parents against whom they suspect, in good faith but wrongly, of child abuse.

As the issue for the Court is solely one of principle and the presumed facts for the purpose of determining it have been helpfully summarised by Field J in paragraphs 4 to 17 of his judgment, I need only record that the Lawrence family, including the father of Mrs Lawrence’s children, came to the attention of the Council’s Child Protection Team in about 1999. As a result of sporadic and inconclusive attention from various members of that team over the next three years, the Council, in April 2002, placed the children on the Child Protection Register as being at risk of physical and/or emotional harm from Mrs Lawrence and/or their father. The Council caused them to remain on the Register for about 14 months before it finally removed them from it in June 2003. In December 2004 the Ombudsman upheld a number of complaints of Mrs Lawrence of maladministration on the part of the Council, and recommended that it should pay £5,000 to her in recognition of the distress and damage to her reputation and of her time and trouble in pursuing her complaints. The Council paid her that sum, and it would fall to be set off against whatever she might be awarded by way of damages in these proceedings.

Mrs Lawrence’s case before Field J was the same as that for the parent/claimants in East Berkshire, save only that the HRA applied to the facts on which she relied. Mainly on the strength of that distinction, she renewed the forensic call for development of the common law to recognise the duty to parents rejected in East Berkshire. Field J declined to do so. He held, at paragraphs 43 to 48 of his judgment, that the reasoning of the majority of their Lordships that a duty of care is not owed by investigating professionals to parents suspected of child abuse was not affected by the advent of Article 8 to our law. In summary, he concluded that there remained the need - identified by their Lordships – for the law to avoid the creation of conflicting duties that could prejudice the interests of children. This is how he put it, at paragraphs 45 to 47:

The Court of Appeal in the East Berkshire case considered the same argument now advanced by Mrs Lawrence, save that it was invited to consider whether the enactment of the HRA, notwithstanding its non-application to the facts of that case, affected the common law principle of no duty of care to parents. It held that, in the light of recent Strasbourg jurisprudence on issues approximating to those governing our common law duty of care in this context, in particular Z v United Kingdom (2001) 34 EHRR 97 and TP and KM v United Kingdom (2001) 34 EHRR 42, although there had emerged a common law duty of care to children, there were cogent reasons of public policy why it should not extend to parents suspected of abusing them. Lord Phillips of Worth Matravers MR, giving the judgment of the Court, justified this distinction in paragraphs 82 to 87 of the judgment in the following terms:

The House of Lords, Lord Bingham of Cornhill dissenting as I have said, upheld the decision of the Court of Appeal by focusing essentially on the same public policy point of the conflict of interests that the imposition of a duty of care to the parents in such a context would engender. Apart from some peripheral mention, their Lordships did not, however, deal specifically with the point considered by the Court of Appeal, namely the potential contribution of the HRA to the development of the common law in this area.

Lord Nicholls of Birkenhead, at paragraphs 85 and 86 of his speech, regarded as crucial the question of conflict of interest:

Lord Rodger of Earlsferry’s reasoning, at paragraphs 110 to 114 of his speech is to like effect, in particular paragraph 110:

See also per Lord Brown of Eaton-under-Heywood, at paragraphs 129 and 138, and Lord Steyn, at paragraph 96, agreeing with Lord Rodger and Lord Brown.

I should not leave East Berkshire in the House of Lords without mention of Lord Bingham’s dissenting speech and the reason for it. He would have allowed the appeal against the judge’s dismissal of the claims as a matter of law on the preliminary issue before him, as he was later to explain in Brooks v Commissioner of Police of the Metropolis [2005] 1WLR 1495, at para 3, because of reluctance to dismiss without exploration of the facts of the case a claim raised in a contentious and developing area of the law where fuller inquiry might enable a claimant to establish a duty of care and its breach. Two key paragraphs in his speech bearing on the issue should be read together to illustrate the nature of his dissent, in particular his reluctance to exclude such a claim “as a general rule”. The first, after detailed consideration of many domestic authorities and Strasbourg jurisprudence, including TP and Venema, is at paragraph 44:

Mr Robert Weir, for Mrs Lawrence, submitted that the advent of Article 8 to our law since the facts that gave rise to the ruling of the House of Lords in East Berkshire calls for an evolutionary change in our law of negligence where, as in this context, it overlaps with a parent’s right to respect for his or her family life. He maintained that the right of action for breach of Article 8 now provided by section 7(1)(a) of the HRA should not be the only new remedy for parents whose family life has wrongly been interfered with by social workers, since it has brought with it an imperative to develop the common law to like effect. He urged the Court to do that by imposing a duty of care on local authorities to parents when exercising, through social workers, their child protection powers and duties in respect of those parents’ children. He advanced two main arguments in support of that submission:

Now that Article 8 is part of our law, the Court should develop the common law by recognising a duty of care to parents by those publicly responsible for the safety and well-being of children when investigating and/or taking steps to avert the risk of parental abuse, having regard to:

the recognition of Strasbourg jurisprudence that duties of care in cases of suspected child abuse may be owed both to children and to parents suspected of abusing them; and/or

the need for compatibility of the common law with the Article 8 right, in particular as to the period of limitation and the available remedies;

the need to re-visit the cogency of the reliance in the East Berkshire rulings on conflict of interests as a justification for denial of a duty of care to parents, given that such conflict does not necessarily engender a conflict of duty or breach of it on the part of a local authority or its social workers.

In short, Mr Weir urged the Court to take a “small incremental step” further than that taken by it and the House of Lords in the East Berkshire case, so as to give “full effect to Article 8” in serving the interest of parents in family life as much as that of the child.

As a subsidiary argument, Mr Weir also sought to distinguish this case on its facts from East Berkshire in that the putative duty is on a local authority rather than a health authority and concerns social workers rather than, as he maintained, doctors or other healthcare professionals as in that case. He maintained that the liability of doctors and healthcare professionals to parents raises different considerations from those pertaining to the liability of social workers. But despite questions from the Court to explain the difference, he never suggested a reason for the distinction other than one of proximity to the parent in that, when placing a child on an “at risk” register or on taking steps to remove a child from his or her parent, the doctor’s or the healthcare professional’s role in interfering with family life is indirect, whereas the social worker’s involvement in those respects is direct. In the event, one of the cases in East Berkshire did concern a social worker as well as a doctor, and none of their Lordships distinguished between them, the ratio of the majority being clearly directed to all such persons engaged in child protection.

Mr Alastair Hammerton, for the Council, maintained that the principles of law as set out by this Court and the majority in the House of Lords in East Berkshire preclude a duty of care in this context to parents, and that the applicability of the HRA to the facts of this case does not undermine those principles or the public policy considerations underlying them. He submitted that:

in applying the Caparo v Dickman tests of what is “fair, just and reasonable” and of “proximity”, a balance has to be struck between the detriment to the public interest likely to be caused by holding a certain class of defendants liable and the likely harm to a claimant if such liability is precluded; see Barrett v Enfield Borough Council [2001] 2 AC 550;

in this context, the strong imperative for the law to protect children from abuse, including abuse by their parents, is a weighty public policy reason against the development of a duty of care by those publicly responsible for their well-being to parents whom, rightly or wrongly, they suspect or fear may abuse their children;

the reasoning of the Court of Appeal and of the majority of the House of Lords in East Berkshire to that effect - reasoning which, he submitted, is unaffected by the advent of Human Rights to our law – namely, that the very existence of a conflict of interests is, in this context, a bar to the imposition of such a duty, regardless of whether in any individual case, it would or might inhibit local authorities and their social workers from properly fulfilling their duty to protect children whom they suspected of being at risk from their parents; and

the minimal prejudice to a parent in excluding a common law claim, given the availability under the HRA of an alternative or comparable remedy - wider in one respect in that the compensation recoverable in the court’s discretion is not limited, as it is at common law, to damages for personal injury, and narrower in the shorter time limit of one year for the bringing of the proceedings, but subject to the wide power in section 7(5)(b) to extend where it is equitable to do so.

In short, Mr Hammerton submitted that the very existence of a conflict of interests is a good reason to deny a duty of care, and that, where there are conflicting interests but one is paramount, the common law ordinarily imposes only a duty to the person whose interests are paramount - in this context, the child.

I should start this discussion, as Mr Hammerton did his submissions, with two general, but important points.

First, it was for Mrs Lawrence to satisfy the Court that the Council owed her a common law duty, not for the Council to justify the absence of such a duty, or, on a case by case basis, that it was not owed; see per Lord Hoffmann in Stovin v Wise [1996] AC 923, at 994D, and the reasoning of Lord Rodger, in particular, in East Berkshire.

Secondly, there is logically, and from a public policy point of view, no difference for this purpose between doctors and social workers - and the majority of the House of Lords in East Berkshire made no such distinction. It is immaterial that social workers, not doctors, place children on the Child Protection Register or take them into care, since child protection work requires social service departments to work closely with the police, doctors, community health workers, the education service and others. In this instance, the decision to place the children on the Register was taken at a Child Protection Conference in which representatives of various agencies participated.

Actions taken by social workers may not always have the direct quality, in the sense of face to face contact with the parent and/or the child in the family context; it may involve enquiries or decisions made in municipal offices or in committee rooms by a number of persons, some with no personal contact with the family. But more importantly, given the factual matrix in which the issue for the Court arises, I can see no sensible or separate role for “proximity” as a feature or variation of the Caparo v Dickman question of what is fair, just and reasonable, when added to the requirement of reasonable foreseeability in the circumstances. It does not seem to me to matter as a matter of common law whether the conduct said to have caused harm to the parent was direct, in the sense of face to face, or otherwise.

Article 8 provides:

As I have indicated, the Court in East Berkshire had express regard to Article 8, notwithstanding its non-application to the facts of that case, when considering the balance of interests between children and their parents in cases of this sort. Lord Phillips stated, at paragraph 55 of the Court’s judgment:

Lord Phillips then reviewed a number of Strasbourg authorities, including Z v United Kingdom, TP & KM v United Kingdom and E v United Kingdom (2002) 36 EHRR 519, all concerning claims under Articles 3 and/or 8 in respect of the response or lack of response of local authorities to suspected child abuse within the family. In relation to the issue of justification under Article 8(2), Lord Phillips noted at paragraphs 66 and 71, its similarity to that of whether there has been a breach of a duty of care. At paragraph 79 he noted:

The majority in the House of Lords in East Berkshire did not spend much time on the implications of Article 8 and Strasbourg jurisprudence for the common law in this context. However, the issue was argued before them, and it is implicit in their reasoning that, in cases of child abuse within the family, it had contributed to the development of a duty in common law to the child, but not to the parent. Thus, Lord Nicholls said at the start of paragraph 85 of his speech, the remainder of which I have already set in paragraph 11 above:

Lord Rodger, after a comprehensive review of English, Scottish and other common law authorities, concluded, at paragraph 115 of his speech, that they constituted:

Lords Steyn and Brown did not refer to Article 8, but expressed agreement with the opinions of Lord Nicholls and Rodger and thus also with the judgment of the Court of Appeal.

Mr Weir’s primary submission, as I have indicated, was that, in the light of the advent of Article 8 to our law, the Court should now develop the common law by recognising a duty of care to parents by those publicly responsible for the safety and well-being of children when investigating and/or taking steps to avert the risk of parental abuse. He relied, in particular, on the effect given to Article 8 by the Strasbourg Court in TP and Venema. In TP a mother’s and child’s Article 8 claims succeeded where the mother’s boyfriend had wrongly been suspected of abusing her child, and in Venema, a parents’ Article 8 claim succeeded where the mother had been wrongly suspected of abusing her child. He suggested that the TP case established as a general proposition that a local authority owed a duty under Article 8 to both parent and child where a parent is wrongly suspected of abusing the child and that the rulings of the Court of Appeal and the majority in the House of Lords in the East Berkshire case against any such duty were too narrowly based, namely on the supposed prejudice to the child’s safety that such a duty would engender as a result of the potential conflict it would introduce between the suspected parent’s interest and that of the child. He added that, although the Court of Appeal clearly took into account Article 8 in reaching its decision, it did not regard it as “determinative”, and that the House of Lords approached the matter as an ordinary question of common law untrammelled by Article 8 or Strasbourg jurisprudence.

Mr Weir submitted that this Court must now take into account the impact of Article 8 so as to give less weight than did the Court of Appeal or the majority of the House of Lords in East Berkshire to the possible inhibiting effect of a conflict of interests on the discharge by doctors and/or social workers on taking timely and robust action in protection of a child whom they consider is at risk of abuse by his or her parents. If, as the Court of Appeal in East Berkshire acknowledged, such a conflict of interest, where it exists, does not preclude the engagement of an Article 8 claim by a parent, why, he asked, should it preclude claim by him or her at common law? Effectively, his argument was that the pass has been sold by section 7 of the HRA in giving the parent a remedy for interference with his or her family life. Such new right, he submitted, “in one fell blow” removed all the force of the conflict of interest point and requires “consignment to history” of the East Berkshire decision.

In my view, that argument overlooks an important difference between the Article 8 right to respect for family life and a putative right of a claimant at common law to a duty of care. Article 8 is not concerned with the establishment of any such duty, but of a threshold of interference by a public authority with family life. It is not based on a breach of duty of care by such authority, which, once surmounted, is for the authority to justify. It is the justification, not the infringement, with which the Strasbourg Court was primarily concerned in TP and Venema. In its treatment of the latter in TP, at paragraphs 60 – 83, and in Venema, at paragraphs 88 – 99, the Court, in its respective assessments of the facts, indicated a plain acceptance in principle that interference with family life in this context may be regarded as being in pursuance of a legitimate aim, proportionate and necessary in a democratic society, though, in each case, in one important aspect, it held on the facts that the interference was not justified. In TP the Court - in reasoning that it replicated in Venema - clearly contemplated that, subject to certain due process constraints and restrictions on access and the like, the interests of safety and welfare of children could and often should prevail over that of their and/or their parents’ interest in their family life when the latter were suspected of abusing them. Thus, in TP, the Court said, at paragraphs 70 and 71:

If a domestic court or the Strasbourg Court is called upon to consider the position as it was at the stage when suspicions against parents remained unresolved, each would clearly have to consider within its own legal system whether the strong interest in protecting children against the risk of parental abuse should prevail over the interests of all the family in preserving family life. In both systems there is necessarily a similar balancing of conflicting interests so as to require the cession of one to the other, as the Court of Appeal recognised in East Berkshire, albeit that under the Convention, the onus is on the public authority concerned to justify its interference - the nearest it gets to the notion of breach, but not a breach of duty as known to the common law.

Mr Weir’s second submission on the impact of Article 8, which overlapped heavily with his first, was that it is necessary to develop the common law in the manner that he suggested, because a parent now has a remedy under section 7 of the HRA for interference with his or her family life by doctors and social workers pursuing what turn out later to be unfounded suspicions of child abuse. He characterised section 7 of the HRA as a “substantial gap-filler”, but not a “complete gap filler” for this purpose, and suggested the gap could be and should be filled by modifying the common law so as to accommodate the Article 8 right, thereby turning section 7(1)(a) of the HRA into a “residual” remedy in this context insofar as it involved a claim for damages. He maintained that Parliament, in enacting the HRA, clearly contemplated a parallel remedy at common law, referring the Court in particular to its requirements on our courts: section 6 – not to act incompatibly with Convention rights; and section 2(1) – to take into account ECHR jurisprudence; and to section 11 – enabling the development of common law so as to reflect Convention principles. In those provisions, he submitted, Parliament made clear its intention to bring ECHR rights home without, at the same time, stunting the development, where appropriate, of our common law in the light of such rights.

In making that submission, Mr Weir acknowledged and relied on the possibility for a public authority to rely by way of justification under Article 8(2) on conflict of interests on a case by case basis depending on the circumstances. Such a mechanism, he submitted would be equally apt for consideration of breach of a common law duty of care to parents and would be more appropriate to the interests of both parents and children in their family life together than the present blanket exclusion of all duty of care to the former in such cases.

However, there are two difficulties in that approach, to both of which I have already referred.

First, it may well be too late for the protection of children from the risk of abuse by their parents to have a system of law that leaves the matter to be resolved by a court at the stage and in the form of an Article 8(2) type inquiry, as suggested by Mr Weir. The whole point of the East Berkshire solution is to forestall by robust and timely intervention, if at all possible, the greater possible harm when a local authority suspects parental abuse of children in the context of their family life together.

Secondly, under Article 8(2) it is for the public body interfering with family life to justify its conduct, which, translated into a common law duty of care, would effectively require the local authority and/or social workers concerned to prove, by reference to their concern for the welfare of the children, that they were not in such breach of duty. These are, as Field J commented, mechanisms not available in the common law duty of negligence, and contra- indicate its development in the manner proposed by Mr Weir. Put more, robustly, they would be a plain distortion of the common law action in negligence.

As it is, for the reasons given in East Berkshire, the common law, as it stands, is compatible with Article 8(2) in its treatment of parents. As Richards LJ observed in the course of Mr Weir’s submissions, neither the Strasbourg jurisprudence nor responsiveness of the common law to the needs of the time requires the Court to secure harmonisation of the two systems.

Taking Mr Weir’s submissions on the Article 8 point over-all, the only basis that he could suggest for his invitation to the Court to re-visit the issue is that, subject to the outstanding limitation point, it is engaged on the facts of this case, whereas in East Berkshire, although the judgments were given after, the facts under consideration occurred before, the HRA came into force. Given the clear attention of the Court of Appeal to the potential implications of Article 8 to issues of the sort being considered by it, and the affirmation of its reasoning by the majority in the House Lords - who, if they had foreseen any difficulties of the sort now suggested by Mr Weir, would surely have said so - I can see no basis upon which this Court can now properly take a different course.

Thus, in my view, the advent of Article 8 to our domestic law, bringing with it a discrete right to children and parents of respect for their family life, does not undermine or weaken as a matter of public policy the primacy of the need to protect children from abuse, or the risk of abuse, from, among others, their parents. Nor, when those interests are or may be in conflict, does Article 8 so enhance the status of family life as, in the balancing exercise involved, would require the development of the common law by the introduction of a duty of care to parents suspected of abusing their children, a duty precluded by that public policy. In that respect the cogency of the reasoning of the Court of Appeal and of the majority of the House of Lords in East Berkshire remains untouched and is compatible with the reasoning of the Strasbourg Court in TP and Venema.

As to Lord Rodger’s reservation of opinion in paragraph 118 of his speech in East Berkshire (see paragragph 28 above) about possible future impact of the HRA in this area of the law, it is difficult in the light of his firmly expressed views on the conflict of interest point, to see in what respect it could logically affect the issue in hand. Given that Article 8(2) clearly precludes an Article 8(1) claim where to allow it would conflict with powerful public and/or private interests - which must include the protection of children from parental abuse - there is, in my view, no logical basis to contemplate, even as a possibility, that its advent to our domestic law could take effect so as to remove, by putting to one side the implications of the conflict of interests point, the protection that it affords to children at common law. It is certainly not, in my view, an indicator of a possible need in the future to distort the common law in that respect.

There are clearly potentially conflicting interests at play in suspected parental abuse cases, as identified by the Court of Appeal and the majority in East Berkshire, each of high social importance, as Lord Nicholls put it, at paragraph 71 of his speech:

Mr Weir’s second submission was, however, that, regardless of the impact or otherwise of Article 8 on the issue, to base the denial of a duty of care to parents suspected of abusing their children on a potential conflict of interests with those of their children is not sound, whether as a matter of Strasbourg or domestic law. He acknowledged the potentially countervailing interests, as Lord Nicholls described them in East Berkshire. However, he maintained that Lord Nicholls’ analysis is only accurate as far as it goes, because since that decision our law recognises that children can also have the same potentially conflicting interests, in respect of both of which they can sue. In the case of parents, he submitted, the position is no different; local authorities should be expected to take into account and to respond professionally to their interests as well as those of their children whether or not they are in conflict. Thus, he submitted, the fact that there are conflicting interests at stake, bringing with them conflicting pressures on the doctor or social worker is not in itself a good reason to deny a duty of care to the parent.

Mr Weir added that, in any event, not too much weight should be given to the inhibition argument in the case of social workers, since, as officers of local authorities, they are protected from personal liability by section 39 of the Local Government (Miscellaneous Provisions) Act 1976. He referred also in this connection to statutory duties of social workers to children in Part III of the Children Act 1989, which is headed “Local Authority Support For Children and Families”, and, in particular section 17(1) which requires local authorities:

The words that I have italicised in section 17(1)(b) reflect the critical and necessary qualification to any duty to support family life - whether derived from Article 8 or domestic provision - where to purport to do so by keeping the family together might not be in the interests of the child, as in the case of suspected parental abuse of children. It follows that that provision and the ministerial guidance - “Working Together to Safeguard Children (1999)” – to work with parents, to which Mr Weir also drew attention, do not take his argument on the conflict point any further, or support his suggestion that on account of social workers’ closer involvement with parents, they should, in this respect, be treated differently from doctors.

Looked at over-all and in the context of the parent’s as well as the child’s entitlement to respect for their family life, any interference with it, Mr Weir argued, requires cogent justification. He submitted that, only where it transpires that the parent had been abusing the child, should the law preclude a duty of care to the parent, whose own interest “in the final account” must or should be that the child’s safety and welfare should prevail.

Such an argument, which focuses attention on breach of duty to a parent rather than on whether there is such duty, has influential jurisprudential and academic support. It is arguably of a piece with the fact-specific approach of the House of Lords in Barrett and Phelps v London Borough of Hillingdon [2001] 2 AC 619. It has been pressed by distinguished academics and welcomed by Lord Bingham in his dissenting speech in East Berkshire, at paragraph 49, suggesting readier acceptance of either a higher duty of care than Bolam or a more robust threshold for breach:

More recently, Professor Stephen Bailey has repeated the call for more attention to breach: (Footnote: ¹)

I have to say that the above remarks of Lord Bingham and the views of the academics on this aspect gave me pause. However and with respect, it seems to me that there is a danger in focusing on breach rather than the existence of duty, in addition to the logical difficulty of first identifying, on a case by case basis, the duty said to have been breached. The danger, as I have indicated in paragraph 37 of this judgment, is that it puts to one side the mischief at which the present exclusion of a general duty of care to parents is based, namely the potential conflict of interests between child and parents creating the imperative, whilst the truth is yet unknown, for social workers to do all that they reasonably can and should to secure the welfare and safety of the child - the imperative so clearly and powerfully identified in East Berkshire.

As Mr Hammerton noted in his submissions, the common law has generally sought to avoid the imposition of duties potentially in conflict with each other. He drew in this context, not only on the reasoning of this Court and the majority of the House of Lords in East Berkshire, but also of other authorities, including that of the Australian High Court in Sullivan v Moody (2001) 207 CLR 562, at paragraph 60, to like effect:

The fact that there is such a conflict in this context does not mean that social workers cannot have regard to both conflicting interests and yet behave professionally. But it does not follow that, in acting professionally they owe a duty of care to each interest, as the House of Lords acknowledged in Brooks v Commissioner of Police of the Metropolis, which they handed down on the same day as East Berkshire. In that case the House held that, in general, the police, when investigating suspected crimes, had no duty of care to victims or witnesses in respect of their activities. It is notable that Lord Bingham, whilst acknowledging reservations that he had expressed in his dissenting speech in the East Berkshire case (see paragraphs 14 and 48 above), felt able on the fully investigated facts of the case, to hold that the duties of care alleged were not:

It is difficult, in cases of suspected abuse of children, where the police may be among the various agencies involved in investigation and prevention of harm to the children concerned, to see why any different rule of law should apply as between them and social workers, or, as I have already said, between doctors and other healthcare workers on the one hand and social workers on the other. They may all, in their different roles, be publicly responsible for taking action in protection of the children. Mr Weir, despite a number of invitations from the Court to justify any valid distinction between them for the purpose, was unable to do so.

In the case of parents who are suspected of abusing their children, it is necessary to look at their interest in family life with the children through the eyes of the policeman, doctor or social worker concerned as to the possible need, in the interest of the children, to remove them from the family setting. The relevant interest of the parent for this purpose is that of a parent who may or may not prove at the end of the day to be a child abuser, but who, if a child abuser, would at the time of the decision have a very real interest contrary to that of the child in concealing and continuing the abuse. That is the dilemma for the doctors and social workers when evaluating risk and how they should respond to it in such cases – the dilemma that clearly can give rise to conflicting pressures of which the Court of Appeal and the majority spoke in East Berkshire. In Sullivan v Moody, the High Court of Australia, with respect, put the point well at paragraph 62 of its judgment:

In summary, my view, like that of Field J, is that Mr Weir’s proposed “small incremental step” in development of the common law would be a step too far. The public interest in effective and fair investigation and prevention of criminal behaviour has fashioned the common law to protect those suspected of it from malice or bad faith, but not from a well-intentioned but negligent mistake, as Lord Nicholls emphatically explained in East Berkshire, at paras 74, 77 and 78. The basis for that distinction is the need to provide protection to those who have a duty to enforce the law in good faith from the imposition of a duty in negligence that could or might tend to inhibit them in the effective fulfilment of that duty. The development proposed would fundamentally distort the law of negligence in this area, putting at risk the protection for children which it provides in its present form. Article 8, with its wholly different legal construct of engaging liability without reference to a duty of care, complements it in facilitating a similar protection through mechanism for justification. The provision of a discrete Convention remedy through the medium of the HRA, does not, on that account, necessitate change of the common law in the manner proposed. This Court and the House of Lords have recently clarified in East Berkshire the relevant principles of the common law, including the effect or lack of effect in relation to this issue of the impact of the HRA, concluding that they preclude the existence of such a duty to the parent. That reasoning, with respect, still stands, and is not, as Mr Weir would have it, “consigned to history”.

Accordingly, I would dismiss the appeal.

I agree that this appeal should be dismissed. The House of Lords in the East Berkshire case examined in depth the conflicting interests of, on the one hand safeguarding a child from parental abuse and, on the other, the protection to be given to a parent from unnecessary interference in his or her family life. Their Lordships concluded by a majority of 4 to 1 that neither public authorities nor individuals employed by them owed a duty of care to parents when investigating or taking steps for the protection of their children whom they honestly believed to be at risk of parental abuse.

The East Berkshire case was decided very recently and the only new feature about the present case is that the Human Rights Act 1998 applies to the facts upon which Mrs Lawrence relies, whereas the facts of the cases considered by the House of Lords in East Berkshire pre-dated the coming into force of that Act. To my mind however that provides no good reason for revisiting a question so comprehensively examined by their Lordships in April 2005. As Lord Nicholls of Birkenhead put it at para 85, ultimately the factor that persuaded him that at common law interference with family life does not justify according a suspected parent a higher level of protection than other suspected perpetrators is the factor commonly labelled “conflict of interest”. Nothing in reality has changed. The common law is as set out by the majority of their Lordships in the East Berkshire case. Mrs Lawrence was not owed the duty of care on which she seeks to rely.

I agree that the appeal should be dismissed for the reasons given by my Lords.