NA v Nottinghamshire County Council

The claimant in this case, NA (now aged 37), had a very unhappy childhood. She alternated between periods of living with her mother (and sometimes her mother’s violent and abusive partner) and a variety of foster placements, followed eventually by a succession of residential children’s homes. Her unhappy childhood experiences have cast a long shadow over her life.

In this action the claimant makes three claims against the defendant local authority:

It is common ground that when providing social work services to the claimant pursuant to its statutory responsibilities, the defendant owed the claimant a common law duty of care to take reasonable steps to ensure that she was not exposed to a reasonably foreseeable risk of injury, whether to her physical or mental health. It is common ground also that the standard of care required pursuant to this duty is that of a reasonably competent social worker in the particular role and circumstances under consideration, assessed against the professional standards of the time. This is the Bolam test (Bolam v Friern Hospital Management Committee [1957] 1 WLR 582).

The first of the three claims which the claimant makes therefore requires consideration of the circumstances as they existed at the time, in the late 1970s and 1980s, both as presented to the social workers who dealt with the claimant and (if different) as those social workers ought reasonably to have ascertained her circumstances to be. It requires determination of whether, and if so when, the social workers acting in accordance with contemporary professional standards ought to have made a decision either to remove the claimant permanently from her mother’s care or to take some other step to ensure her protection. The claimant’s case in opening was that she ought to have been placed for adoption at a very young age and that the defendant’s social workers failed her thereafter on numerous occasions during her childhood. That is a wide ranging claim which requires consideration of the whole course of the claimant’s childhood and the role of the defendant’s social services department during that period.

The second and third of the claimant’s claims are more narrowly focused allegations of abuse by specific foster parents. Here there is no case that the defendant failed to exercise reasonable care in the selection of Mr and Mrs A or Mr and Mrs B as foster parents for the claimant or in the supervision of these placements during the periods for which they lasted. There was such a pleaded complaint, but the relevant paragraphs of the Particulars of Claim were the subject of a successful summary judgment application by the defendant from which there has been no appeal. Rather the claimant’s case as to the abuse which she alleges against Mrs A and the Bs is that the defendant is responsible in law for their abusive conduct, either on the basis of vicarious liability (because the relationship of local authority and foster carer is akin to an employment relationship) or because the defendant owed the claimant a non-delegable duty of care.

Consequently, the allegations involving Mrs A and the Bs fall to be considered on the basis that the defendant’s social workers in fact exercised reasonable care in placing the claimant with these foster parents and in supervising the placements, but that unknown to them and despite their exercise of reasonable care, physical and emotional abuse in the first case and physical and sexual abuse in the second case were taking place.

All of the claimant’s claims are time barred and have been since 3 July 1998 (i.e. three years after she attained the age of 18). The claimant contends that the limitation period should be disapplied pursuant to section 33 of the Limitation Act 1980. It was, however, common ground that in accordance with the guidance given in B v Nugent Care Society [2009] EWCA Civ 827, [2010] 1 WLR 516, the right approach was to hear the evidence before making any decision as to disapplying the limitation period.

The defendant contends that it is no longer possible to have a fair trial of the claims made against it. It contends that although a substantial volume of documents are available, some documents have not survived, while others which have are difficult to read; that witnesses’ memories have faded and, in some cases, potential witnesses have died; and that it is in practice difficult or impossible to recreate the dynamic and fluid situation with which the social workers responsible for the claimant had to deal or to assess their conduct by reference to the standards which prevailed at the time, without the benefit of hindsight or the different understanding of social work and child abuse which has evolved over the intervening years. I must therefore assess the evidence with these considerations in mind in order to ascertain, among other matters, whether a fair trial is possible.

Alternatively, if the limitation period is to be disapplied, the defendant challenges the claimant’s account of her childhood save to the extent that it is supported by the surviving records – which, in any event, it says represent the position as it was presented to the social workers concerned and by reference to which their conduct should be assessed. It says that the picture as it appears from those records is of some limited incidents of physical abuse at the hands of Paul Marsden which were appropriately dealt with; of a difficult child who was always desperate to return to her mother’s care; of a relationship between the claimant and her mother which both of them wanted to make work but which, because of their incompatible personalities and the claimant’s own increasingly disruptive behaviour, kept breaking down; and that in such circumstances the actions taken by the social workers in very challenging circumstances were reasonable.

As for the allegations of abuse while in the foster care of the As and the Bs, there are two issues. The first is whether the abuse alleged by the claimant took place. The defendant denies that it did, relying on evidence from Mrs A and from Mr and Mrs B and other members of their family. The second is whether, if it did, the defendant is responsible in law for that abuse on one or other (or both) of the bases alleged.

This has been the trial of breach of duty and limitation issues. It was originally to have been the trial of the whole action, but sadly the claimant’s expert psychiatrist was diagnosed with cancer not long before the trial, making his attendance impossible, at a time when it was not practicable for a new expert to be instructed. Rather than adjourn a trial which was otherwise ready, the solution adopted was to order that breach of duty and limitation should be dealt with now, leaving causation and quantum to be dealt with later if necessary.

I set out below a more detailed narrative, but in summary the claimant’s childhood can be divided into the following periods.

The claimant was born on 3 July 1977 but soon afterwards her mother left and she lived with her father for a short while before being fostered. In July 1978, however, at the age of one, the claimant was reunited with her mother, with whom she lived (with short periods of foster care, either when her mother was giving birth in hospital or for respite purposes) until 7 February 1985 when she and her three siblings were taken into the care of the defendant. This is the first period of complaint, during which the claimant says that she was abused by her mother and her mother’s partner, and that there were sufficient signs of such abuse which were or ought to have been apparent to the defendant’s social workers for her to be removed from her mother’s care or for measures to be put in place to ensure her protection.

In opening the case on behalf of the claimant Mr Philip Davy contended that the defendant ought to have removed the claimant permanently from her mother’s care at a very young age (the pleaded case was that she ought to have been placed for adoption at the age of only four months) and certainly before July 1984 when she was assaulted by her mother’s partner. Alternatively, Mr Davy said that there ought to have been a care plan in place by then, which would have picked up signs of abuse so that the claimant should have been permanently removed in July 1984 when this assault occurred. In fact the claimant was taken into care by the defendant on 7 February 1985 when she was 7½ years old. Formal care orders, initially interim and then final, followed.

The second relevant period was spent in foster care, including a placement with Mr and Mrs A between 25 March 1985 and 27 March 1986. The claimant says that she was subjected to physical abuse by Mrs A. The complaint here is of physical abuse by Mrs A, not known to the defendant’s social workers and not something of which they ought to have been aware, but for which it is said that the defendant is responsible in law.

The third period is from 27 March 1986 when the claimant returned to the family home, where she stayed until 16 October 1986, although with short periods in respite care. The claimant’s complaint in respect of this period was initially that she ought not to have been returned to her mother’s care, where she was at risk of harm and her mother was unable or unwilling to care for her and protect her from harm. By the end of the trial the complaint had become that there was inadequate social work support for her when she was returned home.

The fourth period is from 23 October 1987 until 23 February 1988, when the claimant was fostered by Mr and Mrs B. The complaint here is of sexual and physical abuse by Mr and Mrs B respectively, again unknown to the defendant’s social workers but for which the defendant is responsible.

The fifth period is from 23 February 1988, when the claimant was once again returned to the family home, remaining there until 8 April 1988. Her complaint during this period, as with the return home after her time with Mr and Mrs A, was initially that she ought not to have been returned to her mother’s care, but is now that there was inadequate support upon her return.

Sixthly, after 8 April 1988 (when the claimant was ten) she lived mainly in residential children’s homes, but with short periods at the family home. There is no pleaded complaint specifically referable to this or the next period.

Finally, when the claimant was 16, she was provided with independent accommodation, where she remained until she attained her majority on 3 July 1995.

In this section of the judgment I set out a detailed narrative of the claimant’s childhood, although without attempting to describe every event or incident which was referred to in the evidence. It is principally drawn from the documentary evidence which is available, supplemented by the oral evidence of the claimant herself and of other witnesses. Much of the narrative is not disputed. In addition I set out the evidence adduced on either side which related to the abuse which the claimant claims to have suffered while fostered with the As and the Bs. I defer the making of any findings of fact regarding this alleged abuse until I have considered whether it is fair and just in all the circumstances to disapply the limitation period so that such findings should be made. If I were to conclude that the limitation defence succeeds, it would not be appropriate to proceed further.

The claimant was born on 3 July 1977. Her mother (dob January 1958) who had spent much of her own childhood in care was then 19 years old and already had one daughter (dob November 1974). At this time the family lived in the Clifton area of Nottingham and was supported by Clifton social services. The claimant’s parents separated in November 1977. Her mother abandoned the children, agreeing that they should be received into care but her father intervened, taking them to live with his mother. This arrangement was short lived and the children were fostered. It is evident that the claimant feels a strong sense of rejection by her mother going right back to this early period.

In July 1978 soon after the claimant’s mother was rehoused in Balloon Woods, the children were returned to her. It is very likely that she had visited the children in foster care in preparation for this return. In accordance with the arrangements which existed at that time when a client of social services moved between different areas, Clifton continued to support the family for a further three months.

During the next two years the claimant’s mother approached the defendant’s North West area social services office on two occasions seeking financial assistance. On 11 July 1979 she sought a gas cooker and over a year later, on 14 August 1980, she asked for help with electricity bills. There were at this stage no child protection concerns. On each occasion the duty social worker responded to the specific concern raised but did no more. The evidence of the defendant’s social workers from this period is that such requests for practical or financial assistance, particularly from single mothers, were frequent and would not merit on-going social work support.

At about this time the claimant’s mother started a relationship with Paul Marsden. Her younger brother P was born on 22 October 1981. Not surprisingly, the claimant’s recollections of her life at this early period are vague. However, she says that Marsden, who was the only father she knew, was a violent man towards her mother and that some of her earliest memories were of being frightened about what mood he would be in when he came home. She says that although his violence was primarily directed towards her mother, who would often be bruised, it included on occasion violence towards her. There is, however, no record of any such violence at this early stage.

On 18 June 1981 a neighbour, Mrs Smith, raised concerns about the children’s welfare. She said that bruises had been seen on the claimant’s arms and that the claimant had been left to cry for an hour in the garden. Jan Didrichsen, a social worker, visited the family home on the same day. He saw the claimant and checked for marks consistent with a non-accidental injury (“NAI”). There were none and all the children appeared to be well cared for and happy. The parents co-operated and answered all the social workers’ questions. The claimant has no recollection of being seen by a social worker about this incident, but that is not surprising as it occurred when she was not quite four years old. I see no reason to doubt that she was seen and that the record of the visit made by Jan Didrichsen is accurate. One of the issues which social workers had to consider when such a referral was made was the possibility of a false and malicious report. Apparently the Smiths had a reputation for having made false or exaggerated referrals in the past.

On 5 February 1982 the claimant’s mother visited the area office complaining of domestic violence. She was advised to contact the police and a solicitor for an injunction and she subsequently did obtain an injunction. The claimant’s mother made a further complaint of violence from Marsden in April 1982, at which time she reported that she had split up with him after he had beaten her up. At this time, therefore, the defendant’s social workers were aware that the relationship between Marsden and the claimant’s mother was violent, but were given to believe that at least for the moment that relationship was no longer subsisting. Social work support was provided by Alyson Jeffries (now Pinske), who made visits in May 1982, and noted that the property was clean and that the children were well cared for although she did not on this occasion meet the claimant and her older sister who were at school. The claimant’s mother disclosed that she had a probation worker. At that time the role of probation workers overlapped to a considerable degree with that of social workers. It was therefore a factor that the probation worker would be providing support to the claimant’s mother and would also be in a position to refer any problems affecting the claimant rather than her mother to the social services team. The claimant’s mother reported also that Marsden had left. Alyson Jeffries formed the view that the claimant’s mother was coping well. However, she was pregnant again and a foster placement was planned for the claimant and her siblings while their mother was in hospital. The claimant was placed with a Mr and Mrs Tunnicliffe on 4 July whilst her mother gave birth to another daughter (dob 5 July 1982). All the children were then returned to their mother’s care on 14 July and the case was closed.

Seven months later, on 11 February 1983, when the claimant was 5½, her infant school teacher contacted social services. She was concerned that the claimant had what were described as some minor bruises and had taken some time off school. The school could not be sure that the bruises were caused by normal play and requested that a social worker should visit the claimant’s home. Alyson Jeffries visited and confirmed that the children appeared to be fine, happy and healthy. She found no evidence of NAI and reported this to the school, asking the claimant’s teacher to keep an eye on things.

On 11 March 1983 there was a further report from the claimant’s school. Her teacher said that the claimant had said that her daddy (i.e. Marsden, now apparently back on the scene) had pushed her against the wall. Although the claimant does not remember being seen by the community teacher, the records show that she was seen and that the teacher reported that “all OK.” It appears, however, that the claimant’s mother was furious at the report of this incident and complained angrily to the school. When she calmed down, she said that she needed help with her children. Assistance was then provided with finding nursery places for the two youngest children. This support continued until October 1983. There was one reference in a July 1984 document to a claim by the claimant a year earlier, on 1 June 1983, that her mother had hit her and locked her in her bedroom, but that no evidence of ill treatment had been observed. However, none of the witnesses was asked about this incident and it is impossible to know of what it consisted or by whom it was investigated. Reasonable physical chastisement, if that is all it was, was not regarded as ill treatment.

On 12 January 1984 respite foster placements were arranged to give the claimant’s mother a break as she was having difficulties coping with four children. The claimant and her elder sister were placed with a Mr and Mrs Owen for a week. They viewed this as a holiday.

According to the social work records, the first definite NAI to the claimant occurred on 1 July 1984 when Marsden assaulted her after a birthday party. The claimant was now seven. The circumstances were that she had been allowed to take a friend home on condition that she came straight home afterwards, but had not done so. Marsden had gone out to find her and, when he did, he lost his temper, hitting her repeatedly. This continued when he brought her home. He completely lost control, hitting her with his hand and slipper, and knocked her twice to the floor. The claimant was bruised all over her face, on the back of her neck, on her buttocks and on the back of her right leg. The claimant’s mother reported this and a full investigation took place immediately. The claimant was medically examined and the police were involved. The family was taken to a refuge with a police escort.

However, within a couple of days the claimant’s mother wanted to go home. Alyson Jeffries told her that if Marsden returned to live with her, a place of safety order for the children might have to be considered. The claimant’s mother said she understood this. A case conference was held on 10 July 1984 and the claimant was placed on the “at risk register”. Previously intervention from social services had been occasional, in response to specific issues, but now a social worker was allocated to the family. It was not considered necessary to seek a full care order, as the mother was co-operating with social services. By this time, as the social workers knew, Marsden had returned to the family home, having accepted a police caution (by modern standards an unacceptable response to such a serious incident, although not unusual at that time). He too appeared to be co-operating with social services and remorseful about what he had done. The case conference was attended by Mr Carl Docking of the NSPCC which was recognised at that time as having special expertise in dealing with child abuse.

The case was transferred from Alyson Jeffries to the long-term team in August 1984. The new social worker was Ann Newman.

In November 1984 the children were boarded out with foster parents for two weeks while their mother received medical treatment, but they returned home in time for Christmas. In January 1985 a new social worker, Jane Allsop, took over responsibility for the family. When she visited she was told that Marsden was not living there, although he kept in touch regularly. Even if this was true, it seems that he was back living in the house before long.

Later in January a further incident occurred. The claimant was dancing in front of an unguarded fire as Marsden and her mother were preparing to go out. Her nightie caught fire and she sustained burns to the back of her legs. This was an accident. However, Marsden then hit her across the legs, complaining that she had spoiled his night out. The claimant’s burns were dressed at the Queen’s Medical Centre and she was off school for a few days.

On 30 January 1985 Mrs Britten, with whom the children had stayed in November and December the previous year, contacted the fostering officer to say that the claimant and her elder sister had telephoned her to ask if they could go back to live with the Brittens if their father hit them again. Jane Allsop visited and was told about the fire incident. She spoke to the babysitter who had been due to look after the children to check that the burn had indeed been an accident but did not ask the claimant’s mother about the telephone call to Mrs Britten. There is no record of any discussion of domestic violence, but the claimant’s mother did say that she was finding it very difficult to cope, especially with the claimant and her younger brother. She said that if this continued, she would want the children to be put in care shortly.

This possibility was overtaken by events on 7 February 1985 when the claimant’s mother telephoned to say that she had lost her self-control and injured P (Marsden also appears to have hit him), causing bruising to his face, when he had torn his only pair of trousers. She said she wanted all the children taken into care for the time being. On 8 February Jane Allsop assisted in placing all four children in foster homes, the two elder children with Mr and Mrs Britten and the younger children elsewhere. At a case conference on 21 February it was decided to institute care proceedings. Interim orders were made on 11 April and full care orders on 8 May 1985. A guardian ad litem provided a report for the court making the final care order. The claimant and her elder sister both wished to return to the care of their mother. The guardian expressed considerable concern at the pattern of events over the fourteen months leading up to the assault on P, and recognised the pressures existing within the family (including the presence of Marsden) and the risk of further injury. She opposed the making of a supervision order which would involve the children’s immediate return home, which was not in their interests, but recommended that “every effort should be made to re-establish the children with their parents” (by which she meant not only the claimant’s mother but also Paul Marsden, albeit he was not the father of the claimant or her elder sister) in the long-term. The guardian noted, as other professionals had before her, that the claimant’s temperament was difficult, making it hard to care for and parent her. Meanwhile the claimant’s mother and Marsden had both been prosecuted for the assault on P and received non-custodial sentences.

The claimant and her elder sister were placed with foster parents, Mr and Mrs A on 25 March 1985. Mr and Mrs A had been fostering children since 1973. Numerous children had been placed with them on both short and long term bases. They generally had a large number of children with them at any given time and had been given the status of “family group home”. The claimant and her sister were two of nine or ten children being fostered by Mr and Mrs A at this time. They had in addition four children of their own.

The claimant was just over 7½ when she arrived at the As’ house. Her evidence was that there was strict discipline maintained and that from an early stage of the placement Mrs A would use violence on her and on the other girls fostered with her. She said that Mrs A would hit the girls with her fist, would kick them and would use either loose slats from the bunk beds in the girls’ bedroom or an orange wooden spoon in the kitchen with which to hit them. She described an incident in which she said that Mrs A wrapped a wire coat hanger round her neck as if to choke her, and other times when she was shut or locked in the pantry in the dark. She said that when social workers visited, Mrs A would either remain in the room or would be listening outside the door, so that the claimant was afraid to explain what had been going on for fear of the consequences which would then ensue, and that Mrs A had warned her and the other children not to say anything about the treatment they were receiving.

The claimant described also an incident when the children were taken on holiday to Majorca, when her elder sister and another girl, MD, had been dragged across the room by Mrs A by the hair after disrupting a game of Monopoly which the adults were playing.

The claimant called evidence from other witnesses who were fostered by Mr and Mrs A. These were three sisters, A (dob 8 December 1977, and therefore about the same age as the claimant), C (dob 15 April 1979) and M (dob 25 May 1981), and their brother D (dob 20 November 1984), all of whom are now in their thirties. These were the W children. A and C were fostered by Mr and Mrs A from October 1981 when they were 3¾ years and six months old respectively. M was fostered by them from 1987, when she was six years old. D and another sibling arrived at the same time. All five children remained with Mr and Mrs A until 1989. Accordingly A and C were there at the same time as the claimant, while M and D only arrived later. All four children had been the victims of horrific sexual abuse at the hands of the adult members of their natural family.

All four witnesses, but particularly the girls, spoke in their evidence of suffering physical abuse from Mrs A during their time in care there. They described being hit with Mrs A’s fists, or with objects such as a slipper, an orange spoon and a cane, with which they would be beaten on their backs and buttocks until they cried, leaving bruising. D described witnessing this. C described being beaten with slats from the bunk bed, although A did not mention this particular form of beating. A and C described not being allowed out of the bedroom to use the toilet at night, even if that meant that they wet or soiled the bed, for which they would also be punished; a piece of tape was put across the bedroom door at night to make sure that nobody left the room.

So far as the written social work records go, there is no evidence of any ill treatment of the claimant (or for that matter of the W children) known to the defendant’s social workers during the period of the claimant’s placement with Mr and Mrs A, save for a report that the claimant had complained to her mother that she had been smacked. The claimant’s social worker, Jane Allsop, visited and saw the claimant, but she said nothing further about this. It was not suggested to Jane Allsop in cross examination that she was ever prevented from seeing the claimant alone, although she would not necessarily have been able to tell whether the claimant was inhibited by a fear, real or imagined, that Mrs A was listening outside the door. In general, Mrs A reported that the claimant’s behaviour had improved during her time there.

Some three years after the claimant left Mr and Mrs A, in 1989, the W children made allegations against them, claiming that they had been ill treated during their time with Mr and Mrs A. This led to an investigation in which the claimant, by then at Wood Nook, a residential children’s home, was asked about her own treatment. She said that she was hit when a bunk bed got broken. If she provided a statement, it has not survived. The claimant’s evidence about this was that she was asked a few questions, but nothing more, and that she was given the impression by whoever spoke to her that what she said would not be taken seriously due to her bad behaviour at Wood Nook. In the course of the investigation Mrs A admitted hitting MD with the wooden spoon, which she considered to be “reasonable chastisement”. It was decided not to prosecute her. However, it is clear that the defendant formed the view that Mr and Mrs A were not suitable foster parents and they were de-registered in 1990. Later, in March 1993, the defendant even assisted D to apply for compensation under the Criminal Injuries Compensation Scheme on the ground of “cruelty/physical abuse” by Mr and Mrs A.

In fact when these allegations surfaced, other concerns about Mrs A within the social work team came to light. At a team meeting on 29 January 1989 Jacqui Swaine, the As’ own support worker, described how she had found that Mrs A resented any kind of challenge to her approach. She said that she was worried about the way control was being exercised in the house; she and Sarah Langford, the social worker for the W children, had noted that Mrs A created difficulty for social workers forming relationships with the children or being on their own with them. There was also reference to an incident at C’s school when another girl had reported seeing bruises on C’s back and face which the school had not seen: it was reported that Mrs A had told the other girl “to keep her interfering nose out”. This led to an inquiry of the other girl’s mother, who had said that C often had bruises and on one occasion had not been allowed to go to a birthday party as she had wet her bed. Sarah Langford described seeing incidents when Mrs A had lost her self control, including one time when she had seen her shout at D (who had soiled himself), putting her face very close to his and shouting that he was “a very dirty boy” who should not be seeing his social worker, but that when she had confronted Mrs A about this after trying to comfort D, Mrs A had become verbally abusive and had asked her to leave. Sarah Langford had also seen tape on the children’s bedroom door, which she was unhappy about, although it appears that she did not do anything about this.

Mrs A provided a witness statement dated 8 April 2014 in which she gave a fairly detailed account of the claimant’s time with her and her husband. She denied hitting the claimant with slats from the bunk bed or attempting to throttle her with a coat hanger. She denied also locking her in the pantry. Although she made a general denial of assaulting the claimant “as she alleges”, she made no reference to the use of a wooden spoon, either by way of reasonable chastisement or at all. This was a surprising omission in view of what she had said back in 1989 and was to admit in her oral evidence. There was no hint in Mrs A’s witness statement, or at any time before the trial, that Mrs A was suffering from memory loss.

However, shortly before the trial she was diagnosed by her general practitioner as having a mild memory disturbance, although there was no further evidence about this. To many of the questions which Mrs A was asked in her oral evidence her answer was that she could not remember. She appeared at the trial to be a rather frail and confused elderly lady. She admitted, however, as she had done in 1989, that she had used a wooden spoon to discipline the foster children in her care including the claimant (but not her own children). She described giving them no more than what she described as a single “tap” on the hand when they were naughty, saying that the children could be very unruly and that nothing else worked, but saying also that this did not happen often. The tap which she then demonstrated was so light as to be almost unnoticeable. She acknowledged that the bunk bed slats had been broken, but denied hitting any of the children with the slats. She denied too the alleged incident with the wire coat hanger or shutting the claimant in the pantry.

Mr A was available to give evidence but the defendant chose not to call him. There is no evidence that he suffers from any memory problems. He would therefore have been in a position either to confirm or not the account given by his wife, not only of the claimant’s treatment but also the treatment of the other children which the couple fostered. So too would the As’ own children, who are now adults, but they were not called either.

In accordance with the guardian’s recommendation steps were taken to rehabilitate the claimant and her siblings with their mother. On 19 July 1985 a case review noted that both the claimant and her elder sister talked constantly of wanting to go home, and that the claimant had been difficult to deal with in the early days but that her behaviour at the As’ was improving, though it was too early to arrange a return to their mother. Contact was to be continued. The return home started at the end of the year and was staged. First, the younger siblings (who had been placed elsewhere) were returned on 20 December 1985; the claimant and her elder sister spent Christmas with the family, returned to the As’ and were finally moved home permanently (as it was hoped) on 27 March 1986. The return was preceded by meetings between the defendant’s social workers and the claimant’s mother and Paul Marsden to ensure so far as possible a successful rehabilitation into the family.

Jane Allsop continued as the family’s social worker until August 1986. Marsden left the home – it seems permanently – at about the same time as the claimant and her elder sister returned. Ms Allsop’s transfer summary in August 1986 indicated that the family situation had stabilised, with all the children attending school, and with the school reporting that no problems had come to light there. A new social worker, Val Lamplugh (later Haskard) was appointed to the family in October 1986. Accordingly there was a gap of about two months when no social worker was allocated, but other social workers (including Dennis Hilliard, a senior social worker who was very familiar with the case) continued to visit the family in this period. An internal review in March 1987 noted no exceptional causes for concern. It recommended that the children should stay on the at risk register and that there should be a further review in six months time. It referred to there being “a real desire to reintegrate four young children back to a mother living alone.”

Over the summer of 1987 the situation between the claimant and her mother deteriorated. Her mother accused the claimant of stealing, of being verbally abusive, and of blaming her mother for the break up of the relationship with Marsden. On 30 August 1987 the mother said she was at the end of her tether with the claimant and was concerned that she might assault her. The claimant was fostered for a short period to provide respite. Unfortunately on her return the situation did not improve. Her mother was unable to cope with the claimant although she was caring for her siblings. The claimant, now aged ten, was taken back into care on 11 September for fear that her mother would assault or reject her; the two were seen to have very similar and confrontational personalities. Initially she was placed with a Mr and Mrs Stables but it appears she stole from them, as she had from her mother. A case review recognised that a return home could not be considered and that a lengthy or perhaps even permanent placement would be needed.

After one other short-term placement (with Mr and Mrs Settle) the claimant was moved to Mr and Mrs B on 23 October 1987. Mr and Mrs B had been fostering for some years. When the claimant arrived, there was one foster child, a girl called D who was then aged five and was therefore about five years younger than the claimant. She was subsequently adopted by Mr and Mrs B. They had also two sons, then aged 13 and 11 respectively.

The claimant’s evidence was that at first she liked this placement and felt loved and cared for. She enjoyed the attention which she got, including hugs and tickles from Mr B and his interest in what she was doing at school. At Christmas she returned home for a week to her own family, where her mother had a new (and similarly violent) partner. After Christmas, however, the claimant’s evidence was that the situation at the Bs’ changed drastically for the worse. She described an occasion when she was in her bedroom at about new year or in the first week of January 1988. In her witness statement she said that she was doing homework, but in cross examination when it was pointed out that this was the school holiday and that homework had not been set, she said that she was on the floor with her feet against the radiator, with pens and paper. She said that Mr B came in and sent D out of the room, that he switched off the light (it was just beginning to get dark outside) and started to tickle her; then he slipped his hand under her top and fondled her.

The claimant described another incident, about two weeks later, when she said that she was alone in her bedroom. Mr B came in, turned off the light and drew the curtains. He then put his hand down her pants and began to grope her genital area, putting his hand over her mouth to prevent her shouting out or screaming. She said that this progressed to him inserting his finger into her, which hurt, so that she started crying and told him to stop, which he did. He then said that this was their little secret and it was okay.

On other occasions, the claimant said that Mr B would force her to touch his penis and to masturbate him, and that when she said she did not want to, he threatened her and said that if she told anyone she would not be believed. She said that this began in the bathroom after she had had a bath, when he came in to dry her, and that he said that if she told anyone, she would never go home again. There were occasions when she tried to fight him but he was much larger and would pin her down on the floor. On occasion she bit him.

According to the claimant, there was one occasion in February 1988 when she had returned home for a visit when she was screaming hysterically behind the settee that she did not want to go back to the Bs’ house. She says that she did not explain to the social worker, who she says was John Fisher, that this was because she was being sexually abused, but she did say something to the effect that he did not know what he was doing to her in taking her back. It was put to her that her social worker at this time was Val Haskard (formerly Lamplugh) and not John Fisher, but she was adamant that on this particular occasion it was John Fisher who had taken her back to the Bs’ home.

The claimant was adamant also that Mrs B was aware of the sexual abuse which her husband was perpetrating (although she did not say how she knew this) and that as a result Mrs B’s own attitude to the claimant changed. She said that Mrs B became verbally abusive to her, although not when D was around, and that she would throw things at her, such as a shoe.

On 21 October 1989 the claimant disclosed to Jean Miller, a care worker at Wood Nook children’s home, that Mr B had sexually abused her by fondling her under her clothing when they were alone and that he had warned her not to tell anyone. Jean Miller’s contemporary account of this conversation was that they had been talking about different placements which the claimant had experienced, and that when the Bs were mentioned the claimant became upset and did not wish to talk any further. It was only about an hour later that she was prepared to talk again, though she would not at first answer any questions about the B family. It was apparent to Jean Miller that there was something about the Bs that the claimant was unwilling to discuss. At the claimant’s request, the subject was dropped.

Two days later the claimant and Jean Miller spoke again. The claimant then disclosed the incident of Mr B fondling her breasts in the bedroom. She was then interviewed by a policewoman and described this incident again, saying that after the first time it had happened repeatedly. She said also that on one occasion Mr B had tried to put his hand up her skirt, but she had pushed him off. The claimant did not mention the much more serious allegations of digital penetration and masturbating Mr B which she makes in this action. The matter was reported to the defendant and the NSPCC and the police were involved. An investigation took place. Mr B denied the allegations. His two sons were interviewed, as was his adopted daughter D, principally to see whether they complained of anything similar. No abuse was reported by them.

If the claimant made a formal statement to the police, it has not survived. She says that the policewoman who saw her was dismissive of her account. Her evidence as to whether she made a formal retraction was contradictory, but it is apparent that she made clear that she did not want to pursue the allegation which, in any case, she had not expected to be reported to the police. The police decided that there was not sufficient evidence to prosecute.

It appears that the claimant made further allegations to the police about Mr B in October 1996. A social services file note refers to these as “more detailed allegations … about abuse experienced at the [Bs]”, but does not reveal the nature of these more detailed allegations.

The claimant relied also on evidence from R, who was fostered with Mr and Mrs B between July and December 1986 when she was aged 6½ to 7 years old. This placement ended, therefore, ten months before the arrival of the claimant in the Bs’ home. R described sexual abuse by Mr B, including repeated digital penetration at bath time; she said also that on one occasion at bath time he had tried to make her insert her finger into D’s vagina, but she had refused to do so. She described also an incident when she and another foster child, a boy, were made to stand naked and were beaten at night in a dark public campsite, as well as other physical violence from Mr B. She also described abuse by the Bs’ two sons, which (she said) they began with digital penetration, then inserted objects such as a teaspoon and a toothbrush into her vagina, and ended by raping her so that she bled. At this time the boys were aged 12 (almost 13) and ten years respectively. There is no equivalent allegation by the claimant of sexual abuse by the B boys. R’s witness statement alleged that D had also been abused by Mr B, but she withdrew this allegation in her evidence in chief, saying it had been a mistake.

R first made allegations against Mr B in April 1990, over three years after she left this placement, when she was ten. She told her grandmother that Mr B used to bath her and wash between her legs and that this made her feel uncomfortable. She did not elaborate on this. When asked in evidence why she had not done so, she said that her grandmother’s reaction had made her feel embarrassed, and that she had therefore said no more. At or about the same time R told her grandmother that the two sons of the family had “molested” her (although this may have been her grandmother’s word for whatever she described) when their parents had gone out for the evening.

Mr and Mrs B and their family deny all of these allegations. All five members of the family, that is to say Mr and Mrs B, their two sons and their adopted daughter D (all now adults), gave evidence. Mr B denied that any of the incidents described by the claimant or R had happened. He said that he and his wife had bathed the younger children (i.e. including R and D) together, with his wife washing them while he dried, but that he had never bathed R on his own or been alone with her in the bathroom, or touched her indecently. Mrs B confirmed his account, adding that her husband had done the drying as he was not good at washing the girls’ long hair. This was different from what their daughter D said, which was that Mr B never dealt with bath time.

It was not put to Mr or Mrs B by Mr Davy that, as R had alleged, Mr B had been violent towards his wife. Mrs B denied losing her temper with the claimant or throwing a shoe at her.

Mr and Mrs B’s two sons also gave evidence denying the allegations against them which R had made. It was put to them by Mr Davy that they had inserted objects into R’s vagina and had tried to have sex with her, but not that they had actually done so or that they had made her bleed.

It is common ground that after Christmas 1987 the claimant’s behaviour at the Bs’ house deteriorated markedly.

At a case review on 4 February 1988 it was noted that the claimant wished to return to her mother and had become disruptive at the Bs’ in order to achieve this end. It was decided that the claimant would return to her mother on a trial basis but that she could not keep on moving in and out of care and that this would be impressed upon her and her mother. The claimant returned home on 28 February, a few days before her mother moved house to the Clifton area where (she said) she would have better support from friends and family, although that proved not to be the case and the claimant’s mother was not happy in Clifton. The placement with the Bs proved to be the claimant’s last placement with foster parents.

However, the claimant’s return home was short lived. She returned to care on 8 April 1988. Her mother indicated that the claimant and her younger brother were beyond her control and that she was unable to cope with them. Social workers then visited the mother and told her that the claimant would not be returning to her in the near future but would undergo a full assessment that might lead to a permanent placement away from the family.

On her return to care the claimant was placed at Wood Nook, a residential home. The claimant was two months short of 11 years old. A full assessment of her needs was carried out. She remained at Wood Nook until July 1990 when she was 13. At first the claimant was glad to be at Wood Nook. She felt valued and worthwhile, and began to form good relationships with members of the staff, including Jean Miller to whom I have already referred. However, she was understandably upset when she heard that her mother had moved to Wales, taking the two youngest children with her, after being reconciled with a former partner, but without bothering to tell the claimant that she was going. This compounded the already strong feelings of anger and resentment which the claimant felt towards her mother as a result of what she saw as her mother’s repeated rejection of her. On the other hand, no doubt because she was desperate for her mother’s love and affection and for the happy family life which had so far eluded her, she was (and became increasingly) desperate to return to her mother. This reinforced a pattern which was already developing, whereby the claimant became determined to wreck any placement by her behaviour so that she could be returned home but, when she got there, she and her mother were unable to live happily together. This became the consistent pattern of her remaining childhood and adolescence, and aggravated what was already her aggressive and rebellious behaviour.

A review was held at Wood Nook on 21 June 1988, by which time the claimant’s mother had gone to live in Anglesey. It was considered that the claimant was responding well to the affection and interest shown in her and that she would need a further six to eight months at the home, after which it was hoped that she could be fostered, possibly with her brother. A further review was held at Wood Nook on 31 October 1988. Difficulties with the claimant’s behaviour were noted, particularly with her peers: she was disruptive and argumentative. The decision was that contact with her mother would be limited. Her present home was to be Wood Nook while staff sought to address her behaviour. A review on 6 March 1989 noted that the claimant’s behaviour continued to deteriorate. Although she was working hard at school, there were episodes of running away which were giving cause for concern. By the time of a review on 17 October 1989 the claimant was in trouble for stealing. According to her evidence she was also sniffing solvents, although this is not included in the records. She was also self-harming. It was noted that a visit to her mother during the summer had resulted in her mother assaulting her and, in consequence, her mother was not willing to accommodate her on a long term basis or for anything more than day visits. It was concluded that there was no prospect of a successful reintegration into the family home and that a specialist foster placement for her should be sought. However, throughout this period the claimant continued to have some contact with her mother, spending Christmas in Wales. Her attachment to her natural family and desire to live with them did not diminish.

In January 1990 the claimant’s mother returned from Wales to live in Broxtowe in Nottingham after her partner was sent to prison for armed robbery. The claimant became increasingly unhappy at Wood Nook and her behaviour increasingly difficult. She began to commit offences and behaved so badly at school that she was at risk of exclusion. It was clear by May 1990 that the claimant did not wish to be fostered. She was determined that any foster placement would break down so that she could return to her mother. Given her attitude and behaviour a referral for a specialist foster placement was not pursued. She was clear too that she did not wish to remain at Wood Nook. On 16 July 1990 she refused to return to Wood Nook following a visit to her mother. This followed what the record describes as an “altercation” which the claimant said was an incident when she was beaten up by other girls. At a review meeting on 3 August 1990 it was decided to end her stay at Wood Nook and place her in the charge and control of her mother. This decision was made in light of the claimant’s behaviour, her expressed wishes and what was described as a clear commitment by both the claimant and her mother to make this return home work. The claimant described this in her evidence as wishful thinking, and so it proved to be. She was now 13 years old.

For some months following the return home, however, her behaviour was at least sufficiently improved for her and her mother to be able to live together. In December 1990 her brother also returned home. The relationship between these two siblings had always been difficult. In January 1991 the claimant was excluded from school. On 8 February 1991 relations between the claimant and her mother broke down. The mother complained that the claimant was aggressive, threatening violence, to her siblings. On 20 February the claimant returned to Wood Nook for five days a week, spending weekends at home.

At Wood Nook the claimant’s behaviour was such that she alienated staff and the other children. She was aggressive and disruptive. By this stage, as she admitted in her evidence, she was still sniffing solvents and she did not care how she behaved. A new school was found for her but she was soon again on the verge of expulsion. On 31 May 1991 she moved to Skegby Hall, a residential children’s home with a school on site. She said in her evidence that this home was regarded by children sent there as the “dumping ground”. By September this placement was also collapsing because of the claimant’s increasingly violent behaviour and refusal to co-operate with staff or participate. She was drinking and taking drugs and, in her own words, was “out of control”. Again she expressed a clear desire to return home and re-enter mainstream schooling, considering the support provided at Skegby Hall to be a waste of time. Reluctantly it was decided to allow the claimant to return home as she was gaining no benefit from her current placement. She returned home on 30 September 1991. There was concern that if the she was kept at Skegby Hall against her will her behaviour was likely to deteriorate further and she might well have to be detained in a secure unit.

The return home was short lived. The claimant came back into care on 4 January 1992 after she had spent a period of time living with a local vicar. That arrangement ended when she hit his wife. Initially the claimant was accommodated at a small group residential home, 88 First Avenue. However, her behaviour meant she could not stay there. Within the first week she had assaulted and intimidated two other residents although it appears that these incidents were not entirely one-sided. She was returned to Skegby Hall. Her behaviour again sabotaged any chance that this placement would be successful.

On 5 August 1992 the claimant was moved from Skegby Hall to the Small School at the Red House in Norfolk. This was an expensive specialised out of county private school. The placement was aimed at addressing the claimant’s behaviour. The defendant was prepared to provide funding for this until the claimant was 18. At the first review on 11 March 1993 staff reported that the claimant was refusing to attend classes, had difficulties with her peers and had made it plain that she did not want to be at the school and would do anything to terminate the placement. The claimant became increasingly unco-operative. She assaulted a member of staff, although her evidence was that this was not a deliberate assault but an automatic reaction when he touched her from behind. She began to delay her return following contact visits with her family in Nottingham. On 5 October 1993, by now aged 16, she refused to return at all.

At a review meeting in November 1993 social workers accepted that they could not force her to return to the Red House and the placement was formally terminated. The claimant, who was again living with her mother after a short period with her elder sister, was to be supported towards independent living. This support continued, as and when the claimant wished it, until she was 18 and left care. During this period she was drinking and taking drugs.

In 1996 when the claimant was 18 she complained to the police that Mr B was “stalking” her. In evidence, however, she made clear that he had not been doing so, and that this was merely a drug-induced hallucination.

Subsequently, when she became pregnant with her first child the claimant stopped taking drugs, but she was unable to cope with the baby and relapsed when her daughter was about 18 months old. The daughter was taken into care. She did eventually manage to become drug free and got the baby back, and her evidence is that she remains free of drugs. She now has two daughters. It was evident that giving evidence and listening to some of the other witnesses give their evidence was in some respects a painful process for her. Sadly, I was told that she was sectioned under the Mental Health Act after the sixth day of the trial.

I turn now to the question whether the limitation period should be disapplied pursuant to section 33 of the Limitation Act 1980. This provides as follows:

"33.

Discretionary exclusion of time limit for actions in respect of personal injuries or death

(1)

If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which—

(a)

the provisions of section 11 or 11A or 12 of this Act prejudice the plaintiff or any person whom he represents; and

(b)

any decision of the court under this subsection would prejudice the defendant or any person whom he represents;

the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates …

(3)

In acting under this section the court shall have regard to all the circumstances of the case and in particular to—

(a)

the length of, and the reasons for, the delay on the part of the plaintiff;

(b)

the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11, by section 11A or (as the case may be) by section 12;

(c)

the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant;

(d)

the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;

(e)

the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;

(f)

the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.”

The basic question to be addressed in considering the exercise of discretion under section 33 was identified by Smith LJ in Cain v Francis [2008] EWCA Civ 1451, [2009] QB 754 at [73]:

"It seems to me that, in the exercise of the discretion, the basic question to be asked is whether it is fair and just in all the circumstances to expect the defendant to meet this claim on the merits, notwithstanding the delay in commencement. The length of the delay will be important, not so much for itself as to the effect it has had. To what extent has the defendant been disadvantaged in his investigation of the claim and/or the assembly of evidence, in respect of the issues of both liability and quantum? But it will also be important to consider the reasons for the delay. Thus, there may be some unfairness to the defendant due to the delay in issue but the delay may have arisen for so excusable a reason, that, looking at the matter in the round, on balance, it is fair and just that the action should proceed. On the other hand, the balance may go in the opposite direction, partly because the delay has caused procedural disadvantage and unfairness to the defendant and partly because the reasons for the delay (or its length) are not good ones."

The application of this test in cases involving allegations of historic child abuse was considered by the Court of Appeal in B v Nugent Care Society [2009] EWCA Civ 827, [2010] 1 WLR 516, where a number of previous authorities were reviewed. In summary, and without attempting to be exhaustive, the position is as follows:

The delay with which section 33 is principally concerned is the delay between the expiry of the limitation period and the commencement of proceedings. That is the delay referred to in section 33(3)(b). But that is not to say that delay prior to the expiry of the limitation period is necessarily irrelevant. As held by the House of Lords in Donovan v Gwentoys Ltd [1990] 1 WLR 471, such delay forms part of “all the circumstances of the case” to which the court must have regard. A claimant who delays in bringing what was already a stale claim until after the expiry of the limitation period is not likely to gain the sympathy of the court by an argument that he could have chosen to wait until the very last day of the limitation period to commence proceedings. However, delay before the expiry of the limitation period is likely to be less significant in cases where for much of that period the claimant was a child and, once she attained adulthood, there are good reasons why proceedings were not commenced within the three year period which then began to run.

An aspect of the present case, as of all cases involving allegations of child abuse against very young children, is that by the time the limitation period expired on the claimant’s 21^st birthday, many of the events with which this case is concerned were already very stale. Most of the relevant events had occurred by April 1988, more than (and in some cases much more than) ten years before the expiry of the limitation period on 3 July 1998. The claimant’s pre-action letter of claim was sent on 29 December 2009, reasonably promptly after the claimant first instructed solicitors in November 2009, but this was the first notification of the claim. There were delays by the defendant in providing the claimant’s social services records, as a result of which it was agreed that certain periods which would not be counted against her as delay, and the action was commenced on 13 May 2011. The principally relevant period of delay is therefore agreed to be something approaching 12 years, although this must be seen in the context of a claim where most of the events with which the action is concerned occurred about 25 to 30 years ago.

The claimant’s initial experience of disclosing what she claimed had happened to her at the As’ and the Bs’ was not happy. As she saw it, she was given to understand that she was not believed by those to whom she spoke and would not be believed if these matters were taken further. Her expert psychiatrist Dr Peter Whewell (whose written evidence on this point was accepted by the defendant) suggested that it would subsequently have been extremely difficult for her to talk about these experiences and that as a defensive strategy she would have sought to put them out of mind. It is common for victims of abuse to have feelings of guilt, and the claimant’s self-harming is consistent with this. Similarly she is likely to have found it extremely hard to cope with the breakdown of any relationship with her mother. This was illustrated by her insistence in evidence that there was never any relationship to break down in the first place. A combination of such dissociation resulting from feelings of guilt and self-blame and lack of trust in others due to ill treatment in childhood is a common cause of an inability to disclose childhood abuse, which inability runs through into adult life. Dr Whewell’s opinion is that these factors are likely to have played a significant role in explaining the fact that this claim was not notified until 2009, some ten years after the expiry of the limitation period. I accept that evidence.

The claimant’s evidence was that when she was aged about 18 to 21 she was a heroin addict and in no fit condition to consider the commencement of this action. I accept that evidence. Mr Steven Ford QC for the defendant submitted that, just as a claimant cannot claim damages based upon his or her own illegal conduct (cf. Gray v Thames Trains Ltd [2008] EWCA Civ 713), so too the claimant here cannot excuse her delay in bringing this claim by relying on her illegal drug use. I do not accept this as a bald proposition of law. The Court of Appeal recognised in B v Nugent Care Society at [13] that many claimants in historic sex abuse cases have lifestyles which deteriorate into alcohol and drug abuse and crime, and that the abuse which they have suffered or claim to have suffered may be a contributing factor in bringing this about, but did not suggest that periods of drug use which resulted from the fact of the abuse should be excluded from consideration as a matter of law. Nor should they be. They are part of “the circumstances of the case”. Of course, not all illegal drug use is as a result of abuse in childhood, but the claimant’s drug abuse in this case seems likely to have been attributable in some measure to her unhappy childhood experiences.

Consequently, although the period of delay in this case is undoubtedly lengthy, there is in my judgment a reasonable explanation for that delay. In particular, I would not regard the claimant as having been guilty of culpable delay in failing to commence proceedings before the expiry of the limitation period.

The impact of that delay on the availability or cogency of the evidence to be adduced by the parties needs to be considered separately in relation to the three distinct claims brought by the claimant and identified in [2] above. So far as the claim for negligence on the part of the defendant’s social workers who dealt with the claimant during her childhood is concerned, it is inevitable that after such a long period (of the order of 25 to 30 years in most cases) the individual social workers concerned have very little (and in some cases no) recollection of the claimant or of the issues which they faced and the strategies which they adopted in dealing with her. For the most part they could do little more than defer to the contemporary documents, with some additional comment on or explanation of those documents in the light of their recollection of their usual practice.

Nevertheless the defendant’s solicitors did succeed in tracing and adducing evidence from most of the social workers who dealt with the claimant. Their evidence was valuable in describing the social work practices and attitudes of the late 1970s and 1980s which, in some important respects, were rather different from those of today, even if they could add little or nothing to the documents regarding the claimant’s specific case. Whether the recollections of those witnesses would have been materially better or their evidence would have been any more detailed if they had been giving evidence following intimation of a claim in 1998 must be a matter of speculation. Common sense suggests that a time will come when all recollection has faded and that the passage of further time will make no real difference. The problem for the defendant’s social workers was that even by 1998 the relevant events were well in the past and that the claimant represented only one case (and that not a particularly unusual one) in a busy caseload.

There were, however, some tangible losses. Some social workers could not be traced, though that did not apply to any against whom the principal allegations of negligence were advanced. Some had died. These were Dennis Hilliard (a senior social worker who had considerable involvement with the case, including visits during the period in the summer of 1986 when no social worker was specifically allocated to the claimant), Val Lamplugh (the allocated social worker from October 1986 and throughout the claimant’s placement with Mr and Mrs B), John Fisher (with whom the claimant said that she pleaded not to be taken back to Mr and Mrs B) and Beverley Morris (D’s social worker at the Bs). Of these, Val Lamplugh died well before 3 July 1998 and therefore would not have been available even if the proceedings had been brought in time. Beverley Morris died in April 2004, while Dennis Hilliard and John Fisher both died in February 2008. I accept that the loss of these three potential witnesses represents a prejudice to the defendant as a result of the delay. So too does the fact that Ann Newman, who was the claimant’s social worker between August 1984 and January 1985, was diagnosed with dementia in late 2012. Sue Ryder, who was responsible for supervising John Fisher in the late 1980s, and who met the claimant when she was at Skegby Hall and witnessed a fight between the claimant and her brother, died in the course of 2013 after she had provided a witness statement: her evidence was therefore available and in any event the period with which she was concerned is less critical.

Nevertheless substantial contemporary documentation has survived, even if some of it was difficult to read. The claimant’s social work files are available. These include referrals to the defendant’s intake team, running records of actions taken by social workers, reports made by such workers and records of case conferences in which the history was reviewed, strategies were discussed and decisions were made. Inevitably these documents represented the primary and best evidence of the facts known to the defendant’s social workers, the steps which they took and the reasoning underlying such steps. In my judgment this would equally have been so if this claim had first been advanced in 1998. While it may be that the documents available are incomplete, they provide a reasonably comprehensive picture of the defendant’s social workers’ involvement with the claimant. There is no reason to suppose that there would have been materially more documentation available if this claim had been advanced in 1998.

It does appear that because of an oddity in the archiving system adopted by the defendant’s fostering department, outdated policy or guidance documents are no longer available. It appears from the evidence that when new policies or guidance are introduced, copies of the old policies and guidance are not retained. This seems a surprising, even dangerous, practice. However, because it is apparently impossible to go behind the current policies, it is also impossible to say whether the policies which were extant in the 1970s and 1980s would still have been available if this claim had been advanced in 1998. I attach relatively little weight to this factor. There was sufficient evidence of relevant practices at the material time to enable a reasonable view to be formed.

Further, the expert evidence was important in this case. The parties’ experts were able to express their views on the conduct of the defendant’s social workers without apparently having greater difficulty as a result of the passage of time either since 1998 or at all. The defendant’s expert confirmed in terms that there was sufficient information in the available records to enable her to form an opinion.

The claims involving Mrs A and the Bs are different. As there is now no complaint that the defendant failed in its duties in placing the claimant with these foster parents or supervising the placements while they continued, the scope of the factual inquiry is much narrower. Apparently Mrs A was unwilling to assist the defendant at an earlier stage of this case (that, at any rate, is what the defendant pleaded), although she did provide a witness statement dated 8 April 2014 and gave oral evidence. I have explained above her recent diagnosis of mild memory disturbance. However, there is no reason why her husband and children could not have given evidence. As for the Bs, all five members of the family gave evidence. Moreover the fostering files of the As and the Bs, and of the W children and R, are still available.

There are, however, some specific points of prejudice on which the defendant relies in relation to these claims, First, there was an allegation by Mrs A’s sister in 1989 that Mrs A had assaulted children in her care as early as 1982. However, a 1993 social services review note states that the police had formed the view that the evidence of Mrs A’s sister was “discredited”. The police files are no longer available and therefore do not reveal why this view was formed. However, it seems reasonably clear from other evidence in the case that it was because of quarrels between Mrs A and her sister and difficulties in the sister’s own lifestyle.

Second, in 1989 the police carried out an investigation into the claimant’s allegations against Mr B, but the police file has not survived. Mr B was arrested and denied the allegations, presumably in interview. Other members of the family were also interviewed, as was the claimant. The defendant submitted that these interviews would have cast light on the claimant’s current allegations, but that seems unlikely. It is known that Mr B denied the allegations which were made at that time, and that his children said nothing to support them, while it is also known that the claimant in effect retracted the allegation and that the police decided that there was insufficient evidence to prosecute. It is evident, therefore, that the police files would not have supported the claimant’s case and would have been consistent with the evidence which the defendant has adduced from the Bs in this action.

Third, the defendant submitted that John Fisher would or might have been able to deal with the claimant’s evidence that she was desperate not to be taken back to the Bs in early 1988. However, this seems doubtful. The claimant did not suggest that she said anything to John Fisher about alleged sexual abuse, while for him this would have been (at most) one of many incidents when the claimant was manifesting her desperation to stay with her family and not to go to foster parents. Even if it happened, it would not necessarily have stood out. Whether he would have been able to say positively that it did not happen is doubtful.

Overall, therefore, for the most part the evidence available to determine whether physical or sexual abuse of the claimant occurred during these placements is probably not significantly different from what it would have been if these claims had been advanced in 1998.

Accordingly, although the defendant has suffered some prejudice as a result of the delay, this is relatively limited in the case of all three claims, negligence by the defendant’s own social workers and abuse by Mrs A and the Bs.

As for the other factors, there was as indicated above some delay by the defendant in providing the claimant with her records and therefore some part of the delay should not count against her. There is no evidence that the claimant took any step to obtain legal or medical advice before November 2009 but, once she did, the claim was notified reasonably promptly. The action was not actually commenced until 13 May 2011 and, when it was, the allegations were considerably more wide ranging than had been intimated in the letter before action. In view of the psychiatric evidence of Dr Whewell referred to above, I do not regard this as surprising.

Balancing these factors overall, I conclude that a fair trial of all the claimant’s claims is possible (and has taken place) and that it is fair and just to disapply the limitation period in this case. It is in my view a material consideration in reaching this conclusion that if the claimant’s claims are well founded in fact, she has been let down by a system designed to protect her and it would therefore be unsatisfactory to reject her claim on limitation grounds in circumstances where a fair trial is possible. Indeed, even if those claims fail, either as a matter of fact or law, it is to be hoped that there is at least some benefit in the claimant knowing that her evidence has been heard and taken seriously and that her case has at least been considered on its merits.

Accordingly I direct that the limitation period shall not apply to the claimant’s claims and turn to consider those claims on their merits.

The claimant’s pleaded case as to the abuse which she suffered (leaving aside the allegations concerning the As and the Bs) was set out in paragraph 75 of the Particulars of Claim as follows:

“Whilst resident within the family environment, and within the care of her mother which was at the knowledge of the Defendant, the Claimant was subjected to severe physical and emotional abuse, as follows:

(a)

The Claimant was subjected to physical and emotional abuse, including neglect, by her mother;

(b)

The Claimant was subjected to physical and emotional abuse from her mother’s partner, Paul Marsden, on numerous occasions including being subjected to a severe physical assault in July 1984;

(c)

The Claimant witnessed violence between her mother and the said Paul Marsden on numerous occasions.”

This was alleged in paragraph 78 of the Particulars to have occurred through the negligence of the defendant’s employees including its social workers. The allegations of negligence which followed were wide ranging and non specific. Mr Davy stated in opening that there were two elements to this case, namely (a) failure to remove the claimant permanently from her mother’s care which, he said, ought to have happened at a very young age and certainly before the assault on her by Marsden on 1 July 1984 and (b) a failure to put in place measures to protect the claimant from the abuse to which she was subject. However, while the “failure to remove” case had the merit of clarity, it suffered from the defect that it was not supported by the claimant’s expert, Professor Christopher Payne. The “failure to protect” case, on the other hand, was hopelessly vague. I asked Mr Davy to show me where in his report Professor Payne identified a negligent failure by social workers to protect the claimant which the Professor said would have made some difference to the eventual outcome, but Mr Davy was unable to do so.

This lack of clarity in the case being advanced could easily have caused injustice to the defendant’s social workers although in the end I am satisfied that it has not done so. Nevertheless this is not a satisfactory way of advancing such a claim. Like any professionals, social workers who are accused of having acted negligently are entitled to know what they are alleged to have done wrong, what they ought to have done instead, and what if any difference that would have made. That applies with force when a case is prima facie time barred as an inability to state a case with proper particularity may have an impact on the exercise of discretion under section 33 of the Limitation Act 1980.

The defendant called oral evidence from some of the social workers who dealt with the claimant’s case (Jan Didrichsen, Alyson Jeffries, Jane Allsop) as well as senior social workers who supervised these social workers and were responsible for some of the decisions made, including the chairing of case conferences (Jeff Parker, Jane Morris (now Williams), Alan Diamond and Henry Kennington). None of these witnesses had any real independent recollection of the case and some of them have been retired from social work for some years. Nevertheless they all struck me as likely to have been careful and conscientious professionals who would have gone about their tasks with proper regard for their responsibilities towards the claimant. In that sense their evidence confirmed the impression given by the social work records from the period.

Jane Morris (as she was – now Williams) was the senior social worker responsible for the relevant intake team (the intake team would deal with referrals and other requests for help when no long term social worker was allocated to a family) between 1980 and 1982. She explained that at that time the impact on children exposed to domestic violence between adults was not understood in anything like the way that it is today. Reports of domestic violence between adults, which were by no means uncommon, were not regarded as raising child protection issues, however obvious it may seem now that they should have been. The principal focus so far as child protection was concerned was non-accidental injuries inflicted on a child. An NAI would give rise to a case conference to consider child protection issues involving social workers and whatever other agencies were involved, but domestic violence between adults would not. It would be dealt with by the provision of refuges or advice and support to keep the perpetrator away from the home. Similarly a child would be placed on the at risk register if there was an incident of NAI giving rise to a case conference, but not if the child was merely exposed to domestic violence between adults. In practice, therefore, a child was unlikely to be placed on the register unless there was reasonably clear evidence of NAI to at least one of the children within the family. Mr Davy submitted that this represented too high a threshold for intervention, but the evidence was clear and (in the end) undisputed that it represented the standard which was regarded as reasonable at the time. Furthermore it would be unusual to allocate a long tem social worker to a family simply on the basis of a limited number of referrals for practical issues such as financial management problems or debt. In order for a social worker to be allocated there was a high threshold, with concrete evidence of some problem affecting the child (or other children within the family) being required. As Ms Morris put it, if a social worker was allocated to a case which did not meet this high threshold, that would deprive another child of a social worker where the need threshold was met: it was necessary to manage scarce resources.

I accept this evidence, which was confirmed by the defendant’s expert. It represents the practical context in which the criticisms of the defendant’s social workers in the early years of the claimant’s life need to be assessed. The claimant’s mother lived on the Broxtowe estate in Nottingham where a high proportion of families had at least some involvement with social services, principally relating to financial issues, but including problems with relationships and violence. It would not have been possible to allocate a social worker to all of these families without spreading their services so thin that families in dire need would suffer. Sadly, the circumstances of the claimant’s mother during the late 1970s and early 1980s were not at all unusual.

It is also an important factor that then (as now) social workers believed strongly that a child’s best interests were served by being placed with its natural family and they would go to considerable efforts to enable this to happen. The claimant’s expert acknowledged this reality and confirmed that the approach of the defendant council in this respect was similar to that of other authorities.

The claimant’s expert was Professor Christopher Payne, who has over 50 years of experience in social work and social care. However, after the 1960s his experience has been as an academic, lecturing and undertaking research in various aspects of social care provision. It was a weakness of his evidence that he lacked any experience of front line social work in the late 1970s or early 1980s. As a result, some of the criticisms in his report seemed somewhat detached from the reality of daily life in a hard pressed social services department serving demanding areas of Nottingham with finite and highly stretched resources. His criticisms were also made in many cases by reference to an ideal standard of what social work ought to be, rather than the actual professional standards of reasonable social workers at the relevant time. Indeed, although he has considerable experience of acting as an expert witness, he admitted that he struggled to understand the Bolam test.

The defendant’s expert was Felicity Schofield, now a social care consultant, who practised as a social worker in three different local authorities between 1976 and 1988. After this she became the team manager of both an adoption team and a child protection team during the 1990s, before progressing to more senior roles. She had, therefore, first hand experience of social work during the period with which this claim is concerned, which included the experience of taking and responding to referrals such as those with which the defendant’s social workers had to deal. She gave her evidence in a measured and responsive way, making concessions where appropriate, and concluding in short that the actions taken by the defendant’s social workers in what became an increasingly difficult situation were reasonable and in accordance with the standards of the day. To the extent that her evidence differs from that of Professor Payne, I have no hesitation in accepting it.

In the end, however, there were very few if any material differences between the experts.

Professor Payne made a large number of criticisms of the defendant’s social workers in his report although he never suggested that the claimant should have been placed for adoption or taken into care at the early age for which Mr Davy contended in opening. However, such criticisms as Professor Payne made had clearly not been properly thought through or were based upon a mistaken or incomplete reading of the documents. His criticisms disintegrated in the course of his cross examination by Mr Adam Weitzman who dealt with this part of the case for the defendant, when he agreed to withdraw many of the criticisms which he had made, as explained in the following paragraphs.

Professor Payne suggested that there were organisational or systemic failings in the defendant’s social work department which prevented competent social workers from doing their job properly. When pressed to identify these failings he was unable to do so, other than by reference to the fact that resources were finite. He agreed, however, that Nottinghamshire was no worse resourced than other comparable local authorities at the relevant time. He sought to bolster the suggestion of organisational failings by saying that there was evidence of such failings in published reports, but he had not identified or referred to these and admitted that he had not even checked whether this supposition was correct.

He agreed that the claimant should “certainly not” have been removed from her mother’s care at any time before February 1985 when she was in fact taken into care.

He acknowledged that some of his criticisms of the defendant’s social workers in these early years were made with the benefit of hindsight.

His evidence fluctuated as to whether a long term social worker should have been allocated in these early years (i.e. before July 1984 when a social worker was in fact allocated) but was unable to say what difference this would have made to the eventual outcome. He agreed that the nature of the assessment carried out by Jan Didrichsen following the referral in June 1981 was appropriate, but went on to qualify this by saying that a single visit was insufficient to enable a view to be formed. However, this was an unrealistic criticism in the light of then current social work practice. Eventually Professor Payne accepted that Jan Didrichsen had done what a reasonably competent social worker would normally do in such circumstances.

He agreed too that domestic violence between adults was not at that time seen as raising child protection concerns and that the referrals concerning violence by Marsden to the children’s mother had not raised such issues.

He agreed that the defendant’s response to suspected NAI in February 1983 was appropriate and that registration on the at risk register in July 1984 was the right response to what had occurred at that time.

In the end, therefore, he accepted that the actions taken by the defendant’s social workers up to July 1984 were in accordance with standard practice at the time and that there was also support from and at least informal co-ordination with probation, the claimant’s school, and a health visitor during this period. It was at that stage, in July 1984, that a long term social worker was allocated, which is what Professor Payne agreed should have happened.

He agreed that the criticisms in his report of the defendant’s handling of the case after the case conference on 10 July 1984 were based on a mistaken understanding of the facts (for which I would add that Professor Payne was not to be blamed as the document provided to him was incomplete) and withdrew his criticism. He accepted that the allocated social workers, first Alyson Jeffries and then Ann Norman, provided appropriate advice and practical support in the succeeding months and that child protection issues were being monitored as recommended by the NSPCC.

He agreed that following the placement with Mr and Mrs A it was reasonable for the claimant to be returned to her mother and that the return had been properly prepared by contact and social work support during the placement, which involved not only the claimant and her mother but also Paul Marsden.

He agreed that adoption or a long term fostering placement was not appropriate at this stage and that appropriate social work support was provided until the summer of 1987 when the relationship between the claimant and her mother broke down and she was placed in foster care again, eventually with Mr and Mrs B. He agreed that this relationship breakdown was not due to lack of social work support.

He agreed also that return to the claimant’s mother after the placement with Mr and Mrs B was appropriate, although he suggested that it should have been deferred for a couple of months to enable the family to settle into the new home in Clifton before the claimant returned. However, he was unable to say what difference this would have made and acknowledged that the claimant was becoming increasingly disruptive at the Bs’ due to her desire to return home, and that the continuation of such disruption would reduce the chance of a successful return.

He suggested that after this return, when the relationship between the claimant and her mother began to break down again, a firm plan should have been identified based on a proper assessment of the claimant’s needs, but he was unable to say of what such a plan would have consisted.

He agreed that a proper assessment of the claimant’s needs was in fact made when she arrived at Wood Nook, where good work was carried out by the claimant’s key worker Jean Miller with whom the claimant had a good relationship.

He suggested that the right course at this time was for the claimant to spend part of her time in a residential home and part of her time at home. But this is precisely what did happen, with visits and stays at home with the family, even after the claimant’s mother moved to Anglesey in 1988.

He suggested that some agreement ought to have been reached with the claimant as to the amount of time to be spent at home. Again, however, this is what happened, but the claimant repeatedly refused to abide by this agreement, extending her stays at home unilaterally. Professor Payne could offer no suggestion as to how the defendant should have dealt with that situation, save to confirm that he was not suggesting that the claimant should have been detained in a secure unit.

He acknowledged that the claimant’s mother did succeed in bringing up her other children successfully and that the evidence shows that the children and their surroundings were kept clean and well cared for. For whatever reason, it was only the claimant who was unable to live in the family home. Whether this was due to the mother’s abandonment of the claimant at the age of four months as a result of which they never succeeded in forming the normal emotional bonds between a mother and her child, or whether it was because of something incompatible in their personalities, Professor Payne agreed that the claimant’s mother could not be described as an inadequate mother.

At the conclusion of the expert evidence it appeared to me that there was nothing left of the case which the claimant had pleaded and advanced in opening. Accordingly I directed that the claimant should serve a document stating precisely what it was that the defendant did or failed to do which was negligent and what it should have done instead. The document which the claimant then served stated as follows:

“It is contended by the Claimant that the Defendant failed in its duty to protect the Claimant from harm or injury, in the following ways:

(a)

Failed to take any or any appropriate action, to include removal of the Claimant to a place of safety following referrals to Social Services in June 1981, alternatively February 1983, alternatively July 1984, which raised concerns about suspected/proven abuse/neglect of the Claimant in the family environment;

(b)

Failed [to] pay any or any sufficient heed to the referrals from third parties, failed to make any or any proper investigation of the same and thereby failed to take any or any appropriate action to protect the Claimant; in particular the referral to Social Services in June 1981, alternatively the referral in February 1983;

(c)

Thereby caused or permitted circumstances to arise and/or exist, to the detriment of the Claimant (whether between the date(s) specified in the above sub-paragraph and the date of removal in February 1985, or specifically in the form of the incident of assault on 1^st July 1984), when the Defendant knew or ought to have known that the Claimant was at risk thereof;

(d)

Failed to pay any or any sufficient heed to the evidence that the Claimant’s mother was unwilling and/or unable to protect the Claimant from severe emotional and/or physical abuse, in particular by virtue of her continued association with Paul Marsden;

(e)

Failed when returning the Claimant to the family home, whether after the [A] and [B] foster placements or from local authority children’s homes, to take any or any adequate steps to protect the Claimant from harm or injury in the home environment, when they knew or ought to have known there was a risk of the same based on the history;

(f)

Failed when reaching any decision regarding the Claimant to give first consideration to the need to safeguard and promote the welfare of the Claimant throughout her childhood.”

In the light of the evidence summarised above it is apparent that these allegations must fail, quite apart from the fact that allegations (d) to (f) continue to fail to make clear precisely what it is that the defendant’s social workers ought to have done. The social workers were at all times dealing with a challenging situation which required balanced judgments to be made, not only as to past facts (such as whether a non accidental injury had occurred) but as to future courses of action, each of which involved advantages and disadvantages which had to be weighed up, with no certainty of a good outcome whatever they did. The actions required of them in such situations were not obvious. The consequences of error could be serious either way: to remove a child from its family is obviously an extremely serious step for which cogent evidence of risk would be required. In such circumstances a case of professional negligence by social workers will not succeed without the support of expert evidence.

As Waller LJ said in Sansom v Metcalfe Hamilton & Co (CA, 19 December 1997), a case of alleged negligence by chartered surveyors:

“In my judgment, it is clear, from both lines of authority to which I have referred, that a court should be slow to find a professionally qualified man guilty of a breach of his duty of skill and care towards a client, (or third party) without evidence from those within the same profession as to the standard expected on the facts of the case and the failure of the professionally qualified man to measure up to that standard. It is not an absolute rule as Sachs LJ indicated by his example but, unless it is an obvious case, in the absence of the relevant evidence the claim will not be proved.”

That reasoning applies equally here. This was never the kind of obvious case where such evidence is unnecessary. However, none of the claimant’s allegations are supported by expert evidence. As Mr Davy realistically acknowledged, the claimant’s own expert withdrew his criticisms of the defendant’s social workers. The defendant’s expert gave clear and compelling evidence throughout that there is no substance in the claimant’s complaints.

Accordingly the claimant’s allegations of negligence against the defendant’s social workers fail on the facts when considered, as they must be, by reference to the professional social work standards of the time.

I turn now to the claimant’s case that the defendant council is responsible in law for abuse perpetrated by foster parents with whom she was placed. This case is advanced either on the basis of vicarious liability or in reliance on a non-delegable duty. In either case, the issue arises on the basis that the defendant’s social workers exercised reasonable care in the selection, supervision and monitoring of the foster parents. I deal with each alternative in turn. First, however, it is necessary to make my factual findings and to say something about the legal framework applicable to foster parents.

Much of the claimant’s evidence was concerned with the events of her early childhood, of which she could not be expected to have a detailed or accurate recollection. As a young child, she would not have had a precise understanding of what was happening to her or of the involvement of social workers with her and her family. Her evidence was affected also by a degree of anger and bitterness about the circumstances of her childhood and the rejection which she experienced. Mr Ford for the defendant submitted that this had caused her to lose perspective and to be determined to blame the defendant unfairly for her troubles. There is in my judgment some truth in this, as when she claimed that entries in some of the records were false or concocted. It is true too that the claimant’s evidence has not been consistent, and that some important aspects of her evidence were not mentioned when she first raised complaints about Mrs A and Mr B in 1989.

As a result I have had to consider whether these valid criticisms of the claimant’s evidence mean that her evidence altogether is unreliable and should be rejected. I do not consider that it does. I found much of her evidence convincing and consider that she was on the whole giving honest evidence of what she believes happened to her, which at times it was clearly distressing for her to give. Even if some of the detail cannot be accepted, I see no reason to doubt the overall thrust of much of her evidence. It would not be surprising if she has a vivid and accurate recollection of some of the traumatic things which happened to her, even if she is unable to recall with any accuracy some of the surrounding circumstances.

For example, although there is no evidence in the social work records of a proven incident of violence on the claimant before 1 July 1984, I see no reason to doubt that she did suffer violence from time to time at the hands of Paul Marsden. It is not possible to say how often such violence occurred, but I accept the claimant’s evidence that it was more frequent than is implied by the social work records. I accept also that there was probably some violence by the claimant’s mother, not only before she was taken into care but on later occasions after her return from foster placements, which went beyond what could fairly be regarded as reasonable chastisement. I consider, however, that this was less frequent than the claimant suggested, particularly in the later periods. All this is not to say that such violence was something of which the social workers ought to have been aware, but the fact that they formed a reasonable judgment that there was no evidence of NAI when suspected incidents were reported and that there was no proven incident before July 1984 does not necessarily mean that nothing of the kind ever happened.

I have therefore approached the allegations against Mrs A and Mr and Mrs B bearing in mind this assessment of the claimant’s evidence.

I have summarised above the evidence relating to the claimant’s treatment by Mrs A. There is no allegation in this case about ill treatment by Mr A. I accept the claimant’s evidence that she was beaten repeatedly with a wooden spoon and that she was shut in the pantry in the dark (the pantry had no lock and the light switch was on the inside, but I accept the claimant’s evidence that she was frightened, with good reason, to turn the light on). I accept also that the claimant was beaten when the bunk bed slats were broken, but not that she was beaten repeatedly with the slats themselves, and that she was frightened to complain to social workers because even when she was alone with them, she believed that Mrs A was listening outside the door. I am not satisfied to the required standard as to the incident with the wire coat hanger or the incident in Majorca. Nevertheless the matters which I do find proved amounted to physical abuse (not merely reasonable chastisement) and emotional abuse. My reasons are as follows.

First, I found the claimant to be on these matters a credible and truthful witness. While she was probably mistaken in her evidence about the detail of some of the things which happened to her when she was very young, in particular before she was taken into care, and about some of the detail of what she described as having happened at the As’, I see no reason to think that she was mistaken in the general thrust of her evidence as to the nature of the treatment which she received from Mrs A. She did not make allegations of ill treatment against all of those with whom she was fostered. For example, she had nothing bad to say about Mr and Mrs Britten or some of the other foster parents with whom she lived for a while. Moreover, she did on one occasion complain to her mother that Mrs A had smacked her. While a smack would not necessarily constitute abuse (and would not have acted as a red flag to social workers) this was a complaint from a girl who was used to violence at home. It is unlikely that she would have complained at mild chastisement. Moreover, her account was corroborated to some extent by small details, such as Mrs A’s acknowledgment that only foster children were ever hit with the spoon (the claimant had said that she felt like a second class citizen compared to Mrs A’s own children) and that at a later stage the social worker Sarah Langford noticed tape on the bedroom door (which Mrs A denied ever putting there).

Second, the claimant’s account was strongly supported by the evidence given by the four W siblings, all of whom gave their evidence straightforwardly and (in some cases) with considerable distress which appeared to be genuine. It was not suggested to them that they were lying or had concocted their accounts either together or with the claimant, only that they were mistaken. I do not think they were.

Third, there is abundant written evidence of the complaints made by the W children in 1989 after they left the care of the As which support their accounts. Although those 1989 complaints do not tally in every respect with their evidence in the present case, that is understandable. Particularly striking were the fear of wooden spoons which M and D exhibited in their next placement, the fact that D was frightened at the prospect of going back to Mrs A, and A’s evidence in 1989 that on occasion she had been hit so hard that Mrs A’s husband had intervened to stop her. For the purpose of this case I accept the overall thrust of their evidence. In particular, I have no doubt that Mrs A’s use of the wooden spoon went far beyond the single light tap which she demonstrated in evidence and far beyond anything which could reasonably have been regarded even 30 years ago as reasonable chastisement.

I am not impressed by the fact that there is little or no contemporary evidence (to social workers or otherwise) of complaints of abuse while the children remained in the As’ care, or by apparently affectionate letters which A and C wrote to Mrs A. These were confused, frightened and vulnerable children whose experience of adults did not invite confidence, and who were all too well aware of the likely beating they would receive if Mrs A discovered that they had been telling tales. In any event, a postcard to Mrs A written by C in January 1989 and expressing warm affection for her and a desire to return was made at about the same time as the children’s complaint of physical abuse. It carries little weight.

Fourth, Mrs A’s response in evidence to the allegations of beating was that if the children had been beaten so as to cause bruising as alleged, this would have been noticed at school or at church or in the girls’ brigade group to which the girls went. I do not accept that the absence of any contemporary report of such bruising demonstrates that beating of the children was not taking place. Bruising under clothing would not be noticed. It is possible also that some bruising was noticed but nothing was done. Mrs A was undoubtedly a strong character with a fierce temper. I have described above her reaction when bruising of C was reported and the difficulty which she sometimes caused the W children’s social worker. It is apparent that by January 1989 the social workers were becoming very concerned about excessive and inappropriate discipline. The fact that the defendant assisted D to apply for compensation under the Criminal Injuries Compensation Scheme on the ground of “cruelty/physical abuse” by Mr and Mrs A is particularly striking.

I have borne in mind that the four W siblings are bringing their own claims against the defendant, in which they rely in part on abuse committed by the As. In that sense, they are not independent witnesses. That does not, however, detract in my view from the reliability of their evidence in this trial.

Fifth, it is striking that there was no evidence, not only from Mr A but also from the As’ own children to support the denial of cruel treatment given in Mrs A’s witness statement. The absence of such evidence became even more striking once it was apparent that Mrs A was suffering from an impaired memory.

The defendant placed some reliance on a letter apparently written by another girl fostered by Mr and Mrs A, to the then Prime Minister, Mrs Thatcher. This was written at the time of the allegations made by the W children and protested at the unfairness of these allegations. The letter stated how the As had devoted 17 years of their lives to fostering children, and how unfair it was that they had not even been told the detail of the allegations against them. This is a rather implausible letter to have been written by a twelve year old girl on her own initiative. I think it more likely that the substance of the letter (and perhaps all of it) came from Mrs A herself.

Mr Ford for the defendant submitted that whatever the position became in 1988, there was no evidence of ill treatment of children by Mrs A before 29 May 1987 (when a three year old boy was disciplined by being made to sit at the bottom of the stairs for 15 minutes in a way which the social worker regarded as inappropriate). However, the same record spoke of the boy having an “obsessive cleanliness and fear”, some of which was “due to the strict discipline” he received from Mrs A. It appears also that another child fostered with the As, a teenage boy who had been with them many years, and who ran away from the house several times in the latter part of 1988, told his social worker that a wooden spoon had regularly been used to chastise the younger foster children and that he himself had had a number of such spoons broken over him over a period of years. This boy’s social worker reported that Mrs A had been rude to and critical of the boy in the social worker’s presence and that she had admitted throwing a stapler at him (fortunately it missed).

It would have been possible for the defendant to adduce evidence that what had always been Mr and Mrs A’s strict but non-abusive fostering regime deteriorated into physical abuse in or about late 1988 or early 1989 as a result of the stresses involved in fostering all five W children as well as a number of other damaged children. However, it did not do so. Mrs A’s evidence in her witness statement and orally denied that abuse with the wooden spoon or otherwise had taken place at all, drawing no distinction between the period when the claimant was fostered with her and any later period. I reject the submission that abuse of children by Mrs A only began after the claimant’s placement had ended.

I would add that in reaching my conclusions as to ill treatment by Mrs A I have not relied on the statement made by Mrs A’s sister who was, as noted above, regarded by the police as having been “discredited”.

The evidence relating to the claimant’s treatment by the Bs is summarised above. Here too I accept the claimant’s evidence. I do so for the following reasons.

First, I consider her to be on this issue also a credible and truthful witness. She struggled at times in the course of giving her evidence when describing events which evidently invoked painful memories. One of these was the occasion when Marsden assaulted her on 1 July 1984 which undoubtedly happened and is well documented. Another was her description of the beatings she received from Mrs A about which there is in my view no room for any real doubt. This to my mind lent credibility to other aspects of her evidence which are not documented, and which depend largely on her own evidence, including her account of her treatment by Mr B.

Second is the undoubted fact that independent complaints of similar sexual abuse by Mr B have been made by the claimant and by R. Although both of these have given much greater detail in their evidence in this action than they did as young girls, it is striking that R made allegations as a young girl of about ten which are broadly similar to the allegations now made by the claimant. It is true that the claimant’s complaints in 1989 were much less detailed and of a lesser order of seriousness (fondling of her breasts and an attempt to put a hand up her skirt) than the account she now gives, but the fact remains that these were independent allegations by two different girls in foster care with no possibility of collusion between them.

It was suggested on behalf of the defendant that the claimant’s allegations in 1989 were a desperate attempt by her to scotch the possibility of any return from Wood Nook (where at that time she liked to be) to another foster placement, in other words that this was a deliberate lie in 1989 in an attempt to manipulate those responsible for making decisions about her care. I do not accept this. The way in which the claimant made her allegations to Jean Miller is described above. It is apparent that far from seeking to exploit this issue in her own interests as she saw them, she was reluctant to talk about it at all.

Third, I did not find Mr B or the other members of his family to be convincing witnesses, although I recognise the difficulty which a witness faces in attempting to prove a negative. In particular, there appeared to me to be an important conflict between the evidence of his adopted daughter D that her father (or foster father as he was at the time) had played no part in bathing her and the evidence of Mr B and his wife that they had always and without exception bathed the younger children (including R and D) together. It may be that this was the general pattern, although even this seems hard to reconcile with D’s evidence, but I do not accept that there were never any exceptions when Mr B was alone with the younger children at bath time. Another important discrepancy, in my view, was the denial in evidence by Mr B that he would tickle the claimant in play, thus denying any (even perfectly innocent) contact with the claimant. That contrasted with his statement to the police in 1989 that he did tickle the claimant, as well as the other children, in the course of ordinary play.

Fourth, it is notable that the claimant’s behaviour at the Bs’ deteriorated sharply after Christmas 1987. There could in theory have been other reasons for this deterioration, but it coincided notably with the beginning of the sexual abuse which the claimant claims to have suffered.

Accordingly I find the allegation of sexual abuse against Mr B proved. I should make clear that in considering this allegation, and indeed the allegation of physical abuse against Mrs A, I have applied the civil standard of proof, that is to say the balance of probabilities, but I have done so bearing in mind the seriousness of the allegations and have therefore applied the approach described by Lord Nicholls in In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 at 586, as endorsed by the House of Lords in In re B (Children) [2008] UKHL 35, [2009] 1 AC 11:

"The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. …”

I am not, however, persuaded that it is more likely than not that the claimant suffered physical abuse from Mrs B in the form of a shoe or other objects being thrown at her. The claimant may have believed that Mrs B knew about her husband’s abusive behaviour, but she did not give any objective reason for that belief. Nor do I propose to make findings one way or the other about the sexual abuse allegedly inflicted on R by the two B boys. In my judgment it is unnecessary to do so and in circumstances where the claimant in this case does not make similar allegations and R is bringing her own claim against the defendant council, I consider that it would not be right to do so in this action.

For both arguments, vicarious liability and non-delegable duty, the starting point is the status of foster parents. The relationship between a local authority and foster parents is defined by statute. The important statutes in this case are the Children and Young Person Act 1969 (CYPA 1969) and the Child Care Act 1980 (CCA 1980), which applied before the coming into force of the Children Act 1989 in October 1991 when the claimant was 14 years old. The claimant came into the care of the defendant local authority under section 1 of the CYPA 1969 which provided for the circumstances in which a care order could be made. These included the court being of the opinion that a child was being ill-treated.

Section 24 of the CYPA 1969 (and subsequently section 10 of the CCA 1980 which was in the same terms) set out the powers and duties of a local authority when a care order was made, which (in short) were “the same powers and duties with respect to a person in their care by virtue of a care order … as a parent or guardian would have”. From the date of the first interim care order, therefore, the defendant assumed parental responsibility for the claimant.

Part III of the CCA 1980 dealt with the treatment of children in the care of local authorities. The general duty to a child in care was identified in section 18(1) and was that “in reaching any decision as to a child in their care, a local authority shall give first consideration to the need to safeguard and promote the welfare of the child throughout his childhood”, giving “due consideration” to the child’s own wishes, “having regard to his age and understanding”.

Section 21 specified the various ways in which a local authority could discharge its “duty to provide accommodation and maintenance” for a child in care. It provided for a range of possibilities, including (a) fostering with approved foster parents (described in the section as “boarding out”), (b) a children’s residential home, of which there were two kinds, community homes and voluntary homes, (c) living with a parent, and (d) living with a relative or friend:

“(1)

A local authority shall discharge their duty to provide accommodation and maintenance for a child in their care in such one of the following ways as they think fit, namely, -

(a)

by boarding him out on such terms as to payment by the authority and otherwise as the authority may, subject to the provisions of this Act and regulations thereunder, determine; or

(b)

by maintaining him in a community home or in any such home as is referred to in section 80 of this Act; or

(c)

by maintaining him in a voluntary home (other than a community home) the managers of which are willing to receive him;

or by making such other arrangements as seem appropriate to the local authority.

(2)

Without prejudice to the generality of subsection (1) above, a local authority may allow a child in their care, either for a fixed period or until the local authority otherwise determine, to be under the charge and control of a parent, guardian, relative or friend.

(3)

The terms, as to payment and other matters, on which a child may be accommodated and maintained in any such home as is referred to in section 80 of this Act shall be such as the Secretary of State may from time to time determine.”

Thus the five possibilities listed in the section were not exhaustive, being qualified by the words “or by making such other arrangements as seem appropriate to the local authority”. Mr Davy submitted that there was a distinction between boarding out and a children’s home on the one hand (which he characterised as “mandatory”) and the charge and control of a parent, relative or friend on the other (which he characterised as “discretionary”), but in my view that is not a valid distinction. It is clear from the section that local authorities had a broad discretion as to the accommodation to be provided for a child in care, although the exercise of that discretion was subject to the general duty in section 18 to give first consideration to the need to safeguard and promote the welfare of the child.

Section 22 provided for the Secretary of State to make regulations for the welfare of children who were boarded out. The relevant regulations were the Boarding-Out of Children Regulations 1955 (as later amended although the amendments are not material) which prescribed the circumstances in which children might be boarded out and the supervisory duties of the local authority. The fundamental purpose of boarding-out appears from regulation 1 and the undertaking which foster parents were required to give, set out in the Schedule to the regulations. This was that a child was placed with foster parents “to live in their dwelling as a member of their family”. The undertaking was that “We/I … having … received … CD … into our/my home as a member of our/my family undertake that – we/I will care for C.D. and bring him/her up as we/I would a child of our/my own”. Thus the whole concept of fostering was to give a child something regarded by society as precious, namely the experience of family life.

The regulations required the local authority to visit the foster home and gave it the duty to remove a child if it appeared that boarding-out was no longer in the child’s best interest, while a supervising visitor was empowered to remove a child immediately if he or she considered that conditions in the home endangered the child’s health, safety or morals. However, the regulations did not give the local authority or its visiting social workers day-to-day control over the way in which the foster parents provided care for the child. That was a matter for the foster parents, consistently with the objective of giving the child a normal experience of family life.

The regime described above was that which applied during the periods when the claimant was fostered with Mr and Mrs A and Mr and Mrs B. The legal framework changed in October 1991 when the Children Act 1989 came into force, giving even greater emphasis to the welfare principle contained in section 1 of that Act. The duties of local authorities in relation to children “looked after” by them (which includes children in care) are set out in section 22 and following of the Act. Section 22C (inserted with effect from 1 September 2009 by the Children and Young Persons Act 2008) requires a local authority which is unable to arrange for such a child to live with one or both of its parents to arrange "the most appropriate placement available” and prescribes that in determining what is most appropriate, preference is to be given (other things being equal) to a placement with an individual who is a relative, friend or other person connected with the child and who is also a local authority foster parent over any other arrangement, including a placement with some other local authority foster parent or a registered children's home.

As Lord Phillips of Worth Matravers put it in Various Claimants v Catholic Child Welfare Society [2012] UKSC 56, [2013] 2 AC 1, “the law of vicarious liability is on the move.” The movement established by that case was to extend the categories of person for whom vicarious liability existed. It was no longer limited to employees of the defendant acting in the course of their employment, but extended to those who are not strictly speaking employees of the defendant but with whom the defendant has a relationship “akin to employment”. Accordingly a lay Roman Catholic order was held to be liable for sexual abuse committed by individual members of the order. The members were not employed by the order, but the order exercised a degree of control over them by reason of the vows which the members took and the hierarchical structure of the order. This was held to be sufficiently close to the relationship of employment to attract the principle of vicarious liability.

The issue in the present case is whether the relationship between the defendant local authority and foster parents with whom it places children in care is sufficiently akin to an employment relationship to render the defendant liable for acts of physical and sexual abuse perpetrated by the foster parents. This is the first stage of the two-stage test referred to by Lord Phillips at [21] of his judgment in the Various Claimants case. The defendant accepts that if the first stage test is satisfied, the second stage test will also be satisfied.

The typical case of vicarious liability is one where an employer is liable for the conduct of an employee. At [35] Lord Phillips identified five features of the employment relationship which usually make it fair, just and reasonable to impose vicarious liability in such cases:

“35.

The relationship that gives rise to vicarious liability is in the vast majority of cases that of employer and employee under a contract of employment. The employer will be vicariously liable when the employee commits a tort in the course of his employment. There is no difficulty in identifying a number of policy reasons that usually make it fair, just and reasonable to impose vicarious liability on the employer when these criteria are satisfied: (i) the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability; (ii) the tort will have been committed as a result of activity being taken by the employee on behalf of the employer; (iii) the employee’s activity is likely to be part of the business activity of the employer; (iv) the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee; (v) the employee will, to a greater or lesser degree, have been under the control of the employer.”

He added at [36] that in modern conditions where some employees will have skills which are not susceptible to direction by a superior the significance of this last feature, control, “is that the employer can direct what the employee does, not how he does it.”

The decision in the Various Claimants case was not only that vicarious liability exists where the relationship in question is not an employment relationship but one which is sufficiently “akin to employment”, but that this is to be determined by reference to the features identified at [35] of Lord Phillips’ judgment.

Before considering whether these features exist in the fostering relationship, I should refer to two authorities which have considered whether local authorities are vicariously liable for acts of negligence or abuse committed by foster parents.

In the first case, S v Walsall Metropolitan Borough Council [1985] 1 WLR 1150, the Court of Appeal held that the local authority was not vicariously liable for injuries suffered as a result of the negligence of foster parents. Giving the leading judgment, Oliver LJ rejected a submission that the relationship between the local authority and a foster parent was “a relationship of principal and agent or of a sufficient proximity” to give rise to vicarious liability. He held that the relationship was governed by the detailed statutory scheme set out in the Children Act 1948 and the Boarding-Out of Children Regulations 1955, the “whole scheme” of which was “that the child is to be committed to the foster parents, to be brought up as if that child was a member of the foster parents’ family, and as part of the foster parents’ home.” That was “inconsistent with any notion that the foster parents are in any way the agents of the local authority in carrying out their duties.” Although expressed in terms of agency, this reasoning is equally applicable to any submission that the relationship between a local authority and foster parents is akin to an employment relationship.

The second case is KLB v British Columbia [2003] 2 SCR 403, a decision of the Supreme Court of Canada. The court held, by a majority, that the government was not vicariously liable for acts of physical abuse committed by foster parents with whom it had placed children in care. Giving the majority judgment, McLachlin CJ applied a two-stage test very similar to that which was subsequently to be established in the Various Claimants case (see [19] of her judgment), including as one factor the level of control which the “employer” has over the “worker”. She concluded (in a passage which, despite its length, is worth setting out in full):

“23.

These factors suggest that the government is not vicariously liable for wrongs committed by foster parents against the children entrusted to them. Foster families serve a public goal – the goal of giving children the experience of a family, so that they may develop into confident and responsible members of society. However, they discharge this public goal in a highly independent manner, free from close government control. Foster parents provide care in their own homes. They use their own ‘equipment’, to use the language of Sagaz. While they do not necessarily ‘hire’ their own helpers, they are responsible for determining who will interact with the children and when. They gave complete control over the organization and management of their household; they alone are responsible for running their home. The government does not supervise or interfere, except to ensure that the child and the foster parents meet regularly with their social workers, and to remove the child if his or her needs are not met.

24.

The independence of the foster family is essential to the government’s goal of providing family care. If foster parents had to check with the state before making ordinary day-to-day decisions, they not only would be less effective as parents, but would be unable to deliver the spontaneous, loving responses and guidance that the children need. Foster families must be left to arrange their own family routine, in their own way. They must deal with day-to-day challenges and problems by working them out within the family, and by sharing responsibility for doing this, demonstrating to foster children that it is possible to resolve difficulties by working together. Moreover, foster children must know that their foster parents have this responsibility. Only in this way can foster children come to understand that authority figures can be loving and consistent and worthy of trust. Foster parents cannot function as loving and consistent authority figures unless they have some authority to exercise. Hence, while foster parents act in furtherance of a public purpose, they must operate independently of day-to-day state control if they are to meet the goals of foster care.

25.

The fact that foster parents must operate so independently in managing the day-to-day affairs of foster children and in resolving the children’s immediate problems, and the fact that they exercise full managerial responsibility over their own household are indications that, in their daily work, they are not acting on behalf of the government. It is also important to note, in this connection, that they do not hold themselves out as government agents in the community; nor are they perceived as such. Although foster parents are indeed acting in the service of a public goal, their actions are too far removed from the government for them to be reasonably perceived as acting ‘on account of’ the government in the sense necessary to justify vicarious liability.

26.

This conclusion finds confirmation in the fact that imposing vicarious liability in the face of a relationship of such independence would be of little use. Given the independence of foster parents, government liability is unlikely to result in heightened deterrence. Exacting supervision cannot prevent abuse when the supervising social worker is absent, as must often be the case in a private family setting. Nor is stricter monitoring a real option. Governments can and do provide instruction and training to foster parents. They can and do put in place periodic monitoring. They can and do encourage social workers to develop communication between social workers and foster children. These are now standard practice and are encouraged by direct liability. But given the nature of foster care, governments cannot regulate foster homes on a day-to-day basis. Imposition of vicarious liability can do little to deter what direct liability does not already deter. Not only would imposing vicarious liability do little good; it could do harm. It might deter governments from placing children in foster homes in favour of less efficacious institutional settings. And it would raise the question of why the government should not be vicariously liable for other torts by foster parents such as negligent driving causing injury to a foster child. While these concerns might not be insurmountable, they tend to confirm the conclusion that the relationship between foster parents and the government is not close enough to support a finding that the government is vicariously liable.”

I respectfully agree with this reasoning which although stated by reference to Canadian law and practice applies with equal force to the statutory and regulatory regime applicable in this country at the relevant time. In short, applying the tests referred to in the Various Claimants case, the decisive point is that the defendant local authority not only does not have control over the foster parents, whether to direct what they do or how they do it, but that it is essential to the whole concept of foster parenting that the local authority should not have that control. The foster parents’ role is to provide family life, bringing up the child as a member of their own family. That is only possible if a foster parent enjoys independence from direction by the local authority and autonomy to determine how the child should be parented.

Although the first and fourth features identified by Lord Phillips are present (the local authority is more likely to have the means to compensate a claimant and will have insurance, and by placing the child with the foster parents the local authority will have created the risk of abuse being committed by the foster parents), the remaining features are not. The foster parent does not provide family life on behalf of the local authority; rather the local authority promotes the welfare of the child by placing it in a home where it can be expected to benefit from family life. The provision of and participation in family life is not part of the activity of the local authority. The foster parents are not to any material degree under the control of the local authority.

In summary, although I have expressed the position in my own words, I agree with the conclusion of HHJ Godsmark QC in the Nottingham County Court on this issue in his valuable judgment in the case of JB v Leicestershire County Council (6 June 2014) at [86] to [98], where the same issue arose.

Mr Davy for the claimant submitted that the most significant reason why vicarious liability should be imposed in this case is that without it (and subject to the non-delegable duty issue) a child in foster care would be left without redress against a local authority, whereas a child placed in a residential home who was abused by employees of the local authority would have such redress (Lister v Hesley Hall Ltd [2001] UKHL 22, [2002] 1 AC 215). This, he submitted, was an anomaly which ought not to exist in circumstances where the child has no control over the local authority’s decision whether to place him or her in a foster home or a residential home. I accept that a child in foster care will not have redress against the local authority on the basis of vicarious liability, whereas a child in a residential home will have, but that is not an anomaly which needs to be corrected by an unprincipled extension of the law of vicarious liability. Rather it is a reflection of the genuinely different circumstances of life in a foster home and children’s residential home respectively and the application of what are now established principles to determine the circumstances in which vicarious liability exists.

Accordingly the defendant is not liable on the basis of vicarious liability.

The circumstances in which a tortious non-delegable duty of care will arise, that is to say in which a defendant not personally at fault will be liable for the negligence of third parties with whom it has neither an employment relationship nor a relationship akin to employment, were considered by the Supreme Court in Woodland v Essex County Council [2013] UKSC 66, [2014] AC 537. As Lord Sumption indicated at [11], the concept of assumption of responsibility has an important role to play here. The circumstances must be such that the defendant can be taken to have assumed responsibility for the exercise of due care by third parties to whom it delegates the performance of its duty to protect the claimant from harm. In this connection statements of principle by Lord Greene MR in Gold v Essex County Council [1942] 2 KB 293 and by Denning LJ in Cassidy v Ministry of Health [1951] 2 KB 343 were approved. These involved a recognition that a duty in tort can be assumed, not merely to exercise care but (in effect) to ensure that reasonable care is taken by any person engaged to perform the defendant’s obligation, and that this could be so (for example in the case of a hospital) regardless of any contract of employment with that person and regardless of the fact that the obligation in question was one which the defendant could never perform itself. However, Lord Sumption (giving the principal judgment) emphasised that such cases represented the exception rather than the rule, the rule being that liability in tort depends on fault, either of the defendant itself or of those employees and others for whom the defendant is vicariously responsible.

After reviewing the authorities Lord Sumption stated the position in these terms:

“22.

The main problem about this area of the law is to prevent the exception from eating up the rule. Non-delegable duties of care are inconsistent with the fault-based principles on which the law of negligence is based, and are therefore exceptional. The difference between an ordinary duty of care and a non-delegable duty must therefore be more than a question of degree. In particular, the question cannot depend simply on the degree of risk involved in the relevant activity. The ordinary principles of tortious liability are perfectly capable of answering the question what duty is an appropriate response to a given level of risk.

23.

In my view, the time has come to recognise that Lord Greene in Gold and Denning LJ in Cassidy were correct in identifying the underlying principle, and while I would not necessarily subscribe to every dictum in the Australian cases, in my opinion they are broadly correct in their analysis of the factors that have given rise to non-delegable duties of care. If the highway and hazard cases are put to one side, the remaining cases are characterised by the following defining features:

(1)

The claimant is a patient or a child, or for some other reason is especially vulnerable or dependent on the protection of the defendant against the risk of injury. Other examples are likely to be prisoners and residents in care homes.

(2)

There is an antecedent relationship between the claimant and the defendant, independent of the negligent act or omission itself, (i) which places the claimant in the actual custody, charge or care of the defendant, and (ii) from which it is possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm, and not just a duty to refrain from conduct which will foreseeably damage the claimant. It is characteristic of such relationships that they involve an element of control over the claimant, which varies in intensity from one situation to another, but is clearly very substantial in the case of schoolchildren.

(3)

The claimant has no control over how the defendant chooses to perform those obligations, i.e. whether personally or through employees or through third parties.

(4)

The defendant has delegated to a third party some function which is an integral part of the positive duty which he has assumed towards the claimant; and the third party is exercising, for the purpose of the function thus delegated to him, the defendant's custody or care of the claimant and the element of control that goes with it.

(5)

The third party has been negligent not in some collateral respect but in the performance of the very function assumed by the defendant and delegated by the defendant to him.”

Lord Sumption added at [24] that:

“Where a non-delegable duty arises, the defendant is liable not because he has control but in spite of the fact that he may have none. The essential element in my view is not control of the environment in which the claimant is injured, but control over the claimant for the purpose of performing a function for which the defendant has assumed responsibility.”

Even when the five “defining features” referred to above are present, it remains to consider whether it is fair, just and reasonable to impose a non-delegable duty. Lord Sumption held that it was in the case of a school whose responsibility is to educate children and who exercise authority and control over them for that purpose which is delegated to independent contractors (in that case, a swimming teacher and a lifeguard) for the purpose of performing part of the school’s own educational function. He stated:

“25.

The courts should be sensitive about imposing unreasonable financial burdens on those providing critical public services. A non-delegable duty of care should be imputed to schools only so far as it would be fair, just and reasonable to do so. But I do not accept that any unreasonable burden would be cast on them by recognising the existence of a non-delegable duty on the criteria which I have summarised above. My reasons are as follows: …”

The reasons which then follow deserve careful study, but need not be quoted at length here. They are, not surprisingly, focused on the position of the local authority school with which the case was concerned. But I would draw attention to five aspects of those reasons. First, as appears from the passage quoted above, it is necessary to be sensitive about imposing unreasonable financial burdens on those providing critical public services. Second, it is the policy of the law to protect those who are both inherently vulnerable and highly dependent on the observance of proper standards of care by those with a significant degree of control over their lives. Third, liability for the negligence of independent contractors applies only if and so far as the independent contractors are performing functions which the defendant has assumed for itself a duty to perform, as distinct from a duty to arrange for performance of the relevant function. Fourth, it was material that until relatively recently, most of the functions now routinely delegated by schools to independent contractors would have been performed by staff for whom the authority would have been vicariously liable. Indeed the examples of a prison and a care home suggest that Lord Sumption had such outsourcing in mind: if not, the principles of vicarious liability would suffice. Fifth, it was material also that the responsibilities of fee-paying schools were already non-delegable because they are contractual. There was no rational reason why there should be a different result when comparable services were provided by a public authority.

Lady Hale, with whom the other members of the court also agreed, added that:

“38.

I also agree that the principle will apply in the circumstances set out by Lord Sumption at paragraph 23, subject of course to the usual provisos that such judicial statements are not to be treated as if they were statutes and can never be set in stone.

…

40.

I also agree with Lord Sumption that recognising the existence of a non-delegable duty in the circumstances described above would not cast an unreasonable burden upon the service-providers for all the reasons he gives. It is particularly worth remembering that for the most part public authorities would have been vicariously liable to claimants who were harmed in this way until the advent of outsourcing of essential aspects of their functions.”

As applied to the present case I would respectfully summarise the legal principles which emerge from Woodland as follows:

The defendant accepted that the first two defining features identified by Lord Sumption are present in the case of foster parents. The claimant was a child who was taken into care, initially because her mother and stepfather had ill treated one of her siblings and were unable to cope, and who remained in care because she and her mother were unable to live together permanently without social work support and (as events demonstrated) were sometimes unable to do so even with that support. The relationship between the claimant and the defendant local authority existed before and was independent of the acts of abuse of which the claimant complains. It was created by the care order (or possibly by the removal of the claimant from the family home) even before the first interim care order was made. It gave rise to the statutory responsibilities imposed on the defendant local authority by the legislative provisions described above.

There is an issue as to the third defining feature, which is that the claimant has no control over how the defendant chooses to perform its obligations. The defendant accepted that in fact the claimant had no control over the decisions which the defendant made, either to place her with foster parents (and if so, with whom) or to place her in a residential home, at any rate when she was placed with Mr and Mrs A at the age of 7½ and with Mr and Mrs B at the age of ten, although at those ages she was very unlikely to have been placed in a residential home, those being generally for older children. She was on both occasions too young for her views to carry weight and, to the extent that she expressed any views, they were to the effect that she wanted to go home. However, a local authority had a legal duty under section 18(1) of the CCA 1980 to give “due consideration” to a child’s own wishes “having regard to his age and understanding” and, as a child became older, those wishes were likely to play an increasingly significant part in the local authority’s decision making. Mr Ford for the defendant submitted that the requirement on the local authority to give due consideration to a child’s own wishes meant that Lord Sumption’s third defining feature was not present – children in care, he submitted, could not be regarded as having no control over how the local authority chose to perform its obligations because the local authority was obliged to give due consideration to their views.

I reject this submission. It is unrealistic in the case of a young child who in practice had no real say in what should happen to her, such as the claimant was when she was placed with the foster parents in this case. It involves treating the five defining features as if they were set in stone as distinct from being practical indications of the circumstances in which a non-delegable duty may be imposed. Whatever the position may be in the case of an older child who did in practice have a significant input into a local authority’s decision-making, although even then the child has only a right to have his or her wishes considered, the claimant was a child who had no control over how the defendant chose to perform its obligations.

The critical issue is whether the fourth defining feature is present – that is to say, whether the local authority delegates to foster parents some function which is an integral part of its own positive duty owed to a child in care. This must depend on identification of the relevant duty which the local authority owes. Mr Davy for the claimant submitted that the positive duty which the local authority undertook and which it delegated to the foster parents was a broad duty to care for the child and to promote its welfare, one (but only one) aspect of which was a duty to accommodate and maintain the child in one of the ways set out in section 21 of the CCA 1980. Mr Ford for the defendant submitted that the relevant duty was merely to arrange for accommodation and maintenance.

The local authority had to make a decision, when it took a child into care, whether to place the child with foster parents or in a residential home, or for that matter to take one of the other courses contemplated by section 21. That was a “decision as to a child in their care” and accordingly the local authority owed a duty in accordance with section 18 of the Act to give first consideration to the need to safeguard and promote the welfare of the child. A failure to exercise reasonable care in the making of that decision would give rise to liability in tort, for example if foster parents with whom a child was placed were not properly trained or were otherwise unsuitable, or if a decision to place the child back with its parents (who ex hypothesi had been found wanting in their care of the child in the first place) was beyond the reasonable margin of professional judgment after weighing appropriately the risks and benefits of such a placement. The same duty applies to any other decision which the local authority needs to make, for example whether to remove a child from a placement.

There is no express wider duty in the statutory provisions such as that for which the claimant contends. However, it is implicit in the whole concept of taking a child into care that a local authority is under a duty to care for the child – to promote its welfare and to protect it from harm. That is the justification for taking the child into care in the first place. I would therefore accept Mr Davy’s submission that the local authority owes such a duty to a child in care.

Where the local authority’s decision (ex hypothesi, a decision reasonably made in the interests of the child’s welfare) is to accommodate the child in a children’s home, it is easy to see that the local authority will continue to owe a duty to take reasonable care for the safety of the child and will be vicariously responsible for acts of negligence or deliberate abuse committed by its employees in the course of their employment in caring for the child. But the analysis is different in the case of a child placed in foster care or placed under the control of a parent, relative or friend. In such a case the local authority is deliberately giving up its ability to make day to day decisions concerning the child and is handing over control to the person with whom the child is placed.

In my judgment this situation falls precisely within the scope of the fourth defining feature identified by Lord Sumption. The positive duty which the local authority assumes is to care for the child. That includes but is not limited to the duty to care for the child’s material needs by providing accommodation and maintenance. That particular duty is “discharged” by placing the child in appropriate accommodation pursuant to section 21 of the CCA 1980, but the broader aspects of the duty remain. Care and protection of the child from harm, which is an integral part of the overall duty, is delegated to the foster parent or other person with whom the child is placed. The child is placed in the foster parent’s care for that purpose and it is the foster parent who exercises the day to day care of the child that goes with such care.

I recognise that Mr Ford for the defendant advanced some important arguments in relation to this fourth feature (for example, that by its very nature the local authority cannot provide family life and that if the local authority is liable without fault for the acts of foster parents, it must also be liable for the acts of others with whom a child may be placed including the child’s own parents which (he said) cannot be correct. In my judgment, however, those arguments do not affect the analysis above. They are better considered under the heading of “fair, just and reasonable”.

Subject to one qualification, it was not in dispute that if the fourth feature is present, as I hold that it is, the fifth feature (negligence in the performance of the very function delegated) is present also. The qualification is that the fifth feature as described by Lord Sumption refers to responsibility for “negligence” on the part of the delegate, here the foster parent, whereas the abuse of which the claimant complains was not negligent but deliberate. Mr Ford’s principal submission in this connection was at a later stage of the argument, namely that the delegated duty was a duty not to act negligently, so that deliberate assaults did not involve any breach of the delegated duty. I will return to the point in that connection. For the moment it is sufficient to say that the reference to “negligence” in the fifth feature reflects the nature of the breach of duty on the facts of the Woodland case. I would not regard it as determining that non-delegable duties can only ever exist when the delegate’s impugned conduct consists of a failure to take reasonable care.

I conclude (again in agreement with HHJ Godsmark QC in JB v Leicestershire County Council) that the five features identified by Lord Sumption are present in the case of fostering of children in care. I must therefore consider whether it would be fair, just and reasonable for a non-delegable duty to be imposed on the local authority. Judge Godsmark concluded that it would be, his essential reasoning being that the local authority takes control of the life of a child, deciding where the child should live and with whom, and that members of the public would struggle to understand why the local authority should be liable for abuse perpetrated by its staff in a children’s home, but not by foster parents selected and approved by the local authority. It is at this point that I respectfully part company with his reasoning. I conclude that it would not be fair, just and reasonable to impose a non-delegable duty on the defendant local authority.

I recognise the importance of the need to protect vulnerable children and the general principle that where there is a wrong, the law should provide a remedy, but it is not correct to say that an abused child will have no remedy if a non-delegable duty is not imposed on the local authority. There will always be a remedy against the abusers and some foster parents will have the means to satisfy a judgment, particularly if they are homeowners, though not all will. In that respect children abused by foster parents are no worse off than children abused by anybody else for whom there is no question of local authority responsibility. The question is not whether abused children should have a remedy but whether it is fair, just and reasonable to impose an exceptional no-fault duty on the local authority in the case of foster parents by reason of the control which the local authority exercises over the child in determining where the child should live.

My reasons for concluding that it would not be fair, just and reasonable for a non-delegable duty to be imposed are as follows. First, I consider that it would impose an unreasonable financial burden on local authorities providing a critical public service. The evidence of Jayne Austin, the defendant’s fostering service manager, is that since the death of Peter Connolly (“Baby P”) and the subsequent national scrutiny of social work practice, there has been an unprecedented rise in the number of children in care in Nottinghamshire, from 488 in 2008 to 906 in 2013, with 838 children in care at the end of February 2014. There is no reason to think that this picture of dramatically increased demand is different elsewhere. Of these 838 children, 634 were placed in foster care. Ms Austin’s evidence confirms what was in any case the evidence of the social care experts, that wherever it is considered safe and appropriate to do so, children in care are placed in foster care because it is a fundamental principle of social work practice that children are best placed in a family environment where they can grow up in a family unit. She explains that the process of becoming a foster carer involves extensive safeguarding and reference checks, assessment of potential to foster by a supervisory social worker and attendance at pre-approval training.

So far as historic abuse is concerned, there is now nothing which the defendant can do to ensure better protection of children who were in its care. The abuse which happened to the claimant in 1985-6 and 1988 is in the past and the only question is whether the defendant must compensate the claimant (and others in her position) financially for such abuse. If so, the funds used to do so will not be available to meet current urgent needs. But it is also Ms Austin’s evidence that if the defendant were held liable for abuse suffered by children at the hands of foster parents even where it had taken all reasonable steps to ensure that the child was safe in the placement, there would be a significant financial impact on the defendant council in terms of increased supervision of foster carers, recruitment practice and increased ongoing training requirements. All of this costs money. Her assessment is that these factors could easily affect the defendant’s capacity to maintain its provision of foster care resources. It is no answer to this that liability would be covered by insurance. Even assuming such insurance to be available, it still has to be paid for and money spent on increased premiums is not available for other purposes.

In my judgment this evidence gives rise to real concern. It is strongly in the public interest that local authorities such as the defendant should maintain their capacity to provide fostering services at a time of high demand, and that scarce and finite resources should be employed to best effect, that is to say in ensuring that vulnerable children currently in need of foster care are able to benefit from the experience of family life which fostering provides. That is not in any way to belittle the claimant’s experience of abuse at the hands of the foster parents with whom she was placed or to say that it does not deserve such compensation as the law can provide, but it does represent a powerful reason why an exceptional remedy, the availability of a non-delegable duty permitting recovery against a defendant not personally at fault, should not be extended to cover responsibility for abuse by foster parents.

I would add in this regard that the financial compensation which is all that the law of tort can provide constitutes a blunt and unsatisfactory form of recompense for the abuse which the claimant has suffered. A monetary award cannot restore to the claimant that part of her childhood which was blighted by the abuse inflicted by her foster parents. Nor can it wipe away the painful and disturbing memories of that abuse or eliminate such part of her ongoing problems as are attributable to the abuse. But the money which would have to be paid to the claimant (and others in her position) if a non-delegable duty were to be imposed could make a real and tangible difference to the life chances of vulnerable children currently in need of foster care.

Second, there is in my judgment a real danger that the imposition of a non-delegable duty would promote, consciously or sub-consciously, what Ms Austin describes as “risk averse foster parenting.” In other words, even where reasonable steps had been taken to ensure the suitability of foster parents, a local authority could be reluctant to place children with them or to do so without requiring additional and objectively unnecessary further checks. This was a concern expressed in the context of vicarious liability by McLachlin CJ in the Canadian case of KLB v British Columbia [2003] 2 SCR 403 at [26]. It applies equally here. In the nature of things, it is impossible to be precise about this or to measure the risk with any degree of accuracy, but I see no reason to doubt that the risk exists and that the imposition of a non-delegable duty could operate to prejudice some children currently in need of foster care.

Third, there is in my view a fundamental distinction between a placement with foster parents and a placement in a children’s home. The former provides the experience of family life which is the cultural norm in our society. The latter does not. For the reasons so compellingly explained at [23] to [26] of the judgment in KLB v British Columbia, it is inherent in foster care placements that the local authority does not have the same control over the day to day lives of children in foster care that it has over children in residential homes. That is a benefit to the children in foster care and is necessary in order to give them the experience of family life which is the purpose of fostering. As fostering necessarily involves a release of the control which the local authority has over a child, it may in a sense be regarded as inherently risky. But with the risks come the benefits which life in a children’s home cannot provide. Provided that all necessary reasonable care has been taken to ensure that the foster parents and the placement are suitable, those are risks which will generally be worth running in order to obtain for a child the benefits of family life. I do not think that members of the public would struggle to understand that different considerations apply to the legal responsibilities of local authorities in the two situations, or would regard it as unacceptable for liability to exist in one case and not in the other. Accordingly I do not accept what Mr Davy described as the strongest argument in favour of a non-delegable duty, namely that a child placed with foster parents ought as a matter of policy to have the same no-fault remedy against a local authority as a child placed in a residential home who is abused by local authority employees.

Fourth, it would in my judgment be difficult to draw a principled distinction between liability for abuse committed by foster parents and liability for abuse committed by others with whom a local authority decided to place a child, including its own parents. It was (and is) on the evidence very common for a child in local authority care, and for whom the local authority therefore had parental responsibility, to be allowed to live with its natural parents, either full time or for part of the time. That was of course what happened to the claimant. It requires a careful balancing of risks and benefits – risks, because the parents’ inability to cope and sometimes their ill treatment of the child will have been the reason why the child was taken into care in the first place; benefits, because if it can be made to work, living with the child’s natural parent or parents is likely to represent the best prospect of a successful outcome for the child. But if the local authority is to be liable on the basis of a non-delegable duty even where it has exercised all proper care to ensure that it is safe and in the child’s best interests to return to live with its parent or parents and where appropriate ongoing support is provided, local authorities are likely to be unwilling to take the risk. The children concerned will therefore lose the opportunity to obtain the real benefits of living with and forming successful relationships with their natural parents.

Mr Davy submitted that even if a non-delegable duty were to be imposed in the case of foster parents, that would not apply in the case of a return while in care to live with a child’s natural parent or parents, the relevant distinction between the two cases being that the foster parents had to be approved by the local authority. I do not accept that this is a relevant ground of distinction. In both cases the local authority had to make a decision, giving first consideration to the need to safeguard and promote the welfare of the child as required by section 18 of the CCA 1980. The fact that there was a formal process for the approval of foster parents does not mean that return to live with a parent did not also need to be very carefully considered.

However, Mr Davy’s recognition that it would not be right to make the local authority liable for breach of a non-delegable duty in the case of ill treatment by natural parents with whom the child in care is allowed to live carries with it a recognition that a line has to be drawn somewhere. Mr Davy submitted that the line was to be drawn between approved foster carers (for whom the local authority would be responsible) and others including natural parents (for whom it would not). To my mind, however, there is no valid ground for drawing the line in that way. Once it is recognised that the local authority’s liability on the basis of a no-fault non-delegable duty should not extend to all cases where in the exercise of its parental responsibility it places a child with a family, the better view is that there should not be a non-delegable duty in such cases at all and that the ordinary principles of tort law (including the principle of vicarious liability) should govern the local authority’s liability.

Fifth, although this cannot be decisive, it is also material that neither of the factors noted above which weighed with the Supreme Court in Woodland has any application to fostering. There is no question of any unfair distinction between those who can pay, and therefore obtain the benefit of a contractual non-delegable duty, and those who cannot. Nor is there any question of a local authority once having provided fostering services itself, but subsequently deciding to outsource their provision.

Finally, I note that although the Supreme Court of Canada in KLB v British Columbia (2003) 2 SCR 403 was not directly applying the legal framework established by the Woodland case, the majority in that case concluded that the applicable Canadian legislation provided no basis for imposing a non-delegable duty to ensure that no harm comes to children through the abuse or negligence of foster parents:

“36.

The legislation offers no basis for imposing on the Superintendent a non-delegable duty to ensure that no harm comes to children through the abuse or negligence of foster parents. Foster parents provide day-to-day care for the children. But the Act does not suggest that the Superintendent is responsible for directing this day-to-day care and for ensuring that no harm comes to the children in the course of this care. In this respect, the Act differs significantly from the statutes at issue in Lewis, supra, which imposed a duty on the Minister of Transportation and Highways personally to direct and manage the maintenance and repair works. Although the Act makes the Superintendent solely responsible for the well-being of a child before placement, it does not suggest that this is work for which the Superintendent retains responsibility after placement. Indeed, if the Superintendent were responsible for all of the wrongs that might befall the children in foster care, there would be no need to set out his particular duties with respect to placement and supervision.

37.

I conclude that the doctrine of non-delegable duty does not assist the appellants.”

The conclusion that it would not be fair, just and reasonable to impose a non-delegable duty on the defendant means that this way of putting the claim must fail. It is therefore unnecessary to deal in any detail with the second limb of the defendant’s argument under this heading, namely that the duty which is delegated is the duty not to act negligently, with the consequence that the defendant cannot be liable for acts of abuse which are not negligent but deliberate. Mr Ford emphasised that the causes of action which the claimant had against Mrs A and Mr B were not for negligence but for trespass to the person. He submitted that the defendant cannot be liable for trespass by the foster parents on the basis of a theory that it remains responsible for the exercise of care by those to whom it has delegated performance of its own duty, when what the foster parents have done was not a failure to exercise care on behalf of the defendant but the deliberate infliction of harm. I would not have accepted this argument. The defendant’s duty was to care for the child, which includes protecting it from harm however inflicted. If I had held that the defendant’s duty was non-delegable, I would have held that the defendant was responsible in law for the deliberate abuse of a child by the person to whose care the child was committed.

I began this judgment by saying that the claimant had a very unhappy childhood which has cast a long shadow over her life. I have found that she never enjoyed (at any rate for any length of time) what most people take for granted, a secure and loving relationship with her mother; that she was subject to physical abuse from and sometimes lived in fear of her stepfather; and that she was beaten in one of her foster placements and sexually abused in another. This is a desperately sad story, though it may be that it is not as unusual as one might hope. It is not surprising that the claimant has struggled at every stage of her life so far.

Nevertheless I conclude (in agreement in the end with the claimant’s own expert in social care) that the defendant’s social workers responsible for her case were not negligent. They acted reasonably in accordance with the professional standards of the day. I conclude also that the defendant council, having exercised reasonable care in the selection, supervision and monitoring of the foster parents with whom the claimant was placed, is not responsible in law for the abuse which they perpetrated. The defendant is not vicariously liable for abuse committed by foster parents with whom the claimant was placed. Nor is the defendant liable on the basis of a non-delegable duty. Accordingly there must be judgment for the defendant in this action.

Although the trial was held in public, I made an order at the outset that until judgment there should be no report of the name, address or any other information which might lead to the identification of the claimant or any witness of fact (other than past or present employees of the defendant council and the defendant’s solicitor). I did so in view of the nature of the allegations made, in order to protect the interests of those concerned. I now continue that order pursuant to CPR 39.2(4) and have anonymised this judgment accordingly. However, the order for anonymity will cease to apply in respect of any person who notifies the court in writing that they are content for their names to be identified. In addition there will be liberty to apply to enable any interested person to challenge the order for anonymity, on notice to the parties’ solicitors so that they can notify those whose rights may be affected by any disclosure of their identity.