Judgment -House of Lords - Barret (A.P.) v. London Borough of Enfield  continued

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My Lords,

The history of the plaintiff, the relevant statutory provisions, the nature of the plaintiff's claim and the proceedings to strike out that claim have been fully set out in the speech of my noble and learned friend Lord Slynn of Hadley which I gratefully adopt and need not repeat.

The particulars of common law negligence pleaded by the plaintiff are copious. The principal complaints are helpfully summarised by the Master of the Rolls, [1998] Q.B. 367, 372H, as follows:

     "Among the complaints which are made are failing to arrange for the plaintiff's adoption, inappropriate placements with foster parents and community homes and the lack of proper monitoring and supervision of the plaintiff while he was at the different placements. There is also criticism of the failure to obtain appropriate psychiatric treatment for the plaintiff and an allegation of failing properly to manage the reintroduction of the plaintiff to his mother in 1986 after he had not seen her for 11 years. Reference should also be made to the criticism of how his relationship with his half-sister was managed."

At this early stage in the proceedings when regard can be had only to the particulars of claim and to the medical reports filed on the plaintiff's behalf, the weightiest complaint advanced by the plaintiff appears to be that the defendant failed to place him for adoption, which resulted throughout the years of his childhood and youth in him having no settled home but in moving about between a number of foster parents, interspersed with periods in residential institutions. He claims that it was this disturbed and unsettled life, with no firm background of family love and affection, which caused the psychiatric damage which he claims he suffered.

It appears that when he was aged 1 year and 10 months Mrs. Kearnes, who was an unqualified welfare assistant, became the plaintiff's social worker. Then, at a later stage, when he was aged 7 years and 10 months Mrs. Kearnes and her husband became his foster parents and he remained with them until he was aged 14. A further head of complaint is that the defendant failed to supervise and manage adequately the care of the plaintiff. This head of complaint is described as follows in the report of the psychologist, Mr. Brendan Clowry whose report has been filed on behalf of the plaintiff:

     "There was also, in my view a lamentable lack of thought about the nature of the Kearnes involvement with these children.

     "The slide from unqualified case worker, into the role of social aunt and uncle, and then into foster parents, appears not to have been subject to any significant analysis or reflection.

     "Part of the importance of adequate professional supervision is to ensure that professional boundaries are maintained, and that workers, particularly those with limited experience and qualifications do not lose their professional perspective, and become emotionally over-involved.

     "Senior management in the field of Social Work has a duty to its clients to maintain such procedures to maintain an adequate level of professional practice and thus preserve adequate levels of service delivery.

     "For the above and other reasons, I am of the opinion that by failing to think clearly about this case from early on in this young man's life, the Local Authority significantly prejudiced his life changes.

     "It is not possible, post hoc, to say with certainty that Mr. Barrett would not have had psychological difficulties had his welfare needs been pursued satisfactorily and with greater care, but on the balance of probabilities, it is my view that negligent management of his care has been a significant causal determinant of his current psychological difficulties."

The Court of Appeal upheld the decision of the County Court Judge, Judge Brandt, to strike out the plaintiff's claim as disclosing no reasonable cause of action on two main grounds. The first ground was that the plaintiff was not entitled to claim that the defendant was guilty of negligence in exercising powers and discretion given to it by statute. The Master of the Rolls stated at p. 375D:

     "The complaints which go to the heart of the plaintiff's claim are all ones which involve the type of decisions which an authority has to take in order to perform its statutory role in relation to children in its care. The decision whether or not to place the child for adoption; the decision as to whether to place a child with particular foster parents; the decision whether to remove a child from a foster parent; the decisions as to the child's relationship with his mother and sister; all involve the exercise of discretion in the performance of the differing statutory responsibilities of the local authority."

And Evans L.J. stated at p. 379G:

     ". . . the defendant cannot be held liable for breach of any putative common law duty when he has acted within the scope of his statutory responsibilities."

The second ground was that, even if the plaintiff's claim was not barred on the ground that it alleged negligence in the exercise of statutory discretions, it would not be just and reasonable to impose liability for negligence on the local authority and its social workers in discharging their responsibilities to a child like the plaintiff. A number of reasons were given by the Court of Appeal as to why it would not be just and reasonable to impose such liability to which I will return at a later stage in this judgment. The negligent exercise of a statutory discretion

In Lonrho Plc. v. Tebbit [1991] 4 All E.R. 973, 980J Browne-Wilkinson V.-C. stated:

     "It is clear that the fact that the allegedly negligent act was done in the course of exercising statutory powers is not by itself fatal to a claim in negligence: see Home Office v. Dorset Yacht Co. Ltd. [1970] 2 All E.R. 294, [1970] A.C. 1004. It is equally clear that in some cases the exercise of statutory powers does not give rise to a private law duty of care: see David v. Radcliffe [1990] 2 All E.R. 536, [1990] 1 W.L.R. 821. The difficulty is to define in what circumstances a private law duty of care will be held to arise."

In some circumstances the exercise of a statutory duty or power may itself create the relationship between the plaintiff and the defendant which causes the common law duty of care to come into existence. This was made clear in the judgment of Lord Greene M.R. in Fisher v. Ruislip-Northwood Urban District Council and Middlesex County Council [1945] K.B. 584 where a local authority was held liable for common law negligence for failing to light an air-raid shelter erected on the highway in pursuance of statutory powers. Lord Greene M.R. stated at p. 595:

     "Negligence is the breach of a duty to take care. That duty arises by reason of a relationship in which one person stands to another. Such a relationship may arise in a variety of circumstances. It will, to take a simple instance, arise when a person exercises his common law right to use the highway--by doing so he places himself in a relationship to other users of the highway which imposes upon him a duty to take care. Similarly, if the right which is being exercised is not a common law right but a statutory right, a duty to use care in its exercise arises, unless, on the true construction of the statute, it is possible to say that the duty is excluded."

And at p. 615:

     "I think that the suggested distinction between a statutory power and a common law power does not exist where all that the statute does is to authorize in general terms the construction of an obstacle on the highway which will be a danger to the public unless precautions are taken. To repeat what I ventured to say earlier in this judgment, the undertakers in each case, by exercising a power, in the one case statutory, and in the other at common law, place themselves in a relationship to the public which from its very nature imports a duty to take care."

And in Dorset Yacht Co. Ltd. v. Home Office [1970] A.C. 1004, 1056D Lord Pearson said:

     "Be it assumed that the defendants' officers were acting in pursuance of statutory powers (or statutory duties which must include powers) in bringing the Borstal boys to Brownsea Island to work there under the supervision and control of the defendants' officers. No complaint could be made of the defendants' officers doing that. But in doing that they had a duty to the plaintiffs as 'neighbours' to make proper exercise of the powers of supervision and control for the purpose of preventing damage to the plaintiffs as 'neighbours.'"

In the High Court of Australia in Sutherland Shire Council v. Heyman (1985) 157 C.L.R. 424, 459 Mason J. stated: