Law Report: Child in care cannot sue council: X (minors) v Bedfordshire County Council - Queen's Bench Division (Mr Justice Turner), 12 November 1993

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The Independent Culture
A child in care has no right to bring a private law action against a local authority for failure to discharge statutory duties under child care legislation or for negligence in discharging its duties.

Mr Justice Turner, giving judgment in open court, struck out the plaintiffs' statement of claim against the council. Five infant plaintiffs, suing by the Official Solicitor, claimed damages as a result of the council's negligence and/or breach of statutory duty. They alleged that the council had failed to discharge its statutory functions under the Children and Young Persons 1969, the Local Authority Social Services Act 1970, the Child Care Act 1980 and the Children Act 1989 (the Child Care Acts). The council applied to strike out the action on the grounds that the Child Care Acts did not confer any private law right of action for a breach of the statutes, that a local authority's exercise of its powers under the child care legislation could be challenged only by judicial review and that no claim in negligence was recognised.

Ian Karsten QC and Lord Meston (Vizards) for the council; Allan Levy QC and Elizabeth Anne Gumbel (Conway Wood & Co, Harpenden) for the plaintiffs.

MR JUSTICE TURNER said that it was not the intention of Parliament to confer on a child injured as the result of a failure of a local authority to comply with the duties imposed on it by any of the Child Care Acts a private law right of action. The House of Lords negatived the existence of a private law right in A v Liverpool City Council (1982) AC 363. The principle of stare decisis applied. There was not only no obvious intention on the part of the legislature to disturb the effect of the Liverpool City Council case, but the 1989 Act pointed strongly in the other direction.

If the local authority might be liable in a private law action for breach of a statutory duty, so too might other agencies involved, such as police, health and education authorities. That might be a sufficient indication that Parliament did not contemplate the possibility of actions for damages for personal injury arising out of alleged failings by any of the agencies involved. The duty which a local authority was called upon to discharge was one imposed on it by law and was not voluntarily assumed.

Turning to the claim in negligence, although the fact that hitherto no tort of negligence by a local authority towards children had been recognised did not mean that the law should not recognise such a tort, there would have to exist compelling reasons of social policy before such a tort should be recognised.

The whole point of the legislation was that the child should be rescured through the machinery which the local authority was obliged by the legislation to operate to protect him or her from the inadequacies of his or her parents of carers.

However it was neither just nor reasonable that a private law action should be brought, for it was contrary to the public interest that such actions should be permitted. Such actions would not assist local authorities to discharge their duty towards others to whom their efforts should be directed.

Scarce resources would be diverted into investigating such actions and the content of records maintained by the local authority would come into the public domain and that would not be in the interests of the child and might lead to guarded or defensive record keeping to the disadvantage of others. Considerations of public policy denied the proposition there should now be declared to be the legally enforceable private law right asserted.

The plaintiffs had no right to claim damages for breach of statutory duty nor a cause of action in negligence. The proper exercise of discretion required his Lordship to strike out the statement of claim.