Law Report: Liability for baby's injury: T v Surrey County Council and others. Queen's Bench Division (Mr Justice Scott Baker), 20 January 1994

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A person is not fit to be registered as a child-minder if there is an unresolved question about the cause of a non-accidental injury suffered by a child who had been in the minder's care. However, a local authority's failure to meet its obligation under the Nurseries and Child-Minders Regulation Act 1948 to cancel or suspend the child-minder's registration did not confer a private law right of action for breach of statutory duty on a child subsequently injured while in the care of the minder. The local authority was liable for its negligent mis-statement that there was no reason why the child should not go to the child-minder.

Mr Justice Scott Baker found the council and the second defendant, Christine Walton, liable in negligence to the plaintiff.

Following the birth of T in March 1989, his mother telephoned Ashford Social Services to inquire about a child- minder. She spoke to the council's nursery and child-minding adviser and was given a list of eight registered child- minders but none was suitable or available.

She contacted the second defendant, Mrs Walton, through an advertisement. She telephoned the council's adviser in August and obtained confirmation that Mrs Walton was a registered child- minder and there was no reason why T could not be left in her care. Although reference was made to a child, S, who was injured while in Mrs Walton's care in June 1989, T's mother was unaware that S had suffered a non-accidental injury involving brain damage.

T first went to Mrs Walton on 31 August 1989. On 13 September, T was in Mrs Walton's care at her home when he had to be rushed to hospital. He suffered serious brain damage. T claims damages for personal injuries against the local authority for breach of statutory duty under the Nurseries and Child-Minders Regulation Act 1948 for failing to cancel Mrs Walton's registration and for negligence and against the child-minder, Mrs Walton, and her husband.

Lionel Swift QC and Graham Robinson (Blakesley Rice MacDonald) for T; Edward Faulks (Barlow Lyde Gilbert) for the council; Elizabeth Gumbel (Dresdens) for the Waltons.

MR JUSTICE SCOTT BAKER said that, having heard the expert medical evidence, an acute infection was not a viable explanation as to the cause of T's problems. T suffered non-accidental injury while in the care of Mrs Walton, The injury was a classical response to shaking. Mrs Walton was responsible and had, three months before, caused a remarkably similar injury to S. Keeping in mind the high standard of proof required in a matter of such gravity, Mrs Walton was liable in breach of contract, negligence and assault. Mr Walton was not liable.

Turning to the claim against the council, two case conferences were called following the injury to S in June. The conferences left, at the very least, a question mark about whether S had suffered a non-accidental injury while in Mrs Walton's care. The council decided not to de- register her because there was no proof that she had caused the injury. Mrs Walton was recommended to mind children between two and five years, rather than babies.

The recommendation had no force whatsoever and was the result of an ill thought out compromise. The picture was one of bumbling inactivity.

After the two case conferences it was unresolved how S came by his injury, but one real possibility was that Mrs Walton was responsible. No caring mother would have contemplated leaving her small baby with Mrs Walton. Unfortunately, the council put the interests of the child-minder before those of the child, when the child's interest should have been the first and paramount consideration.

The crucial feature was not so much the council's failure to de-register Mrs Walton, but the failure to tell T's mother the full facts when she made the inquiry. What she needed to know was what the council knew, namely, that in the light of what had happended to S there was a serious question mark about the safety of a small child in Mrs Walton's care. The council's adviser did not even say that an informal qualification had been put on Mrs Walton's registration in that she had been recommended to take only children over the age of two.

Whether or not a child-minder was registered did not stop a mother placing her child with the minder. The legislation only covered placement for reward. What was crucial was that the local authority had information which an inquiring parent could reasonably expect would be passed on.

It was clearly Parliament's intention that only those who were fit to look after children under five should be registered as child-minders. A person could not be so fit, for the purposes of the legislation, when there was an unresolved question about a non-accidential injury.

If there was a serious question mark about a child under two being minded by Mrs Walton that should have resulted in suspension while the matter was investigated and if the concern was not resolved, in cancellation of the registration.

Registration of a child-minder by a local authority would necessarily be seen by parents looking for a minder as a hallmark or stamp of approval. The council failed to meet its obligations under the Act. It should either have cancelled Mrs Walton's registration or suspended it while making further inquiries.

However, it did not follow that an action lay against it for breach of statutory duty. The Act itself provided no remedy. There was a considerable reluctance on the part of the courts to impose on local authorities any liability for breach of statutory duty other than that expressly imposed in the statute. The claim for breach of statutory duty failed.

The Act contained no express power to suspend a registration while further investigations were being made pending a decision whether or not to cancel. Such a power must be implied.

The plaintiff's claim in negligence was based on the failure to cancel the registration and the negligent mis-statement by the council in August. The issues of breach of statutory duty and common law negligence in respect of the council's exercise of its power under the Act ran very much hand in glove. There was no common law duty in relation to the failure to cancel the registration.

Parliament had entrusted to local authorities a wide measure of power and responsibility over children and it was desirable that they should be left to exercise those powers and responsibilities as far as possible unhindered by the courts. They were not immune from the remedy of judicial review in an appropriate case. The local authority's obligation with regard to child-minding only extended to children under five minded for reward.

While the courts were more ready to find a duty of care owed where the consequence of a breach was personal injury rather than damage to property or mere economic loss, to hold that a duty was owed in the present case would be breaking new ground.

The local authority was required to act as a licensing authority. It was going a long way, without more, to hold a licensing authority liable for the misfeasance of a third party when it negligently granted or refused to cancel a licence.

Turning to the claim in negligent mis- statement, there was a very good reason why T should not go to Mrs Walton. Another child had recently suffered a serious and unexplained injury while in her care. T's mother would not have placed T with Mrs Walton had she known the true position. The criteria for founding liability for negligent mis-statment were met.

The council's adviser was speaking as a professional officer with special knowledge and responsibility. What he said would be relied upon and related directly to the safety of T. There was a special relationship of proximity between him and T. He knew there was a significant risk to any small baby in Mrs Walton's care. In those circumstances the council was liable in negligence to the plaintiff. There would judgment for the plaintiff against the council and Mrs Walton with damages to be assessed.

Ying Hui Tan, Barrister