Abuse claim discontinued as Clyde & Co successfully repudiates allegations against local authority

Clyde & Co has recently secured a discontinuance in a historic abuse case against our client, a local authority.

The Claimant had alleged that the Defendant council was liable for abuse she suffered whilst in foster care and for neglect prior to removal into care/a failure to remove.

We maintained a defence in respect of limitation, breach of duty and causation, and sought to have the Claimant medically examined by a psychiatrist. The Claimant strongly resisted this move. The robust stance taken resulted in the Claimant discontinuing her claim at an early stage of proceedings and prior to the listed CCMC, which resulted in considerable savings for the local authority and insurer client.  

Background

The Claimant was formally received into the care of the Defendant in 1979. The Care Order ended in 1994 when the Claimant turned 18. The Defendant was faced with allegations on three separate issues: neglect prior to the Claimant’s removal into care/a failure to remove; sexual abuse by a foster carer when the Claimant was first placed in care; and sexual abuse by the brother and (minor) sons of a second foster carer.

However, following the decision in CN v Poole, the Claimant abandoned the pre-care component of the claim and this was not formally pleaded within the Claimant’s Particulars of Claim. The Claimant focussed upon the alleged abuse by the first foster carer and the abuse suffered when placed with the second foster carer.

We raised limitation as an issue, submitting that the Claimant was 23 years out of time to issue her claim. The delay had caused significant prejudice to the Defendant. Direct evidence could not be obtained from one of the foster carers as they had passed away.

We also maintained a robust defence on breach of duty and causation. We relied on the decision in Armes v Nottinghamshire County Council, citing that the Defendant did not owe the Claimant a non-delegable duty, and reiterated that the Local Authority was not under a duty to ensure reasonable care for the safety of children in its care when they are in the care and control of foster carers.

The Defendant had complied with its statutory duty pursuant to s21(1) of the Child Care Act 1980 by providing accommodation and maintenance to the Claimant. The Defendant had placed the Claimant in foster care and thereby discharged its duty to provide accommodation and maintenance. The Defendant was not responsible for providing the Claimant with daily care at that stage; this was the role of the foster carer, and that was when the alleged abuse was said to have occurred. Regarding the acts that took place by the foster carer’s brother and sons we argued that the Defendant did not have any knowledge that these third parties were a risk to the Claimant.

Evidence

The case was document heavy and involved voluminous records. Disclosure was an ongoing issue including disclosure of third-party records.

We wished to instruct a psychiatrist to examine the Claimant and review all the relevant medical records, as we intended to challenge the reliability of the Claimant’s psychiatric diagnosis and prognosis advanced by the Claimant’s expert. However, the Claimant refused to attend two arranged appointments and clearly wanted to avoid the expert’s involvement. We maintained our position, making it clear that we intended to obtain a court order obliging the Claimant to attend the medical examination.

We also obtained a social care report detailing compliance with the statutory requirements in place at the time. The draft report allowed us to assess the evidence and prospects of success at an early stage. Although the report required additional information and documentation for completion, the existing materials indicated that the Defendant had undertaken all reasonable checks and references as would be expected at the time in relation to the appointment of the foster carer whose file we had. The expert concluded that the Defendant’s procedures were consistent with those expected at the relevant time.

Outcome

We maintained a robust defence with respect to limitation, breach of duty and causation which resulted in the Claimant not pursuing the failure to remove allegation when she issued proceedings. Once the Claimant had litigated, we continued to insist the Claimant be examined by a psychiatrist. We made it clear we would be seeking disclosure of her counselling records at the CCMC. By flagging these numerous hurdles and maintaining a robust approach, the Claimant decided to discontinue her claim prior to the CCMC.

The matter discontinued at a relatively early stage of proceedings which resulted in significant cost savings. Based upon the Claimant’s pleaded value of £50,000 and the Claimant’s costs to trial, anticipated savings totalled at least £150,000.

What can we learn?

• Whilst these cases require sensitivity, it is important that each component of the claim is thoroughly assessed and investigated. In this case by identifying the meritless pre-care claim and flagging this to the Claimant pre-proceedings, this aspect of the claim was abandoned on issue of proceedings.
• Limitation issues should always be explored. In this case there was a long unexplained delay in issue and there was prejudice.
• Claims involving abuse whilst in foster care remain topical following the Supreme Court decision in Armes. The Supreme Court held the local authority was not liable on the basis of a non-delegable duty, but it was found vicariously liable for the abuse committed by the foster parents. In respect of the non-delegable duty, the Supreme Court held that the proposition that the local authority was under a duty to ensure that reasonable care was taken for the safety of children in care, while they were in the care and control of foster parents, was too far-reaching and the subsequent responsibility on local authorities was too severe.
• Medical evidence from good experts is always key in such cases when examining causation. In the case the Claimant was deliberately uncooperative and did everything possible to avoid being examined by the Defendant’s chosen expert. This along with her refusal to give access to all her records raised concerns about the motivation behind the Claimant’s reluctance.
• Selecting robust experts with the appropriate expertise and experience is key. Social care experts dealing with breach and negligence are a core component and they need to address the issues with reference to the standards of the day rather than applying contemporary standards. There are significant differences between social care practices pre and post Children Act 1989 which should be investigated in historical abuse cases.