550 Barrett v Enfield London Borough Council (HL(E)) [2001]2 AC House of Lords Barrett v Enfield London Borough Council 1998 July 20, 21, 22; Lord Browne-Wilkinson, Lord Slynn of Hadley, 1999 June 17 Lord Nolan, Lord Steyn and Lord Hutton Negligence — Duty of care to whom? — Local authority — Common law duty to protect and promote welfare of children in care — Alleged failure to carry out duty — Whether local authority liable in negligence The plaintiff, who had been placed in the care of the defendant local authority pursuant to a care order when he was 10 months old and remained there until the age of 17, claimed damages for personal injury arising out of negligence by the authority. He claimed that the authority had been under a duty to show him the standard of care which would be expected of a responsible parent, to protect him from physical, emotional, psychiatric or psychological injury, to provide him with education and a home where his safety would be secured and monitored, to promote his development, to secure his rights to family life and to provide competent social workers to monitor his welfare. The alleged breaches of duty included a failure to arrange for his adoption or provide him with appropriate and properly monitored placements, a failure to obtain appropriate psychiatric treatment for him and mismanagement of the reintroduction to his mother, as a result of which he claimed he suffered from deep-seated psychological and psychiatric problems, On the authority’s summons, the district judge refused to strike out the claim but on appeal the judge struck out the claim as disclosing no reasonable cause of action. The Court of Appeal upheld that decision. On appeal by the plaintiff— Held, allowing the appeal, that the public policy considerations which meant that it would not be fair, just and reasonable to impose a common law duty of care on a local authority when deciding whether or not to take action in respect of a case of suspected child abuse did not have the same force in respect of decisions taken once the child was already in local authority care; that the bar on a child suing his parents for negligent decisions in its upbringing did not apply to a local authority, which had to take decisions which a parent never had to take and which had trained staff to advise on such decisions; that in all but the clearest cases it was important to see on the facts proved whether what was alleged was justiciable; that the plaintiff's case was far from clear and, moreover, in addition the question whether it was fair, just and reasonable to impose a duty of care was not to be decided in the abstract, on the basis of assumed hypothetical facts, for all acts or omissions of a statutory authority but on the basis of what had been proved; and that, accordingly, the plaintiff was entitled to have his claim heard and the facts investigated (post, pp $578-D, F, 560C-D, 568D-E, 572B—C, §73F-H, §74C-E, 57 5C-F, 5866-5878, H~588C, H-589H). X (Minors) v Bedfordshire County Council [1995} 2 AC 633, HL(E) distinguished. Decision of the Court of Appeal [1998] QB 367; [1997] 3 WLR 628; [1997] 3 All ER 171 reversed. ‘The following cases are referred to in their Lordships’ opinions: Av Liverpool City Council [1982] AC 363; [1981] 2 WLR 948; [1981] 2 AILER 385, HL(E) Anns v Merton London Borough Council [1978] AC 728; [1977] 2 WLR 1024; [1977] 2 AILER 492, HL(E) Associated Provincial Picture Houses Ltd v Wednesbury Corpn |1948| 1 KB 2233 [1947] 2 AI ER 680, CA551 [2001]}2 AC Barrett v Enfield London Borough Council (HL(E)) Bolam v Friern Hospital Management Committee [1957] 1 WLR 582; [1957] 2 All ER 118 Caparo Industries ple v Dickman |1990] 2 AC 605; [1990] 2 WLR 358; [1990] 1 All ER 568, HL(E) Capital & Counties ple v Hampshire County Council [1997] QB 1004; [19971 3 WLR 331; [1997] 2 AIIER 865, CA Carmarthenshire County Council v Lewis {1955] AC 5493195512 WLR 517; [2955] 1 AILER 565, HL(E) Dorset Yacht Co Ltd v Home Office [1970] AC 1004; [1970] 2 WLR 11403 [1970] 2 AILER 294, HL(E) Fisher v Ruislip-Northwood Urban District Council [1945] KB 5843 [1945] 2 All ER 458,CA Gold'v Essex County Council |r942| 2 KB 2933 [1942] 2 AIIER 237, CA Hv Norfolk County Council (1997) 1 FLR 384, CA Hill v Chief Constable of West Yorkshire [1989] AC 533 [1988] 2 WLR 1049; [1988] 2 AILER 238, HL(E) Just v British Columbia [1989] 2 SCR 1228; 64 DLR (4th) 689 Lonrho ple v Tebbit [1991] 4 AILER 9733 [992] 4 All ER 280, CA Osman v Ferguson |1993| 4 AILER 344, CA Osman v United Kingdom The Times, s November 1998 Page v Smith [1996] AC r5 531995] 2 WLR 644; [1995] 2 AIIER 736, HL(E) Phelps v Hillingdon London Borough Council [1999] t WLR 500; [1999] 1 All ER 421,CA Ru Chief Constable of Sussex, Ex p International Trader's Ferry Ltd [1999] 2 AC 4183 [1998] 3 WLR 1260; [1999] 1 AIIER 129, HL(E) R v Deputy Governor of Parkhurst Prison, Ex p Hague |1992| « AC 58; [1991] 3 WLR 340; [1991] 3 AILER 733, HL(E) Rowling v Takaro Properties Ltd |r988] AC 473; [1988] 2 WLR 418; [1988] 1 All ER 163, PC Stovin v Wise [1996] AC 923; [1996] 3 WLR 388; [1996] 3 AI ER 8or, HL(E) Surtees v Kingston-upon-Thames Borough Council |1991] 2 ELR 559, CA Sutherland Shire Council v Heyman (1985) 157 CLR 424 X (Minors) v Bedfordshire County Council [1995] 2 AC 633; [1995] 3 WLR 155 [1995] 3 AILER 353, HL(E) The following additional cases were cited in argument: Clunis v Camden and Islington Health Authority [1998] QB 978; [1998] 2 WLR 902; [1998] 3 All ER 180, CA Galoo Ltd v Bright Grahame Murray [1994] 1 WLR 13605 [1995] + All ER 16, CA Hedley Byrne & Co Ltd v Heller & Partners Ltd |x964| AC 46531963] 3 WLR 101; [1963] 2 AILER 575, HL(E) Henderson v Merrett Syndicates Ltd [1995] 2 AC 145; [1994] 3 WLR 761; [1994] 3 AILER 506, HL(E) Kirkham v Chief Constable of the Greater Manchester Police [1990] 2 QB 2833 [1990] 2 WLR 987; [1990] 3 All ER 246, CA Knight v Home Office [1990] 3 AH ER 237 Levine v Morris [1970] 1 WLR 71; [1970] 1 AIER 144, CA M (A Minor), In re (1989) 88 LGR 841, CA Prince v Attorney General |1996} 3 NZLR 733 Wu Essex County Council [1999] Fam 90; [7998] 3 WLR 5345 [1998] 3 AI ER 111, CA Welton v North Cornwall District Council |1997] 1 WLR 570, CA Wilsher v Essex Area Health Authority [1987] QB 7303 [1987] 2 WLR 4253 [1986] 3 AILER 8or, CA552 Barrett v Enfield London Borough Council (HL(E)) [(2001]2 AC APPEAL from the Court of Appeal This was an appeal by the plaintiff, Keith Trevor Barrett, with leave of the House of Lords (Lord Browne-Wilkinson, Lord Steyn and Lord Hoffmann) given on 29 January 1998 from the decision of the Court of Appeal (Lord Woolf MR, Evans and Schiemann LJJ) delivered on 25 March 1997 dismissing the plaintiff’s appeal from a decision of Judge Nicholas Brandt sitting at Colchester County Court and delivered on 30 April 1996 whereby he allowed an appeal from the district judge by the defendant, Enfield London Borough Council and granted the defendant’s application by summons under Ord 13, r 5(1)(a) of the County Court Rules 1981 to strike out the claim on the grounds that the statement of claim disclosed no reasonable cause of action The facts are stated in the opinion of Lord Slynn of Hadley. Allan Levy QC and Elizabeth Anne Gumbel for the plaintiff. The local authority owed a common law duty of care, directly and/or vicariously, to the plaintiff whilst he was a child in their care to prevent him suffering personal injury. In this context there is no justification for regarding physical and psychiatric injury as different kinds of damage: see Page v Smith [1996] AC 155. This is a wholly different situation from X (Minors) v Bedfordshire County Council [1995] 2 AC 633, which requires a different analysis and different public policy considerations apply. The duty is independent of any statutory provisions although in the plaintiff’s case the local authority happened to be operating under statutory provisions and the breaches alleged arise from the manner in which the local authority implemented its statutory duty. The local authority assumed responsibility for the welfare of the plaintiff when they took him into care, were thereafter responsible for providing him with professional services and he relied on them and their employees to provide those services: see Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 and Henderson v Merrett Syndicates Ltd |r995] 2 AC 145. The plaintiff's case comes within those principles and no further inquiry is needed as to whether it is “fair just and reasonable” to impose liability under the approach in Caparo Industries ple v Dickman [1990] 2 AC 605. If, however, it is necessary to apply the Caparo test there are powerful public policy considerations in favour of imposing a duty of care in these circumstances. The plaintiff has suffered a wrong and should have a remedy. No alternative remedy is open to him. The purpose of taking a child into care is to promote his welfare and protect him from injury. In other circumstances when someone is injured through lack of competent care in school, prison or hospital he will have a cause of action: see R v Deputy Governor of Parkhurst Prison, E p Hague [1992] 1 AC 58; Gold v Essex County Council [1942] 2 KB 293; Kirkham v Chief Constable of the Greater Manchester Police [1990] 2 QB 283; Knight v Home Office [1990] 3 All ER 237 and the approach of Sir Thomas Bingham MR in X (Minors) v Bedfordshire County Council [1995] 2 AC 633, 666. A local authority provides professional social services to a child in its care. Although it is running those services in exercise of statutory provisions there is no reason why it should not also be required to exercise reasonable care in the way in which it runs those services. It owes the same common law duty of care that553 [2001}2 AC Barrett v Enfield London Borough Council (HL(E)) any individual or institution would owe when caring for a child whether or not they had a statutory obligation to do so. The instant case is fundamentally different from the two cases relating to child abuse considered in X (Minors) v Bedfordshire County Council [t995] 2 AC 633. The position is entirely different from a police investigation in respect of crime or social services investigations in respect of child abuse within the community. All the individuals concerned in the instant case are under the umbrella of the local authority either as employees or independent contractors and there are no multi-disciplinary decisions involved. This is not a situation where social services have been charged by Parliament with the task of protecting society from the wrongdoing of others. Nor does it involve the removal of a child from home into care with the potential for conflicts that are inherent in such cases. Arguments that social workers might adopt a defensive approach have not so far prevailed. The decision in H v Norfolk County Council [1997] 1 FLR 384 was wrong. The relationship between the local authority and the foster parents is contractual and they come under the umbrella of the local authority. The analogy with a school is apt and the degree of control comparable. Foster parents are wholly different from natural parents as the local authority selects, trains and supervises them. "The suggestion that there should be immunity when the local authority is in the position of a parent is a novel one. Such an immunity is contrary to the established principle that those placed in the position of parents owe the duty of care of of careful and prudent parent: Carmarthenshire County Council v Lewis [1955] AC 549. $61, 566. [vis also contrary to the trend to limit the circumstances in which immunity might be established: Capital & Counties ple v Hampshire County Council {1997] QB 1004. The reasoning in Surtees v Kingston-upon-Thames Borough Council [1991] 2 FLR 559 applies only to parents themselves who are in a wholly different position from a local authority It is relevant to the public policy considerations that to deny the plaintiff a remedy in the circumstances of the case would constitute breaches of articles 6, 8 and 13 of the European Convention for the protection of Human Rights and Fundamental Freedoms. Similar considerations apply in the plaintiff’s case to those discussed by the Commission in Osman v United Kingdom, Application No 23452/94 The Times, 5 November 1998 so as not to preclude him on public policy grounds from pursuing his claim. If it is arguable that the local authority owed the plaintiff a common law duty of care then an arguable breach of duty is disclosed in the re-amended particulars of claim. Unreasonableness is not pleaded but if it is necessary to plead it then leave to amend should be granted. An action for breach of statutory duty was not pursued before the Court of Appeal and is not pursued now as X (Minors) v Bedfordshire County Council [1995] 2 AC 633 appears to rule out any such action. Gumbel following. Causation in the context of a personal injury claim is a matter of fact. Facts can only be determined after a detailed consideration of the evidence, including the expert evidence, at trial: see Wilsher v Essex Area Health Authority [1987] QB 730 and X (Minors) v Bedfordshire County Council [1995] 2 AC 633, 741, 748, 766, 771. As this is an application to strike out the Court of Appeal was wrong to decide that the554 Barrett v Enfield London Borough Council (HL(E)) [2001]2 AC plaintiff had no prospect of establishing that the negligence alleged caused him injury. Galoo Ltd v Bright Grahame Murray [1994] 1 WLR 1360 was a wholly exceptional case in different circumstances. It is distinguishable on its facts as there was no specific incident which could be pointed at as causing the damage. Whereabouts on the policy/operational scale a decision lies and how much discretion is involved in making it are again questions of fact. Causation as a factual matter cannot be determined on a strike out. Nigel Baker QC and Brendan Roche for the local authority. Where, as in the present case, the source of the duty is statutory, the absence of an action for breach of statutory duty will ordinarily preclude a common law duty of care: X (Minors) v Bedfordshire County Council [1995] 2 AC 633, 739; Stovin v Wise [1996] AC 923, 952-9533 Clunis v Camden and Islington Health Authority [1998] QB 978. Where the policy of the statutes is not to create a private law action for breach of statutory duty (see section 24 of the Children and Young Persons Act 1969 and section r8 of the Child Care Act 1980), the same policy should ordinarily preclude a common law duty of care. Where a local authority acts within the ambit of the statutory discretion and takes a decision in relation to a child in its care and a complaint is made, it is not actionable at common law: see Dorset Yacht Co Ltd v Home Office [1970] AC 1004; Anns v Merton London Borough Council [1978] AC 728 and X (Minors) v Bedfordshire County Council [1995] 2 AC 633. The courts have been careful to resist invitations to limit the discretionary functions of a local authority: see A v Liverpool City Council 1982] AC 363. The plaintiff has not pleaded irrationality or unreasonableness taking the acts outside the ambit of discretion. It is not “fair, just or reasonable” to impose a duty of care directly on the local authority. The considerations in X (Minors) v Bedfordshire County Council [1995] 2 AC 633 are relevant here as the Court of Appeal correctly held in H v Norfolk County Council [1997] 1 FLR 384. Social workers have wide ranging functions in relation to a child in care and there will almost certainly be multi-disciplinary discussions leading to decisions: see In re M (A Minor) (1989) 88 LGR 841. A difficult and delicate balance has to be reached in handling a child in care, who might well be a problem child, and in making decisions about fostering etc. Antipathy between foster parents, the natural parents and social workers is quite possible. Opening the area up to private law actions could well lead to a defensive and cautious approach on the part of social workers. Other statutory and public law remedies are open to the plaintiff. For example there is the possibility of complaint to an ombudsman or a action for judicial review. For similar reasons it is not “fair, just and reasonable” to impose a duty of care on social workers. They do not, by accepting the instructions of the local authority, assume a general professional duty of care to the children concerned: X (Minors) v Bedfordshire County Council [1995] 2 AC 6335753. Hedley Byrne & Co Ltd v Heller & Partners Lid [1964] AC 465 was not pleaded or mentioned below. The voluntary nature of the responsibility assumed in that case is not analogous to the statutory obligation under which the local authority acted here. In addition, there is no “reliance” in the relevant sense in the context of child care: see Henderson v Merrett Syndicates Ltd [1995] 2 AC 45 and Welton v North Cornwall District Council [1997] 1 WLR 570.555 [2001] 2 AC Barrett v Enfield London Borough Council (HL(E)) Lord Browne-Wilkinson The plaintiff's case is compendiously one of bad parenting. The duty contended for would apply equally to parents as to a local authority in loco parentis. It is undesirable that parental decisions should be litigated: Surtees v Kingston-upon-Thames Borough Council [1991] 2 FLR 559 and Prince v Attorney General [1996] 3 NZLR 733. ‘The decisions which are at the heart of the case are all discretionary decisions in respect of which the local authority and social workers should be immune from liability: see W v Essex County Council [1999] Fam 90. The operational and discretionary labels are not always helpful but the significant feature of a social worker’s position is the delicacy of the nature of the decisions he has to take: Levine v Morris [1970] 1 WLR 71. Social workers are not “expert” in the way a heart surgeon, for example, is. Misfeasance should be the only remedy against them. There is no prospect of the plaintiff establishing a causal link between the damage alleged and any allegation which he might hope to argue. The Court of Appeal applied the right principles and correctly struck out the whole of the plaintiff's claim. Roche following. Osman v United Kingdom The Times, 5 November 1998 was not a unanimous decision of the Commission. The dissenting opinion of Mr Nicolas Bratza displays the correct approach. The strike out procedure is not disproportionate. In any event the instant case is not as extreme as the situation in Osman. Levy QC in reply. Av Liverpool City Council [1982] AC 363 shows that there is no power for the High Court to review the workings of a local authority and there is therefore no alternative remedy for the plaintiff except judicial review. That is a very ineffective remedy for children. Only 12 months is allowed for a complaint to the ombudsman although there is a discretion for the time to be extended. A great many years have passed since Dorset Yacht Co Ltd v Home Office [1970] AC 1004 and a less stringent approach is now called for. W v Essex County Council [1999] Fam 90 was a Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 type of case. Their Lordships took time for consideration 17 June 1999. LORD BROWNE-WILKINSON My Lords, when the plaintiff was 10 months old, he was the subject of a care order in favour of the defendant, Enfield London Borough Council. He remained in the care of the defendant council until he was aged 17. In these proceedings the plaintiff alleges that the defendant council was in breach of a common law duty of care owed to him in consequence of which he suffered deep-seated psychiatric problems caused by the defendant’s negligence. The full circumstances of this case (as alleged by the plaintiff in the statement of claim) are set out in the speech of my noble and learned friend, Lord Slynn of Hadley. I gratefully adopt that statement but for my purposes it is sufficient to give a short summary of the plaintiff’s case. The statement of claim alleges that under the Children Acts the defendant came under a series of statutory duties to exercise quasi-parental care in and about the upbringing of the plaintiff. Originally it was alleged that breach of such statutory duties in themselves gave rise to a cause of action for damages. But556 Barrett v Enfield London Borough Council (HL(E)) [2001] 2 AC Lord Browne-Wilkinson the plaintiff now accepts that he has no such cause of action. What he does allege is that the relationship between him and the defendant council arising by reason of the care order was such as to create a common law duty of care owed by the defendant to him. He alleges that, in breach of such duty of care, the defendant acting by its social workers and others negligently failed to safeguard the plaintiff's welfare. It is alleged that the defendant negligently made two placements with foster parents, moved him six times to different residential homes between 1976 and 1988, failed to make arrangements for his adoption, failed to provide him with proper social workers, failed to provide appropriate psychiatric advice and failed to make proper arrangements to re-unite him with his mother. The plaintiff then alleges that such negligent treatment caused him to leave the care of the local authority when he attained the age of 18 without family or attachments and suffering from a psychiatric illness leading to his having an alcohol problem and a propensity to harm himself, I do not understand the plaintiff to allege that any one of the alleged acts of negligence by itself caused the injuries alleged. What he says is that the combination of all or some of the alleged acts of negligence produced that result, The defendant council applied to strike out the claim on the ground that it disclosed no cause of action. The district judge refused to strike out the action but his decision was reversed by Judge Brandt who struck out the claim. The Court of Appeal (Lord Woolf MR, Evans and Schiemann LJJ) upheld that decision. Lord Woolf MR based himself, by analogy, on the principles laid down in X (Minors) v Bedfordshire County Council [1995] 2 AC 633 and Stovin v Wise [1996] AC 923. He held that the plaintiff's case substantially rested on showing that the defendant council had negligently exercised statutory discretions, Where such an allegation is made, the first necessity is to show that the exercise of the statutory discretion was “so unreasonable that it falls outside the ambit of the discretion”: the Bedfordshire case, at p 7368. Lord Woolf MR considered that there was very little chance that such unreasonableness could be demonstrated in the present case. Even so, he went on to consider whether, applying the three- stage test in Caparo Industries plc v Dickman |r990| 2 AC 605, the defendant council could be liable in negligence. The first two of those requirements (foreseeability and proximity) are plainly satisfied on the facts alleged. The third requirement is that the imposition of liability in such cases must be just and reasonable. Lord Woolf MR held that it would not be just and reasonable to impose a duty of care on a local authority for the careless exercise of the statutory discretions applicable to children in care. Whilst recognising the position was not the same as that considered in the child abuse cases considered in the Bedfordshire case (which involved a statutory discretion to remove a child from the custody of its parent) Lord Woolf MR thought that the analogy with that case was close and that to hold a local authority or its agents liable in cases such as the present would be to encourage a “safety-fitst” approach by social workers which would be detrimental to children in care as a whole, ie it would be bad public policy. Lord Woolf MR also considered that the damage alleged (psychiatric illness) could not have been caused by the only kinds of negligence which could conceivably be actionable, ie operational acts done carelessly by the servants of the defendants in the course of carrying out policy decisions557 [2001] 2 AC Barrett v Enfield London Borough Council (HL(E)) Lord Browne-Wilkinson taken in relation to the plaintiff by the defendant council. He was of the view that the only damage suffered by the plaintiff must have flowed from the policy decisions which were not actionable and not from any operational acts which might be actionable. Evans and Schiemann LJJ reached the same conclusion, though both placed more emphasis on the inability of the plaintiff to show a causative link between any negligence capable of being proved against the defendants and the psychiatric damage alleged to have been suffered asa result of such negligence. 1 find it impossible to say that all careless acts or omissions of a local authority in relation to a child in its care are not actionable: indeed I do not read the Court of Appeal so to have held. If certain careless conduct (operational) of a local authority is actionable and certain conduct ( policy) is not, it becomes necessary to divide the decisions of the local authority between those which are “policy” and those which are “operational”. It is far from clear what the expressions “operational” and “policy” connote. Therefore unless it can be said (as did the Court of Appeal) that operational carelessness could not have caused the damage alleged in the present case it would be impossible to strike out any part of the claim. But causation is quintessentially a matter of fact and one would have thought that where there is a substantial doubt as to what is an operational decision there must equally be doubt as to the extent or nature of the damage capable of being caused by negligence in making such an operational decision. Moreover, there have been two developments since the conclusion of the argument in’ the present case, both of which have been drawn to our attention by the parties. For reasons which I will seek to demonstrate, they both emphasise the extreme care which must be taken in striking out claims in this confused and developing area of the law, and clearly reinforce the conclusion that the case cannot be struck out. Striking out In my speech in the Bedfordshire case [1995] 2 AC 633, 740-741 with which the other members of the House agreed, I pointed out that unless it was possible to give a certain answer to the question whether the plaintiff's claim would succeed, the case was inappropriate for striking out. I further said that in an area of the law which was uncertain and developing (such as, the circumstances in which a person can be held liable in negligence for the exercise of a statutory duty or power) it is not normally appropriate to strike out. In my judgment it is of great importance that such development should be on the basis of actual facts found at trial not on hypothetical facts assumed ( possibly wrongly) to be true for the purpose of the strike out. This latter point is graphically illustrated by the decision of the Court of Appeal in Phelps v Hillingdon London Borough Council |1999] 1 WLR 500. In that case, the plaintiff was claiming damages for the negligent failure of an educational psychologist employed by a local authority to identify that the plaintiff was dyslexic. The case went to trial and all relevant findings of fact made. The judge had held for the plaintiff, relying to a substantial extent on dicta of mine in the Bedfordshire case, at p 763, to the effect that where a local authority provides a psychology service such authority could be liable in damages for failure of the service to diagnose dyslexia. As the Court of Appeal rightly held in the Phelps case those remarks were based on the mistaken assumption that such psychology service would be a service open558 Barrett v Enfield London Borough Council (HL(E)) [2001] 2 Ac Lord Browne-Wilkinson to the public in the same way as a hospital is open for the purpose of treating the child as the patient of the service. In fact the evidence at the trial had demonstrated that the arrangements in that case were of a different nature: the psychology service was established to advise the local authority as to the performance of its functions as educational authority: the child was no more the patient of the psychology service in that case than was the psychiatrist in the abuse cases who is advising the local authority as to its duties not the child: see the Bedfordshire case, at p 7526. This erroneous dictum of mine made in the course of seeking to determine a striking out application on hypothetical facts has apparently given rise to “a proliferation of claims” against psychology services provided by local authorities in dealing with those suffering from reading disability. It vividly illustrates how important it is to decide these cases on actual facts and not on mistaken hypotheticals. European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd 8969), article 6 In Osman v United Kingdom (The Times, 5 November 1998) the European Court of Human Rights upheld a claim by the Osmans that their rights under article 6 of the Convention had been infringed. They had sought to bring proceedings in the United Kingdom against the police alleging negligence in the prevention and pursuit of crime. Those proceedings were struck out by the Court of Appeal applying the decision of this House in Hill v Chief Constable of West Yorkshire [t989] AC 53: see Osman v Ferguson [1993] 4 AIIER 344. Iconfess that I find the decision of the Strasbourg court extremely difficult to understand. Article 6(1) of the Convention provides that “In the determination of his civil rights and obligations . . . everyone is entitled to a fair and public hearing. . .” At first sight this would seem to require that the applicant has, under the local law, a right (right A) enforceable in the local court. Under article 6 he is given as a separate right (right B) a right of access to the local courts to assert right A being a separate, free standing right, Thus one would assume that right A would consist of, for example, a contractual right or a tortious right not to be negligently injured. If a person is prevented from enforcing those rights that is not an infringement of right A but an infringement of right B, ie the right of access to the court. However, that is apparently not how the European Court of Human Rights construes article 6. In paragraphs 139 and 140 of their judgment the court said: “139. On that understanding the court considers that the applicants must be taken to have had a right, derived from the law of negligence, to seek an adjudication on the admissibility and merits of an arguable claim that they were in a relationship of proximity to the police, that the harm caused was foreseeable and that in the circumstances it was fair, just and reasonable not to apply the exclusionary rule outlined in the Hill case. In the view of the court the assertion of that right by the applicants is in itself sufficient to ensure the applicability of article 6(r) of the Convention. “go. For the above reasons, the court concludes that article 6(1) is applicable. It remains to be determined whether the restriction which559 [2001}2 AC Barrett v Enfield London Borough Council (HL(E)) Lord Browne-Wilkinson was imposed on the exercise of the applicants’ right under that provision was lawful.” This passage seems to treat the Osmans as having a right under English law to go to court for a declaration that, apart from the public policy preventing suits against the police, they would have had a claim in negligence against the police and further, that it was not fair, just and reasonable in the circumstances of that case to apply the “exclusionary rule”, ic the rule excluding negligence actions against the police. Having so defined the ambit of article 6, the Strasbourg court held that there was in the Osman case a breach of such right of access to the English court, such breach lying in the application of a blanket exclusionary rule which excludes all claims against the police for negligent failure to investigate or protect from crime. In the view of the Strasbourg court, apparently, the applicability of such exclusionary rule has to be decided afresh in each individual case. If this is not done then it is impossible to determine whether the public interest in an efficient police force is or is not proportionate to the seriousness of the harm suffered by the plaintiff in the individual case: see paragraph 150. On these grounds, the Strasbourg Court held that the English court had breached article 6 by striking out the claim made by the Osmans against the police without hearing any evidence by reference to which the proportionality of the rule in that particular case could be judged. The court said that the police had been granted a “blanket immunity” which was disproportionate and therefore an unjustifiable restriction on the Osmans’ right of access to the court. The Osmans were entitled to have their case against the police determined in deserving cases: see paragraphs 151 and 152. The problems in applying this reasoning to the English law of negligence are many and various. For example, the correct answer to the following points is not immediately apparent. 1. Although the word “immunity” is sometimes incorrectly used, a holding that it is not fair, just and reasonable to hold liable a particular class of defendants whether generally or in relation to a particular type of activity is not to give immunity from a liability to which the rest of the world is subject. It is a prerequisite to there being any liability in negligence at all that as a matter of policy it is fair, just and reasonable in those circumstances to impose liability in negligence. 2. In a wide range of cases public policy has led to the decision that the imposition of liability would not be fair and reasonable in the circumstances, ¢ g some activities of financial regulators, building inspectors, ship surveyors, social workers dealing with sex abuse cases. In all these cases and many others the view has been taken that the proper performance of the defendant's primary functions for the benefit of society as a whole will be inhibited if they are required to look over their shoulder to avoid liability in negligence. In English law the decision as to whether it is fair, just and reasonable to impose a liability in negligence on a particular class of would-be defendants depends on weighing in the balance the total detriment to the public interest in all cases from holding such class liable in negligence as against the total loss to all would-be plaintiffs if they are not to have a cause of action in respect of the loss they have individually suffered. 3. In English law, questions of public policy and the question whether it is fair and reasonable to impose liability in negligence are decided as questions of law. Once the decision is taken that, say, company auditors though liable to shareholders560 Barrett v Enfield London Borough Council (HL(E)) [2001] 2 AC Lord Browne-Wilkinson for negligent auditing are not liable to those proposing to invest in the company (see the Caparo Industries case [1990] 2 AC 605), that decision will apply to all future cases of the same kind. The decision does not depend on weighing the balance between the extent of the damage to the plaintiff and the damage to the public in each particular case. In view of the decision in the Osman case it is now difficult to foretell what would be the result in the present case if we were to uphold the striking out order. It seems to me that it is at least probable that the matter would then be taken to Strasbourg. That court, applying its decision in the Osman case if it considers it to be correct, would say that we had deprived the plaintiff of his right to have the balance struck between the hardship suffered by him and the damage to be done to the public interest in the present case if an order were to be made against the defendant council. In the present very unsatisfactory state of affairs, and bearing in mind that under the Human Rights Act 1998 article 6 will shortly become part of English law, in such cases as these it is difficult to say that it is a clear and obvious case calling for striking out; see also Markesinis & Deakin, Tort Law, 4th ed (1999), pp 145 et seq. For these reasons in my judgment this action should proceed to trial and when all the facts are known the difficult issues of law which arise may be confronted in the light of the real, as opposed to hypothetical, facts. In the meantime one can only hope that the law applicable under article 6 is further interpreted. LORD SLYNN OF HADLEY My Lords, in this case the Court of Appeal has struck out the whole of the appellant's (plaintiff's) claim against the respondent (defendant). The appeal raises important and difficult questions first as to whether on the facts pleaded it is arguable that a local authority and social workers employed by it owed a duty of care to a child in its care and that that duty was broken and secondly whether the statement of claim should be struck out on the basis that the plaintiff would inevitably fail to establish that any of the breaches alleged caused the damage claimed. The plaintiff was born on 10 October 1972. The following year he was admitted to hospital suffering from injuries inflicted by his mother. As a result on 18 July 1973 the defendant obtained a place of safety order under section’ 28(r) of the Children and Young Persons Act 1969 and, subsequently, on 29 August 1973 a care order pursuant to section 1 of the 1969 Act. The plaintiff issued proceedings in the Colchester County Court on 6 October 1993 alleging negligence and breach of statutory duty. No defence was served but on 25 September 1995, the defendant applied to strike out the claim pursuant to Ord 13, r 5(1)(a) of the County Court Rules 198 (SI r981 No 1687 (L20)) on the ground that it disclosed no reasonable cause of action. That application was refused on 4 March 1996 by District Judge Skerratt bur on appeal was allowed by Judge Brandt on 30 April 1996. Despite re-amendment of the particulars of claim the Court of Appeal dismissed the plaintif?’s appeal from that order on 25 March 1997. The plaintif’s original claim of 6 October 1993 alleged a duty, under various statutes relating to children, to “attain and secure for the plaintiff adequate and appropriate arrangements which were in his short- and long- term best interests” and that the defendant had acted in breach of those561 [2001] 2 AC Barrett v Enfield London Borough Council (HL(E)) Lord Slynn of Hadley statutes. The re-amended particulars of claim of 10 March 1997 alleged breaches of section 12 of the Children Act 1948 and of section 18 of the Child Care Act 1980 but in addition it was alleged that the defendant owed a duty of care at common law “in the practical implementation of its obligations” under the 1948, 1969 and 1980 Acts to which I have referred. The common law duty of care was said to include a duty to act in loco parentis and to provide the plaintiff with the standard of care which could be expected of a reasonable parent, including a duty to provide a home and education, to take reasonable steps to protect him from physical, emotional, psychiatric or psychological injury and to promote his development. Moreover, it was the defendant’s duty at all times to provide competent social workers whose responsibility it was to monitor the various aspects of the plaintifPs welfare. Duties were said to be owed to the plaintiff also by social workers employed by the defendant in carrying out the latter’s obligations. The facts alleged The facts relied on in summary are these. After introductory meetings with them, the plaintiff was placed with foster parents (Mr and Mrs Jones) on 29 November 1973 and he was visited for the first time by a social worker (Dennis Calvert) on 22 January 1974. A second social worker (Mrs Kearnes) took over on 8 August 1974. In January 1975 the plaintifP's three-month-old sister was placed with the same foster parents who in the following year moved with the children to other accommodation. There were problems concerning both the plaintiff’s health and his relationship with the foster parents and after a period in hospital, the plaintiff went to Eastbrook Nursery on r3 July 1976. In February 1977, a third social worker took over and in August of that year the plaintiff moved to Prospect House, a home provided by the defendant. In August 1980 he and his sister moved to live with Mrs Kearnes and her husband, who were then accepted as foster parents. This was his fifth placement. His social worker was changed in November 1980 but between September 1982 and June 1983 he had no social worker. In 1986 he was moved first to Rownhams Centre for families, then to Stamford House as I understand it for a stricter regime, then to St Nicholas House for disturbed children with learning difficulties. All these were provided by the defendant. He had a new social worker in February 1987. From then on reports were received of his having harmed himself from time-to-time. His next and final placement on leaving St Nicholas House was to a therapeutic children’s home (his ninth placement) and that lasted from September 1988 to June 1990. The plaintiff met his mother briefly in October 1986 and again in June 1987 but after a one weekend visit, in June 1987 his mother said that he could no longer visit her. The negligence alleged consisted of the way in which the plaintiff was placed with the various foster parents and in the homes to which I have referred. They were unsuitable and it was wrong not to consider whether he could be placed with his half-sister on a long-term basis and wrong to fail to consider what would be the effect of separating them. The defendant and its employees failed to have regard to his health and hygiene. They failed to find a proper home for him or to direct and plan his care so that, due to their negligence, he continued to remain in foster care or children’s homes562 Barrett v Enfield London Borough Council (HL(E)) [2001] 2 ac Lord Slynn of Hadley without being adopted. They failed properly to arrange and conduct his meetings with his mother after 11 years of separation and they failed to obtain appropriate psychiatric treatment for him. If these breaches of duty had not occurred, consideration would have been given to whether he really could be rehabilitated with his mother, whether any other relative could care for him, whether he could have been adopted or suitably placed with prospective adopters and he would not have suffered the damage and injury which he did suffer, If the duties which lay upon the defendants had not been breached, he would not “on the balance of probabilities have left the care of the local authority as a young man of 18 years with no family or attachments whatsoever, who had developed a psychiatric illness causing him to self-harm and who had been involved in criminal activities”. His injuries included in addition to self-harm and behavioural problems, the failure of his marriage, an inability to find work and an alcohol problem. The proceedings Judge Brandt rejected the claim for breach of statutory duty as one which “fails from the outset”. As to the common law claim, he directed himself to consider three matters—foreseeability, proximity and whether it was fair and reasonable to impose a duty on the local authority. Foreseeability he said was not in issue; proximity “can be made out without any kind of difficulty”. However, on the basis that the local authority and social workers employed by it had “a very sensitive and delicate task to perform” if a duty of care was imposed on them they might take a “cautious and defensive” approach which would not be to the advantage of children in care and too much time would be taken up dealing with the defence of cases of this kind, he held that it was wrong to impose such a common law duty as that for which the plaintiff contended. In addition, and “quite apart from questions of causation” he had doubt as to whether the injuries pleaded constituted psychological injury although this did not form the real basis of his decision. In the Court of Appeal [1998] QB 367 the claim of statutory duty was not pursued. As to the common law claim Lord Woolf MR, at p 374, adopted the description of Lord Browne-Wilkinson in X (Minors) v Bedfordshire County Council [r995] 2, AC 633 of this action as being an action “based on a common law duty of care arising either from the imposition of the statutory duty or from the performance of it”. He referred to the speech of Lord Hoffmann in Stovin v Wise [1996] AC 923, 952-953 with whom two of their Lordships agreed that: “Whether a statutory duty gives rise to a private cause of action is a question of construction... If the policy of the Act is not to create a statutory liability to pay compensation, the same policy should ordinarily exclude the existence of a common law duty of care.” In the present case Lord Woolf MR considered that the complaints made related to the manner in which the local authority and the social workers performed their duties under the relevant legislation—and these involved largely the taking of decisions of a discretionary nature—such as whether to arrange adoption, which foster parents to approve. Lord Woolf MR, at P 375, referred to the speech of Lord Browne-Wilkinson in X (Minors) v Bedfordshire County Council [1995] AC 633, 736:563 [2001] 2 AC Barrett v Enfield London Borough Council (HL(E)) Lord Slynn of Hadley “Most statutes which impose a statutory duty on local authorities confer on the authority a discretion as to the extent to which, and the methods by which, such statutory duty is to be performed, It is clear both in principle and from the decided cases that the local authority cannot be liable in damages for doing that which Parliament has authorised. Therefore if the decisions complained of fall within the ambit of such statutory discretion they cannot be actionable in common law. However if the decision complained of is so unreasonable that it falls outside the ambit of the discretion conferred upon the local authority, there is no a priori reason for excluding all common law liability.” On that basis the plaintiff had to show that “the defendant’s decisions were outside the ambit of discretion granted to the local authority by the legislation”: per Lord Woolf MR, at p 376. Like Judge Brandt, Lord Woolf MR agreed that reasonable foreseeability and proximity were established by the plaintiff in this case. The question was whether following Caparo Industries plc v Dickman [1990] 2 AC 605 it was just and reasonable to “extend the common law duty of care by analogy to a local authority when it is performing its duties to protect and promote the welfare of children in its care”. The decision in the Bedfordshire case where their Lordships had refused to recognise a duty of care, he accepted was different since a question there arose as to whether a duty of care was owed to a child not in care. Lord Woolf MR, however, agreed with the reasoning of the Court of Appeal in H v Norfolk County Council [1997] x FLR 384 onan application for leave to appeal from a decision striking out a claim that a child had been physically and sexually abused by his foster father. There it was said that the authority had been negligent in not properly monitoring the placement of the child in care. Simon Brown LJ said, at p 390: “In my judgment, however, the policy considerations in the present case, although obviously not in every respect identical to those arising in the Bedfordshire case, are strictly comparable and, taken cumulatively, have sufficient potency to override the competing consideration that ‘wrongs should be remedied’.” Lord Woolf MR added [1998] QB 367, 377, that in relation to the decisions of the local authority of which complaint is made in the present case: “it would be contrary to the public interest and therefore not just or reasonable to impose a duty of care. The very fact that the defendant is stated to have been in the position of a parent to the plaintiff at the material time brings home the public policy aspects of the situation. Decisions of this nature often require a difficult and delicate balancing of conflicting interests.” Although a parent could be liable to a child for negligently driving a car he should not, nor should a local authority, be liable in making decisions “with regard to their children’s future ... The relationship of the parent and the local authority to the child in their care is different from that which exists between a school’s staff and its pupils where the staff are providing educational services for the pupils.”564 Barrett v Enfield London Borough Council (HL(E)) [2001]2. AC Lord Slynn of Hadley He continued, at p 378: “However I am not suggesting a blanket immunity but an immunity in relation to the making of those decisions as to the future of a child which are normally made by a parent . .. Social workers and other members of the staff could however be negligent in an operational manner. They could, for example, be careless in looking after property belonging to the child or in reporting what they had observed for the purposes of an interdisciplinary assessment of what action should be taken in relation to a child. They could also be negligent in failing to carry out instructions properly. If, in implementing their decisions or the decisions of the authority, a social worker was careless, I accept there would be a case for the defendant being vicariously liable if the necessary causation of injury or other damage could be established. However in this case, although complaints as to this type of conduct are made, there could be no prospect of the plaintiff succeeding on those complaints alone. He would be quite unable to attribute any part of his condition to that sort of incident. This potential liability does not therefore assist the plaintiff here.” Evans LJ agreed with Lord Woolf MR stressing, inter alia, at p 379¢, that the injury complained of was “the cumulative effect of what is alleged to have been their negligent conduct of his upbringing”, such conduct involving toa large degree the exercise of discretion “taking unquantifiable as well as quantifiable factors into account”: p 380c. There was no prospect of the evidence establishing that the acts of negligence jointly or separately could have caused or made any substantial contribution to the injuries claimed, Schiemann LJ agreed, at p 381F: “I see no prospect of the plaintiff establishing that his present complaints are attributable to errors made outwith the statutory discretion.” ‘The court dismissed the application for leave to appeal. Is it arguable that there is a duty of care? In Caparo Industries plc v Dickman [1990] 2 AC 605 it was stressed that in deciding whether to develop a novel category of negligence, the court should proceed incrementally and by analogy with decided categories. In the Bedfordshire case [1995] 2 AC 633,751, Lord Browne-Wilkinson said: “We were not referred to any category of case in which a duty of care has been held to exist which is in any way analogous to the present cases. Here, for the first time, the plaintiffs are seeking to erect a common law duty of care in relation to the administration of a statutory social welfare scheme ... To my mind, the nearest analogies are the cases where a common law duty of care has been sought to be imposed upon the police (in seeking to protect vulnerable members of society from wrongs done to them by others) or statutory regulators of financial dealings who are seeking to protect investors from dishonesty. In neither of those cases has it been thought appropriate to superimpose on the statutory regime a common law duty of care giving rise to a claim in damages for failure to protect the weak against the wrongdoer.” He added: “the courts should proceed with great care before holding liable in negligence those who have been charged by Parliament with the task of protecting society from the wrongdoings of others.”S65 (2001]2 AC Barrett v Enfield London Borough Council (HL(E)) Lord Slynn of Hadley The defendant relies on the Bedfordshire case not only for these statements of principle, but also for the actual decision in the cases dealt with in the judgment. It is therefore an important question as to whether the decision in the Bedfordshire case concludes the present appeal. In the various cases claims were made (a) that a local authority and a psychiatrist employed by it were in breach of duty under the Child Care Act 1980 and were negligent in failing to investigate the case of a child suspected of having been sexually abused; (b) that a local authority, a social worker and a health visitor employed by it had failed to take action in respect of children living in appalling conditions and had failed to prevent ill-treatment and ill-health negligently and in breach of the 1969, 1980 and r989 Acts; (c) that negligently and in breach of the Education Acts of 1944 and 1981, a local authority and the headmaster of a local authority school had failed to discover that children had special educational needs or to provide for those needs. The statement of claim was struck out by the judge in (a) and (b) and the judge’s decision upheld by the Court of Appeal. In the case of (c), the Court of Appeal upheld the judge’s order, striking out the claims for breach of statutory duty, but held that the claims in negligence should not be struck out, since they were not “unarguable or incontestably bad.” On appeal, Lord Browne-Wilkinson, with whom the other members of the House agreed, analysed the different categories of cases, where damages may be claimed for injury allegedly caused by acts or omissions arising from the existence of, or in the performance of, a statutory power or duty. As it is no longer contended that the plaintiff here can rely on a breach of statutory duty, the questions relevant for the present appeal are (a) whether Lord Browne-Wilkinson’s Category C (p 735) is established, ie that a common law duty of care arises either (i) from the existence of the statutory duty, or (ii) because in the performance of the statutory duty, the defendant assumes an obligation to exercise reasonable care towards the plaintiff, or (b) whether the defendant is liable for a breach of a duty of care owed by an employee for whose acts or omissions the defendant is vicariously liable. Lord Browne-Wilkinson referred to the distinction between the cases where it was sought to say thar a duty of care was owed in the way in which a statutory discretion was exercised and those where the duty of care was said to arise from the way in which the statutory duty had been exercised in practice. As to the former, he said, at p 736: “Most statutes which impose a statutory duty on local authorities confer on the authority a discretion as to the extent to which, and the methods by which, such statutory duty is to be performed. It is clear both in principle and from the decided cases that the local authority cannot be liable in damages for doing that which Parliament has authorised. Therefore if the decisions complained of fall within the ambit of such statutory discretion they cannot be actionable in common law. However if the decision complained of is so unreasonable that it falls outside the ambit of the discretion conferred upon the local authority, there is no a priori reason for excluding all common law liability.” My Lords, in deciding whether the present case is concluded by what is said in the Bedfordshire case, it is important to have regard to the facts in the Bedfordshire case as to the distinction drawn between what could and what could not be struck out before trial. There were two groups of cases566 Barrett v Enfield London Borough Council (HL(E)) (2001]2 AC Lord Slynn of Hadley consisting, first, of the abuse cases where children were alleged to have been abused either physically or sexually and where the local authority had failed to put children on the Child Protection Register or to take them into care despite disturbing reports having been produced and, secondly, the education cases where the local authority had failed to investigate or to take steps to deal with children who have special educational needs. As to the abuse cases, Lord Browne-Wilkinson held that where very difficult and sensitive decisions had to be taken in a statutory framework, very clear language would be needed to establish a right to damages under the statute if an erroneous decision was taken: such a right was not to be found in the Children and Young Persons Act 1969 ot the Children Act 1989. As to the common law claim, it was accepted that some of the allegations made did not require the investigation of policy matters outside the remit of the court. On the other hand, having referred to the question as to whether the allegations of breach of duty were all in respect of “decisions within the ambit of the local authority’s statutory discretion” he continued in the Bedfordshire case, at p 749: “I strongly suspect that, if the case were to go to trial, it would eventually fail on this ground since, in essence, the complaint is that the local authority failed to take steps to remove the children from the care of their mother, ie negligently failed properly to exercise a discretion which Parliament has conferred on the local authority. But again, it would not be right to strike out the claim on this ground because it is possible that the plaintiffs might be able to demonstrate at trial that the decisions of the local authority were so unreasonable that no reasonable local authority could have reached them and therefore, for the reasons given by Lord Reid in the Dorset Yacht case [1970] AC 1004, 1031, fall outside the ambit of the discretion conferred by Parliament.” However, applying the third test in the decision in the Caparo case [1990] 2 AC 605, it was not just and reasonable to impose on the local authority a common law duty of care in relation to the performance of its statutory duties to protect children, partly because such decisions require thé participation of several bodies acting jointly, partly because such decisions involved a very delicate task, partly because if such liability existed authorities would be likely to be more cautious and defensive, which could be to the disadvantage of the child, and partly because other procedures were available to investigate grievances. Having stressed the need for caution, he concluded that there was no duty of care owed personally to the child by individual psychiatrists or social workers engaged to advise the local authority so as to make the local authority vicariously liable if those individuals were negligent. Accordingly the claims of the plaintiffs in the child abuse cases failed both at common law and under the statutes. In the education cases [1995] 2 AC 633 (Dorset, Hampshire, Bromley) where it was alleged that the authorities had failed to investigate the need for or to provide proper schooling, the Court of Appeal had held that the claims for damages based on the Education Acts had rightly been struck out, but that the claims based on common law negligence should not have been struck out, since they were not manifestly bad. Before the House it was contended in the Dorset case (a) that the authority had failed to perform carefully the duty imposed on it by the567 [2001]2.AC Barrett v Enfield London Borough Council (HL(E)) Lord Slynn of Hadley Education Act 1981; (b) that the authority was secondarily liable for the negligent advice given by the psychology service provided by the local authority. As to (a), the House accepted that it was arguable that the result depended on whether the decisions made carelessly were such that no reasonable authority could have breached them, which depended on an investigation of the facts. It held, however, that it would not be right to superimpose on the statutory machinery a duty of care to exercise the statutory discretions carefully, even limiting liability to cases where no reasonable authority could have reached the same conclusion, since the parents were involved in the process of decision making and could appeal, the number of cases which might be brought would be very great, but the success rate would be very small. In addition another remedy was available in the vicarious liability of the authority for the professional advice on which the authority's decisions were taken. On the other hand, once it actually provided a psychology service, the defendant authority might be under a statutory duty of care and: “once the decision is taken to offer such a service, a statutory body is in general in the same position as any private individual or organisation holding itself out as offering such a service. By opening its doors to others to take advantage of the service offered, it comes under a duty of care to those using the service to exercise care in its conduct. The position is directly analogous with a hospital conducted, formerly by a local authority now by a health authority, in exercise of statutory powers. In such a case the authority running the hospital is under a duty to those whom it admits to exercise reasonable care in the way in which it runs it”: P 763. The educational psychologist and other staff exercising skill owed a duty to use reasonable skill and care in assessing and determining the child’s educational needs and the authority would be vicariously liable if they were in breach, though the test in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 would apply to them. These were matters which needed to be investigated. In the Hampshire case [1995] 2 AC 633, it was held that the defendant authority could be vicariously liable for a breach of the duty of care owed by a headmaster or other advisory staff toa pupil: “In my judgment a school which accepts a pupil assumes responsibility not only for his physical well being but also for his educational needs. The education of the pupil is the very purpose for which the child goes to the school. The head teacher, being responsible for the school, himself comes under a duty of care to exercise the reasonable skills of a headmaster in relation to such educational needs. If it comes to the attention of the headmaster that a pupil is under-performing, he does owe a duty to take such steps as a reasonable teacher would consider appropriate to try to deal with such under-performance”: p 766. In the Bromtley case, the House agreed with the Court of Appeal that the direct claim under the statute should be struck out, but it also struck out the direct claim in negligence which was based solely on the exercise of a statutory discretion. It was, however, accepted that it was arguable that568 Barrett v Enfield London Borough Council (HL(E)) [2001] 2 AC Lord Slynn of Hadley there might be a duty on the part of individual professional members of staff for breach of which the local authority might be vicariously liable. Thus in the Bedfordshire casc, your Lordships’ House accepted, at P7496, that in considering the direct liability at common law of the local authorities, “the public policy consideration which has first claim on the loyalty of the law is that wrongs should be remedied and that very potent counter considerations are required to overrule that policy”. Yet a number of policy considerations in those cases led to the conclusion that it would not be fair, just and reasonable (the third test in the Caparo case [1990] 2 AC 605) to impose a duty of care on the local authorities, Lord Browne- Wilkinson in his speech attached importance in particular (i) to the multi- disciplinary Child Protection Conference involved in deciding whether a child should be placed on the Child Protection Register; (ii) to the balance involved in dealing with the “extraordinarily delicate decisions” in having regard to the rights of the child, but also to the advantages of not disrupting the family environment; (iii) ro the risk of the authority being over-cautious and defensive if it were subject to judicial decisions in a damages claim; (iv) to the fact that the statutory complaints procedure and the Ombudsman would allow complaints to be investigated; (v) to the fact that no analogous duty had been recognised before. Whilst not casting doubt on the validity of these factors in the context of the investigations, or the steps which it was said should have been taken, in those cases of child abuse and neglect of educational needs, it does not seem to me that they necessarily have the same force separately or cumulatively in the present case. Thus, although once a child is in care, there may well be co- operation between different social welfare bodies, the responsibility is that of the local authority and its social and other professional staff. The decision to remove the child from its home is already taken and the authority has statutory powers in relation to the child which do not necessarily involve the exercise of the kind of discretion involved in taking a child from its family into care. As to the likelihood of an authority being over-cautious, I am of the same opinion as Evans L] in the Court of Appeal in this case [1998] QB 367, 380: “I would agree that what is said to be a ‘policy’ consideration, namely, that imposing a duty of care might lead to defensive conduct on the part, of the person concerned and might require him to spend time or resources, on keeping full records or otherwise providing for self-justification, if called upon to do so, should normally be a factor of little, if any, weight. If the conduct in question is of a kind which can be measured against the standards of the reasonable man, placed as the defendant was, then I do not see why the law in the public interest should not require those standards to be observed.” Nor do I think that the remedies accepted to be available in the Bedfordshire case [1995] 2 AC 633 are likely to be as efficacious as the recognition by the court that a duty of care is or may be owed at common law. T agree with Sir Thomas Bingham MR in his dissenting judgment in the Court of Appeal in the Bedfordshire case, at p 662G: “I cannot accept, as a general proposition, that the imposition of a duty of care makes no contribution to the maintenance of high standards.”569 [2001]2 AC Barrett v Enfield London Borough Council (HL(E)) Lord Slynn of Hadley In summary the Bedfordshire case establishes that decisions by local authorities whether or not to take a child into care with all the difficult aspects that involves and all the disruption which may come about are not ones which the courts will review by way of a claim for damages in negligence, though there may be other remedies by way of judicial review or through extra judicial routes such as the Ombudsman. ‘The question in the present case is different, since the child was taken into care; it is therefore necessary to consider whether any acts or omissions and if so what kind of acts ot omissions can ground a claim in negligence. The fact that no completely analogous claim has been accepted by the courts previously points to the need for caution and the need to proceed incrementally” and “by analogy with decided cases”. As to previous cases it is to be noted by way of example that in the Bedfordshire case, Lord Browne-Wilkinson said, at p 76a: “It is accepted that a school and the teachers at a school are under a duty to safeguard the physical well being of the pupil: Van Oppen u Clerk to the Bedford Charity Trustees [1990] 1 WLR 235.” Although there was no previous case which said so, “In my judgment a school which accepts a pupil assumes responsibility not only for his physical well being but also for his educational needs.” In R v Deputy Governor of Parkhurst, Ex p Hague [1992] 1 AC 58, 166, Lord Bridge of Harwich said: “Whenever one person is lawfully in the custody of another, the custodian owes a duty of care to the detainee. If the custodian negligently allows . . . the detainee to suffer in any way in his health he will be in breach of that duty.” That parents may owe a duty of care in some circumstances to their child is clear ftom Carmarthenshire County Council v Lewis [955] AC 549, 561. In Gold v Essex County Council [1942] 2 KB 293, 309, Goddard LJ clearly accepted that a local authority which sets up a hospital under the Public Health Act 1936 will be liable to someone injured by negligent nursing. The duty of reasonable care on the part of the public authority exercising those powers is clearly recognised. Sir Thomas Bingham MR in his dissenting, judgment in the Bedfordshire case [1995] 2 AC 633, 666 plainly and in my view rightly, recognised that social workers are to be regarded as members of a skilled profession when it comes to considering the obligation to exercise reasonable care. He said: “Those who engage professionally in social work bring to their task skill and expertise, the product partly of training and partly of experience, which ordinary uninstructed members of the public are bound to lack. Thave no doubt that they should be regarded as members of a skilled profession.” It is obvious from previous cases and indeed is self-evident that there is a real conflict between on the one hand the need to allow social welfare services exercising statutory powers to do their work in what they as experts consider is the best way in the interests first of the child, but also of the parents and of society, without an unduly inhibiting fear of litigation if something goes wrong, and on the other hand the desirability of providing a570 Barrett v Enfield London Borough Council (HL(E)) [2001] 2.AC Lord Slynn of Hadley remedy in appropriate cases for harm done to a child through the acts or failure to act of such services. It is no doubt right for the courts to restrain within reasonable bounds claims against public authorities exercising statutory powers in this social welfare context. It is equally important to set reasonable bounds to the immunity such public authorities can assert. In Andenas and Fairgrieve “Sufficiently Serious? Judicial Restraint in Tortious Liability of Public Authorities on the European Influence” (see English Public Law and the Common Law of Europe, ed Andenas (1998) p 285) the authors show the difficult problems which have arisen in cases involving claims for negligence in a statutory context and not least in analysing “the method adopted by the judiciary to ensure restraint in negligence actions against public bodies”: p 286. The position is in some respects clear; in others it is far from clear. Thus it is clear that where a statutory scheme requires a public authority to take action in a particular area and injury is caused, the authority taking such action in accordance with the statute will not be liable in damages unless the statute expressly or impliedly so provides. Nor will the authority be liable in damages at common law if its acts fall squarely within the statutory duty. Where a statute empowers an authority to take action in its discretion, then if it remains within its powers, the authority will not normally be liable under the statute, unless the statute so provides, or at common law. This, however, is subject to the proviso that if it purports to exercise its discretion to use, or it uses, its power ina wholly unreasonable way, it may be regarded as having gone outside its discretion so that it is not properly exercising its power, when liability in damages at common law may arise. It can no longer rely on the statutory power or discretion as a defence because it has gone outside the power. Thus Lord Reid said in Dorset Yacht Co Ltd v Home Office [1970] AC 1004, 1031: “Where Parliament confers a discretion the position is not the same. Then there may, and almost certainly will, be ertors of judgment in exercising such a discretion and Parliament cannot have intended that members of the public should be entitled to sue in respect of such errors. But there must come a stage when the discretion is exercised so carelessly or unreasonably that there has been no real exercise of the discretion which Parliament has conferred. The person purporting to exercise his discretion has acted in abuse or excess of his power. Parliament cannot be supposed to have granted immunity to persons who do that.” Lord Diplock in Dorset Yacht approached the question as to how far an authority could be liable at common law for the exercise of a discretion given by statute by asking whether the act was ultra vires the power coiferred in an administrative law sense. This on the face of it may be different from the approach of the other members of the House, but I do not consider that there is any real difference between them as to the substance of the test, since Lord Reid considers that, before the common law duty of care can arise, the authority must have acted so carelessly or unreasonably that there has been no real exercise of the discretion and the authority has “acted in abuse or excess of its power”, which is very much the administrative lawA tee [2001]2. AC Barrett v Enfield London Borough Council (HL(E)) Lord Slynn of Hadley test. Lord Wilberforce in Anns v Merton London Borough Council [1978] AC 728, 755 accepted this test. “But this duty, heavily obligational though it may be, is still a duty arising under the statute. There may be a discretionary element in its exercise—discretionary as to the time and manner of inspection, and the techniques to be used. A plaintiff complaining of negligence must prove, the burden being on him, that action taken was not within the limits of a discretion bona fide exercised, before he can begin to rely upon a common law duty of care.” On this basis, if an authority acts wholly within its discretion—ie it is doing what Parliament has said it can do, even if it has to choose between several alternatives open to it, then there can be no liability in negligence. It is only if a plaintiff can show that what has been done is outside the discretion and the power, then he can go on to show the authority was negligent. But if that stage is reached, the authority is not exercising a statutory power, but purporting to do so and the statute is no defence. This, however, does not in my view mean that if an element of discretion is involved in an act being done subject to the exercise of the overriding statutory power, common law negligence is necessarily ruled out. Acts may be done pursuant and subsequent to the exercise of a discretion where a duty of care may exist—as has often been said even knocking a nail into a piece of wood involves the exercise of some choice or discretion and yet there may be a duty of care in the way it is done. Whether there is an element of discretion to do the act is thus not a complete test leading to the result that, if there is, a claim against an authority for what it actually does or fails to do must necessarily be ruled out. Another distinction which is sometimes drawn between decisions as to “policy” and as to “operational acts” sounds more promising. A pure policy decision where Parliament has entrusted the decision to a public authority is not something which a court would normally be expected to review in a claim in negligence. But again this is not an absolute test. Policy and operational acts are closely linked and the decision to do an operational act may easily involve and flow from a policy decision. Conversely, the policy is affected by the result of the operational act: see R v Chief Constable of Sussex, Ex p International Trader’s Ferry Ltd [1999] 2 AC 418. Where a statutory power is given to a local authority and damage is caused by what it does pursuant to that power, the ultimate question is whether the particular issue is justiciable or whether the court should accept that it has no role to play. The two tests (discretion and policy/operational) to which I have referred are guides in deciding that question. The greater the element of policy involved, the wider the area of discretion accorded, the more likely it is that the matter is not justiciable so that no action in negligence can be brought. It is true that Lord Reid and Lord Diplock in the Dorset Yacht case accepted that before a claim can be brought in negligence, the plaintiffs must show that the authority is behaving so unreasonably that it is not in truth exercising the real discretion given to it. But the passage Thave cited was, as I read it, obiter, since Lord Reid made it clear that the case did not concern such a claim, but rather was a claim that Borstal officers had been negligent when they had disobeyed orders given to them. Moreover, I share Lord Browne-Wilkinson’s reluctance to introduce the572 Barrett v Enfield London Borough Council (HL(E)) [2001]2 AC Lord Slynn of Hadley concepts of administrative law into the law of negligence, as Lord Diplock appears to have done. But in any case I do not read what either Lord Reid or Lord Wilberforce in the Anns case (and in particular Lord Reid) said as to the need to show that there has been an abuse of power before a claim can be brought in negligence in the exercise of a statutory discretion as meaning that an action can never be brought in negligence where an act has been done pursuant to the exercise of the discretion. A claim of negligence in the taking of a decision to exercise a statutory discretion is likely to be barred, unless it is wholly unreasonable so as not to be a real exercise of the discretion, or if it involves the making of a policy decision involving the balancing of different public interests; acts done pursuant to the lawful exercise of the discretion can, however, in my view be subject to a duty of care, even if some element of discretion is involved. Thus, accepting that a decision to take a child into care pursuant to a statutory power is not justiciable, it does not in my view follow that, having taken a child into care, an authority cannot be liable for what it or its employees do in relation to the child without it being shown that they have acted in excess of power. It may amount to an excess of power, but that is not in my opinion the test to be adopted: the test is whether the conditions in the Caparo case [1990] 2 AC 605 have been satisfied. In Rowling v Takaro Properties Ltd [x988] AC 473, sor Lord Keith of Kinkel, said in giving the opinion of the Privy Council in relation to the policy/operational test: “They incline to the opinion, expressed in the literature, that this distinction does not provide a touchstone of liability, but rather is expressive of the need to exclude altogether those cases in which the decision under attack is of such a kind that a question whether it has been made negligently is unsuitable for judicial resolution, of which notable examples are discretionary decisions on the allocation of scarce resources or the distribution of risks: see especially the discussion in Craig on Administrative Law (1983), pp 534-538. If this is right, classification of the relevant. decision as a policy or planning decision in this sense may exclude liability; but a conclusion that it does not fall within that category does not, in their Lordships’ opinion, mean that a duty of care will necessarily exist.” Both in deciding whether particular issues are justiciable and whether if a duty of care is owed, it has been broken, the court must have regard to the statutory context and to the nature of the tasks involved. The mere fact that something has gone wrong or that a mistake has been made, or that someone has been inefficient does not mean that there was a duty to be careful or that such duty has been broken. Much of what has to be done in this area involves the balancing of delicate and difficult factors and courts should not be too ready to find in these situations that there has been negligence by staff who largely are skilled and dedicated. Yet although in my view the staff are entitled to rely mutatis mutandis on the principle stated in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 the jurisdiction to consider whether there is a duty of care in respect of their acts and whether it has been broken is there. I do not see how the interests of the child can be sufficiently protected otherwise.ee [2001]2 AC Barrett v Enfield London Borough Council (HL(E)) Lord Slynn of Hadley In the Court of Appeal in the present case [1998] QB 367, Lord Woolf MR makes it clear that he does not suggest that a social services authority has a total immunity for whatever happens when it is acting or purporting to act pursuant to statutory powers or duties. He accepts, at p 378, the principle assumed in Capital & Counties ple v Hampshire County Council [1997] QB 1004, 1040A, namely, “there is no general i immunity for professionals or others carrying out difficule tasks in stressful circumstances.” The staff of the local authority exercising its functions should be in no better or worse a position. He accepts that social workers and staff “could however be negligent in an operational manner” and he gives as examples, carelessness in looking after a child’s property, in failing to carty out instructions carefully in the way they report or fail to report what they have observed for the purposes of an assessment as to what should be done in relation to the child’s future. So equally a parent does not have a blanket immunity for whatever he does to his child; negligence in driving a car by a parent would still be actionable if the child was caused injury. Lord Browne-Wilkinson in the Bedfordshire case [1995] 2 AC 633, as has been shown, accepted that in respect of some matters—failing to detect or to take action when a child was clearly not doing as well as he could be doing, a psychiatrist failing to detect and report on the child’s problem—the failure could be actionable. This means I accept that each case has to be looked at on its own facts and in the light of the statutory context. But this is so in many areas of the law and it is not in itself a reason for refusing to recognise a liability in negligence. In the present case, the allegations which I have summarised are largely directed to the way in which the powers of the local authority were exercised, It is arguable (and that is—all we are concerned with in this case at this stage) that if some of the allegations are made out, a duty of care was owed and was broken. Others involve the exercise of a discretion which the court may consider to be not justiciable—e g whether it was right to arrange adoption at all, though the question of whether adoption was ever considered and if not, why not, may be a matter for investigation in a claim of negligence. I do not think it right in this case to go through each allegation in detail to assess the chances of it being justiciable. The claim is of an on-going failure of duty and must be seen as a whole. I do not think that it is the right approach to look only at each detailed allegation and to ask whether that in itself could have caused the injury. That must be done but it is appropriate also to consider whether the cumulative effect of the allegations, if true, could have caused the injury. Nor do I accept that because the court should be slow to hold that a child can sue its parents for negligent decisions in its upbringing that the same should apply necessarily to all acts of a local authority. The latter has to take decisions which parents never or rarely have to take (eg as to adoption or as to an appropriate foster parent or institution). In any case, in respect of some matters, parents do have an actionable duty of care. On the basis that the Bedfordshire case does not conclude the present case in my view it is arguable that at least in respect of some matters alleged both individually and cumulatively a duty of care was owed and was broken.574 Barrett v Enfield London Borough Council (HL(E)) [200112 Ac Lord Slynn of Hadley Causation All members of the Court of Appeal considered that many of the allegations here were not justiciable, but Lord Woolf MR said, at p 378 that even if there were situations where a social worker could be negligent in implementing the decisions of the authority, “although complaints as to this type of conduct are made, there could be no prospect of the plaintiff succeeding on those complaints alone. He would be quite unable to attribute any part of his condition to that sort of incident.” Evans, LJ added, at p 379: “the various acts and omissions of individual social workers . . . cannot realistically be said to have been specific causes of the injury of which the plaintiff complains”. He saw no prospect of the evidence establishing that there were individual acts of negligence singly or together which could be said to have caused or even made any substantial (ie non-negligible) contribution to the injury alleged. Schiemann LJ also saw no prospect of the plaintiff establishing that his complaints were attributable to errors made outside the statutory discretion. With great respect to the opinion of the members of the Court of Appeal, Ihave come to the view that this claim should not be struck out at this stage on that ground. It may well be that many of the allegations will be difficult to establish and that they will fail. In my opinion, however, the importance of seeing in each case whether what has been done is an act which is justiciable or whether it is an act done pursuant to the exercise or purported exercise of a statutory discretion which is not justiciable requires in this kind of matter, except in the clearest cases, an investigation of the facts. This is not the clearest case taken as a whole, even though some allegations if they stood alone might justifiably be struck out. I consider also that the question whether it is just and reasonable to impose a liability of negligence is not to be decided in the abstract for all acts or omissions of a statutory authority, but is to be decided on the basis of what is proved. The comment of Andenas and Fairgrieve that one of the problems about the uncertainty of the law in this area 1s that many cases are decided on an application to strike out or on a preliminary issue on assumed facts as stated in the statement of claim— “Dealing with such hypothetical facts deprives the courts of the opportunity to apply the operational-policy distinction to concrete facts. It is likely to exacerbate the formulation of clear statements of principle“—is to be borne in mind. See, also the discussion of the facts in Phelps v Hillingdon London Borough Council [1999] 1 WLR 500 where the importance of investigating the precise nature of the service provided was made clear. In the present case each member of the Court of Appeal appears to have taken the view that the plaintiff would not be able to show that operational acts, even if negligently performed, either separately or cumulatively caused the condition of which the plaintiff complained. But causation is largely a question of fact. In the light of evidence of Dr Weir, a consultant psychiatrist, and of Mr Brendan Clowry, a consultant psychologist, the latter saying of the plaintiff that “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” it would not be right to rule on an application to strike out that the matters complained of as injury could not have been caused either by particular events or by the accumulation of matters which are relied on in the statement of claim. Ataie [200112 AC Barrett v Enfield London Borough Council (HL(E)) Lord Slynn of Hadley the trial the doctors may attach greater weight to some factors than to others, but they seem to be attaching weight to the cumulative effect of what happened. I also agree with the view expressed by Lord Woolf, at p 378: “I am by no means sure that the defendant would be assisted by [the allegation that the plaintiff's cause of action is not capable of sounding in damages as no claim has been made that the plaintiff has sustained recognisable psychiatric injuries] if it had to be relied on.” As Lord Lloyd of Berwick said in Page v Smith [1996] AC 155, 197: “Subject to the above qualifications [ic as to the difference between primary and secondary victims}, the approach in all cases should be the same, namely, whether the defendant can reasonably foresee that his conduct will expose the plaintiff to the risk of personal injury, whether physical or psychiatric. If the answer is yes, then the duty of care is established, even though physical injury does not, in fact, occur. There is no justification for regarding physical and psychiatric injury as different ‘kinds of damage’.” Ido not consider that it would be right to strike out this claim on the basis that causation could not be established. That is a matter for investigation. Accordingly, I consider that this claim should not be struck out. This does not mean that I think thar the plaintiff must or will win. He faces considerable difficulties, but with great respect to the experience and judgment of the members of the Court of Appeal, I consider that he is entitled to have these matters investigated and not to have them summarily dismissed. 1 would accordingly allow the appeal. LORD NOLAN My Lords, I have had the advantage of reading in draft the speeches of Lord Browne-Wilkinson, Lord Slynn of Hadley and Lord Hutton. For the reasons they have given, I would also allow the appeal. LORD STEYN My Lords, I have had the advantage of reading in draft the speeches of Lord Browne-Wilkinson, Lord Slynn of Hadley and Lord Hutton. For the reasons they have given, I would also allow the appeal. LORD HUTTON 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. Phe particulars of common law negligence pleaded by the plaintiff are copious. The principal complaints are helpfully summarised by Lord Woolf MR [1998] QB 367, 372-373: “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576 Barrett v Enfield London Borough Council (HL(E)) [2001]2 AC Lord Hutton her for rx years. Reference should also be made to the criticism of how his relationship with his half-sister was managed.” At this carly 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 one year and 10 months Mrs Kearnes, who was an unqualified welfare assistant, became the plaintiff's social worker. Then, ata later stage, when he was aged seven years and ten 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 Kearneses’ 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. Lord Woolf MR stated, at p 375: 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