Historically, local authorities were protected by ‘immunity from suit’ in respect of  negligence claims on public policy grounds, on the basis that the risk of legal proceedings could deter authorities from performing their statutory duties.

This position has been subject to numerous challenges, particularly since the Human Rights Act 1998 came into force and domestic Courts have had to give effect to the European Convention on Human Rights.

In the cases of D v. East Berkshire Community Health NHS Trust, K and Another v. Dewsbury Healthcare NHS Trust and Another and K and another v. Oldham NHS Trust and Another [2003] EWCA CIV 1151 three sets of parents brought compensation claims for psychiatric injury against doctors and social workers who had wrongly accused them of abusing their children. The authorities were accused of negligently misdiagnosing the children’s injuries. The parents argued that the authorities owed a duty of care to them when investigating the suspected abuse claims as the childrens’ parents. The claims were dismissed at first instance and the parties appealed.

The Court of Appeal dismissed the appeals on behalf of the parents on the basis the local authorities owed the children a duty of care and this was in conflict with any duty owed to their parents. It would therefore not be “fair, just and reasonable” to impose a duty of care in respect of the parents in these circumstances. In particular, the Court was conscious that professionals should not be deterred from acting in the child’s best interests for fear of breaching their duty to the child’s parents.

However, significantly, the Court of Appeal found that the child in K and Another v. Dewsbury did have a claim against the local authority. Of particular relevance to the issue of witness immunity, (relying on the decision in Darker and others v. Chief Constable of the West Midlands Police [2001] 1 AC 435) the Court held that there is a difference “between carrying out an investigation and preparing evidence to be given as a witness at a trial” and further, that witness immunity “is not to be used as a shield…from action for things done while they are acting as … investigators”. This far-reaching decision means that abuse compensation claims can be brought against local authorities for negligently investigating abuse cases.

For their part, the parents appealed to the House of Lords but their appeal was dismissed. The House of Lords held that the authorities do not owe a duty of care to parents suspected of abuse because they are not in “sufficient proximity to give rise to a duty of care”. Whilst there was a need to balance safeguarding the children from abuse with protecting their parents right to a family life under Article 8 of the Convention, providing the authorities carried out the investigation in “good faith” any interference with their Article 8 right was justified.

The above notwithstanding, it appears that parents may have some redress in the European Court of Human Rights (ECtHR). For example, in AD and OD v. UK (Application number 28680/06) a mother and her son brought an application for damages for the distress caused by a wrongful care order. The mother had already tried to bring a claim in her local Court but her claim was rejected on the grounds that the local authority did not owe her a duty of care. The ECtHR upheld the complaint on the basis that there had been a violation of her Article 8 right to a private and family life and further, that she had also been deprived of an effective remedy in her local Court in contravention of Article 13.

Accordingly, whilst the UK Courts are currently seeking to preserve some form of immunity for local authorities, by protecting them from claims from parents at least, in view of the increasing ECtHR jurisprudence, it remains to be seen how long this will be sustainable.

It is also worth noting the recent decision in Jones v Kaney [2011] UKSC 13. In that case, the Applicant had been involved in a road accident. He pursued a personal injury claim and in the course of those proceedings, his solicitors instructed a psychologist (the Respondent) to prepare a report. The other driver’s insurers subsequently commissioned their own report which concluded that the Applicant was exaggerating his injuries. The experts were then asked to prepare a joint report, which the Respondent signed although did not agree with. The report was detrimental to the Applicant’s claim and he was forced to settle his claim. He sought to bring a claim in negligence against the Respondent but at first instance it was held that she was protected by witness immunity. The matter was referred to the Supreme Court who abolished the doctrine of witness immunity, suggesting that “all who provide professional services which involve a duty of care are at risk of being sued for breach of that duty. They customarily insure against that risk”.  

In giving judgment Lord Brown stated “for the purposes of this brief judgment I mean by ‘an expert witness’ a witness selected, instructed and paid by a party to litigation for his expertise and permitted on that account to give opinion evidence in the dispute. I am not referring, for example, to a treating doctor or forensic pathologist, either of whom may be called to give factual evidence in the case as well as being asked for their professional opinions upon it without their having been initially retained by either party to the disputes”. It therefore remains to be seen whether this will also apply to local authorities when giving evidence in child abuse cases as well as when investigating them.