See our earlier report on this case.

A number of civil cases have highlighted failures on the part of social services in the past. See the case of Pierce v Doncaster Metropolitan Borough Council for an example of the “standard of care” expected of social workers.

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This case was one of a number, where the court had restricted the rights of parents to sue when their children were taken into care as a result of a misdiagnosis or finding of abuse that proved to be incorrect. The following cases affirmed the principle that whilst a child might have a claim against a public authority in such circumstances, the parents would not.

D v East Berkshire Community Health NHS Trust, K and Another v Dewsbury Healthcare NHS Trust and Another, K and Another v Oldham NHS Trust and Another [2003]

JD v East Berkshire Community Health NHS Trust and Others and Two Other Actions [2005]

B v Reading Borough Council (1) Wokingham District Council (2) The Chief Constable of Thames Valley Police (3) [2007]

Stephanie Lawrence v Pembrokeshire County Council [2007]

In the case before the European Court of Human Rights (which the writer has not yet read) the Claimant was awarded a substantial sum after Bury Council put her one-year-old into care for four months. The local authority suspected that she had been physically abused due to the presence of bone fractures, but a later medical diagnosis showed that the child was suffering from brittle bone disease.

Such cases are very rare, but the consequences of a misdiagnosis and the following care proceedings can be devastating, as was seen in the case of Webster v Norfolk County Council and Another 2009.

In the present case, the European Court of Human Rights (ECHR) ruled the local authority had made a “number of fundamental errors”.

The case of AD and OH versus the United Kingdom can be found on the BAILLI website. We will be summarising the case on our website in the very near future and commenting on the effect that it may have in this area of the law.

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There was an appeal to the Court of Appeal who have now given their judgment reported on the BAILLI website.

 The issues were:

1) The test for vicarious liability for deliberate acts of abuse. An employer becomes vicariously   liable for the wrongs done by an employee, where the act of the employee is closely connected with his or her work duties. So for instance, a care worker employed by a local authority in a children’s home would probably attach liability to the employer, if he or she abused children in their care.  The test is important in child abuse cases, because it enables the Claimant to get straight at the employer (who is more likely to be able to pay damages than the abuser).

2) The duty of care where there has been a failure to check earlier complaints of abuse. In this case, there were previous complaints of abuse against this priest.

3) The test for capacity to litigate – some people cannot bring legal proceedings by themselves because they do not have sufficient capacity, very briefly the ability to understand the nature of what they are doing, understand advice and make informed decisions.  

On the issue of vicarious liability, The Court of Appeal applied the “close connection” test to this case. Although the abuser in question was purporting to carry out his work as a priest, his real motive was to abuse his child victim. 

In relation to the duty of care test, the Court of Appeal found that the church clearly owed a duty of care to children who might be enticed by the priest to his place of work.

The Claimant also had a learning disability.  The judge at first instance had found that he did not have capacity for the purposes of litigation. The Court of Appeal upheld that decision.

The decision is good news for Claimants bringing claims against predatory paedophiles, who have used their position to draw them in to an abusive situation.

See other cases on vicarious liability.

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1. Local authority responsibility for abuse by foster carers – The next step in vicarious liability?
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2. Court of Appeal rules on limitation cases

The judge criticised the conduct of the child’s family. According to the report, they had accepted £18,000 from the teacher but did not notify the police and the money was spent on a deposit for a new home.

The teacher was convicted of his crimes, but he was not given any custodial sentence.  He had in fact been in prison already for six months, but following his trial he was put on a three-year community sex offenders’ treatment programme, placed on the sex offenders’ register for ten years and banned from ever working with children. The judge said that the teacher had effectively already been fined and punished for his crime and the unusual circumstances had made sentencing very difficult.

In the writer’s experience, the sentence handed out by the judge was not unusual for the offence, in respect of which the abuser was actually convicted. What is striking is the report that the abuser ”paid off” the victim’s parents. Can the child still sue the abuser?

The writer thinks that he can. He would be suing a Defendant who has admitted the abuse and he has until his 21st birthday to bring the claim, although that may be extended in exceptional circumstances. See A v Hoare 2008. He may also have a claim to the Criminal Injuries Compensation Authority.

What about the £18,000 allegedly paid over?

Firstly any settlement that is reached on behalf of a child must by law be approved by a court. Rule 21.10 of the Civil Procedure Rules covers this point. If this money was in fact paid over without a court hearing, then it has no validity as a full and final settlement.

Secondly if the true basis of the settlement was to prevent a report being made to the police, then as an agreement, it would be illegal.

Thirdly the writer thinks that the abuser could not argue that the £18,000 should be taken into account in any further settlement. Quite apart from the lack of court approval and the potential illegality of the agreement, it appears from the report that the money did not go to the child. Possibly it might have been placed in trust for the child (albeit as part of a house), so that he could obtain it at the age of 18. However such a trust, founded on monies obtained in this manner, would raise further legal issues.

One other possibility lies under the Powers Of Criminal Courts (Sentencing) Act 2000

Section 126 states that where an individual has been convicted of an offence, the court may before sentencing him, make a financial circumstances order with respect to him.

Section 130 states that a court by or before which a person is convicted of an offence may on application or otherwise, make an order requiring the convicted person to pay compensation for any personal injury, loss or damage resulting from that offence or any other offence which is taken into consideration by the court in determining sentence.

Compensation shall be of such amount as the court consider appropriate, having regard to any evidence and to any representations that are made by or on behalf of the accused or the prosecutor.

Section 134 deals with the effect of the compensation order on a subsequent award of damages in civil proceedings. The damages in the civil proceedings shall be assessed without regard to the order or award, but the Claimant may only recover an amount equal to the aggregate of the following: –

Any amount by which they exceed the compensation and a sum equal to any portion of the compensation which he fails to recover.

The writer has never had a case where this power has been used, although it would be interested to see it exercised. Coming back to the case, which is the subject of this blog, the report does not say whether the powers under this Act were considered by the judge.

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Cardinal Brady said he had followed his bishop’s orders and that there were no guidelines for dealing with such investigations at that time.

The writer cannot comment on the state of child protection in Eire, but in the United Kingdom during the seventies, prosecutions for child sexual abuse did take place. Social workers were not as aware as they are now, of the scale of the problem and the risk involved to children, but they had an awareness nonetheless. Coming back to Cardinal Brady, it is debatable what would have happened, had he reported the matter directly to the police and gone against his superior. The fate of such whistleblowers is not a happy one in the United Kingdom. 

However the writer’s experiences of cases against the Catholic Church is that it is not an organisation that is ideally placed to protect children and young people from sexual abuse.  In addition, it seems to have huge difficulty getting to grips with the concept of responsibility when problems arise. Its religious foundation is not one that lends itself well to an open and transparent culture, particularly when modern child protection requires a high level of skill and expertise, where different agencies work together and share information.  The Church would do well to look at the recent case of  the women abused by their father, a Sheffield man. That was a case where a father had abused his daughters over a period of three decades, and the authorities gave them apologies for serial failures. However in relation to Cardinal Brady’s comments, one is left with the sense that this all happened a long time ago, and really we should move on. That will be easier for Cardinal Brady and his church, than those children abused by priests.

The effect of all of this is a huge amount of anger directed at the church. There is also a financial cost, which no amount of prayers can avert. The writer has dealt with three such claim against the Catholic Church, all of which resulted in large amounts of damages and costs being paid either by insurers or by the church itself.  In the case of A v The Archbishop Of Birmingham (1) The Trustees Of The Birmingham Archdiocese Of The Roman Catholic Church [2005] the Claimant received over half a million in damages. The level of costs is now known.

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Although the mother was cleared of murdering Khyra , she admitted manslaughter on the grounds of diminished responsibility. It is expected that she will spend seven-and-a-half years in prison and spend the rest on licence. Her partner also pleaded guilty to manslaughter.

See BBC News

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More information can be found on this story at:-

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Timeline of Events

The first suspicions were raised back in the early 1970’s when seemingly non-accidental injuries raised suspicion, but it was not until 1981 that both daughters are thought to have been first sexually abused. Childline were contacted in 1988 by the daughters, but as they could not receive assurances that they could keep their children, they terminated the call.  During the 1990’s the family frequently moved throughout Sheffield and Lincolnshire – it is thought to evade suspicion and detection.

Another opportunity to stop the abuse was missed in 1997 when the son, who now suffers from mental health problems, moved from home and alleged incest. Whilst an police investigation followed, no actions were taken. Moving to South Yorkshire in 2004 social services finally began to take a keener interest and by June 2008 the father was finally arrested.  Pleading guilty to 25 counts of rape, he was sentenced to a minimum term of nineteen and a half years, though this was reduced on appeal by 5 years. Before that had occured, however, the family had contact, over the years, with  over 100 members of staff from 28 different agencies. The media are already reffering to this case as the British Fritzl.

The Review

Today, March 10th 2010,  Sheffield’s Safeguarding Children Board delivered a damming review of the multi-agency involvement in the case described by Alan Goldsack QC as the worst he had seen in 40 years.

The fact that the family moved 67 times undoubtedly made it more difficult for each agency to build up a full picture of what was occuring the family, but  where this case diverges most startkly from that of Joseph Fritzl is not in the tactics employed to evade detection. The most stark difference is that the daughters in this case did have access to authorities designed to protect them. As Dr Sonia Sharp pointed to, it was the systematic failings of these agencies that meant that “time after time…groups of people failed to take action”.

The GP who dealt with the daughters was suspended over five years ago, but the report calls for a lead tasks with safeguarding children at every GP practice.

This is not the first time that such a board has found troubling failings within Sheffield Council and, as Professor Cantrill sadly noted, the authorities “never seem to learn”  from these reviews.

The full report can be found here.

The law on child protection

Local Safeguarding Children’s Boards were set up under the Children Act 2004. This Act arose out of the Government’s Green Paper, “Every Child Matters” alongside its formal response to the Victoria Climbie Inquiry Report. The intention of the Act was:-

To concentrate on outcomes that children and young people say are important rather than organisational change

To create clear accountability for children’s services

To enable better joint working

To secure a better focus for safeguarding children

The former Area Child Protection Committees were replaced by Local Safeguarding Children Boards

According to the BBC report, the LSCB’s have apologised to the women, following the conviction of their father, a Sheffield man on 25 counts of rape. They found a catalogue of missed opportunities and failures to protect the children over three decades.

Potential Compensation

Would these two women have claims for compensation?  There are several routes here. Firstly each would probably have a claim to the Criminal Injuries Compensation Authority. There is a two year time limit from the date of the “crime of violence” for making an application but the CICA often waives the time limit where the conviction is relatively recent. The CICA operates a bar against persons who are abused by a member of their own family who is living in the same household, but this only applies to crimes of violence that occur before the 1st October 1979. There may be ways around this rule, but it is difficult to see from the report when the abuse actually occurred. Apparently there were several periods in the history of this family, which were examined by the LSCB, the first one dating from 1975 to 1988.

In addition, the two women may have a civil claim against the local authorities, who allegedly should have protected them. See the case of Pierce v Doncaster Metropolitan Borough Council 2008 for an example of a “failure to protect” situation that resulted in an award for the the Claimant. The apology issued by the Local Safeguarding Children Boards is bound to be helpful in the establishment of fault on the part of the local authority.  

There is also the possibility of making a complaint to the local authorities in question. All local authorities operate a complaint scheme, which can result in a final decision by the Local Government Ombudsman. Large payments to complainants have been recommended in such cases. However the complaints system is not intended to work alongside a litigation case, and it is unclear whether a person who receives say £10,000 from a complaint of failure to protect, would have to pay that amount back if he/she launched a successful litigation case against the same local authority.

In relation to the CICA claim, the CICA scheme does specifically say that they are entitled to take into account any compensation awarded in the civil process, and in the writer’s experience the CICA await the result of the civil claim before making any award.

Clearly this is a very serious case.

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This is a disturbing case, which demonstrates how some parents use their own children to engineer a particular situation, and in some cases are prepared to make them seriously ill.  

One condition which has been reported in the family courts is Munchausen by Proxy, where the parent makes the child ill so as to gain attention for himself/herself. From the child’s point of view, their life is put at risk time and time again, until the authorities become aware and take action. In this case, samples of codeine and a painkiller, Tramadol were found in the child’s system.

The father had apparently met the mother on an online dating agency. The fact that their relationship began on the internet is not indicative of a child protection issue or indeed an indication that the mother in some way should have known about this man’s propensity to violence. The internet is simply another tool that male abusers to use, in order to target vulnerable women.

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The authorities are under strict legal constraints, given the fact that they themselves would have arranged new identities for the two boys who killed James Bulger. The long term plan would have been to rehabilitate the two back into the community. That process may still be ongoing, but very little is known about how the authorities dealt with these two children from 1993 onwards.

Normally in a criminal prosecution, the Defendant is identified from the outset unless the court makes an order banning the media from reporting their identity. 

There are a number of statutes that provide for protection against identification of children involved in any court proceedings. Section 39(1) of the Children and Young Persons Act 1933 provides protection for child defendants and witnesses in criminal proceedings. The court can direct that no newspaper may identify the child or publish photographs without leave of the court. 

Under section 12(1) of the Administration of Justice Act 1960 (as amended) the publication of information relating to proceedings under the Children Act 1989 or the High Court’s inherent jurisdiction over minors is a contempt of court. Section 4 of the Sexual Offences (Amendment) Act 1974 contains similar restrictions.  The court also has further powers restricting publication of court proceedings under section 4(2) of the Contempt of Court 1981 section 4(2).   

Section 71(1) of the Magistrates’ Courts Act 1980 states that it is a criminal offence to publicise other than limited details in relation to family proceedings and proceedings under the Adoption Act 1976. 

Section 97(2) of the Children Act 1989 provides:- 

“No person shall publish any material which is intended, or likely, to identify:- 

“(a) any child as being involved in any proceedings before the High Court, a county court or a magistrates court in which any power under this Act may be exercised by the court with respect to that or any other child; or 

(b) an address or school as being that of a child involved in any such proceedings.” 

Regulation 23 of the Family Proceedings Courts (Children Act 1989) Rule 1991 and Rule 4.23 of the Family Proceedings Rules 1991 restricts disclosure of care proceedings documents to certain persons.

However the mother of James Bulger has demanded answers. This is a sad feature of these cases. The relatives of those taken away from them, find any news story on the subject intensely distressing.

There is another point to be made. Those who live in the neighbourhood of James Bulger’s killer, would want to know if there was a risk to their children.

On the 8th February 2010, we reported on how a new “Sarah’s Law” was to be implemented across the country, allowing parents to know if their children might be at risk from a convicted abuser in the neighbourhood. See Link.

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