• In the case of JD v East Berkshire NHS Trust [2003] EWCA Civ 1151, it was held that while a common law duty of care could be owed to children where unfounded allegations of child abuse had been made, but no such duty could be owed to a child’s parents.

Facts of the Case

  • Three different cases were brought to appeal concerning parents who had subject to unfounded accusations of child abuse.
  • In the first appeal, C was incorrectly accused of suffering Munchausen Syndrome by proxy, causing her acute anxiety and stress.
  • In the second appeal, C was accused of sexually abusing his daughter, leading to C being denied access to his daughter for a short period.
  • In the third appeal, C were accused of inflicting injuries on their daughter, which led to C being separated from their daughter for nearly a year.

Issues

  • Was it ‘fair, just and reasonable’ to impose a duty of care on D in the circumstances common to each appeal?

Held by the Court of Appeal (Civil Division)

  • Finding for D, that it was no longer legitimate to rule that no common law duty of care was owed to a child in relation to the investigation of suspected child abuse.
  • However, there remained cogent reasons of public policy for concluding that where childcare decisions were concerned, no common law duty of care was owed to the parents.

Lord Phillips M.R.

  • We have reached the firm conclusion that X (Minors) v Bedfordshire CC [1995] 2 A.C. 633, [1995] cannot survive the Human Rights Act 1998. Where child abuse is suspected, the interests of the child are paramount.
  • Those asserting wrongful acts or omissions occurred before October 2000 will have no claim under the Human Rights Act. This cannot constitute a valid policy for preserving a limitation of the common law duty of care which is not otherwise justified. The absence of an alternative remedy for children who were victims of abuse before October 2000 supports the recognition of a common law duty of care once the public policy reasons against this have lost their force.
  • As such, it will no longer be legitimate to rule that, as a matter of law, no common law duty of care is owed to a child in relation to the investigation of suspected child abuse and the initiation and pursuit of care proceedings. It is possible that there will be factual situations where it is not fair, just or reasonable to impose such a duty, but each case will fall to be determined on its individual facts.
  • “The position in relation to the parent is very different…It will always be in the parents’ interests that the child should not be removed. Thus, the child’s interests are in potential conflict with the interests of the parents. In view of this, we consider that there are cogent reasons of public policy for concluding that, where childcare decisions are being taken, no common law duty of care should be owed to the parents…
  • For the above reasons, where consideration is being given to whether the suspicion of child abuse justifies taking proceedings to remove a child from the parents, while a duty of care can be owed to the child, no common law duty of care is owed to the parents” [86-7].

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