JD v East Berkshire NHS Trust [2003] EWCA Civ 1151

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.

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

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. 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.

The Court of Appeal rejected a blanket exclusion of duties to children during suspected-abuse investigations, while declining the asserted parallel duty to parents because of potentially conflicting interests. This is the 2003 decision; subsequent appellate and public-authority authorities must be considered before stating current law.

JD distinguishes the interests of the child from those of parents suspected of causing harm. A duty to investigate for the child's protection may conflict with a proposed duty to protect the parent's reputation or relationship with the child. The later House of Lords decision in D v East Berkshire and subsequent cases on assumption of responsibility require separate treatment. It is unsafe to infer a universal negligence duty from every statutory safeguarding function.