W v Essex CC [2001] 2 A.C. 592

C were the parents of three children. In 1992 C were approved as specialist adolescent foster carers by D. C expressly told the council and the social worker that they were not willing to accept any child who was known or suspected of being a sexual abuser. Despite this, D placed with C a 15-year old who had admitted to indecent assault on his own sister and was being investigated for an alleged rape. C was not made aware of this, although this information was recorded on D’s files. Between 7th April and 7th May 1993 serious acts of sexual abuse against C’s children were alleged. It was also alleged that C and their children suffered injury as described in the reports of an independent child abuse consultant and a consultant child/adolescent psychiatrist.

• Did C’s claim disclose a cause of action that had a chance of succeeding in law, or did striking it out constitute an abuse of power by the courts?

The House of Lords allowed the parents' claim to continue. On the pleaded facts it could not be said that their psychiatric-injury claim was certain to fail, so striking it out was inappropriate. The parents alleged a specific assurance about placements, the introduction of a child with known risks and psychiatric injury connected with their own role in the resulting events. The court left factual proof and final legal classification for fuller examination. It did not finally decide that the council was negligent, that the parents were primary victims or that damages were payable. The decision concerns the arguability of the particular claim at a preliminary stage.

A psychiatric-injury claim should not be struck out merely because proving it will be difficult, where the alleged facts could support a recognised duty and injury. W v Essex allowed the parents' case to proceed without finally determining liability or classifying them conclusively as primary victims.

W v Essex requires close attention to procedural posture. The parents' allegation that they were drawn into the harmful situation through a placement contrary to assurances made the case unsuitable for summary rejection. It is not a broad exemption from psychiatric-harm controls for anyone who feels responsible for another's injury. Later public-authority and psychiatric-injury authorities must be considered for a final current-law analysis. The established point here is that the pleaded claim required fuller consideration, not that the allegations had been proved.