(New Zealand) Children were removed from their home. The father was interviewed for suspected child abuse, but no charges were laid. He sought damages in negligence for the way the matter had been handled. Children whose allegations against adopted parents were not investigated also sought damages.
Held: The Privy Council upheld the decision of the Court of Appeal of New Zealand to allow a claim brought by children in respect of the allegedly negligent way in which a social worker and clinical psychologist had investigated a complaint that a father had sexually abused one of his daughters. But no common law duty of care was owed to the father. His interests and those of the children were ‘poles apart’. It would not be satisfactory to impose a duty of care in favour of alleged victims and at the same time a duty in favour of alleged perpetrators.
Lord Nicholls of Birkenhead: ‘To whom is the duty of care owed? Clearly the duty is owed to the child or young person in respect of whom the statutory duty to arrange for a prompt inquiry exists in the particular case. In the present case that is [daughter 1] as much as [daughter 2]. If [daughter 2’s] abuse allegation was well founded [daughter 1] also was at risk. But their Lordships consider no common law duty of care was owed to the father. He stands in a very different position. He was the alleged perpetrator of the abuse. In an inquiry into an abuse allegation the interests of the alleged perpetrator and of the children as the alleged victims are poles apart. Those conducting the inquiry must act in good faith throughout. But to impose a common law duty of care on the department and the individual professionals in favour of the alleged victims or potential victims and, at one and the same time, in favour of the alleged perpetrator would not be satisfactory. Moreover, a duty of care in favour of the alleged perpetrator would lack the juridical basis on which the existence of a common law duty of care was largely founded in Prince’s case. The decision in Prince’s case rests heavily on the feature that the duty imposed on the Director-General by s 5(2)(a) of the 1974 Act is for the benefit of the particular child. Self-evidently this statutory duty was not imposed for the benefit of alleged perpetrators of abuse. To utilise the existence of this statutory duty as the foundation of a common law duty in favour of perpetrators would be to travel far outside the rationale in Prince’s case.’
Judges:
Lord Nicholls of Birkenhead Lord Hutton Lord Hobhouse of Woodborough Lord Rodger of Earlsferry Lord Walker of Gestingthorpe
Citations:
[2003] UKPC 61, [2003] 4 All ER 833
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Attorney-General v Prince and Gardner 1998
(New Zealand Court of Appeal) Claims in negligence were made by the natural mother of a child who had been adopted, and also by the child, now an adult, complaining of the process followed in the adoption and also of failure to investigate a . .
Cited by:
Cited – A and Another v Essex County Council CA 17-Dec-2003
The claimant sought damages. The respondent had acted as an adoption agency but had failed to disclose all relevant information about the child.
Held: Any such duty extended only during the period where the child was with the prospective . .
Cited – JD v East Berkshire Community Health NHS Trust and others HL 21-Apr-2005
Parents of children had falsely and negligently been accused of abusing their children. The children sought damages for negligence against the doctors or social workers who had made the statements supporting the actions taken. The House was asked if . .
Cited – Trent Strategic Health Authority v Jain and Another HL 21-Jan-2009
The claimants’ nursing home business had been effectively destroyed by the actions of the Authority which had applied to revoke their licence without them being given notice and opportunity to reply. They succeeded on appeal, but the business was by . .
Lists of cited by and citing cases may be incomplete.
Negligence
Updated: 07 June 2022; Ref: scu.184657