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1 Issue 15 September 2009 A S S O C I A T I O N O F C H I L D A B U S E L A W Y E R S F R O M T H E C O - O R D I N A T O R M A L C O L M J O H N S O N O U R N E X T M E E T I N G W I L L B E H E L D O N F R I D A Y 1 6 T H O C T O B E R A T P. M A T T H E O F F I C E S O F P A N N O N E & P A R T N E R S I N M A N C H E S - T E R Welcome to another year for ACAL 2009 has been an excellent year, membership has remained steady and the number of referrals and telephone enquiries has increased. Child abuse remains a current issue and the number of cases and stories reported remains high. We have seen the impact of the Ex-city lawyer wins right to sue for 5 million and its knock on effect in the number of enquiries has also seen a number of cases on limitation come before the Court of Appeal. AB and Others v Nugent Care Society; GR v Wirral Metropolitan Borough Council [2009] EWCA Civ 827. Case summaries of these can be found later on in the newsletter. We had an excellent annual conference in May 2009 which turned out to be a massive success. Highlights include Neil Sugarman s excellent presentation on the CICA and child abuses case. The high quality of the speakers together with the friendly environment provided for an informative, enjoyable event. We all look forward to next years event. Our next meeting will the Annual General Meeting at the offices of Pannone & Partners in Manchester on Friday, 16th October 2.00 p.m. Our guest speakers will be Graham Wilmer, a child abuse survivor. He is the leader of the Lantern Project on the Wirral and is the author of numerous book. For light relief we also have the author of the new fiction book Nicolas Dane, Melvin Burgess. This novel is based on the Manchester home Rosehill. He will be telling us about his experiences writing and researching the book. If any members are interested in attending please confirm your attendance at info@childabuselawyers.com A S S O C I A T I O N O F C H I L D A B U S E L A W Y E R S C O N T E N T S Local authority responsibility for abuse by Foster Carers The next step is vicarious liability - Malcolm Johnson AB and Others v Nugent Care Society: GR v Wirral Metropolitan Borough Council Case summary by Malcolm Johnson Response to the Ministry of Justice Paper on Limitation periods and personal injury Jonathan Wheeler

2 P a g e 2 Local authority responsibility for abuse by foster carers The next step in vicarious liability? An article by Malcolm Johnson of Malcolm Johnson & Co. The constant flow of child abuse cases, reported in the family and criminal courts, together with recent high profile cases from the civil courts is an unfortunate illustration of the resilience of this problem. The majority of child abuse compensation claims are brought either by children abused in care homes or in schools. The other emerging category is failure to take into care cases where the child has been abused within the family setting, but the local authority has not acted to protect that child. However claims involving foster parents are less common. It is to be hoped that the increasing use of foster care by local authorities has reduced the risk of child abuse occurring in care. Perhaps the historic nature of child abuse means that it is too early to tell, but foster care is now the main means by which children are looked after by the state. Department of Health figures in 1999 showed that 66% of looked after children were living with foster carers, whereas a much smaller group (12%) lived in residential accommodation. More recently, figures published by the Department for Education and Skills showed that the largest category of placements for children (70%) was foster care, and that this had increased 7% since This then raises the issue of how a child abused by foster parents, brings a civil claim many years after the event. At present, children abused in a children s home by a care worker have a distinct advantage. The conviction of their abuser combined with the possible application of vicarious liability may well overcome the issues of proving negligence and overcoming limitation as against that abuser s employer. The idea that an employee acting in the course of his employment may by his deliberate and illegal act make his employer liable, has been with us for some considerable time. Initially the Court of Appeal showed some resistance to the concept of an employer becoming vicariously liable for the acts of an abusive care worker. In Trotman v. North Yorkshire County Council the Claimant alleged sexual assault by the deputy headmaster of a special school. He sued the local authority alleging vicarious liability. The Court of Appeal held that such assaults were outside the scope of the assailant s employment. However Trotman was overruled by the House of Lords in Lister v Hesley Hall Limited. The Claimants were pupils at a privately owned residential school, who alleged sexual abuse by the warden. The House of Lords found that the Defendant was vicariously liable for the warden s acts of abuse. The warden had such close contact with his pupils that there was sufficient connection between the work he was employed to do and the acts of abuse he had committed for those acts to be committed within the scope of his employment. In coming to its decision the House was impressed by two ground breaking Canadian decisions on vicarious liability. They were Bazley v Curry and Jacobi v Griffiths two decisions of the Canadian Supreme Court. In Bazley the court decided that a non profit organisation was vicariously liable for abuse carried out by its employees in two children s homes, which it owned. By contrast in Jacobi, the court decided that a Boys and Girls Club was not vicariously liable for abuse carried out by an employee of the club. The distinction appeared to turn on the fact that in Jacobi the Club s enterprise offered group recreational activities to be enjoyed in the presence of volunteers and other members. Lister was a favourable decision for victims of child abuse, but at that time, a claim based on intentional assault was restricted by the non extendable six year time limit. This has now been swept away by the judgment in A v Hoare where the House of Lords said that the issues of vicarious liability were very much narrower than those arising on negligence, and that in turn meant that an application under Section 33 of the Limitation Act 1980 stood more chance of success. In essence, if it were clear that the abuser was an employee, and the only issue (his guilt) had already been decided by a criminal court, then it might be difficult to see what prejudice would accrue to him or his employee by the passage of time. Continued...

3 P a g e 3 Local authority responsibility for abuse by foster carers The next step in vicarious liability? An article by Malcolm Johnson of Malcolm Johnson & Co. Therefore it might be argued that if a local authority can be fixed with vicarious liability for the abuse of a child by a care worker in a children s home, there should be no difference between that situation, and the abuse of a child by foster carers in a foster home. There appears to be the same close connection between what the foster parent is retained to do, and any abuse that is perpetrated upon the child. The difficulty arises in the actual status of foster carers and whilst the courts have been willing to find vicarious liability in residential care homes and schools, the position is quite different in relation to foster care. In the case of Sargent v Walsall Metropolitan Borough Council and others the Claimant was a foster child who suffered severe burns to the soles of her feet, for reasons that were unknown. The foster parents were acquitted of any wrong-doing. She brought a claim against her foster parents and the local authority that retained them. There was no allegation that the council had been negligent in selecting the foster parents or supervising them. The Claimant s counsel submitted that there was a relationship of principal and agent or of a sufficient proximity to make the local authority liable for the acts of the foster parents. The matter came before the Court of Appeal. At that time, the Court of Appeal said that there was no authority either way on this issue but they described counsel s submission as a startling one. They considered the relevant statutory provisions of the Children Act Section 13 was the important section for present purposes because it was from that section that there was derived the power to board out with foster parents. Lord Justice Oliver said that the statute and the regulations showed that this was a statutory scheme and that the relationship between the child and the local authority, and between the child and the foster parents was one which was regulated simply and solely by the provisions of the statutory scheme. Foster parents were simply the means by which the local authority carried out its own duty, and they would not be vicariously liable for the acts or omissions of foster parents. In H v Norfolk the Claimant alleged physical and sexual abuse against his foster father. He claimed against the local authority insofar as it had been negligent in failing to supervise his placement. The claim was struck out on the basis of the judgment in X (Minors) V Bedfordshire County Council. The Court of Appeal drew a distinction between a claim based on the actions of school employees and this type of claim. Lord Justice Simon-Brown said at page 391:- The school analogy is unhelpful, because the liability there will generally be based on vicarious liability for the actions of the school s employee. Furthermore the degree of control exercisable over the actions taking place within the confines of a school is likely to be substantially greater than that which can practicably be exercised by a local authority over foster parents. Other jurisdictions have dealt with this issue. An early case from the Supreme Court of British Columbia in Canada, Brooks v Regina, stated that the State was vicariously liable for the damage caused by the wrongful behaviour of foster parents towards children in their care. However more recently the Canadian Supreme Court has turned against the notion of vicarious liability in foster care in MB v British Columbia and KLB v British Columbia. In the case of KLB, Chief Justice McLachlin said that foster parents were essentially independent and that they were intended to give the child a proper family life. They did not have to check with the state before making day to day decisions. If it were otherwise, they would not have the authority that children came to expect from parents. That was part of the rationale for refusing to impose vicarious liability on the government. In New Zealand, the Court of Appeal has been more favourable to the concept as seen in S v Attorney General. In that case the court agreed with the findings of Roland J in the High Court, who said that that not recognising vicarious liability where the State had only formally taken responsibility for the children would result in the very regime designed to protect children, being undermined. That case was distinguished in A v Roman Catholic Archdiocese of Wellington & Ors. The Claimant was a child in care, who was placed with caregivers in the school holidays where she was sexually abused. The Court of Appeal held there was no principled basis to impose vicarious liability upon the primary care providers for the sexual abuse of A during holiday placements. In Australia, the High Court in Australia has expressed difficulty with the concept of vicarious liability in abuse cases. Continued...

4 P a g e 4 Local authority responsibility for abuse by foster carers The next step in vicarious liability? An article by Malcolm Johnson of Malcolm Johnson & Co. Therefore at present English law is likely to be resistant to the imposition of vicarious liability on local authorities or fostering agencies in relation to abuse perpetrated by foster carers. There are still a number of counter arguments. The Sargent, X v Bedfordshire and H v Norfolk cases pre-date the case of Lister, as well as cases such as D v East Berkshire Community Health NHS Trust. In addition it is submitted that the reality of modern foster care is more complex than simply providing a child with a family life. Moreover the family life was precisely the kind of aspiration that was found in care homes run by organisations such as Barnardos, which were split up into family groups with housefathers and housemothers. In the United Kingdom, there are a number of different types of foster placements, for instance emergency, respite, remand, short and long term placements. Some placements simply involve support and guidance being given to natural parents, in order to help them look after their children better. Certainly it is true that the majority of foster carers are not treated as employees of the care authority. They are entitled to allowances to cover the cost of caring for children in their home plus extra allowances for certain items based on the needs of the child. They also receive an income tax exemption. However, as one might expect, they are very heavily regulated. The two main statutes are the Children Act 1989 and the Care Standards Act 2000, from which come the Fostering Services Regulations These regulations govern the control and direction of foster parents and they are extremely detailed, more so it might be said that the majority of standard employment contracts. It might also be said that the degree of control exercised by the care authority is in fact akin to that of an employment contract. It is also submitted that there are a number of vicarious liability cases where the relationship between master and servant is unconventional. In the case of Hawley v Luminar Leisure Ltd & Others the Court of Appeal held (on the facts) that such a relationship could exist between the owner of a night club and a doorman employed by a security company, even though the owner and the security company were two separate bodies. At present the writer is not aware of any cases coming before the courts on this issue. A case brought for abuse by a foster carer might well succeed on negligence in any event. The case of Sargent was interesting insofar as it involved an injury where there was no explanation for the injuries sustained by the child whilst in foster care. Consequently vicarious liability was the only route to compensation. We can only wait to see what a future court makes of the same argument.

5 P a g e 5 AB and Others v Nugent Care Society: GR v Wirral Metropolitan Borough Council Limitation of action Trespass to the person Period of limitation extension Actions alleging sexual offences Claimants bringing actions in damages long after events Judges exercising discretion to disapply limitation period in majority of cases FACTS:- AB concerned four cases of historic child abuse in St Aidan s children s home and the issue was limitation. One of the cases concerned the issue of when the date of knowledge was triggered for the purposes of the Limitation Act 1980 and all concerned the issue of whether section 33 of that Act should be exercised in the Claimants favour. The matter initially came before Holland J, who made findings in two cases, JB and JPM and refused to exercise his discretion under section 33. However the Court of Appeal reviewed the cases in the light of A v Hoare [2008] 1 AC 844 and remitted the cases back to Mr Justice Holland. As he was unable to adjudicate, they came before Irwin J in AB and Others v Nugent Care Society [2009] EWHC 481. There were two other cases also to be decided by Irwin J, DVB and HC. Irwin J decided that HC s claim was time barred and he did not appeal from that decision. In relation to JPM, JB and DVB, Irwin J decided that all three had relevant knowledge for the purposes of the Limitation Act 1980 more than three years before they issued proceedings. In the cases of JPM and DB Irwin J decided that section 33 would be exercised in the Claimant s favour. However it would not be exercised in the case of JB. DVB appealed on the knowledge point, JB appealed on the decision under Section 33 whilst the Defendant appealed in the cases of JPM and DVB. In the case of GR, the Claimant was born on the 17 th January 1964 and was aged 44. In August 1973 he was taken into care by Knowsley Borough Council at the request of his father. He was placed in a family group home where he remained (save for a two week period in another home) until November He was then returned to the care of his mother. Some 18 months after his arrival, the Claimant was subjected to regular sexual abuse at the hands of Mr Robbins, who was employed from 1975 until 1985 as an escort officer. He did not tell anyone about the abuse. The Claimant having returned to his mother, left school at 15 and found work. He married at the age of 25 and he and his wife had a baby girl in In November 2000 he was contacted by police in relation to another home, and he mentioned the abuse to the officers. He mentioned it to his wife two weeks later. She was a local solicitor specialising in childcare. The disclosure put strain on his marriage and in early 2001 he separated from his wife and they later divorced. He was also unable to return to work and resigned from his employment after being off for over a year in January In August 2002, the Claimant sent a letter before action to the Defendants and a claim form was issued on the 20 th June The case was stayed whilst the appeal in A v Hoare Then in June 2008, it was listed for a preliminary hearing on limitation. Judge Main QC exercised his discretion pursuant to Section 33 of the Limitation Act 1980 to allow the action to proceed but found that the Claimant had knowledge for the purposes of the Limitation Act 1980 by his sixteenth birthday. The cases of JPM, JB and DVB in A and Other v Nugent Care Society and GR v Wirral now came before the Court of Appeal. JUDGMENT Lord Clarke said that it was the Defendant s case in the Nugent Care Society cases that the relevant limitation statute was the Limitation Act 1939 but it was common ground that there was no distinction between the relevant provisions of that Act and the Limitation Act Lord Clarke considered the case of KR v Bryn Alyn Community (Holdings) Ltd [2003] EWCA Civ 85 which considered the exercise of discretion pursuant to Section 33 of the Limitation Act He also considered the case of A v Hoare. There were two critical points of distinction between those cases. In KR the evidence had to cover the issue of systemic negligence in the relevant home. Now that the extendable three year period applied to actions based on assault, no such analysis was required. Continued...

6 P a g e 6 AB and Others v Nugent Care Society: GR v Wirral Metropolitan Borough Council The Claimant only had to show the following:- That he was assaulted That the Defendant was vicariously responsible for the abuse That the abuse caused the alleged damage Quantum The second point of distinction was that the exercise under Section 33 was significantly different from beforehand. In Hoare Lord Hoffman had said that the right place to consider the question of whether the Claimant, taking into account his psychological state could reasonably have been expected to institute proceedings was under Section 33. The discretion under Section 33 was broad and it did not focus solely on whether there had been prejudice to the Defendant. In Hoare Lord Carswell had said that there now required to be a more liberal approach to the exercise of the discretion than had been the case. However the starting points on section 33 from Kr v Bryn Alyn remained valid. It was correct to describe the exercise of the discretion as an exceptional indulgence because otherwise his claim would be time barred. However it was only exceptional for that reason. The discretion was wide and unfettered. As to whether there should be a preliminary hearing on limitation, there were now likely to be many cases in which a judge would consider that it was not feasible to decide the issues simply by reference to the pleadings and written witness statements. However where the judge determined the Section 33 application along with the substantive issues, he should take care not to determine the substantive issues, including liability, causation and quantum before determining the issue of limitation and in particular, the effect of delay on the cogency of the evidence. At the same time, a weak case might persuade the court not to exercise discretion as was seen in the case of Nash v Eli Lilly & Co. [1993] 1 WLR 782. In considering the exercise of discretion, the court should consider what evidence might have been available to the Defendant is a trial had taken place earlier or it had learned of the claim earlier. Every effort should be made to ensure that the Claimant did not have to give evidence twice. Lord Clarke then considered the procedural background to the case, before going on to the individual circumstances of each case. JPM Lord Clarke said that Irwin J should not have made a finding that the abuse occurred, without considering, in the context of Section 33, what effect the passage of time would have on the question of whether the Defendant was prejudiced. However Irwin J had identified three factors that had inhibited JPM from proceeding, firstly the Claimant s hope that he could cope with the effects of abuse by avoidance and alcohol. Secondly the inhibitions as a result of the abuse and its consequences and thirdly his lack of interest in compensation. Lord Clarke said that these seemed to be compelling reasons for exercising Section 33 in the Claimant s favour. The problems establishing systemic negligence now fell away following the case of A v Hoare. No inferences would be drawn that were adverse to the Defendant based upon any supposed conduct or lack of it, in previous investigations. In relation to causation and quantum, Lord Clarke said that at trial, the judge would have the benefit of evidence of both medical experts. There was no reason to think that the judge would not be able to reach a fair conclusion as to the state of JPM and as to the contribution, for which the Defendant was responsible. Whilst the Court of Appeal did not accept all of Irwin J s conclusions, they would not disturb his decision to apply section 33 in JPM s favour. JB Again Irwin J had made the mistake of holding that abuse was established without considering, in the context of Section 33 what effect the passage of time would have on the question of whether the Defendant was prejudiced. He should have considered the problems facing the Defendant in resisting JB s claim. Both of the alleged abusers were dead, as were other crucial witnesses. The file relating to the investigation of one of the abusers had been destroyed and the Claimant s statement to the police was inconsistent with his civil statement. Continued...

7 P a g e 7 AB and Others v Nugent Care Society: GR v Wirral Metropolitan Borough Council The position on causation was also much more problematic that that of JPM. In addition, the abuse was not as serious and it was, in the judgement of Lord Clarke relevant to have regard to the question of whether it would be reasonable and proportionate in all the circumstances to permit the Claimant to proceed, notwithstanding the difficulties which the passage of time would cause for the Defendant. Apart from the mistake on the finding of abuse, the Court of Appeal would not disturb the judgement of Irwin J to refuse to exercise Section 33 in JB s favour. DVB Irwin J had cited a number of reasons in favour of exercising Section 33 in DVB s favour. His conclusions were:- His abuser pleaded guilty to charges of sexual abuse, although DVB was not one of the complainants DVB had relevant knowledge for the purposes of the Limitation Act 1980 soon after the abuse There were good reasons for delay The issues on causation were limited It was unlikely that the convicted abuser would be called to give evidence There was no relevant conduct on the part of the Defendant within Section 33(3)(c) and no question of disability. Although damages would be limited, this was not trivial abuse although it was a single incident. In the circumstances it was both proportionate and equitable to permit this case to proceed. Therefore the Court of Appeal would agree that section 33 should be exercised in DVB s favour. GR v Wirral Lord Clarke now came to the case of GR v Wirral. He noted that the Claimant was no longer proceeding with a case in negligence against the Defendant. He considered the judge s points on Section 33. The judge had concluded that, whilst it would not be fair to allow the Claimant to continue to advance allegations of negligence against the Defendant, the same was not true of the allegations of sexual abuse. Lord Clarke said that the judge had correctly stated the principles, he had then weighed the various factors one way and the other. That was pre-eminently a matter for the judge and not the Court of Appeal. It did appear that in due course, more material would be available from the Defendants. Therefore the judge was entitled to reach the conclusion that he did, and that the Court of Appeal should not interfere. Date of knowledge Both DVB and GR had failed in relation to the issue of date of knowledge for the purposes of the Limitation Act Lord Clarke considered the caselaw and noted that Lord Hoffman had said in A v Hoare that the court should adopt a practical and relatively unsophisticated approach. The Court of Appeal would uphold the findings of Irwin J on this issue. As regards the case of DVB, Irwin J was entitled to find that he had knowledge of significant injury in the time immediately after the single event upon which his claim was based. As regards the case of GR, the trial judge was, if anything, too generous to the Claimant when he fixed the date of knowledge to his sixteenth birthday.

8 P a g e 8 RESPO SE TO THE MI ISTRY OF JUSTICE PAPER O LIMITATIO PERIODS A D PERSO AL I JURY THE IMPACT OF THE PROPOSED REFORMS Jonathan Wheeler of Bolt Burden Kemp ABOUT THE ASSOCIATION The Association of Child Abuse Lawyers (ACAL) provides practical support for survivors and professionals working in the field of abuse. Formed over 10 years ago, ACAL maintains a telephone help line and web site presence to sign-post survivors of abuse to lawyers who have the expertise and experience to assist them in obtaining the redress to which they are entitled. ACAL also campaigns in this area, and provides training, access to data bases and an information exchange to members to assist them in their work. ACAL s membership is made up of solicitors, barristers, psychiatrists and social work experts who are all specialists in this field. Of relevance to this consultation, two of our executive committee members acted for three of the Claimants in the case of A v Hoare and related appeals [2008] UKHL. The Association welcomed the House of Lords ruling in that case, with the overturning of Stubbings v Webb [1993] AC 498 and an effective implementation of the Law Commission s 2001 proposals for child abuse claims by way of the common law. HOW WE HAVE APPROACHED OUR RESPONSE We answer each of your questions below. References to paragraphs in brackets refer back to the MoJ s paper. QUESTION 1 We do believe that the implementation of the reforms will broadly replicate the present law. Clearly there should be no 10 year (or any) long stop period as originally suggested by the Law Commission in personal injury claims, which proposal it later abandoned in its final report. QUESTION 2 There will be some improvements for example that a supervening disability will suspend the limitation period, which is fairer to victims of personal injury and abuse (paragraph 21). There is however also a downside we do not understand how extending the delay to be taken into account under section 33 of the Limitation Act to include time before the primary limitation period has expired (paragraph 22) will have a fair impact on cases involving sexual abuse. A distinction must be made here for clients who had been wronged as children and people who had formerly suffered a mental incapacity. Clearly time running before someone has the legal capacity to instruct a lawyer should not be a relevant consideration for a court when considering the merits of exercising its discretion under section 33. Whilst we understand that this is the present law (T v Girls & Boys Welfare Society [2004] EWCA 1747), this causes much injustice in child abuse cases and we would ask that any legislation remedies this problem. QUESTION 3 We do not believe that the reforms will result in any significant costs or benefits, when compared with the current regime. The reforms broadly codify the current law. Discretion to be exercised under section 33 is case specific and all cases would need to be assessed individually. As a matter for discretion, whilst guidance can be given (as it was in A v Hoare & others), each case will fall to be assessed by the court on its own merits. This goes too for questions of date of knowledge under the Limitation Act again such questions are fact or case specific. QUESTION 4 We do not have any such information. Continued.

9 P a g e 9 RESPO SE TO THE MI ISTRY OF JUSTICE PAPER O LIMITATIO PERIODS A D PERSO AL I JURY THE IMPACT OF THE PROPOSED REFORMS Jonathan Wheeler of Bolt Burden Kemp QUESTION 5 We generally welcome the reforms as providing extra guidance to our members and others acting for Claimants, in assisting them to risk assess their client s cases at the earliest stage. Good risk assessment means that cases without merit are identified and not taken forward, with the effect of saving costs and court time generally. Association of Child Abuse Lawyers 8 TH September 2009

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