Courts reluctant over duty of parental care

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AD and OH (a child: by AD his litigation friend) v Bury Metropolitan Borough Council, (Court of Appeal - 17 January 2006)

A five-month-old baby (OH) presented with unexplained rib fractures. Suspecting non-accidental injuries, the social services department of the defendant placed his name on the child protection register and obtained an interim care order three months later.

The birth mother (AD) and father were then assessed during a 12-week residential placement, after which the interim care order was renewed. OH was then placed with foster parents and separated from AD. It transpired six months later that OH suffered from brittle bone disease and his injuries were indeed accidental.

He was returned to AD and care proceedings were discontinued. AD sought compensation in her son's and her own name. At first instance, the judge dismissed both claims.

The Court of Appeal confirmed that Bury Metropolitan Borough Council owed no duty of care to AD during the care proceedings. It refused to distinguish between this case and the recent House of Lords 'Oldham case' in JD v East Berkshire Community NHS Trust (2005).

It was artificial to seek to distinguish between events before and after the interim care order, or to suggest that a duty could arise from a community of interest.

Although in this case Bury MBC owed a duty of care to OH, there was no identifiable damage, and even if there was it was not justiciable (being a question of transient stress) and causation was not established. His claim would, therefore, also fail.

Comment: Courts are reluctant to find that parents are owed a duty of care during child abuse investigations due to the inevitable conflict of interest that arises between the interests of the child and that of the parents. Genevieve Rich, BLM London.

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