Kirsty X –v- Oldham Metropolitan Borough Council [2013] EW Misc 7 (CC)

The claimant, known as ‘Kirsty’, brought a claim against Oldham Metropolitan Borough Council, alleging that there had been a breach of the duty of care owed to her, by its social services department. The trial was heard before Recorder Amanda Yip in the Manchester County Court in June 2013.

Background

Kirsty came to the attention of social services in 1989 aged 17 months old and was subsequently taken into care. At twenty she gave birth to a daughter, however concerns were raised about her ability to parent the child and a care order was approved for adoption. When making the order HHJ Allweis acknowledged Kirsty’s difficult childhood and commented that: “… the underlying problem was a failure to address psychological problems…in her past.”’

In bringing a claim in negligence against her local council, Kirsty alleged that failures in her past had impacted on her ability to parent her own child, and that the loss of her daughter was a foreseeable consequence for which she should be compensated.

Allegations

Representing herself at the trial, Kirsty alleged that there had been a failure to:

  1. Remove her from her parents in a timely fashion (causing her to endure further and unnecessary physical and emotional abuse).
  2. Provide her with therapy once taken into care (such that additional psychological damage was caused).

Failure to remove Kirsty from her parents sooner

The social care experts agreed that there was a need to find the right balance between ’family preservation’ and ‘child rescue’ and that, following the Cleveland Report of 1988 (which found that children had been removed from their families too readily), there had been a move towards prioritising family preservation.  

At trial the claimant’s expert conceded that the defendant had not acted negligently in failing to take the claimant into care before November 1993, as the family had received extensive support and there had been evidence of improvement. However he was critical that care proceedings were not instituted after an assault on the claimant by her father at the end of October 1993.The trust’s expert disagreed, describing the defendant's response to the assault as "proportionate.

After hearing  evidence from a support worker involved in the review process at the time, the judge held that she was a committed social worker who had acted appropriately based on what was known at the time and was also satisfied that the claimant’s expert’s opinion accorded with a responsible body of social work opinion at the relevant time. 

Failure to provide therapy

A consultant in child and adult psychiatry had prepared a report in the course of the care proceedings in 1994. He concluded that, although Kirsty required therapy, the finding of a long term placement should be prioritised, with therapy to be considered thereafter, if necessary.

The claimant’s expert felt it was unreasonable for his recommendations to have been followed, as therapy was required urgently. The judge held that the defendant should not be criticised for accepting the advice of a qualified professional.

Judgment

Whilst there was considerable sympathy for the claimant, it was held that there was no breach of duty and the claim was dismissed.

Common sense result for social workers?

It is clear that this decision was made considering the context at the time i.e. post Cleaveland. Had this decision arose in more recent times, when the threshold for removal was arguably lower following cases such as Victoria Climbie and Baby P, then the decision may have differed.

It is noteworthy that the judge recognised how difficult it is to know whether a particular decision regarding the welfare of a child is the right one, without the benefit of hindsight. It is also refreshing to see how she appeared to empathise with those social workers who have, nonetheless been severely criticised, as evidenced in the Cleveland and Baby P cases. 

This case also evidences that the actions of professionals may be scrutinised many years later. Good record keeping, including of the rationale behind any decisions is essential.