The Court of Appeal upheld the High Court’s finding that the local authority was vicariously liable for the negligent failure of its employees to ensure that the prospective adoptive parents were given full and relevant information about the children before they were placed
Adoptive parents, A and B, sued the local authority in negligence for damage to their home, health and family life, caused by the failure of its staff to provide them with the necessary relevant information to enable to them to make a properly informed decision as to whether to proceed with the placement for adoption of two children, one of whom had severe behavioural difficulties.
The couple alleged that they had made it clear to the LA that whilst they expected and were prepared to accept a child with mild emotional or behavioural problems, they were not – and had informed LA accordingly – prepared to accept a child needing special education outside the mainstream or with severe physical or mental disabilities. However, the male child’s behavioural problems had proved so extreme that he had attacked A whilst she was pregnant, had caused considerable damage to A and B’s property, had attempted to electrocute himself and had threatened to kill B with a carving knife. He had later been diagnosed as suffering from Attention Deficit Hyper-activity Disorder. The High Court judge had no trouble finding on the evidence that the social workers and doctors involved in the case had been aware of the extent of his behavioural difficulties, before the placement was made.
The statutory framework for adoption specifically provides for prospective adoptive parents to be provided, before placement, with written information about the child, including his personal history, his religious and cultural background, his health history and current state of health (regulation 12 Adoption Agencies Regulations 1983). The question the judge had to decide was whether the local authority owed a common law duty of care when acting pursuant to that statutory framework.
The judge followed the decision of the House of Lords in Phelps v Hillingdon London Borough Council (where an educational psychologist’s failure to diagnose that a child had special educational needs was held to be actionable if negligent). The test was whether it was fair, just and reasonable to impose a duty of care in the circumstances. The authority, unsurprisingly, denied that it had been negligent or that it even owed a duty of care to the adopters. It argued that the imposition of such a duty might deter agencies from making placements; that issues of confidentiality could arise and, in all, that such a duty would or might tend to undermine the fact that the welfare of the child is supposed to be paramount. The judge made short shrift of those arguments, stating that professionals and those with special skills who were paid to offer their services to the public should act to an appropriate standard and that “any suggestion that a prospective adopter should go ahead without the fullest information about the child in question would be untenable, at least as a general proposition”.
It was plain to the judge that a child with serious behavioural problems, particularly one displaying violence towards property and people, was foreseeably likely to cause injury. It was equally obvious to the judge that the relationship between prospective adoptive parents and the social workers and doctors whose task it was to assess and examine the children, passed any sensible test of proximity.
The judge accepted A and B’s evidence that the local authority had failed to inform them of the extent of the child’s behavioural problems, and that had they been given that information, they would not have gone ahead with the placement. Accordingly the social workers involved had failed in their duty of care and the authority was vicariously liable for their negligence.
The judge, however, went on to find that liability would only attach in respect of the period between the placement of the children and their adoption by A and B (approximately one year). This was because during the placement period A and B had come to know the substance of the information they had not previously been given, with the result that any damage sustained by them after the adoption was not caused by the LA’s breach of duty.
The local authority lost its appeal against the award of compensation. The Court of Appeal did however say: “There is in general no duty of care owed by an adoption agency or the staff whom it employs in relation to deciding what information is to be conveyed to prospective adopters. Only if they take a decision which no reasonable agency could take could there be liability. But once the agency has decided, either in general or in particular, what information should be given, then there is a duty to take reasonable care to ensure that that information is both given and received”. The Court stressed that adopters have to be prepared to cope with the “downs as well as the ups” of family life and “to regard themselves as parents in every sense”.