Family lawyer organisation, Resolution, has issued two joint notes to assist family lawyers in England and Wales ahead of the end of the Brexit transition/implementation period at 11 pm on 31 December...
The claimant had been born into a family well-known to social services; her uncle was known to have sexually abused his siblings, and had been removed from the family home. The claimant's mother acknowledged when the claimant was only weeks old that she hit the claimant, and was not very interested in her; other members of the family reported the mother biting the baby and almost daily violence. At one stage the mother suggested that the baby be fostered, and this was seriously pursued for a time. However, the mother changed her mind about fostering and, notwithstanding the local authority's serious concerns about the claimant's safety and well-being, the authority did not pursue care as an option. Although the child had at some stage been placed on the at risk register, after the mother left the family home the authority apparently lost touch with the child and the mother for some years. A series of incidents then renewed concerns that the child was being abused physically and emotionally; it emerged that at the age of 13 the child was sharing a bed with the mother. The local authority began to intervene until, when the claimant was 14, the mother deposited her at the police station, and she was taken into voluntary care.
As an adult, the claimant suffered from an emotionally unstable personality disorder and drug dependence. Her early attempts to obtain access to the local authority files were unsuccessful. After many years the claimant complained to the police about the mother's ill-treatment; she mentioned sexual abuse, but was not prepared to provide details. The mother eventually pleaded guilty to child neglect; she was sentenced to a 2 year community rehabilitation order. In the course of these proceedings the claimant finally saw certain records and, 32 years after her release from care, she brought civil proceedings, seeking damages and raising specific allegations of sexual abuse. The local authority accepted that if the existing documentary evidence provided a complete record, then they had failed in their duty of care towards the claimant, but argued that other documents must have existed and that the court could not judge on the basis of the existing file.
The late allegations of sexual abuse had been made out. An unusual feature of the case was that the mother had, from the beginning, been remarkably frank in acknowledging her negative feelings towards the child and the fact that she ill-treated the child. The mother had persisted with violence towards the child and others in the presence of third-parties. Despite this, there had been no systematic monitoring and/or assessment of the mother and child by the authority. Although it was accepted that certain documents must be missing, the court was satisfied that there had been a breach of duty by the local authority when the child was young. It was equitable to allow the claim to continue, notwithstanding that there had been a substantial delay in bringing the claim. The local authority's failure to provide files when the claimant had originally asked for them had contributed significantly to this delay, and the claimant had acted promptly once the information had been made available. Further, there was no evidence that the missing documents would have been available to assist the court if the claim had been made earlier, and the loss of the relevant file was attributable to the actions of the local authority. The court concluded that, but for the breach of duty, the child would have been removed from the mother's care. The claimant was awarded agreed damages of £60,000.