Many children taken into care will sadly have been the victims of severe physical and sexual abuse. A child in care who has been subject to such abuse will be eligible to make a claim in compensation to the Criminal Injuries Compensation Authority (CICA).
The issue of whether a local authority owes a duty of care to pursue financial and legal claims on behalf of children in care was recently explored in the case of VL (a child suing by her litigation friend, the Official Solicitor) v Oxfordshire County Council [2010] EWHC 2091 (QB), [2010] ALL ER (D) 44 (Aug)
The claimant was born in 1993. When she was 14 months old, she was seriously assaulted when she was violently shaken by her birth father. As a consequence, she suffered severe brain damage and developmental delay. A care order was made from August 1994 until March 2000 which led to Oxfordshire CC sharing parental responsibility with the child’s mother. No criminal prosecution was ever brought against VL’s father, but instead, with the approval of the court, VL’s father underwent extensive psychiatric treatment and was successfully rehabilitated into the family, where he still lives.
Whilst the local authority focused on rebuilding the family unit, they failed to make an application on behalf of the child to the Criminal Injuries Compensation Board (CICB) before 1 April, 1996. After that date the old Criminal Injuries Compensation Scheme, based on a common law damages assessment, was replaced by a tariff scheme operated by the CICA. The new scheme was less favourable to applicants with a maximum award of £500,000 for all claims. In stark contrast, a claim to the CICB would have been worth several million pounds. A CICA award of £500,000 was eventually made to the child in 2001.
It was VL’s case that Oxford CC owed her a duty of care to lodge the application by 1 April 1996. Their failure to do so resulted in significant financial losses and it was alleged that it constituted a failure to act according to the professional standards to be expected of a reasonably competent social work legal department.
In giving judgment McKay J had no doubt that the local authority had the power to make a claim to the CICB, even if the claimant’s mother objected. He went on to say that this did not mean that it was under a duty to maximise the economic position of the claimant, particularly where the parent retained a share of parental rights.
McKay J found that the local authority’s primary focus had to be on the physical safety and welfare of the claimant and it was only right that the rehabilitation of the family took precedence over any CICB application. He held that it would not be fair, just and reasonable to impose a duty of care so as to promote the claimant’s financial security over the unity of the family. The claim was dismissed.
This wasn’t a straightforward case and several specific factors were considered by the Judge:
- It involved a mother who retained parental responsibility
- A CICB claim made before 1 April 1996 may have impeded the rehabilitation of the family as there was a risk of the mother confirming the allegations against the father.
- The mother had been advised by her own solicitors to lodge the CICB form before April 1996 and had been warned that the new scheme was less generous.
The case is not therefore absolute authority that there can never be a duty of care on local authorities to pursue financial claims on behalf of children in the care system.
Recognising whether a child has a potential criminal injuries claim should be clear where you have a child who has been the victim of physical and/or sexual abuse. Children currently in, and about to leave the care system are extremely vulnerable and even a modest award of compensation could help make an enormous difference to their lives.
Sarah Griggs – Associate Solicitor, London
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