1. The Court has recently decided for the first time in Jersey in ABC v The Minister for Health & Social Services and The States Employment Board that a parent does not have a private cause of action arising from a breach of the Children (Jersey) Law 2002.
2. The facts are similar to those that have troubled the Courts of England & Wales numerous times over the years. A child is taken into the care of the State. The parent alleges wrongly so and as a result the parent alleges he or she has suffered psychiatric harm arising from the separation from his or her child.
3. The English case of X (Minors) v. Bedfordshire County Council 1 set out the law in 1995 in relation to the Children Act 1989 on the same point. The Court considered first whether the wording of the statute allowed a parent or child to bring an action. It did not. The wording would have to show a clear parliamentary intent for a private cause of action to arise and in addition the Plaintiff would have to fall within a limited class of persons whom the statute was designed to protect. The next remedy to consider was whether careless performance by the State of its duties under the Children Act 1989 gave rise to a cause of action. The Court found that for liability to arise, the Plaintiff would have to establish not just that the State had been careless in the performance of its duties, but that the Plaintiff was owed a duty of care. In X (Minors) v Bedfordshire County Council the Court found that neither the child nor the parent would be owed such a duty of care.
4. Ten years later when the English case of JD v East Berkshire Community Health NHS Trust and Others2 was decided by the House of Lords, matters had moved on. The House of Lords confirmed that following the implementation of the Human Rights Act 1998 it was no longer sustainable for the child not to be owed a duty of care by professionals when carrying out their duties (be they a doctor or social worker wrongly diagnosing harm or abuse of the child). However, the position in relation to the parent suffering psychiatric injury remained the same. The House of Lords held that there were "cogent reasons of public policy for holding that no common law duty of care should be owed to parents."
5. The protection a parent is afforded is that clinical and other investigations should be conducted in good faith (so that in cases of bad faith the parent may have a claim based on misfeasance in a public office).
6. The liability or otherwise of the State arising from alleged breaches of statutory duty had been considered by the Court in Jersey previously.
7. In Dobson v Public Services Committee3 the Royal Court had examined a strike out application for an action based on breach of statutory duty and a duty of care alleged to arise from failure to maintain the highway. The Royal Court had followed X v Bedfordshire County Council in finding no duty was owed.
8. In the unreported case of Syvret v Chief Minister4 a claim was founded upon breach of the Children (Jersey) Law 2002 and the States of Jersey Law 2005. Neither Law was found to give rise to a cause of action. In particular the Plaintiff was neither a child nor a parent and could not claim to be a member of a special class that the Children (Jersey) Law 2002 was designed to protect. In obiter comment the Royal Court stated that, in line with the decision in JD v East Berkshire Community Health NHS Trust and Others and to give effect to Article 8 ECHR, a child may have a cause of action under the Children (Jersey) Law 2002.
9. In striking out the parent's claim under the Children (Jersey) Law 2002, ABC v Minister for Health & Social Services clarifies that a parent is not owed a duty of care under the Children (Jersey) Law and that a parent does not have a private cause of action based on breach of the Law.
Footnotes
1 [1995] 2 AC 633
2 [2005] UKHL 23
3 [2003] JLR 446
4 (20 June 2011)
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
