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
Council1 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
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.
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