Claim No 4CF09714
Neutral Citation Number: [2007] EWHC 869 (QBD)
IN THE HIGH COURT OF JUSTICE 
QUEEN’S BENCH DIVISION
CARDIFF DISTRICT REGISTRY

BEFORE 
HIS HONOUR JUDGE HICKINBOTTOM 
SITTING AS AN ADDITIONAL JUDGE OF THE HIGH COURT

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 (1) ROGER WILLIAM MERVYN LAMBERT
(2) MARJORIE ROSE DIANE LAMBERT
Claimants
-and-

CARDIFF COUNTY COUNCIL
Defendant

APPROVED JUDGMENT
11 JANUARY 2007
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RICHARD PRICE appeared for the Claimants as a Lay Representative.
PAUL STAGG of Counsel (instructed by Hugh James) appeared for the Defendant.

CARDIFF CIVIL JUSTICE CENTRE, 2 PARK STREET, CARDIFF CF10 1ET
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Judgment
Introduction

1.	This claim concerns the placement of a teenage girl by the Defendant Council’s predecessor with the Claimant foster carers Mr & Mrs Lambert, between 1991 and 1993.  At the end of the placement the girl made false allegations of sexual misconduct against Mr Lambert and launched a campaign of harassment against the Claimants which caused them both psychiatric injury.  In this action, Mr & Mrs Lambert claim that the Council is responsible for their respective psychiatric conditions.  In terms of quantum, the special damages claimed exceed £800,000.

2.	I shall deal with each ground of claim in due course but, briefly, the main heads can be summarised as follows:

(i)	The Claimants allege that the Council falsely represented to them that it would indemnify the Claimants for all damage (including personal injury) caused by a child in the care of the Council and would effect that indemnity by taking out a policy of insurance covering such losses on the Claimants’ part, irrespective of when such damage or losses might occur (either during or after the placement) and the circumstances of it.  They claim that (a) this misrepresentation was negligent and induced them to enter into the fostering arrangement with the Council, and (b) the representation formed a term of a collateral contract, and in either event they claim damages for the failure to insure in accordance with the representation made (“the misrepresentation claim”).

(ii)	The Claimants allege that the fostering agreement between the Council and Mr & Mrs Lambert had contractual effect and, on its true construction, the Council agreed to insure Mr & Mrs Lambert against any personal injury caused to them by any child placed with them, irrespective of when such injury or resulting losses might occur (either during or after the placement) and the circumstances of it.  They claim damages for breach of contract resulting from the Council’s failure to insure in accordance with this contractual term (“the contractual claim”).

(iii)	 In view of the relationship between them namely (a) as employer/employee or (b) the special relationship of foster placement authority and foster carers falling short of employer/employee, the Council owed the Claimants a duty of care:

 (a)	to effect insurance that covered Mr & Mrs Lambert for any personal injury that might be caused to them by any child placed with them, irrespective of when and the circumstances in which such injury might occur:  

(b)	to provide them with information relating to the history of any particular child placed with them, particularly any past false allegations of sexual abuse: 

(c)	to take reasonable steps to control any child placed with them, whether during or after placement, or before or after that child has reached majority: and

(d)	to advise and support them.

I shall refer to these claims as “the tort claims”

3.	From 1984, Mr & Mrs Lambert fostered children placed by Gloucestershire County Council (“GCC”).  In 1991, in the circumstances outlined below, they began fostering children for South Glamorgan County Council, which, as the result of the reorganisation of local government on 1 April 1996, transferred all of its rights and obligations to the Defendant.  In this judgment, I shall refer to the Defendant and its predecessor as simply “the Council”.

4.	Mr & Mrs Lambert fostered a number of children for 10 years from 1984, including the girl referred to above.  At the outset of the trial, I ordered that that the names of all these children should remain confidential and were not to be disclosed, and throughout this judgment I shall refer to any such child by his or her first initial only.  I shall refer to the child at the centre of this claim as “A”.

5.	Mr Paul Stagg of Counsel represented the Defendant.  The Claimants were represented at trial by Mrs Lambert’s brother, Mr Richard Price, who on 28 October 2005 was given the right to conduct the litigation and the right of audience pursuant to Section 27 and 28 of the Courts and Legal Services Act 1990.  He was involved with this claim from its inception - writing the letter before action in 1994 - and, as Mr & Mrs Lambert frankly accepted, he has been very closely involved in every aspect of the case.  In this judgment I criticise some of those aspects: but, in terms of the trial itself, it is only right that I should mark the manner in which he conducted himself and the Claimants’ case.  He cross-examined, made submissions and otherwise acted throughout in a moderate and competent manner.  

The Legislative Background

Introduction

6.	The relevant dates in this claim straddle 14 October 1991, when the Children Act 1989 (“the 1989 Act”) came into force.  Before that date the statutory framework for fostering was provided by the Child Care Act 1980 (“the 1980 Act”) and regulations made thereunder.

The Child Care Act 1980

7.	Under Section 18(1) of the 1980 Act, in reaching any decision relating to a child in their care a local authority was required to “give first consideration to the need to safeguard and promote the welfare of the child”.  However, Section 18(3) provided:

“If it appears to the local authority that it is necessary, for the purpose of protecting members of the public, to exercise their powers in relation to an particular child in their care in a manner which may not be consistent with their duty under subsection (1) above, the authority may, notwithstanding that duty, act in that manner.”

8.	Section 21 made provision for accommodation and maintenance for children in an authority’s care.  Section 21(1) provided:

“A local authority shall discharge their duty to provide accommodation and maintenance for a child in their care in such one of the following ways as they think fit, namely:

(a)	by boarding him out on such terms as to payment by the authority and otherwise as the authority may, subject to the provisions of this Act and regulations thereunder, determine; or
(b)	by maintaining him in a community home…; or
(c)	by maintaining him in a voluntary home….

9.	Section 21A(1) dealt with “secure accommodation”:

“…. [A] child in the care of a local authority may not be placed, and, if placed, may not be kept, in accommodation provided for the purpose of restricting liberty unless it appears;

(a)	that:

(i)	he has a history of absconding and it is likely to abscond from any other description of accommodation; and
(ii)	if he absconds, it is likely that his physical, mental or moral welfare will be at risk; or

(b)	that if he is kept in any other description of accommodation he is likely to injure himself or other persons.”

10.	From 1 June 1989, the relevant regulations under the general regulation-making power in Section 22 were the Boarding-Out of Children (Foster Placement) Regulations 1988 (1988 SI No 2184, “the 1988 Regulations”) , under which:

(i)	No placement could be made unless the household had previously been approved by the local authority making the placement (Regulation 3(1)).  Regulation 3(4) provided:

“A local authority… shall give notice in writing to a prospective foster parent as to whether or not the household in which he is living has been approved under this regulation and whether approval is in respect of a particular child or class of children or in respect of any particular kind of placement in such circumstances as may be specified by the authority…”.

The required contents of the notice were set out in Part II of Schedule 1 to the Regulations, namely:

“1.	The procedure of the local authority… for the review of approval of households.
2.	The procedure of the authority… for dealing with complaints by foster parents.
3.	The arrangements of the authority… for meeting any legal liability of a foster parent arising by reason of the placement.
4.	The arrangements of the authority… for the financial support of the children placed with a foster parent.” 

As can be seen, these concerned procedures and arrangements of the authority, which it was bound to set out for the benefit of the foster parents.

(ii)	Approvals were to be reviewed from time-to-time, and there was a power to terminate approval (Regulation 3 (6) and (8)).

(iii)	The local authority was required to satisfy itself that a particular placement was the most suitable way in which to discharge their duties to a child under Section 18 of the 1980 Act (Regulation 5(1)).

(iv)	Under Regulation 5(5), there was a general duty on the authority to provide information to a prospective foster parent, as follows:

“Except as provided in Regulation 9 (emergency placements) a local authority… shall before a child is placed with a foster parent, if practicable, and in any case not more than 14 days after the child had been placed with the foster parent, provide the foster parent with such information in writing as the authority… consider necessary to enable the foster parent to care for the child, being information which relates to:

(a)	the state of health of the child, and his need for health care and surveillance;
(b)	the personal history, religious persuasion and cultural background and racial origin of the child;
(c)	the plans of the authority… for the child; and
(d)	any other relevant matters.”

(v)	In addition to the provisions of Regulation 3(4) for the required notice in respect of the household, Regulation 6 provided for “agreements with foster parents”:

“Except as provided in Regulation 9 (emergency placements), a local authority… shall not place a child with a foster parent unless the foster parent has before or at the time of the placement signed an undertaking as to matters set out in Part I of Schedule 2 and entered into an agreement in writing with the authority… which shall include the provisions set out in Part II of that Schedule.”

Part I of Schedule 2 set out a number of undertakings that the foster parents were bound to give, e.g. “to care for the child placed… as if he were a member of the foster parent’s family and to promote his welfare…”, i.e. obligations upon the foster carers (Paragraph 1).  Part II set out the following provisions which had to be included in an agreement between authority and foster parents:

“ 1.    Any particular arrangements for the child’s care, development and upbringing including arrangements for the care of his health and for his education and employment.
 2.    Arrangements for access to the child by the child’s parents and other persons.
 3.    Arrangements for visiting and review of the case of the child by the local authority or the voluntary organisation, stating how often those visits and reviews will be carried out….
 4.    Arrangements for the financial support of the child during the period of the placement.”

Again, these were matters for the authority to set out for the benefit of the foster parents.

(vi)	Under Regulation 8, to ensure that the welfare of each child placed was being appropriately provided for, the local authority had a duty to supervise the placement.

(vii)	The authority could terminate a placement if it appeared to them that the placement was no longer in accordance with their general duty under Section 18 or would be detrimental to the child (Regulation 11).

11.	These regulations were revoked by the Foster Placement (Children) Regulations 1991 (1991 SI No 910) made under the Children Act 1989.  These came into effect on 14 October 1991 but, by virtue of the transitional provisions of Paragraph 21 of Schedule 14 to the 1989 Act, where a child was already in a placement as at that date the old scheme (including the 1988 Regulations) continued to apply for 12 months (i.e. until 14 October 1992).

The Children Act 1989

12.	The 1989 Act and its 1991 Regulations closely mirrored the immediately preceding scheme for fostering arrangements. 

13.	By Section 22(3), the authority was required to safeguard and promote the welfare of children in their care, although there was a caveat (in Section 22(6)) in similar terms to Section 18(3) of the 1990 Act (see Paragraph 7 above).

14.	By Section 23(2), a local authority continued to have a duty to provide accommodation and maintenance for any child whom it was looking after by (amongst other means) “placing him… with (a) a family; (b) a relative of his; or (c) any other appropriate person, on such terms as to payment and otherwise as the authority may determine”.  A child could only be sent to live with a family in accordance with regulations made by the Secretary of State (Section 23(5)).

15.	Section 24(1) provided:

“Where a child is being looked after by a local authority, it shall be the duty of the authority to advise, assist and befriend him with a view to promoting his welfare when he ceases to be looked after by them”.

16.	Section 25 (“Use of accommodation for restricting liberty”) was in similar terms to Section 21A(1) of the 1980 Act (see Paragraph 9 above).  However, by Paragraph 7 of Schedule 2 to the 1989 Act, an authority was required to take reasonable steps to (i) reduce the need for criminal proceedings against (ii) encourage children not to commit criminal offences and (iii) avoid the need for children to be placed in secure accommodation.  The Children (Secure Accommodation) Regulations 1991 (1991 SI No 1505) incorporated further restrictions and conditions on the use of secure accommodation, e.g. the maximum period in such accommodation without the court’s authority was 72 hours (Regulation 10), and the maximum period that a court could sanction such accommodation was 9 months (Regulations 11 and 12)

17.	The Arrangement for Placement of Children (General) Regulations 1991 (1991 SI No 890) identified a number of considerations to which an authority was required to have regard in making a placement, but detailed provisions for placements were set out in the 1991 Regulations which in many respects followed the 1988 Regulations, e.g. in terms of approvals of foster carers (Regulations 3 and 4).   

18.	Regulation 3(6) of the 1991 Regulations provided:

“Where an approving authority approve a person as a foster parent they:

(a)	shall give him notice which specifies whether the approval is in respect of a particular named child or children or number and age range of children or of placements of any particular kind or in any particular circumstances;
(b)	shall nevertheless place no child with him unless he enters into a written agreement with them covering the matters specified in Schedule 2”

19.	Schedule 2 set out a list of matters and obligations which were required to be in the “foster care agreement”, including the amount of training and support to be given to foster parents, the procedure for the review of approvals, and the procedure in connection with the placement of foster children:

 “and in particular:

(a)	the matters to be covered in foster placement agreements and the respective obligations, under any such agreements, of the responsible authority and the foster parent; 
(b)	the authority’s arrangements for meeting any legal liabilities of the foster parent arising by reason of the placement; and
(c)	the procedure available to foster parents for making representations to the local authority in whose area that child is placed” (Paragraph 3 of Schedule 2 to the 1991 Regulations).

20.	The schedule also required the foster care agreements to contain specific terms requiring the foster parents (e.g.) to notify the authority of any change in household details (Paragraph 4), not to administer corporal punishment to any child placed with him (Paragraph 5), to ensure information about the child be kept confidential (Paragraph 6), to comply with the terms of any foster placement agreement (Paragraph 7), and to notify the authority of any serious illness the child might contract (Paragraph 8).

21.	In respect of individual placements, that placement had to be the most appropriate way of fulfilling the duty to accommodate (Regulation 5(1)): and, except where a placement was carried out as an emergency measure, an authority could not place a child unless the authority and the foster parents had entered into a written agreement relating to that child coving matters specified in Schedule 3 to the Regulations.  To a large extent these matters were similar to those required in foster agreements under the previous statutory scheme by virtue of Part II of Schedule 2 to the 1988 Regulations (see Paragraph 10(v) above), e.g. the authority’s arrangements for the financial support of the child (Paragraph 2) and the arrangements for the child to have contact with his parents (Paragraph 6).  However, Paragraph 1 dealt with the provision of information, as follows:

“The provision by the responsible authority of a statement containing all the information which the authority considers necessary to enable the foster parent to care for the child and, in particular, information as to:

(a)	the authority’s arrangements for the child and the objectives of the placement;
(b)	the child’s personal history, religious persuasion and cultural and linguistic background and racial origin;
(c)	the child’s state of health and need for health care and surveillance; and
(d)	the child’s educational needs

including a requirement for the statement to be provided either at the time of the signing of the agreement or, where this is not practicable, within the following 14 days.”  

22.	As under the 1980 Act scheme, placements were to be supervised (Regulation 6), and could be terminated if no longer appropriate (Regulation 7(1)).

The Witnesses

23.	Before I deal with the evidence, I should say something about the witnesses from whom I heard.  

24.	The claim relied heavily upon the evidence of Mr & Mrs Lambert themselves, particularly the latter who was the primary carer for the fostered children and also, if I might say so, the dominant force in the Lambert household.  

25.	I do not for a moment doubt the sincerity of Mr & Mrs Lambert - or indeed the genuineness of feeling they have of deep-seated grievance against the Council for the manner in which they perceive they have been treated.  Furthermore, given that most of the events relevant to this claim occurred in the first half of the 1990s - over 10 years ago - it is inevitable that recollections have faded.  Nevertheless, even bearing these matters in mind, I had considerable concerns about the reliability of the evidence given by Mrs Lambert.

26.	This litigation was commenced in September 1995 and, over the last 11 years, has encompassed other parties than the Lamberts and the Council.  Mr Lambert’s taxi business partner (Mr Andrew Symons) was initially an additional claimant.  From time-to-time, the defendants have included both A, and also a number of that child’s foster carers after the Lamberts.  In addition to this action, there have been further substantial proceedings against GCC in respect of the period during which the Lamberts had children placed by that authority.    

27.	Before me, the trial bundle comprised about 20 files of documents amounting to several thousand pages.  Mrs Lambert’s written evidence alone amounted to over 2,500 paragraphs.  But it is not just the size of the evidence which is of concern.  Mrs Lambert’s written evidence was full of immoderate language and allegations against the Council and its employees.  Having heard all of the evidence, some of these allegations are patently not true, as Mrs Lambert herself has accepted.  For example:

(i)	It is part of the Council’s defence that, prior to their approval as foster carers for the Council, Mr & Mrs Lambert were required to go to various training sessions and indeed they did go to at least some of these sessions.  Mrs Lambert’s response in her written evidence was, not that she could not recall such an invitation to or attendance at such sessions, or that the Council were mistaken in their view; but that “the Defence is fabricated, and is unsupportable by any witness or documents” (Third Statement 20 May 2006, Paragraph 322: see also Paragraphs 345 and 346, and Fourth Statement 14 November 2006 Paragraph 14 and heading above that paragraph to same effect).  However, Mr John Evans (a social worker called to give evidence by the Lamberts) said that he recalled Mr & Mrs Lambert attending perhaps half of the sessions: Mr Lambert has never denied attending some of the sessions (see Statement 4 September 2005, Paragraph 128 and following), and in oral evidence he said he thought they had attended at least half of the six sessions: the Amended Particulars of Claim assert that Mr & Mrs Lambert “took part in a number of group training and discussion sessions at the [Council’s] offices (Paragraph 9): and, in her oral evidence, Mrs Lambert herself accepted that she and her husband had attended some of the sessions, but could not recall how many.  In the light of these, the content and nature of Mrs Lambert’s written evidence on this issue is of considerable concern.

(ii)	Similarly, in support of the contention that, again prior to their approval by the Council, Mr Evans represented to Mr & Mrs Lambert that “all damage” caused by any foster child would be indemnified by the Council (ultimately by insurance taken out by the Council) (Paragraphs 12 and 13 of the Amended Particulars of Claim), in her written evidence Mrs Lambert said (First Statement 4 September 2005, Paragraph 298):

“Mr Evans assured me that under the [Council] scheme, their Community Parents were well covered by insurance for “all damage” caused by a foster child, except damage covered by a normal household insurance” (emphasis in the original).

However, in her oral evidence (as in that of Mr Lambert) she said she could not recollect the precise words used, and in particular could not say that the words “all damage” quoted in her statement had been used by Mr Evans or anyone else on the Council’s part.

(iii)	There have been considerable difficulties with the Council’s disclosure of documents.  Given the lapse of time since the relevant events, in part this may be understandable (although the Council have been on notice of these proceedings since late 1994, when a letter before action was sent).  Some documents have clearly been lost or destroyed.  Others have not been disclosed until well after they ought to have been.  I accept that at times the efforts of the Council at giving disclosure have been less than the Claimants and the Court were entitled to expect.  However, again, Mrs Lambert’s view is that these failures on the Council’s part is an attempt “to hoodwink and deceive this Honourable Court and that is why the [Council] is meticulously “filtering” disclosable documents to suit its purpose, i.e. to prevent a fair trial” (emphasis in the original) (Third Statement 20 May 2006, Paragraph 382).  She overtly accuses the Council, by withholding documents, of “undoubtedly attempting to pervert the course of justice” (emphasis again in the original) (Third Statement 20 May 2006, Paragraph 606).  There is no doubt that it is unfortunate that relevant documents are now missing, and equally unfortunate that the Council have failed in its obligations to retain such documents.  However, there is no compelling evidence that the Council or any of its employees or servants have taken any steps deliberately to destroy or hide documents, or “filter” documents disclosed at all yet alone in an “extremely cunning” manner (Third Statement 20 May 2006, Paragraph 186).   There is no foundation to Mrs Lambert’s assertion.  May I also say at this stage that I am entirely confident that the evidence which is available has enabled the just disposal of the issues in this case.

28.	Although slow to draw this conclusion in respect of a patently sincere witness, these matters pointed to the Claimants (but particularly Mrs Lambert) having lost almost all objectivity in relation to this claim and their relationship with the Council as a whole, such that their approach to this litigation has verged on the obsessional.  I note that the parties’ respective expert psychiatrists (Dr Martin Andrew and Dr Peter Jenkins) agree that Mrs Lambert is “obsessionally pre-occupied by the case” (Joint Memorandum September 2005, Page 5).  As a result of this failure of objectivity, at least to an extent, Mrs Lambert has in her own mind reconstructed what happened at the relevant time.  That reconstructed view she, no doubt, genuinely and firmly holds.  She was reluctant to be moved from it, even when faced with overwhelming evidence to the contrary.  But in considering her evidence, I must take into account her lack of objectivity.  Inevitably, to a considerable extent, this undermines her evidence as a whole.

29.	I will deal with the evidence of other witnesses as I come to them.  However, with regard to those called by the Council (mainly social workers who were assigned either to Mr & Mrs Lambert as a support for them in the Council’s fostering scheme, or to the fostered children), generally I am satisfied that, although dealing with events of many years ago, they were not only doing their best to assist the court, but their disinterest and objectivity could not be faulted.  In particular, there was no evidence of any of these witnesses (or anyone else from the Council), individually or in collusion, seeking to deceive either the Lamberts or the Court, as is suggested by the Claimants.
   
The Factual Background

Until the Application to the Council

30.	Mr & Mrs Lambert live in a small village in the Forest of Dean, about 3 miles from Coleford.  

31.	In their own ways, each had a challenging up-bringing and early adult life.  Mr Lambert spent most of his minority years in care, but also some time in Borstal.  He married Mrs Lambert when he was in his early 20s, and she was only 17 and pregnant.  Their families did not initially approve of the match, and they spent their first years of married life living in a “very cramped, cold and damp” caravan in the forest.  Their first-born - a son - was sickly, and spent a good deal of time in hospital.  On any view, these years were hard.

32.	However, by the 1980s, things had improved.  They had bought their (council) house, and indeed extended it.  Their two children were grown up, and preparing to make their own way in the world.  Unfortunately, money was still tight.  The firm for which Mr Lambert worked was insecure, eventually folding and Mr Lambert found himself out of a job. 

33.	The Lamberts wished to use their experiences to good altruistic effect, and Mr Lambert’s first thought was to offer to give children in care a holiday at the Lamberts’ rural home.  This was something that Mr Lambert had much appreciated himself when he was in care.  Consequently, Mrs Lambert telephoned their local council (GCC) to make an enquiry.  Although GCC said that such an arrangement would not fit in with their general care arrangements for children - indeed it might be upsetting for a child to spend such a short period with a family - they asked the Lamberts if they had considered fostering children.  The council were particularly anxious to place adolescent children.   This suggestion was considered and discussed at length by the Lamberts, who felt that they had something to offer in this role.  Some months later, GCC arranged to see them, and they agreed to go through the approval process.  By this time, Mr Lambert was unemployed, and they were not in a position to do the work for nothing.  There were a variety of reasons they wished to foster children, but payment for the job was seen as a way of overcoming their financial difficulties (Mrs Lambert First Statement 4 September 2005, Paragraphs 111, 121 and 127).

34.	The Lamberts went through the vetting and approval process, attending some group sessions, and were approved by GCC in July 1984.  They regarded the news of approval as offering them the prospect of financial security (Mrs Lambert First Statement 4 September 2005, Paragraph 146).  For the first year, they were used as respite carers - as effectively a “holiday home” for children in care - but went on to foster about 25 children for GCC, mostly teenagers.  Although not within any special scheme, at least some of these children were patently challenging.  They were:

“…problematic children for [GCC].  These children would range from dysfunctional, to being so problematic that they were on their “last chance” before being placed in secure accommodation.  Some of the children were disturbed.” (Mrs Lambert First Statement 4 September 2005, Paragraph 220)

The Lamberts had to deal, at first hand, with allegations of sexual interference made by one foster boy against another, which Mr & Mrs Lambert believed to be false but in which the police were involved: the boy against whom the allegations were made being required to leave the Lamberts, but the boy making the allegations being allowed to stay (Mrs Lambert First Statement 4 September 2005, Paragraphs 270-277).  

35.	These were undoubtedly challenging adolescents.  It is equally indisputable that Mr & Mrs Lambert were very good foster parents, giving an excellent standard of care to those children in their charge.  It is a feature throughout the litigation Mr & Mrs Lambert have taken in relation to their fostering over the last 12 years - and a hallmark of the evidence that I have heard - that the Lamberts were consistently very capable at looking after challenging adolescents, taking in their stride all that these children could say and do, with fortitude, determination, patience and love.  Nothing I say in this judgment should be taken as detracting at all from my admiration for their service to the public community, which is clearly shared by many including the witnesses from whom I heard.

36.	However, unfortunately, two matters arose to upset their relationship with GCC.

37.	First, they were deprived of the opportunity of fostering for GCC within one of their schemes in which the Lamberts would have been paid more for fostering particularly challenging adolescents.  They fostered under the ordinary fostering scheme which applied to the vast majority of children placed, and under which they received a “boarding out allowance” intended to defray at least some of the extra expenditure which looking after a foster child would inevitably entail.  An enhanced payment could be authorised if additional expense was incurred.  Some of the children boarded out in this “mainstream” scheme undoubtedly exhibited very disturbed and challenging behaviour.

38.	GCC operated two particular schemes under which, in addition to these expenses, the foster parents received additional money, namely the Gloucestershire Adolescent Placement Scheme and the Contract Foster Scheme.  The former was intended for children who would otherwise have been placed in a children’s home: the latter for children with multiple problems who would previously have been placed in specialist units, the fostering being short-term (less than 6 months per placement).  Unfortunately, the Lamberts were not eligible for either scheme: the former did not take foster parents from the Forest of Dean after 1980, and the latter only applied to foster parents who were new or had no children currently with them.  

39.	Mr & Mrs Lambert felt aggrieved, because (to their view) they were looking after very challenging children who might otherwise be fostered through one of these schemes - indeed, as they understood it, one child was transferred out of a scheme to be fostered by them - but without the same recompense that scheme foster parents would have.  They considered this unfair.

40.	Second, a number of children whom they looked after either stole from them or caused damage to their home and its contents.  Mrs Lambert said (First Statement 4 September 2005, Paragraph 210) that they had been told that GCC insured all of its foster parents “against injury, loss or damage caused by any foster child with the exception that accidental damage should be covered by [their] own household insurance”.  In any event, the Lamberts had difficulties in obtaining compensation from GCC in respect of this loss, and certainly recompense took some little time (although always eventually obtained).

41.	For these reasons, Mr & Mrs Lambert became disenchanted with GCC, and began making enquiries of other authorities.  They were accepted by Gwent County Council - their son lived in that area - in December 1989.

The Community Placement Scheme

42.	In about May 1990, Mrs Lambert contacted the Council (i.e. South Glamorgan County Council) to enquire about the possibility of fostering for them on a “professional basis”, i.e. fostering for a return more than the usual contribution to additional expenses.  The Council did have a scheme, set up in 1982-3, called “the Community Placement Scheme”, designed to cater for older, more difficult children within the community as opposed to institutional homes.  It was considered that, for dealing with such placements, carers should receive additional benefits, due to the difficulties they would inevitably encounter with such children.  The carers were therefore paid more than the normal fostering allowance - although the Inland Revenue accepted these additional payments as “extra expenses” and they were not subject to tax (John Barnes Statement 13 September 2005, Paragraph 10, which was unchallenged).

43.	This was intended to be an intensely supportive scheme, designed to cater for the most challenging adolescents who, to that time, had been accommodated in institutional homes and special units.  It was intended to cater for a limited number of placements, up to 32 - although the scheme started with just eight.  In addition to the Manager of the scheme (John Barnes, a Principal Social Services Officer with the Council), there were four social workers in the team, employed as Community Placement Officers (“CPOs”), namely John Evans, Andrea Hunt, Jane Walker and Patricia Stapleton.  It was the purpose of the scheme - and the job of the CPOs - to ensure that the carers who were assigned these difficult placements were adequately supported.  Each CPO looked after 3-6 carers.  It was the intention of the scheme to ensure that children were carefully placed with suitable carers, and that, once a placement had been made, the CPOs would visit the carers regularly (say, once per week) and that there would be monthly meetings between all of the CPOs and carers.  The scheme also provided a 24 hour support service for carers, each carer having telephone numbers for all of the CPOs and Mr Barnes on a rota.  There were two residential units attached to the scheme, designed to prepare children for moving to a family after careful matching.
  
44.	CPOs were of course in addition to the social workers assigned to each child in care, whose function was primarily in relation to the welfare of those children and who would also regularly visit the household.

45.	Mr Evans was a Senior Social Work Practitioner and a CPO from October 1988 to August 1994.  When Mr & Mrs Lambert made their enquiry of the Council, Mr Evans was assigned by Mr Barnes to assess their potential, and he first visited them in July 1990.  This was, as Mrs Lambert said (First Statement 4 September 2005, Paragraph 289), the first of many meetings the Lamberts had with Mr Evans.  The Lamberts formed the view over that time (as did I from hearing him give his evidence) that, although he had differences with the Council about the scheme towards the end of his stint with them, Mr Evans was a thoroughly helpful, professional, competent and conscientious CPO.

46.	From the outset, Mr & Mrs Lambert were under no illusion as to the placements there would be under the scheme, i.e. the “more difficult teenagers” that the Council cared for (Mrs Lambert First Statement 4 September 2005, Paragraph 295).  Mr Evans said (and I accept) that he gave them a great deal of information about the scheme and the likely placements:

“I wanted to try and put them off.  They needed to know what they were in for.  I painted the worst case scenario.  Nobody who was approved could have been under any illusion as to the nature of the scheme and the children placed within it.”

Ms Hunt confirmed that this was also her approach (Statement 1 October 2005, Paragraph 5).  

The Training Sessions prior to Approval

47.	As part of the vetting and approval process, Mr Evans said (Statement 15 August 2005, Paragraph 11):

“It was also a requirement of the Community Placement Scheme at that time that any prospective foster carers joined an induction and preparatory group work programme before the report to the Fostering Panel [i.e. the panel responsible for approving would-be carers under the scheme].  This offered an additional perspective on the couple in relation to the task.”

48.	Although Mr Evans participated in these sessions, they were organised and run by Ms Hunt.  She said that the preparation courses would “provide training to the potential carer in respect of any difficulties they may incur.  The types of behaviour that children may exhibit would be thoroughly explained to the potential carers.” (Statement 1 October 2005, Paragraph 14).  She produced a handwritten document headed “Preparation Course held in Nov/Dec 1990” which, she said, set out the course programme for the course which Mr & Mrs Lambert would have been required to go on.  It indicated that the course comprised six 2-hour sessions, dealing with various issues including: 

“Child sexual abuse.
Child protection procedures.
“Safe caring” due to risk of allegations.
NFCA [i.e. National Foster Carers’ Association] legal cover & counselling” 

She said that these were all covered in one of the course sessions.  Mr Evans said that knowledge about the risks of false allegations of sexual abuse was in its infancy, but nevertheless the risks were well-known at that time, and he confirmed that it was covered in the course.  The reference to “safe caring” was to steps that could be taken to avoid false allegations being made, e.g. any male carer not being left alone in the house with a female child.  The session was designed not only to identify the risks, but the steps carers could take to avoid or restrict those risks.

49.	Mrs Lambert’s initial evidence on this issue was unambiguous, strident and uncompromising.  She said that her husband and she were never invited to any such sessions, and the Defence based upon such invitation and any attendance at any such sessions was fabricated (see Paragraph 27(i) above).  

50.	This was however contrary to much other evidence.  The Amended Particulars of Claim themselves, signed as true by both Mr & Mrs Lambert, assert that, “The Claimants also took part in a number of group training and discussion sessions at the Defendant’s offices in Cardiff” (Paragraph 9).  Mr Lambert has always accepted that he attended various meetings at County Hall, Cardiff with a view to informing prospective foster parents about the scheme (Statement 4 September 2005, Paragraph 128 and following).  In oral evidence - which I accept - he said there were difficulties in attending such courses, because of his work as a taxi driver.  Mrs Lambert did not drive.  He thought they “probably attended more than twice”, although he could not recall a session covering allegations of sexual abuse referred to above.  In her oral evidence, Mrs Lambert too recalled going to some of these sessions, but could not remember how many or what was covered in them.  Mr Evans thought they had attended 3-4 sessions.

51.	This lack of recall as to precisely what was discussed at the training sessions the Lamberts did attend is understandable after all this time.  For the purposes of this action, I do not consider it matters a great deal: because Ms Hunt and Mr Evans said that it was understood that some potential fosterers could not make every session - many were looking after other children - but, if a session were missed, then it would be the responsibility of the assigned CPO to go through the relevant ground with the potential scheme foster carers at the first opportunity.  Mr Evans said that he helped present the course, and was very familiar with it.  The content of each session was vital - “the bare minimum” that the carers would need.  He said that, if the Lamberts had missed the session concerning allegations of sexual abuse by children against carers (or any other session), then he would have gone through that with them.  He said that consequently, at the time they joined the scheme, Mr & Mrs Lambert “must have been aware of the risk” of such allegations being made.  

52.	Although the written records of Mr Evans’ visits to the Lamberts’ home are sparse, I accept this evidence without hesitation.  Mr Evans was called by the Claimants to give evidence.  He was, as the Lamberts readily accepted, a conscientious and competent CPO.  He considered this course information vital.  He was very sensitive to his obligation to pass it on to those potential carers for whom he was the assigned CPO, if those carers had missed a session.  Despite Mr & Mrs Lambert’s lack of recollection - indeed, their robust denial that anyone discussed this risk with them at any time - I am satisfied that either the Lamberts attended the relevant session or Mr Evans did discuss with at least Mrs Lambert the risk of a child placed with the Lamberts under the scheme making allegations of sexual misconduct against them, including “safe caring” steps that they could take to avoid this.  I say that this discussion was at least with Mrs Lambert not only because she was the primary potential carer, but also because it was common ground that Mr Lambert was sometimes working when Mr Evans called and he relied upon Mrs Lambert to pass onto him the contents of their discussions.  Mrs Lambert accepted in cross-examination that it was probable that Mr Evans did discuss some of the course topics with her during meetings, but she could not recall which.

Discussions concerning Insurance

53.	During the various meetings with Mr Evans prior to approval, Mrs Lambert said that there were discussions with him about the insurance position.  Compensation had in the past been an issue with GCC, and it was therefore understandable that this might have been a topic which the Lamberts would wish to raise before they began fostering for the Council.  Mrs Lambert said (First Statement 4 September 2005, Paragraph 298):

“Mr Evans assured me that under the [Council] scheme, their Community Parents were well covered by insurance for “all damage” caused by a foster child, except damage covered by a normal household insurance” (emphasis in the original).

That the words “all damage” are intended to be a direct quotation of the words used by Mr Evans is confirmed in Paragraph 13 of the Amended Particulars of Claim where it is pleaded that: “…the words “all damage” had its (sic) natural (unrestricted) meaning (it was used by laypersons to laypersons)”.

54.	I am entirely satisfied that Mr Evans never represented to Mr & Mrs Evans that, under the scheme, they would be “well covered… for all damage”.

(i)	Mrs Lambert accepted in her oral evidence that, although Mr Evans told her husband and herself that “the Council had very comprehensive cover”, she could not recall his specific words.  In particular, she could not recall him using the phrase “all damage”.

(ii)	Mr Lambert said that he too could not recall the exact words used.  He said he “just assumed that [he and his wife] were completely covered for whatever”.

(iii)	Mr Evans said neither could he recall the precise words of the discussion; but he was seeking to address the concern raised by the Lamberts, i.e. that children had stolen from them and damaged their property.  As he understood it, Mr & Mrs Lambert wanted comfort that, if they suffered damage to or theft of property, they would be recompensed for that loss through an effective policy of insurance.  In his written evidence (Statement 15 August 2005, Paragraph 13 and 14), he said:

“13.	Given Mr & Mrs Lambert’s dispute with GCC the issue of their insurance cover as Community Parents would have been thoroughly discussed.  It was my understanding that Community Parents were very well covered under the [Council’s] insurance policy for damages caused to them by young people in their care.

14.	It is my recollection that we had been informed that prospective foster carers were to be advised to take out their own household insurance cover and that they should first make a claim on that insurance.  If they were unsuccessful the [the Council’s] insurance policy would re-imburse them.”

Paragraph 14 is to an extent resonant with Paragraph 12(a) of the Amended Particulars of Claim which refers to a caveat to full compensation being “save that, “ideally”, any claim for damage accidentally caused by a child in the Council’s care, should initially be made against the Claimant’s own household insurance policy”.  In his oral evidence, Mr Evans explained that what was in is mind was only property damage or loss, as that was what they discussed: hence his example of the theft of a car by another young person within the scheme (Statement 15 August 2005, Paragraphs 18-19).  

55.	It is noteworthy that, in Paragraph 15 of their Amended Particulars of Claim, the Claimants specifically “rely upon the witness statement/evidence of Mr Evans, as to his understanding of the indemnity offered, and to what he would have said to the Claimants…”.   I accept this evidence of Mr Evans, i.e. in the context of a discussion with Mr & Mrs Lambert about their concerns about property damage and loss, he told them that he understood that foster carers in the scheme were very well covered by insurance taken out by the Council - although, as he had himself been informed, foster carers should take out their own household insurance policy and claim on that first before making a claim on the Council’s policy.   

Approval and Form of Agreement

56.	Mr Evans was impressed by the Lamberts as potential carers.  They were approved as foster carers for the Council, and particularly under the Community Placement Scheme, on 15 April 1991.  Once they had been approved, that triggered an obligation:

(i)	for the Council to serve a notice under Regulation 3(4) of the 1988 Regulations (see Paragraph 10(i) above): and

(ii)	for the Council and the Lamberts to enter into an agreement under Regulation 6 of the 1988 Regulations (see Paragraph 10(v) above).

57.	There is some issue as to the form of agreement that attached to the fostering arrangement under the scheme from time to time.  Three forms appeared in the core documents, as follows:

Agreement A:  This is not signed by anyone, nor is it dated.  It is in the same font as Agreement C, but a different font from Agreement B.  It was the only version of any agreement found by Mr & Mrs Lambert amongst their papers.

Agreement B:  This is signed by Mr & Mrs Lambert and dated 12 February 1991 (although the version date typed at the foot of the document is “7.8.89”).  It is not signed on behalf of the Council.

Agreement C:  This is signed by Mr & Mrs Lambert, and a Mr Bevan on behalf of the Council, and is dated 15 May 1995.

58.	Mrs Lambert says (First Statement 4 September 2005, Paragraphs 360 and following) that she and her husband were given Agreement A during the vetting process (i.e. in late 1990 or early 1991).  I am quite sure that they were not.  

59.	In terms of evidence:

(i)	Mrs Lambert’s evidence appears largely based upon the fact that Agreement A was the only version she could find in the Lambert’s possession.  However, although they did not apparently retain a copy, Agreement B was clearly the version that she and her husband signed at about the time of the approval.  It is dated 12 February 1991.  The panel approved them on 31 January 1991.  Mr Evans confirmed that Agreement B was the version signed by the Lamberts in February 1991 as the effective agreement.  I accept that evidence.  Mr Evans could not say why the document was not signed on behalf of the Council: it appears to have been a mere oversight on their part.  In any event, the Council appear to have acted upon it from that date.

(ii)	Agreements A and C appear to be in an exactly similar font - as Mr Stagg put it, an apparently “more modern typeface”.  It is the same font as a report by Mr Kelvyne Mills (from 1994 Mr Barnes’ successor as Manager of the Community Placement Scheme) following consultation with carers about the terms of the Community Placement Scheme in 1994.  Although one page in the middle of the report appears to be dated 1 August 1994, the report itself is undated - but it refers to a meeting having taken place on 11 October 1991, so the report clearly post-dates that.  It would be extraordinary if the Council reverted to a font used earlier between Agreements A and C.  The font suggests that Agreement B was the first in time, with Agreements A and C following.  

(iii)	Although there are minor differences, Agreements A and C are very similar in content and form.

(iv)	In 1992, a Ms Sarah Bagley produced a review of the Community Placement Scheme, as I understand it as part of an academic thesis (“the Bagley Report”).  That report had attached to it as Appendix 1, a version of the agreement dated 12 June 1991.  That appears to have been the version current at the date of the report in 1992.  It appears to be in substantially similar form (and indeed, font) to Agreement B. 

(v)	In Paragraph 4 of Mr Mills’ report (headed “Respite”), there is a quotation from the then-current contract, which appears only in Agreement B.

(vi)	Mr Evans was unsure of the order of these agreements: he said he could only remember the Lamberts signing Agreement B in February 1991, although he said he would have been surprised if there had been no other versions between that and 1995.  Mr Evans had of course had left the scheme by October 1994.

60.	On this evidence, I find as follows:

(i)	Mr & Mrs Lambert signed Agreement B on 12 February 1991.

(ii)	That agreement placed obligations upon the foster (or community) parents (Paragraph 1) and also on the Council (Paragraphs 2 and following), as well as merely confirming some of the statutory powers of the Council (e.g. to remove the child: Paragraph 6).  As such, although it covered some matters beyond the required scope of the 1988 Regulations, it primarily covered matters required by the scheme of the 1980 Act and 1988 Regulations: and it appears to have stood as both the notice required by Regulation 3(4) of and Part II of Schedule 2 to the 1988 Regulations, and also the required agreement under Regulation 6.  It stood as the statutory notice and agreement under Regulation 3(6) and Schedule 2 to the 1991 Regulations from when that scheme came into force (for the purposes of the arrangement between the Council and the Lamberts, from October 1992 (see Paragraph 11 above)).

(iii)	Agreement A may have been the draft version attached to Mr Mills’ report in late 1994, as suggested by Mr Stagg.  In any event, I am satisfied that it postdated Agreement B.  In relation to the fostering arrangement between them, there is no evidence that it was ever signed by either the Lamberts or the Council: or that it was ever acted upon by either party.  The evidence is that Agreement B applied until at least October 1994 - and there is no evidence of any other operative agreement before May 1995.  I am satisfied that Agreement B was operative until May 1995. 

(iv)	On 15 May 1995, both the Lamberts and the Council signed Agreement C (which appears to be the form that was the fruit of Mr Mills’ labours), and that was the effective agreement from that date. 

61.	Therefore, in summary, I find that Agreement B applied to the fostering arrangement between the Council and the Lamberts from February 1991 to May 1995: and thereafter Agreement C applied.  I shall refer to these two effective agreements as “the February 1991 Agreement” and “the May 1995 Agreement” respectively.  I deal with the legal status of these agreements below (see Paragraphs 113 and following).

A’s Background

62.	Having been approved by the Council in April, the Lamberts took on a number of children on holiday placements until Mrs Lambert received a telephone call from the Council in September 1991 asking to go to meet a prospective foster child, A, a girl then aged 13.  At that time, Mr & Mrs Lambert were still fostering two teenage girls for GCC, namely M and C.  As part of the arrangement with the Council, they had agreed to stop fostering for any other authority, but it was agreed that M and C would be allowed to stay until their placement came to an end under the terms of the Lamberts’ arrangement with GCC.

63.	A was born on 2 June 1978.  She had had a troubled childhood, with reports of “a high level of emotional abuse” (Case Conference Report, 14 September 1990: by which time her case was categorised as one of “Grave Concern”).  She had been in the voluntary care of the Council from time-to-time from 1 September 1988 when she was referred by her grandmother, at other times living with her family.  From 1988, there were reports of A’s challenging behaviour: lying, stealing, obtaining money by false pretences, attempts at self-harm, absconding.

64.	In February 1989, she was referred to the Mid Glamorgan County Council’s Social Services Department following an incident when she had been staying with her grandparents, her mother being in hospital.  She had reportedly part undressed a child of 4 years visiting the house, and rubbed against her and put her hand down her knickers.  As a result, A’s grandfather had smacked her.  During investigations into this incident, A told a social worker that, when she was about 5 years old, she had been shown a “blue” movie by a 14 or 15 years old babysitter, who had also touched her leg.  She did not indicate at that stage any other sexual misconduct of which she might have been victim: but, at the same time, a teacher disclosed to the Social Services that A tended to fantasise and she had reported that the father of a child at the school had taken her upstairs and had had sex with her (the father denying the incident).  Those two reported incidents (i.e. that involving the babysitter, and that involving the father of a school friend) were known to the Council by the notes of a child abuse case conference (held by Mid Glamorgan County Council Social Services Department) on 20 February 1989, which were shortly thereafter passed over to the Council.

65.	Whether true or not, it is perhaps unsurprising that the details of these incidents reported from time-to-time varied.  In an undated report (but one prepared after September 1990), there is an indication that A had disclosed in May 1989 that the abuse by the babysitter had “included intercourse and may have involved oral sex”: although it is unclear from where these details came.  The notes suggest that A’s mother and grandmother had simply assumed that when A referred to “sexual abuse” she meant sexual intercourse, and neither of them believed that intercourse could have taken place (Council’s Social Services Department Extended Recording Sheet (“ERS”), 30 August 1990).  There is however the suggestion that sexual abuse by the babysitter “was confirmed by medical evidence found when a non-accidental injury was investigated” (ERS, 18 December 1989): although again, it is unclear from where this “medical evidence” derived.  In the notes of a case conference on 14 September 1990, it is stated that A was abused by a babysitter when she was 5, to the extent of full sexual intercourse and he had asked her to have oral sex with him but, “She was examined on admission to care and there was no evidence of penetration having taken place”.   The details concerning each incident are therefore unclear: as are the sources of the details recorded.

66.	In addition to these allegations, there were indications that A had engaged in some form of sexual and violent activity with young children.  One example prompted the intervention of the authorities in February 1989 (see Paragraph 64 above).  She had also apparently made a small cut in her 2-year old brother’s penis: whilst in care, had pretended to cuddle and then pinch other children: and in August 1989 there was a report from her grandmother that two marks on her brother’s neck were caused by A grabbing him (ERS, 30 August 1989).  In the light of these reports, in a report dated 11 September 1990 concerning placement recommendations, it was said:

“If A is to be placed in a foster home I would not recommend placement with other children in view of A’s sexual behaviour and the fact that she may injure young children”

This was effectively repeated in the Affidavit of Karen Davies sworn 8 November 1990 in the wardship proceedings (at Paragraph 21):

“If A is to be placed in a foster home I would not recommend placement with other children in view of Angela’s sexual behaviour and the fact that she may injure other children.”

67.	As I have indicated, A had been in the Council’s voluntary care on and off since 1988, in between times living with her family.  Following a series of either A absconding from her family or otherwise her family “throwing her out”, on 10 September 1990 her grandmother (with whom she was staying ) told A that she was not welcome to stay further because she had found A abusing solvents.  She was taken into care that day.  

68.	The case conference on 14 September 1990 referred to above considered that A required protection, and that her family were unable properly to care for her.  It recommended that she be made a ward of court and taken into care permanently.  She was made a ward on 29 October 1990, and lived in institutional homes from then but had considerable contact with her family.

69.	In July and August 1991, the relationship between A and her natural family broke down even further, with A indicating she did not wish to see her family again and her mother saying she wanted A to remain in care and did not care what happened to her.  A was by now persistently absconding, and was also abusing solvents again.  In late August, the Council’s Social Services Department decided to make A the subject of an emergency community placement under the Community Placement Scheme, and on 5 September it was decided to place her with Mr & Mrs Lambert.  It was thought that fostering A away from Cardiff may be beneficial.

A’s Placement with Mr & Mrs Lambert

70.	On 9 September 1991, there was an initial meeting of Mrs Lambert, A and Mr Evans, at one of the Council’s residential units: and Mrs Lambert took A home that evening as an emergency placement.  Generally, A settled in well (Mrs Lambert First Statement 4 September 2005, Paragraph 449).  

71.	However, within the first week or so, there were two incidents involving A:

(i)	A and M went to a family planning clinic from where they obtained the contraceptive pill.  Mrs Lambert said that she did not know that A had a sexually promiscuous background, and thought that she might be thinking of experimenting with sex.  She was told by A’s Social Worker (Diane Marquand) that “A might not know how to behave with boys”, which, said Mrs Lambert, she took as meaning A might be sexually naïve. 

(ii)	One evening A hallucinated after abusing solvents in the bathroom.

72.	Mrs Lambert said that these incidents were important, because the Lamberts were not informed of either A’s sexual nature or of her propensity to abuse solvents, both of which the Council were well aware.  She said that they were told almost nothing of A’s background before taking the emergency placement, or before the placement became permanent on 7 October 1991.  

Information Received by the Lamberts on A’s Placement

73.	In particular, the Lamberts both deny being told about two matters of which the Council were aware, namely (i) the allegations of sexual abuse made by A previously, or (b) the incidents of violence by A towards other children 

74.	Mr Evans was a member of the Adolescents Division of the Social Services Department, under which fell the Community Placement Scheme and residential units.  As a CPO, his primary responsibility was not to the foster children, but to support carers such as the Lamberts.  Amongst other things, he was responsible for giving them the information which it was the Council’s obligation to give them under Regulation 5(5) of the 1988 Regulations, i.e. “information… the authority… consider necessary to enable the foster parent to care for the child, being information which relates to… the personal history… of the child; and… any other relevant matters” (see Paragraph 10(iv) above).  However, in terms of obtaining such information, he was dependent upon a different group within the Council, namely the Child/Family Division.  The members of that division were social workers assigned to each foster child.  Ms Marquand was assigned to A.  It was that division that kept information on each child.

75.	In respect of A, at the beginning of the placement, Ms Marquand was responsible for preparing two documents.  One is undated, but headed “Potted Life History”, and it set out important matters in the past history of A, including (i) that in May 1989 whilst in care she had disclosed that she had been sexually abused by a male babysitter, and that some people apparently believed this to be true whilst some did not (the relevant persons’ names have been redacted), and (ii) that in February 1989 A had been engaged in “sexual play” with a 5-year old girl.  There is no reference in this document to any incident involving sexual abuse by a school friend’s father.  

76.	The second document is the Community Placement Application Form, emanating from Mr Barnes (the Scheme’s Manager) but substantially completed by Ms Marquand.  The importance of proper completion of the document is stressed in the introduction (by Mr Barnes):

“The consideration of Community Placement for a teenager is likely to be the second most important decision in his/her life - the first being the decision to admit to care.  Consequently, comprehensive information is required for three reasons:

1)	In order to ensure that we are able to make a decision which is in his/her best interests.

2)	That we are in a position to make as an appropriate matching decision as possible.

3)	That the scheme is equipped with all relevant information available in order to give the placement every chance of success.

Please complete this Application Form as comprehensively as possible…”

One of the express purposes of this document - which was a document originating from the Manager of the scheme - was therefore to ensure that appropriate information about a child in the hands of the Child Division was passed onto the Adolescent Division, and thence to the carers themselves.  

77.	The document is considerably less detailed in some respects than the potted history.  However, like the potted history, it also indicates that, in February 1989, “While in care A disclosed she had been sexually abused at age 6 by babysitter”: and “A disclosed that she was sexually abused at age six by a babysitter (male).  A disclosed that abuse had included intercourse.”  There is again no reference to any other allegation of sexual abuse.  The document is signed by Ms Marquand on 12 September 1991, i.e. after the emergency placement with the Lamberts had been made, but before it had been made permanent.

78.	Mr & Mrs Lambert are adamant that no one told them at that time (or at any time before April 1992: see Paragraph 148 below) that A had previously made allegations of sexual abuse.  There is no evidence that anyone other than Mr Evans would have done so.  It was part of his function properly to brief them.  Ms Marquand did not give evidence in relation to this claim - but it was not part of her specific role as the children’s Social Worker to brief carers.   

79.	So far as Mr Evans was concerned, he accepted that information carers would need to know included not only behavioural difficulties with which a child presents, but also details of the child’s history to enable those behaviours to be understood.  This information would include any allegations of sexual abuse the child had made.  

80.	Mr Evans said that he did not recall having seen either of these documents (i.e. the potted history or the Application form) and thought that, before April 1992, he had been unaware that A had made any allegation of sexual abuse.  He thought that, had he been aware of any allegation, he would have shared that information with Mr & Mrs Lambert: and he would have taken steps to ensure that A had “therapeutic intervention” (in the form of counselling or psychiatric help).  He said he took no such steps until April 1992 when A told Mrs Lambert of the babysitter incident, and that information was passed on to Mr Evans who then sought to encourage A to obtain appropriate counselling.

81.	I find this issue - concerning the extent to which Mr & Mrs Lambert were told of A’s previous allegations of sexual abuse by Mr Evans - one of the most difficult in this case.  I accept that Mr Evans was a most diligent and conscientious social worker, whose role included passing on to Mr & Mrs Lambert relevant information about A’s history.  He considered that any allegation of sexual abuse fell well within this category.  However, he cannot recall passing on any such information, and said that he knew nothing about such allegations until April 1992.  On the other hand, the Application Form document to which I have referred was completed by Ms Marquand at the request of the scheme’s Manager with the express purpose of apprising the carers (through their CPO) of the relevant history of the child.  That document included clear references to one serious allegation of sexual abuse by A, namely an allegation of her having had sexual intercourse at the age of 5 or 6 with a teenage babysitter.  Mr Evans must have been aware of the existence of such a document.  Mr Barnes (the Scheme Manager) said that the information from the Application Form would have gone to Mr Evans, for him to process whatever he needed from it.  It seems almost inconceivable that Mr Evans did not see this document at that time and, as a diligent CPO, pass on the information concerning the abuse to Mr & Mrs Lambert.

82.	Having considered all of the evidence with particular care, I have come to the conclusion that, on this occasion, Mr Evans is mistaken.  Mr & Mrs Lambert are quite convinced that they were not told anything about any such incidents of abuse prior to A herself telling Mrs Lambert about the babysitting incident in April 1992.  For the reasons I have given, I consider that the recollection of Mrs Lambert in particular is suspect.  But it may be that Mr Evans’ recollection has been influenced by her apparent certainty.  In any event, I am satisfied on the balance of probabilities that Mr Evans was aware of the information contained in the Application Form shortly after 12 September 1991.  Its purpose was to inform him.  He must have been aware that such a document would have existed, and its importance: had it not been given to him, he would have known to have asked for it.  I consider that it is almost inconceivable that he did not see it at that time.  Certainly, on the balance of probabilities I am satisfied that he did.  I do accept his evidence that he passed on to Mr & Mrs Lambert all relevant information which came into his possession which, I find, would have included this information about the allegation of sexual abuse at the hands of a baby sitter.  I accept that, in April 1992, A appears to have raised this allegation again with Mrs Lambert, and that re-focussed minds upon it - to the extent that Mr Evans investigated the possibility of obtaining counselling for A, although she was not willing - but I do not consider that this was the first time that either Mrs (or Mr) Lambert or Mr Evans had been referred to the incident.

83.	There is no evidence that Mr Evans was aware of the second allegation of abuse (involving a school friend’s father), and I am satisfied that this was never mentioned to the Lamberts by Mr Evans or anyone else.  I note that the Application Form makes no reference to A’s history of violence towards other children, such as is described above (Paragraph 66).  I am satisfied that Mr Evans did not see the (more detailed) potted history at that time, or indeed subsequently.

A’s Allegation of Sexual Abuse against Mr Lambert

84.	Although A regularly absconded and exhibited other challenging behaviour, from September 2001 to March 2003 there is no doubt that, from a fostering point of view, A’s placement with Mr & Mrs Lambert was a considerable success.  Mr Barnes referred to it as “an excellent placement” in his review report of 26 July 1992.  When A absconded (which she did, thought Mrs Lambert, perhaps 20 times during the placement), she was prone to telephone the Lamberts, without speaking - until Mr or Mrs Lambert spoke to her, when she tended to break down, apologise and ask to be collected.  Mr Lambert frequently drove to all parts to collect her, and family life then resumed.

85.	However, in early 1993, the relationship between the Lamberts and A deteriorated.  The immediate trigger appears to have been that A (then aged 14) was dating a man aged about 20.  Mrs Lambert took the view that it would be impossible to stop the two seeing each other, and so (i) informed the man that A was a ward of court, and aged 14: and (ii) insisted that they saw each other at the Lamberts’ house where they could be supervised.  There are ERSs dated 25 January and 16 March 1993 referring to arguments about A’s relationship with the man, but on 17 March there is an entry that “A had returned [to the Lamberts] and everything was sorted out”.

86.	However, Mrs Lambert said (First Statement, 4 September 2005, Paragraphs 630 and following) that later in March A told one of her school friends that her relationship with the man was sexual and she thought she was pregnant.  The girl told Mrs Lambert who (i) confronted A, who confirmed what she had told her friend, and (ii)  confronted the man and told him she would be reporting him to the Social Services and the police, which she did that evening or the following day.  A then (on 29 March 2003) absconded with the man.  She never returned to live with the Lamberts.

87.	At this time, there appears to have been an initial allegation by A that Mrs Lambert had been involved in some form of sexual activity with A’s boyfriend - but this allegation was never detailed or developed.  The allegation was not only denied by Mrs Lambert but also by the boyfriend himself.  

88.	However, in early April, A told her maternal grandmother (with whom she was staying) that Mr Lambert had assaulted A towards the end of 1992.  That was reported by the grandmother, and Mr Lambert was arrested and questioned by the police.  The police quickly came to the conclusion that:

“[T]his is a “no starter”.  I would go so far as to say that I think that this is an effort to distract police attention against taking action against [A’s boyfriend] for [unlawful sexual intercourse]” (DC Sarson’s Report, 27 April 1993).  

89.	Following an extensive internal enquiry at the Council, Mr Evans concluded the same, that “that there is no foundation to the allegations that A has made” (Mr Evans’ Report to the Council’s Fostering Panel, 27 May 2003).   On 6 July 2003, Mr Barnes wrote to Mr & Mrs Lambert saying that the panel had “decided that [the allegation] was totally unfounded and that [the Lamberts] should continue [their] valuable work without any suggestion of having acted inappropriately”.  Their approval as foster carers was confirmed.

90.	Mr & Mrs Lambert make no complaint about how the allegation made by A was handled by either the Council or the police.  It was clearly handled thoroughly, efficiently and quickly, with a decisive and appropriate outcome.   They accept that, during this difficult period, they were well supported by Mr Evans.

A’s Campaign of Harassment against the Lamberts

91.	Unfortunately, that was not the end for Mr & Mrs Lambert.  A began making telephone calls to them.  At first these were “silent calls”: but, in view of the allegations made by A against Mr Lambert, the Lamberts did not say anything to her.  There were periods when they lapsed, but then they started again.  They also changed from being silent, to being abusive and threatening.  They were made not just by A, but also by other people whom the Lamberts believed were A’s associates.  Although there was no pattern, sometimes there were hundreds of calls over a few days, at all times of day and night: at other times they would cease altogether.  

92.	In April 1994, the calls were traced for a period of about 2 weeks, when the calls were logged.  There were apparently 24 calls over a 3 week period (Internal Memorandum Janet Felvus (by this time A’s Social Worker) to Mr Mills, 10 February 1995).  In July 1994, they were noted as “dropping off”: in a report of Mr Evans dated 27 July 2004, they are noted as being less than weekly, and mainly silent - although on one day there were nearly 100 calls.  This dropping off of calls coincided with A attaining the age of 16, and the eventual collapse of her community placement: she decided that she wished to live independently and, despite concerns, the Council agreed that moves should be made towards this.  On 21 November 1994, there was a prosecution based on the April tracing, and A was convicted of making nuisance telephone calls contrary to Section 43(1)(b) of the Telecommunications Act 1984, and given a 12 month conditional discharge.  This led to a temporary increase in the intensity of calls.  

93.	The week before the conviction, on 15 November, Mrs Lambert had written to Mr Mills (by then, the Manager of the scheme) threatening proceedings in “respect of damage caused by the many hundreds of telephone calls (obscene and otherwise) made by, or instigated by, a young person, namely [A], whilst under the statutory care of [the Council]”.  Curiously, this letter does not seek any injunctive relief to stop the calls, but only compensation - in respect of which Mrs Lambert indicated “we are prepared to meet with you to discuss settlement terms”.  In the absence of any moves towards settlement, a writ was threatened on 7 February 1995.  

94.	The calls became less frequent (Mr Mills’ report, following his meeting with the Lamberts on 17 May 1995), but did not stop.  Proceedings were issued by Mr & Mrs Lambert against the Council and A in the Gloucester District Registry of the High Court on 26 September 1995, again the express relief being restricted to damages: and then a second writ was issued against the same defendants and later carers of A.  

95.	On 7 June 1996, A reached the age of 18.  

96.	On 26 August 1996, an application for injunctive relief was made in the proceedings, to restrain A from making further calls.  This was apparently not proceeded with because of the difficulty the Claimants found in locating and serving A.  The affidavit in support (Affidavit of Mrs Lambert sworn 4 June 1996) confirmed that A was now an adult, out of the care of the Council and “free to do as she wishes” (Paragraph 4), the “only hope of bringing an end to her campaign” being to obtain an injunction (Paragraph 6).  In addition to these civil proceedings, Mrs Lambert said they had consistently reported the calls to the police, when (say) they received 8-9 calls in a short period.  The police from time-to-time put a tracer on the telephone again, but never re-prosecuted.  

97.	The calls waxed and waned, but generally decreased in numbers.  In the Particulars of Harassment dated 16 May 2005, there is reference to calls periodically to 1999 (Paragraph 22): but no reference to calls thereafter, only to the uncertainty as to whether the calls had stopped or not (Paragraph 24).  The evidence of later calls is very thin, and suggests that they had all but ceased (e.g. Mrs Lambert First Statement 4 September 2005, Paragraph 1176 refers to four “weird” calls on 26 January 2001).  The evidence of Mrs Lambert about the enquiries she had made of the police (Second Statement 24 October 2005, Paragraphs 77-79) suggest that there were certainly no calls warranting referral to the police after October 2003.  Before 1999, the only discernible pattern seems to have been that the intensity of calls increased when action was taken against A, e.g. they increased after the prosecution and after attempts were made by the Claimants to serve A with these civil proceedings.

98.	In relation to this evidence, I am satisfied that Mr & Mrs Lambert received many calls from A or others at the direction of A from the summer of 1993.  Initially, these calls were simply “silent”.  Later, they became obscene, abusive and threatening.  Although there was no obvious pattern - and there were periods of intense activity, and periods when there were no calls - over time, the calls reduced in numbers.  They increased when action was taken or threatened against A.  They had all but ceased by 1999. 

99.	In addition to the telephone calls, the Lamberts rely upon three specific incidents as forming part of the campaign of harassment:

(i)	 Mr Lambert said (Statement 4 September 2005, Paragraphs 381 and following) that on 4 August 2004 the rear offside wheel of his car fell off, the retaining nuts having been removed.  Fortunately, there was no accident.  The matter was reported to the police.  Although Mr Lambert says that the police appear to have associated the incident with A, there appears to be no evidence that she was responsible for it. 

(ii)	Mr Lambert said (Statement 4 September 2005, Paragraphs 355 and following) that, in November 1995, he returned home after work in the early hours of the morning to find one of the cooker gas taps on.  Again, fortunately, there were no casualties.  Mr Lambert suspected A: but accepted that, “[He had] no evidence to link this with A and/or her associates” (Paragraph 360).

(iii)	Mr Symons was Mr Lambert’s business partner in a public transport firm.  He said (Statement 4 September 2005, Paragraph 33) that “in or about 1995, and most definitely before [he] purchased Mr Lambert’s bus in September 1996”, he discovered that his vehicle had had both brake pipes cut.  The police were informed.  There is no evidence connecting this incident to A.

Given the paucity of evidence, I cannot be satisfied that A was responsible for any of these incidents.

100.	However, I do accept that the campaign of telephone calls caused Mr & Mrs Lambert considerable anxiety and stress, although fortunately they were able to continue to foster children, fostering a particularly challenging girl (J) in this period.  They informed the Council about the calls, and, at least until A attained majority in June 1996, they spoke to A (who usually denied making the calls) and tried to persuade her to stop.  However, the Council decided to take no further action, and did not (e.g.) contact the police to take further action, take further civil proceedings or seek a secure accommodation order to restrict A’s liberty.

The Misrepresentation Claim

101.	This claim is set out in Paragraph 12 of the Amended Particulars of Claim.  It is claimed that several representations were made in pre-approval discussions and meetings by “Mr Evans (and other employees of [the Council], whom prior to disclosure the Claimants cannot identify)”.  No potential representors other than Mr Evan were ever identified.  The representations alleged to have been made are as follows:

“(a)	That the Defendant would compensate for all damage caused by a child in the care of [the Council], save that “ideally” any claim for damage accidentally caused by a child in the Council’s care should initially be made against the claimants’ own household insurance policy.

(b)	That all other losses including all deliberate or malicious damage caused by such a child to the Claimants would be compensated.

(c)	That the said “compensation” would be affected by way of an insurance taken out by [the Council] to cover the Claimants” 

102.	For the reasons set out above (Paragraphs 53-55), I do not accept Mr Evans made the representations relied upon.  What he told the Lamberts in the context of a discussion with Mr & Mrs Lambert about their concerns about property damage and loss, was that he understood that foster carers in the scheme were very well covered by insurance taken out by the Council - although, as he had himself been informed, foster carers should take out their own household insurance policy and claim on that first before making a claim on the Council’s policy.  Mr Evans did not believe that the Council’s insurance covered personal injury that might be suffered by carers at the hands of foster children, and he did not suggest to the Lamberts that the Council offered such cover to carers within the Community Placement scheme.  The Lamberts could not reasonably have understood him to have meant that such cover was available.  

103.	The possibility of personal injury of any kind was not in the mind of either Mr or Mrs Lambert.  Mrs Lambert frankly accepted in cross-examination that she could not recall what she was thinking of at the time: and would only go so far as saying that personal injury could have been in her mind.  Mr Lambert said that he did not have personal injuries in his mind at the time.  He said he simply assumed that all risks were covered.  Mrs Lambert also said that she understood that all eventualities were covered.  If that were the case, then (i) their understanding was not engendered by anything Mr Evans said to them, and (ii) their understanding could not reasonably have been derived from what he said, in the context he said it.  

104.	That is sufficient to dispose of the misrepresentation claim in favour of the Council.  However, in view of the evidence given and submissions made in relation various other matters related to this claim, I should make the following comments.

105.	Mr Lambert said (Statement 4 September 2005, Paragraphs 153 and following) that he recalled that one of the other carers did refer to injury caused to him by a child (possibly, broken ribs): and that “at some stage” it was said that all carers were “fully insured against personal injuries”.  However (i) Mr Lambert could not recall whether this discussion was before or after approval, (ii) he refused to disclose the name of the other carer involved, and (iii) he was unable to say who said that there was cover for personal injury, or even that it was someone employed by the Council.  In the circumstances, I do not accept this evidence as adding any weight to the Lamberts’ misrepresentation claim. 

106.	In support of their contention that the Council had a policy of indemnifying carers in respect of personal injuries that they might suffer at the hands of foster children, the Lamberts relied upon the Bagley Report referred to in Paragraph 59(iv) above (Amended Particulars of Claim, Paragraph 16(a)).   At Paragraph 26, the report said:

“[The Council] also agrees to reimburse to [the carers] expenses incurred whilst carrying out their duties, and to insure them against legal liability for any injury, loss or damage arising from the placement of a young person.”

However:

(i)	This report, although no doubt useful to the Council and being produced under a front sheet bearing the Council’s name, was an academic exercise as part of a degree thesis.  It was not a document produced by a Council employee, let alone someone in high authority within the Council.

(ii)	In any event, the extract quoted appears to me to be merely a (close) paraphrase of Paragraph 2(viii) of the February 1991 Agreement.  I deal below with this provision together with the other provisions of the agreements between the Council and the Lamberts relied upon by the latter (in Amended Particulars of Claim, Paragraph 16(c) and (d)) (see Paragraph 110 and following).  

107.	Mrs Lambert wrote an article for NFCA journal “Foster Care” on their experience as foster carers in dealing with a false allegation of sexual abuse.  It was published in the January 2004 edition, but was written no later than August 2003.  That article referred to the Lamberts’ suffering and to A having “stolen” the Lamberts’ future by making the allegation.  The final paragraph indicated that Mrs Lambert was, at that time, of the understanding that they would not be entitled to compensation, i.e. that as carers they were not insured for all risks as the result of the activities of a foster child.  This is possibly reflected to an extent by the comment in the Annual Review Form signed by Mrs Lambert on 7 April 1995, in which she said (at Paragraph 11) that, as a possible change to the scheme, Mr & Mrs Lambert felt that “there should be a contingency plan for compensating carers who have suffered from a trauma of an allegation which has serious stressful repercussions”.

108.	In my view, the understanding of Mr & Mrs Lambert - that at the time of their initial approval by the Council they understood that they would be covered by insurance taken out by the Council in respect of all risks of damage (including personal injury) caused by those in their care - is an understanding that has only developed after the event and in the light of the tragic circumstances which have befallen them.

109.	Furthermore, even if (contrary to my very clear and firm finding to the contrary) the Council had made the representations asserted, the Lamberts could not found a claim upon them unless they had acted as an inducement to them to enter into the fostering arrangement with the Council.  They would have faced considerable - almost certainly, insuperable - difficulties in persuading me that this was the case.  They had no personal experience of sustaining personal injury at the hands of a foster child, nor (leaving aside the evidence of Mr Lambert as to the discussion referred to in Paragraph 105 above, which I do not accept) is there any evidence that they had heard of any other carer being the subject of such injury.  (Mr Barnes said that he could not recall any instances of carers suffering personal injuries at the hands of a foster child: and it is likely he would have remembered any such cases, as he said he would have handed them over to the Council’s legal Department).  There were many reasons why Mr & Mrs Lambert wished to be carers under this scheme, including the financial incentives for doing so.  I do not accept that, even had the representations been made as they assert, they would not have still joined the scheme and fostered children under it including A.

The Contract Claim 

110.	The Lamberts claim that, in failing to insure them against personal injury caused by a child placed with them, the Council were in breach of contract namely Clause 2(viii) of the February 1991 Agreement, which provided:

“The [Council] agrees…to insure all Community parents against legal liability for injury, loss or damage sustained by third parties arising from the placement of the child and to insure all Community Parents and members of their families permanently residing with them against loss or damage occasioned by the child in their care”.

111.	Additionally, they allege that, from 15 May 1995, the Council were in breach of Clause 2(x) of the May 1995 Agreement, which provided:

“The [Council] agrees… to insure the carer and his/her family against loss, personal injury or damage caused by the child, and to insure the carer against liability for injury, loss or damage sustained by third parties arising from the placement of the child.”

112.	The claim turns on two issues, namely (i) whether the provisions of these agreements are enforceable in damages as private law contracts, and (ii) if they are, whether upon the proper construction of the relevant provisions, the personal injury allegedly suffered by the Lamberts is covered by the obligation to insure.

113.	Each of the agreements have some of the characteristics of a private law contract, in that they set out the terms of the fostering arrangement between the parties.  Furthermore, there is a reference in the recitals of each to the carers (Mr & Mrs Lambert) wishing to act as independent contractors of the… Council by receiving the child into their... own family…”.  However, such characteristics and terminology are not determinative.  They have to be viewed in context.

114.	The facts of W v Essex County Council [1999] Fam 90 were different from those before me.  The case concerned a “Specialist Foster Carer Agreement” under the scheme of the 1989 Act and 1991 Regulations, and sexual abuse by a foster child on other children in the face of an overt representation by the authority that the foster child had no history of being a sexual abuser.  However, as in this case, the claimant parents claimed that the authority was in breach of their fostering agreement which (they contended) could be sued upon as a private law contract.  Stuart-Smith LJ said (at Paragraphs 50-51):

“50.	There are, in my judgment, a number of reasons why the plaintiff’s claim in contract must fail.  First, although the Specialist Foster Carer Agreement had a number of features which one would expect to find in a contract, such as the payment of an allowance and expenses, provisions as to national insurance, termination and restriction on receiving a legacy or engaging in other gainful employment and other matters to which the judge has referred…, I do not accept that this makes the agreement a contract in the circumstances of this case.  A contract is essentially an agreement that is freely entered into on terms that are freely negotiated.  If there is a statutory obligation to enter into a form of agreement the terms of which are laid down, at any rate in their most important respects, there is no contract: see Norweb Plc v Dixon [1995] 1 WLR 636, at page 643F.

51.	In S v Walsall Metropolitan Borough Council [1985] 1 WLR 1150 the question was whether foster parents were the agents of the defendant council who had placed the child in care.  Oliver LJ, with whose judgment Balcombe LJ agreed, reviewed the statutory provisions which are similar to those relevant in this case.  He said, at page 1154F, that the statute and the regulations “provide a statutory code and they underline the fact that the whole of this area is covered by a complicated and detailed statutory scheme”.  And later he said, at page 1155E, that the “relationship between the child and the local authority, and indeed between the child and the foster parents, is one regulated simply and solely by the provisions of the statutory scheme”.  It is true that he does not include the relationship between the foster parents and the council as being so regulated; but it must, in my judgment, follow.  The contents of the agreement are strictly laid down in the regulations and cannot be varied.  The remuneration is set by the statutory scheme and cannot be freely negotiated.”

115.	Stuart-Smith LJ went on to say (in Paragraph 52) that he was doubtful whether the first instance judge was right to consider the agreement separately from the Code of Practice under the 1989 Act, which was expressly not legally binding: but this does not detract from that which he held in the passage I have quoted.  (Before me, the representatives failed to find out the nature of the Code of Practice under the 1980 Act.  Although one suspects, by the nature of such documents, it was expressed not to be legally binding, I proceed on the basis that such a disclaimer might not have been made.)

116.	Stuart-Smith LJ’s reasons for rejecting this contract claim appear to have been shared by Judge LJ and Mantell LJ, and this aspect of the case was not appealed to the House of Lords (as were other aspects).  This ratio applies directly to the May 1995 Agreement (under the 1989 Act and 1991 Regulations); and the statutory provisions under the 1980 Act and 1988 Regulations are for these purposes sufficiently similar for W and the case before me to be indistinguishable.  Consequently the passage I have quoted is binding upon me in respect of both February 1991 and May 1995 Agreements.  I also note that the reasons are reflected in A v Essex County Council [2004] 1 WLR 1881 (especially Paragraph 72) in respect of the adoption process, which for these purposes is analogous.  

117.	However, in any event, even if W were not binding upon me, I would respectfully adopt its reasoning.  The February 1991 and May 1995 Agreements contained primarily provisions required by the respective statutory schemes.  Stuart-Smith LJ allowed for the fact that here might be some provisions in the agreement that were not so mandated.  These agreements were not private law contracts.  The relationship between authority and carers is not regulated by private law, but by the comprehensive statutory scheme, of which these agreements formed part.

118.	Because there is no contract, there can be no collateral contract as the Claimants allege in the alternative; “because there is no larger contract for it to be collateral to” (B&B v A County Council [2006] EWCA Civ 1388 at [12] per Buxton LJ). 

119.	In Paragraph 18 of the Amended Reply, the Claimants assert that the Council is estopped from denying that such written agreements are enforceable as private law contracts, because the Bagley Report states (at page 25):

“At the earliest opportunity following approval by the panel, the Community Carers and [Council] enter into a legally binding contractual agreement.”

However, as indicated above (Paragraph 59(iv)), Ms Bagley was not employed by the Council and did not speak or make representations on its behalf: she was engaged upon an academic exercise.  In any event, her report was not published until 1992 (after the February 1991 Agreement): and, although Mr & Mrs Lambert received the report in 1992, there is no evidence that they relied upon it in any way to their detriment.  With respect, this estoppel argument is hopeless.
   			
120.	Even if enforceable as a private law contract, I do not accept the Claimants’ construction of Clause 2(viii) of the February 1991 Agreement (set out above, Paragraph 110).  I agree with the submission of Mr Stagg that the meaning of this clause is clear.  It creates two separate obligations.  

121.	First, the Council had to insure carers “against legal liability for injury, loss or damage sustained by third parties”.  For example, if a foster child was negligently allowed access to a dangerous article, with which he caused injury to a third party, then the carer would have the benefit of insurance against a claim made against him by that third party.  (Although I say this with diffidence, because the insurance cover provided by GCC was neither in issue nor debated before me, I suspect from Mrs Lambert’s evidence (First Statement 4 September 2005, Paragraphs 210-213) that this was also the limit of the insurance provided by GCC.)

122.	Second, the Council had to insure the carers and their families “against loss or damage occasioned by the child in their care”.  There were two limitations to the cover which this provision obliged the Council to provide to carers and their families.

(i)	It did not apply to personal injury caused to a carer.  Whether “damage” is restricted to property damage or extends to personal injury may be ambiguous, depending on the context in which the word is used: but the contrast with the first part of the clause (“injury, loss or damage sustained by third parties”) makes the restriction to exclude personal injury in this context the only proper construction.  I cannot accept that the explanation put forward by Mr Price for the omission of any reference to “injury” in the second part of the clause, i.e. that it was a simple error that I could and should (in effect) rectify.

(ii)	It only applies to loss occasioned by a child whilst in the placement with the carer: it no longer applies once the child is no longer placed with a carer.  Mr Price properly pointed out that, in statutory provisions, the phrase “in their care” often means “in the authority’s care”: and also that a child is never formally “in the care” of a carer, but only of an authority.  However, although this agreement forms part of a statutory scheme, it would be a mistake to construe it as though it had itself been drafted by Parliamentary Counsel.  Throughout the February 1991 Agreement, “the Council” is referred to in the singular, and “Community Parents” in the plural.  The contrast with the broader wording of the first part of the clause (“arising from the placement of the child”) is again instructive.  Furthermore, given that the obligation is to insure (and not indemnify) it is less likely that this liability would be open ended, as the Claimants suggest.  Indeed, the construction suggested on behalf of the Claimants would lead to absurd results.  For example, the insurance would have to cover a burglary of a house owned by a carer by a former foster child, even if the burglar was unaware that the owners of that property were formerly his carers.  A construction that would potentially lead to such bizarre results is inherently unlikely.  In context, “in their care” means - and in my judgment, clearly means - “whilst placed with the Community Parents”.  

123.	A further submission in relation to construction of these provisions was made on behalf of the Claimants.  In Paragraphs 8 and 9 of the Reply, it is alleged that, after March 1993 (when A left her placement with the Lamberts), Mr & Mrs Lambert were “third parties”, and consequently fell within the first part of Clause 2(viii).  This is true, so far as it goes.  A was placed with another carer after her placement with Mr & Mrs Lambert.  In respect of the agreement between the Council and that new carer, the Lamberts were indeed third (i.e. non-) parties.  However, this does not avail them in this claim.  It simply means that, if Mr & Mrs Lambert made a claim against that new carer for personal injuries caused by A whilst placed with that carer, the Council would be obliged to cover any liability that new carer might have.  The purpose of the first part of the clause is to require the Council to insure that foster carer against a claim made against him or her (see Paragraph 121 above).  In this action, no claim is now made against any subsequent carer.  

124.	Finally in relation to the construction arguments, the Claimants rely upon the May 1995 Agreement, and particularly Clause 2(x) and 4(ii) thereof (Amended Particulars of Claim, Paragraph 56).  Clause 2(x) is set out in Paragraph 111 above.  Clause 4(ii) is merely supportive of the claim, providing:

“The [Council] will inform the Carer of the procedure in connection with the placement of the child and in particular…the [Council’s] arrangements for meeting any legal\liabilities of the Carers arising from a child in placement”. 

125.	The placement of A with Mr & Mrs Lambert ended in March/April 1993.  Whatever the true construction of Clause 2(x), it can only apply to existing or future placements, i.e. any children received by the carers in accordance with Clause 1(i) of the Agreement.  The reference to “the child” is to a child in placement under the provisions of that agreement.  The clause can have no application in respect of children once, but no longer, placed with particular carers.

126.	Given I have found against the Claimants in respect of the issues concerning (i) the enforceability of the agreement as between the Council and the Lamberts as private law contracts, and (ii) the construction of those agreements, it is unnecessary for me to determine whether, in any event, the Council would not have been liable to the Lamberts in damages because such insurance as they allege it was the Council’s duty to provide was not available.  I would only note that the Lamberts have not adduced any evidence that such insurance was indeed available.

The Tort Claims

Introduction

127.	Generally, a common law duty of care is owed when three criteria are satisfied (Caparo Industries plc v Dickman [1990] 2 AC 605 at pages 617H-618B, per Lord Bridge):

(i)	there is a relationship of sufficient proximity between the parties:

(ii)	it is fair, just and reasonable to impose a duty of care on the defendant in all the circumstances: and

(iii)	it was foreseeable that the claimant would suffer damage if the defendant acted as alleged.

128.	The Lamberts assert that the Council owed them a duty of care because there was a relationship between them of employer/employee.  There is no such relationship between an authority and foster carer.  I was referred to no authority for this proposition.  Indeed, there is clear authority to the contrary.  In S v Walsall Metropolitan Borough Council [1985] 1 WLR 1150, the same submission was made.  Oliver LJ said (at page 1153C-D)

“The submission is a surprising one.  So far as I can see it does involve this, that  a foster parent who accepts the care of a child under the provisions of the Children Act 1948 and who, for instance, takes the child to school in his motor car when, perhaps as the result of a moment of inattention, he had an accident in which the child was injured, is going to subject the local authority to liability for that accident; that is a very startling conclusion, but of course if [the] main contention is right, it is one which follows.”

129.	As indicated above (Paragraph 114), Oliver LJ concluded that, far from there being a contract of employment between authority and foster parent, there was no contract at all - the relationship between them being one governed by statute.  As Balcombe LJ pointed out (at page 1155H-1156A), there were no relevant changes to the relevant provisions under the later scheme of the 1989 Act: nor, I would add, under the 1989 Act.  As will be apparent from the above (Paragraph 117), I respectfully agree with Oliver LJ.

130.	However, that does not mean that the Council owed no duty of care to the Lamberts: a public authority may owe such a duty when exercising its statutory duties and powers.  Nevertheless, in considering whether a duty is owed (and, if so, its scope), the Courts have stressed certain particular principles which apply, many of which were elucidated in X (minors) v Bedfordshire County Council [1995] 2 AC 633.  For example:

(i)	An authority cannot be liable in tort for doing something authorised by statute, nor can a duty of care conflict with the provisions of a statutory scheme.

(ii)	A breach of a statutory duty does not, of itself, give rise to any private law cause of action (X (minors) at pages 731D, 747C-748F and 767H-770A)).  I should add that the claim before me is not based upon a breach of statutory duty simpliciter.

(iii)	Similarly, where statutory provisions confer a discretion on an authority, a failure to exercise that power does not of itself give rise to a private law claim for damages (Stovin v Wise [1996] AC 923 at page 953A-C).

(iv)	However, a statutory duty or the exercise of a statutory discretion may give rise to a common law duty of care in some circumstances (X (minors) at page 735F).  

(v)	Where an authority’s decision concerns policy, it is not generally justiciable: the Courts are not equipped to enter upon an assessment of policy matters, and will not do so (X (minors) at page 737F-G).  They may do so in matters concerning operation, as opposed to policy.  The distinction is between (a) taking care in exercising a statutory discretion whether or not to do an act, and (b) having decided to do that act, taking care in the manner in which you do it (X (minors) at page 735H).  The distinction between “policy” and “operation” is often a difficult one to draw: but where a decision turns on a question of judgment in relation to individuals, this may nevertheless be a matter of “policy” (Carty v Croydon London Borough Council [2005] EWCA Civ 19, [2005] 1 WLR 2312 at [26]).  

(vi)	Judgments called to be made by authorities under statutory schemes may be extraordinarily delicate, and it is important that the imposition of a duty of care does not hamper the operation of the statutory scheme (X (minors) at page 750C-G).  Furthermore, such judgments may bring the interests of two relevant groups within the scheme into potential conflict, e.g. those parents and children respectively where social workers and health care professionals suspect child abuse (D v East Berkshire Community Health NHS Trust [2005] 2 AC 373).

(vii)	The element of judgment is recognised in the standard of care which the law requires of professionals exercising such statutory discretion.  This was classically laid down in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 at page 586:

“The test is the standard of the ordinary skilled man exercising and professing to have that special skill.  A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.”

In respect of such a professional man, therefore (Bolam at page 587):

“…[H]e is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art….  Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.”

These principles apply to a professional working in the social services field (Barrett v Enfield London Borough Council [2001] 2 AC 550).

131.	These are matters to be borne in mind in considering the duty of care which the Lamberts allege was owed and breached by the Council.

132.	There is no doubt that the Council did owe the Lamberts a duty of care, by reason of the relationship between them - some duty of care is conceded on behalf of the Council.  The real questions are (i) the scope of that duty, (ii) whether the duty was breached on the facts as I have found them and, if so, (iii) whether that breach caused any damage in terms of actionable loss.

133.	The Claimants allege that the duty of care included (i) a duty to insure (alternatively, indemnify) them against personal injury to them caused by a foster child, (ii) a duty  to provide them with information in relation to A, (iii) a duty to control A and (iv) a duty to advise and support the Lamberts.  In each respect, they allege the Council was in breach, with resultant recoverable loss to them.  I shall deal with these in turn.

The Failure to Insure or Indemnify

134.	The Lamberts allege that the Council owed them a duty at common law “to indemnify and/or to insure the Claimants against personal injury, loss or damage arising from the placement of any child in the care of [the Council] with them and/or from the work that the Claimants were asked to do on behalf of the Defendant” (Amended Particulars of Claim, Paragraph 46(f)).

135.	No such duty was owed.  The scope of the insurance which the Council agreed to provide was set out in the February 1991 and May 1995 Agreements, which (with the statutory provisions) formed the basis of the relationship between the Council and Mr & Mrs Lambert as foster parents.  The suggested duty is inconsistent with the scope of this cover, and there is no good reason why this Court should extend the scope of cover of which the Lamberts were aware and to which they agreed.  Even though these terms may not have been “freely negotiated” in a contractual sense, it was always open to the Lamberts to refuse to foster for the Council on the basis of the terms put forward.

136.	There is no basis for suggesting that, as a matter of common law, every authority placing foster children has a duty to insure or indemnify carers against all risks of damage or loss to property, or personal injury arising from placements.  The nature of the relationship between authorities and carers simply does not extend to include such a duty on an authority to indemnify carers against all such losses.   

The Failure to Provide Information

137.	In A v Essex County Council [2004] 1 WLR 1881, an adopted boy caused injury to his family by his bad behaviour.  It was alleged that insufficient information about the boy had been provided by the placing authority to the parents.  The Court of Appeal held that (at Paragraphs 50-59):

(i)	the authority did not owe a duty in respect of its decision as to the extent of the information which should be given to the parents: but

(ii)	a duty was owed to pass on such information as the authority decided should be given to the parents.  

138.	The statutory obligations to supply information in cases of adoption and fostering (under either the 1989 Act scheme or its predecessor) are similar and certainly analogous: many of the same policy considerations apply: and in any event the Court of Appeal’s reasoning is in line with general principles (see Paragraph 130 above).  For these reasons, I gratefully adopt that reasoning and the distinction drawn in A.  This duty of care is of course reflected in the terms of the respective statutory schemes (e.g. Regulation 5(5) of the 1988 Regulations, and Paragraph 1 of Schedule 3 to the 1991 Regulations) but it seems to me that it is not dependent upon such provisions.  Where an authority places a child with carers, it seems to me that that must require there to be a duty on that authority to give to those carers at least the information the authority considers necessary to enable the carers to care for the child. 

139.	In his closing submissions, Mr Stagg properly conceded that “a decision to disclose information” must include a general decision by an authority as a matter of policy to disclose particular categories of information in every case (even though such a general decision would be reviewable on the facts of any particular case).  

140.	Before me, Mr Barnes (the Manager of the Community Placement Scheme at the relevant time) said that even in 1991 information concerning (i) sexual abuse suffered or alleged to have been suffered by a child, and (ii) any history of violence by the child towards other children ought to have been disclosed to foster carers in every case.  Mr Evans agreed: he said he could not think of any circumstances in which such information ought not to be disclosed.  This was effectively the policy of those within the scheme.  In the absence of a positive decision by the authority in this case not to disclose such information in A’s case, Mr Stagg conceded that this policy amounted to a decision to disclose sufficient for A v Essex.  Again, I consider this concession was quite properly made.

141.	Mr & Mrs Lambert criticise the Council for failing to provide them with the following information:

(A)	that A was a “disturbed” child (Amended Particulars of Claim, Paragraph 35(a)):

(B)	that A had made/was prone to make false allegations of sexual abuse against others (Amended Particulars of Claim, Paragraph 35(b)):

(C)	that A had a history of violence towards young children (Amended Particulars of Claim, Paragraph 35(c): this does not refer to violence, but only “all relevant information”.  The Claimants confirmed at trial that the history of violence was the only other information relied upon.)

I shall deal with these in turn.

A.	A was a “disturbed” child

142.	This was regarded by the Lamberts as the least important information not disclosed. 

143.	Mrs Lambert (First Statement 4 September 2005, Paragraphs 556 and following) said that she understood “disturbed” as meaning “mentally disturbed”, rather than having behavioural problems.  There is scant evidence before me that A suffered from any psychiatric condition.  But in any event, with respect to Mrs Lambert, these are semantics.  The term “disturbed” is not a term of art, and it is a term she used throughout her own evidence without any particular connotation of “mentally disturbed”.  I have set out above the nature of the scheme and the children placed through it (see Paragraphs 42-46 above).  Mr Evans said, and I accept, that no carer could have misunderstood generally the problems which children placed through the scheme might have and the challenges they would make.  I accept that Defendant’s case that “the Claimants knew that A was a disturbed child….  It was in the very nature of the Community Placement Scheme, to which the Claimants had voluntarily subscribed, that it dealt with disturbed children” (Amended Defence, Paragraph 12(c)).

144.	In any event, even if the Council were guilty of failing to give information to the Lamberts that A was “disturbed”, had that information been given I am quite satisfied that it would not have made any difference to the Lamberts’ decision to take the placement or indeed how they dealt with and behaved to A during the course of the placement.  Whatever Mrs Lambert meant by the word, the Lamberts were willing to take and used to taking “disturbed” children on placements (Mrs Lambert First Statement 4 September 2005, Paragraphs 215 and 220).  After A left them, on 22 November 1993 the Lamberts took on placement another girl (J) who exhibited more challenging behaviour than A: Mr Azzopardi (A’s and J’s Social Worker) said (Statement 26 September 2005, Paragraph 16) that J “had a very damaged childhood, was sexually abused, and exhibited extremely sexualised behaviour.  Mr & Mrs Lambert would not let her outside their premises unsupervised.  They were afraid that she would be suggestive to any males in the village.”   It is noteworthy that J had a history of being sexually abused: and Mrs Lambert accepted that she was given “a very detailed file to read on her personal history” before placement (First Statement 4 September 2005, Paragraph 683). 

145.	Any claim based upon this failure to disclose would be bound to fail on the issue of causation.   

B.	A had made/was prone to make false allegations of sexual abuse against others

146.	At the time of the placement with Mr & Mrs Lambert, the Council were aware of two allegations of sexual abuse made by A, namely incidents concerning a male babysitter and the father of a school friend respectively (see Paragraphs 64 and following above).  I have already found that:

(i)	Information concerning the incident with the babysitter was disclosed to the Lamberts by Mr Evans prior to the Lamberts’ approval as carers.

(ii)	Information concerning the other incident was not disclosed then, or during the currency of A’s placement with the Lamberts.

(iii)	Information about any allegations of sexual abuse ought to have been passed onto the Lamberts at the time of the placement, or as soon as practicable thereafter.

147.	I therefore consider the Council was in breach of the duty owed to the Lamberts, in failing to give them information about the incident involving the father of a school friend.  I do not accept that the failure of the Council was in the terms suggested by the Claimants, i.e. that information was not disclosed that A had made or was prone to make false allegations of sexual abuse.  The Council failed to disclose the second incident of alleged abuse: on the documents I have seen it was unclear whether this was a false allegation or not (see Paragraph 65 above).  Mrs Lambert accepted that she simply did not know whether the allegations were true (First Statement 4 September 2005, Paragraph 424).  But in any event, it is untrue to say that A had a history of or proneness to make false allegations of sexual abuse.  The most that can be said is that the Council were aware of two unproven allegations, of which one was disclosed and one was not.

148.	However, even had the information about this second incident been revealed to Mr & Mrs Lambert, what difference would it have made to the events which occurred?  For the following reasons, my very firm view is, none.

(i)	Mr & Mrs Lambert had been involved before with a foster child who had made an allegation of sexual abuse, which they (the Lamberts) believed to be false (see Paragraph 34 above).  In that case, the boy making the allegation stayed with them (the alleged perpetrator being required to leave).  As Mrs Lambert stressed (First Statement 4 September 2005, Paragraph 277(d)), they had “observed at first hand the consequences of an allegation of sexual interference (which [they] continue to believe was false)”: but that had not led them to require the child making the allegations to leave the placement with them.

(ii)	The Lamberts had been told of one incident of sexual abuse alleged by A.  It is unlikely that their being told of a second allegation would have altered their decision to accept A as a placement, or the manner in which they conducted themselves with her, even given the different circumstances described in the second allegation.

(iii)	In her oral evidence, Mrs Lambert said that she was unaware of any allegations of sexual abuse until April 1992, when A told her about the alleged babysitter incident.  Mrs Lambert said she was unaware of any other allegations, or A’s proneness to fantasise until the end of the placement in 1993.  However, in her written evidence, she said that (First Statement 4 September 2005, Paragraphs 599-605):

“One problem that did surface was that A was that she was full of “fantasizing and fairy tales”.

At some stage she told both myself and (separately) her school friends that she had been raped by her father.

However, when I reported this to Social Services it transpired that her father had died when she was just a baby, and we were never sure if these claims were pure fantasy or whether she was referring to some other father figure in her life.

On another occasion I overheard our three foster girls talking about being sexually abused.  It appeared to me that what each was saying was fiction, and they were each bragging and trying to outdo the others.  I recall being extremely upset and I told them off.  I believe I reported this to the [Council]….

Another problem that did surface was that A was full of lies…”

Mrs Lambert’s statement is in chronological order, and these are references to 1992.  They are certainly references to events which Mrs Lambert records as happening before the allegations A made against Mr Lambert in March/April 1993.  None of these matters caused Mr & Mrs Lambert to review whether they wished to have A as a foster child, nor (on the evidence) the manner in which they behaved with A.

(iv)	Even on their own evidence, Mr & Mrs Lambert knew from April 1992 that A had made an allegation of sexual abuse.  Again, it is not suggested that this caused them to review whether they wished to have A as a foster child, or the manner in which they behaved with A.

(v)	Ms Hunt said (Statement 1 October 2005, Paragraph 26) - and I accept - that, “if a potential carer made a request that a child was not to be placed with them if it had been sexually abused then we would have counselled the potential carer out of the programme as not being suitable”.  Mr & Mrs Lambert wished, for a variety of reasons (including the financial benefits), to be part of the Community Placement Scheme.  They could not be part of that scheme and not accept children who had complained of sexual abuse. 

(vi)	Mr & Mrs Lambert had training in relation to “safe caring” and the possibility of false allegations of sexual abuse being made against them.

(vii)	All of the evidence shows Mr & Mrs Lambert to have been committed to caring for challenging adolescent foster children.  Mrs Lambert made clear that she relished the challenge they presented, and it is equally clear that the fostering skills of her and her husband greatly benefited such children.  Children who had made allegations of sexual abuse simply posed another challenge for such carers.  Mr & Mrs Lambert all but conceded that, even had they been informed that a child had previously made unproven allegations of sexual abuse, they would still have taken the placement.  Both said that they would have taken a child who had made proven allegations of abuse.  They each struggled with the issue of unproven allegations: Mr Lambert said that, even had they known the full history of allegations in relation to A, then “quite possibly” they would have taken her anyway.  That Mr & Mrs Lambert were not ones to give up on children with problems was one of their great strengths as carers.  It would have been totally against their character to have refused a child on the basis that the child had made unproven allegations of sexual abuse. 

149.	In the circumstances, I am quite satisfied that, had the second incident of alleged abuse been disclosed as it ought to have been, then the course of events would not have changed.  I should also say that, on the evidence, even if, as Mr & Mrs Lambert say and contrary to my findings, neither allegation had been disclosed at the outset, then I would still have found that Mr & Mrs Lambert would have failed on this issue of causation. 

C.	A had a history of violence towards young children
 
150.	A’s history of violence towards children was known to the Council, it was not included in the Application Form prepared by Ms Marquand (with the purpose of informing Mr Evans of A’s history, for briefing Mr & Mrs Lambert) and consequently Mr & Mrs Lambert were unaware of that history - as I understand it, until disclosure in this action.  For the reasons I have given above, they ought to have been told of this history at the time of the placement.  The Council were consequently in breach of its duty to disclose information.

151.	However, the question again arises as to how events would have altered had this disclosure been given?  I am entirely satisfied that events would not have materially changed.

152.	The Lamberts were not told about A’s solvent abuse problem, as they ought to have been.  However, when the problem came to light (unfortunately, after A had abused solvents and hallucinated as a result), there was no question of the Lamberts withdrawing from the placement.  They took steps to deal with the issue (Mrs Lambert’s First Statement 4 September 2005, Paragraphs 506 and following): they took away all of A’s hairsprays and perfumes, and others in the house were locked away with household solvents and aerosols.  They were used only under supervision.  Mrs Lambert also talked to A about the dangers of such habits.  Mr & Mrs Lambert did not consider that the placement should end.

153.	Although the Lamberts were insistent that, had they known about the history of violence towards children they would not have accepted A, I do not accept this.  The way in which they handled the solvent abuse gives a good idea as to how they would have reacted to other challenges.  In my view, they would have taken A on placement and taken steps to avoid any violence affecting children with whom A may have come into contact, e.g. the Lambert’s grandchildren, and children from next door.  They may, for example, have ensured that A was not alone with any of the children.

154.	In the event, A often babysat for these children, without any suggestion of any violence or impropriety towards them.  Whatever else, no loss flowed from this breach.  

The Failure to Control A

155.	The Claimants allege that the Council owed duties at common law:

(i)	to the public at large to take reasonable steps to control A (Amended Particulars of Claim, Paragraph 46(a)):

(ii)	to take all reasonable steps to protect the Claimants as employees/quasi employees/foster parents from foreseeable physical and or psychiatric injury, loss and damage caused by a child in the care of the [Council] that had been placed with them (Amended Particulars of Claim, Paragraph 46(b)): and

(iii)	to take all reasonable steps to supervise and control the activities and behaviour of A so as to prevent her from causing foreseeable damage to the claimants, their property and their enjoyment of it and their business (Amended Particulars of Claim, Paragraph 46(c)).

156.	In my judgment, this claim fails for a variety of reasons, as follows.

157.	I am unconvinced that the Council owed Mr & Mrs Lambert any duty to take reasonable care to control A.  I have referred to the relevant principles above.  In particular:

(i)	Such a duty would starkly conflict with the duty owed by the Council to foster children.  

(ii)	Even without such a duty, the carers would not be without remedy.  They could for example apply to obtain an injunction against the foster child to prevent further harassment: or obtain police assistance to stop further criminal activity.

(iii)	Foster children are not in the de facto day-to-day control of the authority.  Except when absconding, they are under the effective control of carers.

158.	In any event, any such duty could not apply to the making of policy decisions, only operational ones.  What to be done in respect of a teenager exhibiting very challenging behaviour is a difficult and delicate question.  Mr Barnes said (and I accept) that there are a variety of schools of thought, some involving more intervention than others.  In this case, there is evidence that social workers at the Council considered what action should be taken, and tried to address the issues with A herself.  It was considered that further intervention (e.g.) by the police or by way of civil proceedings would not be helpful: the prosecution that did take place, and the Claimant’s attempts at service of proceedings on A, both increased the level of harassment.  It cannot be said that the Council’s stance was an improper or unjustified one for them to take.

159.	Damage to the Lamberts was in any event not foreseeable.  Mr Barnes said - and I accept - that personal injury to a carer in any form - yet alone the form taken in this case - was unknown to him.  I was not cited any examples of such injury.  Mr & Mrs Lambert had shown themselves to be capable and robust carers in respect of some 25 challenging children whilst fostering for GCC.  As Mr Price said in a letter to Mrs Lambert’s sister (dated 7 April 1997, quoted in Mrs Lambert’s First Statement 4 September 2005, Paragraph 232(c)), that Mrs Lambert had been “solid and capable but now, due to events that nobody could foresee… [she] is a physical and mental wreck” (emphasis added).  Neither the campaign of harassment nor injury resulting from it were reasonably foreseeable.  

160.	In any event, this claim fails on its facts.  Despite being given every opportunity to do so, the Claimants failed to identify any step that the Council could have taken that would have been effective to stop A making telephone calls to them. 

(i)	Mr Lambert accepted that trying to stop A making calls by (e.g.) locking the telephone in the house in which she was living would have been totally ineffective.  The immediately succeeding carer tried to do that: but A simply went down the road and used a public telephone.  Attempting to ground A or stopping her pocket money (both suggested by Mrs Lambert) would have been equally ineffective.  She could not be prevented from absconding, and whilst absconding was apparently capable of acquiring money if necessary.  Whilst being fostered, no one could have prevented her making calls, if she were sufficiently determined to do so.

(ii)	Mr Evans suggested that counselling “just might” have had an effect.  However, he was not confident: the suggestion runs contrary to A’s reluctance to have counselling to talk about her allegations of abuse when these came to the fore in April 1992: and when offered therapeutic help, she appears to have refused it (Report Janet Felvus of the Council’s  Leaving/Aftercare Team, 16 December 1994).

(iii)	The prosecution of A resulted in an increase in calls.  The Council took the view that they should not further involve the police.  That was a justified stance.  But in any event there is no evidence to suggest that, even if the Council had sought to persuade the police to act further, this would have resulted in a reduction or cessation of the calls.  The evidence suggests that the intensity of calls may have worsened.

(iv)	For long periods after her placement with Mr & Mrs Lambert, A was absent from placements: restricting the positive steps that the Council could do.

(v)	However, they did try to persuade A to cease the calls (Tony Azzopardi Statement 26 September 2005, Paragraphs 22 and 30: and the report of Janet Felvus dated 16 December 1994), as did carer with whom she was placed immediately after the Lambert placement.  Unfortunately, these efforts were to little avail.

(vi)	Mr Lambert considered the only step that the Council could have taken would have been to have committed A to secure accommodation.  There is indeed a handwritten entry in the Social Services file of a “movement record” for A, dated 8 April 1994: “Police wanting SSD to place her in secure unit!” - but I understand the exclamation mark after the entry to be an indication of likely incredulity at the suggestion made by the police.  All of the social workers asked about this (including Mr Evans) considered this was not a case where it would have been appropriate or indeed possible to have accommodated A in this way.  They each considered that, on the basis of the evidence (and bearing in mind the lack of connection between A and the non-telephone call incidents) no court would have sanctioned secure accommodation for her.  In any event, they considered it inappropriate, a professional opinion that must have been justified on the evidence.  There would also have been time restrictions on such accommodation. 

(vii)	From 2 June 1996, A was an adult.  From that date, the choices open to the Council in terms of steps that could be taken were even more restricted.  I do not accept the submission made on behalf of the Claimants that Section 24(1) of the 1989 Act (see Paragraph 15 above) imposed any duty on an authority to advise etc a child that had been in its care after that person had achieved majority: the duty is to advise a minor child whilst in care concerning their future adulthood.

161.	In his evidence, Mr Evans said that there were several schools of thought about how to deal with allegations by children of sexual abuse and with serious behavioural difficulties such as those exhibited by A after her placement with the Lamberts.  The Council took a relatively non-interventionist approach.  It is entirely uncertain whether any different approach would have been helpful in reducing the harassment suffered by Mr & Mrs Lambert, or would have worsened it.  However, in line with Bolam, the Council’s approach was reasonable and one with which this Court cannot interfere.  It is clear from (e.g.) the report of the meeting on 22 March 1994 between various members of the Council’s Social Services Department (including A’s Social Worker and Ms Hunt from the Community Placement Scheme), A herself and her then carers that there were large numbers of serious issues surrounding A, her harassing calls to Mr & Mrs Lambert (and possibly other former carers) being but one.  There was a “long discussion” between all parties as to what to do.  In making decisions about A, the Council clearly had in mind the calls being made. As indicated above, the open choices the Council had in respect of what to do about the calls was restricted.  The decisions they made - difficult as they were - were reasonable, and unimpeachable.

The Failure to Advise and Support 

162.	Mr & Mrs Lambert accepted that the support they received after the allegations of abuse were made by A against Mr Lambert was swift and sympathetic.  The complaint had to be investigated, and the manner and time span of the investigation by the Council and the police is beyond any reproach.

163.	The Lamberts were critical of the support given by the Council - particularly Ms Stapleton, who was their CPO from about August 1994, after Mr Evans had left the scheme - during the campaign of harassment.  It is true that, in the Annual Review Form dated 21 February 1996, there is reference to the Council having “tried to abdicate all responsibility for the actions of this girl” (Paragraph 10), but generally these reports (into which the Lamberts had input) do not evidence a lack of support - rather the opposite.  For example, in the review of 13 February 1995, under “Services offered by the Scheme”, it is said:

“Availability:  Always good, there was an occasion when Marj [i.e. Mrs Lambert] realised she could have contacted Patricia [i.e. Ms Stapleton] but was unable to do so as she didn’t have the phone number at the time.

Time spent with yourselves:  Visits regularly, this is satisfactory.  Never rushes, spends sufficient time with us

Understanding:  This is satisfactory.  There are times when we disagree but there is consensus on this.

Regularity of visits:  Satisfactory - visits are held more often when needed.”

In respect of support, the report says:

“Patricia [i.e. Ms Stapleton] visits regularly, and keeps us informed of changes.  She has supported us through some extremely difficult times, although we do not agree quite often on different or appropriate ways of dealing with problems”.

164.	The Council made membership of NFCA available to the Lamberts, and that offered a counselling facility.  Although it appears the NFCA counsellor could not counsel the Lamberts as they required, they obtained counselling through their own general practitioner.

165.	In all the circumstances, in my judgment, the evidence is clear that the Council reasonably advised and supported the Claimants after the end of A’s placement with them

Conclusion

166.	As I have indicated above, without doubt Mr & Mrs Lambert rendered years of outstanding public service by fostering many adolescent children with particular problems and challenging behaviour.  It is extremely unfortunate that they suffered an unjustified accusation of sexual abuse and the campaign of harassment that followed the swift conclusion of Council and police that the allegation was entirely without foundation.  The medical evidence was that the effects of that campaign - from a psychiatric point of view - have largely run their course, and that the Lamberts’ medical problems now can now largely be related to other maintaining factors (including the stress of this litigation).  Nevertheless, the actions of A caused Mr & Mrs Lambert several years of stress and anxiety.  Their whole story is tragic.

167.	However, for the reasons I have given, the Council is not responsible for any of this considerable misfortune.  The Claimants’ claim consequently fails, and I shall enter judgment for the Defendant.  

168.	I shall hear submission in relation to costs, unless the appropriate order can be agreed.

His Honour Judge Gary Hickinbottom
11 January 2007