There can be few things more distressing than to be accused of sexually molesting one's own child. But it is probably equally distressing for a professional person (a social worker, doctor or police officer) to be accused of conspiracy to injure and misfeasance in public office, and for those allegations to hang over a person's career for a decade.

In this case, Jon Grunewald of Watmores represented Reading Borough Council, the successor authority of Berkshire County Council.

B. separated from his common law wife SJ in the late 1980's.  At a time when he was trying to maintain regular access to his young daughter, SJ suddenly reported to the health visitor that the little girl had complained that her father had touched her inappropriately, and that her genitals were raw and inflamed. As a result, a social worker and police officer visited the child at her home. She was just over three years of age. They talked to the child who was crawling on the floor and playing with her toys, and formed the impression from her words and her manner that she had made a disclosure of sexual abuse. They did not make a transcript of what was said. The following day they interviewed the child again, this time in a special video suite, and the interview was recorded. They were not accustomed to interviewing such a young child, and the questioning included many "leading questions" designed to elicit a disclosure of abuse. As a result of that interview, although the child's words had been somewhat ambiguous and inconclusive, the social worker made the decision to place the child on the "At Risk" register. B. himself was not placed on any register. He was interviewed by the police, who decided not to charge him with any offence. However, SJ refused to allow him any further access to his daughter and was supported in this by the social services department. 

Subsequently, in 1996 a family court judge who had to rule on whether B. should be granted access to visit his daughter, made scathing criticisms of the social worker and the police officer. He condemned the video interview for its oppressive questioning, said that it had been conducted incompetently and improperly, and that it was abusive of the child.

B. sued, alleging negligence, breach of statutory duty, conspiracy to injure and misfeasance in public office. At first his daughter was a second claimant, but eventually she discontinued her claim, preferring to put the events behind her. Watmores represented the local authority defendants, responsible for the social worker.

The case took many years to come to trial. The police attempted to strike out the allegations of negligence and breach of statutory duty, but that attempt failed. However, following the House of Lords' decision in 2005 in JD v Berkshire, the local authority made a further attempt to strike out the case in negligence and breach of statutory duty (on the basis that a social worker exercising child protection duties cannot simultaneously owe a duty of care to the suspected abuser) and that was successful in the Court of Appeal in 2007.

When the case eventually reached trial in 2009, the only remaining allegations were therefore conspiracy to injure and misfeasance in public office. The claimant's case was that the social worker and police officer had been so grossly negligent, in the way they conducted the interviews with the child and in the way they prepared their subsequent notes, that they were acting in bad faith, outside their powers,  and were motivated by a desire to deliberately injure the claimant, or that they were reckless as to whether they injured him.

In his judgment, Mr Justice McKay quickly dismissed the allegations of negligence against the police (which had not been struck out, but were bound to fail by reason of the Court of Appeal's decision in 2007) and found that the social worker and the police officer were truthful witnesses, acting as they saw it in the best interests of the child. The allegations of conspiracy to injure and misfeasance in public office were therefore without foundation. This is a sensible outcome, and it is hoped that further claims of this nature have been firmly discouraged by this judgment. At various stages the judges have been critical of the long delay in getting the case to trial, but it has to be said that if it had come to trial before the JD decision had been given in the House of Lords, the claimant might have succeeded in his claim.

The claim was funded by the Legal Services Commission, formerly known as the Legal Aid Board. The defendants' solicitors regularly wrote to the LSC inviting them to discontinue or review the funding of the action, but these pleas fell on deaf ears. The case has involved the expenditure of a huge sum of public money to support a very weak claim.  The claimant's injuries consisted of anxiety and depression resulting from the unjust accusations of sexual abuse,  but these accusations originated from SJ, his common law wife and any damages would have had to be discounted to reflect that fact. He claimed to have sustained a huge loss of earnings which he attributed to the stigma of being regarded as an abuser, but no satisfactory evidence was produced and the trial concentrated on liability rather than quantum.  Ultimately the only winners have been the lawyers, especially the claimant's lawyers whose fees are very much greater than those of the defendants' lawyers. It is regrettable that the LSC prefers to rely on advice from the claimant's legal representatives and does not make use of independent legal advisors or assessors to ensure that weak claims are not funded longer than necessary.

For further information, contact Jon Grunewald.