Legal Liability and Accountability for Child-care Decisions

Abstract

SUMMARY Although decisions taken by social workers in cases of suspected child abuse and in looking after children in their care may be the subject of public enquiries and press comment, they will not in general incur any legal liability to compensate children who claim to have suffered as a result of these decisions. This article examines the reasons why such liability is excluded by the courts, as well as looking briefly at other mechanisms for challenging social workers' decisions. It is argued that the grounds for excluding liability are speculative and that introducing liability to this area might encourage good practice. Decisions and actions taken by social workers in the course of their practice may end up being scrutinized by the courts. This may be as part of judicial proceedings involving the social worker, for example in childcare, or it may be because a client, or someone else affected by the action, seeks to challenge the decision or to obtain compensation from the social worker. Challenges to the decision will normally seek to have the decision changed, examples of this are cases seeking to challenge community care assessments and care plans (e.g. R v Gloucestershire County Council, ex parte Barry, 1997). Alternatively, an individual may be seeking compensation from the social worker or their employer for loss resulting from something the social worker did or failed to do. In order to succeed in such a claim, the person must show loss (this may be some physical harm, but is more likely to be emotional or psychological harm) and will have to show that the social worker acted negligently, recklessly or intended to injure them. It will normally be the employer of the social worker who is sued because of the legal doctrine of vicarious liability (which means that employers can be sued for what