Incorrect diagnosis of child abuse - parents claiming damages from NHS trusts for psychiatric harm caused by false allegations - possible duty of care in negligence owed to child but not parents - preliminary issue procedure not infringing right to fair trial

D v East Berkshire Community NHS Trust and Another; MAK and Another v Dewsbury Healthcare NHS Trust and Another; RK and Another v Oldham NHS Trust and Another: CA (Lord Phillips of Worth Matravers, Master of the Rolls, Lady Justice Hale and Lord Justice Latham): 31 July 2003

Three appeals were heard together in which accusations of abusing a child were made against a parent by professionals concerned with the child's welfare.

Those allegations proved to be false.

The parents, and in one case a child, claimed damages for psychiatric harm allegedly caused by those accusations.

Each claim was dismissed after the determination, as a preliminary issue, that no duty of care was owed to the claimants, who appealed.

Allan Levy QC and Scott Donovan (instructed by Carter Hodge, Chester) for D; Allan Levy QC and David Gripton (instructed by Levi & Co, Leeds) for MAK; Allan Levy QC and Mary Ruck (instructed by Pannone & Partners, Manchester) for RK; Robert Francis QC and Angus Moon (instructed by Hempsons) for all the defendants except Kirklees; Edward Faulks QC and Alastair Hammerton (instructed by Hill Dickinson, Liverpool) for Kirklees Metropolitan Borough Council.

Held, dismissing the parents' appeals but allowing that of the child, that the determination, as a preliminary issue, of whether the 'fair, just and reasonable' test precluded the existence of a duty of care owed by healthcare professionals to the parents of children wrongly diagnosed as abused did not violate the right to a fair trial under article 6 of the European Convention on Human Rights; that since the Human Rights Act 1998 came into force, a common law duty of care to a child to investigate suspected child abuse could no longer, as a matter of law, be ruled out; that each case turned on its individual facts, but in taking child care decisions, where the interests of the child and the parents potentially conflicted, the parents were owed no duty of care.