F v WIRRAL METROPOLITAN BOROUGH COUNCIL AND ANOTHER

COURT OF APPEAL (CIVIL DIVISION)

[1991] Fam 69, [1991] 2 All ER 648, [1991] 2 WLR 1132, [1991] 2 FLR 114, [1991] Fam Law 299

HEARING-DATES: 5, 6, 7, 8 February, 18 May 1990

18 May 1990

CATCHWORDS:
Children -- Child in care -- Parental rights -- Mother placing children in voluntary care -- Local authority assuming parental rights -- Children
placed with long term foster parents with view to adoption -- Claim against local authority for negligence and interference with parental rights
-- Whether cause of action in negligence against local authority -- Whether tort of interference with parental rights

Practice -- Pleadings -- Striking out -- Mother placing children in voluntary care -- Local authority assuming parental rights and placing children
for adoption -- Mother's claim against local authority for negligence and interference with parental rights -- Application by local authority to
strike out claim -- Plaintiff seeking on hearing of striking out application to amend pleadings so as to allege concealment of cause of action --
Whether leave to amend properly refused -- Whether statement of claim to be struck out -- RSC, Ord 18, r 19(1)(a)(b)

HEADNOTE:
In January 1978, the plaintiff, then suffering from depression, agreed to place her two children, born in 1975 and 1976, in voluntary care under
section 1 of the Children Act 1948. She alleged that her agreement was based on assurances given by the first defendants, the local authority,
that the placement was temporary and that the children would be returned to her when she recovered. On 23 March 1978, the second
defendants, another local authority acting as the first defendants' agents, placed the children with long term foster parents with a view to
adoption. The first defendants then passed a resolution assuming parental rights over the children under section 2 of the Act. In February 1979,
they passed a second resolution that the children should remain in care, that the parental rights resolution would not be revoked and that
rehabilitation with their parents was not in the children's best interests, and they informed the plaintiff of that resolution. By a writ and a
statement of claim, dated 3 June 1985 and subsequently amended, the plaintiff claimed against the defendants damages for negligence and
breach of duty in placing the children with long term foster parents, and for unlawfully interfering with her rights and privileges as a parent and
hindering her in the employment and exercise of those rights and privileges. On the defendants' application, the judge, having refused the
plaintiff leave to amend her reply so as to allege that the defendants had deliberately concealed her cause of action from her, made an order
striking out the statement of claim, under RSC, Ord 18, r 19(1)(a) and (b), on the grounds that the statement of claim disclosed no reasonable
cause of action and that the claim was vexatious in that it was statute-barred.

On the plaintiff's appeal:-

Held, dismissing the appeal, (1) that the alleged concealment of the plaintiff's cause of action was inconsistent with the plaintiff's case; that
the plaintiff could have made the allegation in the pleaded case if she had wished; and that, since the allegation was not made promptly, the
judge exercised his discretion properly in refusing leave for the amendment.

(2) That since the exercise by local authorities of statutory powers in relation to children was subject to both statutory control and the remedy
of judicial review the plaintiff did not have (per Purchas LJ it was doubtful whether the plaintiff had) a cause of action against the defendants in
negligence; and that, given the statutory framework within which local authorities carried out their duties in relation to children, it was not open
to the court to recognise the existence of an independent tort of interference with parental rights; that (per Purchas and Stuart-Smith LJJ) any
claim in negligence was statute-barred; and that, accordingly, the statement of claim had been properly struck out under RSC, Ord 18, r
19(1)(a) and (b).

Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, HL(E); R v United Kingdom [1988] 2 FLR 445, ECHR and In re KD (A
Minor) (Ward: Termination of Access) [1988] AC 806 HL(E) considered.

Decision of Hollings J affirmed.

CASES-REF-TO:

A v Liverpool City Council [1982] AC 363; [1981] 2 WLR 948; [1981] 2 All ER 385, HL(E)
Anns v Merton London Borough Council [1978] AC 728; [1977] 2 WLR 1024; [1977] 2 All ER 492, HL(E)
Ashby v White (1702) 2 Ld Raym 938
Associated British Ports v Transport & General Workers' Union [1989] 1 WLR 939; [1989] ICR 557, CA and HL(E)
Baker v Bolton (1808) 1 Camp 493
Best v Samuel Fox & Co Ltd [1952] AC 716; [1952] 2 All ER 394, HL(E)
Bourgoin SA v Ministry of Agriculture, Fisheries and Food [1986] QB 716; [1985] 3 WLR 1027; [1985] 3 All ER 585, Mann J and CA
Caparo Industries Plc v Dickman [1990] 2 AC 605; [1990] 2 WLR 358; [1990] 1 All ER 568 HL(E)
Constantine v Imperial Hotels Ltd [1944] KB 693; [1944] 2 All ER 171
Donoghue v Stevenson [1932] AC 562, HL(Sc)
Edwards, Ex parte (1747) 3 Atk 519
Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112; [1985] 3 WLR 830; [1985] 3 All ER 402, HL(E)
Hall v Hollander (1825) 4 B & C 660
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465; [1963] 3 WLR 101; [1963] 2 All ER 575, HL(E)
Hewer v Bryant [1970] 1 QB 357; [1969] 3 WLR 425; [1969] 3 All ER 578, CA
Hill v Chief Constable of West Yorkshire [1989] AC 53; [1988] 2 WLR 1049; [1988] 2 All ER 238, HL(E)
Home Office v Dorset Yacht Co Ltd [1970] AC 1004; [1970] 2 WLR 1140; [1970] 2 All ER 294, HL(E)
J v C [1970] AC 668; [1969] 2 WLR 540; [1969] 1 All ER 788, HL(E)
Jones v Department of Employment [1989] QB 1; [1988] 2 WLR 493; [1988] 1 All ER 725, CA
Jones v Swansea City Council [1990] 1 WLR 54; [1989] 3 All ER 162, CA
K (A Minor) (Ward: Care and Control), In re [1990] 1 WLR 431, CA
KD (A Minor) (Ward: Termination of Access), In re [1988] AC 806; [1988] 2 WLR 398; [1988] 1 All ER 577, HL(E)
Lewisham London Borough Council v Lewisham Juvenile Court Justices [1980] AC 273; [1979] 2 WLR 513; [1979] 2 All ER 297, HL(E)
Lough v Ward (1945) 173 LT 181; [1945] 2 All ER 338
Lumley v Gye (1853) 2 E & B 216
McLoughlin v O'Brian [1983] 1 AC 410; [1982] 2 WLR 982; [1982] 2 All ER 298, HL(E)
Meade v Haringey London Borough Council [1979] 1 WLR 637; [1979] ICR 494; [1979] 2 All ER 1016, CA
O'Hara, In re [1900] 2 IR 232
Peabody Donation Fund (Governors of) v Sir Lindsay Parkinson & Co Ltd [1985] AC 210; [1984] 3 WLR 953; [1984] 3 All ER 529, HL(E)
Pirelli General Cable Works Ltd v Oscar Faber & Partners [1983] 2 AC 1; [1983] 2 WLR 6; [1983] 1 All ER 65, HL(E)
Place v Searle [1932] 2 KB 497, CA
Quinn v Leathem [1901] AC 495, HL(I)
R v United Kingdom [1988] 2 FLR 445, ECHR
Reg v Secretary of State for the Home Department, Ex parte Brind [1990] 2 WLR 787; [1990] 1 All ER 469, CA
Ronex Properties Ltd v John Laing Construction Ltd [1983] QB 398; [1982] 3 WLR 875; [1982] 3 All ER 961, CA
Rowling v Takaro Properties Ltd [1988] AC 473; [1988] 2 WLR 418; [1988] 1 All ER 163, PC
Winsmore v Greenbank (1745) Willes 577
Yuen Kun Yeu v Attorney-General of Hong Kong [1988] AC 175; [1987] 3 WLR 776; [1987] 2 All ER 705, PC

CASES-CITED:

A v C [1985] FLR 445, CA
Al-Kandari v JR Brown & Co [1987] QB 514; [1987] 2 WLR 469; [1987] 2 All ER 302
DM (A Minor) (Wardship: Jurisdiction), In re [1986] 2 FLR 122, CA
Flemington v Smithers (1826) 2 C & P 292

INTRODUCTION:
APPEAL from Hollings J.

By a writ and statement of claim dated 3 June 1985, amended pursuant to an order of Wood J and re-served on 8 June 1987, the plaintiff
claimed damages for negligence and for "breach of statutory or other duty" against the Wirral Metropolitan Borough District Council ("Wirral") and
Liverpool City Council ("Liverpool") in respect of the placement of her daughters LD, born on 7 March 1975, and GD, born on 19 May 1976, with
long-term foster-parents. By summonses dated 4 February 1988 Wirral applied (1) for an order (a) that her claim be dismissed and all her
pleadings in support be struck out (b) that judgment be entered for Wirral, with costs, on the ground that those pleadings disclosed no
reasonable cause of action, further or alternatively that they were an abuse of the process of the court, the appropriate process in respect of
the matters complained of being by way of application for judicial review; (2) for an order pursuant to RSC, Ord 33, r 3 and/or r 4(2)(a) that
there be a trial of the preliminary issue whether her action was statute-barred and (b) that, in the event of that issue being decided in favour
of Wirral, judgment be entered for Wirral, with costs. By a summons dated 17 February 1988 Liverpool applied for an order that the plaintiff's
amended statement of claim be struck out under RSC, Ord 18, r 19 or under the inherent jurisdiction of the court. On 17 March 1989 Hollings J
(1) refused an application by the plaintiff further to re-amend (a) her reply to Wirral's defence by adding allegations that (i) her cause of action
did not arise until 26 May 1983, (ii) until shortly after 31 March 1981 she did not discover, and could not with reasonable diligence have
discovered, that her daughters had been placed with foster-parents in an immediate long-term placement with a view to adoption, (iii) by that
long-term placement that Wirral's failure to tell her if it Wirral had deliberately concealed her cause of action from her; (b) her reply to
Liverpool's defence by adding similar allegations; (2) struck out the plaintiff's writ and statement of claim, both as disclosing no cause of action
and as statute-barred; and (3) gave the plaintiff leave to appeal. This she did, by a notice of appeal dated 17 April 1989: her grounds being
that (1) the judge was wrong in law in holding that her amended statement of claim disclosed no cause of action; (2) the judge ought to have
held (a) that the defendants' actions as alleged in the amended statement of claim constituted an infringement of her rights as a parent for
which a claim in damages lay, and (b) that the close relationship between her and the defendants was such as to give rise to a duty of care
owed by them to her, and (c) that the defendants owed her a duty of care by reason of the particular circumstances that her wishes in respect
of the placement of her two daughters had been made known to them, and that she had received assurance from Wirral that they would be so
placed, and (d) that her causes of action only accrued on 26 May 1983; (3) the determination of the issues raised under the Limitation Act
1980 was premature as all the circumstances and all the actions of the defendants were unknown; and (4) the judge ought to have allowed her
application for leave to further amend her pleadings so as to allege fraudulent concealment.

The facts are stated in the judgment of Purchas LJ.

COUNSEL:
Gerard Wright QC, Robert Atherton and Judith Daley for the plaintiff; Michael Connell QC and Martyn Bennett for Wirral; David Clarke QC and JR
Duggan for Liverpool.

JUDGMENT-READ:
Cur adv vult 18 May. The following judgments were handed down.

PANEL: Purchas, Ralph Gibson, Stuart-Smith LJJ.

JUDGMENTBY-1: PURCHAS LJ

JUDGMENT-1:
PURCHAS LJ: The issues

This appeal raises important issues concerning the rights, said to belong to parents, to enjoy consortium, in the widest sense, with their
children, including the satisfaction inherent in rearing and caring for them, recognised by the European Convention for the Protection of Human
Rights and Fundamental Freedoms. For convenience I shall hereafter refer to such rights compendiously as "parental rights." The appeal also
raises the question of the possible recognition by the common law of such rights and the remedies, if any, available under that law and the
powers granted to and the duties imposed upon local authorities under "the statutory code" (see A v Liverpool City Council [1982] AC 363) in
relation to the children and adults involved.

The plaintiff claims damages against the Wirral Metropolitan Borough Council ("Wirral") as the authority with whom on 27 January 1978 she
placed her two young daughters in voluntary care under section 1 of the Children Act 1948, and against Liverpool City Council ("Liverpool") as
the local authority through whose agency Wirral placed the children with foster parents. Since May 1983, when in wardship proceedings brought
by her she withdrew her claim for care and control of the children, she has acknowledged that as a result of the bonding between the children
and the foster parents with whom they were placed there is no long-term prospect of rehabilitation between her and the children so as to
enable their return to her full-time care and control. Hence, she now claims damages for the loss of her parental rights caused by the acts
and/or omissions of Wirral and Liverpool which, she asserts through Mr Wright, flow from a separate cognate tort, namely interference with her
parental rights. Alternatively, she claims damages for negligence and breach of duty by each of the two authorities in the discharge of their
functions under the statutory code.

The plaintiff's writ was issued solely against Wirral and was dated 3 June 1985. Wirral's defence, dated 31 July 1985, referred to the placement
of the children with Mr and Mrs D through the agency of Liverpool. Paragraph 17 of the defence pleaded the Limitation Act 1980. By her reply,
which was served on 24 February 1986, the plaintiff asserted that her claim was not statute-barred:

"The plaintiff did not discover and could not with reasonable diligence have discovered the matters alleged in the statement of claim until 26
May 1983."

A summons in wardship had been issued by the plaintiff on 12 March 1982. There had been interim orders on 27 April 1982 by Ewbank J and on 5
October 1982 by Hollings J. The substantive hearing before Butler-Sloss J took place in May 1983.

By an amendment to the writ dated 25 March 1987, Liverpool were added as second defendants. The amended statement of claim was served
on 8 June 1987. For the purpose of the Limitation Act 1980 this is deemed to be a new action started on 3 June 1985: section 35(1)(b). Besides
adding Liverpool as defendants, this pleading contained some substantial amendments in the allegations made against Wirral, further and better
particulars of which were served on 3 November 1987. The claims in the amended statement of claim were limited to damages for negligence
and/or breach of duty by the servants or agents of the two authorities.

By their amended defence served on 17 July 1987 Wirral asserted that they, not Liverpool, were the local authority responsible for the children.
Further, they admitted, for the purposes of the action only, that Liverpool were acting at all material times as their agents. Liverpool served
their defence on 6 August 1987. They pleaded, inter alia, that the plaintiff's claim was barred by the Limitation Act 1980.

By summonses dated 4 and 17 February 1988 respectively, both Wirral and Liverpool applied to strike out the amended writ and statement of
claim under RSC, Ord 18, r 19(1)(a) on the ground that it disclosed no reasonable cause of action or, alternatively, under Ord 18, r 19(1)(b) on
the basis that the claim was vexatious and an abuse of the process of the court as being obviously barred by the Limitations Act 1980. The
court has been prepared to strike out under Ord 18, r 19(1)(b) on the obvious prospect of the claim failing under the statute rather than to
allow the matter to proceed so that the defendants could plead and rely upon their defence of limitation: see Ronex Properties Ltd v John Laing
Construction Ltd [1983] QB 398. Wirral also, by a summons dated 4 February 1988, sought in the alternative an order for limitation to be tried
as a preliminary issue.

The procedural steps which brought the matter before Hollings J therefore excluded any consideration of the truth of the allegations made by
the plaintiff in her statement of claim falling short of demonstrable untruth. The judge rightly assumed that the facts pleaded in the statement
of claim must, for the purposes of the application to strike out, be assumed to be correct and that so far as the application under rule 19(1)(a)
was concerned the facts pleaded in the defence were not relevant. It is generally accepted, however, that in the application under rule
19(1)(b) it is open to the court to look at the surrounding circumstances under which the action has been brought and the pleadings as drawn.
I understand, of course, the reasons why both Wirral and Liverpool should wish to cut down this action before it reached trial but this step has
its own drawbacks, particularly in the form of the assumption as true of probably unjustifiable allegations of failure to discharge their duties on
the part of the social workers acting for the two authorities.

On the third day of the hearing before the judge, on an application by Mr Wright, the judge gave leave for the statement of claim to be
re-amended by adding a fresh cause of action, albeit based upon the facts and matters already pleaded. The re-amendment alleged against
both Wirral and Liverpool that from and after 23 March 1978 they

"unlawfully interfered with the plaintiff's rights and privileges as a parent and hindered her in the enjoyment and exercise of those rights and
privileges."

No particulars were pleaded, but the re-amendment as drafted opened with the words "In the premises," which presumably introduced a
reference to all the facts previously pleaded. The judge was, to say the least, generous to permit a new cause of action to be pleaded in such
general and ill-defined terms at such a late stage. The date from which the tort was alleged to have occurred was the date upon which the two
children were placed by Wirral, through the agency of Liverpool, with the foster parents.

To complete the dismal record of the plaintiff's pleadings, an application was made, during the course of Mr Wright's closing address to the
judge, to re-amend the reply by adding yet another allegation against both Wirral and Liverpool, namely that each of them had deliberately
concealed from the plaintiff her cause of action. Whether the re-amendment was concerned with the cause of action in negligence and breach
of duty only or extended to the cause of action added by the re-amendment of the statement of claim is not clear. This was clearly a
last-minute tactical manoeuvre to promote the neutral terms of the reply already served into a means of avoiding the effect of the Limitation
Act 1980. The judge gave no reasons for rejecting the application in his judgment, but we were told that he indicated his reasons for refusing
the application that

"the application to re-amend the reply is far too late and is not justified in the light of the existing pleadings. The matter must proceed without
the re-amendment."

The history

The history, as derived from the pleadings, may be summarised as follows. The children L, who was born on 7 March 1975 and G, who was born
on 19 May 1976, were born with a metabolic disease known as phenylketonuria. This disease calls for skilled dietary management. After the birth
of the second child the plaintiff suffered from depression and the view was taken by those responsible in the social services department of
Wirral that the plaintiff particularly and the parents in general would not be capable of providing proper care for the children. In conversations
with the plaintiff it was made clear by those representing Wirral that if the plaintiff did not agree to place the children in voluntary care they
would take steps to obtain a care order. In those circumstances the plaintiff agreed. The children were received into care under the Children
Act 1948. At that time it was clearly understood between those acting for Wirral and the plaintiff that the placement should be of a short term
nature only, pending the recovery of the plaintiff from her state of depression, and that, when she was recovered, her children would be
returned to her care and control. Assurances were given to the plaintiff that any placement of the children would be made to that end. In
particular, such assurances were given by Dr Pinkerton and Mrs Reeve, both of whom were acting for Wirral.

Because there were no suitable short term foster parents available in Wirral's area help was sought from Liverpool. Through the agency of
Liverpool the children were placed with Mr and Mrs D, who were on Liverpool's list of long term fostering and adoptive parents. From the outset
Mr and Mrs D assumed that the placement with them was on a permanent basis and this must have been known, at least to the social workers
acting for Liverpool; and it is difficult to believe that the status of Mr and Mrs D was not known to those who were acting for Wirral. The case
as pleaded was that Wirral were negligent and/or in breach of their duty to the plaintiff in permitting Liverpool to make a placement on a basis
wholly inconsistent with the understanding which they had reached with the plaintiff; alternatively, that Wirral were deliberately in breach of
that understanding and failed to inform the plaintiff of the change of position as regards the children. The plaintiff relied, inter alia, on breaches
of section 12 of the Children Act 1948, as substituted by section 59 of the Children Act 1975, and sections 1 and 18 of the Child Care Act 1980.
The case against Liverpool was that the placement with Mr and Mrs D was in conflict with the intention of the parents and the assurances of
Wirral. The children have remained in the care and control of Wirral, first under the Act of 1948, and subsequently under orders in wardship
made under section 7(2) of the Family Law Reform Act 1969; and throughout they have remained placed with Mr and Mrs D.

On 24 May 1978 Wirral passed a resolution under section 2(1) of the Act of 1948, assuming the rights of parental control over the children. The
ground relied on was that the plaintiff and the father had so consistently failed without reasonable cause to discharge their obligations as
parents as to be unfit to have the care of the children: section 2(1)(b)(v). The position on the pleadings in relation to this resolution is obscure.
Regrettably, it remains obscure since Mr Wright felt unable to accept an invitation from the court to make an application to re-re-amend the
statement of claim so as to give a clear definition of the pleaded position. The pleading, without any adjustment, is ambiguous but, taking the
original form of the statement of claim in association with a correction included in further and better particulars to the appropriate part of the
claim, the position is that no allegation is made that the passing of this resolution was in any way flawed. It must, therefore, be assumed either
that the plaintiff consented to the application or, alternatively, that Wirral having served the appropriate notices together with an explanation
of the parents' rights to object to the resolution or to apply to set it aside, neither parent took any step to challenge the resolution. During that
time the plaintiff was in hospital as a result of her depression and was in any event not in a position to offer to undertake the care and control
of the children. That, however, would not have prevented her from taking such action as might be open to her to protect her position as
against her release from hospital on recovery from her condition by challenging the section 2 resolution. It is common experience that the
treatment of this kind of situation calls for the greatest patience and skill on the part of the social workers in counselling the parents if there is
a plan to move towards long term fostering or adoption. This delicate and critical feature of the case cannot be investigated because of the
procedural method adopted by the defendants in bringing the matter before the court under RSC, Ord 18, r 19.

Formally, the position under the Act of 1948 would appear to have been as follows. Wirral acquired their rights and duties as caring authority
under the Act of 1948 as a result of a voluntary placement in care under section 1. During that time it would have been open to the plaintiff or
the father at any stage to call for the return of their children, whose care and control they were in law entitled to enjoy. Furthermore, Wirral
were under a duty to work towards that end: section 1(3) of the Act. Since the plaintiff was suffering from depression the parents were not in
a position to do that in the early stages, and well before they were in such a position Wirral passed the resolution assuming parental rights
under section 2 of the Act. As from the passing of that resolution rights previously enjoyed by the parents were replaced, at least during the
currency of the resolution, and, subject to the statutory safeguards provided in the Act, passed to Wirral. The children were placed with Mr and
Mrs D after they had been received into care but before the section 2 resolution was passed.

From the passing of the section 2 resolution the children formally remained in the care and control of Wirral under the resolution and stayed with
Mr and Mrs D in a long term fostering placement until the plaintiff issued the originating summons in wardship on 12 March 1982. That was for
just under four years. In the meanwhile there were a number of events of significance which involved on the one hand, the attempts by Mr and
Mrs D through Liverpool and/or Wirral to cut down and eventually eliminate access to the children which was being enjoyed by the parents, and
on the other hand, efforts by the plaintiff to defend or reinstate the access. During the summer of 1978 Wirral made efforts to improve matters
in the parents' home, eg, by the appointment of "homemakers." These were withdrawn in November 1978. On 8 February 1979 Wirral resolved
that the children were to remain in care for the foreseeable future; that Wirral would not revoke the parental rights resolution; and that the
children's rehabilitation to the parents was not in the best interests of the children but that contact was to be maintained. The effect of that
resolution was communicated to the parents on 19 February 1979. Visiting access for the parents was continued thereafter once a month in
accordance with the resolution and with the co-operation of the parents and the foster parents.

That resolution is important. It is first pleaded in further and better particulars of paragraph 3(1) of the statement of claim served on 24
February 1986:

"The first time the plaintiff was informed of [Wirral's] intention to provide long term fostering was on 19 February 1979 when the plaintiff
attended the office of Moreton Social Services and saw Mr Derek Evans. Mr Evans informed the plaintiff that a case conference had decided
that there should be little further contact between the plaintiff and her children and there was nothing she could do about it."

The acceptance of that position by the parents and their reaction, namely their request for access, must be taken as the point after which
they must have appreciated that the children had been placed in long term fostering. The allegation made in the reply that the plaintiff could
not have discovered what was happening until May 1983 is clearly inconsistent with this pleaded state of affairs. During the argument Mr Wright
conceded that, so far as the allegations of negligence and breach of duty were concerned, it was from this date that any relevant period of
limitation would run.

In June 1979 the plaintiff was again admitted to hospital. At about that time she was granted legal aid. Although the court was not told
precisely when that occurred, it is clear that she lost little time in obtaining help. The judge recorded in his judgment that on 9 March 1979 Mrs
Linda Chalker MP wrote to Wirral saying that the parents wanted the children back, and asking for details of the case. By a letter dated 4 July
1979 Messrs Bremner Sons and Corlett, solicitors acting for the plaintiff, informed Wirral that she would apply to the court for the revocation of
the section 2 resolution. On 13 July 1979, over the signature of the director of social services, Wirral replied:

"On 19 February 1979 both Mr and Mrs F were interviewed at my central Wirral office. They were informed that after full consideration the
authority had no plans to rescind parental rights and they were given the reasons why. We have no foreseeable plans to return L and G to
either or both parents, remaining firm in our conviction that it is in the children's best interests to remain in care. My officers are unaware of any
change in circumstances that would lead to a review of this decision but if you are in possession of such information I am always willing to
accept it. We will, in the children's best interests, oppose any application to rescind parental rights."

In the event, the correspondence ceased and the plaintiff took no further action for about 18 months but apparently continued to enjoy limited
access to the children.

For the purposes of this appeal, the ensuing history until the issue of the writ against Wirral can be shortly stated. On 5 January 1981 Bremner
Sons and Corlett wrote again to Wirral complaining of a recent decision to restrict the occasional access which had been enjoyed by the
plaintiff to the children. That letter referred to a plan for a meeting between Mr and Mrs D and the parents. Reference was made to proposed
wardship proceedings being issued by the parents with a suggestion that so long as arrangements were made for the proposed meeting between
the foster parents and the natural parents the solicitors would not issue the wardship summons. In February and March 1981 attempts to reach
a formal position as regards access between Mr and Mrs D and the parents broke down. In their letter of 25 March 1981 Bremner Sons and
Corlett recorded the unsatisfactory state of affairs and indicated that they expected shortly to be instructed to issue wardship proceedings. In
fact those proceedings were not issued until nearly a year later. There followed interim applications dealing with access to the children. In the
order of 5 October 1982 the judge invited the Official Solicitor to act for the children and as a result the Official Solicitor represented them in
the ensuing wardship proceedings. On 20 May 1983 Butler-Sloss J made an order placing the children in the care and control of Wirral with a
direction that the children should not be removed from the care of Mr and Mrs D. Provision was made for access for the parents to continue.

The judgment

After prolonged and careful consideration of the authorities and the argument on both sides Hollings J came to the following conclusion:

"However, I am satisfied that there was no duty of care owed by either defendant. The duty of a local authority is laid down by statute and
that duty is plainly exclusively owed to the child. The statute provides for specific remedies to parents. There is the remedy of judicial review
for cases of abuse of power (not specifically alleged here though referred to in the course of argument). The authorities cited by Mr Connell
support his submissions and agree, too, with Mr Clarke's submissions. [Liverpool], in any event, cannot be in the position of owing a duty of care
in the pleaded circumstances. I also accept Mr Clarke's submissions with regard to the nature of the damages claimed."

Mr Clarke's submissions as to damages were based on the further and better particulars of the statement of claim where it is pleaded:

"The alleged inconvenience, anxiety, mental auguish and loss of attendant benefits of bringing up children relates primarily to the loss of care
and control of the children and also to the loss of access."

Mr Clarke based his submissions on McLoughlin v O'Brian [1983] 1 AC 410 as an authority for the proposition that "while damages are
recoverable in respect of nervous shock they are not recoverable for grief or sorrow." It does not appear that the issues arising in claims for
damages in respect of children in actions by their parents based on loss of services was as fully argued before the judge as it was before us.

Turning now to the second issue which was raised by amendment during the course of the hearing before the judge, the judge meticulously and
comprehensively reviewed the submissions both of Mr Wright, for the plaintiff and Mr Connell and Mr Clarke, for Wirral and Liverpool. Mr Wright's
submissions started from the basic principle: any violation of a legal right gives rise to an action for damages in tort. Mr Wright referred to
Ashby v White (1702) 2 Ld Raym 938; Winsmore v Greenbank (1745) Willes 577 and Lumley v Gye (1853) 2 E & B 216, 232, from which he cited
Erle J:

"It is clear that the procurement of the violation of a right is a cause of action in all instances where the violation is an actionable wrong, as in
violations of a right to property, whether real or personal, or to personal security . . ."

Mr Connell relied upon the speeches in J v C [1970] AC 668 and In re KD (A Minor) (Ward: Termination of Access) [1988] AC 806, whilst Mr
Clarke, supplementing Mr Connell's arguments, referred to the speeches in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC
112. Referring to Mr Connell's submissions, the judge summarised his views:

"It is plain, as Mr Connell submits, that such a right or claim to access (and, I add 'or custody' for the principle is the same) is limited by and
subservient to the best interests of the child. I agree that it cannot found an action for the benefit of the parent. In the present case all
decisions with regard to the children had to be made in accordance with the paramountcy rule."

The judge summarised Mr Clarke's submissions:

"It follows, Mr Clarke submits, that any duties owed by a third party would be towards the child and would not be a duty to protect any right in
the parent. Mr Clarke further points out that the plaintiff in this case has not shown what loss she has suffered as a result of any infringement
of her rights. I accept these submissions and I would add that the parent's 'right' is essentially a right of protection vis-a-vis the child. It is not
a right the infraction of which is capable of injuring or damaging the parent."

Finally, the judge turned to the question of limitation. After referring to the pleadings, as against Wirral he came to the following conclusion:

"It is further alleged that the plaintiff did not discover, and could not with reasonable diligence have discovered, the matters alleged in the
statement of claim until 26 May 1983. This last plea is plainly not good having regard to the decision in Pirelli General Cable Works Ltd v Oscar
Faber & Partners [1983] 2 AC 1. As to the date the cause of action arose, paragraphs 4(d) and 5 of the amended statement of claim seem to
indicate that the date was 23 March 1978, when the children were placed on a long term basis with Mr and Mrs D. However, it is certainly
arguable that the cause of action was not complete on that date and that the alleged negligence of the first defendant had not yet resulted in
the alleged damage. It seems clear, however, that the cause of action was complete by at the latest 18 June 1978 (when access was
terminated and not restored until 9 August 1978) if not complete on 24 May 1978 (when the first defendants assumed parental rights). This
would mean that the claim is statute-barred unless there is validity in the plea that since the damage continued, so the cause of action was
not complete and on this hypothesis never complete. In my judgment, once damage has accrued, the cause of action is complete and any
further damage thereafter would only be relevant to the quantum of damages. For that reason I rule that the claim against [Wirral] is
statute-barred."

After referring to section 35(3) of the Limitation Act 1980, for reasons on the same lines as those for his decision in relation to Wirral, the judge
came to the conclusion that the action against Liverpool was also statute-barred.

The plaintiff's case

Before this court Mr Wright conceded that, so far as his appeal against the judge's ruling on the question of negligence or breach of duty was
concerned, if he failed in his appeal against the judge's ruling to refuse a re-amendment of the reply to allege active concealment on the part of
the servants or agents of Wirral, his case based upon negligence and/or breach of duty must fail on the ground of limitation. Such an
amendment would be of no avail against Liverpool. It is not suggested that there was any active concealment, as I understand it, on the part
of anyone acting for Liverpool. In the event, in view of the acceptance by Wirral that at all times they were responsible for Liverpool, there
seems little purpose in pursuing a case against Liverpool on this aspect. Limitation, however, was still a live issue on the second limb, namely
damages for the alleged tort of interfering with parental rights, if Mr Wright succeeded in his submission that this was a continuing tort, each
interference with the right giving rise to a new cause of action. Mr Wright submitted that the first act of interference must be the placement of
the children with Mr and Mrs D into long term fostering. This, of course, occurred on 23 March 1978. Mr Wright, however, further submitted
that, so long as the children remained in the care of Wirral, Wirral's continued exercise of their parental rights under section 2 constituted a
continuing interference with the plaintiffs own parental rights.

I have found some difficulty in analysing the diffuse, if all-embracing, submissions Mr Wright made in support of his case based on the tort of
interference with human rights. Before returning to this aspect, however, I should record that I have come firmly to the conclusion that this
court should not allow an appeal against the judge's refusal to allow the re-amendment alleging a new and serious allegation of misconduct on
the part of those who were responsible for the management of this difficult case. I bear in mind that as this is an application under Ord 18, r 19
one must look at the pleadings. Any crucial amendment which would enable the position between the parties properly to be considered would
normally be allowed at this stage if it would have the effect of permitting the matter to go to trial on the full issues. In the application which
was made to the judge, however, there were serious reasons justifying the judge's refusal to grant such an amendment. It represented a
departure from the original reply which had been served as long ago as 24 February 1986. That merely asserted that the plaintiff could not and
did not discover the matters alleged in the statement of claim until 26 May 1983. That was wholly inconsistent with, and contradicted by, the
further and better particulars of the statement of claim which were served on the same date and referred to the plaintiff being formed on 19
February 1979 by Mr Evans of Wirral's resolution dated 8 February 1979. At the time that pleading was drafted the case based on interference
with human rights was not part of the pleaded case, so that allegation must relate to the decisions and actions taken by those representing
Wirral which resulted in the children being placed in long term fostering with Mr and Mrs D. If there had been any case for asserting that there
was positive concealment on the part of anyone acting for Wirral or, indeed, Liverpool, it is inconceivable that that allegation would not have
been included in the pleadings in February 1986. In any event, any pleaded case asserting concealment after that date must be contrary to the
established documents. In this context I find it quite impossible to accept the submission that the judge was not entitled to reject the
application. It is to be remembered that this case is exceptional in that it does not involve the welfare of the children or their physical
movement. It is concerned solely with a claim for damages. If there has been any lack of preparation in the case then the plaintiff's remedies
may well lie elsewhere. That is not a matter with which this court ought to be concerned.

On Mr Wright's concession, therefore, the appeal on the issue of negligence or breach of duty must fail and I now turn to the main and
substantial matter which has occupied the court, namely, whether there is in law any right of action for damages arising out of an interference
with a parent's right to his or her children. If such a right exists, how is it affected by (a) consent on the part of the parent and (b) statutory
authority for such interference? In considering Mr Wright's submissions on this part of his argument, I have found considerable difficulty in
reaching my conclusions. These difficulties have arisen in the main part because of the manner in which the case has come before the court.
The application under Ord 18, r 19(1)(a) must be considered against the case pleaded by the plaintiff. Mr Wright, rightly, did not attempt to
defend the pleadings, even in the form which the re-amended statement of claim achieved on the third day of the trial.

As drafted, both in its unamended and amended forms, the statement of claim was diffuse and ambiguous and contained much historical
narrative which obscured rather than defined the true nature of the plaintiff's claim in negligence and breach of duty. The extensive further and
better particulars which were served did little to improve matters. Indeed on one vital issue, namely, whether the parents' consent was
obtained to the children's reception into care under section 1 of the Act of 1948 or to the passing of the section 2 resolution, or both, they
were used as a vehicle to amend the allegation of consent as it related to the section 1 reception, but they left the position as regards the
section 2 resolution totally obscure. The court was left without assistance as to the circumstances in which it was alleged that the section 2
resolution was passed. Before the application to re-amend the statement of claim, the document was, in any event, drafted to support the
claim in negligence and breach of duty and did not address itself to the claim based on interference with parental rights. The indulgence granted
by the judge, in allowing this new cause of action to be "tacked on" to a pleading such as I have been describing without any supporting
allegation more specific than the introductory words "In the premises," was "heaping Ossa on Pelion." The difficulties caused by inadequate
pleadings were compounded on an application under Ord 18, r 19(1)(a).

Based upon the establishment of a right in the natural parent to enjoy access to his child, Mr Wright's argument, if not simplistic, was
disarmingly simple. He referred, as he did before the judge, to the old authorities to the effect that "where there is a right the law will provide a
remedy." He invited the court to abandon the out-dated proprietorial approach of the common law and to apply principles more in accord with
the twentieth century. He argued that the basis on which the children were received into care by Wirral did nothing to impair the underlying and
fundamental rights that the plaintiff had in them, and that any actions by Wirral or their agents (Liverpool) which interfered with those rights --
Mr Wright instanced the placement with Mr and Mrs D in long term fostering -- was an interference which would support an action for damages
in tort. Mr Wright submitted that so long as the children remained with Mr and Mrs D the plaintiff's access was restricted and that constituted a
continuing tort.

Does a right exist?

At common law the father was recognised as having a proprietorial right to the custody of his child which he could enforce by writ. Furthermore,
in 1660 by the statute 12 Cha 2, c 24, section 8, the father of a child or children under 21 and not married could by deed or testament "dispose
of the custody and tuition of such child or children . . . to any person or persons . . . other than Popish recusants." In Ex parte Edwards (1747)
3 Atk 519 Lord Hardwicke held:

"The statute of 12 Cha 2, c 24, section 8 confines the power of appointing a testamentary guardian to the father only, and therefore the
appointment by the mother, of a guardian in this case, is absolutely void . . ."

From the passing of the Guardianship of Infants Acts 1886 the mother's rights to her children received increasing recognition by statute. The
mother's rights, however, were based upon statute rather than the common law. It is, however, to the rights of the father that one must look
in order to identify any parental rights as such. As Mr Wright acknowledged, any rights of action enjoyed by the father were of a proprietorial
nature, eg the right recognised by the writs "per quod servitium amisit" in the case of children and "per quod servitium et consortium amisit" in
the case of a wife. The omission of "consortium" from the writ in the case of children is significant: see Hall v Hollander (1825) 4 B & C 660.

The need for interference with rights and, therefore, the existence of the rights themselves was recognised by Parliament as early as 1601 (see
the Poor Relief Act 1601 (42 Eliz 1, c 2)):

"Be it enacted . . . That the churchwardens of every parish and four, three and two substantial householders there, as shall be thought meet
having respect to the proportional greatness of the same parish and parishes to be nominated . . . shall be called overseers of the poor of the
same parish: and they, or the greater part of them, shall take order from time to time, by and with the consent of two or more such justices of
the peace, for setting to work the children of all such whose parents shall not by the said churchwardens and overseers . . . be thought able to
keep and maintain their children . . . V. And be it further enacted, that it shall be lawful for the said churchwardens . . . to bind any such
children . . . to be apprentices . . . (males up to age of 24 and females up to age 21 or marriage)."

That enactment made lawful what would otherwise be an unlawful interference with the father's right of service as regards his children.
Whether any significance can be attached to the use of "parents" rather than "father" is probably not relevant in the present context.
Interference in order to protect a child by taking it into care has been exercised since a statute passed in 1868, the Poor Law Amendment Act
1868 (31 & 32 Vict c 122).

The Children and Young Persons Act 1933 provided for the first time a specific power in the justices to make orders for the protection of
children. Section 44 emphasised that the interests of the children should override any rights to their custody enjoyed by the parents. The Act
of 1948 provided, however, that consistent with the welfare of the children the local authority should endeavour to cause their care to be
assumed by the parents or other appropriate relatives.

The common law recognised no right in the father greater than the power to control the religious upbringing, apprenticing and training of his
children and enjoy their services. There was no right to enjoy consortium as such: see the citation from the judgment of Cassels J in Lough v
Ward (1945) 173 LT 181, 183, set out in the judgment of Stuart-Smith LJ, post, pp 1172-1173. I gratefully adopt his references to Salmond on
Torts, 15th ed (1969), the effect of section 5 of the Law Reform (Miscellaneous Provisions) Act 1970 and section 2 of the Administration of
Justice Act 1982, and the conclusions which he draws from those provisions. However, those statutory provisions relate to remedies, not rights.
At common law there was certainly no remedy available against a third party who interfered with the natural parent and child relationship; but
does that necessarily mean that no right to that relationship existed?

Mr Wright relied on R v United Kingdom [1988] 2 FLR 445 to support his submission that the law recognised an inherent parental right in the
natural parent. In that case the local authority had passed a section 2 resolution and, having acquired parental rights, decided to terminate
access for the natural parent. There was no challenge to the validity of the resolution but the applicant contended that there had been
breaches in articles 8(1) and 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms. Article 8 of the convention
provides:

"(1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a
public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the
interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection
of health or morals, or for the protection of the rights and freedoms of others."

The applicant's case under article 8 was that the decision to terminate access was not subject to adequate remedies. The judgment contained
the following passages, at p 464:

"A. General principles

"65. The exercise of parental rights and the mutual enjoyment by parent and child of each other's company constitute fundamental elements of
family life. Furthermore, the natural family relationship is not terminated by reason of the fact that the child is taken into public care. It follows
-- and this was not contested by the Government -- that the authority's decisions resulting from the procedures at issue amounted to
interferences with the applicant's right to respect for her family life."

The facts of that case bear a striking resemblance to the present case. Initially the children were placed in voluntary care for a number of
discontinuous periods between 1980 and March 1981. In April 1981 the authority passed a parental rights resolution and placed the children with
short term foster parents. That was challenged by the applicant. The authority had decided that if the resolution was upheld they would
determine access and place the children for adoption with long term foster parents. The applicant was not told of that resolution and in
ignorance of it withdrew her opposition to the section 2 resolution. After she had withdrawn her opposition the applicant was told of the plan
and that she could no longer see her children, at p 467:

"72. (e) A request made by the applicant on 8 December 1981 for the discharge of the parental rights resolution was rejected by the juvenile
court on 6 April 1982 and her appeal to the High Court against that decision was dismissed on 17 November 1982. (f) Wardship proceedings
instituted by the applicant in January 1983 to obtain restoration of her access to A and J were unsuccessful. However, in April 1984, whilst an
application by the foster parents to adopt the children was pending, she again applied for wardship and, in October, the parental rights
resolution was rescinded by the authority. On 12 November 1984, the High Court confirmed the wardship and refused to dispense with the
applicant's consent to the adoption and, on 16 December 1985, it ordered arrangements to be made for her to have a measure of access to the
children."

The burden of the judgment was based on the right to be involved in the decision-making process both leading up to the adoption of the
section 2 resolution in April 1981 and the decision to move from short term fostering to long term fostering with no access, with a view to
adoption in August 1981, at pp 467-468:

"74. The foregoing reveals, in the opinion of the court, an insufficient involvement of the applicant in the authority's decision-making process.
The decisions of April and of August 1981 were crucial for the future of A and J, in that the former altered the whole basis of the relationship
between then, their mother and the authority and the latter could have been -- although events to date have proved otherwise -- a
stepping-stone on the road to the children's possible adoption. They were thus patently decisions in which the applicant should have been
closely involved if she was to be afforded the requisite consideration of her views and protection of her interests (see para 69 above). The
court discerns no reason -- and none has been advanced by the Government -- for not involving her more closely in the April 1981 decision.
Indeed, it notes that the Local Ombudsman concluded that there had been maladministration, having regard to the shortcomings in the way in
which the parental rights resolution was passed (see para 27 above). Somewhat different considerations apply to the decision of August 1981.
The applicant was at the time involved in the incident concerning the theft from the hospital safe, although she had been released on bail (see
para 21 above). Moreover, the decision was only contingent, in that it depended on the outcome of the applicant's challenge to the parental
rights resolution (see para 22 above)."

Article 6(1) of the Convention, so far as relevant, provides: "In the determination of his civil rights and obligations . . . everyone is entitled to a
. . . hearing . . . by (a) . . . tribunal." It is interesting that the case presented by those appearing for the United Kingdom including the following
submissions, at p 469:

"(b) The notion of parental 'rights' over children was outmoded; furthermore, according to dicta of English judges, the so-called 'right' of access
by a parent to his child was preferably described as a right in the child. (c) In any event, the said right was a 'rhetorical' and not a legal one.
(d) Even if there were such a parental right at the outset, it ceased to have a separate existence on the making of a care order or the passing
of a parental rights resolution: the effect of these measures was to transfer to the local authority, subject to limited exceptions, all the rights,
powers and duties of the parent with respect to the child. The mere possibility or expectation that the authority might, in its discretion,
subsequently allow the parent to have access to the child did not constitute a 'right.'"

These contentions were rejected by the court, at pp 469-470:

"The court is not, however, persuaded by the Government's argument that no 'right' of the aforementioned kind was at issue in the present
case.

"80. Underlying the Government's description of the notion of parental rights as outmoded was the view that those rights were derived from
parental duties and responsibilities and exist only so long as they are needed for the protection of the person or the property of the child. The
main thrust of this view seems to be not to deny the existence of parental rights but rather to stress that they are not absolute and may be
overriden if not exercised in accordance with the welfare of the child; indeed, the Act of 1948 and the Act of 1980 both refer expressly to
parental 'rights' and the Children Act 1975 even mentions specifically a parental 'right of access' (see para 44 above). Again, when the English
courts spoke of access as being a right in the child, they appear not to have been asserting the absence of any parental right of access
whatsoever, but to have been expressing the principle that in the event of a conflict between concurrent rights of parent and child it is the
welfare of the child which should be treated as the paramount consideration.

"81. In the normal and natural course parent and child will live together and no problem will arise as regards the parental right of access. It is on
the occurrence of some event that disturbs the ordinary pattern of family life by separating them -- for example, matrimonial proceedings or the
taking of a child into public care -- that parental entitlement to access will become an issue in practice. It is, therefore, more important to
focus on the position that obtains in English law in this respect once the relevant legislation has been brought into play."

Having come to the conclusion that the passing of the section 2 resolution did not destroy all parental rights to access or to apply to discharge
the resolution or withhold consent to adoption, the court considered its application to the facts of the case.

The question for this court to consider is the extent to which Mr Wright is entitled to rely upon the strong rejection by the European Court of
Human Rights of the United Kingdom case that decisions under the statutory code were administrative and not subject to control apart from
challenge by way of judicial review, and upon the general statements about the parent's rights of access to the child. The matter has recently
been reviewed by Lord Donaldson of Lymington MR in Reg v Secretary of State for the Home Department, Ex parte Brind [1990] 2 WLR 787. I
gratefully adopt what the Master of the Rolls said, at p 797:

"The European Convention for the Protection of Human Rights and Fundamental Freedoms

"There have been a number of cases in which the European Convention for the Protection of Human Rights and Fundamental Freedoms has been
introduced into the argument and has accordingly featured in the judgments. In most of them the reference has been fleeting and usually
consisted of an assertion, in which I would concur, that you have to look long and hard before you can detect any difference between the
English common law and the principles set out in the Convention, at least if the Convention is viewed through English judicial eyes. However, in
this case we are invited to grapple with the fundamental question of the effect of the Convention as distinct from any common law to the like
effect. Indeed, this was in the forefront of the argument of Mr Lester appearing for the applicants, and of the counter-argument of Mr Laws,
appearing for the Secretary of State. The Convention is contained in an international treaty to which the United Kingdom is a party and, by
article 1, binds its signatories to 'secure to everyone within their jurisdiction the rights and freedoms defined in section 1 of this Convention.'
The United Kingdom Government can give effect to this treaty obligation in more than one way. It could, for example, 'domesticate' or 'patriate'
the Convention itself, as has been done in the case of the treaties mentioned in the European Communities Act 1972, and there are many
well-informed supporters of this course. Their view has not, as yet, prevailed. If it had done so, the Convention would have been part of English
domestic law. Alternatively, it can review English common and statute law with a view to amending it, if and in so far as it is inconsistent with
the Convention, at the same time seeking to ensure that all new statute law is consistent with it. This is the course which has in fact been
adopted. Whether it has been wholly successful is a matter for the European Court of Human Rights in Strasbourg and not for the English
courts. By contrast, the duty of the English courts is to decide disputes in accordance with English domestic law as it is, and not as it would be
if full effect were given to this country's obligations under the Treaty, assuming that there is any difference between the two. It follows from
this that in most cases the English courts will be wholly unconcerned with the terms of the Convention. The sole exception is when the terms of
primary legislation are fairly capable of bearing two or more meanings and the court, in pursuance of its duty to apply domestic law, is
concerned to divine and define its true and only meaning. In that situation various prima facie rules of construction have to be applied, such as
that, in the absence of very clear words indicating the contrary, legislation is not retrospective or penal in effect. To these can be added, in
appropriate cases, a presumption that Parliament has legislated in a manner consistent, rather than inconsistent, with the United Kingdom's
treaty obligations."

It is necessary to go back to the English domestic law to identify the rights and remedies available to the plaintiff.

Anachronistic as it may seem, the common law recognised parental rights only in the father. Mr Wright was courteous enough to invite the
court "to move into modern times and concepts," but this attactive invitation has its limitations. To identify any right of access of the mother
one has to look to successive Acts of Parliament from 1886 onwards. That interference with the father's rights required legislation confirms the
existence of common law rights but does not assist in determining whether those were anything other than proprietorial rights. I do not find any
evidence of any rights other than those to which reference was made by Cassels J in Lough v Ward, 173 LT 181, by Professor Winfield in his
Textbook of the Law of Tort, 2nd ed (1943), and by the editor of Salmond on Torts, 15th ed, in the passages referred to in Cassels J's
judgment. That Parliament in 1886 found it necessary to pass the Guardianship of Infants Act 1886 (49 & 50 Vict c 27) to afford rights in the
children in favour of the mother indicates that no such rights existed previously. One must, therefore, look to the successive Acts of Parliament
in order to define any rights which the mother may have to enjoy access to her children. In the earlier part of this judgment I have necessarily
touched upon many of these, and I need not repeat them here.

Now that the claims based upon negligence and breach of duty are no longer live issues in the appeal, it is not necessary to say more than to
express my doubts that breaches of the statutory code relating to the welfare of children could give rise to a private right in the parent to claim
damages against the authority. Parliament has provided a complete structure of remedies and relied within the statutory code which is subject
to judicial review under RSC, Ord 53. I cannot see an argument succeeding that Parliament also intended such duties in their breach to give a
private right to claim damages. In any event, this does not assist Mr Wright in his contention that a tort of interference with parental rights
existed. Where sufficient remedies already exist within the statutory code common law will be very slow to recognise a parallel obligation in tort.


From the outset, in the earliest provisions to which I have already referred in this judgment, the whole concept of interference with the parental
rights, whether they were being exercised or not by the parent involved, had been the safeguard of the welfare of the children themselves. It
may well be that the true approach to the parental rights is properly to be viewed in this way, namely a right to take care of the welfare of the
child itself or to protect its property. Any interference with this right would not sound in damages in favour of the parent. Any right of action
and resulting remedy, if any, would be totally outside the scope of the present appeal. There has been at no stage any suggestion that the
course in fact adopted by Wirral was in any way not in the best interests of the children. The question to be considered here is whether there
is any ground upon which the parents, exercising a right to protect their parental rights, could claim damages in tort.

The question of so-call "parental rights" fell to be considered in a recent line of authorities: Gillick v West Norfolk and Wisbech Area Health
Authority [1986] AC 112; In re KD (A Minor) (Ward: Termination of Access) [1988] AC 806 and In re K (A Minor) (Ward: Care and Control)
[1990] 1 WLR 431. Although the question of parental rights was extensively canvassed in those cases, I do not find any support in them for Mr
Wright's proposition. The parental right recognised in those cases stems from the parental duty towards the child to care for and protect the
child and is subservient to the welfare of the child. It does not give any rights beyond this in favour of the parent qua parent upon which a right
of action in damages against an interfering stranger could be founded. In Gillick's case the question of parental rights was considered by Lord
Fraser of Tullybelton, at p 170:

"It was, I think, accepted both by Mrs Gillick and by the DHSS, and in any event I hold, that parental rights to control a child do not exist for
the benefit of the parent. They exist for the benefit of the child and they are justified only in so far as they enable the parent to perform his
duties towards the child, and towards other children in the family. If necessary, this proposition can be supported by reference to Blackstone
Commentaries, 17th ed (1830), vol 1, p 452, where the wrote 'The power of parents over their children is derived from . . . their duty.' The
proposition is also consistent with the provisions of section 1 of the Guardianship of Minors Act 1971 as follows: 'Where in any proceedings
before any court . . . (a) the custody or upbringing of a minor; . . . is in question, the court, in deciding that question, shall regard the welfare
of the minor as the first and paramount consideration, and shall not take into consideration whether from any other point of view the claim of
the father, or any right at common law possessed by the father, in respect of such custody, upbringing, administration or application is superior
to that of the mother, or the claim of the mother is superior to that of the father.' From the parents' right and duty of custody flows their right
and duty of control of the child, but the fact that custody is its origin throws but little light on the question of the legal extent of control at any
particular age. Counsel for Mrs Gillick placed some reliance on the Children Act 1975. Section 85(1) provides that in that Act expression 'the
parental rights and duties' means 'all the rights and duties which by law the mother and father have in relation to a legitimate child and his
property,' but the subsection does not define the extent of the rights and duties which by law the mother and father have."

And by Lord Scarman, at p 185:

"The two chapters [Blackstone's Commentaries, 17th ed (1830), vol 1, chs 16 and 17] provide a valuable insight into the principle and flexibility
of the common law. The principle is that parental right or power of control of the person and property of his child exists primarily to enable the
parent to discharge his duty of maintenance, protection, and education until he reaches such an age as to be able to look after himself and
make his own decisions. Blackstone does suggest that there was a further justification for parental right, viz as a recompense for the faithful
discharge of parental duty: but the right of the father to the exclusion of the mother and the reward element as one of the reasons for the
existence of the right have been swept away of the guardianship of minors legislation to which I have already referred. He also accepts that by
statute and by case law varying ages of discretion have been fixed for various purposes. But it is clear that this was done to achieve certainty
where it was considered necessary and in no way limits the principle that parental right endures only so long as it is needed for the protection
of the child."

In In re KD [1988] AC 806 the appellant contended that there was an inherent right in the natural parent to have access to his or her child. In
his speech, having referred to the speech of Lord MacDermott in J v C [1970] AC 668 and the judgment of the European Court of Human Rights
in R v United Kingdom [1988] 2 FLR 445 and other authorities, Lord Oliver of Aylmerton said, at pp 827-829:

"Mr Ward suggests that these cases display an erroneous approach and invites your Lordships to accept and pronounce that the starting point
in every case should be that a parent has a right of access which should be given effect to by the court and curtailed and inhibited only if the
court is satisfied that the exercise of the right will be positively inimical to the interests of the child. My Lords, for my part, I think that this is
an invitation which your Lordships should decline. I say this not solely because it is, as I think, out of line with an approach which has been
universally acted upon ever since the decision of your Lordships' House in J v C [1970] AC 668 but also because I believe the debate to be one
without content. It is, I suppose, possible to envisage circumstances in which, perhaps as a result of an accident, a child's consciousness of
the world about him might be such as to suggest that access to him by his parent could have no effect at all on him either for good or for ill.
But aside from such a case, where the question of access could hardly be a live issue in any event, I do not find it possible to conceive of any
circumstances which could occur in practice in which the paramount consideration of the welfare of the child would not indicate one way or the
other whether access should be had or should continue. Whatever the position of the parent may be as a matter of law -- and it matters not
whether he or she is described as having a 'right' in law or a 'claim' by the law of nature or as a matter of common sense -- it is perfectly clear
that any 'right' vested in him or her must yield to the dictates of the welfare of the child. If the child's welfare dictates that there be access, it
adds nothing to say that the parent has also a right to have it subject to considerations of the child's welfare. If the child's welfare dictates
that there should be no access, then it is equally fruitless to ask whether that is because there is no right to access or because the right is
overborne by considerations of the child's welfare. For my part, I think that the President's analysis in Hereford and Worcester County Council v
JAH [1985] FLR 530 places the emphasis perhaps too much upon the necessity of finding a positive benefit to the child from paternal access. As
a general proposition a natural parent has a claim to access to his or her child to which the court will pay regard and it would not I think be
appropriate to describe such a claim as a 'right. Equally, a normal assumption is, as Latey J observed [in] M v M (Child: Access) [1973] 2 All ER
81, that a child will benefit from continued contact with his natural parent. But both the 'right' and the assumption will always be displaced if
the interests of the child indicate otherwise and I find nothing in the decision in R v United Kingdom which suggests otherwise. Equally, on
examination of Lord MacDermott's reasoning in J v C [1970] AC 668 discloses that it was in fact based upon the recognition of the natural, or
'basic', right of parents over their children, for he quoted extensively and with approval from the judgment of FitzGibbon LJ in In re O'Hara
[1990] 2 IR 232, 240. FitzGibbon LJ had summarised the relevant principles the last of which was: '4. In exercising the jurisdiction to control or
to ignore the parental right the court must act cautiously, not as if it were a private person acting with regard to his own child, and acting in
opposition to the parent only when judicially satisfied that the welfare of the child requires that the parental right should be suspended or
superseded.' . . . I do not, for my part, therefore consider that there has been any material alteration of our jurisprudence in this area since J v
C [1980] AC 668 nor do I think that R v United Kingdom calls for any alteration in the basic approach in order to confirm with the Convention.
The difference, if there is a difference, as I think purely semantic for, as Ormrod LJ observed in the passage already quoted from his judgment in
A v C [1985] FLR 445, 455, the word 'right' is a highly confusing one. The approach remains the same, namely that the parental rights or claims
which undoubtedly exist and to which a proper regard must always be paid both by the court and by local authorities having the care of
children, are and must always be qualified by the consideration of what is best for the welfare of the child whom it is the court's duty to
protect."

In In re K (A Minor) (Ward: Care and Control) [1990] 1 WLR 431, 434F, having referred to the citation of the passages of FitzGibbon LJ in In re
O'Hara from the speech of Lord Oliver of Aylmerton, which I have just cited, Fox LJ continued:

"The judge properly directed himself as to the existence of that principle, but in my view he did not apply it. What he did was to apply a quite
different test. In effect he asked himself the question: who would provide a better home for R, the father or Mr and Mrs E? Thus the judge
sought to balance the consideration of normal family life in an exceptionally good home (which he concluded would be provided by Mr and Mrs E)
against the fostering of the natural relationship which existed between a father and son. He said a risk attached to the fostering of the natural
relationship with the father, and that it was possible R would not be likely to obtain the same high level of care which, he said, 'I am convinced
he would get from Mr and Mrs E.' That, in my view, was the wrong approach. The question was not where would R get the better home. The
question was: was it demonstrated that the welfare of the child positively demanded the displacement of the parental right. The word 'right' is
not really accurate in so far as it might connote something in the nature of a property right (which it is not) but it will serve for present
purposes. The 'right,' if there is one, is perhaps more that of the child."

I have come to the conclusion that neither under the old common law, apart from the action "per quod servitium amisit," nor under modern
authority is there a parental right necessary to found a cause of action against a stranger upon which the common law would grant a remedy in
damages. I will, however, proceed to consider whether even if such a right existed it would have afforded a cause of action to the plaintiff in
this case.

Under the statutory code the interference may be at the invitation of the parent or, if the circumstances warrant it, without the invitation and
against the wish of the parent but under the statutory powers. For the purpose of considering an action for damages for interference with a
parental right it would not appear to be relevant to consider the source from which the interfering local authority derived their justification for
that interference. In this case, for the first six weeks or so, the right in Wirral stemmed from the voluntary release by the plaintiff and the
father of their rights in favour of Wirral in the form of a consent to Wirral taking the children into voluntary care. After the passing of the
section 2 resolution the right in Wirral and Liverpool to interfere with the parental rights became a statutory right based upon the resolution
rather than upon the consent of the parents. The parents' right to challenge that assumption of the right to interfere lay within the statutory
code, a right the advantage of which they did not avail themselves. It is, however, clear that in either case the parents were not divested of all
their rights. That could only be done by the adoption process. They could, however, only assert those rights under the provisions of the
statutory code.

Whatever the source, as soon as the child is within the care of the local authority then it is subject to the rights granted to the local authority
to ensure the welfare of the child. Any failure on the part of the local authority to comply with the duties imposed upon them by the statutes
authorising the interference with the parental rights is subject to process under law provided by statute or common law to question the
decisions and actions of the authority. The presence of these avenues of relief negatives the existence of an independent cognate tort
covering the grounds already provided for relief by statute. On this basis, I would conclude that there is no substance in Mr Wright's submission
that the common law will provide a remedy merely because of the existence of a parental right. Prior to 1982 the common law provided a
remedy in the absence of interference by the local authority in the action per quod servitium amisit to which reference has already been made.
Once the child is within the provisions of the statutory code then, under the authority of A v Liverpool City Council [1982] AC 363, the parents'
remedies must be found within the provisions of that statutory code, or in appropriate cases by invoking the inherent jurisdiction of the High
Court as parens patriae.

The decision of the European Court of Human Rights in R v United Kingdom [1988] 2 FLR 445 already cited was essentially concerned with
whether the provision made by statute for the parent to be consulted and/or to challenge the actions of the local authority satisfied the
articles of the Convention. As the law presently stands, I see no reason to question the proposition that all the appropriate remedies would
have been available to the plaintiff in this case under the statutory code. If and in so far as the European Court of Human Rights may consider
that the process of review under Order 53 is, or the provisions of the statutory code under which the parent may challenge the decisions of the
authority are, in breach of article 8 or 6 of the Convention, that is not a matter for this court.

Conclusion

By way of summary I now turn to consider the applications under RSC, Ord 18, r 19. So far as can be distilled from the re-amended statement
of claim and the further and better particulars delivered from time to time, the causes of action disclosed seem to fall into the following
categories.

(1) As against Wirral, negligence and breaches of statutory duty

The basis of these claims is the alleged failure of those responsible to warn the parents that the children were to be placed with foster parents
with the possibility of long term fostering, contrary to the understanding reached between the parents and the officers on the staff of Wirral
when the children were placed in care under section 1 of the Act of 1948. There was an alternative claim the Wirral did not ensure that the
placement by Liverpool with Mr and Mrs D was a short term arrangement. In my judgment, there is some attraction in the proposition that in the
exercise of their functions under the statutory code officers of Wirral owed a duty of care properly to advise the natural parents as to both
their rights and the steps that were in fact being taken. For the reasons already given in this judgment, however, my view is that in carrying
out their functions those acting for the welfare services of the custodial authority are exercising an administrative function, any shortcoming in
the discharge of which would not give rise to a private right of action for damages. There is no reason for the creation of a special relationship
giving rise to a duty to take care of the Hedley Byrne type: Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465. The remedies, if any,
must lie in the field of public law. The claim was properly struck out under Ord 18, r 19(1)(a). In any event, as Mr Wright conceded, any breach
of duty under this category and the damages ensuing therefrom must have arisen before 19 February 1979. Any claim in respect of them would
be statute-barred and would also properly be struck out under Ord 18, r 19(1)(b).

(2) As against Liverpool, negligence in the performance of an agreement with Wirral to place the children in a short term fostering

In my judgment, there must be very considerable doubt whether in the circumstances Liverpool owed any duty of care to the parents at all.
The arrangement between the two authorities is imprecisely pleaded in the terms "the first defendants sought help from the Liverpool City
Council." It is not pleaded in contract, nor does the statement of claim lay any foundation in tort for the duty of care towards the parents in
negligence beyond a general knowledge of the parents' circumstances. This may or may not be sufficient to show a reasonable cause of action
within Ord 18, r 19(1)(a) but the claim must be vexatious so as to be struck out under Ord 18, r 19(1)(b) both because of the unchallenged
allegations in the defence that Liverpool were at all times acting as Wirral's agents and because of the operation of the statutes of limitation.

(3) As against both Wirral and Liverpool, that "both jointly and severally repeatedly from and after 23 March 1978 interfered with the plaintiff's
rights . . . as a parent . . ."

In my judgment, this claim shows no reasonable cause of action and should be struck out under Ord 18, r 19(1)(a). For the reasons already
given I am by no means convinced that in English law, since the Administration of Justice Act 1982 came into force, a parent has any right in
his natural child, interference with which would give rise to a cause of action. However, the matter does not end there. Before the date pleaded
as the starting point of the interference, 23 March 1978, the children had been in care with the consent of the parents. It is not pleaded that
that consent was obtained by misrepresentation or fraud on the part of Wirral. Therefore, no lawful interference by Wirral acting within their
powers under the Act of 1948 could in any event give rise to an action in tort even if such an action existed. There remains a short period
during which the children were placed with Mr and Mrs D in circumstances which were inconsistent with the "understanding" reached between
the parents and Wirral. If that was an interference which was "unlawful" because of that, it lasted almost exactly two calendar months only.
After that, by reason of the parental rights resolution, unchallenged by the parents, Wirral obtained wide powers to interfere between the
natural parents and the children which would, in my judgment, be inconsistent with any claim in tort for damages resulting from such
interference. Even if the plaintiff's claim was that her failure to oppose the resolution was owing to the failure of Wirral to inform her of the true
position, that would be defeated as from 19 February 1979 and would, therefore, be statute-barred as indicated under (1) above.

I have, for these reasons, come to the conclusion that the judge was entitled to strike out the statement of claim and I would, therefore,
dismiss the appeal.

JUDGMENTBY-2: RALPH GIBSON LJ

JUDGMENT-2:
RALPH GIBSON LJ: I agree that this appeal must be dismissed. My reasons are as follows.

Hollings J, after reviewing the submissions made for the parties, upheld the contention of Wirral and Liverpool that the allegations of negligence
and breach of statutory duty should be struck out on the ground that there was no duty of care owed by either defendants to the plaintiff. He
continued:

"The duty of a local authority is laid down by statute and that duty is plainly exclusively owed to the child. The statute provides for specific
remedies to parents. There is the remedy of judicial review for cases of abuse of power (not specifically alleged here though referred to in the
course of argument) . . . [Liverpool], in any event, cannot be in the position of owing a duty of care in the pleaded circumstances."

He also accepted the submission made on behalf of Liverpool by Mr Clarke that the damage claimed was not of a type for which the law will
provide compensation.

The judge also struck out the claim based upon interference with parental right. After reference to In re KD (Ward: Termination of Access)
[1988] AC 806 and passages in the speech of Lord Oliver of Aylmerton, he held that the right of claim of a parent to custody of, or access to, a
claim is limited by and subservient to the best interests of the child and cannot therefore found an action for the benefit of the parent. Further,
after reference to Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 and passages from the speeches of Lord Fraser of
Tullybelton and Lord Scarman he held, first, that any duty owed by a third party would be towards the child and would not be a duty to protect
any right in the parent; and, secondly, that the plaintiff had not shown what loss she had suffered as a result of any infringement of her rights.
The parent's "right" is, essentially, a right of protection in respect of the child and is not, in the view of the judge, a right the infraction of
which is capable of injuring or damaging the parent.

The judge further upheld the contentions that the plaintiff's action was an abuse of process because it was plainly statute-barred as against
each defendant. As against Wirral the writ was issued on 3 June 1985. If the cause of action arose before 3 June 1979 it would be barred under
the six-year limitation period. He held that the cause of action was complete by, at latest, 18 June 1978, when access was terminated. He
rejected an argument to the effect that the cause of action was not complete because the damage was continuing. He rejected what he called
"a very late application" to re-amend the reply to the defence of the defendants which pleaded the Limitation Act 1980, so as to include an
allegation that each defendant deliberately concealed from the plaintiff her cause of action: section 32 of the Act. As against Liverpool, they
were not added as party until 25 March 1987, and the "relevant date" was 25 March 1981. The cause of action against Liverpool, if any, had
also arisen, at latest, by 18 June 1978 and was also, therefore, clearly statute-barred. Leave to appeal was given by the judge "in so far as the
Limitation Act point is concerned."

The limitation issue was considered by the judge without apparent distinction between the two forms of claim. We were told that there was no
distinction drawn, in argument for the plaintiff before the judge, between the claim on negligence and breach of statutory duty and that based
upon wilful interference with parental right. As to negligence or breach of statutory duty, striking out in a case of this nature, on the ground
that the claim, if valid, was inevitably statute-barred, gives rise to theoretical difficulties. Some of the alleged duties of care are of a continuing
nature. Breaches of any such duty would not necessarily cause damage once and for all. On the plaintiff's argued case, as the long term
placement with Mr and Mrs D continued from day to day, and as she was allowed only restricted access to the children from month to month,
so the prospects of her recovering the children by order of the court, or with the consent of the local authority, were gradually diminished until,
by the order of Butler-Sloss J on 26 May 1983, they were extinguished. It is no doubt highly probable that after a period of time no further
breach of the alleged continuing duties was capable of doing any further damage to the plaintiff of the alleged kind but such questions of
causation would be difficult, if not impossible, to determine on the sort of material capable of being put before the court in proceedings of this
nature.

On the hearing of the appeal, however, Mr Wright conceded that, unless the plaintiff could succeed on her appeal against the judge's refusal to
leave to amend her reply to allege concealment, she could not succeed on her appeal on the issue of negligence. In other words, if her cause of
action in negligence existed, it was statute-barred unless she was given leave to amend to raise concealment. Breach of statutory duty was
not pursued as a separate basis of claim. The appeal on leave to amend was rejected in the course of the hearing and we therefore did not
hear full argument on the issue whether the plaintiff's claim in negligence was arguable. Mr Wright, on the issue of leave to amend, submitted
that the amendment in substance sought to raise only an issue of law under section 32(1) and (2) of the Limitation Act 1980 upon facts already
pleaded; and, on a hearing to strike out, the defendants could not be disadvantaged in any way by reference to the late raising of the point.
Subsection (1) provides:

"Where . . . (b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant . . . the period of
limitation shall not begin to run until the plaintiff has discovered the . . . concealment . . . or could with reasonable diligence have discovered
it."

Then by subsection (2):

"deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate
concealment of the facts involved in that breach of duty."

For my part, I joined without hesitation in the decision to uphold the judge's refusal of leave to amend. It seemed to me that, apart from the
apparent validity of the judge's exercise of discretion, no concealment on the part of Wirral or Liverpool could be held to have continued or to
have been undiscovered after February 1979, when the then policy of Wirral of not rehabilitating the children to the plaintiff was explained to
the plaintiff. Further consideration of the case as a whole, however, has led me to see that particular point as less conclusive than it first
appeared. The communication to the plaintiff certainly explained what the policy of Wirral would be but, arguably, did not clearly reveal the
facts which the plaintiff said constituted her cause of action, namely the events of March 1978, when the children were placed with Mr and Mrs
D as long term foster parents.

The pleadings, nevertheless, did not in fact already allege the substance of deliberate concealment. The statement of claim was first served on
3 June 1985, was re-served in amended form on 8 June 1987 and was amended again at the trial to allege wilful interference with right. It was
from the first alleged that the plaintiff was assured by Wirral, before the children were taken into voluntary care, that the children would be
placed with temporary foster parents in a temporary foster placement. It was also alleged that, because Wirral had no suitable foster parents in
their area, Wirral sought the help of Liverpool; that Liverpool placed the children with Mr and Mrs D on long term placement; and that named
social workers on behalf of Liverpool had the intention that the children should be adopted by Mr and Mrs D in due course and that Mr and Mrs D
had the wish and understanding that the children would become theirs legally in the course of time. By amendment in June 1987 it was alleged
further that the intention of Liverpool's social workers and Mr and Mrs D was thus in conflict with the intention of the plaintiff and with the
assurances given by Wirral to the plaintiff, and it was alleged that that conflict of intentions was not made known to the plaintiff either by
Wirral or by Liverpool. It was, however, never specifically alleged either that Wirral knew that the placement with Mr and Mrs D was long term or
that the social workers of Liverpool knew and deliberately ignored the assurances given by Wirral to the plaintiff. It was the Liverpool social
workers who were alleged to know of the wishes and intentions of Mr and Mrs D. Further, within a year of the children being placed with Mr and
Mrs D, the plaintiff was told in unmistakable terms of the policy and intention of Wirral, namely that rehabilitation to the plaintiff was not in the
best interests of the children.

The plaintiff was at that time already being advised by solicitors who were giving consideration to an application to the court for rescission of
the section 2 resolution. In May 1980 the plaintiff's solicitors obtained the services of an independent social worker, Mrs Timms, who carried out
on behalf of the plaintiff an investigation of the handling of the care of the children by Wirral and Liverpool. If there was any basis in the known
facts for inferring deliberate concealment, or the deliberate commission by Wirral or Liverpool or a breach of duty to the plaintiff as contrasted
with ordinary error or breach of duty, it is to be expected that it would have been apparent to the plaintiff's advisers at the time when the claim
was first pleaded. Even in the course of a striking out application, there is no principle of law, as I understand it, which requires the judge to
permit an amendment to be made because it is seen at a very late stage that a new allegation of fact is necessary if the claim is to be
sustained. Allowing such an amendment is a matter for the judge's discretion in all the circumstances of the case. Although the basic principle is
that an amendment should be allowed to enable the real issues between the parties to be decided, provided that no injustice would be done to
the other side which could not be adequately covered by costs, it seems to me now that the decision to refuse the proposed amendment put
forward for the first time in the course of the final speech for the plaintiff was a decision which the judge could properly make on the facts of
this case.

The consequence of excluding the amendment is that this court must decide the issue of wilful interference with parental right without first
having considered, as a matter for necessary decision, the related issue of negligence and breach of statutory duty in this context. It seems
necessary to me, however, to form a view whether the rejection by the judge of claim in negligence was in accordance with principle and
authority as part of the consideration of the alternative claim based upon wilful interference. If the law refuses to recognise a right to damages
for impairment of parental right caused by want of reasonable care on the part of a local authority in the exercise of its statutory functions with
reference to the care of children, it would, I think, be surprising if the law should, nevertheless, give a right to damages for such impairment
caused by an intentional and knowing interference with such right in the exercise of those statutory functions, in the absence of malicious
intent or bad faith. In my opinion, the decision of the judge was for the reasons which follow in accordance with principle and authority.

Mr Wright's submission to this court, set out in his written summary of argument in support of the validity in law of the claim in negligence, was
based upon a principle which he derived from cases including Donoghue v Stevenson [1932] AC 562; Hedley Byrne & Co Ltd v Heller & Partners
Ltd [1964] AC 465; Home Office v Dorset Yacht Co Ltd [1970] AC 1004 and Anns v Merton London Borough Council [1978] AC 728, and was to
the effect that, since on the facts alleged there was such a close relationship between the plaintiff and the defendants and the defendants
could reasonably foresee that careless action on their part would harm the plaintiff in her parental rights, the defendants were under a duty of
care towards the plaintiff. Mr Wright emphasised the uniquely important and close relationship between social workers on the one hand and
children in care and the parents of those children on the other hand, and he asserted that there was a public interest in requiring that the
parental rights of parents with reference to their children be protected.

I accept, of course, that there is such a public interest. The activity over recent years of law reform bodies, and of the legislature, with
reference to the statutory structure within which society tries both to promote the welfare of children and to give proper protection to the
rights and expectations of parents demonstrates the great importance which our society attaches to these matters. It does not, however,
follow that parental rights and expectations can or should be protected not only within and by the provisions of that statutory structure but
also by the existence of a cause of action in negligence or for breach of statutory duty for damages against the local authorities and their
social workers upon whom rights and duties are placed under that statutory structure. As to breach of statutory duty, it was not argued that
the statutory provisions provided any cause of action for damages to a parent of a child who claims to have been damaged with reference to
her parental right by breach of those provisions. As to negligence, in Caparo Industries Plc v Dickman [1990] 2 AC 605, 617H, Lord Bridge of
Harwich, with whose speech Lord Roskill and Lord Ackner agreed, after reference to Lord Wilberforce's speech in Anns and the comments made
upon it in Governors of Peabody Donation Fund v Sir Lindsay Parkinson & Co Ltd [1985] AC 210; Yuen Kun Yeu v Attorney-General of Hong Kong
[1988] AC 175; Rowling v Takaro Properties Ltd [1988] AC 473 and Hill v Chief Constable of West Yorkshire [1989] AC 53, continued:

"What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that
there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of
'proximity' or 'neighbourhood' and that the situation should be one in which the court considers it fair, just and reasonable that the law should
impose a duty of a given scope upon the one party for the benefit of the other. But it is implicit in the passages referred to that the concepts
of proximity and fairness embodied in these additional ingredients are not susceptible of any such precise definition as would be necessary to
give them utility as practical tests, but amount in effect to little more than convenient labels to attach to the features of different specific
situations which, on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise to a duty of care of a given
scope. Whilst recognising, of course, the importance of the underlying general principles common to the whole field of negligence, I think the
law has now moved in the direction of attaching greater significance to the more traditional categorisation of distinct and recognisable
situations as guides to the existence, the scope and the limits of the varied duties of care which the law imposes. We must now, I think,
recognise the wisdom of the words of Brennan J in the High Court of Australia in Sutherland Shire Council v Heyman (1985) 60 ALR 1, 43-44,
where he said: 'It is preferable, in my view, that the law should develop novel categories of negligence incrementally and by analogy with
established categories, rather than by a massive extension of a prima facie duty of care restrained only be indefinable "considerations which
ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed."'"

The common law has hitherto never recognised a cause of action in negligence against a defendant for breach of a duty to a parent to protect
or not to impair the right of a parent to the custody and company of his child. Negligent injury to a child gave a cause of action to a parent of
the child only for the special damage, if any, suffered by loss of the child's services. The damages recoverable did not include anything in
respect of injury to feelings. The negligent killing of a child gave no cause of action for the loss by a parent of the custody and delight in the
company of a child, nor for the grief and loss suffered. The rule in Baker v Bolton (1808) 1 Camp 493 provided that the death of a human being
could not be complained of as an injury in a civil court (see Clerk and Lindsell on Tort, 16th ed (1989), para 6-09), and the Fatal Accidents Acts
1846-1976 from the first enactment, were held to provide only for recovery of loss of pecuniary benefit caused by the death and not for grief or
loss of society: see the cases cited under section 3 of the Fatal Accidents Act 1976 in Halsbury's Statutes of England, 4th ed (1987), vol 31, p
208. A claim for damages for bereavement caused by the wrongful death of a child was first provided by section 1A of the Fatal Accidents Act
1976 (inserted by section 3(1) of the Administration of Justice Act 1982). The claim is for a fixed sum, currently £3,500, and thus the law does
not require or permit the court to value the nature and extent of the loss and grief suffered by a particular parent in respect of the child.

To establish the claim for loss of services caused by negligent injury to a child it was not necessary for the parent to prove that the defendant
at the time of the negligent act knew of the relationship of the child to the parent or of the rendering of services. The common law, in addition,
gave protection to a parent whose child was caused to leave or to remain away from the parent by the action of enticement and harbouring.
But the basis of that action also was proof of services rendered by the children to the parent which the parent had lost by the actions of the
defendant: see Lough v Ward, 173 LT 181. The basis of the action was criticised by Professor Winfield in his Textbook of the Law of Tort, 2nd
ed (1943), p 256, as "an unfortunate and vicious historical twist" which replaced the proper basis for such relief, namely (in the Professor's
view), "the outrage or injury to the parent as head of a family:" see per Cassels J in Lough v Ward, at p 183.

In the case of husband and wife, on the other hand, the common law gave to either, in the action of enticement, a cause of action based upon
the "well established legal principle that a violation of a legal right committed knowingly is a cause of action:" per Lord MacNaghten in Quinn v
Leathem [1901] AC 495, 510. A wife was entitled to enjoy the society, comfort and protection of her husband and to be maintained by him, and
if another enticed her husband from her, she was entitled to claim damages for the loss of those benefits as was a husband whose wife was, for
any reason save humanity, abducted or persuaded to leave his home. The reason was that there had been a conscious and wilful invasion of
her right: see per Lord Goddard in Best v Samuel Fox & Co Ltd [1952] AC 716, 730. In the case of physical injury negligently caused to the
husband, however, there was no right of action for a wife who suffered impairment of her right to her husband's consortium by the wrongful
injury to her husband which caused her husband to be sexually impotent: Best v Samuel Fox & Co Ltd.

These causes of action were seen as unwelcome remains from outmoded social ideas: see the law reform proposals in the reports of the Law
Reform Committee (1963) (Cmnd 2017), the Law Commission (Law Com No 25 of 1969 and No 56 of 1973), and the Pearson Report (1978)
(Cmnd 7054), cited by Clerk and Lindsell on Tort, 16th ed (1989), para 16-01. The Law Reform (Miscellaneous Provisions) Act 1970, by section
5, provided:

"No person shall be liable in tort under the law of England and Wales -- (a) to any other person on the ground only of his having induced the
wife or husband of that other person to leave or remain apart from the other spouse; (b) to a parent (or person standing in the place of a
parent) on the ground only of his having deprived the parent (or other person) of the services of his or her child by raping, seducing or enticing
that child; or (c) to any other person for harbouring the wife or child of that other person, except in the case of a cause of action accruing
before this Act comes into force if an action in respect thereof has been begun before this Act comes into force."

By the Administration of Justice Act 1982 the process was completed:

"Abolition of actions for loss of services etc

"2. No person shall be liable in tort under the law of England and Wales . . . (a) to a husband on the ground only of his having deprived him of
the services or society of his wife; (b) to a parent (or person standing in the place of a parent) on the ground only of his having deprived him of
the services of a child; . . ."

It is sufficient to note that, whereas the abolition, in the case of a child, effected by the Act of 1970 was limited to loss of services caused by
raping or seducing or enticing the child, the Act of 1982 provided that no person should be liable in tort to a parent on the ground only of his
having deprived him of the services of a child.

Against this background it would, in my judgment, be impossible to hold that the common law affords to a parent a cause of action in negligence
against a local authority founded upon the failure by social workers to protect or avoid injuring a parent's right to, or expectation of, enjoying
the company and presence of her child. During the years over which the common law developed the cause of action by which a parent's right to
the services of a child was protected, the presence and society of a child were, I believe, of as much importance to a parent, and were
regarded as so being, as they are today. But the law gave no cause of action for damages merely for the loss from the parents' home of a child.
No doubt it was thought that if a child was taken from a parent then the parent could claim to recover the child. If the law held that the parent
could under the law not recover the child, then the parent had no cause of complaint. The number of persons, however, likely to take, or be
able in law to justify the keeping of, a child against the will of a parent was necessarily small. Most often the person taking the child was
probably the parent's spouse and, apart from the modification effected by the Married Women's Property Act 1882 (45 & 46 Vict c 75), the law
did not recognise actions of tort between husband and wife until the Law Reform (Husband and Wife) Act 1962, itself a reform prompted, in
probability, mainly to enable one spouse to recover from the other damages or personal injury caused in motor accidents. It can, therefore, be
argued that the absence in the common law of a cause of action in negligence for a parent against a defendant who destroys or impairs a
parent's right to the company of a child is the result of different social and legal circumstances in which a cause of action did not seem
necessary or appropriate for the protection of a parent's rights.

Over the years of the century there have been great changes worked by statute. The law of parent and child has become complex; it has
acknowledged the legal position of the mother; the welfare of children has become a major concern of public policy transcending the "rights" of
individual parents; and public agencies have been given extensive powers and duties to look after the welfare of children: see Cretney,
Principles of Family Law, 4th ed (1984), ch 10, pp 287 et seq. There are, in short, many more persons with the capacity to cause, or at least to
set in operation, the use by public bodies of legal powers by which a parent may through misfortune lose his child. It can therefore be
suggested that there is now good reason, although there once was not, for the common law to recognise or develop a cause of action in
negligence for the protection of parental right.

There is, I think, force in this argument but it would not, in my view, prevail. I can see no sufficient reason for the court now to create, or
declare the existence of, a new right which has not been recognised before and would, I think, adversely affect the discharge of their duties by
those given the task of caring for children as social workers in the employment of a local authority. Their task is to have regard primarily to the
welfare of the child, while taking account of the aims and expectations of the parents. Those social workers, and those who supervise their
work, should not be required to consider whether the decisions which they make might be put forward as the basis of claims for damages on the
ground of breach of some duty of care to the parent of the child. The law provides machinery for the control by the court of the exercise of the
statutory powers of local authorities. The remedy of judicial review is also available. The remedy of an award of damages for loss of parental
right caused by breach of a duty of care, with the difficulty in any particular case of assessing how serious the loss was for the particular
parent, and how successful or stressful would have been the care of the child by the particular parent if the child had not been lost to her,
would, as it seems to me, be difficult to apply and would be seen by many as offensive and inappropriate. Support for the view that it would not
be just and reasonable for the law to provide a remedy in damages for negligence in this context is provided, in my opinion, by the decision of
this court in Jones v Department of Employment [1989] QB 1.

Finally, if there should be deliberate injury to a parent with reference to care or custody of her child, whether by deceit or by misfeasance in
public office, it would not follow that, because there is no cause of action in negligence for loss of parental right, damages could not be
recovered for such deliberate injury and its consequences. For these reasons, I approach the alternative case put forward by the plaintiff,
which is based upon unlawful interference with parental right, upon the basis that the law gives no remedy for damage in respect of such right
caused by negligence on the part of a local authority.

Interference with parental rights

It appears that, at the hearing before the judge, the argument was limited within the bounds indicated by the grounds of decision of the judge,
ie that the nature of parental right was such that the tort of interference with right was not open to a parent. In this court, the area of
argument was widened by the court. Reference was made to the history of the cause of action at common law in respect of violation of
parental right and the question was raised whether it could be open to the court, having regard to the abolition by Parliament of the cause of
action recognised by the common law, to develop a new cause of action for protection of parental right or whether such task must be left to
Parliament. The submissions for Wirral and Liverpool were that the tort cannot properly be held to exist in relation to parental rights which, being
subordinate to the interests of the child, were of a nature different from rights such as those arising under contract. Reliance was placed upon
the speeches in In re KD (A Minor) (Ward: Termination of Access) [1988] AC 806 and Gillick v West Norfolk and Wisbech Area Health Authority
[1986] AC 112.

The starting point for consideration of these submissions must be that the principle upon which this tort is based is one of the essential
principles of our law. If the law secures to a person a particular right, then the law should give a remedy for any intentional and unjustifiable
violation of that right unless there is some clear and compelling reason for denying a remedy. Before proceeding further, however, it is
necessary to state what the nature of the violation of the right must be for the principle to be applicable in accordance with the decided cases.
An essential element of the tort is the knowing or intentional invasion of the right with damage thereby caused. Thus, in Quinn v Leathem
[1901] AC 495, 510, Lord MacNaghten, in holding that Lumley v Gye, 2 E & B 216 was right decided, emphasised that the gist of the action was
not malicious intention but violation of a legal right committed knowingly.

The elements of the tort are of importance in considering the applicability of it to parental rights. Given that malicious intention directed at the
parent is not required -- and, of course, none is alleged by the plaintiff -- the tort may be established upon proof that the defendant knows of
the existence of the right and, in that knowledge, does an act which will impair or destroy the right. In the case of a lawful contract, in the
absence of any extraordinary power such as under statute, only the party who is entitled to the rights under the contract can release those
rights or modify them. In most circumstances, there can be no justification for intentional interference with the right, and justification must be
special, such as the demands of humanity with reference to the harbouring of an absent wife. In the case of parental rights, however, where a
local authority is performing statutory duties laid upon it with reference to the care of children, acts done in good faith for the welfare of a child
may well interfere with the privilege or right of a parent to the society of his child, or to access to the child, and would normally be done with
knowledge of the parent's rights and of the fact that the action, in limiting or determining access, or in sanctioning the fostering of the child
with particular foster parents, will or may have the effect of interfering with that right. The effect of allowing the applicability of this tort in this
context would be that, in any case, in addition to both the statutory procedures for review of the major decisions by local authorities, with
appeals, and the procedure of judicial review, a parent could, in effect, require a local authority to justify its decisions on the merits in civil
proceedings brought by the parent for damages for impairment of his parental right. That, in my judgment, would be a surprising combination of
systems to have been intentionally established by Parliament. Is it, then, clear that the principle cannot be applied to parental right and,
moreover, clear beyond argument so that the case is appropriate for decision by striking out?

Nothing in the prior formulations of the principle indicates expressly that it could not be applied to parental right. The principle has been
expressed in terms of general applicability: see per Lord MacNaghten in Quinn v Leathem [1901] AC 495. In a different context, in Place v Searle
[1932] 2 KB 497, a husband claimed damages against the defendant for enticing away his wife. Scrutton LJ explained the basis of the action by
the husband for damages for loss of consortium, at p 513:

"The power to enforce by order money payments and the fact that it is a matrimonial offence to desert, however that term may be defined,
rest upon existing rights of consortium, both in the husband and wife. There being such a right it follows, and it has been so decided in
numerous cases, that any person who, without justification, interferes with that right is liable to an action in tort."

As already stated above, of course the action for loss of consortium was abolished by section 5 of the Law Reform (Miscellaneous Provisions)
Act 1970 and section 2 of the Administration of Justice Act 1982. The inapplicability of this tort to parental right must, in my judgment, be
found not in the formulation of the principle in the decided cases but in the nature of parental right itself and the legal context in which that
right has been established.

Next, for my part, I am not persuaded that any part of the grounds of decision in Gillick's case [1986] AC 112 or In re KD [1988] AC 806
demonstrates that parental right under the law of this country is such that it could not found an action by a parent for knowing violation of that
right. Gillick's case was concerned with the conflict between the asserted parental right of control over a minor child and the right and capacity
of a child to seek and to receive medical advice and treatment. The ruling which is relevant for the present argument was that a girl under the
age of 16 had the legal capacity to consent to medical examination and treatment, including contraceptive treatment, if she had sufficient
maturity and intelligence to understand the nature and implications of the proposed treatment. It was held, and indeed was not in dispute, that
"parental rights to control a child do not exist for the benefit of the parent:" per Lord Fraser, at p 170D, expressly approving the words of Lord
Denning MR in Hewer v Bryant [1970] 1 QB 357, 369, where he described parental right as

"a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is. It starts with a right
of control and ends with little more than advice."

Lord Scarman said, at pp 183-184:

"Parental rights clearly do exist, and they do not wholly disappear until the age of majority . . . The principle of the law . . . is that parental
rights are derived from parental duty and exist only so long as they are needed for the protection of the person and property of the child."

Nothing in the speeches of the House of Lords demonstrates, in my view, that the giving of a remedy by the law for the intentional invasion of
legal right should not extend to such right as a parent has to claim the care, control and society of her child. The House of Lords did not have
this question under consideration.

For Wirral, it was submitted that there is no such thing as a parental right to custody or access but only a privilege or claim which is subject
always to the overriding paramount consideration of the welfare of the child. Reliance was placed upon passages in the speech of Lord Oliver in
In re KD [1988] AC 806. The context in that case was a conflict between the right or claim of a parent to access and the best interests of the
child as determined by the court. After reference to the decision of the European Court of Human Rights in R v United Kingdom [1988] 2 FLR
445, Lord Oliver said, at p 824B, that the importance of that case in the context of that appeal was that the European Court of Human Rights
"clearly recognised that a parent has a substantive right of access to his child," although Lord Oliver did not read the case as "throwing any
doubt upon the proposition that it is a right which will always be overborne if the interests of the child so dictate." Lord Oliver continued:

". . . I do not, for my part, discern any conflict between the propositions laid down by your Lordships' House in J v C [1970] AC 668 and the
pronouncement of the European Court of Human Rights in relation to the natural parent's right of access to her child. Such conflict as exists, is,
I think, semantic only and lies only in differing ways of giving expression to the single common concept that the natural bond and relationship
between parent and child gives rise to universally recognised norms which ought not to be gratuitously interfered with and which, if interfered
with at all, ought to be so only if the welfare of the child dictates it."

The fact that parental right is not absolute, and must yield to the welfare of the child, or to the right of a child of sufficient understanding, and
that the basis of parental rights is in parental duty, does not, by itself, require denial to a parent of relief in law if that right is wrongly violated.
A right or privilege circumscribed by many limitations is not, by reason of the limitations, necessarily rendered incapable of protection by the law
where the violation is not caused or justified by any of those limitations.

Although the ruling of the European Court of Human Rights in R v United Kingdom [1988] 2 FLR 445 is of assistance to Mr Wright's argument for
the plaintiff, it is not in my judgment decisive. The breach of article 8 of the European Convention which was there found to have been
established was caused by what was held to have been a failure to involve the parent as claimant in the process of decision-making to a degree
sufficient to provide the requisite protection of her interests. The substantial merits of the decision of the local authority with reference to the
assumption of parental rights and determination of access were not under consideration. As to article 6, the question was whether there had
been a breach of the claimant's right "to a . . . hearing . . . by a . . . tribunal" in the determination of her "civil rights and obligations." The ruling
of the court was that parental right in English law was such as to constitute a "civil right" for the purposes of article 6 and that, arguably, even
after the adoption of a parental rights resolution by the local authority, the claimant could claim a "right" in regard to her access to the children.
The ruling itself, coupled with the view expressed by the House of Lords in In re KD [1988] AC 806 that there is no conflict between the
propositions laid down by the House of Lords in J v C [1970] AC 668 and the pronouncements of the European Court of Human Rights in relation
to the natural parent's rights of access to her child (per Lord Oliver [1988] AC 806, 825A), does not in my view establish that in the law of this
country a parent has a cause of action for damages in tort for interference with parental right.

The existence of any other form of protection for parental right is relevant to the decision whether the law is to be held to provide the remedy
of a cause of action in tort for knowing interference with the right. In this case the alleged wrongdoers are public authorities. Everything that
was done by Wirral or Liverpool was done in furtherance of the statutory duties of Wirral under section 8(1) to (4) and section 12 of the
Children Act 1948 and sections 1, 2 and 18 of the Child Care Act 1980. If a local authority, by the acts of its agents, uses a statutory right so
as to impair or interfere with parental right and thereby causes damage, the injured parent could, as it seems to me, base a claim to damage on
the tort of misfeasance in public office if it were proved that the act complained of was done with malice toward the claimant or with knowledge
that the local authority had no lawful power to do that which was done and which caused the damage: see Bourgoin SA v Ministry of
Agriculture, Fisheries and Food [1986] QB 716. Further, a cause of action based upon fraudulent misrepresentation or deceit would not, I think,
be rendered unsustainable because the damage caused consisted of the destruction or impairment of parental right.

The structure of the general law and the particular statutes within which Wirral and Liverpool acted provides machinery for examination by the
courts of the acts of local authorities and for the protection of the rights of parents. The statutory duties requires Wirral, and any local
authority acting under them, to be governed at all times by reference to the welfare of the children. It is not necessary to set out a detailed
description of