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Children v. Parents: A New Tort Duty-Situation for Psychiatric Injury?

Published online by Cambridge University Press:  04 July 2014

Susan Maidment Kershner
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Summary

Recognition of liability in negligence for personal injury, whether physical or psychiatric, is a question of public policy par excellence. In English tort law, public policy is a transparent judicial requirement in fixing liability even when negligence is established otherwise. In considering the tortious liability of a local authority to children in its care, the English House of Lords has, in obiter dicta, raised doubts as a matter of public policy concerning the enforceability of claims for damages by children against a parent for emotional neglect causing psychiatric injury. In Israel, by contrast, the Supreme Court recently extended tortious liability by enforcing the parental duty of care to children through a claim for psychiatric injury. So far Israeli law is unique in this development. Variations in judicial policy concerning the recognition of claims by children for psychiatric injury are considered here, in the contexts of English tort law, and Israeli, US and European human rights law.

Type
Articles
Information
Israel Law Review , Volume 35 , Issue 1 , Spring 2001 , pp. 79 - 117
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2001

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References

1 Page v. Smith [1996] AC 155, HL; recently confirmed in Hatton v. Sutherland [2002] EWCA Civ 76, [2002] 2 All ER 1, CA.

2 This is the so-called “third test” in the leading case of Caparo Industries plc v. Dickman [1990] 2 AC 605, [1990] 2 WLR 358, [1990] 1 All ER 568, HL; and see infra, text at n. 60.

3 It was raised theoretically as long ago as 1983 by Freeman, M.D.A., The Rights and Wrongs of Children (Frances Pinter, 1983) 48Google Scholar.

4 [1999] 2 FLR 426 at 461, hereafter referred to as “Barrett”.

5 Supra n. 4.

6 May 16, 1999, Israel Supreme Court Judgments (in Hebrew) 99(3), Case. No 2034/98, hereafter referred to as “Amin”.

7 Supra n. 4, at 446

8 Supra n. 6.

9 Ha'Aretz Magazine (in English), February 8, 2002.

10 Case no. 1016/98; Jerusalem Post (in English), March 20, 1998.

11 See infra for a full discussion text at n. 78.

12 The children's lawyer reportedly considered that the relatively low award reflected the fact that the father was personally liable to pay, and obviously did not have the backing of insurance. To the father, however, the damages were heavy. And see discussion, infra, text at n. 79.

13 This is similar to the liability referred to by Lord Slynn of Hadley in Barrett, n. 4 above; it does not address the issue of psychiatric injury, however, but only physical injury. See discussion infra, text at n. 41.

14 [1978] 284 Ore.705; discussed more fully infra.

15 Supra n. 6.

16 Capacity and Guardianship Law 1962 (16 L.S.I. 106) section 15: “The guardianship of the parents shall include the duty and the right to take care of the needs of the minor, including his education, studies, vocational and occupational training and work, and to preserve, manage and develop his property; it shall also include the right to the custody of the minor, to determine his place of residence and the authority to act on his behalf”; and section 17: “In the exercise of their guardianship, the parents shall act in the best interests of the minor in such manner as a devoted parent would act in the circumstances”.

17 Is this the test of the “reasonable parent”? See below text at n. 114 for further discussion.

18 Supra n. 6.

19 [1995] 1 FLR 862, [1995] 3 FCR 648, CA; and see text at n. 42.

20 Supra n. 14.

21 Ibid.

22 There is also reference to common law abandonment and desertion, and the common law tort of alienation of affections which had recently been abolished by statute. Oregon Laws 1975, ch. 562, § 1.

23 A very similar discussion took place in the House of Lords in Barrett, supra n. 4; and see discussion in text at n. 54.

24 (1978) 46 Fordham L. Rev. 669.

25 These ideas have been explored in England also, and form the basis for the analysis of parental rights in Gillick v. West Norfolk and Wisbech Area Health Authority [1985] AC 112 at 185, [1985] 3 All ER 402 at 421; see discussion in text at n. 125.

26 Supra n. 6.

27 Supra n. 14.

28 Supra n. 6.

29 For example, Clarke Hall & Morrison on Children, (Butterworths, Looseleaf Edition, Issue 46, 2000)Google Scholar, contains a section headed, “What parental responsibility comprises” followed by a list.

30 Butterworths Family Law Service, Division 3A Children [759], 2000.

31 Children Act 1989, section 1(1) of which is the paramount principle in English children's law.

32 Supra n. 14.

33 Supra n. 6.

34 The procedural requirements are set out fully in the Family Proceedings Rules, Rules 4.16, 9.2 and 9.2A.

35 E.g. Re C (Residence: Child's Application for Leave) [1995] 1 FLR 927, FD.

36 The Times, 21 December 1999 (news item).

37 623 So. 2d 780; 1993 Fla. App; see also Time Magazine 1 May 2000.

38 Time Magazine, ibid.

39 Supra n. 37.

40 Supra n. 14.

41 [1994] 2 FCR 634.

42 Supra n. 19.

43 [1993] AC 498.

44 [1997] 1 FLR 105, ECtHR.

45 Supra n. 43.

46 Supra n. 41.

47 Supra n. 43.

48 [1998] QB 367, [1997] 2 FLR 167.

49 Supra n. 43.

50 The same issue was addressed in (2000) 20 Legal Studies, no. 1, pointing out that English law has generally only recognised damages for mental distress (as opposed to “nervous shock/psychiatric harm”) consequential to physical injury.

51 Supra n. 6.

52 Supra n. 14.

53 [1995] 2 AC 633, [1995] 3 WLR 152, [1995] 3 All ER 353, [1995] 2 FLR 276, HL; hereafter referred to as “X”.

54 [1996] AC 923 at 952-953 quoting Stovin v. Wise [1990] 2 AC 605, [1990] 2 WLR 358, [1990] 1 All ER 568, HL. And see discussion in text, supra at n. 23, and the discussion of implied statutory torts in Burnette v. Wahl, discussed by Caroline Forell in (1998) 77 Oregon Law Review 497.

55 See, e.g., Street on Torts, 10th ed. (Butterworths, 1999)Google Scholar.

56 Supra n. 4.

57 Ibid.

58 Supra n. 53.

59 This may be because parents are not statutory bodies created by statute, as are local authorities.

60 [1990] 2 AC 605; [1990] 2 WLR 358, [1990] 1 All ER 568, HL.

61 Supra n. 4.

62 Supra n. 53.

63 Supra n. 4.

64 Supra n. 14.

65 Supra n. 48.

66 [1997] 2 FLR 167 at 174-75; cited with approval by Judge LJ in W v. Essex County Council [1998] 2 FCR 269 (a claim by children of foster-parents against the local authority for having placed foster-children where there was a history of sexual abuse); and by Lord Slynn of Hadley in the House of Lords in Barrett, supra n. 4.

67 The same approach was taken by the Court of Appeal in the very similar case of H v. Norfolk County Council [1997] 1 FLR 384, [1997] 2 FCR 334.

68 Supra n. 4.

69 [1999] 1 FLR 193, ECHR.

70 Supra n. 4.

71 He was later vindicated when his approach was accepted as legitimate by the ECtHR in Z v. United Kingdom [2001] 2 FLR 246, ECHR.

72 Supra n. 4, at 446.

73 Supra n. 4, at 461-62.

74 The problem this article deals with is, of course, exactly the opposite – that is, a family which has broken down because of the parent's conduct.

75 Supra n. 4, at 461.

76 Supra n. 4, at 446.

77 As in Carmarthenshire County Council v. Lewis [1955] AC549 at 561, which established the liability of parents and others having charge of a child for allowing the child on a busy road unaccompanied.

78 Supra n. 6.

79 Forell, Caroline, “Statutory Torts, Statutory Duty Actions, and Negligence Per Se: What's the Difference” (1998) 77 Oregon Law Review 497Google Scholar.

80 Supra n. 4.

81 Lord Justice Simon Brown in H v. Norfolk County Council [1997] 2 FCR 335.

82 Supra n. 60.

83 Supra n. 4.

84 Quoting Browne-Wilkinson V-C in Surtees v. Kingston-Upon-Thames Borough Council [1991] 2 FLR 559, 583F.

85 Expressed by Lord Browne-Wilkinson in X, supra n. 53.

86 Ibid.

87 Supra n. 6.

88 Z v. United Kingdom [2001] 2 FCR 246, ECtHR; and see discussion in text, supra at n. 71.

89 Supra n. 4; see, e.g., Lord Hutton, at 463.

90 In force October 2, 2000.

91 E.g. Johnston v. Ireland (1986) 9 EHRR 203: The child of an unmarried couple could not be legitimated because of the absence of divorce (then) under Irish law so that a child's parents could not marry; the child's position was held to be in breach of article 8 – respect for family life. See Costello-Roberts v. United Kingdom(1993) 19 EHRR 112, [1994] 1 FCR 65; A v. United Kingdom (1998) 27 EHRR 611, [1998] 2 FCR 596.

92 Supra n. 88.

93 (1998) 27 EHRR 611, [1998] 2 FCR 596.

94 (1993) 19 EHRR 112, [1994] 1 FCR.

95 Supra n. 6.

96 Supra n. 88; see also TP and KM v. United Kingdom [2001] 2 FCR 289, ECtHR.

97 Supra n. 53.

98 See, e.g., Wadham, and Mountfield, , Human Rights Act 1998 (Blackstone, 1999) 91–98Google Scholar.

99 (1992) 16 EHRR 97; see Wadham and Mountfield, supra n. 98, at 92.

100 (1985) 8 EHRR 235; see Wadham and Mountfield, ibid.

101 (1994) 19 EHRR 263.

102 (1979) 2 EHRR 305.

103 Supra n. 94.

104 Supra n. 88.

105 Supra nn. 4 and 70.

106 Supra n. 69.

107 Supra n. 4.

108 Supra n. 88.

109 Supra n. 69.

110 In Osman immunity was given to the police in the conduct of their statutory duty of investigating crime.

111 Supra n. 88.

112 Ibid.

113 Ibid.

114 Re F (Children) (Adoption: Freeing Order) [2000] 3 FCR 337 – a case concerning the test of the “reasonable parent” for purposes of dispensing with parental agreement in adoption applications.

115 Under section 6(1) of the Human Rights Act 1998, English courts are now required to apply European human rights in all cases, whether between the state and the individual, or between individuals.

116 As interpreted in Z v. United Kingdom, see supra n. 88.

117 Twyman v. Twyman 855 S.W. 2d 619 (Tex. 1993); discussed in Orsinger, R., “Asserting Claims for Intentionally or Recklessly Causing Severe Emotional Distress in Connection with Divorce” (1994) 25 St. Mary's L. J. 1254Google Scholar.

118 12 December 1989; for example Article 9 (3): “States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests”.

119 See text at n. 30.

120 See Orsinger, R., “Asserting Claims for Intentionally or Recklessly Causing Severe Emotional Distress in Connection with Divorce” (1994) 25 St. Mary's L. J. 1254Google Scholar; but the intentional tort of alienation of affection was abolished by the legislature in 1987. Apparently in Missouri such a claim of intentional infliction of emotional distress by alienation of the affections of a child was rejected.

121 Lord Justice Simon Brown in H v. Norfolk County Council [1997] 2 FCR 334 at 339.

122 Freeman, M.D.A., The Rights and Wrongs of Children (Frances Pinter, 1983) 49Google Scholar. The debate there is rather about the child's (as opposed to the parents') right to seek contraception and abortion, but the points are equally valid to the subject under consideration here.

123 Ibid., at 51-52.

124 Of “liberty, health and opportunity”.

125 [1986] AC 112, [1985] 3 All ER 402, HL per Lord Fraser of Tullybelton; and see Barton, C. and Douglas, G., Law and Parenthood (Butterworths, 1995) 22–28Google Scholar, for discussion of the concept of parents as “trustees”, i.e., parent's rights as being held on trust for the welfare of their children.

126 Children Act 1989, section 2(1).

127 [1955] 2 AC 633; and approved by Lord Slynn of Hadley in Barrett, supra n. 4.

128 Supra n. 4.

129 Quoting Browne-Wilkinson, V-C in Surtees v. Kingston-Upon-Thames Borough Council [1991] 2 FLR 559, 583F.

130 Supra n. 53.

131 Supra n. 6.

132 Supra n. 14.