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(Queen's Bench Division; Mackay J; 24 June 2009)
False allegations of sexual abuse against a father featured in both contact and care proceedings concerning a young child. Only after 5 years were the allegations finally rejected conclusively by the court. The final judgment in the care proceedings made significant criticisms of the social worker and police officer who had conducted the interviews of the 3-year old child. The father sought damages from the social worker and police officer, originally alleging negligence and vicarious liability on the part of the police and local authority; these proceedings took 11 years to come to trial. Eventually the negligence and vicarious liability claims were struck out, but the father was allowed to proceed with his claim for misfeasance in public office and/or conspiracy. A question arose at the hearing as to whether the father could rely upon the two judgments given in the care proceedings as evidence finally determinative of the facts stated within them, with particular reference to the comments made by the care judge about the social worker and police officer.
The care judge's central finding, which was that there had been no sexual abuse, was not at issue, but permission to rely upon the judgments in any other respect was refused: the comments made by the care judge concerning the conduct of the social worker and the police officer had not been a necessary part of the care judge's decision. The judge had not been asked to make a definitive judgment about whether the social worker and police officer had been professionally negligent and neither had been represented or been put on notice of the allegations within the care proceedings. While the interviews of the 3 year old child conducted by the social worker and the police officer had been very seriously flawed, not least because of the active participation of the mother, there had been no misfeasance or conspiracy: the essential ingredient of bad faith had not been established. Neither the social worker nor the police officer had believed that they were acting beyond their powers, nor had they at any stage been subjectively reckless, knowing that there was a serious risk that their actions would cause the father to suffer loss, but choosing to ignore that risk and to carry on. They had made a bad misjudgment, but it was sadly in the nature of risk assessment, which this process had been, in effect, that errors in both directions would be made.
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