Court Success: Landmark court ruling on children at risk of abuse
- The Court of Appeal handed down the long awaited judgment on CN & GN v Poole BC
- The court has clarified the duty of care owed to vulnerable children pre-care order
- Whilst this judgment will come as welcome respite for the Local Authority Social Services Departments, it is important to highlight that there remains circumstances where the Social Service may be held liable for their actions
On December 21st 2017, the Court of Appeal handed down its judgment in CN & GN v Poole Borough Council.
Whilst this is a decision of considerable legal significance it must not be forgotten that underlying it is a human tragedy with deeply concerning circumstances. Nothing that follows is intended to detract from those facts.
In 2006 Mrs N and her two sons CN and GN, then aged nine and seven, were living in Poole. Over the ensuing years, the family suffered from the effects of anti-social behaviour at the hands of members of a neighbouring family. This behaviour was frequently reported to officers of the council, local police and to Poole Housing Partnership. The family viewed the response of the various agencies as inadequate, and made complaints about the lack of response and involved local politicians. Eventually, the Home Office became involved and commissioned an independent case review carried out by Mr Trevor Kennett, whose report in March 2010 was critical of the response of the agencies. The family continued to suffer from the behaviour of their neighbours until they were finally provided with alternative accommodation in December 2011.
Proceedings were initially commenced in 2012 against the Police, Housing Association and the Council. Those proceedings were all struck out as no Claim Form or Particulars of Claim were served.
A second set of proceedings were commenced in 2014. The council named as the sole defendant. The claim was based solely in negligence. The claimants alleged that they had suffered personal injury and other losses as a result of the council’s failure to take appropriate and necessary steps to re-house them or otherwise safeguard them from the prolonged anti-social behaviour. It was also pleaded that the council had failed to comply with its duties under the Children Act 1989 to safeguard them and promote their welfare. Central to the claimants pleaded case was the allegation that the mother was unable to protect her children from the level of abuse they were subjected to at the hands of third parties and as such, the council should have removed the children from her care.
The main argument between the parties was whether JD v East Berkshire NHS Community Trust remained good law in light of the Supreme Court’s decision in Michael and the earlier House of Lords decision in Mitchell.
JD established that a duty of care could be owed in respect of the council’s failure to remove an injured party.
In handing down their judgment in CN & GN v Poole BC, the Court of Appeal has unanimously concluded that JD is no longer good law and should not be followed.
Irwin LJ concluded that two particular considerations should work against the liability established in JD namely, 1) the danger of encouraging defensive decision-making by social workers and 2) the general absence of liability being imposed on a party for the wrong-doing of others.
The claimant’s legal advisors attracted particular criticism for their pleadings in this case. King LJ confirmed that the legal advisors proposal that these Claimant children should have been removed from their mother was “utterly heartless” and “utterly wrong,” but importantly was “legally unsustainable”.
Reinstatement of X v Bedfordshire CC
Although it has been consistently assumed in the fourteen years since JD was decided that X v Bedfordshire CC was no longer good law, the decision in CN confirms that position can no longer be justified. X v Bedfordshire CC has been restored as a governing authority which establishes that no duty of care is owed by the local authority, at least in the making of decisions as to whether care proceedings should be commenced.
Where a Local Authorities face claims for “Failure to remove” a child into care, following CN, no duty of care can be owed by a local social services authority in the exercise of its child protection functions to investigate and take action to prevent significant harm to children. Accordingly, such cases are doomed to fail in negligence.
This case was contested by Zurich Municipal, the insurers of Poole Borough Council.
The case was initially pleaded as a failure to prevent anti-social behaviour by multiple statutory bodies. Those claims were doomed to failure in light of a long line of authority establishing that a party was not liable for the criminal activity of a third party, even where that wrongdoing is foreseeable. Zurich has always viewed this claim as an anti-social behaviour claim.
The claimants legal advisors artificially sought to recast this claim as a “failure to remove” case. Zurich considered that it was appropriate to resist this artificial move principally, as it would have been unjust for a potential liability to exist on the part of the local social services authority when the housing department of the same local authority, the landlord and the police could not be held liable. As stated by Irwin LJ:
- …. I accept …. that society places a high emphasis on protecting vulnerable people, particularly vulnerable children. However, the essence of the common law answer to this problem is that it is not effective, or just, to do so by singling out one agency of the State for tortious liability as against the others, particularly in a crude “sectoral” manner.
Zurich considers that the Court of Appeal reached the correct conclusion.
Whilst this judgment will come as welcome respite for the Local Authority Social Services Departments, it is important to highlight that there remains circumstances where the Social Service may be held liable for their actions, namely:
- Where the defendant had control over the third party and it was foreseeable damage might ensue unless care was exercised in that control.
- Where the defendant has assumed responsibility to safeguard the claimant under the principle laid down in Hedley Byrne & Co Ltd v Heller and Partners Ltd, X v Hounslow or Darby v Richmond-upon-Thames.
The claimants have appealed the case to the Supreme Court, which has listed the Hearing for 16th and 17th July 2018. The decision of the Supreme Court is not expected until towards the end of the year.