The High Court has this week (w/c 24 May 2021) handed down its decision in the important case of DFX v Coventry City Council  EWHC 1382 (QB).
To our knowledge, this is the first post-trial judgment to consider the principles set out in in the much-discussed Supreme Court decision in CN v Poole  UKSC 25. Interested parties will recall that CN v Poole reset the position for so called ‘failure to remove’ cases (i.e. whether a local authority can be held liable for failing to take children into care). In CN v Poole the Supreme Court held that there is no general common law duty to protect children in the community from harm caused by family members or third parties. Local authorities have the same duties as private individuals (i.e. there is no general duty to prevent the occurrence of harm). However, a duty of care can arise in a number of recognised situations (e.g. where the local authority has created the risk of harm and/or where the local authority has assumed responsibility for a child). It has been the subject of much discussion since CN v Poole that the question of when an assumption of responsibility arises was not clarified by the Supreme Court.
DFX v Coventry City Council is an important decision for all local authorities. The decision expands on the principles in CN v Poole and looks to answer whether and when local authorities and their social services teams assume a duty of care to protect children from harm by third parties. In turn, this informs whether local authorities can be ordered to pay compensation to individuals who have been harmed by third parties such as parents, family friends and neighbours. The factual matrix in DFX is more similar to a ‘typical’ failure to remove case and is likely to have wider applicability.
What follows is a brief analysis of the decision in DFX and what this means for failure to remove claims going forwards. No doubt this decision will be revisited in the days and months to come. We are aware of a number of other judgments and strike-out decisions which are due to be handed down in the near future and it is possible that these could provide further clarity in this interesting yet challenging area of law.
Facts and background
The claim was brought by four siblings (DFX, RFX, SFX and DGX) who were all born between 1995 and 2001. The family was known to social services from 1995 onwards (i.e. shortly after the birth of DFX, the oldest claimant, and prior to the birth of the other claimants). Social services involvement continued without interruption (save for a brief period between June 2001 and February 2002) until 2009/2010 when the local authority issued care proceedings and obtained a final care order removing the children from their parents. The issues investigated by social services included (1) whether the parents were capable of parenting the children so they did not suffer neglect, (2) whether the children were coming into contact with dangerous adults outside of the immediate family, and (3) whether the children were at risk of sexual abuse from their father who had previously been convicted of sexual offences against teenage girls.
During the period of social services involvement, social workers took various steps including carrying out section 47 investigations (to identify whether the children were at risk of harm), risk assessment of the parents and other individuals, convening child protection conferences/child protection plans and providing support and services to the family under section 17 of the Children Act 1989. The services which were provided included provision of a family support worker, nursery places for the children, direct work with the children and providing advice/encouragement to the parents on recognising the risk of abuse and changing their behaviour to provide better care for the children. At trial, it was an important feature of the case that in 1997, whilst DFX and RFX were on the child protection register, social services obtained a report from a forensic psychologist to assess the risk that the father posed to the children in light of his convictions for indecent assaults and whether the parents’ learning disabilities affected their ability to care for their children.
Tragically, notwithstanding and despite social services involvement, the children came to varying degrees of harm. In 2003, RFX disclosed that she had been sexually assaulted by AD, a family friend who had been visiting the property and babysitting the children. The sexual assaults occurred in either 2001 or 2002. From at least 2002, social services were aware AD was a potential abuser and were conducting a separate child protection investigation into alleged abuse by AD against his grandchildren. In 2009, DFX and SFX disclosed that they had been sexually abused by their father. In 2010 (after the children had been taken into care), RFX disclosed that she had also been sexually abused by her father.
The stage is set for the decision in DFX v Coventry City Council in which the 4 siblings alleged that the failure to remove them from their parents at an earlier date exposed them to harm, including various sexual assaults by the father and AD. At trial the parties and Lambert J were in agreement that this was a case which centred on negligent omissions rather than negligent actions by the local authority (i.e. the injuries experienced by the children were caused by the local authority’s failure to confer a benefit by removing them from their parents rather than by any direct actions taken by the local authority or its social workers).
The judgment in DFX followed a ten-day trial which took place at the High Court in London between November and December 2020. As part of the trial, the court heard evidence from 7 lay witnesses including many of the social work professionals who had been involved with the original child protection investigations, and independent social work experts, Felicity Schofield (for the defendant) and Maria Ruegger (for the claimants).
Lambert J ultimately concluded that the carrying out of ordinary social work functions did not lead to an assumption of responsibility and there needed to be (what Lambert J refers to as) ‘something more’ in order to establish a common law duty of care. On the facts of the case, she was unable to identify that crucial something and the claim was not distinguishable from CN v Poole. The claim failed accordingly. The rationale for the decision is well illustrated by reference to the 1997 report (see facts and background above) which assessed the level of risk to the children and whether the parents were capable of caring for the children. Lambert J concluded that the report was obtained for the benefit of the local authority as part of its investigatory duties to assess whether the children were at risk of harm and to inform its response to this (e.g. whether to provide services or implement other child protection measures) as opposed to for the benefit of the children or their parents. The children and the parents could not be said to have placed reliance on the report or entrusted their safety to the local authority as part of them obtaining the report. This is well illustrated by the fact that if care proceedings had been issued at this time, the children and the parents would have been separately represented to the local authority and (certainly in the case of the parents) are likely to have disagreed with the findings of the report.
Lambert J considered the various steps taken over the 15 year period between 1995 and 2001 (including carrying out s47 investigations and providing services under s17 of the Children Act) but was unable to identify anything which would amount to an assumption of responsibility or establish a common law duty of care. Notwithstanding this, Lambert J did not rule out the possibility that a situation could arise where a local authority might assume responsibility for a child by carrying out statutory powers. As in CN v Poole, Lambert J did not clarify what that situation might be.
Irrespective of Lambert J’s decision that (on the facts) a duty of care had not arisen, she went on to consider breach of duty and causation. Lambert J concluded that there was no evidence that if care proceedings had been issued earlier, this would have resulted in the children having been removed from their parents. Further expert evidence (e.g. from a psychologist to comment on what is likely to have been found in the care proceedings) may have been required on this point.
In the lead up to the Supreme Court judgment in CN v Poole, failure to remove cases were frozen in time with many claims lying dormant and unable to proceed until the existence of a duty of care was clarified. Whilst the Supreme Court appeared to clarify that there was no intrinsic common law duty or actionable statutory duty which meant that a local authority could be held responsible for negligent omissions or harm caused by third parties, Lord Reed noted that a duty of care could arise where a local authority assumes responsibility for the child in question. Against this backdrop, failure to remove claims proliferated as both claimants and defendants attempted to deal with the question what will amount to an assumption of responsibility?
DFX provides some much-needed clarity to this question, however, it does not settle the issue conclusively. Lambert J was careful to note that her judgment was fact sensitive and she rejected the proposition that a local authority can never owe a duty of care when carrying out statutory functions. DFX does however, set a very high threshold for claimants to reach. In particular, it can be seen that carrying out child protection investigations under s47, assessing the risk of harm to children and providing services to families under s17 of the Children Act will not amount to an assumption of responsibility unless the ‘something more’ is established. It is difficult to imagine a case where social services interventions were more extensive or spanned such a long period of time (c. 15 years) and it is fair to say if ‘something more’ does not arise on these facts, it can only arise in very rare circumstances.
Since CN v Poole, failure to remove claims have typically been pleaded in common law negligence and under the Human Rights Act 1998 (most commonly for violation of the ECHR Article 3 right to freedom from torture and inhuman or degrading treatment). Whilst DFX was pleaded in this way, the judgment remains relatively silent on how the Human Rights Act responds to failure to remove claims. Whilst claims under the Human Rights Act tend to have their own procedural obstacles (most notably a strict 1-year limitation period), the impact of DFX is that local authorities should expect to see more failure to remove cases presented as claims for breaches of human rights as claimants look to distinguish cases from DFX and CN v Poole.
From a practical perspective it is worth noting that the decision in DFX followed a ten-day trial with a substantial number of lay witnesses for the defendant and expert witnesses for both parties. The need for expert evidence in these cases is amplified by Lambert J’s comments on breach of duty and causation (e.g. that expert evidence is needed to comment on what is likely to have occurred in the family proceedings (i.e. not just whether care proceedings should have been issued)). It will not have escaped the attention of anyone who practices in this field that the costs of running a failure to remove case to trial can be in the hundreds of thousands of pounds for both claimants and defendants. It is not unreasonable to assume that claimants running these cases to trial may incur costs in excess of £1m. The damages in DFX were agreed pre-trial between £25k to £125k per claimant (subject to liability). It remains to be seen what appetite claimants will have to bring these cases where (1) the risk of bringing claims is greater and (2) the costs of additional expert evidence could make the damages v costs of claims even more disproportionate.
With the clarity offered by DFX, insurers and local authorities may now wish to review existing failure to remove cases and consider whether to bring applications to dismiss cases.
Plexus’ Sensitive Claims and Abuse Team advises local authorities from across England & Wales on failure to remove and human rights claims.
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Andrew Caplan, Partner
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Kate Prestidge, Partner
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Marlon Ellis, Solicitor
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