On 6 June 2019, Lord Reed handed down Judgment in the Supreme Court in which the claims brought by the siblings CN and GN were unanimously dismissed. In dismissing the claims, the Supreme Court clarified the extent of a Local Authority’s duty of care to avoid harm when exercising child protection functions.
The circumstances of this case are important in understanding the decision of the Supreme Court. The Claimants, CN and GN, are siblings and were aged 9 and 7 respectively at the time of the complaints. In 2006, the Claimants moved with their mother to a new house in Poole, arranged by Poole County Council as the local housing authority. CN suffered with severe physical and learning difficulties and was a ‘child in need’ as defined by S17 of the Children Act 1989. Prior to the housing placement, the Local Authority is said to have been aware of a neighbouring family who engaged in persistent anti-social behaviour. Over the next 5 years, the Claimants and their mother were subjected to anti-social behaviour in the forms of violence and damage to their property, carried out by this neighbouring family. Complaints were raised by the Claimants’ mother to the Police, Local Authority and Landlord (Poole Housing Partnership). The anti-social behaviour escalated to the point that CN attempted suicide and in 2010 the Home Office commissioned a Review, the outcome of which was critical of all three organisations to whom the Claimants’ mother had complained.
Initial Court Proceedings
A civil claim against all three potential Defendants was advanced by the mother and both siblings alleging breaches of the Human Rights Act 1998 and a failing in negligence to safeguard the family from anti-social behaviour. The claim was dismissed after a failure to serve Particulars of Claim. Four months later, the Claimants served further proceedings alleging negligence against the Local Authority only. An additional claim was also served on behalf of the siblings alone, alleging the Local Authority owed them a direct duty at common law to safeguard and promote their welfare. Master Eastman was not satisfied that a common law duty to safeguard children existed under the Act and accordingly struck out the claim. This decision was appealed by the siblings only, who argued that the Master had failed to have regard for the decision in JD v East Berkshire. The Claimants’ Appeal was permitted by Slade J and the claims were restored.
The Defendant sought, and was granted, permission to appeal to the Court of Appeal. The appeal submitted there was no legal standing requiring that they owed a duty of care to protect the Claimants from harm perpetrated by a third party. The Defendants’ asserted that the Children Act 1989 did not create a duty of care in this situation and neither did the Act afford the Defendant powers to simply remove a child from its parents: an emergency Protection or Care Order would be necessary in such a situation. The two main arguments advanced by the Defendants were:
- Slade J had been wrong to accept she was bound by D v East Berkshire so as to conclude it was arguable that the Local Authority owed a common law duty of care to Claimants in the exercise of its functions under the Children Act; and
- Slade J was wrong in failing to consider or accept the Defendants’ contention that this case related to the Local Authority’s duties under the Housing Act rather than the Children Act.
The Defendant’s Appeal was unanimously allowed. In doing so, the Court accepted that the Claimants’ claim related to a failure by the Local Authority to rehouse them and considered it implausible to suggest the Claimants should have been removed from their mother’s care simply as a means of ending the anti-social behaviour. In reaching this decision, Irwin J found that the authority of D V East Berkshire should no longer be followed, and that there was no good reason to conclude the Local Authority had assumed responsibility for the Claimants in the circumstances of this case.
Supreme Court Decision
In dismissing the Claimants’ appeal, the Supreme Court held that the Children Act 1989 does not create a statutory cause of action and a public authority cannot assume responsibility merely by operating a statutory scheme. The Court did not accept that the Local Authority had assumed a responsibility for the Claimants through the process of investigating and monitoring their situation. As the Claimants had not been taken into care, no responsibility for their welfare had been assumed.
Lord Reed clarified that the decision in D v East Berkshire had not been over-ruled by any subsequent decision. In considering whether a Local Authority owes a duty of care towards a child, the principles in Robinson should be followed and a distinction made between those cases where the defendant is alleged to have harmed a Claimant and those cases where the Defendant is said to have failed to provide a benefit to the Claimant e.g. to protect them from harm. This case falls into the latter category.
The Supreme Court also dismissed the Claimants’ assertion that in the alternative, the Local Authority were vicariously liable for the harm caused through the negligence of their Social Workers. In reaching this decision, the Court held the Claimants had failed to establish that the social workers had assumed responsibility for the Claimants.
In concurring with the Court of Appeal, the Supreme Court agreed there was no merit in the Claimants’ suggestion that the Local Authority should have obtained a Care Order to protect them from the anti-social behaviour. Such an Order would require the Local Authority to establish the Claimants were suffering, or were likely to suffer, significant harm caused by a lack of parental care.
This decision clarifies that a local authority does not owe a duty of care at common law simply because it has statutory powers or duties, even if by exercising those powers or duties they could prevent harm being suffered. However, a local authority and its social workers may owe a duty of care to protect from harm in the same circumstances that private individuals or organisations may owe such a duty of care i.e. where they have created the source of the danger or assumed responsibility to protect a Claimant.
Naturally, Local Authorities and other organisations will question how this Judgment is likely to impact more traditional negligence claims, such as failure to remove cases. As is always the position, each case will turn on its own facts, but what is now evident following the Supreme Court’s Judgment, is that a Claimant will need to establish there was an assumption of responsibility for them, to be able to succeed in the assertion that a duty of care was owed.
Press statement from Supreme Court: https://www.supremecourt.uk/cases/uksc-2018-0012.html
To download as a PDF please click here.
If you would like to know more about this matter, please speak to your contact at Plexus:
Kate Prestidge, Partner
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