Local authorities – no duty of care to children not in care

The scope of the legal duty of care owed by local authorities to children has been dramatically reduced.

CN & GN v Poole Borough Council [2017] EWCA Civ 2185

In a very important decision just handed down by the Court of Appeal, the scope of the legal duty of care owed by local authorities to children has been dramatically reduced. All three judges declared that the 2004 Court of Appeal decision in D v East Berkshire, which said local authorities could owe a duty of care to a child before s/he was taken into care, was no longer good law.

Background facts

In 2006, CN, GN and their mother were re-housed by Poole BC in a property called Grange Gardens. A local housing association, PHP, was the landlord. CN and GN were then victims of sustained serious harassment and abuse from neighbours for over five years. A Home Office- commissioned review criticised all the agencies involved for failing to intervene. This included the local authority (it having a housing function and a social services function), PHP, and the police.

The claim

The claim started life as an action against the housing authorities but this was unviable and it was “recast” as a “failure to remove” claim against social services. CN and GN alleged that the council owed them a duty of care (following D v East Berkshire), had breached this duty by failing to investigate and assess their position, and, thereafter, by failing to take them into care.

The judgment

A key principle of English law was emphasised many times in the judgment. “The rule that you must love your neighbour becomes in law, you must not injure your neighbour”. It does not extend to a duty to protect your neighbour from others.

There are two exceptions to this rule. You can owe a duty to protect your neighbour from others if:

  • You control the third party causing the damage
  • You have assumed responsibility to prevent the damage

In this case the council did not control the people harassing CN and GN, and had not assumed responsibility for stopping the harassment.

When the court in D v East Berkshire decided a duty of care was owed to children not in care, it relied heavily on the fact that children could bring actions under the Human Rights Act 1998 and held that breach of duty claims should develop so as to be consistent with human rights claims. However, the Court of Appeal has now said that this reasoning was wrong and could not stand with the Supreme Court decision in Michael v Chief Constable of South Wales where it was held that human rights claims and breach of duty claims are fundamentally different.

With D v East Berkshire overruled, the leading case is once again X v Bedfordshire CC [1995]. That case gave policy reasons why local authorities should not owe a duty of care when making child protection decisions about whether to remove a child into care - it would lead to defensive practice and complicate decision-making in a difficult field. The Court of Appeal endorsed those reasons. It also noted that the Home Office review had been critical of all concerned and agencies other than the local authority were equally involved in the central problem. The court said it would be “unjust to extend liability to one agency” (para 97) when other agencies had no potential liability in negligence.

Implications

The volume of ‘failure to remove’ claims against local authorities has increased greatly over recent years. This decision offers the prospect of a potential defence to many such claims. The Court of Appeal refused the claimants permission to appeal, but we expect an application for permission to the Supreme Court. Given the importance of the issues at stake, we anticipate that permission will be granted, and the judgment is unlikely to be the final word. Further, the President of the Supreme Court (Lady Hale) confirmed in her dissenting judgment in Michael that she saw D v East Berkshire as good law when holding that the police should owe a duty of care in that case. However, given the strong criticism by the Court of Appeal of the allegation that the children should have been removed from mother (described variously as “fanciful”, “heartless” and “wrong”) one wonders whether this is the right case for the claimants’ arguments to be pursued.

In the meantime it is anticipated that claimants may seek to argue that claims come within possible exceptions, such as:-

  • Arguing that the local authority had control over the third party.
  • Arguing that the local authority had assumed a responsibility for the safety of a claimant.
  • Seeking to contend that the decision does not encompass classic failure to remove claims in which harm is caused within a claimant’s family rather than by a true “third” party.

Local authorities and their insurers will need to review their portfolios of cases and consider whether a revised approach is needed. This may depend on the specifics of individual cases but certainly careful consideration will need to given to those claims in which admissions or offers of settlement have been made.

In the meantime, should you wish to discuss this in more detail, or would like assistance with any other matter, please do not hesitate to get in touch with any of our team:

  • Chris Webb-Jenkins (Partner, 0121 200 7581);
  • Peter Wake (Partner, 0151 242 6866);
  • Penelope Marshall (Partner, 0121 200 8110).

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