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Future

2021 promises to be a year full of important developments for safeguarding. We look at the three particular areas likely to be affected.

It seems highly likely that, a year from now, things will look significantly different. Three particular areas likely to be affected are the law around duty of care, redress schemes, and mental health.

Duty of care

In the summer of 2019, the Supreme Court handed down a judgment (CN & GN v Poole BC) that few expected. At a stroke, it transformed the liability landscape. Their lordships stated unanimously that when social workers supported children and their families, in compliance with their statutory duties, they did not, as a general rule, owe a legal duty of care to protect those children from harm caused by others. Such a duty would only arise in specific, limited circumstances.

Until this decision by the Supreme Court, everyone believed that social workers did owe such a duty, and so if a social worker did not take reasonable steps to protect children, the duty would be breached, and a claim could be brought. CN halted these claims (and there were many of them) in their tracks. Effectively it was no longer possible to bring a negligence claim against social workers over the support they provided to children in their family homes.

Ever since this decision, everyone has been waiting for further decisions which would clarify the exceptions to this general rule, and identify circumstances when social workers would owe a duty to protect children from harm caused by others. 2020 did not produce such a clarifying decision. However, it seems very likely that 2021 will do so, indeed probably more than one. It will be of fundamental importance for all involved in safeguarding to understand the wider implications of these judgements as soon as they are published.

Redress schemes

No-fault redress schemes for the victims of abuse are not new. We have seen such schemes set up by many different types of organisations - governments (such as the States of Jersey), local authorities (such as the London Borough of Lambeth), and football clubs (Manchester City).

However, in Scotland all attention is focused on the redress scheme that should pass into law in the first half of 2021. The Scottish Government committed itself to do this back in 2018, following the recommendation of a Review Group. Now the draft legislation is before the Scottish Parliament, and there is intense debate over its terms. Important issues, such as the contribution to be made by the organisations who had care of the survivors when they were abused, are not yet finalised.

It aims to cover survivors who were abused while residing in specific care settings before 1st December 2004. Therefore, it does not cover more recent abuse, nor abuse suffered by children in the family home. Nevertheless, it remains a broad and ambitious scheme. Individual payments could reach £80,000.

Everyone will be keen to see the exact terms which are finally enacted and in England, attention will then switch to IICSA (the Independent Inquiry into Child Sexual Abuse). Many expect IICSA to make a strong recommendation for a similar redress scheme in England. With public finances painfully stretched, an expensive redress scheme may struggle to find political approval, but its advocates will be able to point to a precedent north of the border to show that such schemes are possible.

Mental health

The increasing prominence of mental health issues has been a major recent development in safeguarding. It covers children and adults alike. Its prominence looks to persist in 2021, as the impact of the measures taken to tackle the coronavirus pandemic impact will become clearer. Whether it is isolation, loneliness, anxiety, financial pressures or family discord, many people are currently living in very difficult circumstances, and light will be shone increasingly on their situations throughout the coming year. 

Awareness is increasing, and best practice is developing, very rapidly. All organisations involved in safeguarding, in particular local authorities, schools, health trusts, housing providers and employers among others, will need to keep their practices and procedures under review.

However, as organisations do more to address mental health issues, the legal duties upon them increase. Generally speaking, organisations are required to do whatever they choose to do competently. The more an organisation does, the more they expose themselves to the risk of failing to discharge their duties competently. Clearly that risk won’t stop organisations doing the right thing, but the operational pressures they face will increase.

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