Supreme Court clarifies duty of care owed by local authorities to children — new focus on assumption of responsibility
CN & GN v Poole BC
In a keenly anticipated judgment, the Supreme Court has provided new guidance on the circumstances in which a local authority owes a duty of care to children. If such a duty is owed, and breached, compensation can be claimed.
The judgment applies to public bodies generally, and so is also relevant to health trusts, schools, housing providers and police forces.
The claim was brought by two boys, CN and GN, who had been placed by a local authority, Poole BC, in council housing. Poole BC then worked closely with the family to support CN, who had significant physical and learning disabilities. Unfortunately, CN, GN and their mother were the victims of years of anti-social behaviour by a neighbouring family. This harassment was reported to the local authority, the police, and the landlord, but it continued despite injunctions and even spells of imprisonment, ending only when CN and GN and their mother moved.
CN and GN claimed that Poole BC owed them a duty of care, and breached it by failing to protect them from anti-social behaviour. CN and GN claimed that their mother was unable to protect them, Poole BC should have ascertained this, and then taken them into care.
In a unanimous judgment, a five-judge Supreme Court reviewed recent case law in this area and clarified certain points of principle:
- The law governing whether local authorities owe a duty of care is no different from that covering individuals, companies and other organisations;
- Just because a local authority has statutory duties (such as duties under the Children Act 1989), that doesn’t mean they owe corresponding duties of care to individuals;
- No one owes a duty of care to anyone to protect them from harm caused by a third party, save in exceptional circumstances;
- One exceptional circumstance is where there has been an assumption of responsibility to protect from harm
The judges went on to decide that Poole BC did not owe a duty of care to CN or GN. The judgment focused heavily on whether there had been an assumption of responsibility. Poole BC had worked extensively with this family, there were assigned social workers, core assessments, a care package for CN and adaptations to the home. However, Poole BC did all this work pursuant to its statutory duties towards CN and GN. Poole BC had not gone further and accepted responsibility to protect CN and GN from their neighbours’ anti-social behaviour.
The court placed great importance on the issue of reliance. It concluded that Poole BC did not provide a service on which CN, GN or their mother could rely in order to protect them from anti-social behaviour. Without such reliance, there was no assumption of responsibility, and so no duty of care.
In recent years there has been an explosion of claims against public bodies of all types, based on breaches of a duty of care, and alleging harm to children caused by perpetrators unconnected with the public body. Perhaps the most common category is the “failure to remove” claim brought against local authorities, but there are many others. In these claims, early attention will now need to be given to whether the public body assumed responsibility to protect the claimant from harm.
Prior to the CN and GN case, ‘failure to remove’ claims proceeded on the presumption that a duty of care existed (the greater focus being on whether that duty was breached). This will no longer be the case. Claimants will need to establish an assumption of responsibility and the reality is that this is an extra hurdle for claimants to overcome. Quite how high it is remains to be seen. Notwithstanding the extensive social work carried out with the family, it was too high a hurdle for CN and GN, and no doubt many other cases currently being pursued will also find it insurmountable.
The Supreme Court stressed that this issue is heavily dependent on the facts of the particular case. It did not attempt to devise a test or a checklist. It said that a duty of care would definitely be owed by a local authority to a child in care, because a care order does amount to an assumption of responsibility, but that was a rare point of certainty.
It is likely that over the next few years we will see further court judgments covering this issue. The scope of their clarification will depend on the facts of those cases, but hopefully, in time, this issue will become clearer. For the moment, it remains a rather uncertain and elusive concept.