Claims against social services – other routes to liability?

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Claims are made against local authorities when they fail to remove children from their parents’ care (see HXA v Surrey CC) which looked at whether there is a duty of care in such situations.  Another strand of cases looks at what happens when things go wrong for children in care.  In the recent case of SKX v Manchester City Council (QBD, 31 March 2021) the High Court explored no-fault routes to liability: vicarious liability and non-delegable duty.

John Allen was the Chief Executive of the company running the Bryn Alyn Community, a group of privately-owned children’s homes in North Wales.  He was also a predatory paedophile.  Between 1976 and 1992 he abused many children living in the homes.  He was convicted of numerous sexual offences at 3 major trials and is currently serving a long sentence.  A major public inquiry unveiled numerous failings in children’s homes in North Wales – including Bryn Alyn.  After publication in February 2000 of the report ‘Lost in Care‘ former Bryn Alyn residents pursued claims for compensation.  These claims succeeded (setting a precedent for new approaches to limitation in historical abuse claims, but not all claimants were compensated. Insurers were entitled to avoid paying compensation to those claimants who had been abused by John Allen himself.  An exclusion clause for acts of abuse committed by ‘managerial employees’ (like John Allen) meant that insurers did not have to pay out under the insurance policy.

SKX was one such claimant: he was entitled to compensation, but received none due to the exclusion clause.  Many years later he brought a claim against Manchester City Council, the local authority which had placed him at Bryn Alyn.  In February 2021 the court considered whether his claim could proceed by looking at 3 questions.

  • Was Manchester City Council vicariously liable for the actions of John Allen?

The court found that the council was not vicariously liable.  The court considered the line of authorities from the Christian Brothers [2013] case to Barclays Bank [2020], via Cox v Ministry of Justice [2016] and Armes v Nottinghamshire County Council [2017]. The court found that John Allen was part of the company’s independent business. There was a genuine arms-length relationship of independent contractor between the company and the local authorities that placed children in the Bryn Alyn homes.  John Allen was not in a relationship akin to employment with the local authorities and it would not be fair, just or reasonable to impose vicarious liability for John Allen’s actions.

  • Did Manchester City Council owe a non-delegable duty of care to the claimant?

The court found that this was not a case of non-delegable duty. The concept of non-delegable duty is based on no fault and applies only in rare cases.  The five criteria are set out in Woodland v Swimming Teachers Association [2013].  When applied in Armes [2017] – a case which considered whether local authorities owed a non-delegable duty for the actions of foster carers – the Supreme Court found that there was no non-delegable duty.  The same reasoning applied here.  The question turned on the obligation created by the statutory provision (section 21(1) of the Child Care Act 1980): was it a duty to provide the children with day-to-day care, or only to arrange and pay for it?  The answer is it is a duty to arrange and pay for it – which was duly discharged by the council.    

  • Should the court exercise its discretion to extend time in favour of SKX?

The court decided to reach a conclusion on limitation in case the matter was overturned on appeal.  The court found that it was appropriate to extend time to bring the claim because the cogency of the evidence had not been impaired. Manchester City Council was not disadvantaged by the delay in issuing proceedings.  Furthermore there were good reasons for the delay, even if it was lengthy. 

This case shows the numerous recent legal developments in this area, and the unpredictable nature of such claims for claimants, as well as defendants and their insurers.

Written by Geneviève Rich at BLM genevieve.rich@blmlaw.com

Justice Department to strengthen abuse of trust law in Northern Ireland

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On 23 March Justice Minister, Naomi Long announced plans to amend the Justice (Miscellaneous) Provisions Bill to change existing law.  The amendment will extend the current abuse of trust offence. The current law only applies to positions of trust within a statutory setting such as teachers and health care workers; the amendment will widen the scope to include perpetrators in non-statutory settings.  The category of non-statutory setting will be determined by the Justice Department in collaboration with the NSPCC, faith groups and sports organisations.  

Many groups have called to tighten the currently limited law and make it more robust for the protection of children and young people. This welcome extension will afford greater protection to young people in a variety of settings and ensure all those abusing positions of power will be held accountable and will not escape due to a gap in legislation.

Justice Minister Naomi Long said:

“I am very aware of calls to change the law, including from the NSPCC, the sports sector and faith groups, and I agree that the law needs tightening.  I am very conscious that people working in the non-statutory sector can have a significant level of influence and power over impressionable young people in their care, and some can abuse their positions of responsibility.I propose to strengthen the law in Northern Ireland, widening the scope of the existing position of trust legislation to afford our young people greater protection across a broader range of environments.”

Written by Katrina Gray at BLM katrina.gray@blmlaw.com

Omegle: Children expose themselves on video chat site

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Omegle is an increasingly popular website designed to link up strangers at random for live video and text chats.  Global child protection groups are becoming increasingly concerned about predators using the site to obtain child sexual abuse material given its reputation for unpredictable and shocking content and obtaining the reputation as a “predator’s playground.”

Research by data analyst Semrush shows Omegle grew globally from about 34 million visits per month in January 2020 to 65 million in January 2021.  In the UK alone, traffic increased by 61% from predominantly people under the age of 34; many of them teenagers.  Its popularity may have spiked more recently due to more people being at home and looking to meet others during the Coronavirus pandemic.     

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Abuse in football – Clive Sheldon QC report published

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Yesterday saw the release of the long awaited report of Clive Sheldon QC into allegations of child abuse within football between 1970 and 2005.  The report was commissioned by the Football Association (the FA).

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BXB: “the latest episode in the attempts of religious organisations to escape vicarious liability in claims for damages for sexual offences”

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This striking description of a defendant’s unsuccessful appeal – it was roundly dismissed by all three members of the court – comes at the end of the recent judgment in The Barry Congregation Of Jehovah’s Witnesses v BXB. The decision probably does not develop the law on vicarious liability as such (as will be seen below from what Nicola Davies LJ said) but mark its application on appeal in a matter involving sexual abuse of an adult. Relevant passages from each of the three judicial opinions are set out below.

Contained within the tailored test [of whether the relationship between the wrongdoer and the defendant company/body is sufficient to justify the imposition of vicarious liability on the latter for the acts of the former] in cases of sexual abuse is the concept of the conferral of authority upon the tortfeasor by the defendant. In my judgment, the tailored version of the test applies in cases in which adults are alleged to have been sexually abused as it does in such cases involving children because the rationale for the test is the same. The issue is the connection between the abuse and the relationship between the tortfeasor and the defendant. It is not the particular characteristics of the victim. [Nicola Davies LJ at 87.]

In principle, however, the test must be equally applicable to cases involving the sexual abuse of adult victims, although its application will need to take account of the differences between children and adults. In such a case [ie involving adults] the relationship is less likely to be a relationship in which the tortfeasor exercises power over the victim and the victim is dependent on or subservient to the tortfeasor. Whether such a relationship exists, however, will be a question of fact in each case. [Males LJ at 96.]

This appeal is the latest episode in the attempts of religious organisations to escape vicarious liability in claims for damages for sexual offences committed by those whom they have placed in positions of responsibility and moral authority … even an adult may be susceptible to relationships which involve a risk of abuse, particularly in the context of those spiritual beliefs and doctrines which promote a culture of unquestioned obedience to religious leaders. [Bean LJ at 105.]

Alistair Kinley, Director of Policy & Government Affairs
alistair.kinley@blmlaw.com

IICSA update on recommendations (continued)

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To recap on yesterday’s blog, the monitoring of responses to recommendations made by IICSA is a formal process and IICSA expect institutions to set out how they plan to respond to the recommendations made within six months of the recommendations being published. Yesterday we covered responses from

  • Nottinghamshire Councils
  • Accountability and Reparations
  • Children Outside the UK Phase 2

Today’s blog will look at the responses from:

  • Internet
  • Westminster
  • Anglican Church
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IICSA update on recommendations

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On the 25 February IICSA issued further updates on institutional responses to recommendations it made as part of its investigations into and reports on the following:

  • Nottinghamshire Councils
  • Accountability and Reparations
  • Children Outside the UK Phase 2
  • Internet
  • Westminster
  • Anglican Church

The monitoring of responses to recommendations made by IICSA is a formal process and IICSA expect institutions to set out how they plan to respond to the recommendations made within six months of the recommendations being published.

I have outlined these responses below – the second half of the responses will be covered in a blog tomorrow.

Nottinghamshire Councils

IICSA recommended that both Councils should assess the potential risks posed by foster carers and residential care staff. It also recommended that Nottingham City Council should commission an independent, external evaluation of its practices concerning harmful sexual behaviour.

Nottingham City Council plans to use a risk-based methodology to review the HR cases to assess the risks posed by current and former carers and in partnership with Nottinghamshire County Council, it has written to all the agencies who they have placed a child with since 2013 and those on the East Midlands Commissioning Framework. The completion of this task has been delayed by the pandemic. The City Council commissioned the NSPCC to carry out the independent review in November 2019 and while the outcome of that review was also delayed due to COVID-19 a video conference was held with the NSPCC on 23 June to discuss findings and agree how best to disseminate learning and recommendations to the safeguarding partnership.

Nottinghamshire County Council reports that external consultants have reviewed they work that they have already undertaken in relations to its fostering services. They have also progressed their work with the independent fostering agencies and a formal report will be sent to the Safeguarding Partnership in both the city and the county outlining the findings and impact of this work.

Accountability and Reparations

Please see below details of the recommendations made by IICSA in this investigation that have been progressed:-

  • The Ministry of Justice should revise the Victim’s Code to make clear what exact information victims and survivors of child abuse must be advised of by the Police – Following consultation the UK Government published a revised version of the Victims Code on the 18 November, 2020, it was been laid before Parliament and will come into force on the 1st April, 2021. You can access the revised version of the Victim’s Code here https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/936239/victims-code-2020.pdf
  • The Local Government Association and the Association of British Insurers (ABI) should each produce a code of practice for responding to civil claims of child sexual abuse – The ABI’s work on this code of practice is ongoing and is expected by the end of this year. The Local Government Association’s work in also ongoing but they are not yet in a position to provide details of an expected completion date.
  • The government should revise the Compensation Act, 2006 to clarify that section 2 facilitates apologies etc. by institutions that may be vicariously liable for the actions or omissions of other persons including the perpetrators – The MoJ will explore further whether it would be helpful to amend the 2006 Act or take alternative action to clarify the position vis-à-vis apologies and vicarious liability.
  • The Dept. of Work and Pension (DWP) should work with the ABI to introduce a national register of public liability insurance policies – Discussions are ongoing with the MoJ and the ABI on the feasibility of establishing a public liability register.
  • Revision of Guidelines for the assessment of general Damages in Personal Injury Cass to include a standalone section on damages that may be appropriate in case s of child sexual abuse – The Judicial College believes that such guidelines would be of assistance to all and hope to include this category for victims of child abuse in the next edition of the guidelines which are due to be published in Autumn 2021.
  • The MoJ should consult with relevant bodies in order to increase the use of criminal compensation order, where appropriate in cases involving child sexual abuse – The MoJ reports that its work on this consultation has been stalled due to the pandemic, but is keeping the matter under review and hopes to start this by the Spring of 2021.

Children Outside the UK Phase 2

Please see below details of the recommendations made by IICSA in this investigation that have been progressed:-

  • The Home Office should coordinate and develop a national plan of action addressing child sexual abuse overseas – The Home Office has confirmed that it will implement this recommendation as part of the UK Government’s Tackling Child Abuse strategy.
  • The Home Office should use foreign travel restrictions to restrict travel to high risk countries – The Home Office have also confirmed that it will bring forward the necessary legislation to give effect to this recommendation when parliamentary time allows. In the meantime they have commissioned the National Crime Agency to produce a list of countries where children overseas are considered to be at high risk of sexual abuse and exploitation from UK nationals and residents
  • The extension of DBS enhanced certificates to work outside of the UK – The Home Office reports that individuals applying to work in a school or organisation outside of the UK where they will be in regular contact with children can apply for an International Child Protection Certificate (ICPC), this covers the same information that is required for an enhanced DBS and is simpler and easier for foreign employers to apply for in practice. The Home Office will work to publicise the existence of the ICPC and help to improve employers understanding of it and when it can be used.
  • Mandatory DBS certificates for UK nationals and residents of England and Wales working with children overseas – The Home Office notes that this recommendation will require foreign partners to undertake checks as if they were in England and Wales and would require extraterritorial legislation, which would be difficult to monitor and enforce. The Home Office will continue to publicise the existence of the ICPC to workers and employers to improve safeguarding standards across the aid sector.
  • Guidance on the disclosure and barring scheme for work and volunteering outside the UK – The Home Office confirmed in January 2021 that DBS currently signposts applicants to ICPC if their work abroad makes them ineligible for DBS certificates.
Written by Sharon Moohan at BLM sharon.moohan@blmlaw.com

Scottish in-care redress bill passes stage 3

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On 11 March 2021, the Scottish Parliament unanimously passed the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill. A link to the bill as passed is here.

The bill will now proceed to Royal Assent to become an Act of the Scottish Parliament. Implementation will follow by subsequent ministerial regulations.

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Racism and abuse on social media in football and beyond

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Arsenal striker Eddie Nketiah is one of the latest high-profile footballers to receive racist abuse on social media in response to a training picture he posted on Twitter with the caption “working with a smile!” Nketiah is only 21 years old. Paul Pogba, Marcus Rashford, Tammy Abraham, Yaou Meite, Anthony Martial, Reece James, and Romain Sawyers are some of the other notable players to be subject to racial and hate filled abuse for innocuous offences such as missing penalties for their teams.

German goalkeeper, Bernd Leno says he stopped reading comments on social media after he was once told to copy Robert Enke, the former Germany goalkeeper who committed suicide in 2009. Analysis by Signify, a data science company, has revealed 16 instances of targeted racist abuse towards Granit Xhaka, a Swiss international of Albanian descent. Signify noted posts from accounts which self-identify as Arsenal season ticket holders. The company also revealed a series of homophobic abuse that is being directed at Spanish defender Hector Bellerin.

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