Do local authorities owe children in their area a common law duty of care to protect them from harm by third parties?
Such cases are usually termed ‘failure to intervene’ or ‘failure to remove’ and rely on common law negligence of social workers in discharging their statutory duties as a route to a claim for damages.
After twenty years of judicial scrutiny, this issue has been considered afresh by the Court of the Appeal in (1) CN (2) GN v Poole Borough Council (CA, 21 December 2017). The court’s wide-ranging analysis overturns the previously considered common law duty of care.
These claims do not arise out of the usual parental neglect or harm in the home environment. The claims were originally presented for the mother and two children – one with severe physical and learning difficulties – who were housed by the council. Between 2006 and 2011 they were subjected to significant harassment and abuse by a neighbouring ‘delinquent’ family, and the most vulnerable child attempted suicide. The family was not moved. A 2010 report criticised the council, the housing partnership and the police.
The claims which were initially based on the Housing Act were struck out by the Master. On appeal, the High Court judge allowed the children (CN and GN but not the mother) to pursue two re-pleaded claims against the council: (1) a claim in negligence for failure to remove the family from their housing; and (2) a claim in negligence for failure to remove them from their home, if necessary by taking them into care. The council appealed.
The Court of Appeal unanimously decided to allow the appeal: the children’s claims cannot proceed because the council owes them no duty of care in common law of negligence. The claims are struck out.
All three judges were critical of the decision to recast a claim about the council’s housing functions into a claim for failure to remove. This was not only “highly artificial”, but also “utterly wrong” because the children would never have been removed from their mother’s care.
At this point the case could be considered limited to its narrow facts. However the decision is significant because it reviewed the authorities on the existence of a duty of care towards children.
The original position was set out by the House of Lords in X (Minors) v Bedfordshire CC (HL, 29 June 1995): there is no statutory duty sounding in damages in child protection cases; furthermore, for a variety of reasons (discretion, policy decision, non-justiciability, need to proceed incrementally) there is no duty of care at common law either. A local authority cannot be found negligent for the performance of its statutory duties to protect children.
The X v Bedfordshire position has been progressively eroded, partly due to the importation of Convention rights. For instance children already in the care of a local authority can now bring claims in negligence. Crucially, in D v East Berkshire (CA, 31 July 2003), the Court of Appeal found that there was no longer a blanket ban on claims in negligence against local authorities in relation to “the investigation of suspected child abuse and the initiation and pursuit of care proceedings”. Each case had to be determined in its facts. It is this decision which has founded ‘failure to remove’ claims ever since.
In this instance, the council was able to rely on two recent cases – Mitchell v Glasgow City Council (HL, 18 February 2009) and Michael v Chief Constable to South Wales Police (SC, 28 January 2015). In both cases, the courts rejected claims for failure to protect victims from harm by third parties.
In CN etc Irwin LJ, in the leading judgment, restated that save for two exceptions the common law does not impose liability for failing to prevent harm caused by someone else. The first exception does not apply here, as it requires control over that other person. The second exception does not apply either, as it requires an assumption of liability. The defendant council cannot be liable in law for the actions of the ‘delinquent’ family and it succeeded in the appeal.
It is understood that the claimants’ advisers are seeking permission to appeal to the Supreme Court. We will keep you informed on further legal developments.
Written by Garry Dover, Partner and Genevieve Rich, associate at BLM