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Exploring the limits of public authority’s liability for children

Housing family 96709182 sDuncan Fairgrieve and Jim Duffy, barristers at 1 Crown Office Row, examine the Supreme Court’s decision in Poole Borough Council v GN and another that the respondent local authority did not owe a common law duty of care to exercise its functions under the Children Act 1989 to protect the appellants, who were children of a family which it had housed, from harm at the hands of anti-social neighbours.

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Poole Borough Council v GN and another [2019] UKSC 25[2019] All ER (D) 15 (Jun)

What are the practical implications of the judgment?

The appellants in Poole Borough Council v GN and another were two children who claimed damages for a breach by the respondent of an alleged common law duty to take steps to prevent them from suffering harm from their abusive neighbours. The practical implication of this judgment for them is that their case remains struck out.

However, the wider implications are positive from the perspective of children who are not in local authority care but who find themselves at risk of harm from others. The Court of Appeal’s decision in this case had effectively closed the door on future claims in ‘failure to remove’ cases, by holding that there could be no common law duty of care on local authorities carrying out their statutory social welfare functions. Such claims generally feature vulnerable and damaged children and young adults who have suffered sexual, physical and/or emotional abuse in circumstances where the local authority has missed opportunities to take some form of action, such as removal from the family home to separate them from an abuser.

Hundreds of current claims had been stayed pending the outcome of this case. The Court of Appeal had followed X (minors) v Bedfordshire County Council, M (a minor) v Newham London Borough Council, E (a minor) v Dorset County Council [1995] 3 All ER 353, in which the House of Lords had ruled out the existence of such a duty for policy reasons, such as avoiding the encouragement of defensive practice by social workers.

The Supreme Court disagreed with the Court of Appeal on that crucial point. This means that children once again have a clear common law cause of action in ‘failure to remove’ cases, provided they can satisfy the classic legal tests pertaining to the establishment of a common law duty to prevent harm by a third party.

The judgment underlines the need for particulars of claim to set out clearly the factual basis on which a common law duty is alleged to exist. Claims that fail to lay the ground for the leading of evidence demonstrating that the local authority created a danger to which the claimants were exposed, or that fail to set out the facts surrounding an alleged assumption of responsibility towards those children, risk coming unstuck at trial or being struck out.

What was the background?

The respondent became involved with the appellants and their mother, having placed them in accommodation adjacent to another family. The other family was known by the respondent to have persistently engaged in anti-social behaviour.

Following their placement, the two boys (one of whom was severely disabled) and their mother suffered years of physical and mental abuse at the hands of those neighbours. At one stage, the abuse led the older boy to run away from home, leaving a suicide note. The handling of the case by both social services and the police was heavily criticised in an independent report commissioned by the Home Office after the appellants’ mother had sought help from a number of agencies and MPs.

The appellants’ case had been struck out before a Queen’s Bench Master, before being reinstated on appeal to the High Court. That judgment was then overturned by the Court of Appeal.

What did the Supreme Court decide?

The Supreme Court held that a duty of care could be owed by local authorities when undertaking their social welfare functions. In so doing, the court explicitly departed from the previous decision of the House of Lords in X (minors). Importantly for all such cases in future, the court reaffirmed the decision in D v East Berkshire Community Health NHS Trust, K v Dewsbury Healthcare NHS Trust, K v Oldham NHS Trust [2003] EWCA Civ 1151[2003] All ER (D) 547 (Jul). The Court of Appeal in the instant case had been mistaken to find that D v East Berkshire had been impliedly overturned by the decision in Michael v Chief Constable of South Wales Police [2015] UKSC 2[2015] All ER (D) 215 (Jan)In D v East Berkshire, the Court of Appeal had found that the policy concerns that had troubled the House of Lords in X (minors) in 1995 had fallen away, given the intervening creation of separate causes of action under the Human Rights Act 1998 (HRA 1998).

Lord Reed delivered the unanimous judgment of the court. He made important statements of principle concerning the liability of public authorities for negligence.

First, the incremental approach in Caparo Industries plc v Dickman and another [1991] Lexis Citation 2729 was re-affirmed and the recent wane in the role of public policy confirmed. Lord Reed underlined that when examining the existence of a duty of care, the courts should, in the ordinary run of cases, apply established principles of law, rather than imposing a universal tripartite test for the existence of a duty of care and basing their decisions solely on public policy.

Second, Lord Reed reaffirmed the principle, also found in recent cases, that public authorities are subject to the same general principles of the law of tort as private individuals. As a consequence, it was held that an authority would be under a duty of care in social welfare cases when it had either created a source of danger or assumed responsibility to protect the claimant from harm, unless the imposition of such a duty would be inconsistent with the statutory framework within which the authority was operating.

Third, the distinction between omissions and positive acts was considered by the court, following discussion in the previous cases of Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4[2018] All ER (D) 47 (Feb). Lord Reed preferred to distinguish between causing harm (making things worse) and failing to confer a benefit (not making things better) rather than between acts and omissions, with which lawyers and law students have previously been so familiar. In underlining the importance of the distinction between causing harm and failing to protect from harm, Lord Reed relied on the authorities of Stovin v Wise (Norfolk County Council, third party) [1996] 3 All ER 801 and Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15[2004] All ER (D) 06 (Apr). It was emphasised that public authorities, like private individuals, did not generally owe a duty of care to confer benefits on individuals, such as protecting them from harm by third parties. It was noted that the current circumstances represented just such a case in which the respondent was alleged to have failed to provide a benefit to the appellants, by failing to protect them from harm.

Fourth, the court made important statements about the notion of an assumption of responsibility—one of the bases on which the law recognises a common law duty to prevent harm by third parties. The court defined this concept as ‘an undertaking that reasonable care will be taken, either express or more commonly implied, usually from the reasonable foreseeability of reliance on the exercise of such care’ (at para [80]). Lord Reed held that an assumption of responsibility could arise within the operation of a statutory scheme by a public authority, if the ordinary criteria for such a finding were present. However, he observed that ‘the nature of the statutory functions’ was not sufficient for an assumption of responsibility to arise, in particular that the respondent’s investigation and monitoring of the appellants’ position did not involve the provision of a service to them on which they or their mother could be expected to rely (at para [81]).

It was recognised by the court that, even though the carrying out of statutory duties did not itself give rise to a common law duty owed to individuals, an assumption of responsibility could be inferred from the facts of individual cases due to the manner in which public authorities behaved towards a claimant in a particular case (at para [82]).

The court rejected the respondent’s contention that D v East Berkshire had been impliedly overruled by later cases such as Michael—the point made by the Court of Appeal in D v East Berkshire was not that the common law should develop in harmony with the obligations of public authorities under HRA 1998 (a point rejected in Michael), but that the possibility of claims under HRA 1998 had ‘pulled the rug from under some of the policy-based reasoning in X (minors)’ (at para [62]).

The quintessentially factual issue of whether a duty exists will no doubt be explored in later cases. However, the court did give some consideration of relevant circumstances, indicating that in social welfare cases an assumption of responsibility was likely to arise where the authority provided advice on which it was reasonably foreseeable that the claimant would rely (at para [87])—it took a child into care (such as in Barrett v Enfield London Borough Council [1999] All ER (D) 632) or it performed some task or provided a service for the claimant with an undertaking that it would take reasonable care, such as in the provision of medical or educational services or custody of prisoners (at para [73]).

While he made clear that the mere statement by a local authority that it was under a duty would not be enough, Lord Reed was not prescriptive in setting out the scenarios in which a duty might be said to apply, effectively leaving first-instance courts to assess the facts of particular cases to determine whether the above factors exist.

The court found that it was unarguable that any of these factors existed in the appellants’ case.

It also held that there was no vicarious liability on the part of the respondent for the negligence of its employees—there was no suggestion that the social workers provided advice on which the appellants would rely, and this was not a case of the respondent undertaking the performance of some task or the provision of a service for the appellants with an undertaking that reasonable care would be taken.

The court further considered that the alleged breach of duty, namely a failure to remove the appellants from the care of their mother, was not made out in this case.

Duncan Fairgrieve and Jim Duffy appeared with Elizabeth-Anne Gumbel QC and Iain O’Donnell for the appellant children in this case.

Interviewed by Robert Matthews.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

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