In December 2017 the Court of Appeal handed down Judgment in the case of CN & GN v Poole Borough Council (“CN”).
Their ruling potentially undermined long established principles such that a Local Authority could be held responsible for the negligent acts of social workers carrying out child protection duties.
The ruling was appealed and nearly a year after the Appeal Hearing took place the Supreme Court handed down their Judgment on Thursday 6 June 2019.
The Supreme Court has now clarified beyond any doubt that a Local Authority can still face claims for damages for the failings of its Social Services department.
Over the past few days I have spoken to many different solicitors, Barristers and experts specialising in this area of work. I have listened to many different interpretations of Lord Reed’s Judgment in CN. Some Defendants argue that the vast majority of potential claims will remain impossible and it is only when a Care Order exists that liability will clearly attach (see comments of Paul Stagg Junior Counsel in CN). Some Claimant solicitors argue that this is a complete victory and claims can carry on as before (see opinion of Peter Garsden President of ACAL).
The good news
There are two very important aspects to the Judgment in CN from a Claimants perspective.
For the past two decades claims against Local Authorities have been pursued largely on the basis of the ruling in D v East Berkshire Community NHS Trust. Following the Court of Appeals decision in CN Defendants sought to argue that D v East Berkshire was no longer good law and that the position reverted to X v Bedfordshire County Council. Had this been correct Claimants would no longer have been able to sue Social Services for negligence. The Supreme Court have now made it clear that D v East Berkshire remains good law.
The Defendants also sought to argue after the Court of Appeal decision that a Local Authority could not be negligent or in breach of duty for carrying out actions that were merely fulfilling statutory obligations. Reliance was placed upon the Judgment of Dyson LJ in Rowley v Secretary of State for Work and Pensions. The Defendants suggested that an assumption of responsibility could never arise because a social worker would only be acting in the course of his or her employment within a statutory framework. The Supreme Court have again made it clear that this argument is wrong and that a Local Authority can be negligent and/or in breach of statutory duty when fulfilling statutory tasks.
So where does that leave the Claimant?
A claimant wishing to bring a claim against a Local Authority for negligence and beach of duty will have to show that the Defendant has assumed a responsibility to protect the Claimant and that the Claimant has relied on the Defendant to take reasonable care.
Assumption of Responsibility and Reliance
Much emphasis will now be placed on deciding whether an assumption of responsibility exists and whether there has been reliance on the part of the Claimant.
It will be of concern to those litigating on behalf of Claimants that the Supreme Court in CN did not find that an assumption of responsibility had arisen nor that there had been any reliance on the part of the Claimants. In CN the Local Authority had exercised Child Protection measures including a Section 47 Enquiry.
I do believe however that there are strong grounds to differentiate CN from other cases.
CN was never about “failure to remove”. CN was a housing case. The situation is very different where a social worker is investigating allegations of serious abuse of a child by family members as opposed to the position in CN where no risk was posed by the parents and where, importantly, there were not even sufficient grounds to give rise to a statutory right to remove the children. In CN the children were not at risk because of a lack of parental care.
The typical case that I deal with involves a group of siblings who are suffering severe neglect, physical, emotional and often sexual abuse at the hands of parents or other family members. The Judgment in CN talks about implied duties of care and an analysis of the facts in each case. Of course a child being abused by a parent places reliance on Social Services to carry out a competent investigation when concerns about that abuse are raised. I believe there are much stronger arguments in this situation that an assumption of responsibility arises than on the facts of CN.
Each case is different. No one rule fits all and from hereon practitioners will have to carefully assess each case subjectively.
Claimant and Defendant alike both hoped that CN would bring certainty to this difficult area of work. Many cases have been held in abeyance for up to two years.
Lord Reed’s Judgment unfortunately does not bring the clarity that many had sought. If anything matters have now become even more complex.
In each case the parties will have to assess the extent of Local Authority involvement and the point at which they could be argued to have acted in a manner consistent with assuming responsibility and whether the Claimant has then placed reliance upon this.
There are likely to be many more litigated cases as the parties explore the various scenarios that may give rise to a duty of care on the part of the Defendant. My only hope is that the cases that become precedents are appropriate. It is the Defendant who will choose to appeal a case lost at first instance. It is the Defendant who has the power to choose which cases will eventually reach the higher Courts. As with CN the concern is that Defendants will attempt to choose cases that do not have the appalling facts that we often come across of children suffering neglect and abuse which could have been avoided by competent social work practice.
CN is good news for Claimants. The Court of Appeal Judgment opened up a risk that Local Authorities could avoid liability for this type of action. The Supreme Court have removed that risk and reasserted the law as set out in D v East Berkshire.
What the case has done, however, is focussed the attention of the parties on the need to establish tortious liability on the part of the Defendant by reference to well established principles including the foreseeability of harm, an assumption of responsibility by the Defendant and reliance upon this by the Claimant.
If all this fails there remains the Human Rights Act!
To speak to a member of Farleys’ abuse team about the possibility of making a claim please call our dedicated abuse line on 0330 134 6430 or send your enquiry online.