On 21 December 2017 the Court of Appeal handed down Judgment in the case of CN v Poole Borough Council.
This is a case which is likely to have a wide ranging impact on claims brought as a result of alleged negligence by Social Services departments.
I specialise in abuse claims and in particular in acting for victims of abuse which could have been prevented by Social Services intervention. A typical situation will involve a group of siblings who are suffering significant neglect, physical and sexual abuse at the hands of parents. The abuse will have been alerted to Social Services by various other professionals including health visitors, teachers, doctors and even neighbours. Social Services then fail to remove the children, sometimes for many years, resulting in significant long term psychiatric harm.
This is a situation that is all too common and these cases have often been referred to as “failure to remove” cases.
The law in this area is complex and until CN v Poole it had been accepted that there was a duty of care owed generally by Local Authorities to children derived from the statutory duties under the Children’s Act 1989. Particular reliance was placed on the case of D v East Berkshire where the Court considered the effect of the Human Rights Act 1998 and held that the duty of care did exist.
As a result any child that was badly let down by a Local Authority Social Services department had a valid claim against the Local Authority for damages for negligence and breach of duty and I have many such claims ongoing at the present time.
The case of CN v Poole Borough Council throws matters into confusion. The first important point to note is that CN v Poole is not a typical “failure to remove” case. It is a housing case. It is not a case where children were suffering terrible abuse at the hands of their parents or carers. It is a case where a family on a housing estate suffered from anti-social behaviour at the hands of other residents.
Lord Justice Irwin gave the lead Judgment and held that the established position in D v East Berkshire is wrong. There is no affirmative duty on a Local Authority to protect vulnerable children.
That, however, is not an end to the matter.
On the basis of Lord Justice Irwin’s decision as approved by Lord Justice Davis and Lady Justice King, liability can still be attached to a Local Authority where there has been an assumption of responsibility.
Lawyers are likely to spend many months and years now arguing about what constitutes an assumption of responsibility on the part of a Local Authority. Specialists in this area will already have been digging out their old tort text books and reviewing the cases of:-
Hedley Byrne and Co Ltd v Heller and Partners Ltd  UKHL 4
Dorset Yacht v Home Office  A.C 1004
Henderson v Merrett Syndicates  UKHL 5
There are various cases in relation to assumption of responsibility but none specifically in relation to this area.
My own personal view is that a Local Authority will have to accept an assumption of responsibility when they take some positive action in relation to a vulnerable child. If, for example, they feel that a child is sufficiently at risk to intervene and place that child on a child protection register I believe that there will an assumption of responsibility. I also believe that it is arguable that there will be an assumption of responsibility once a Social Worker identifies a child as a Child in Need and carries out an assessment. Under Section 17 (2) and Schedule 2 of the Children’s Act 1989 a Local Authority has a duty to Children in Need and once the Local Authority takes positive action I believe it to be arguable that the assumption of responsibility test has been satisfied and the liability will attach.
It must also be remembered that the decision in Poole is only at Court of Appeal level. Whilst permission to appeal was initially refused it is likely that an application for leave to appeal will now be made to the Supreme Court who will give a final ruling on this point.
It must also be remembered that even if the Local Authority do not have a duty of care to a vulnerable child that child will still have a potential claim under the Human Rights Act if his or her rights have been breached and again there is now likely to be significant litigation to try and establish the appropriate level of damages in such a situation. The Claimants will undoubtedly argue that if there is no duty of care owed any more by a Local Authority for a child to get just satisfaction under the Human Rights Act comparable damages must be paid as would otherwise have been allowed in a civil action. This argument was effectively what brought about the original decision in D v East Berkshire.
My interpretation of the present position following CN v Poole and subject to any successful appeal to the Supreme Court is as follows.
Where a child is abused or neglected and a Local Authority fail to intervene there is no longer a general duty of care which would give rise to an action.
Their failure is still actionable under the Human Rights Act.
There will come a point where there is an assumption of responsibility which will make their negligence actionable and that this would possibly be triggered by entry on to a Child Protection Register or some form of intervention.
That there will undoubtedly be liability on the part of the Local Authority from the point at which the child is taken into their care either on the basis of a Section 20 agreement or an Interim Care Order and that any child who suffers whilst in the care of the Local Authority will still have a valid action in addition to a Human Rights Act claim.
Finally one must consider the recent decision in Armes which imposed vicariously liability on Local Authorities for the actions of foster carers. This decision seems inconsistent with the decision of the lower Court in Poole. Why should a Local Authority be responsible for the negligence or breach of duty by a foster carer but not for the negligence or breach of duty by its own employee i.e. Social Worker. It does not make sense.
Many Defendants feel that the decision in Poole will undermine “failure to remove” claims.
My own view is that there will still be valid claims against Local Authorities for the negligence of Social Workers but that these claims will now be even more complex than was previously the case as parties argue about when an assumption of responsibility has arisen and quantum of damages under the Human Rights Act.
Farleys have a department which specialises in bringing claims against Local Authorities and if you wish to discuss any aspect arising from these recent legal developments please do not hesitate to contact one of our specialist team on 0845 287 0939 or email us here.