A judge in the Supreme Court has ruled that councils are legally accountable for children in their care.
The move overrules a previous Court of Appeal decision last year where a mother and two children were subjected to antisocial behaviour and abuse from neighbours but which found that Poole Council was not at fault.
The claimants, who have been given anonymity, sought damages for personal injuries suffered while they were children living in the area of Poole council. They maintain that the injuries they endured were as a result of the council’s negligent failure to exercise its powers under the Children Act 1989 to protect them from harm at the hands of third parties.
The claimants and their mother suffered harassment and abuse at the hands of this family over a period of several years until they were re-housed in December 2011. This included vandalism of the mother’s car, attacks on the family home, threats of violence, verbal abuse, and physical assaults on the mother and one of the claimants. As a result, the claimants suffered physical and psychological harm. Both claimants were identified by the council as children in need as defined in the 1989 Act during this period, and had social workers allocated to them.
Claims brought by the siblings CN and GN were unanimously dismissed earlier this month in a judgement handed down by Lord Reed. In dismissing the claims, the Supreme Court clarified the extent of a local authority’s duty of care to avoid harm when exercising child protection functions.
"This decision clarifies that a local authority does not owe a duty of care at common law simply because it has statutory powers or duties, even if by exercising those powers or duties they could prevent harm being suffered. However, a local authority and its social workers may owe a duty of care to protect from harm in the same circumstances that private individuals or organisations may owe such a duty of care i.e. where they have created the source of the danger or assumed responsibility to protect a claimant," explained Kate Prestidge, Partner at Plexus.
The claimants, CN and GN, are siblings who were aged 9 and 7 respectively at the time of the complaints. In 2006, the siblings moved with their mother to a new house in Poole, arranged by Poole County Council as the local housing authority. CN suffered with severe physical and learning difficulties and was a ‘child in need’ as defined by S17 of the Children Act 1989.
The local authority is said to have been aware of a neighbouring family who were persistently anti-social in their behaviour prior to the housing placement of the siblings and their mother. The claimants and their mother were subjected to anti-social behaviour in the forms of violence and damage to their property, carried out by this neighbouring family, for the following five years.
The claimants’ mother complained to the police, local authority and landlord which, in this case, was Poole Housing Partnership. The anti-social behaviour escalated to the point that CN attempted suicide and in 2010 the Home Office commissioned a Review, the outcome of which was critical of all three organisations to whom the claimants’ mother had complained.
The mother and both siblings advanced a civil claim against all three potential defendants alleging breaches of the Human Rights Act 1998 and a failing in negligence to safeguard the family from anti-social behaviour. The claim was dismissed after a failure to serve Particulars of Claim.
Four months later, the claimants served further proceedings alleging negligence against the local authority only and an additional claim was also served on behalf of the siblings alone, alleging the local authority owed them a direct duty at common law to safeguard and promote their welfare.
Master Eastman struck out the claim as he was not satisfied that a common law duty to safeguard children existed under the Act. This decision was appealed by the siblings only, who argued that the Master had failed to have regard for the decision in JD v East Berkshire. The Claimants’ Appeal was permitted by Slade J and the claims were restored.
At the Court of Appeal, the appeal submitted there was no legal standing requiring that they owed a duty of care to protect the claimants from harm perpetrated by a third party. The defendants’ asserted that the Children Act 1989 did not create a duty of care in this situation and neither did the Act afford the defendant powers to simply remove a child from its parents: an emergency Protection or Care Order would be necessary in such a situation. The two main arguments advanced by the defendants were:
- Slade J had been wrong to accept she was bound by D v East Berkshire so as to conclude it was arguable that the local authority owed a common law duty of care to claimants in the exercise of its functions under the Children Act; and
- Slade J was wrong in failing to consider or accept the defendants’ contention that this case related to the local authority’s duties under the Housing Act rather than the Children Act.
The defendant’s appeal was unanimously allowed and the court accepted that the claimants’ claim related to a failure by the local authority to rehouse them and considered it implausible to suggest the claimants should have been removed from their mother’s care simply as a means of ending the anti-social behaviour.
In reaching this decision, Irwin J found that the authority of D V East Berkshire should no longer be followed, and that there was no good reason to conclude the local authority had assumed responsibility for the claimants in the circumstances of this case.
In dismissing the claimants’ appeal, the Supreme Court held that the Children Act 1989 does not create a statutory cause of action and a public authority cannot assume responsibility merely by operating a statutory scheme. The Court did not accept that the local authority had assumed a responsibility for the claimants through the process of investigating and monitoring their situation. As the claimants had not been taken into care, no responsibility for their welfare had been assumed.
In the Supreme Court, Lord Reed clarified that in considering whether a local authority owes a duty of care towards a child, the principles in Robinson should be followed and a distinction made between those cases where the defendant is alleged to have harmed a claimant and those cases where the defendant is said to have failed to provide a benefit to the claimant e.g. to protect them from harm. This case falls into the latter category.
In concurring with the Court of Appeal, the Supreme Court agreed there was no merit in the claimants’ suggestion that the local authority should have obtained a Care Order to protect them from the anti-social behaviour. Such an Order would require the local authority to establish the claimants were suffering, or were likely to suffer, significant harm caused by a lack of parental care.
Public authorities do not owe a duty of care at common law merely because they have statutory powers or duties, even if, by exercising their statutory functions, they could prevent a person from suffering harm. However, they can come under a common law duty to protect someone from harm in circumstances where the principles applicable to private individuals or bodies would also impose such a duty, as for example where the authority has created the source of danger or assumed a responsibility to protect the claimant from harm, unless the imposition of such a duty would be inconsistent with the relevant legislation
"Naturally, local authorities and other organisations will question how this Judgment is likely to impact more traditional negligence claims, such as failure to remove cases. As is always the position, each case will turn on its own facts, but what is now evident following the Supreme Court’s Judgment, is that a claimant will need to establish there was an assumption of responsibility for them, to be able to succeed in the assertion that a duty of care was owed," concluded Kate Prestidge.
The explanation of this case was provided by Kate Prestidge, Partner at Plexus.