If a local authority fails to remove a child at risk of harm from their home, should the authority be liable when the child in fact suffers harm?

Today in Poole Borough Council v GN and Another [2019] UKSC 25, the Supreme Court has unanimously dismissed an appeal by the claimants. The court upheld the decision of the Court of Appeal that a local authority did not owe a duty of care to exercise its statutory powers to protect individuals from harm from third parties.

The facts

The claimants and their mother were placed in accommodation by the local authority. The claimants went on to suffer abuse from a nearby family, who persistently engaged in anti-social behaviour. They suffered physical and psychological abuse.

They alleged the council should have exercised its powers under the Children Act 1989 to remove them from their accommodation to protect them from harm.

The decision

Lord Reed delivered the judgment, and rejected both strands of the claimants' appeal.

The first was that the council owed a common law duty of care to exercise their statutory functions to protect individuals from harm.

The court held that the council had not assumed a responsibility for the claimants' welfare such that a common law duty arose to protect them from harm. The council's conduct in investigating and monitoring the claimants' situation did not involve the provision of a service upon which the claimants could rely. They had not entrusted their safety to the council, nor had the council accepted such a responsibility.

Secondly, the claimants argued that the council was vicariously liable for the negligence of its social workers. While social workers had a contractual duty to the council to exercise proper professional skill and care, the court did not consider they owed a similar duty to the claimants in negligence. That would depend upon whether the social workers assumed a responsibility to perform their functions with reasonable care. There was no pleaded basis to establish such an assumption of responsibility.

As a final point, the court noted the claimants' case was premised on the idea that the council breached its duty by not removing them from their home into its care. The statutory provisions for obtaining a care order would have required the council to establish they were suffering, or were likely to suffer, significant harm due to a lack of reasonable parental care. Since the harm suffered was not by their mother but by a third party, there were no grounds for obtaining a care order. As a general rule, there could be no liability for the wrongdoing of a third party.

An end to failure to remove claims?

The decision will be a welcome relief to local authorities and their insurers in the context of abuse litigation, and provides clarity to the long-running argument over a local authority's liability for failure to remove children from harm.

Lord Reed did state that X (Minors) v Bedfordshire County Council [1995] 2 AC 633 "cannot now be understood as laying down a rule that local authorities do not under any circumstances owe a duty of care to children in relation to the performance of their social services functions". However "the existence of an assumption of responsibility can be highly dependent on the facts of a particular case".

The decision leaves open the prospect of such a case being made out. Now it is left to future cases to chart the circumstances when that will be so.