The Court of Appeal has held it would be unjust to expand a local authority's common law duty of care to protecting children from harm from third parties.
Between May 2006 and December 2011 the Claimants, CN and GN, both of whom were children, and their mother were housed by Poole Borough Council ("the Council"). The Claimants were subject to harassment, anti-social behaviour and criminal behaviour by members of a neighbouring family on the estate. The Council were aware of the anti-social conduct of the neighbour prior to placement of the Claimants and their mother.
The Claimants and their mother frequently reported the behaviour to the Council and local Police, and despite a critical independent case review into the conduct of the Council (in March 2010), were not placed into alternative accommodation until December 2011.
Following the dismissal of an initial set of proceedings, all three members of the family commenced proceedings against the Local Authority in December 2014. They pleaded common law negligence alleging that the Local Authority had failed to protect them and rehouse them to a place of safety.
CN and GN issued an alternative claim that the Local Authority had failed to protect them (as children) from personal injury and should have rehoused them as a family, or take the Claimants into the care of the Local Authority if deemed necessary, compliant with its duties under the Children Act 1989.
Both claims were struck out by Master Eastman as having no reasonable prospect of success; however CN and GN successfully appealed against the striking out of their alternative claim.
High Court decision
The High Court found that authority in the case of JD v East Berkshire NHS Community Trust had established a purported duty of care on the part of the Council in similar circumstances, and remained good case law.
The High Court therefore held the claim was wrongly struck out finding that the claim must be considered on its particular facts to ascertain whether all the elements necessary to establish a cause of action in negligence are present: foreseeability, proximity or assumption of responsibility and that it is fair, just and reasonable to impose liability. This issue was not apt for determination on an application to strike out the claim.
The Council was granted permission to appeal this decision to reinstate the claim.
Court of Appeal decision
The Court of Appeal unanimously allowed the Council's appeal and therefore struck out; the case and restored the order of Master Eastman on the following basis:
- To make a finding of liability in negligence may lead social workers and police officers into defensive decision-making. Furthermore it would complicate decision-making in circumstances which are already deemed difficult and sensitive in nature.
- It would be unjust to extend liability to one agency (the social services) where other agencies (the police, the housing department) were arguably more centrally involved but could not be held liable. Mitchell is a clear example that a claim against the housing authority on grounds of common law liability would not succeed.
- The claim in this case amounts to a criticism of the housing authority dressed up into a claim arising from duties and powers under the Children Act 1989.
- This case is substantively different from that of JD v East Berkshire as the alleged wrongdoing in that case - abuse carried out by a parent or guardian - was being undertaken by those who would potentially retain/gain custody of the child.CN & GN v Poole involved 'third parties', e.g. neighbours, who were the perpetrators of the wrongdoing.
- JD v East Berkshire is inconsistent with subsequent decisions of higher authority, in particular Mitchell and therefore is no longer considered good law.
- It would have been "legally unsustainable" for a court to grant a care order on the application of the Local Authority in these circumstances. There is a high threshold for granting a care order and a court will only sanction the removal from a parent to protect the child's safety from the parent. In this case the allegations of harassment and anti-social behaviour stemmed from the actions of a third party outside the family household.
What can we learn?
- The Court of Appeal has held it would be unjust to expand a local authority's common law duty of care to protecting children from harm from third parties.
- In making the judgment that JD v East Berkshire no longer represents good law, the case of X v Bedfordshire CC once again becomes valid precedent, in that a failure to commence care proceedings does not, by itself, give rise to any private law cause of action. The decision will not open floodgates and therefore it is unlikely there will be increased litigation.
- Insurers should be referring to X v Bedfordshire County Council as the governing authority to defend claims where it is alleged a local authority had a common law duty to remove the child from their family through care proceedings.
- The Court of Appeal further expressed a clear reluctance to place liability onto one agency when other agencies had been involved in the decision making process throughout the difficulties experienced by the Claimants and their mother.
- Whilst the Court of Appeal acknowledged a lawyer who drafts pleadings in cases of this nature may not necessarily have specific expertise in relation to care proceedings, the court expect lawyers to have a basic understanding of the statutory basis if they wish to rely on it.
- Insurers should note this may not be the end for this case as the Claimants have sought permission to appeal to the Supreme Court.