The duty of care owed by Social Workers to children who they seek to protect has been a roller coaster ride over the last few years. Historically, no cause of action in negligence existed, but in 2004 the law changed to allow actions to be brought relatively easily. However, last year we returned to a position where prima facie no duty was apparently owed. Since then, these claims have been in limbo whilst the Supreme Court considers whether they can proceed. We now have the Supreme Court decision, and this article considers what happens next.
Between May 2006 and December 2012 CN and GN (the anonymised children) and their mother were placed in housing by the local authority where they were harassed and subjected to anti-social behaviour by neighbours. A claim was brought against the local authority, the Police and Poole Housing (for whom David Knapp acted).
Various allegations were pleaded by the mother and children, in common law and under the HRA. The claim was struck out by a High Court Master. The case was then repleaded and the key part of their case became the assertion that it was negligent of the local authority not to remove the children from the harmful environment. The claim was reinstated by Mrs Justice Slade in March 2015, the decision was appealed to the Court of Appeal by the local authority , seeking to strike the case out again.
What issues did the Court of Appeal face?
Historically, decisions or omissions by local authorities whether to take a child into care (to protect them) were not actionable in negligence.
The 2004 decision in JD v East Berkshire Community Health NHS Trust changed this. The Court decided that the Human Rights Act meant that it was wrong for such children to be prevented from making a claim.
This decision was criticised in various cases, such as the Supreme Court decision in Michael v Chief Constable of South Wales, which held that there was ordinarily no duty on the Police or other emergency services to help members of the public in need. It seemed unfair that in a case where, as here, the claims against the Police and the Housing Partnership were struck out because no general duty in negligence was owed, the claim against social workers could continue. Hence the Court of Appeal decided to bring the responsibilities owed by Social Services professionals in line with other public services. They struck out the claim in negligence by CN and GN, which had alleged they should have been removed from the harmful position they were in.
CN and GN were of course not at risk from their parents, instead it was (unusually) their neighbours who were causing them distress. However, if there was no duty to protect the children from the actions of neighbours then, logically, there could be no duty to protect children from their parents. Most claims relating to ‘failure to remove cases’ came to a halt pending the Supreme Court appeal.
Exceptions remained, public servants being liable in negligence if they assume responsibility for an individual and then fail to act competently (for example social services professionals). But exactly how an assumption of responsibility can occur in social services claims has not been properly considered by the Courts because a wider general duty had existed since JD.
In relation to public services claims, each category of public service is subject to some exceptional situations where claims can still be brought. Furthermore all public services are subject to potential actions for infringement of the various articles of the Human Rights Act. Those claims remained open after the Court of Appeal decision.
The Decision of The Supreme Court
The claim remained struck out and there is no liability in negligence (or duty to protect) unless:
1. The Authority has taken positive steps which harm the child. So, if a Child Protection investigation is negligently undertaken which leads to the removal of the child, liability may be argued.
2. There has been an assumption of responsibility to protect the child from a known danger/risk. This was core to this case.
3. The authority has taken steps which prevent another person from protecting the child. This could be argued to apply where a report is negligently prepared, which precludes, say, the police intervening.
4. The authority has a special level of control over the source of danger to the child. So, if there is a known hazard from a Schedule 1 offender, that could form a possible claim.
5. The authority’s status creates an obligation to protect the child from danger. Such examples are not obvious, but could be developed.
6. None of these five exceptions applied although each case will be fact sensitive.
Claims can also be pursued:
1. Under the recognised current exemption under Barrett v Enfield , where a child has already been taken into care, whether on a voluntary or care order basis, by the local authority.
2. Under the Human Rights Act, alleging breach of Articles 3 and 8.
The Act came into force on 2nd October 2000, and it is not retrospective. Therefore it cannot assist those who allege historic abuse. A limitation period of one year also applies.
The case recasts the law in respect of failure to remove (or protect) cases, and we now have a limited range of scenarios where claims can be brought in negligence.
In particular, liability through assumption of responsibility can take place. The Court made it clear that assumption can take place through a number of routes. So, if a report is prepared which the parents rely upon, then that might lead to liability (though usually Social Services reports are circulated internally only). Further, if an authority impliedly undertakes to look after the affairs of the child, then again, liability could arise.
At present, it is not clear where the thresholds lie. Can responsibility arise as soon as a local authority becomes aware that a claimant is a child in need or must they have taken a substantive step such as obtaining a care order and removing the child? Is the commencement of child protection procedures, or other measures short of removal, sufficient to amount to an assumption of responsibility? It is clear that there has to be positive action by way of intervention, and an omission is not to be classified, of itself, as a positive act (and therefore is not actionable).
We anticipate further litigation to clarify the definition of what amounts to an assumption of responsibility in particular, plus we shall see more claims under the HRA. The factual situation applicable to each claim will be more important than ever.