Protecting children from harm: Supreme Court hands down key decision on tort of negligence.
In an important decision on the liability of social welfare services and public authorities more generally, the UK Supreme Court has considered the extent to which local authorities and their employees owe a common law duty to protect children from harm caused by third parties.
The Appellants’ case in CN & GN v Poole BC [2019] UKSC 25 was that the local authority had been under a common law duty to protect them from harm after it became involved with their family having placed them in accommodation adjacent to another family known to have persistently engaged in anti-social behaviour. Following their placement, the two boys (one of whom was severely disabled) and their mother suffered years of physical and mental abuse, at one stage leading the older boy to run away from home leaving a suicide note. Their case had been struck out before a Queen’s Bench Master, before being reinstated upon appeal to the High Court. That judgment was then overturned by the Court of Appeal.
In its seminal decision, the Supreme Court held that a duty of care could be owed by local authorities when undertaking their social welfare functions and in so doing, the Court explicitly departed from the previous decision of the House of Lords in X (Minors) v Bedfordshire [1995] 2 AC 633. Importantly for all such cases in future, the Court reaffirmed the decision of the Court of Appeal in D v East Berkshire Community NHS Trust [2003] EWCA Civ 1151: the Court of Appeal in the instant case had been mistaken to find that D v East Berkshire had been impliedly overturned by the decision in Michael v Chief Constable of South Wales Police [2015] UKSC 2.
Lord Reed, giving the single judgment of the Court, made important statements of principle concerning the negligence liability of public authorities.
First, the incremental approach in the Caparo decision was re-affirmed, and the recent wane in the role of public policy confirmed. Lord Reed underlined that when examining the existence of a duty of care, the courts should, in the ordinary run of cases, apply established principles of law, rather than imposing a universal tripartite test for the existence of a duty of care and basing their decisions solely on public policy.
Second, Lord Reed reaffirmed the principle, also found in recent cases, that public authorities are subject to the same general principles of the law of tort as private individuals. As a consequence, it was held that a duty of care would arise in social welfare cases when the authority created the source of danger or had assumed responsibility to protect the claimant from harm, unless the imposition of such a duty would be inconsistent with the statutory framework within which the authority was operating.
Third, the distinction between omissions and positive acts was considered by the Court, following discussion in the previous cases of Michael v Chief Constable of South Wales Police and Robinson v Chief Constable of West Yorkshire [2018] UKSC 4. Lord Reed preferred to distinguish between causing harm (making things worse) and failing to confer a benefit (not making things better) rather than using the act / omissions terminology. This language, he said, “better conveys the rationale of the distinction drawn in the authorities, and … because the distinction between acts and omissions seems to be found difficult to apply.” (para 28). In underlining the importance of the distinction between causing harm and failing to protect from harm, Lord Reed relied upon the authorities of Stovin v Wise [1996] AC 923 and Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15. It was emphasised that public authorities, like private individuals, do not generally owe a duty of care to confer benefits on individuals, such as protecting them from harm by third parties. It was noted that the current circumstances represented just such a case in which the defendant was alleged to have failed to provide a benefit to the claimants, by failing to protect them from harm.
Fourth, the Court made important statements about the notion of an assumption of responsibility. The Court defined this concept as “an undertaking that reasonable care will be taken, either express or more commonly implied, usually from the reasonable foreseeability of reliance on the exercise of such care.” (para 80). Lord Reed held that an assumption of responsibility could arise within the operation of a statutory scheme by a public authority, if the ordinary criteria for such a finding were present. In the instant case, however, Lord Reed held that “the nature of the statutory functions” was not sufficient for an assumption of responsibility to arise; in particular that the council’s investigating and monitoring of the claimants’ position did not involve the provision of a service to them on which they or their mother could be expected to rely.” (para 81).
It was recognised by the Court that, even though the carrying out of statutory duties did not itself give rise to a common law duty owed to individuals, an assumption of responsibility could be inferred from the facts of individual cases due to the manner in which public authorities behaved towards a claimant in a particular case (para 82). This quintessentially factual issue will no doubt be explored in later cases, for example in typical ‘failure to remove’ type cases, however the court did give some consideration of circumstances that are likely to be relevant, indicating that in social welfare cases an assumption of responsibility was likely to arise in case of: the provision of advice in respect of which it is reasonably foreseeable that the claimants would rely (para 87); when a local authority takes a child into care (such as in Barrett v Enfield); when a defendant performs some task or provides a service for the claimant with an undertaking that reasonable care will be taken, such as in the provision of medical or educational services or custody of prisoners (para 73).
The Court did not find that any of these factors were present in the instant case, and thus held that it was not arguable that the council owed the claimants a duty of care. It was also held that there was no vicarious liability on the part of the council for the negligence of its employees: there was no suggestion that the social workers provided advice on which the claimants would rely; and this was not a case of the defendant undertaking the performance of some task or provision of service for the claimant with an undertaking that reasonable care will be taken. The Court also considered that the alleged breach of duty, namely a failure to remove the claimants from the care of their mother, was not made out in this case.
Several members of Chambers appeared in this case. The appellants were represented by Lizanne Gumbel QC, who led Iain O’Donnell, Duncan Fairgrieve and Jim Duffy. They were instructed by Leigh Day. Philip Havers QC and Hannah Noyce appeared for the AIRE CENTRE, one of a number of organisations granted permission to intervene, with Martin Downs among those representing the Coram Children’s Legal Centre.
Judgement available here.
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