Specialist abuse solicitor, Peter Garsden considers the recent case of CN v GN v Poole Borough Council:
Since the judgment in the CN & GN case came out on 21st December 2017, there have been several articles blogged on Defendant solicitors websites, which trumpet that this case marks the end of “failure to care” cases as we know them. Certainly, my experience is that Defendant solicitors in such cases have suggested that all work be stayed pending clarification by the Supreme Court, who is, I understand being petitioned, leave having been refused. I have now had the chance to read the judgment thoroughly. My initial instinct that this case is about the behaviour of anti-social neighbours in a block of flats rather than the failure of social workers to behave competently in allowing a child in care to remain in an abusive household, has been born out by my reading, as I will attempt to explain.
To clarify, this case involves an allegation that 2 vulnerable children with learning disabilities were so plagued by the behaviour of their anti-social neighbours that they suffered psychological harm, and, at one point attempted suicide. The police, social services, and housing authorities knew of the problem, and allegedly did nothing to prevent it from happening as, it was alleged, they should have done. Because no viable action could be mounted against the Housing Authority, the Public Housing Project, or the police, due to limitations in precedent law on duty of care and breach of statutory duty, resort was had to allegations that social services should have taken the children into care. The Claimant solicitors recast their pleadings to so say, and it is this attempt to lay blame upon social services that came in for much criticism in the Court of Appeal. It was said that it was tantamount to legal legerdemain (a new word on me but I think I follow the meaning). It was added by Davis LJ that such a case would not have passed the threshold criteria for receipt into care, and would have been an abuse of process.
Duty of Care
Much of the judgment is taken up by a discussion of the argument in the cases of Mitchell, and Michaels, which are analogous cases in that Mitchell tries to blame the police for operational negligence, and Michaels, Glasgow City Council for failing to protect a tenant who was murdered by a neighbour, known to be a danger. In both cases (one was Scottish), the Higher Courts refused to order that there was a duty of care for the omissions of public bodies to protect individuals from the actions of 3rd Parties where it was foreseeable that, if action was not taken, dire consequences would result. Predictably the predicted consequences eventuated.
The analogy, obviously, is that in those cases, and the present one, a public body is being asked to take the blame for the actions of an individual whose actions affect another individual. The relationship is undoubtedly different to a child in the care of the local authority, who is failed by being left with a known abuser. The duty of care owed to a child in care is undoubted whereas the duty of care to a housing tenant is not so established or obvious. In failure to care cases one is arguing that there has been a breach of the duty of care in negligence simply. One does not have to argue that a duty of care should be implied from a statutory duty or as an extension to a breach of Human Rights under the Human Rights Act 1998.
The above is obvious from various parts of the Judgment. Irwin J delivers the lead judgment. He says at paragraph 104:-
“, it seems to me that the Defendant is correct in submitting that this claim is not in truth based on failures arising from duties and powers under the Children Act. The proposition that the remedy here was removal from the family, from the care of the Claimants’ mother, seems fanciful. The claim is in fact a criticism of the housing functions of the local authority, exercised through the agency of PHP, shoe-horned into a claim arising from duties and powers under the Children Act 1989.”
In other words, this is not a failure to care case even though the Claimant tried to argue before the Court that it was. The only reason they did so was because they couldn’t blame the Public Housing Project (PHP) or the Housing Department of the Local Authority, or indeed the Police, all of whom were involved, but all of whom, for different reasons, could not be held to blame. Indeed, a previous action, by the same Claimants, against them had been struck out in 2013.
Again at para 50, Irwin J, when discussing X v Bedfordshire says: –
“In my view, the answer would have been even more decisive were the House of Lords to have had the current case in contemplation: not a risk within the family setting but a problem arising from a housing placement. Here, to a greater extent even than in the cases in X v Bedfordshire, other disciplines, public bodies and public servants were involved; here the risk of complex dispute, loss of trust and ill-feeling must have been all the higher, since the allegation is that the Defendant’s social workers, in the face of failure by the Defendant’s housing department and/or PHP to rehouse the Claimants (and in the absence of a private law remedy against the latter), should have removed the Claimants from their mother’s care.”
X v Bedfordshire & JD v East Berkshire
I find it somewhat bizarre that, so much emphasis was placed in the judgment on X v Bedfordshire because I thought it was common ground that the case had been disapproved and overruled by various decisions of the European Court.
X v Bedfordshire imposed immunity from suit for social workers exercising their duties towards children. The European Court then disapproved the judgment in Osman v the United Kingdom and Z v the United Kingdom. At that time there was fear that no claim in negligence could be justified until the European cases came along. They were then followed (Lizanne Gumbel obviously pointed this out, but she gets scarcely a paragraph in the judgment) by S v Gloucestershire County Council [2001] Fam 313, Barrett v Enfield London Borough Council and, “most importantly”, D v East Berkshire Community NHS Trust [2004] QB 558.
I remember that the tide changed completely following Barrett v Enfield, following which it became possible to take failure to care cases to court. Previously it had not been possible to do so, because of the X v Bedfordshire line of cases.
Moreover one must not ignore the authority of Pierce v Doncaster MBC (2008), which was a Court of Appeal decision where liability was found on the basis of duty of care derived from a statutory duty. In addition, there was a finding of negligence for failings made both before and after a care order. This is still good authority and survives D v East Berkshire
In the judgment there is much discussion about D v East Berkshire, and how it has been overruled by both Michaels, and Mitchell. Irwin J agrees that it has been overruled, but not so as to outlaw failure to care cases but in as much as it was authority to invest a duty of care in the Local Authority for acts of omission in relation to their relationships with third parties such as fellow tenants in a block of flats. Irwin is not saying that because D v East Berkshire is bad law, that all failure to care cases must fail from now on. Mention is made of the proliferation of failure to care claims, but they are not disapproved of.
In any event, even without the authority of D v East Berkshire one can still fall back on the other cases referred to above, and in particular Barrett v Enfield Borough Council, & Pierce which have not been overruled or even doubted.
From my reading, there are those that are arguing that we have now gone back to the days of immunity from negligence by social workers on the grounds that if one places the risk of an action in negligence in the background, it will interfere with the way in which they conduct their duties as a social worker. This would really be a retrograde step, completely out of step with European precedent and Human Rights, and not the effect of this judgment in my view.
As an aside, it concerns me that if we part company with European law under Brexit, we could see again the sort of tortuous logic and precedent led decisions which this case has produced.
How do failure to care cases differ from CN and GN?
- They rely upon common law negligence rather than negligence derived from breach of statutory duty because the duty of care is established when the child goes into care
- The care of the children is entrusted to either the natural parents of the child or foster parents, or a children’s home, where the abuser is usually someone under the supervision and surveillance of the Local Authority rather than an independent third party
- The analogous situation in failure to care cases, which could compare to CN & GN is where the child is abused by a visiting neighbour, an aunt/cousin or other wider relative not living with the family, who may be known to the local authority to be abusive. In this situation there could be arguments around duty of care and its scope
Is there now a conflict with the Supreme Court decision in Armes v Nottinghamshire County Council [2017] UKSC 60?
Armes firmly establishes that a local authority is liable for abuse by foster parents on the basis of vicarious liability when previously there was no possible right of action unless one could establish that the Local Authority had been negligent, because, for instance, it could be shown that complaints against the foster parents had been ignored.
Whilst CN and GN relate to duty of care, the two decisions, at first blush do seem at odds with each other. On the one hand the Supreme Court (Lady Hale particularly) seem to be straining to find rights of action for abused vulnerable children, whereas on the other hand the Court of Appeal seem to be operating in completely the opposite direction, reversing back into 1990’s precedent case law.
You may or may not have seen the article in the Daily Mirror – https://www.mirror.co.uk/news/uk-news/fury-judges-deny-thousands-child-11774767 – which very much disapproved of the judgment, even showing pictures of the judges involved, and predicted that it signalled the end of failure to care cases. I am sorry, but I disagree with the learned author. Sadly, the Defendant lobby disagree with me and want all failure to care cases stayed to await guidance from the Supreme Court.
Conclusions
- This judgment is limited the peculiar facts of this case which should not mean that all failure to care cases should fail.
- Defendants should accept that failure to care cases can continue as previously and should not be arguing for stays.
- The judgment confirms that local authorities do not owe a duty of care to prevent the acts and omissions of third parties in situations such as tenants in the same building where it is known that the tenant concerned had certain propensities to behave in a certain way.
- The Claimant in this case tried to artificially argue that a care order should have been imposed when there were no adequate grounds to so argue as a way round their inability to blame more blameworthy public bodies such as the Housing Department, the Housing Management Body, or the Police.
- Failure to care cases remain viable due to the argument in Pierce v Doncaster MBC and other cases cited above, a point tacitly conceded in the briefing note compiled by the victorious Defendant solicitors and Chambers – https://www.lexology.com/library/detail.aspx?g=1c4e239e-179a-43bd-b689-92eaeb36e3dc
- As an Association of Child Abuse Lawyers, we should lobby the Supreme Court and persuade them to expedite an appeal against the judgment so as to clarify the position which now inevitably persists. It would also be very helpful to know how many outstanding cases there are.
18th January 2018
© Peter Garsden, Simpson Millar LLP solicitors, President of the Association of Child Abuse Lawyers peter.garsden@simpsonmillar.co.uk , www.abuselaw.co.uk