Did council owe claimants a duty of care?

The claimants were two children (one of whom was severely disabled) who alleged that the defendant local authority had negligently failed to take the necessary steps to safeguard them. They and their mother were the target of prolonged abuse perpetrated by members of a neighbouring family between 2006 and 2011. The Court of Appeal in CN & GN v Poole Borough Council [2017] EWCA Civ 2185 decided that the local authority owed them no duty of care in these circumstances and they appealed to the Supreme Court. 

Lord Reed, giving the judgment of the court, summarised the history of the law. In X (Minors) v Bedfordshire County Council [1995] 2 AC 633, the House of Lords decided that liability in negligence would complicate decision-making in a difficult and sensitive field, and potentially divert the social worker into defensive decision-making. Consequently, it was not just, fair or reasonable to hold that there was a duty of care.

However, in D v East Berkshire Community NHS Trust [2003] EWCA Civ 1151, the court of Appeal (whose decision was upheld by the House of Lords) noted that several of the policy factors relied on in X (Minors) v Bedfordshire had been questioned in two subsequent decisions, Barrett v Enfield London Borough Council [2001] 2 AC 550 and Phelps v Hillingdon London Borough Council [2001] 2 AC 619. Furthermore, the effect of the Human Rights Act 1998 was to impose a potential liability on local authorities to compensate children where there was a failure to protect them from ill-treatment and neglect or where the children were wrongly taken into care. Consequently, it would no longer be legitimate to rule that, as a matter of law, no common law duty of care was owed to a child in relation to the investigation of suspected child abuse and the initiation and pursuit of care proceedings. It was also held that no duty of care was owed to the parents of the children, in view of the potential conflict between their interests and those of their children. 

Subsequently, Mitchell v Glasgow Council [2009] 1 AC 874 concerned the question of whether a local authority owed a duty of care to warn one of its tenants that he might be in danger when it responded to previous violent behaviour towards him by his neighbour. Michael v Chief Constable of South Wales [2015] 2 WLR 343 concerned the question of whether the police owed a duty of care to a person who made an emergency call reporting threats of violence by a third party. These and Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 41 laid down three principles: (1) that public authorities might owe a duty of care in circumstances where the principles applicable to private individuals would impose such a duty, unless such a duty would be inconsistent with relevant legislation; (2) that public authorities did not owe a duty of care at common law merely because they had statutory powers or duties to prevent a person from suffering harm; and (3) that public authorities could come under a common law duty to protect from harm in circumstances where the principles applicable to private individuals would impose such a duty, as for example where the authority had created the source of danger or had assumed a responsibility to protect the claimant from harm.

Lord Reed said that it was apparent from these cases that the nature of an assumption of responsibility was of importance in the present context. In Rowley v Secretary of State for Work and Pensions [2007] EWCA Civ 598, the Court of Appeal held that the DWP in carrying out its statutory duty to assess child support maintenance, did not assume a responsibility towards the parent with care of the children in question. That was followed in X v Hounslow London Borough Council [2009] EWCA Civ 286, where it was held that a local authority’s social services and housing departments had not assumed a responsibility to protect vulnerable council tenants and their children from harm inflicted by third parties. 

These judgments should not be understood as meaning that an assumption of responsibility could never arise out of the performance of statutory functions. Barrett and Phelps were cases in which an assumption of responsibility arose out of conduct undertaken in the performance of statutory duties. Moreover, the decision in X (Minors) v Bedfordshire could not be regarded as good law in so far as it ruled out on grounds of public policy the possibility that a duty of care might be owed by local authorities or their staff towards children with whom they came into contact in the performance of their functions under the Children Act 1989. 

However, the claim as pleaded against the council was based on an assumption of responsibility or ‘special relationship’. The council’s investigating and monitoring the claimants’ position did not involve the provision of a service to them on which they or their mother could be expected to rely. Nor could it be said that the claimants and their mother had entrusted their safety to the council, or that the council had accepted that responsibility. The council had not taken the claimants into its care, and thereby assumed responsibility for their welfare as had happened in Barrett. 

Finally, the particulars of claim stated that the council should and would have arranged for the claimants’ removal from home into at least temporary care. Lord Reed said that for a claim to be made out, it would have been necessary to establish that the claimants were suffering, or were likely to suffer, significant harm which was attributable to a lack of parental care. Nothing in the particulars of claim suggested that those conditions could possibly have been met. The harm suffered by the claimants was attributable to the conduct of the neighbouring family. There were no grounds for removing the children from their mother. 

Lord Reed would therefore conclude that the particulars of claim did not set out an arguable claim that the council owed the claimants a duty of care and their appeal would be dismissed. 

Malcolm Johnson is a senior solicitor at Hudgell Solicitors