On December 21st 2017, the Court of Appeal handed down its judgment in CN v Poole Borough Council  EWCA civ 2185.
This judgment prompted a report in The Times on the 1st January 2018 with the headline ‘Abuse victims told they can’t sue council for compensation’. The report went on to claim:
Victims of abuse who claim that councils failed to protect them may not be entitled to compensation.
A Court of Appeal ruling in a case against Poole council could affect thousands of people, including victims of the Rotherham grooming scandal, experts say.
There was similar reporting from the Daily Mirror – who went even further, claiming that Brexit will have implications for the continuing relevance of the European Court of Human Rights, a common but simply inaccurate belief.
Researching Reform published a post which claimed this new ruling ‘blocked’ abuse survivors from suing councils:
The judgment seeks to prevent claims from survivors who were known to be suffering but did not find themselves in full time state care, or subject to a care order of any kind. Potentially affected victims in this context then, could include those groomed by gangs or physically and sexually abused at home.
Just how reliable or accurate is such reporting of the impact of this decision?
It appears that the result of the CN judgments is that a common law claim in negligence for a negligent act or omission in a failure to investigate / failure to protect case (pre care order) may now fail; certainly claims of that type will now be fought tooth and nail by Defendants who will argue that a negligence action against a social services professional / Children’s Services Department is only now possible post a formal assumption of responsibility via a statutory decision to intervene.
This is a major judicial U-turn, which sets the law back 27 years by reinstating the largely discredited public policy reasons set out by Lord Browne-Wilkinson in X (Minors) v Bedfordshire CC  2 AC 633. Irwin LJ who delivered the main judgment has declared that the Court of Appeal decision in JD v East Berkshire  QB 558 should no longer be followed. It was Lord Phillips in JD who declared that X (Beds) should not be followed as the policy objections said to point away from the imposition of a duty of care (defensiveness, resources, delicate and multi-disciplinary decision making to name but 3) could not survive the Human Rights Act 1998 as local authorities were exposed to just those dangers under the Human Right Act.
The reporting is thus misleading as the Poole decision by itself does not ‘block’ victims of abuse – there remains the potential avenue to establish liability and financial compensation that flows from breach of the Human Rights Act 1998. For example, note the decision of the European Court in Z and Others v UK . This examined the refusal of the House of Lords in X v Bedfordshire in 1995 to find a duty of care existed to remove children from abusive home circumstances and thus denied them financial compensation for the significant harm they suffered. The European Court found the children’s Article 3 rights had been breached, so serious was the harm they suffered, and awarded damages.
However it is not surprising that decisions in these areas cause confusion and mis-understanding. Broad headlines about ‘abuse survivors’ being ‘blocked’ from claiming compensation are dangerously simplistic. These cases need very careful consideration about the legal mechanism identified for bringing a claim. Bringing a claim in negligence has different requirements than bringing a claim under the Human Rights Act – in essence to succeed in negligence you will need to show that you were owed a ‘duty of care’ by the person or institution that caused you harm.
The law around negligence is complicated and continually evolving. What follows can only be a blunt summary – if you are contemplating any kind of legal action in this field you are going to need specialist advice.
Why is the law so complicated in this area?
The reason for its complexity can be summed up fairly simply – if people are caused harm by the actions of another, then often they would like to be compensated for that harm. The only compensation possible in many cases is money – years of child hood cannot be restored for example.
Getting financial compensation may have to involve bringing legal action against people or agencies who did not directly cause the harm because they have ‘deeper pockets’ i.e. greater access to money via department budgets or insurance schemes. Insurance companies are usually very keen to avoid paying out. Thus such cases are often fought very hard.
This has proved a particularly fraught arena when dealing with harm done to children or families by the actions or failure to act of a local authority. Harm is most likely to be caused by individuals such as social workers or foster carers who are unlikely to be rich enough to be worth suing as individuals. The focus then falls on the local authority and to what standards they could reasonably be held. But when local authorities are under a statutory duty to try and protect children, there are significant public policy arguments against imposing financial liabilities owing to fears that this may lead to defensive practices and unwillingness to work with families. It is also often difficult to establish causation when many different agencies and people contribute to decision making.
To establish negligence you need to show that you were owed a ‘duty of care’ and in many cases the courts have refused to find that such a duty of care existed, relying on such public policy grounds.
However, those who argue against the refusal to extend liability point out that negligence is more than just ‘carelessness’ – it has to be behaviour that falls far below what you would expect from others in this field. Why shouldn’t children and families be protected from such serious failings?
The common law around negligence is continually evolving, reflecting the constant shifts in societal attitudes towards notions of vulnerability and harm. For example, we can see the clear evolution of of the court’s willingness to find local authorities liable for harm caused to children by abusive foster carers. As recently as 2015 the Court of Appeal decided a local authority could not be held ‘vicariously liable’ for the actions of its foster carers; however, the decision was over-turned in part when the case reached the Supreme Court in Armes v Nottinghamshire County Council  which decided that whilst there was not a non-delegable duty to take reasonable care, it was possible for such vicarious liability to exist.
The Poole case is interesting because the eventual argument before the court was restricted to an action in negligence about a failure to act – that the local authority should have removed the children from their mother’s care and thus saved them from the impact of anti social and abusive behaviour carried out by the neighbours. The Court of Appeal did not accept the local authority owed a duty of care in such a case – and to remove children from their parents in such circumstances under a care order would not merely be ‘utterly heartless’ and ‘utterly wrong’ but unlawful.
So what was really going on in Poole?
Factual background to the claim in negligence in Poole.
For further detail about the litigation history and legal arguments in this case, see this helpful briefing note from 1 Chancery Lane Chambers.
A mother ‘Mrs N’ had two sons, CN (aged 9) and GN (aged 7). CN had serious disabilities, requiring a high level of care and supervision. In May 2006, the family moved into accommodation on a housing estate in Poole. The local authority arranged this as the local housing authority and the accommodation was was rented from the Poole Housing Partnership Limited (“PHP”).
Sadly, over the next few years, Mrs N and her sons were the victims of serious anti socialbehaviour from a neighbouring family. Mrs N reported this to various agencies – the police, the local authority and the PHP. She had to complain further to local politicians about the lack of effective response from these agencies. This led to the Home Office being involved who carried out an independent case review in 2010 that criticised the agencies’ responses. However, the anti socialbehaviour continued and the family were finally re-housed in December 2011.
Litigation then commenced. In December 2012 the family claimed against the council, the police and the PHP alleging breach of the Human Rights Act 1998 and negligence. The essence of the claim was that all three agencies had failed to take appropriate steps to protect the family from abuse and this was a breach of their rights under Articles 3 and 8 of the ECHR (which respectively protect against inhuman and degrading treatment and mandate respect for family and private life).
However, the family did not provide any ‘Particulars of Claim’ i.e. the defendants didn’t get any details to explain exactly how and when they had breached the family’s human rights or had acted negligently. The family asked for more time to provide these details in August 2013, but in December 2013 that application was dismissed.
A year later a second set of proceedings was issued and this time only the council was a defendant and the claim was now based solely in negligence. Previous case law had established that no duty of care was owed by either the police or the housing departments in such circumstances.
A second claim was also made on behalf of the children that the council had failed to comply with its duties under the Children Act 1989 to safeguard them and promote their welfare.
The local authority wanted the court to strike out that second claim as having no foundation in law. However, In October 2015 the court dismissed both elements of the family’s claim, finding that there was no basis to hold that a local authority owed a duty of care to protect against the anti social behaviour of others and that there was no legal foundation to hold that the Children Act 1989 created any additional duty of care with regard to the children.
The children then appealed with regard to the argument that a duty of care flowed from the local authority’s obligations under the Children Act. The court were reminded of the Court of Appeal decision in JD & Ors v East Berkshire Community Health & Ors  EWCA Civ 1151 (31 July 2003) which found at para 87:
where consideration is being given to whether the suspicion of child abuse justifies taking proceedings to remove a child from the parents, while a duty of care can be owed to the child, no common law duty of care is owed to the parents.
The claim becomes about the local authority’s failure to remove the children from their mother
The appeal was heard in February 2016 and Slade J agreed that it was wrong to strike out the children’s claims based on the local authorities social services functions. The children’s case was then put on this basis, arguing that the local authority should be liable for the following failures:
a) Failed to assess the ability of the Claimants’ mother to protect her children from the level of abuse and violence they were subjected to. The Defendant did not carry out any timely or competent risk assessment and such assessments as were carried out were flawed and delayed ….
(b) Failed to assess that the Claimants’ mother’s ability to protect the Claimants from abuse …. Further failed to assess that the mother was unable to meet the Claimants needs whilst she lived …. with them.
The council were then given permission to appeal and they succeeded. The Court of Appeal found the argument that the children should have been removed from their mother’s care as a means of dealing with anti socialbehaviour as “rather startling” and “highly artificial” (paragraph 41). In essence, the claim had nothing to do with any social services functions but was “in fact a criticism of the housing functions of the local authority” (paragraph 104).
The Court of Appeal in Poole considered at para 55 the implications of the earlier ruling in JD v East Berkshire that a duty of care could be owed to a child when considering the child’s removal from his parents:
The Court was considering the decision whether to leave a child in a family where abuse was in question. For the purposes of such a decision there exists no true “third” party, in the usual sense. The actual or potential wrongdoing by those who would retain (or gain) custody of a child is central to the decision being taken. It is the mainspring of the relevant decision. That is a significant distinction from the current case.
There were two fundamental aspects to these proceedings which argued against making the council liable.
- the danger of encouraging defensive decision-making and
- the general absence of liability for the wrong-doing of others (paragraph 94). It is simply unfair for the local social services authority to be held liable, when the housing department, the landlord and the police could not. (paragraphs 95-98)
Although the court accepted that society placed a high emphasis on protecting vulnerable people, it was neither effective nor just to do so by singling out one agency of the State for tortious liability as against the others.
The Court of Appeal confirmed that the Court of Appeal decision in JD v East Berkshire was inconsistent with the subsequent decisions of higher authority and should no longer be followed (paragraphs 99-101).
King LJ, an experienced family judge, was further critical of the argument that the courts would grant a care order in the circumstances of this case, re-stating the high threshold for the making of a care order and the established law that even if threshold is met, a child would only be removed from a parent on an interim basis if the child’s safety demanded it. Davis LJ stated that care proceedings to protect the children by removing them from their mother would have been “utterly heartless” and “utterly wrong” (paragraph 118).
It may be that there are attempts to take this to the Supreme Court so watch this space!
Conclusions – who does pay when children are harmed?
To say that this case means victims of abuse cannot bring claims against local authorities is clearly a sweeping and dangerous mis-statement. However, it is clear that this is a significant case, not least for it’s ‘reinstatement’ of X v Bedfordshire. As lawyers Rob Hams, Paul Stagg and Lord Edward Faulks QC commented:
Although it has been consistently assumed by those practising in the field and in the case law in the fourteen years since JD was decided that X v Bedfordshire CC was no longer good law, the decision in CN demonstrates how that assumption can no longer be justified. X v Bedfordshire CC has been restored as a governing authority which establishes that no duty of care is owed by the local authority, at least in the making of decisions as to whether care proceedings should be commenced.
There remain a variety of avenues for those who have been harmed, including an application under the Human Rights Act for damages for breach of those rights protected by the ECHR. However, as we have commented elsewhere on this site, such applications are difficult and unlikely to attract any significant amount of damages unless you can establish breach of Article 3 (torture, inhuman or degrading treatment), as opposed to Article 8 (private and family life).
The case of Poole and the reaction to it further underscores the great complexity of the law around negligence and how different courts will look at issues of public policy in various and conflicting ways.
Although the reporting of this case by the media and some bloggers has been too simplistic to be helpful, this is certainly a product of the significant complexity of the law itself. We urgently need a more coherent and consistent response to those children and families who have suffered harm as a result of the failures of state agencies.
Feature pic : P J Richey on Flickr (Creative Commons – thanks)