CN and GN v Poole Borough Council - the end of Failure to take into Care claims?

Failure to take into care claims are typically brought by children whose predicament has become known to social services, but who have been left in that predicament i.e. with abuse parents.

Following Z v United Kingdom [2001] 34 EHRR 3  and subsequent authorities including in particular D v East Berkshire NHS Trust & Others [2004] QB 558 in the Court of Appeal  a duty of care at common law can be owed by a local authority to children residing in its geographical area to protect them from harm, including personal injury. That duty is not owed to parents who suffer loss in these circumstances. In D the Court of Appeal dismissed the appeals by the parents. Their position was held to be quite different to that of their children, When assessing what action needed to be taken, the local authority had a conflict of interest which made it unfair that should owe a duty to both parents and children. That decision was upheld by the House of Lords.

The duty of care towards children in these situations has been applied in subsequent cases, Pierce v Doncaster MBC [2007] EWHC 2968 and NXS v London Borough of Camden [2009] EWHC 1786.
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However the existence of this duty of care has recently been called into question. In the case of CN & GN v Poole Borough Council 2016] EWHC 569 (QB) the Claimants were two children (one of whom was severely disabled) who alleged that the Defendant local authority negligently failed to take appropriate and necessary steps to safeguard them from prolonged abuse, anti-social and criminal behaviour perpetrated by members of a family who lived on the estate on which they were housed by the Council between May 2006 and December 2011. An attempt was made by the Defendant to persuade the court that the judgment of the Court of Appeal in D v East Berkshire as it affected the claim by the child in that case had been implicitly overruled by the judgment of the House of Lords in two earlier cases, Mitchell v Glasgow Council Council [2009] 1 AC 874  and of the Supreme Court in Michael v Chief Constable of South Wales [2015] 2 WLR 343 . Mitchell concerned the liability of a local authority to warn a tenant about an event which could trigger violence by another tenant against the claimant. It was held that no action was taken by it to show that the local authority made itself responsible for protecting the claimant from the criminal act of another. Accordingly it would not be fair, just or reasonable to impose a common law duty of care on the local authority. The Supreme Court in Michael considered whether the claimants, a victim's estate and her dependents, could bring a claim in negligence against a police force (by the Chief Constable) for failing to prioritise a call from a victim who was then killed by her partner. By majority the Supreme Court held that the duty of the police for the preservation of the peace did not involve the kind of close or special relationship necessary for the imposition of a private law duty of care. 

In CN & GN, the claims were struck out by Master Eastman at first instance, but in the High Court, Justice Slade rejected the Defendant's argument and reinstated the claims. She quoted from the judgment of Baroness Hale inMichael, who observed that there were exceptions to the general rule that local authorities were not liable in these kinds of situations, and one of those existed in the judgment of the Court of Appeal in D v East Berkshire.

The case has now been heard by the Court of Appeal and judgment is awaited.

It could be said that the CN & GN case has factual similarities to theMitchell and Michael cases. However, these are claims that relied upon a common law duty, which drew partly from various duties designed to protect children under the Children Act 1989. Mitchell and Michael were not Children Act cases. The case of D v East Berkshire, which confirms a Children Act type duty has never specifically been overruled.  Consequently I expect the Court of Appeal to keep that type of duty as an exception to the rule.