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Vicarious liability tightens and a new approach to quantum in child abuse cases | LinkedIn
Check out my article on Linked In today - AB v Worcestershire CC and Another  EWHC 115 (QB) - Are Human Rights Claims in Failure to take into Care cases now impossible?
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Re-Traumatisation by the CICA
Survivors of violent and sexual crime are being "re-traumatised" by the government's compensation body, the Criminal Injuries Compensation Authority says the Victims' Commissioner, Baroness Newlove.
Her 125 page report “Compensation without Traumatisation” can be found at :-
The report was written following engagement with over 200 victims, as well as Police and Crime Commissioners, victim support services, criminal justice agencies and lawyers.
The Ministry of Justice is considering her findings.
Baroness Newlove said:
“I believe criminal injuries compensation is important in helping vulnerable victims cope and recover from the most brutal of crimes. Yet my Review shows that the process of making their claim, which should strengthen victims, can have the opposite effect. The process of claiming is often having a detrimental impact on their wellbeing. I worry that we are treating it as a tick box exercise, without recognising the emotional needs of those making claims.”
Even more worryingly, the report flags up low awareness of the Scheme. Only just over a third of victims taking part in a survey reported they were informed of their entitlement to claim compensation by police. Some victims were being encouraged to delay claiming until after the criminal trial, only to find that they were timed outside the two-year window for submitting their claim. The CICA Scheme has very strict time limits, which can deny people compensation if they are not properly advised early on.
The report also says :-
“My overwhelming impression is that whilst compensation awards were well received by victims, the process of making their claim was often traumatic. Victims, lawyers and support services told us about delays, uncertainty about next steps and poor communication. To many, fairly or unfairly, the Scheme seemed calculated to frustrate and alienate. Support on offer, through locally commissioned victim services, for making an application forcompensation was patchy, and in some parts of the country non-existent.”
Hudgell solicitors is well known for its work presenting successful claims to the CICA. We welcome Baroness Newlove’s report.
What does the CICA do?
The CICA exists to compensate blameless victims of crime. Since the first Scheme was set up in 1964, over 2.2 million applications have been processed and almost £6.25 billion has been paid out to victims in compensation. In the year 2017-18, the CICA made decisions on over 40,000 applications, making payments of over £154 million in compensation to victims of violent and sexual crime.
The Victims' Commissioner's report
The Office of the Victims’ Commissioner (“OVC”) has published a 125 page report “Compensation without Traumatisation”. In that report, the Commissioner, Baroness Newlove says that her office is frequently contacted by victims regarding their experience of applying for criminal injuries compensation. Victims have raised concerns about the accessibility of the Scheme, their contact with the CICA, delays in decision making, the rules of the Scheme and how they are applied by the CICA. These rules include the two-year time limit for applications, reductions in awards due to the victim’s conduct and unspent convictions and the ‘under the same roof rule’. Victims have also contacted the OVC about the lack of support and guidance available for them in making their application, difficulties in obtaining payments for funeral costs, and the relatively low levels of awards paid out under the Scheme.
The report can be found at:-
The report was written following engagement with over 200 victims, as well as Police and Crime Commissioners, victim support services, criminal justice agencies and lawyers. The Ministry of Justice is considering her findings, and the report could mean far reaching changes in the CICA Scheme.
What does the report have to say?
This is what Baroness Newlove had to say:-
“I believe criminal injuries compensation is important in helping vulnerable victims cope and recover from the most brutal of crimes. Yet my Review shows that the process of making their claim, which should strengthen victims, can have the opposite effect. The process of claiming is often having a detrimental impact on their wellbeing. I worry that we are treating it as a tick box exercise, without recognising the emotional needs of those making claims.”
The report also flags up low awareness of the Scheme. Only just over a third of victims taking part in a survey reported they were informed of their entitlement to claim compensation by police. Some victims were being encouraged to delay claiming until after the criminal trial, only to find that they were timed outside the two-year window for submitting their claim. The CICA Scheme has very strict time limits, which can deny people compensation if they are not properly advised early on.
Lawyers’ fees and the need for representation
The report also says:-
“My overwhelming impression is that whilst compensation awards were well received by victims, the process of making their claim was often traumatic. Victims, lawyers and support services told us about delays, uncertainty about next steps and poor communication. To many, fairly or unfairly, the Scheme seemed calculated to frustrate and alienate. Support on offer, through locally commissioned victim services, for making an application for compensation was patchy, and in some parts of the country non-existent.”
To any lawyer handling CICA claims, this will come as no surprise. The Scheme does not pay costs, which means that the lawyer has to take his/her fees out of the client’s compensation. This may be as much as 25% of the award, a figure quoted by the report. In theory, it can be more. The report received evidence from a number of law firms in this area of the injury market and it describes the different ways in which law firms charge for their work.
On the subject of lawyers’ fees, the report says:-
“The review identifies a lack of provision for supporting victims who wish to submit an application, with many victims feeling compelled to instruct solicitors on a no-win, no-fee basis as they feel unable to cope with the trauma and stress of making an application.”
To this I would say that victims are not actually “compelled” to instruct lawyers at all, and the Scheme plainly encourages people to present their own claims, which most Applicants seem to do. However, legal aid is not available (a point acknowledged by the report), except possibly where the claim enters the realm of judicial review. As we saw with the recent challenge to the “same roof” rule, sometimes it takes a lawyer to make all the difference. The CICA have reported that something like 39% of Applicants have some form of representation, but it’s not clear whether this is provided exclusively by lawyers. In any event, it appears that most Applicants are not represented at all.
The result of not instructing a lawyer can be seen in a recent case from the Scottish courts in 2017, which the report highlights. There a victim of historical childhood abuse successfully sued Victim Support Scotland for £100,000 in damages, claiming that he had missed out on tens of thousands of pounds in compensation because of the advice the charity had given him. Victim Support Scotland had supported the victim in his claim for criminal injuries compensation, and he was awarded £17,000 in 2013 in recognition of the crimes committed against him. The victim had lost his job because of the trauma of the crime. When the victims’ brothers were awarded a much larger sum, the victim realised that he could have claimed compensation for loss of earnings, which he had not been informed about by Victim Support. The Judge ruled in favour of the victim, saying that Victim Support had failed to act with “reasonable skill and care, a duty to address the loss of earnings and to help [the victim] seek to have the award reviewed.”
This has had a dramatic effect on the willingness of charities such as Victim Support to help victims of crime. From February 2018, Victim Support Scotland stopped any form of support for victims in applying for criminal injuries compensation. In England and Wales, Victim Support will continue to represent victims, acting on their behalf if they accessed support before February 2018, but Victim Support will not act as victims’ representatives in any new cases. The report says that prior to these changes, around 4% of victims were represented by Victim Support. However other charities have now expressed an unwillingness to help people with CICA claims.
Re-triggering of distress and trauma
The report talks about the way in which the Scheme triggers distress and trauma. It is a regrettable feature of the whole legal system, found also in the criminal and civil courts that victims are re-traumatised, particularly in the more violent and sudden forms of crime. The report says that “The CICA have invested significant effort in the past 18 months in reviewing and seeking to improve their processes and communications.” For instance, since March 2018, fatal cases have been allocated a named contact in the CICA. The CICA are also currently developing a new online portal for applications.
The report also criticises the time limit applied by the Scheme to claims, pointing out that some victims miss this time limit because they think that they not apply until after the criminal trial. There is apparently a lack of consistency in applying this rule. There are also criticisms of the way in which compensation is reduced because of an Applicant’s criminal convictions or conduct in provoking the crime, or in case of a fatality, the innocent beneficiaries are penalised because of the deceased’s convictions or conduct. Another criticism is the sheer delay (six years was quoted in one case) for resolving applications.
What does the report recommend?
The report says towards its end:- “If we are to place victims at the heart of the criminal injuries compensation process we believe that the system must be simplified. It should be organised in such a way that the process does not re-traumatise those it sets out to support, but instead sees itself as aiding a victim’s recovery. It also needs to provide targeted support for the most vulnerable groups of victims in helping them apply for criminal injuries compensation without having to forego a substantial proportion of their award in legal fees.”
The report then comes up with some practical recommendations. The following are very rough summaries of what some of these are:-
• One issue identified by the report was the delay in getting information from the police. The report recommends that In addition to identifying the case and requesting police evidence based only on the crime reference number, a further step would be for the CICA to be able to directly access police evidence.
• A single, named point of contact for victims should be provided so as to give a more personalised service.
• Another issue relates to the CICA rules, which dictate what victims can spend the money on. For example, parents and guardians can draw from an award in trust for a child, but only for very specific expenses. The report urges a review of these rules.
• If a victim dies while their award is held in trust, the funds are returned to the CICA. Communication of this rule causes victims a great deal of stress. The report urges that this policy is re-traumatising for victims and their families and that it should be reviewed.
• A review of the rules on victims’ conduct, which means that awards can be refused or reduced if the CICA deem the victims’ conduct to have been integral to the crime. This is particularly unfair to those blameless victims who lose loved ones.
• Victims with unspent convictions are not eligible for compensation and their applications are declined. This is also potentially unfair to those who have suffered childhood abuse, modern slavery or those with brain injuries. This rule should be reviewed. As a general point, I would say that the CICA have long said that the public (who finance the Scheme) would not want to see public money going to those who had committed crimes themselves, but on the other hand, as the report says there are potentially deserving cases.
• If there is an issue as to “conduct” or “character” then the Applicant should be told about this issue, and allowed to make representations prior to a final decision.
• The Ministry of Justice should review the complex and bureaucratic nature of the Scheme as well as opportunities and procedures to challenge decisions in their forthcoming review.
• There should be some support provided to help certain applicants, and that will mean financing legal costs from practitioners. Legal support should be targeted on the most vulnerable of victims, for instance those who are assessed as unable to make their own application. The cost should be borne by commissioned victim support services, which in turn would be funded by local Police and Crime Commissioners. This means that the Ministry of Justice would need to find further money. That’s isn’t unreasonable given the way in which the CICA Scheme has been scaled back in previous years.
• Equally, in cases of significant complexity, where the CICA recognises that the victim needs legal assistance, it would be fair that this cost be met by the CICA and not by the victim. The First Tier and Upper Tier Tribunal should also have the power to award costs against the CICA in certain cases, for instance if the Tribunal overrules the CICA’s decision, and the decision was based on the same information as the CICA had available. There is in fact provision in existing legislation for tribunals to make costs orders, but these are very rare. Consequently I think there would need to be an amendment to the existing rules on costs.
• More needs to be done across the criminal justice system to raise awareness of the Criminal Injuries Compensation Scheme. This responsibility lands with the Ministry of Justice and the CICA itself.
• In relation to the time limit, the report says that this time limit should be more transparent. For example, one option might be that victims are given two years from reporting the incident to submit a claim, or alternatively, one year from the end of the trial, whichever date is later. I may have misunderstood this, but rather worryingly the report says that the CICA’s discretion to extend the time limit should be removed. That is not something with which I would agree, since the discretion is something that should still be there for meritorious cases. On 18 December 2018, the Ministry of Justice announced the terms of reference of its own review of criminal injuries compensation. The Victims Commissioner would like to see these recommendations being considered as part of this wider review.
I was concerned about the recommendation to abolish discretion on the time limit. I’m not sure that the Ministry of Justice would do this, given that there has always been a discretion present in the CICA Schemes and those of its predecessor, the Criminal Injuries Compensation Board. I think it would offend against human rights principles.
The provision of a form of legal aid for deserving cases is interesting, but one does wonder if it would work in practice. For instance would it be grouped together with the existing legal aid arrangements for other forms of work, which is administered by the Legal Aid Agency? As with the present limited scope of legal aid for injury based cases, the rates payable would probably be very low and law firms might well conclude that they can only run such claims under the “no win no fee” arrangement.
Nonetheless, this is a very welcome report. It identifies the current issues with which all practitioners in this area will be familiar, and comes up with mostly practical solutions.
CN & GN v Poole Borough Council
I wrote an article about this important case earlier on my Linked In page in 2018 - see link button above.
To recap, the Claimants in the case of CN & GN v Poole Borough Council  EWCA Civ 2185 obtained permission to appeal to the UK Supreme Court on the 15th March 2018,
The appeal was heard on the 16th and 17th July 2018 by the UK Supreme Court.
Last year, I recently attended an excellent seminar on child abuse compensation claims given by Paul Stagg, Saleem Khalid and Katie Ayres of 1 Chancery Lane.
Paul Stagg who is the junior counsel in GN and CN to Lord Faulks QC spoke about the implications for other “failure to take into care” claims, and the competing arguments from both sides.
A Claimant bringing a “failure to take into care” could argue now that :-
The answer to those points from a Defendant would be that any assumption of responsibility by a Defendant, has to be “voluntary.” A local authority acts under an Act of Parliament, and so what it does is not voluntary at all.
Two cases support that argument.
• HM Customs & Excise Commissioners v Barclays Bank plc  1 AC 181.
• X and Y v the London Borough of Hounslow  EWCA Civ 286
In HM Customs and Excise Commissioners, the Claimant had served an asset freezing order on the bank in respect of one of its customers. The bank paid out on a cheque inadvertently as to the order. The Commissioners claimed against the bank in negligence. The bank denied any duty of care. The court held that the bank owed a duty to the court but no duty to the creditor. There was no voluntary acceptance of the bank’s involvement. Its duty was to the court to comply with the order. It would be an independent contempt of court for a third party to do an act which deliberately interfered with the course of justice by frustrating the purpose for which the order was made. Lord Bingham said:
“The parties were agreed that the authorities disclose three tests which have been used in deciding whether a defendant sued as causing pure economic loss to a claimant owed him a duty of care in tort. The first is whether the defendant assumed responsibility for what he said and did vis-a-vis the claimant, or is to be treated by the law as having done so. The second is commonly known as the threefold test: whether loss to the claimant was a reasonably foreseeable consequence of what the defendant did or failed to do; whether the relationship between the parties was one of sufficient proximity; and whether in all the circumstances it is fair, just and reasonable to impose a duty of care on the defendant towards the claimant.”
In X and Y the Claimants were aged 44 and 38 and lived in a flat owned by the Defendant with Y’s two daughters, A and B aged 11 and 8. X, Y and A all had learning difficulties and the family had involvement with social services. The family was harassed by a group of local hooligans, who ended up subjecting them to a series of horrific assaults over the course of a weekend. The Court of Appeal decided that the local authority did not assume a responsibility to the respondents at common law, and that neither it nor its employees owed them a duty of care at common law and, in any event, that neither it nor its employees was in breach of a duty to take reasonable care to remove them from the flat into emergency accommodation. The Court of Appeal referred to two recent cases from the House of Lords, Mitchell And Another v Glasgow City Council  UKHL 11, and Chief Constable of Hertfordshire Police v Van Colle  EWCA Civ 325 and  EWCA Civ 39.
On this issue of whether a statutory body is assuming responsibility, a Claimant could say that in fact, a number of statutory bodies perform functions under a statutory duty, and yet they still owe a common law duty to those affected by that statutory duty.
The prime example would be an NHS Trust, which is part of the National Health Service. Another example would be a Local Education Authority school. In Phelps v London Borough of Hillingdon  2 AC 619 the House of Lords decided that an educational psychologist or a school teacher might owe a duty of care to a child with learning difficulties i.e. dyslexia.
The Defendant might say that those cases are very far removed from a local authority dealing with a child potentially at risk in its geographical area, where the knowledge available to the local authority on that child may well be very fluid. This is not a hospital bed, nor a classroom.
The Court of Appeal in GN and CN said that the Defendant was entitled to rely on the principles in X v Bedfordshire Council and Others  3 WLR 152. In that case, the House of Lords said that no duty of care was owed by social services to protect towards children in its area from abuse, or where they acted negligently in taking a child into care. X v Bedfordshire was in effect overruled by D v East Berkshire Community Health NHS Trust  EWCA Civ 1151, but that decision has now been found to be wrong by CN and GN. Consequently we are back with the principles in X v Bedfordshire.
X v Bedfordshire concerned children who were in effect outside of the care system at the time of the negligence. Likewise CN and GN were children who were not actually in care at the time of the local authority’s negligence. So, what about a child who is already in care when the local authority is negligent?
Those cases should still be able to go ahead. In CN and GN, no mention was made of two cases that followed on from X v Bedfordshire and which involved mistakes made in relation to children were already in care.
There is also limited authority for a duty of care, when one foster child is abused by another - W v Essex County Council  3 WLR 534. Again local authorities may suggest these duty needs re-examination.
However local authorities may begin to suggest that these cases should be revisited in light of the decision in CN and GN.
Moreover, some children are now accommodated under Section 20 of the Children Act 1989. Defendant local authorities will now argue that because they do not have full parental powers under Section 20, and their “care” can be terminated by the child’s parents, therefore there should be no duty of care owed to those parents.
This raises the issue of when the barrier to a common law claim should go up. A formal care order is only one of the many ways in the Children Act 1989, in which a local authority can protect a child. At what point does a local authority, inspecting and investigating over what may be a period of years, as well as putting in mechanisms to assist and support a family, voluntarily assume responsibility?
There are children who successfully argue that they were “accommodated” under Section 20 of the 1989 Act, when they should have been in care. That is the basis for a number of reported human rights claims. There are also children who successfully persuade the local authority to accept that they should have been “looked after” children (and thus entitled to careleaver benefits), using the mechanism of judicial review or the complaints system.
It’s impossible to make a firm prediction. However, in conclusion, if CN and GN goes the Defendant’s way in the UK Supreme Court, we can expect to see less failure to take into care claims. We may well see more claims based on human rights, as CN and GN did not deal with this type of claim at all. However human rights claims are not easy to bring, and they require a high threshold before those rights are engaged.
As yet, it’s not known when we can expect a judgment from the UK Supreme Court, but on the basis of the time taken between hearings and judgments, I would expect a result by March of this year.
I was sent a fascinating research document by Jessica Eaton, a Specialist Researcher, Writer and Speaker in Forensic Psychology and Sexual Violence.
This is a very long report, but it provides a comprehensive study of the signs and issues around child sexual exploitation.
The document is entitled “Working Effectively to Address Child Sexual Exploitation: An evidence scope”. It has been produced by Research in Practice as part of the Greater Manchester Child Sexual Exploitation Project, funded by the Department for Education Children’s Social Care Innovation Programme.
The report was first produced in September 2015, and was revised by Jessica Eaton in September 2017,
The direct link for the full download is: -
Whilst I read through the report, there was only time to put down a couple of points that I found particularly interesting. The report does repay reading not just for social workers, the police and other safeguarding practitioners, but also lawyers (such as myself) specialising in child abuse compensation claims.
Section 2.4 of the report deals with the creation of stereotypes in Child Sexual Exploitation (“CSE”). The authors point out that the more times a story is reported or told in a specific way, the more likely it is that the general public and professionals will absorb a stereotype of offenders, victims and abuse.
By way of example, there are the recent convictions of a number of sexual offenders of Middle Eastern and Asian ethnic backgrounds, which has led to the view expressed by some politicians that this is a “Pakistani” problem. This is very damaging from the point of view of the multi-ethnic community in which we live. Perpetrators and victims of CSE are known to come from a variety of social, ethnic and cultural backgrounds and CSE occurs in both rural and urban areas.
For victims, a stereotype has arisen of a young white girl, generally in local authority care, known to multiple services and with overt vulnerabilities and exhibiting “promiscuous” behaviours. This is very damaging because there is evidence in the Rochdale CSE cases that the authorities simply “gave up” on children whom they considered to be outside of their control, rather than simply being the victims of abuse.
Typically, the media employ words like “sex gangs” and “child sex slaves” and “paedo gangs” which in turn creates a stereotype of organised crime gangs, whereas research shows that only eight per cent of sex offenders abuse children with another offender.
These stereotypes also brush over the complexity of CSE, which is not exclusively about adults abusing children, but also peer-on-peer abuse and the risks that young people face within their own social settings, such as schools. In addition, both males and females are abused through CSE and similarly, both males and females are perpetrators. Perpetrators may be previous or current victims themselves.
Of course, the man or woman in the street might say “I know what a paedophile is, and I know what child abuse is.” If that were true, then I believe that we would have far less of a CSE problem in our society. Time and time again, both organisations and individuals have shown themselves unable to protect children.
Section 4 deals with the recognition and assessment of CSE. This is nothing less than a subtle and sophisticated process.
Stereotypes and terminology are only a very small part of this comprehensive and excellent document.
Section 3.3 talks about grooming. I quote :-
“It is therefore vital that practitioners understand that grooming is not a linear, systematic process carried out by a homogenous group of sex offenders. Practitioners also need to appreciate that harm of the child does not occur only at the ‘end’ of a grooming process. Grooming is itself an offence and a source of harm and manipulation of the child. Linear models such as the grooming line imply that the harm only occurs at the end of the process which ignores.”
This is an interesting concept, because lawyers dealing with child abuse compensation claims would not normally include within that claim, any element of the “grooming” on the grounds that this was not necessarily psychologically damaging. This needs a “re-think”.
This excellent and comprehensive report draws heavily on real life experiences. I commend it to safeguarding practitioners.
MAPPA stands for “Multi-Agency Public Protection Arrangements”. Briefly these are arrangements set up where the Police, Probation and Prison Services assess and manage the risk posed by sexual and violent offenders. MAPPA has its statutory basis in Sections 325 to 327 of the Criminal Justice Act 2003.
Other organisations are required to work within MAPPA. These include local authority social services, local housing authorities, certain registered social landlords, Jobcentre Plus, electronic monitoring providers, NHS Trusts, Youth Offending Teams and Home Office Immigration Enforcement.
Most of, if not all sexual offenders are subject to restrictions imposed with their sentence. If they break those restrictions, they can be sent back to prison.
The following are the kinds of orders commonly made against sexual offenders: -
A Sexual Harm Prevention Order (SHPO) is intended to protect the public from offenders convicted of a sexual or violent offence who pose a risk of sexual harm to the public. It places restrictions on the behavior of the offender, i.e. where they can go. The minimum duration for a full order is five years.
A Notification Order requires sexual offenders who have been convicted overseas to register with the police, in order to protect the public in the UK from the risks that they pose.
A Sexual Risk Order (SRO) is made in relation to a person without a conviction for a sexual or violent offence (or any other offence), but who poses a risk of sexual harm. It may prohibit the person from doing anything described in it, including travel overseas. A SRO can last for a minimum of two years.
Prior to the 21st April 2010, sexual offenders could be subject to restrictions for the remainder of their natural lives. However, after the UK Supreme Court decision in R (on the application of F and Angus Aubrey Thompson) v Secretary of State for the Home Department  UKSC 17, offenders subject to indefinite notification were able to seek a review.
Individuals subject to indefinite notification are only become eligible to seek a review once they have been subject to indefinite notification requirements for a period of at least 15 years for adults and 8 years for juveniles.
MAPPA works by identifying offenders, and then gathering and sharing information about them across relevant agencies. Each offender has a risk management plan to protect the public.
If the system fails for whatever reason, then there is an investigation by the local MAPPA Strategic Management Board. So, a Mandatory Serious Case Review will be prepared when an offender being managed (or who has just been managed) at MAPPA Level 2 or 3 commits a serious offence. There will also be other cases when the MAPPA Strategic Management Board decides that a Discretionary Serious Case Review should be prepared.
Plainly the risk posed by a sexual offender can never be eliminated, but it can be managed.
There are three levels of offenders: -
· Category 1 – Registered sexual offenders
· Category 2 – Violent Offenders
· Category 3 – Other Dangerous Offenders (who do not qualify under 1 or 2 above, but who pose a risk of serious harm.
These offenders are managed according to three different levels of management and risk: -
· Level 1 – relatively low-level risk - Ordinary Agency Management – most offenders – there are no formal meetings to discuss their case.
· Level 2 – medium risk - Active Multi-Agency Management – this means that several agencies will be actively involved with them, and will meet to discuss their cases regularly.
· Level 3 – the highest risk - Active Multi-Agency Management – again several agencies are actively involved in these cases, but the involvement of senior staff from those agencies is required to authorise the use of additional resources, such as for specialised accommodation.
On the 26th October 2017, the government and local police forces published their annual report on their arrangements. These include statistics on the number of offenders that they manage and how the system is working.
Here are some of the key statistics for England and Wales: -
· On 31 March 2017 there were 76,794 MAPPA-eligible offenders. Of these, 72% were Category 1 27.6% were Category 2 and less than 0.5% were Category 3 offenders. There are just under 10,000 in the London Metropolitan area. Avon and Somerset had just under 2000.
· 98% of cases were managed at Level 1
· There were 108 Category 1 offenders per 100,000 of the population. Ten years ago, it was 64 per 100,000.
· The number of Category 1 offenders who were cautioned or convicted for breaches of their notification requirements was 1,739 in 2016/17.
· 697 Level 2 and Level 3 offenders were returned to custody for a breach of their licence conditions in 2016/17.
· The number of MAPPA-eligible offenders charged with Serious Further Offences in 2016/17 was 217.
· The number of MAPPA eligible offenders is increasing year on year. In 2008/2009, the number was just under 45,000.
So, what happens to these men and women who live under the shadow of MAPPA?
The authorities accept that sexual abuse provokes powerful reactions within the community. Re-settlement of offenders into the local community is nothing less than a daunting prospect, and it requires consideration of the needs of the victim, the community and the risks and needs of the sexual offender.
Nonetheless research shows that social isolation and emotional loneliness are key factors in the risk of re-offending.
One organisation that works to meet this challenge is Circles UK whose ethos and vision is to seek greater public protection by working towards a substantial reduction in sexual offending. It does this by supporting local providers in the delivery of interventions that assist socially isolated sexual offenders to reintegrate safely into the local community.
Circles UK recruits, trains and professionally supports appropriate volunteers who are willing to give up their time in order to offer practical support to convicted sexual offenders. It works in partnership with Police, Probation, local Multi-Agency Public Protection Arrangements and other professionals working in the field of child protection.
MAPPA is a powerful means of protecting the public, which in terms of this country's safeguarding history is relatively recent. It cannot give us guarantees, but then what can safeguarding system can do that?
In Armes v Nottinghamshire County Council  UKSC 60, the UK Supreme Court reversed the decision of the Court of Appeal in  EWCA Civ 1139 and decided that a local authority could be vicariously liable for torts committed by foster carers against children in local authority care.
As a child, the Claimant was abused physically and sexually by foster parents with whom she was placed whilst in the care of the Defendant local authority. There was no negligence on the part of the local authority. The argument put forward by the Claimant was that either she was owed a non-delegable duty of care by the local authority or the local authority was vicariously liable for the torts of the foster carers.
Lord Reed, (with whom the other members of the Supreme Court agreed, Lord Hughes dissenting) considered the statutory framework. This was contained in the Children and Young Persons Act 1969, the Child Care Act 1980 and the Boarding-Out of Children Regulations 1955. Lord Reed referred to Woodland v Essex County Council  UKSC 66 where it was said that a non-delegable duty of care had five characteristic features. These had been identified by the trial judge in this case, Males J at  EWHC 4005 (QB): -
· First, the Claimant was a child who was in care;
· Secondly, the relationship between the parties existed before the acts of abuse: it was created by a care order, and gave rise to statutory responsibilities;
· Thirdly, the Claimant had no control over how the local authority chose to perform its obligations;
· Fourthly, the local authority’s duty to care for the child was delegated to the foster parents;
· Fifthly, the foster parents’ tortious conduct had been committed in the performance of the very function delegated to them.
Lord Reed would not accept the presence of a non-delegable duty of care in this case :-
· There were no authorities suggesting that parents had to ensure that reasonable care was taken by anyone else to whom they entrusted their children;
· Section 18(1) of the 1980 Act required local authorities to give first consideration to the need to safeguard children and promote their welfare. If local authorities, who decided that it was in the best interests of children in care to allow them to stay with their families or friends, were to be held strictly liable for any want of due care on the part of those persons, then the law of tort would risk creating a conflict between the local authority’s duty under section 18(1) and its interests in avoiding liability.
· A non-delegable duty would render the local authority strictly liable for the tortious acts of the child’s own parents or relatives, if the child was living with them following a decision reasonably taken under the 1980 Act to place them there.
· Section 21 of the 1980 Act required the local authority to “discharge” their duty to provide accommodation and maintenance for a child in their care. This suggested that the duty of the local authority was not to perform the function in the course of which the Claimant was abused (namely, the provision of daily care), but rather to arrange for, and then monitor, its performance.
· Section 22 of the 1980 Act enabled the government to make regulations imposing duties on local authorities in relation to the vetting etc. of foster parents. It did not impose on the local authority for ensuring that no harm came to the child in the course of that care.
Lord Reed then moved onto the issue of vicarious liability. He considered the judgment in Cox v Ministry of Justice  UKSC 10. The issue in that case was - what sort of relationship had to exist between an individual and a Defendant before the Defendant could be made vicariously liable in tort for the conduct of that individual? In Cox, the criteria for such a relationship were as follows :-
· the employer was more likely to have the means to compensate the victim than the employee and could be expected to have insurance against that liability;
· the tort was committed as a result of activity being taken by the employee on behalf of the employer;
· the employee’s activity was likely to be part of the business activity of the employer;
· the employer, by employing the employee to carry on the activity created the risk of the tort being committed by the employee;
· the employee was, to a greater or lesser degree, under the control of the employer.
Most foster parents had insufficient means to be able to meet a substantial award of damages, and were unlikely to have insurance against their own propensity to criminal behaviour. The relationship between the activity of the foster parents and that of the local authority, pointed towards the conclusion that the foster parents provided care to the child as an integral part of the local authority’s child care services. The local authority’s placement of children in their care with foster parents rendered the children particularly vulnerable to abuse. The local authority exercised a significant degree of control over both what the foster parents did and how they did it, in order to ensure that the children’s needs were met. Consequently, vicarious liability should be imposed in this context.
Foster care has long been used by local authorities to look after children, but it began to grow as residential care homes closed in the late seventies and early eighties. Its statutory regulation has become more complex and the expectations placed on foster carers are now far higher. There is at present a legal action against a local authority to secure employees’ rights for foster carers. There was always a puzzling anomaly between the vicarious liability of a local authority for the torts of residential care workers, and foster carers in circumstances where both essentially did the same job. This long awaited judgment has closed that anomaly and opened up the possibility of suing local authorities for the torts of foster carers, which given the current caselaw on limitation, may arise from many years back.
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  34 EHRR 3 and subsequent authorities including in particular D v East Berkshire NHS Trust & Others  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  EWHC 2968 and NXS v London Borough of Camden  EWHC 1786.
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  1 AC 874 and of the Supreme Court in Michael v Chief Constable of South Wales  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.
Last week, I attended an evening at Coram Voice to support refugee children.
The National Youth Theatre put on a short play "Wherever I lay my head" to demonstrate the appalling experiences that these children go through, on their way to safety. It also illustrated the baffling bureaucracy that they face once in the UK.
We heard a short speech from the head of Children's Services of Kent County Council. He told us of the enormous pressure that his local authority is under, with some 1000 child asylum seekers to care for. Somehow they have done it, with help from other local authorities, but clearly Kent is on the front line carrying out its statutory duties for children in need.
We also had a talk given by Dr Ana Draper, a psychotherapist. She talked about the work that she had been doing with these children. One of the first problems she identified, was that they had chronic difficulties in sleeping. Typically they travel by night, and sleep by day to avoid detection as they go through various countries on their way to the country, that they believe will offer them safety. Sleep is a hazardous affair in many parts of the world because they are often harassed or attacked. This is on top of the events that drove them from their countries of origin, and the trauma of those experiences. Consequently, they come to this country in a hyper alert state, unable to function as other children do. Engaging with our education system was something of a struggle, even given the language barrier.
Dr Draper decided to tackle the sleep issue as a priority. She developed simple "sleep packs" which were composed of typically a sleep mask, aromatic gels, and other simple items designed to help get people to sleep. This simple idea was startingly successful. Slowly but surely the children's mental state began to improve and they were able to make use of the service available to them.
All in all a great eye opener. Dr Draper, Kent County Council and Coram Voice are doing great work here.
Malcolm Johnson, Specialist Child Abuse Lawyer