Check out my article on Linked In today  - AB v Worcestershire CC and Another [2022] EWHC 115 (QB) - Are Human Rights Claims in Failure to take into Care cases now impossible?

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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.
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To recap, the Claimants in the case of CN & GN v Poole Borough Council [2017] 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 :-

• CN & GN is not a “conventional” failure to take into care claim – it is about a local authority’s failure to re-house two children. The facts are therefore very different.
• In CN & GN the Court of Appeal said that a duty of care might be owed by a local authority, if there was an assumption of responsibility shown towards a child. A local authority dealing with a child in care or considering the position of a child who is not yet in care, assumes that responsibility to any child in its area.

 
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 [2007] 1 AC 181.
•        X and Y v the London Borough of Hounslow [2009] 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 [2009] UKHL 11, and Chief Constable of Hertfordshire Police v Van Colle [2007] EWCA Civ 325 and [2008] 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 [2001] 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 [1995] 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 [2003] 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.  

• Barrett v London Borough of Enfield [1999] 3 WLR 79
• S v. Gloucestershire County Council [2000] 3 All ER 346

 
There is also limited authority for a duty of care, when one foster child is abused by another - W v Essex County Council [1998] 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.