DFX AND OTHERS V COVENTRY CITY COUNCIL [2021] EWHC 1382 (QB)
FACTS:-
The four Claimants were siblings born in 1995, 1995, 1999 and 2001. They were children of a family, which had five other children born between 1993 and 2009. Up until 2010, the Claimant lived with their parents in the Defendant local authority area. Between 1995 and 2010, the Defendant’s social workers were involved with the Claimants and their family. They responded to and, where necessary, investigated referrals and concerns; supported the family generally by monitoring and through the provision of advice and direct work undertaken with the parents and the Claimants; assessed the risks to the claimants which were posed by family members, friends and acquaintances of the family. Between 1996 and 1999, the First and Second claimants were on the child protection register and, between March and September 2002, all of the Claimants were on the register. In April 2009, the Defendant issued care proceedings in the Coventry County Court and eventually an interim order was made in March 2010 removing all of the children, save for the eldest (a boy, by then aged 17), into foster care. In June 2010, full care orders were made and care plans removing the eight children from the family were approved by the court.
The Claimant alleged that they each suffered abuse, including sexual abuse and neglect whilst in the care of their parents prior to 2010. They also alleged that their parents were unfit to be parents and that this should been obvious to social workers. Between 1992 and 1997, the father was convicted of four offences of indecency towards teenage girls. Both parents had learning difficulties. The home was often squalid and the children dirty and unkept. The action was brought in negligence and under the Human Rights Act 1998 for breach of Articles 3 and 8 of the European Convention on Human Rights. The Article 8 claim was abandoned at trial.
JUDGEMENT:-
Mrs Justice Lambert said that under the 1998 Act for breach of Article 3 rights the Claimants asserted that they were exposed to a real and immediate risk of sexual harm of which the Defendant was or ought to have been aware, together with a failure by the Defendant to take reasonable available measures which could have had a real prospect of altering the outcome or mitigating the harm. Although for the purpose of the human rights claim the Claimants did not need to establish the existence of a duty of care owed to the Claimants, and the causation requirement was different, the claim was not without its own particular difficulties, not least that it was commenced many years after the expiry of the limitation period for such actions.
The Claimants relied upon three events in support of their case that the Defendant assumed responsibility for their plight and therefore owed them a duty to keep them safe:
a) the commissioning of, and response by the Defendant to, a psychology report prepared in January 1997 and/or
b) the "direct work" undertaken by social workers and family support workers with the parents and the children to educate them as to the risks posed by third parties; and/or
c) the assessment in February 2002 that the Claimants were at risk of significant harm and the decision to commence care proceedings in March 2002.
The Claimants' case was that, whether commenced in 2002, late 2003 or early 2004, care proceedings would have, on balance, led to an order by the court removing the Claimants from the family.
Lambert J considered the statutory framework under the Children Act 1989 and then the chronology of events. She had heard factual evidence from a number of witnesses, all of whom were social workers or family support workers. She had also heard expert evidence from two social care experts.
The first issue was whether the Defendant owed the Claimants a duty of care? Lambert J referred to three recent decisions :-
In determining the existence or otherwise of a duty of care in the three cases, the court had applied the orthodox common law approach and the established principles of law. These were the key principles.
i) At common law public authorities are generally subject to the same liabilities in tort as private individuals and bodies.
ii) Like private individuals, public authorities are generally under no duty of care to prevent the occurrence of harm.
iii) The distinction between negligent acts and negligent omissions was therefore of fundamental importance.
iv) Public authorities did not therefore owe a duty of care towards individuals to confer a benefit upon them by protecting them from harm, any more than would a private individual or body.
v) The general rule against liability for negligently failing to confer a benefit was subject to exceptions (i) when A had assumed responsibility to protect B from that danger; (ii) A had done something which prevented another from protecting B from that danger; (iii) A had a special level of control over that source of danger; or (iv) A's status created an obligation to protect B from that danger.
The first issue that Lambert J would address was whether the claims involved a positive act by the Defendant which had caused the Claimants' harm, or, whether the claims alleged a failure to confer a benefit. In Lambert J’s view, these claims were an "omissions" case or claims arising from a failure to confer a benefit.
Lambert J also found that the claims concerned the Defendant's allegedly negligent failure to commence care proceedings under section 31 of the 1989 Act and, linked to that failure, a failure to undertake a competent investigation and risk assessment under section 47 of the 1989 Act.
However, it did not follow that this characterisation of the Claimants' case was, in itself, determinative of the claim. In N v Poole, the court had said that it did not follow from this statement that an assumption of responsibility could never arise out of the performance of statutory functions. The question was one that was "fact sensitive".
The Claimants had argued that the Defendants assumed responsibility by obtaining a psychologist report in 1997. At least, in this context, the Defendant could be said to have taken a step – in the sense that it had done something. However, the report was obtained, not for the Claimants' benefit or for the benefit of the parents, but for the benefit of the local authority's social workers in determining the parents' ability to keep the children safe, the level of risk which the father posed to his children and whether the threshold for registration or care proceedings was met. It was obtained and funded as part of the defendant's assessment of risk under section 47 of the 1989 Act in order to assist the social workers acting on behalf of the local authority to determine how best to fulfil their statutory obligations.
The local authority's assessment of risk would not be shared by the parents nor the children. Had proceedings been commenced, the parents would have been separately represented and the children's interests represented by a Guardian ad Litem. It would not necessarily follow that the local authority's viewpoint would be aligned with that of the family, children or parents. In these circumstances, Lambert J would not accept that it would be reasonably foreseeable that the Claimants would rely upon the Defendant such as to give rise to a duty of care.
The Claimant’s argument was even weaker in respect of the decision in 2002 to commence care proceedings. A recommendation that care proceedings be commenced for the purpose of sharing parental responsibility could not be described as a positive act which had the effect of generating a duty of care, nor characterised as the provision of advice or service upon which the Claimants might reasonably foreseeably rely, so giving rise to a duty of care to act carefully.
The Claimants had also argued that their cases were similar to that in the three separate appeals in the judgement in D v East Berkshire Community Health NHS Trust [2004] QB 558. Lambert J disagreed. In each appeal therefore the Defendant had, by its acts, caused the injury to the claimants. The facts of none of the appeals in D raised a similar allegation to the present cases which involved an allegation of failure to protect the claimant children from harm caused by third parties.
Lambert J would therefore conclude that, on the facts of this claim, no duty of care was owed by the Defendant to the Claimants.
The second issue was that of breach of duty. Even though Lambert J had found no duty of care, she would address the issue of breach in any event. Lambert J would accept the social work expert witness for the Defendant that the decision as to whether to commence proceedings in 2002 was not clear cut. She would also accept her evidence that the decision not to commence proceedings fell within the reasonable range of social worker opinion and judgement when assessed by the appropriate standard of the day. She considered the competing arguments of the two experts, but would dismiss the Claimants' case that there was a breach of duty in failing to pursue proceedings in 2002. She also dismissed the Claimants’ case that proceedings should have been commenced in 2003/4.
This conclusion was not only determinative of the Claimants' case in negligence but also of the claim under the 1998 Act. Although limitation and the extent to which the Claimants were at risk of imminent harm were both in issue, Lambert J said that she did not need to make findings on those matters. Even if she were with the Claimants on both, the operational failures mirrored the allegations of negligence. Consequently the claim under the 1998 Act must also fail.
The third issue was that of causation. Again, Lambert J would reject the Claimants’ case on this issue. She could not be satisfied, even on the balance of probability, that had care proceedings been commenced in 2002/2004 the outcome would have been removal of the children.
The claims were dismissed
FACTS:-
The four Claimants were siblings born in 1995, 1995, 1999 and 2001. They were children of a family, which had five other children born between 1993 and 2009. Up until 2010, the Claimant lived with their parents in the Defendant local authority area. Between 1995 and 2010, the Defendant’s social workers were involved with the Claimants and their family. They responded to and, where necessary, investigated referrals and concerns; supported the family generally by monitoring and through the provision of advice and direct work undertaken with the parents and the Claimants; assessed the risks to the claimants which were posed by family members, friends and acquaintances of the family. Between 1996 and 1999, the First and Second claimants were on the child protection register and, between March and September 2002, all of the Claimants were on the register. In April 2009, the Defendant issued care proceedings in the Coventry County Court and eventually an interim order was made in March 2010 removing all of the children, save for the eldest (a boy, by then aged 17), into foster care. In June 2010, full care orders were made and care plans removing the eight children from the family were approved by the court.
The Claimant alleged that they each suffered abuse, including sexual abuse and neglect whilst in the care of their parents prior to 2010. They also alleged that their parents were unfit to be parents and that this should been obvious to social workers. Between 1992 and 1997, the father was convicted of four offences of indecency towards teenage girls. Both parents had learning difficulties. The home was often squalid and the children dirty and unkept. The action was brought in negligence and under the Human Rights Act 1998 for breach of Articles 3 and 8 of the European Convention on Human Rights. The Article 8 claim was abandoned at trial.
JUDGEMENT:-
Mrs Justice Lambert said that under the 1998 Act for breach of Article 3 rights the Claimants asserted that they were exposed to a real and immediate risk of sexual harm of which the Defendant was or ought to have been aware, together with a failure by the Defendant to take reasonable available measures which could have had a real prospect of altering the outcome or mitigating the harm. Although for the purpose of the human rights claim the Claimants did not need to establish the existence of a duty of care owed to the Claimants, and the causation requirement was different, the claim was not without its own particular difficulties, not least that it was commenced many years after the expiry of the limitation period for such actions.
The Claimants relied upon three events in support of their case that the Defendant assumed responsibility for their plight and therefore owed them a duty to keep them safe:
a) the commissioning of, and response by the Defendant to, a psychology report prepared in January 1997 and/or
b) the "direct work" undertaken by social workers and family support workers with the parents and the children to educate them as to the risks posed by third parties; and/or
c) the assessment in February 2002 that the Claimants were at risk of significant harm and the decision to commence care proceedings in March 2002.
The Claimants' case was that, whether commenced in 2002, late 2003 or early 2004, care proceedings would have, on balance, led to an order by the court removing the Claimants from the family.
Lambert J considered the statutory framework under the Children Act 1989 and then the chronology of events. She had heard factual evidence from a number of witnesses, all of whom were social workers or family support workers. She had also heard expert evidence from two social care experts.
The first issue was whether the Defendant owed the Claimants a duty of care? Lambert J referred to three recent decisions :-
- Michael v Chief Constable of South Wales Police [2015] UKSC 2,
- Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4
- N v Poole Borough Council [2020] AC 780
In determining the existence or otherwise of a duty of care in the three cases, the court had applied the orthodox common law approach and the established principles of law. These were the key principles.
i) At common law public authorities are generally subject to the same liabilities in tort as private individuals and bodies.
ii) Like private individuals, public authorities are generally under no duty of care to prevent the occurrence of harm.
iii) The distinction between negligent acts and negligent omissions was therefore of fundamental importance.
iv) Public authorities did not therefore owe a duty of care towards individuals to confer a benefit upon them by protecting them from harm, any more than would a private individual or body.
v) The general rule against liability for negligently failing to confer a benefit was subject to exceptions (i) when A had assumed responsibility to protect B from that danger; (ii) A had done something which prevented another from protecting B from that danger; (iii) A had a special level of control over that source of danger; or (iv) A's status created an obligation to protect B from that danger.
The first issue that Lambert J would address was whether the claims involved a positive act by the Defendant which had caused the Claimants' harm, or, whether the claims alleged a failure to confer a benefit. In Lambert J’s view, these claims were an "omissions" case or claims arising from a failure to confer a benefit.
Lambert J also found that the claims concerned the Defendant's allegedly negligent failure to commence care proceedings under section 31 of the 1989 Act and, linked to that failure, a failure to undertake a competent investigation and risk assessment under section 47 of the 1989 Act.
However, it did not follow that this characterisation of the Claimants' case was, in itself, determinative of the claim. In N v Poole, the court had said that it did not follow from this statement that an assumption of responsibility could never arise out of the performance of statutory functions. The question was one that was "fact sensitive".
The Claimants had argued that the Defendants assumed responsibility by obtaining a psychologist report in 1997. At least, in this context, the Defendant could be said to have taken a step – in the sense that it had done something. However, the report was obtained, not for the Claimants' benefit or for the benefit of the parents, but for the benefit of the local authority's social workers in determining the parents' ability to keep the children safe, the level of risk which the father posed to his children and whether the threshold for registration or care proceedings was met. It was obtained and funded as part of the defendant's assessment of risk under section 47 of the 1989 Act in order to assist the social workers acting on behalf of the local authority to determine how best to fulfil their statutory obligations.
The local authority's assessment of risk would not be shared by the parents nor the children. Had proceedings been commenced, the parents would have been separately represented and the children's interests represented by a Guardian ad Litem. It would not necessarily follow that the local authority's viewpoint would be aligned with that of the family, children or parents. In these circumstances, Lambert J would not accept that it would be reasonably foreseeable that the Claimants would rely upon the Defendant such as to give rise to a duty of care.
The Claimant’s argument was even weaker in respect of the decision in 2002 to commence care proceedings. A recommendation that care proceedings be commenced for the purpose of sharing parental responsibility could not be described as a positive act which had the effect of generating a duty of care, nor characterised as the provision of advice or service upon which the Claimants might reasonably foreseeably rely, so giving rise to a duty of care to act carefully.
The Claimants had also argued that their cases were similar to that in the three separate appeals in the judgement in D v East Berkshire Community Health NHS Trust [2004] QB 558. Lambert J disagreed. In each appeal therefore the Defendant had, by its acts, caused the injury to the claimants. The facts of none of the appeals in D raised a similar allegation to the present cases which involved an allegation of failure to protect the claimant children from harm caused by third parties.
Lambert J would therefore conclude that, on the facts of this claim, no duty of care was owed by the Defendant to the Claimants.
The second issue was that of breach of duty. Even though Lambert J had found no duty of care, she would address the issue of breach in any event. Lambert J would accept the social work expert witness for the Defendant that the decision as to whether to commence proceedings in 2002 was not clear cut. She would also accept her evidence that the decision not to commence proceedings fell within the reasonable range of social worker opinion and judgement when assessed by the appropriate standard of the day. She considered the competing arguments of the two experts, but would dismiss the Claimants' case that there was a breach of duty in failing to pursue proceedings in 2002. She also dismissed the Claimants’ case that proceedings should have been commenced in 2003/4.
This conclusion was not only determinative of the Claimants' case in negligence but also of the claim under the 1998 Act. Although limitation and the extent to which the Claimants were at risk of imminent harm were both in issue, Lambert J said that she did not need to make findings on those matters. Even if she were with the Claimants on both, the operational failures mirrored the allegations of negligence. Consequently the claim under the 1998 Act must also fail.
The third issue was that of causation. Again, Lambert J would reject the Claimants’ case on this issue. She could not be satisfied, even on the balance of probability, that had care proceedings been commenced in 2002/2004 the outcome would have been removal of the children.
The claims were dismissed