18 months on from Poole Borough Council v GN, are we any clearer on assumptions of responsibility in claims by children against local authorities and their social workers?
The Facts
GN and CN (‘the Claimants’) lived in a house on an estate with their mother. They had been placed in the house by Poole Borough Council (‘the Council’). CN was severely disabled and was supported by the Council through its child health and disability team and the allocation of a social worker.
The occupants of the house next door to the Claimants’ targeted the family with harassment, physical abuse and attacks on the house over a period of several years. This had a significant negative effect on GN, who began to express suicidal ideas.
The Council assessed GN’s needs and allocated him a social worker. GN was subsequently made the subject of a child in need plan and, following a section 47 assessment, was made the subject of a child protection plan. The family were eventually moved to a more suitable house, away from the abusive neighbours.
The Claimants brought a claim alleging that they had suffered physical and psychological harm as a result of the Council’s failure to safeguard their wellbeing as required by section 17 and section 47 of the Children Act. In particular, the claimants alleged that if the whole family could not be rehoused together, the Council should have applied for them to be removed from their mother and taken into the care of the Council.
The Law
The Supreme Court considered whether the Council owed a duty of care to the Claimants. The Claimants argued that a duty was owed, either by the Council itself or by the social workers for whom the Council was vicariously liable.
The Particulars of Claim relied on the following to establish an assumption of responsibility:
“In purporting to investigate the risk that the claimants’ neighbours posed to the claimants and subsequently in attempting to monitor the claimants’ plight… the defendant had accepted a responsibility for the claimants’ particular difficulties and/or there was a special nexus or special relationship between the claimants and the defendant. The defendant purported to protect the claimants by such investigation and in as far as such investigation is shown to have been carried out negligently and/or negligently acted on the defendant is liable for breach of duty.”
The Judgment
Lord Reed concluded that the Council’s investigating and monitoring was not sufficient for an assumption of responsibility. It is worth setting out his conclusion in full (with my emphasis):
“[80] As Lord Browne-Wilkinson explained in relation to the educational cases in X (Minors) v Bedfordshire (particularly the Dorset case), a public body which offers a service to the public often assumes a responsibility to those using the service. The assumption of responsibility is an undertaking that reasonable care will be taken, either express or more commonly implied, usually from the reasonable foreseeability of reliance on the exercise of such care. Thus, whether operated privately or under statutory powers, a hospital undertakes to exercise reasonable care in the medical treatment of its patients. The same is true, mutatis mutandis, of an education authority accepting pupils into its schools.
[81] In the present case, on the other hand, the council’s investigating and monitoring the claimants’ position did not involve the provision of a service to them on which they or their mother could be expected to rely. It may have been reasonably foreseeable that their mother would be anxious that the council should act so as to protect the family from their neighbours, in particular by re-housing them, but anxiety does not amount to reliance. Nor could it be said that the claimants and their mother had entrusted their safety to the council, or that the council had accepted that responsibility. Nor had the council taken the claimants into its care, and thereby assumed responsibility for their welfare. The position is not, therefore, the same as in Barrett v Enfield. In short, the nature of the statutory functions relied on in the particulars of claim did not in itself entail that the council assumed or undertook a responsibility towards the claimants to perform those functions with reasonable care.
[82] It is of course possible, even where no such assumption can be inferred from the nature of the function itself, that it can nevertheless be inferred from the manner in which the public authority has behaved towards the claimant in a particular case. Since such an inference depends on the facts of the individual case, there may well be cases in which the existence or absence of an assumption of responsibility cannot be determined on a strike out application. Nevertheless, the particulars of claim must provide some basis for the leading of evidence at trial from which an assumption of responsibility could be inferred. In the present case, however, the particulars of claim do not provide a basis for leading evidence about any particular behaviour by the council towards the claimants or their mother, besides the performance of its statutory functions, from which an assumption of responsibility might be inferred.”
In relation to the social workers, Lord Reed used similar reasoning:
“[87] …Lord Browne-Wilkinson accepted in relation to the Dorset proceedings that the local authority could be vicariously liable for negligence on the part of its educational psychologists because they were providing professional advice to parents on which the parents had foreseeably relied. In the Hampshire proceedings, he accepted that an advisory teacher, brought in to advise on a pupil’s educational needs, owed a duty to the child to exercise reasonable skill and care provided he knew that his advice would be communicated to the pupil’s parents, and could therefore reasonably foresee that they would rely on such advice. In Phelps v Hillingdon, the duty of care of the educational psychologist towards the child was again based on the fact that it was reasonably foreseeable that the child’s parents would rely on the advice provided. Those were all cases where the duty of care arose on the basis of the Hedley Byrne principle. In the present case, on the other hand, there is no suggestion that the social workers provided advice on which the claimants’ mother would foreseeably rely.”
Comment
Is Poole even a ‘failure to remove’ case?
The most striking feature of Poole is that it is difficult to see why removal of the children under the Children Act was argued by the Claimants. The facts are nothing like a typical claim by a child against social services. The Children Act allows for children to be removed from their parents where they are suffering significant harm at the hands of their parents. It has no intended application to a case involving neighbourly disputes. The case is far more similar to those which explore a landlord’s duty to protect tenants from antisocial neighbours, rather than cases of local authorities failing to protect children from their parents.
Anyone bringing a claim against local authorities in respect of children’s services will understandably seek to distinguish their case from Poole. In that regard Pooleis a highly unusual case and is likely to provide fundamental differences in the factual background.
What does the judgment mean for more typical claims by children against local authorities and their social workers?
Notwithstanding the unusual facts, the Supreme Court did give a judgment that dealt with assumption of responsibility in the context of the Children Act as a whole. The judgment focused on the nature of the activities carried out under the Children Act in Poole.
Lord Reed drew a distinction between cases where a local authority provides a service tothe child – where there is an assumption of responsibility – and cases where the service is provided only to the child’s school or only to the local authority itself, where no such assumption of responsibility arises. He makes clear that the services provided in Poole fall into the latter category and thus do not involve an assumption of responsibility.
Lord Reed caveats his conclusion on the nature of children’s services by stating that in some cases, the way the local authority actually conducts itself could give rise to an assumption of responsibility.
Lord Reed placed much emphasis on the idea of ‘reliance’ on the service provided by the Council. It is interesting to consider how this might be applied in a context where many claimants will be young children. In Poole, no problem arose because the Supreme Court spoke of reliance on the Council by either (1) the Claimants or (2) their mother. However, imagine a failure to remove case involving a baby whose mother is causing it harm. Clearly the baby is too young to sensibly say that it has relied upon the local authority, and surely in a case where, unlike Poole, the interests of the mother and the child are in conflict, reliance on the local authority by the mother would be inappropriate to create a duty of care on behalf of the baby.
What has happened since Poole?
There has been conflicting authority following Poole.
In AA, BB v CC [2020]9 WLUK 480, HHJ Godsmark QC declined to strike out a failure to remove claim. In AA v CC, the local authority seemed to go beyond the exercise of their statutory function under the Children Act, as they had involved themselves in private law proceedings, which had great ramifications for the child. The judge held, ‘the responsibility assumed was thus to BB [the child] in respect of her future residence and contact arrangements’.
Similarly, in Champion v Surrey County Council (unreported), HHJ Roberts declined to strike out a failure to remove claim. The judge held:
- A case should only be struck out in clear and obvious cases.
- It was not obvious on the facts of the case that there was no assumption of responsibility. The case was distinct from Pooleas Pooleconcerned a threat to children whose source was outside the family home and the mother was blameless.
- This is a case where the law can be said to be emerging.
However, in HXA & SXA v Surrey County Council [2021] EWHC 250 (QB), Deputy Master Bagot QC struck out a claim on the basis that there was no assumption of responsibility. He referred to the decision of HHJ Roberts but stated, ‘On this occasion, I take a different view from him on the appropriateness of striking out cases on facts such as the present, which have apparent overlap with those in Champion and notwithstanding the words of caution about doing so in Poole.’
The involvement of the local authority in HXA was far more extensive than in Poole, spanning over 16 years. The claimants argued that the extent of the involvement and, in particular, the actions of (1) placing the children’s names on the child protection register; (2) seeking legal advice about initiating care proceedings; and (3) deciding to do keeping safe work (which involves teaching a child the distinction between appropriate and inappropriate behaviour) amounted to an assumption of responsibility by the local authority.
Deputy Master Bagot QC stated that this was an attempt to make inappropriate distinctions between HXA and Poole. Notwithstanding the factual differences between HXA and Poole, he stated, ‘there is much overlap between the monitoring, investigation and assessment carried out by the local authority in Poole and the present case’ and therefore he was bound by the decision in Poole to conclude that no duty of care arose on the facts.
As to whether or not the law is settled, Deputy Master Bagot QC stated, ‘Where there is a recent Supreme Court judgment which is on point or at least closely analogous, I do not accept that this can be described as a developing area of law (or a developing point within that area).’
Conclusion
The disagreement as to whether or not the law is settled brings to mind a scene from Outnumbered where the child, Karen, asks her father if they are having an argument and he replies, “No one is having an argument.” Karen responds, “If I think we’re having an argument and you think that we’re not, then that’s an argument.”
In a similar vein, the fact that there is judicial disagreement as to whether or not the law is settled could indicate that it may not yet be fully settled. Champion is currently on appeal and should the decision of HHJ Roberts be overturned, it will be more difficult to argue that the law is still developing and the position would seem to be that in the vast majority of children’s services cases, no duty of care will be owed by the local authority.
