Further clarity around failure to remove claims

This judgment is the first consideration at High Court level of duty of care issues since Poole Borough Council v GN and another [2019] (CN and GN).

CN and GN found that local authorities do not, as a matter of course, owe a common law duty of care to protect children from harm caused by third parties. DFX reaffirms the decision following a 10 day trial, during which the court considered the factual and expert evidence. Mrs Justice Lambert DBE handed down her judgment on 24 May 2021.

Background

Whilst the factual matrix of CN and GN was different to the “classic” failure to remove case, DFX was more akin to the type of litigation generally seen where allegations are made of “failure to remove”.

The claimants were four of nine siblings born to parents with learning difficulties and three of the claimants suffered moderate learning difficulties.  The father was a Schedule 1 offender.

The claimants’ case was that they should have been removed from the care of their parents in or around 2002 due to the significant trauma and abuse which they were suffering. The claimants were eventually removed pursuant to a Care Order in 2010. It was therefore alleged that the abuse suffered during the period 2002 and 2010 could have been avoided, had the local authority acted in accordance with its duty of care.

The defendant’s social service department was involved with the family over a 15 year period, save for one short period of disengagement (7 months). The level of involvement was significant, including the provision of Section 47 investigations, child protection conferences, placing the children on the Child Protection Register and child protection plans. Support was also provided under Section 17 of the Children Act 1989 by way of direct work with the children and provision of nursery places.

At trial, the claimants argued that the defendant’s conduct in dealing with them amounted to an assumption of responsibility, thereby giving rise to a duty of care which was breached by its failure to intervene in around 2002. The claimants relied upon a report commissioned by the defendant in 1997 from the Reaside Clinic, which purposed to provide help and recommendations. It was alleged that by obtaining the report the defendant had “assumed responsibility”. Further, in 2002 the defendant made the decision to issue care proceedings (which were not in fact issued at that time) and also completed direct work with the claimants and their family, actions which, it was alleged, gave rise to the assumption of responsibility.

Quantum was agreed subject to liability, with a range of awards between £25,000 and £125,000, a significant reduction from the original value of the claim which had been placed at £40m.

Decision

Lambert J found that the claimants’ case amounted to a failure to confer a benefit. There was nothing about the nature of the statutory function which the defendant was exercising which gave rise to a duty of care. Whilst the delay in removing the claimants allowed the situation to continue, the actual acts of abuse which were causative of the damage were perpetrated by other individuals (parents and adults who attended the family home).

Lambert J found that the defendant had not therefore assumed responsibility for the claimants and that the closest they had come to establishing such an assumption was their reliance on a psychological report commissioned by the defendant in 1997 and the implementation of the recommended measures thereafter. This, however, was not enough. The judge reaffirmed that more than merely carrying out a statutory function was necessary to meet the threshold for “assumed responsibility”. This could be something intrinsic or external to the statutory function itself, contrary to arguments advanced by the defendant that it was never possible to establish a duty of care in circumstances where the failure was itself a failure to take a step prescribed by statute (an argument which was dismissed).

Lambert J suggested that to establish an assumption of responsibility will depend upon whether there is “something more”. This criteria was not further defined.

The judge found that no duty of care arose in the circumstances of the case, notwithstanding the defendant’s extensive involvement with the claimants’ family.

Although it was not necessary for Lambert J to consider the issue of breach of duty in light of her primary findings, she held, on an analysis of the facts with the assistance of expert social care evidence, that this was not established in any event. Although criticisms could be made of the defendant’s consideration of risk at various stages of its involvement, it could not be said that it had been negligent in failing to remove the claimants in 2002 (pursuant to the Bolam test). The claimants’ social care expert (Maria Ruegger) conceded that the actions of social services had been reasonable, her criticism being that the information gathered by the social workers, through direct social work had not been reasonably risk-assessed. Lambert J found her approach to be “at best, overly academic”, preferring the evidence of the Defendant’s social care expert (Felicity Schofield).

Lambert J then considered the claimants’ claims under the Human Rights Act 1998 and held that the same considerations were applicable. It follows that as the negligence claim failed then so did the Human Rights Act claim.

Finally, the judge found that the claimants’ case failed in relation to causation in any event. The claimants’ home life deteriorated significantly between 2002 and 2010 when they were subsequently removed, it was not correct to suggest that they could or would have been removed in 2002 in any event. Even if an application for a Care Order been made in 2002, such an Order may not have been granted by the court.

Comment

There has been much speculation since the judgment in CN and GN which was determined in unique circumstances for a claim of this nature. DFX follows a more 'typical' pattern for a 'failure to remove' case and the decision is welcomed as providing some clarity in respect of the concept of assumed responsibility.

The position remains that there must be more than the mere carrying out of statutory functions to establish an assumption of responsibility. Whilst Lambert J was not willing to rule out the possibility that in different factual circumstances such a duty may arise, given the factual matrix of the present case it is difficult to envisage when such a duty might be found to exist.

The judgment also contains useful reminders around consideration of breach of duty and causation with a reminder that the 'threshold' question must be considered in the context of the particular time at which it is alleged that removal should have occurred.

Whilst the DFX judgment provides greater clarity, stakeholders remain sympathetic to claimants in these circumstances. Further judgments will no doubt follow, which will hopefully provide more guidance, although it appears that a high bar has now been set to establish the assumption of responsibility.

Related item: The court’s approach to ‘failure to remove’ claims following Poole Borough Council v GN and another [2019]