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This article considers the court’s application and interpretation of Poole Borough Council v GN and another [2019] (CN and GN) in a number of recent strike out decisions.
Background
CN and GN confirmed 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.
However, each claim is considered on its own factual matrix. The court did identify exceptions where it can be established that the local authority created the source of danger, had sufficient control over the third party causing the damage or had assumed responsibility for the child.
The current legal debate, perhaps unsurprisingly, centres around when and in what circumstances a duty of care may be owed.
Strike out applications
In Champion v Surrey County Council [2020] (Champion) there was a long history of social work involvement with the claimant’s family but the claimant had never been taken into care. Despite this, the court held that a number of positive pleaded acts (including two rounds of core assessments, investigations/strategy discussions and subsequent decisions to close the claimant’s case) were sufficient to give rise to an arguable assumption of responsibility. However, it must be noted that permission to appeal this decision was granted on paper and the Deputy Master in HXA (discussed below) indicated his disagreement with the decision.
In contrast, in A Claimant v Bradford Metropolitan District Council [2020] the court struck out the claim given the absence of any pleaded factual allegations to support an assumption of responsibility.
In X and Y v Derbyshire County Council [2020], the claimant alleged abuse by her mother which her father was said to have disclosed to the local authority (who failed to act on the complaints until years later). The court refused the council’s application to strike out the claim as the pleaded facts provided at least an arguable case that the council had “caused harm”, as alleged. A persuasive argument was perhaps that the council’s actions had been ‘more akin to an adviser to the mother’.
A final, albeit earlier example is in Spence v Calderdale MBC (2019) where an earlier interim care order was sufficient to prevent strike out.
The most recent decision of HXA and another v Surrey County Council [15.02.21] (HXA) heard creative arguments from the claimant as to how a duty of care was arguable and merited exploration at trial. However, the court was unconvinced and the decision maintains the status quo that a duty of care cannot be “reverse engineered” and cases should not be distinguished from CN and GN on inadequate grounds.
Comment
It remains that the existence of an assumption of responsibility is fact specific, but on applications to strike out, courts appear less sympathetic to cases based upon allegations of nonfeasance (failure to act) as opposed to misfeasance (negligent positive act(s)). That being said, this is not necessarily a barometer for conclusions which might be reached after a full hearing.
A positive act(s) on the part of the local authority (such as obtaining a care order) is generally required for a claimant to maintain a sustainable cause of action. Despite the decision in Champion, on most of the analysis of CN and GN to date, the mere exercise of statutory functions (such as monitoring, investigation and assessment) cannot be sufficient for an assumption of responsibility to be established.
Future analysis
The judgment in the case of DXF v Coventry City Council is expected in the coming months and this is likely to provide the High Court’s detailed analysis of duty of care issues following a full trial, the first since CN and GN. The decision will hopefully provide further clarity to local authorities on the extent of their duty of care.
Public sector
United Kingdom