CN & GN v Poole Borough Council
Court of Appeal
21 December 2017
The Court of Appeal recently handed down its judgment in CN v Poole Borough Council, a ground breaking case for local authorities.
Following CN, no duty of care can be owed by a local authority in the exercise of its social services child protection functions, to investigate and to take action to prevent significant harm to children.
Anna-Louise Wood explores the judgment and the likely implications for local authorities in terms of defending abuse claims.
In May 2006, Mrs N and her sons, CN and GN, both of whom were at all relevant times under the age of 18, were living in Poole. CN was disabled and was a child 'in need' within the Children Act 1989 s.17. The family had recently moved into new accommodation on a housing estate, arranged by the council, acting as the local housing authority.
Whilst residing on the estate, Mrs N and her sons were the victims of prolonged abuse as well as anti-social and criminal behaviour, caused by a neighbouring family. This behaviour was suffered until the family were finally moved to alternative accommodation in December 2011.
Between 2006 and 2011 the family frequently reported the anti-social behaviour to the council, police and Poole Housing Partnership Limited, from whom the accommodation was rented. They also involved local politicians, given the inadequacy of the responses received from the various bodies. This led to an independent case review, undertaken by the Home Office in 2010 which determined that the responses of the various bodies in terms of handling the complaints had been inadequate.
Proceedings were subsequently issued by Mrs N, CN and GN against the Chief Constable of Dorset Police, Poole Housing Partnership Limited, and the council but they were later dismissed as no Particulars of Claim were served.
In April 2015, Mrs N, CN and GN issued proceedings against the council in negligence. This consisted of a claim by all three of the claimants in common law negligence for the council’s failure to protect them, as a consequence of its failure to remove the family from their housing on the estate to a place of safety. It also included a claim brought by CN and GN only, for the council's failure to protect them as children in accordance with its duties under the Children Act 1989. In particular, they relied upon s.17 of the Act to safeguard and promote the welfare of children who were in need; the power under s.20 to provide accommodation for a child if the local authority considered that such provision "would safeguard and promote the child's welfare"; and the obligation under s.47 to inquire as to whether action should be taken if the local authority had reasonable cause to suspect that a child was suffering, or was likely to suffer, significant harm. CN and GN asserted that the local authority should have removed them from their accommodation.
In October 2015, following a successful application from the council, both heads of claim were struck out on the basis that there was no disclosable cause of action. In relation to the claim advanced by all three claimants, Master Eastman ruled that a local authority does not owe a basic common law duty of care to protect people from anti-social behaviour. As for the alternative claim advanced by CN and GN, Master Eastman was not satisfied that there was any foundation in law for the assertion that there was in fact a common law duty in favour of children provided by the Children Act particularly in the circumstances of this case. The claimants, CN and GN, then appealed the decision to strike out their claim for failure to protect them and to remove them from the home. The appeal was advanced on the basis that in striking out the claim, Master Eastman had failed to have regard to the binding authority in JD v East Berkshire NHS Community Trust .
This authority established that a duty of care could be owed in respect of a council's failure to remove CN and GN from the harm that they were suffering whilst residing at the property. In March 2016 the High Court allowed the appeal and set aside the Order striking out the claims of CN and GN. It was determined that JD had not been overruled by subsequent case law. JD had reviewed the impact of the Human Rights Act 1998 on the common law principles of negligence and had determined that when considering a child's claim in negligence the court had to take into account their rights under the ECHR. The council was subsequently granted permission to appeal the decision as it was observed that it must be determined whether JD remained good law.
In JD the House of Lords upheld the decision from the Court of Appeal that decided that healthcare professionals and social service professionals did not owe a duty of care to parents in their decision making with regards to matters affecting a child. To impose a duty would be an extension of situations in which a duty was owed. It was however reasonably arguable that a local authority owed a duty in negligence to a child in relation to its investigation of suspected child abuse and the commencement and seeing through of care proceedings.
The decision of the Court of Appeal
The matter was heard before the Court of Appeal in June 2017. Judgment was handed down on 21 December 2017 whereby the Court of Appeal unanimously allowed the council’s appeal.
The main judgment was given by Irwin LJ. He accepted the council’s submission that “the heart of the claim is that this family were placed in the relevant house, and not moved, despite the prospect and then the actuality of significant harassment”. He described the proposition that the claimants should have been removed from their mother’s care as a means of dealing with such harassment as “rather startling” and “highly artificial” and noted that the failure of the claims in respect of housing and anti-social behaviour functions meant that “the claim has been re-cast”.
He pointed out that JD v East Berkshire NHS Community Trust had purported to depart from X v Bedfordshire County Council  on the basis that the Human Rights Act 1998 removed its binding force. Irwin LJ considered the subsequent case law, including the Court of Session and House of Lords decisions in Mitchell v Glasgow City Council  and the Supreme Court decision in Michael v Chief Constable of South Wales Police , both of which were followed.
There were broadly two particular aspects of the case law which militated against liability: the danger of encouraging defensive decision-making by social workers and police, and the general absence of liability for the wrong-doing of others (i.e. the police, the housing department and the housing provider), even where that wrong-doing was foreseeable. It was determined that it would be unjust for a potential liability to exist on the part of the local social services authority when the housing department of the same local authority, the landlord and the police could not be held liable.
He went on to conclude that JD was indeed inconsistent with the subsequent decisions of higher authority and should no longer be followed. He also acceded to the council’s alternative argument that, in reality, the claim had nothing to do with its social services functions but was “in fact a criticism of the housing functions of the local authority”.
The appeal was therefore allowed on a unanimous basis; it was determined that the claims had been rightly struck out at first instance.
The claimants have sought permission to appeal to the Supreme Court.
The implications of the decision
This judgment effectively determines that JD was inconsistent with higher authority and should no longer be followed.
In essence, the judgment restores the position to that following X v Bedfordshire County Council, that being that it was not just and reasonable to superimpose a common law duty of care on local authorities in addition to their statutory duties to protect children, in the making of decisions as to whether care proceedings should be commenced.
The facts of CN are quite far removed from the majority of cases brought about as an alleged failure to remove the child from the care of their parents/guardians. In the majority of these types of cases, the child/children are being subjected to physical, psychological or sexual abuse or neglect within the home which they will allege that the local authority should have been aware of, and taken steps to remove. In CN, the harm suffered was caused by a neighbouring family, as opposed to within the family home. There was no question over the care provided to the children by Mrs N.
That being said, the ruling in CN is clear in that it will still apply to these types of cases. Following CN, no duty of care can be owed by a local authority in the exercise of its social services child protection functions, to investigate and to take action to prevent significant harm to children.
The Daily Mirror (30.12.17) recently reported on the judgment, stating that "many of the abused will be unable to sue councils for negligence, even if records show social workers KNEW about their ordeals and failed to act." This reaction is clearly impulsive. The judgment does not provide a blanket defence for local authorities in respect of abuse claims. Claimants will still have recourse to pursue claims under the Human Rights Act 1998 (Article 3 – Prohibition of Torture, and Article 8 – right to respect for private and family life) as well as a claim through CICA ('Criminal Injuries Compensation Authority'), who deal with compensation claims from people who have been physically or mentally injured because they were the victim of a violent crime in England, Scotland or Wales.
That being said, local authorities need to be aware of this judgment and its impact on the landscape of abuse claims. Thought will need to be given to any ongoing claims, whether pre-action or litigated, whereby an admission of liability may have been made following the ruling in JD. In such cases, consideration will need to be given to resiling from any admissions in light of the ruling.
When considering the implications of this judgment, one should also be mindful of the recent Supreme Court decision in Armes v Nottinghamshire County Council , that a local authority can be held vicariously liable for the abuse of a child committed by foster parents, whilst in their care.
Whilst CN rules that no duty of care can be owed by a local authority in the exercise of its social services child protection functions, the ruling in Armes will still apply to cases of abuse and neglect of those children already in the care of foster carers. Local authorities will therefore need to be observant and remain responsive to their potential liabilities in such cases where abuse is suffered whilst a child is in care.
For further information please contact: Anna-Louise Wood, Solicitor on 020 7645 9637 or at Anna-Louise.Wood@dwf.law or Mark Whittaker, Partner on 020 7645 9534 or at Mark.Whittaker@dwf.law.