03/06/2021
Why is the judgment important?
If the Claimants’ arguments had been accepted, it would have meant that a wide-ranging duty of care would have been owed to them by the Defendant’s social services department (“the SSD”) to keep them safe from harm.
The Claimants’ case
From 1995 the SSD were involved with the four Claimant children, all of whom were subject to sexual abuse by their father. A Care Order was granted in 2010. Claims were pursued for breach of Article 3 of the Human Rights Act 1998 (“the HRA”) and in negligence, on the basis that the SSD should have removed the Claimants from harm earlier, by instigating care proceedings.
Quantum had been agreed on a scale from £25,000 to £125,000, far less than the original claims of over £40 million. Sight should not be lost of the significant trauma and abuse experienced by the Claimants.
What did the High Court decide in dismissing the claims?
The Court concluded that the SSD, in exercising its statutory functions under the Children Act 1989 by instigating care proceedings, did not by exercising those functions alone, assume responsibility towards the Claimants to do so with reasonable care.
Wider principles set out by the Supreme Court last year in CN v Poole were reaffirmed. Public authorities do not owe of duties of care at common law simply because they have statutory powers or duties, even if by exercising their statutory functions they could prevent a person from suffering harm. This is different to a case where the public authority is directly causing harm. Public authorities are in no worse or better position than private individuals in respect of potentially tortious conduct.
However, in fact specific circumstances, responsibilities can be assumed to protect an individual from third party danger. “Something more” was required than the alleged failure to remove children from care at an earlier stage, which was tantamount to an allegation of a failure to confer a benefit by exercising a statutory function.
There were no positive acts by the SSD, on which it was reasonably foreseeable the Claimants would place reliance, which would create a duty on the Defendant to exercise reasonable care and skill. Implementing measures set out in a psychology report commissioned by the SSD was not sufficient for such an assumption of responsibility to arise.
No common law duty was owed. If it had been, it would not have been breached. The Court concluded that the SSD “did a difficult job reasonably”.
The Claimants’ case on causation also failed. The Court could not conclude on the balance of probabilities that the instigation of earlier care proceedings would have led to removal of the Claimants from harm.
The failure on causation meant that the allegation of breach of Article 3 of the HRA failed. It was not necessary for the Court to consider whether it should extend time for the claims to be pursued, many years after expiry of the HRA limitation period.
If you would like to discuss this topic in more detail, please contact Adrian Neale, Associate.
