Two children alleged that their local authority had failed to protect them from harassment by neighbours. The Supreme Court held that the pleaded facts did not show an assumption of responsibility by the council or its social workers. Nor did those facts disclose grounds to take the children into care. Their negligence claim therefore could not go to trial.
What was alleged
The case reached the Supreme Court on a strike-out application. It had to consider what the claimants alleged, without making findings about the underlying events. An anonymity order protected the children and their families.
The family alleged that neighbours repeatedly harassed them over several years. The council knew of the problems, provided support and undertook assessments. The claimants said that the steps taken had failed to prevent harm.
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The proceedings below
The claim had two limbs. The first concerned the council’s housing functions and an alleged duty to rehouse the family. The second alleged a duty of care in relation to sections 17 and 47 of the Children Act 1989, and a failure to protect the children by leaving them on the estate. Master Eastman struck out the claim. The claimants appealed only on the second limb. Slade J allowed that appeal. She held that there was no absolute bar to a child’s negligence claim against a local authority for a failure to safeguard the child, and that whether a duty was owed depended on a full examination of the facts.
The amended particulars alleged a duty owed by the council and duties owed by its social workers and managers, for which the council was said to be vicariously liable. The pleaded breach was that competent investigation would have led to the children’s removal from home, at least into temporary care, if the whole family could not be moved.
The Court of Appeal restored the strike-out. It found no assumption of responsibility and no legal basis for removing the children from their mother. The source of the alleged harm was the neighbours’ behaviour.
The duty of care
Lord Reed gave the judgment, with which Lady Hale, Lord Wilson, Lord Hodge and Lady Black agreed. He accepted that the 1989 Act duties do not themselves create a right to sue. The question was whether a common law duty of care could arise in the performance of those functions.
He applied the approach clarified in Robinson v Chief Constable of West Yorkshire Police. Public authorities are generally subject to the same principles of negligence as private individuals, unless legislation excludes or restricts a duty. They may be liable for negligently causing harm. They do not owe a duty of care merely because statutory powers or duties, if exercised, could have prevented harm caused by someone else. A duty to protect can arise in particular circumstances, such as where the authority created the source of danger or assumed responsibility to protect the claimant, unless that duty would be inconsistent with the legislation.
Lord Reed held that X (Minors) v Bedfordshire County Council can no longer be understood as deciding that, for reasons of public policy, a local authority or its staff can never owe a duty of care to a child affected by the performance of functions under the 1989 Act. Whether a duty arises depends on ordinary principles applied to the circumstances. He also held that the Court of Appeal’s decision in D v East Berkshire Community NHS Trust had not been implicitly overruled. The Court of Appeal in this case had therefore reached the right result for reasons he did not accept.
Why these particulars disclosed no duty
This was a claim that the council failed to protect the children from harm caused by third parties, not a claim that the council itself inflicted harm. It was not advanced on the basis that the council had prevented someone else from protecting them, had a special level of control over the danger, or occupied a status which itself obliged it to protect them. A suggestion that the council created the danger by housing the family next to the neighbours faced the difficulty, identified through Mitchell v Glasgow City Council, that landlords, including local authorities, have consistently been held not to owe a duty of care to those affected by their tenants’ anti-social behaviour. There was also no surviving claim based on the council’s housing functions.
The claim therefore depended on an assumption of responsibility. Lord Reed held that the particulars provided no basis for one. Investigating and monitoring the family’s position was not a service on which the children or Amy could be expected to rely. Anxiety that the council might protect them, particularly by rehousing them, was not reliance. They had not entrusted their safety to the council, and it had not taken the children into its care. Unlike the position in Barrett v Enfield London Borough Council, the nature of the statutory functions relied on did not itself mean that the council undertook to perform them with reasonable care.
Lord Reed accepted that, in another case, an assumption of responsibility might be inferred from the authority’s particular conduct, and that this might sometimes be unsuitable for decision on a strike-out. Here, however, the particulars identified no behaviour beyond performance of the statutory functions from which such an assumption could be inferred. An email referring to a duty of care did not appear to concern the 1989 Act functions. In any event, as held in O’Rourke v Camden London Borough Council, a statement that a duty exists cannot by itself create one.
The same conclusion applied to vicarious liability, an issue the Court of Appeal had not considered separately. The social workers owed the council a contractual duty to exercise proper professional skill and care, but the particulars did not show that they assumed responsibility to the children. There was no suggestion that they gave advice on which Amy would foreseeably rely, as in the education cases discussed in X (Minors) v Bedfordshire and Phelps v Hillingdon London Borough Council, or that the children had entrusted them with the conduct of their affairs.
Why the alleged breach could not succeed
The pleaded breach was that any competent authority would have arranged removal into at least temporary care. Lord Reed agreed with King LJ’s analysis of the legislation. Under section 31(2), a care order requires the court to be satisfied that the child is suffering, or is likely to suffer, significant harm attributable to the care being given, or likely to be given, not being what it would be reasonable to expect a parent to give. An interim care order under section 38 requires reasonable grounds for believing that those circumstances exist. Even if that threshold is met, welfare remains to be considered. Interim removal has been held appropriate only where the child’s safety requires it and removal is proportionate.
Nothing in the particulars suggested that those conditions could possibly have been met. The harm relied on was attributable to the neighbouring family, not to a lack of reasonable parental care. There were simply no grounds for removing the children from their mother. King LJ had also pointed out that there is no such order as a respite care order.
Verdict: The Supreme Court unanimously dismissed the children’s appeal. The claim remained struck out because the pleaded facts disclosed neither an arguable duty to protect them in these circumstances nor legal grounds for the proposed removal.
