Supreme Court hears challenge over children’s services duty of care ruling

Children’s rights campaigners are to intervene in a Supreme Court case that they argue could have “significant” ramifications for the rights of children and young people to receive damages if a local authority fails to protect them.

Representatives from Article 39 and The Care Leavers’ Association will make submissions to the Supreme Court today (16 July) as they seek to overturn a December Court of Appeal judgment that decided Poole council was not negligent in its decision not to remove two children, one of whom was disabled, from their home to protect them from harassment from a family living nearby.

The two organisations said that the judgment in CN v Poole stated that local authorities could no longer be held liable for negligence when a child had suffered due to their failure to act. If it were upheld by the Supreme Court it could remove councils’ duty of care in respect of their child protection functions, which would have a “disproportionate effect” on looked-after children and adults who were in care or custody as children, they added.

Direct duty of care

The two claimants were children when they were subject to harassment and abuse from the other family, while living with their mother in accommodation arranged by Poole council, in its capacity as the local housing authority, from 2006-11. The housing department was said to have been aware of the other family’s anti-social behaviour before placing the claimants’ family nearby.

One of the claimants, who has severe physical and learning difficulties, tried to end his life aged nine because of the abuse he suffered.

The claimants argued that if the whole family could not be moved, they should have been removed from the family home into at least temporary care under the Children Act. They argued that there was a direct duty of care to them in common law, deriving from the council’s Children Act duties, including sections 17, 20 and 47.

They claimed that the conditions for the local authority holding a duty of care towards the claimants were met: harm was foreseeable due to the reported harassment; the authority had assumed responsibility for protecting the family from harm due to its awareness that the claimant who had physical and learning difficulties was a child in need; and that it was fair, just and reasonable to impose liability on the authority.

However, giving the lead judgment in the Court of Appeal in December 2017, Lord Justice Irwin rejected the claim.

He said that the case was “highly artificial” because it was based on the idea that the children should be removed from their mother’s care, when they were not at risk from her or any other family member, because “continued residence with their mother continued to expose them to harassment from others”.

“This is a rather startling proposition,” Irwin said.

Because the claimants had been unable to sue the council in its capacity as a housing authority, they had recast the claim as one flowing from the council’s Children Act duties. But, in so far as the council had duties under the Children Act, it was not responsible for housing the claimants near the anti-social family.

He added in this case there was “no basis for an assumption of care” from the local authority to the children and said the case against the authority was “unsustainable”.

Complicate decision making

Irwin argued it would be “unjust” to extend liability to the council’s social services department when other agencies such as the housing department, arms-length housing provider and police were “at least as involved and arguably more centrally involved in the relevant problem”.

He added that liability in negligence could “complicate decision-making in a difficult and sensitive field, and potentially divert the social worker or police officer into defensive decision making”.

However, Carolyne Willow, director of Article 39, said the group wants the Supreme Court, which will hear the case on 16 and 17 July, to understand the “terrible impact abuse can have on children, especially when they have tried to seek help but are ignored”.

“We appreciate that local authorities are under great financial strain, but children’s rights to safety and recovery must be robustly defended.”

David Graham, national director of The Care Leavers’ Association, said it would be “incomprehensible” for a local authority not to face the legal consequences for not doing enough to prevent abuse and neglect of young people in care.

“But the important thing to remember is this is not just about blame, or legal outcomes. It is about the lives of many young people and adults affected by abuse and neglect experienced as children. It is essential that they have legal recourse to challenge the decisions and omissions that facilitated those damaging experiences.”