Supreme Court rules councils can be found negligent if they fail to protect children from harm

The Supreme Court has overturned a 2017 decision on councils’ ‘duty of care’ to protect children from harm by third parties, reinstating the possibility of negligence claims where children were known to be at risk.

In a ruling last week, the court dismissed an appeal from a disabled man and his brother seeking damages for physical and psychological harm caused to them as children by abusive neighbours when their family was placed in an adapted house. However, it found there could be circumstances where a council would be liable, and would have a duty of care when undertaking statutory social work, not just for looked-after children.

The ruling was described as ‘landmark’ by lawyers and the human rights and children’s charities who applied to be interveners in the case, and is expected to lead to a number of negligence claims proceeding to the courts that had been put on hold pending this decision.

Appeal court mistaken

The judgment, delivered by Lord Justice Reed, reviewed developments in negligence law and found the Court of Appeal had been wrong in its 2017 ruling on this case to find social workers and councils could not be liable for failing to protect children from harm caused by a third party.

The Court of Appeal had placed emphasis on an earlier case (X v Bedfordshire [1995]) where neglected children had not been removed from their parents, which found that “liability in negligence would complicate decision-making in a difficult and sensitive field, and potentially divert the social worker or police officer into defensive decision-making”. This did not take into account more recent decisions, Lord Reed said.

The Court of Appeal had also been “mistaken” in saying that a 2003 judgement (D v East Berkshire) – which had allowed for negligence claims to be made against a local authority for a failure to act – had been overruled.

Factors to consider

Lord Reed found that the question of whether a council or its social workers had a duty of care, and was therefore liable for negligence, was down to a number of factors and specific circumstances, but the following would need to be considered:

• ‘Duty of care’ is covered by tort law and therefore public authorities are subject to the same principles in this area of law as private individuals (‘common law’ duties). This means public bodies do not generally owe a duty of care to ‘confer benefits’ on individuals. Providing protection from harm, as distinct from a duty not to cause harm, would generally be viewed by the courts as ‘conferring a benefit’.
• There is no automatic duty of care to confer this benefit when a local authority provides statutory safeguarding and welfare services, “even if, by exercising their statutory functions, they could prevent a person from suffering harm”.
• However, the duty may apply in some cases. Lord Reed said that previous case law that found statutory powers or duties do not automatically confer a duty of care on public authorities “should not be understood as meaning that an assumption of responsibility can never arise out of the performance of statutory functions”.
• A local authority would have a duty of care if it “has created the source of danger or has assumed a responsibility to protect the claimant from harm”.
• Whether a council or social workers have “assumed responsibility” depends on the specific circumstances of individual cases. It might be made explicit “or, more commonly, implied”. Lord Reed cited cases when professionals or public authorities had been found to have assumed responsibility. For example, in Barrett v Enfield (2001), which was brought by a child who had been in care throughout his childhood, the local authority was found to have a common law duty of care and social workers to have a duty of care because of their obligations to monitor the child’s welfare. He also emphasised ‘reliance’ on the service provided. For example, in another case “[an] educational psychologist assumed responsibility for the professional advice which he provided about a child where it was reasonably foreseeable that the child’s parents would rely on that advice”.
• Lord Reed also cited examples where the courts had decided there had not been an assumption of responsibility. In a case where a social worker and psychiatrist were investigating child abuse claims, they were responsible for advising the local authority about the child’s wellbeing but not for advising or treating the child. “It was not reasonably foreseeable that the claimants would rely on the reports which they provided to [the local authority],” so there was no assumption of responsibility.

Lord Reed stressed that assumption of responsibility “is not confined to the provision of information or advice,” and that future claims would be considered on their specific circumstances.

“The existence of an assumption of responsibility can be highly dependent on the facts of a particular case, and where there appears to be a real possibility that such a case might be made out, a court will not decide otherwise on a strike out application.”

“Important implications”

Children’s rights charity Article 39, which intervened in the case, said the judgment had “important and welcome implications”. Its director, Carolyne Willow, said she was particularly concerned about mistreatment in secure training centres and young offender institutions and “local authorities’ failures to take robust, protective action”.

“We are incredibly relieved that the Supreme Court has reinstated the potential for children and young people to bring negligence claims against local authorities who have failed to protect them from harm,” she added.

Lawyers expect to see further court judgments on duty of care issues in order to clarify when provision of statutory services would involve an assumption of responsibility. James Arrowsmith, head of law firm Browne Jacobson’s social care and abuse team, commented:

“The Supreme Court specifically dealt with the absence of any evidence in the claimant’s case of an assumption of responsibility, including reliance on the local authority intervention by the claimants. It is likely that in future claims there will be a close focus on any evidence of assumption of responsibility or reliance of this sort. The court may be asked to draw some fine distinctions between assurances which merely form part of a supportive social care relationship and those which are sufficient to create a duty of care in law.”