14 June, 2019
Those of us who are involved with claims that deal with the actions of local authority social services have been waiting with baited breath for the handing down of the Supreme Court judgment in Poole BC v GN for almost 12 months. However, with the flood of contradictory press coverage on the subject, you could be forgiven for thinking that this judgment is in fact all things to all people.
The claimant press have put out articles with titles such as "Local Councils can be sued for not protecting vulnerable children, due to landmark ruling", with the defendant press titling articles with "Supreme Court reaffirms limits of duty of care to children". So which is it? To explain the actual position we must briefly revisit the history of the case of Poole BC v GN & Another.
As many will no doubt recall, the claimants in this case were children, one of whom had significant physical and learning disabilities, who were housed by the local authority near a family who severely harassed both them and their mother. The claim went through various permutations, but the allegations were essentially that the council knew of the severe anti-social behaviour and failed to intervene to protect the children, primarily by not taking action to take the children into care.
The Court of Appeal previously dismissed the claimants' appeal. Lord Justice Irwin gave the lead judgment. It was suggested on behalf of the claimants that the boys should have been removed from the care of their mother. LJ Irwin described this as a "startling proposition" which was highly artificial and argued that it could not be right that a highly vulnerable disabled child and his younger brother should be removed from their single parent mother because of harassment from neighbours. He continued to remark that the reality is that after the claimants were forced to accept that they could not sue the defendant as Housing Authority, the claim had been brought pursuant to the Children's Act.
LJ Irwin also considered the implications of imposing liability in such situations and noted that it would only serve to further complicate the decision making process in delicate situations. He was conscious of the need to avoid "stimulating caution and defensiveness" on the part of social workers and to minimise "ill feeling and litigation" arising from such disputes.
In addition, the Court of Appeal pointed to the long established legal principle that there is no liability for the wrongdoing of a third party, even where that wrongdoing was foreseeable. The local authority did not bring about the risk nor did they have any control over the individuals representing the risk. In conclusion, LJ Irwin commented that the case illustrated perfectly why it was unjust to extend liability to one agency (the social services department of the local authority) when other agencies (the housing department, the housing provider and the police) were at least as involved and arguably more centrally involved in the relevant problem.
It would seem to be this last point that was the cause of the claimant legal community's major concerns. Those aware of litigation against the police will be aware of a long held assumption that the police were essentially "immune" from prosecution, in relation to operational matters. The Court of Appeal judgment tends to suggest that it is an all or nothing situation and therefore, if there is no liability for other agencies then there should be none for social care. This logic had the potential to bar all failure to remove claims, and from the claimant's perspective, remove access to justice for vulnerable claimants.
Whilst we awaited the recent judgement in GN, the Supreme Court heard another case, that of Robinson v Chief Constable of West Yorkshire  UKSC 4. The Supreme Court in that case clarified that the Police did not enjoy "general immunity from anything done by them in the course of investigating or preventing a crime". The court concluded that the Police may be under a duty of care to protect an individual from danger of injury which they have themselves created. This case essentially reaffirmed the basic principles of negligence that anyone, including a public body, can be liable for a positive act, but not an omission. The legal argument in social care cases therefore focused on the contention that the "failure" to take a child into care was an omission and not a positive act. On that basis, there could be no liability in negligence unless, as in Robinson, the person or body had injured a claimant by a positive act - a further concern for those bringing failure to remove claims.
Fast forward to GN in the Supreme Court. The Supreme Court has confirmed the position that a local authority is generally in the same position as a private individual in that they have no duty to prevent harm. Statutory duties do not, by their mere existence confer a duty at common law upon a local authority and indeed, there is no cause of action provided in the Children Act and therefore, no statutory remedy. As such, the local authority has no duty to protect someone from harm perpetrated by a third party. That is unless the local authority or the employees or agents have created the danger complained of (a fairly easily understandable concept) or they have assumed a responsibility upon which a reliance has been placed (a more complex question and one likely to require further scrutiny). The Supreme Court has therefore clarified that bringing such a claim remains possible, if the relevant exceptions can be made out, and has not followed the same logic as the Court of Appeal with regards to the concerns about imparting any liability at all. This would appear to be why the claimant legal community are claiming a significant victory and in some cases an expansion of the law as it stands. This is not an accurate analysis of the position in our opinion.
As to what an assumption of responsibility actually means, some attempt has been made to provide clarity. An assumption of responsibility is essentially a duty that would not exist at all but for it having been voluntarily accepted and undertaken. A council cannot be deemed to have assumed responsibility merely by dint of the fact that they are operating a scheme for the benefit of society. This would seem to counter arguments, raised by claimant solicitors over the last 12 months, that the mere fact that social services have investigated child protection concerns or placed a child on the child protection register, amounts to an assumption of responsibility. It is clear that a local authority cannot be deemed to have assumed responsibility merely by the performance of what is statutorily required of them.
The difficulty that we face is that this particular case was unusual and was not a typical failure to remove case. As such, the effect that this judgment is to have on all permutations of failure to remove cases should be considered with caution. However, the findings by the Supreme Court on the basis of the facts in this case were as follows;
The position with regards to negligent acts by social care when a child is already in their care, and the position with regards to negligent removal, remains as it has been previously accepted, namely that a potential liability exists. However, the GN case is still extremely beneficial to local authorities facing numerous claims for actions taken in the pre-care investigation periods of involvement and one which provides a myriad of further arguments able to be submitted by way of defence. It does not however cover all scenarios due to the Supreme Court being limited by the facts of this particular case. What about situations where a child is placed in s20 accommodation and then returned to an abusive environment? Is that a creation of a danger or merely the return to the status quo? What if the source of the danger is in fact the parents and a care order is likely to have been approved as reaching the threshold if brought earlier? What is the situation with regards to the application of the Human Rights Act? Many claimant solicitors have already re-pleaded their cases in this vein and although the Supreme Court spent some time looking at the issue of the Human Rights Act they did not comment on its use going forward.
In short, contrary to the position proposed by many claimant practitioners, the case is very helpful to local authorities in providing some clarity of the basis of the law after many years of conflicting positions from different courts. However, it does not provide a total panacea or a straight forward answer to every future case involving pre-care involvement by social care. Unfortunately, therefore we do expect further lengthy argument in the future in such cases and potentially further litigation on the subject.