24 July, 2020
When CN and GN v Poole came before the Supreme Court for a final judgment it was hoped by both Claimant and Defendant practitioners that clarity would be provided as to the crucial question of when and in what circumstances a duty of care would be owed to a claimant who it was alleged should have been removed from an unsafe home environment.
Although the judgment concluded that generally no duty of care applied even if a Social Services department was involved and carrying out its statutory functions in relation to a child until the child was removed into care, the comments of Lord Reed pointed to potential exceptions.
In short, a duty of care could be deemed to have arisen if either by its intervention, the L.A. made a situation worse by actually creating a danger, or if by its actions it had "assumed a responsibility" to act with a certain degree of care and skill which it might then have breached.
It is this latter exception which has caused much legal debate and it's probably true to say that it remains very uncertain as to how the judiciary is going to interpret what does and does not amount to an assumption of responsibility in this context.
A recent case of A Claimant v Surrey County Council, (Case no: C41YM553 Roberts on 26th June 2020) suggests that applications to strike out cases based on the basic premise of there being no duty of care prior to removal will fail.
HHJ Roberts declined to strike out a claim against a local authority's social services department for failing to remove a child from the care of his mother and step-father.
The Defendant social services department was involved with the family following an initial hospital referral to the social services department for a suspected non-accidental injury in 2004. The department carried out two core assessments in 2004 and a further core assessment in 2005, pursuant to their statutory duties under the Children Act 1989. The department closed the claimant's file in September 2005.
The step-father was later convicted of 30 specimen counts of rape against the child and his brother in the period 2004 to 2010. It was the Claimant's case that had the Defendant carry out its intervention with reasonable care and skill the Claimant would have been removed from the familial home by no later than mid-2006 and avoided all subsequent abuse by his step-father.
The Claimant accepted in argument that the social services department by its intervention had not made matters worse. However, they argued that by its positive intervention a special relationship had arisen between the Claimant and the Defendant such that the Claimant was entitled to rely upon the Defendant to take reasonable steps to protect him from his step-father. Such special relationship should therefore be found to have given rise to an assumption of responsibility, applying the principles in Hedley Byrne v Heller & Partners Ltd  AC 465, as explained in CN v Poole Borough Council  UKSC 25.
For the purposes of the strike out application the Defendant accepted that if the Defendant had assumed a duty of care to the Claimant, there was an arguable case that it was in breach of that duty; but the Claimant's pleaded facts in support of an assumption of responsibility were indistinguishable from the pleaded facts in CN and therefore must fail.
I am not surprised that the Judge refused to strike out the claim at this early stage, and I suspect that the Defendant was merely "testing the water".
The court has taken a reasonable view that the circumstances in which an assumption of responsibility might arise had not been definitively set down in CN and remains to be judicially clarified.
It is interesting that the Claimant's legal team relied heavily on stressing a distinction between CN and the pleaded facts in this case. They pointed out that the threat to the children in CN was from outside the familial home and the mother was blameless. They also cited Lord Reed's words at paragraph 81, "the council's investigating and monitoring of the Claimants' position did not involve the provision of a service to them on which their mother could be expected to rely".
This suggests that an assumption of responsibility may be deemed to have been created if a Social Services department goes beyond acting simply in accordance with its statutory functions and makes specific promises to do something which a Claimant can reasonably rely on and then fails to deliver on the promise. As counsel for the claimant conceded: "the concept is not a binary one: it will require a definition of the scope and intensity of such a duty. For what, exactly, have social services assumed a responsibility?"
Claimant lawyers often argue that social workers hold themselves out as possessing special skill which will include correctly assessing the risk of harm to the child and the ability of the parents to mitigate that risk in the familial home. In exercising that skill, it is argued that an assumption of responsibility on which reliance is placed arises. Defendant lawyers on the other hand point to the fact that in most cases social workers are merely acting in the course of their statutory duties doing their best often in extremely difficult circumstances. Without there being some additional or special element created, the reasoning of the Supreme Court in CN should determine that there is no duty of care created.
Applications to strike out in such cases are not in themselves going to define the parameters of assumption of responsibility in failure to remove cases. Only full trials will provide clear guidelines. Until such a body of precedent is available all involved in this field of law are operating in an uncertain landscape.