'Failure to Remove' claims - Where are we now?

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25 February, 2021

The recent case of HXA v Surrey Council has followed a minimal number of social care cases which have made their way through the Courts following CN & GN v Poole BC. The lack of detail around these cases, and the failure of any of them to reach the higher echelons of the Court system, have left room for argument and a lack of clarity as to the position regarding liability in failure to remove claims.

CN v Poole Borough Council

In this case the Supreme Court dismissed the claimants' appeal, holding that in the circumstances of the case, the council owed the claimants no duty of care at common law to take protective measures to remove them from the family home to prevent them suffering the ill-effects of the anti-social behaviour to which they were subjected by neighbours. Please see our previous detailed analysis of this case for more detailed information about the facts. Social care liability - what does this case actually tell us? 14 Jun 2019 - Article from Forbes Solicitors

Case Law following the judgement in Poole

The first judgement to be handed down following CN & GN v Poole BC was from the British Oversees Territory of St Helena. In A v Attorney-General of St Helena the claimant had been sexually abused by two older men when she was a teenager. She complained of a failure to protect her despite disclosures made to the authorities. The Chief Justice rejected all the attempts to distinguish Poole and held the case "falls squarely on all fours with Poole" and that it should be struck out: para 28. Namely that there was no liability for failing to confer a benefit, i.e. removing the Claimant, and the defendant had not caused the damage.

The first English judgment was that of HHJ Backhouse in the Mayor's and City Court on July 19th 2019 in Spence v Calderdale MBC. The claimant and his siblings had been promptly removed from their parents' care under what was then, in 1971, called a place of safety order, following allegations of abuse. Interim care orders were later made. The claimant's stepfather was tried and acquitted for an indecent assault. There was rather equivocal evidence in the papers which suggested that the local authority tried to keep the claimant in its care, but the Magistrates' Court refused a further interim care order and the claimant was returned to his parents' care. The judge thought that the case was arguably distinguishable from Poole on the basis that the claimant had been taken into care and declined to strike the claim out.

The next judgment was given nearly a year later, by HHJ Roberts in the County Court at Central London on June 26th 2020. Champion v Surrey CC was a case in which there was a lengthy history of involvement of social workers with the claimant's family, but he had never been taken into care either under any form of care order or pursuant to any of the powers and duties in Part III of the Children Act 1989. In the judge's judgment he noted that a number of elements of the history were pleaded as representing positive acts, and he took the view that those allegations "are sufficient to give rise to an arguable assumption of responsibility": We understand this case to be the subject of appeal.

On September 15th 2020, District Judge Jackson, sitting in the County Court at Bradford, struck out a claim against Bradford MBC in which the claimant had been left in her mother's care and had been raped by her mother's partner. Although assumption of responsibility was alleged, it appears that no factual allegations in support of that suggestion were pleaded. The District Judge is reported to have decided that the pleaded case was "wholly inadequate in identifying the act or task or service relied on". The case is a good illustration of the necessity for claimants to specify clearly in the Particulars of Claim the factual basis on which it is said that an assumption of responsibility arises.

HXA v Surrey Council

The Particulars of Claim in this case were based on a formulation of the duty of care issue:

(1) A duty of care existed by the mere exercise of child protection functions, because the effect of Poole was to resurrect the decision of the Court of Appeal in D v East Berkshire Community NHS Trust [2003] EWCA Civ 1151, [2004] QB 558.

(2) By the mere involvement with the claimants' family, the defendant assumed responsibility for their safety and welfare.

(3) The council had added to the danger which the claimants faced by "endorsing" their parenting and "allowing" the unsuitable male partners to move in with the mother.

(4) The council had failed to control the wrongdoers, namely the mother and her partners.

(5) The council's inaction had prevented others from protecting the claimants.

(6) The first claimant had complained to a lunch assistant at school about being frightened when her stepfather came into her bathroom when she was bathing, and the matter had been reported to the school office.

The above, or variations of them, are regularly seen in Letters or Particulars of Claim where there is an attempt to suggest that the mere involvement with a family automatically creates an assumption of responsibility. This is something that we have regularly challenged.

The defendant in this case accepted that the last set of allegations may arguably fall within the scope of the well-recognised duty of care owed by teachers and school staff to pupils, and did not suggest that those particular factual allegations should be struck out. However, all the points on which it was said that its social services department and social workers owed duties of care were thoroughly questioned. The claimant expressly accepted in their submissions that the case was one of "failing to confer a benefit" rather than directly causing them harm. It was suggested that Poole was distinguishable on the basis that it had been concluded that a care order could not have been obtained in that case whereas it was an option in this matter.

The Deputy Master rejected attempts to distinguish Poole on the basis of differences on the mere facts - mere assertion of reliance on the council buy the claimants would not suffice. He also made an extremely important observation, distinguishing the cases where a care order had been made and a duty of care was recognised, such as Barrett v Enfield LBC.

A duty of care is recognised to arise when a care order is made, because the local authority has parental responsibility. But up until that point, parental responsibility remains unequivocally with the parent(s). A duty of care cannot, in my view, effectively be reverse engineered from the point at which a duty arises on the making of a care order, in the way that the Claimants would wish. This involves saying that because the duty arises on the making of the order, so there is a duty to conduct any care proceedings brought competently; and so, there is a duty to decide whether to institute care proceedings competently; therefore, there is a duty to investigate competently to decide whether to bring care proceedings. That attempt to trace back a duty at an earlier and earlier stage does not provide a viable route to an arguable case here, in my judgment.

Finally, the Deputy Master rejected the argument that the striking out should be refused, because the case would have to go to trial on the issue of the alleged disclosure at school. Indeed, what if anything the school could have done to prevent the alleged abuse other than making a referral was questionable.

As to the previous decisions, at paras 40-43 of his ruling, the Deputy Master indicated that he declined to follow the decision in Champion and regarded the approach in the St Helena case as representing the right approach. He closed the main part of his judgment by emphasising the importance of not distinguishing cases from Poole on inadequate grounds: paras 46-47.

Forbes Comment

It is clear that diverse conclusions are being made at first instance by judges on the various ways in which duty of care issues are argued before them, and until such cases reach the higher courts, strenuous arguments as to how the Supreme Court judgement in CN & GN v Poole BC should be interpreted are likely to rumble on. Whilst the Deputy Masters judgement in HXA is very detailed, including many rejections of potential arguments which may be made, it is unlikely that the discussion surrounding this particular issues will end here.

Our Social Services team regularly deal with "failure to remove" cases and are on hand to help should assistance ever be required.

For more information please contact Kella Bowers in our Insurance department via email Kella Bowers or phone on 01254 222 437. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

We thank Paul Stagg from 1 Chancery Lane Chambers for the analysis he provided regarding HXS v Surrey Council which has assisted the creation of this update.

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