Failure to remove and the common law: DFX and Others v Coventry City Council 2021 EWHC 1382 (QB)

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28 May, 2021

DFX v Coventry City Council was one of the first trials of a Social Services 'failure to remove' claim in the High Court following the Supreme Court decision in CN and GN v Poole BC in June 2019. DFX considered whether Social Services Departments owe a common law duty of care to children, not under the care and control of the Local Authority, so those children are known to Social Services Departments but not subject to Section 20 voluntary accommodation or a Section 31 Care Order.

Judgment in the DFX case was handed down on 24 May 2021 and applying the legal principles set out by Lord Reed in CN v Poole BC, Lambert J found that Coventry City Council's Social Services Department, in line with CN, did not owe the Claimants a duty of care to protect them from harm in the community caused by third parties.

By way of background, the Claimants, in this case, consisted of four of nine children born to parents with mild learning difficulties. Three of the Claimant siblings also suffered from moderate learning difficulties. Coventry City Council's Social Services Department had been involved with the family for a period of 15 years due to concerns regarding the parenting of the children, including neglect. There were also concerns around whether the children had contact with dangerous adults within the community and whether they were at risk of sexual abuse from their father who was a convicted Schedule One offender. It was found that the Claimants did experience significant abuse perpetrated by their parents, as well as by other adults who frequented the family's home.

The Claimants' case was that the abuse they suffered, or much of it, could have been prevented had the Claimants (who were children at the time) been removed from their parents' care by way of a Section 31 Care Order to the Local Authority. It was the Claimants' case that during the 15 years' worth of involvement with the family that the Local Authority had assumed responsibility for the children's welfare. It should be noted that the Claimants were removed from their parents' care under a Care Order in 2010 however, the Claimants alleged that the removal should have taken place some years earlier in 2002 and/or 2003.

It was held by Lambert J, following her analysis of the widely reported cases of Michael, Robinson and CN, that this was an omissions case, otherwise referred to in the CN v Poole judgment as a 'failure to confer a benefit', which does not give rise to legal liability under the common law. Lambert J, therefore, considered whether the Defendant Local Authority had in some manner assumed responsibility for the Claimants, in accordance with the Hedley Byrne reliance principle, over the course of their involvement with the family.

Lambert J concluded that it was not reasonably foreseeable that the children had relied upon Coventry's Social Workers, nor was there any evidence to suggest that any promises and/or actions had been taken which could be said to amount to the Social Workers going over and above their statutory duty in accordance with the Children Act 1989.

Mrs Justice Lambert commented: 'I have considered whether there was anything in the nature of the statutory functions being exercised by the defendant under section 47 and section 31 of the 1989 Act or in the manner in which those functions were exercised which generated a duty of care. Having done so, I find nothing which suggests to me that the defendant assumed responsibility to exercise those functions with reasonable skill and care. Having looked for "something more" as I have put it, I find nothing. The facts do not fall within any category in which the common law has recognised a duty arising.'

On the above basis and following the legal principles as set out in CN v Poole, the Claimants' common law negligence action against Coventry, following a full liability trial, failed.

Lambert J went on to consider breach of duty and causation and rejected the Claimants' case on both. Mrs Justice Lambert found that it was not Bolam negligent (the reasonable Social Worker test) to have failed to remove the children prior to 2010.

Turning to the Claimants' claims under Article 3 and Article 8 ECHR, Lambert J dismissed the Article 3 allegations, although the reasoning for the same is not entirely clear from the judgment. It is confirmed in the judgment however that the Article 8 claim was withdrawn by the Claimants during the course of the trial. Quite how such cases are dealt with by the courts from a Human Rights Act perspective remains to be seen and we will of course keep you updated with developments in the law in this regard.

Forbes Comment:

The case of DFX v Coventry provides further and arguably greater clarity on the issues surrounding the existence of a duty of care in 'failure to remove' cases, following on from the Supreme Court decision in CN and GN v Poole BC [2019]. Where the Defendant Local Authority is merely carrying out its statutory duties in accordance with the Children Act 1989 it is unlikely to be found to have assumed a responsibility for the child/children unless there is "something more" to use the words of Lambert J.

DFX further endorses the legal principles surrounding duty of care as first set out in CN and thus creates further difficulties for Claimant lawyers seeking to bring failure to remove actions against Local Authorities under the common law.

As referred to above, however, no such forensic analysis has been undertaken concerning the interplay of the Human Rights Act 1998 in cases post-dating October 2000. Local Authorities and their insurers should remain vigilant towards such common law cases being reconfigured in an attempt to allow such Claimants a legal cause of action.

For more information contact Siobhan Hardy in our Insurance department via email or phone on 0113 386 2686. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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