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CN & GN v Poole – Implications for Police Forces
On 6 June 2019 the Supreme Court handed down its long awaited judgment in CN v Poole, unanimously dismissing the claimants’ appeal and holding that in the circumstances of the case, the defendant 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 anti-social behaviour inflicted by their neighbours.
As Lord Reed set out in his judgment, a public authority can come under a common law duty to protect someone from harm in circumstances where the principles applicable to private individuals or bodies would also impose such a duty, as for example where the authority has created the source of danger or assumed a responsibility to protect the claimant from harm, unless the imposition of such a duty would be inconsistent with the relevant legislation. In this case, the council did not create the danger. Rather, the claimants’ case was that the council had assumed a responsibility towards them to take reasonable care in investigating and monitoring their position.
The Supreme Court held otherwise. Whilst ‘it may have been reasonably foreseeable that their mother would be anxious that the council should act so as to protect the family from their neighbours, in particular by re-housing them… anxiety does not amount to reliance. Nor could it be said that the claimants and their mother had entrusted their safety to the council, or that the council had accepted that responsibility. Nor had the council taken the claimants into its care, and thereby assumed responsibility for their welfare.’ In due course there could well be satellite litigation on what precisely constitutes an “assumption of responsibility” and other nuances.
Although the Poole case concerns a local authority, it is also relevant to all public authorities, including police forces. In particular, there are interesting implications for claims involving child sexual exploitation (CSE). In these claims, the position of the police at common law appears now to be essentially the same as that of local authorities. Poole has reaffirmed the police cases of Michael (2015) and Robinson (2018) in which the Supreme Court held that the police have no duty of care for their omissions to protect individuals from harm caused by the actions of third parties under common law merely because they have statutory powers or duties or by exercising their statutory functions. However, police forces may be liable in certain defined circumstances where they undertook a positive act which causes personal injury or where there is an “assumption of responsibility” which is of more relevance to CSE claims. There is a relatively high bar that exists before an assumption of responsibility can arise in police cases (as per Michael). It is unlikely to arise merely from police presence at multi agency meetings or because they are investigating a suspected perpetrator. In our view, local authorities are at greater risk in CSE claims regarding assumptions of responsibility because they are more likely to provide services to victims of CSE than the police (how this is debatable). Prior to the Supreme Court’s decision, local authorities have denied any liability for children not in their care in CSE claims. Whether they now accept some responsibility for them on the basis of an assumption of responsibility remains to be seen.
Whether such a duty has been assumed will be heavily dependent on the analysis and facts of each case. While the concept is in its infancy its application will be uncertain; we can undoubtedly expect satellite litigation around the issue of assumption of responsibility and other issues until there is greater clarity.
Finally, it is worth remembering that the Poole judgment concerns the position at common law. Police forces and other public bodies may also be liable in CSE claims under the Human Rights Act and in the context of misconduct in public office.
Sarah Swan - Legal Director
Daniel Tyler - Solicitor