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What does the Judgment in CN v Poole Borough Council mean for local authorities?
Without repeating the well-documented facts of the case, it must be remembered that the Poole case was not a typical failure to remove case. The issue for the Supreme Court was to determine whether a local authority could be liable in negligence for failing to exercise its social services functions to protect a child who was not in their care from harm by third parties (neighbours) rather than the familial environment. The claimants had appealed the Court of Appeal’s decision that no such duty exists.
The Supreme Court dismissed the claimants’ appeal. However, the Court did not conclude that a local authority can never be liable for children who are not in their care. There are certain circumstances in which such a duty can arise in common law.
If the local authority has directly harmed the child, perhaps by wrongly removing them or placing them inappropriately, there will be a duty of care, as long as the harm caused was reasonably foreseeable.
As was the case in Poole, if the local authority has not directly harmed the child, but instead the harm has occurred as a result of the local authority’s failure to act and consequent failure to prevent harm, there is no duty of care at common law merely because the local authority has statutory functions under the Children Act 1989.
However, the Judgment confirms that there may be a duty under common law to protect the child when the following general principles are met, i.e. where the local authority has:-
- Created the source of the danger
- ‘Assumed Responsibility’ for the child
The concept of ‘assumed responsibility’ is ambiguous. The Judgment states that it must arise from an act and not an omission by the local authority, and furthermore that the child (and/or their parent or guardian) must have relied on the local authority’s express or implied undertaking to provide such care. Beyond this, there is little guidance within the judgment.
What does this mean for local authorities who are presented with ‘failure to remove/protect’ claims?
Our view is that local authorities continue to owe a duty of care to children who have been taken into care, or who have been voluntarily accommodated under Section 20 Children’s Act 1989 (but this is debateable).
They may also owe a duty of care to children who are not in care, if there is an ‘assumption of responsibility’ for the child. This will be considered on a case by case basis by way of an analysis of the steps taken by the local authority and the relationship between the local authority and the child. It will be difficult for a Court to determine whether the actions of the local authority amounted to an assumption of responsibility, and if so, whether the child or parent/guardian has relied on this assumption.
It is unlikely that simply because local authorities investigated child protection concerns or discussed children in child protection meetings that these actions will be sufficient to impose an assumption of responsibility and consequent duty of care on a local authority. Our view is that local authorities will need to have done something outside of its ordinary statutory duties before such a duty can be imposed.
Although the Judgment has not imposed a blanket duty on local authorities to protect children in its jurisdiction, they now face a greater liability than they have since the decision of the Court of Appeal. Whether such a duty can be imposed 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 potentially also claims brought under the Human Rights Act to provide more clarity.
Sarah Swan - Legal Director
Anna Churchill - Case Handler