Keoghs Insight

Author

Anna Churchill

Developments since CN & GN v Poole

Client Alerts22/10/2020

The judgment in CN & GN v Poole BC was handed down on 6 June 2019. Practitioners have been awaiting further guidance from the Court since. Two recent strike out decisions (at County Court level) have looked at the implications of the Poole decision and how the concept of an assumption of responsibility may be applied to local authority abuse claims. This article will consider these two decisions and the potential implications.

Background

The facts of Poole are well documented and will not be repeated here. Briefly, the judgment determined that under common law local authorities do not have a duty to protect children who are not formally in their care unless one of three exceptions applies:

  1. They created the source of the danger;
  2. They exercised control over the third party who caused the harm;
  3. They had assumed responsibility for the child.

The biggest question arising from the judgment was what would constitute an assumption of responsibility. On the facts of the Poole case it was found there was no assumption, despite social services having relatively high levels of involvement with the children. A simple performance of statutory duties was unlikely to be sufficient for there to be an assumption of responsibility – the local authority had to do something that was above and beyond their statutory duties. It therefore appeared that there was a high bar for claimants to prove that the local authority had assumed responsibility for them.

Poole was not a claim arising from allegations of abuse so practitioners awaited further case law specific to abuse for guidance as to how the Court will apply the judgment to abuse cases.

C v Surrey County Council

The defendant local authority applied to strike out the claimant’s failure to remove claim on the basis that the Particulars of Claim disclosed no reasonable grounds for bringing it. The judgment was made in June 2020.

The claimant was seriously sexually abused in the family home until the age of 15 when he was removed from the home and placed in the care of his grandmother. It was alleged that the defendant had assumed responsibility for him and therefore owed him a duty of care. The defendant local authorities’ involvement with the claimant included:

  • Hospital attendance
  • Core assessment
  • Meetings with the claimant
  • Strategy discussions
  • Investigations
  • Decision to close the case (twice)

The defence specifically referred to the fact that the local authority in Poole had undertaken many similar tasks as those identified above but it had been determined that there was no assumption of responsibility.

The Judge refused the defendant’s application on the ground that for a claim to be struck out the Court must be certain that the claim is bound to fail. This claim was not bound to fail.  It was a developing area of law. In the Poole judgment, the Supreme Court specifically pointed out that each case turns on its own facts, and the existence of an assumption of responsibility is highly dependent on the facts of the case. It was determined that there was a real possibility that the claimant  may be successful t and therefore the court would not strike out the claim.

There was evidence of positive steps the defendant took in order to  assist the claimant. It was not determined that the defendant  had assumed responsibility for the claimant, instead simply that the claim was not bound to fail and therefore a strike out was not appropriate.

A Claimant v Bradford Metropolitan District Council

This was also an application to strike out the claim. The judgment was made in September 2020. The claimant  alleged the  local authority had breached its common law duty of care by failing to remove her from her family home, where she was being abused by her mother’s partner.

The allegation  that the local authority had assumed responsibility for her was based on the following contact between the claimant and defendant:

  • Referral
  • Meeting with social worker/social worker allocated
  • Assessments
  • SSD considering alternative placements
  • Case closure

The defendant applied to strike out the claim on the basis that the pleaded case failed to particularise how the council had assumed responsibility in accordance with Poole. There was a lack of evidence that any of the contact points  could be interpreted as an assumption of responsibility. The defendant’s involvement was limited – they investigated and assisted the claimant and her family when they requested help. She was never under the defendant’s care, nor was she formally accommodated.

The Judge found that Poole had clarified the law in this area. The claimant  must establish that the defendant did something that gave rise to an assumption of responsibility, and there must also be reliance on this assumption. The finding in this case was that a) the Particulars of Claim did not properly identify how an assumption may have applied, and b) there was nothing in the pleaded facts that could have the effect of creating an assumption of responsibility. The claim was therefore struck out.

Keoghs Views

Since Poole there have been two applications to strike out failure to remove claims, both at County Court level, on the basis of the assumption of responsibility arguments. The decisions have fallen on each side. Further case law in relation to assumption of responsibility is awaited with interest, particularly at High Court level. Keoghs understand that there is more litigation in this area expected next year and will comment further.

For more information, please contact Anna Churchill or Sarah Swan.