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DFX & Others v Coventry City Council: Post-Poole guidance
Abuse lawyers have been waiting for further guidance and clarification from the court since the judgment of CN & GN v Poole in June 2019. Whilst not a typical failure to remove case, Poole determined that local authorities do not have a duty of care to protect children who are not formally in care save for three exceptions. The case left a few points for interpretation between practitioners handling typical failure to remove cases and although there have been a number of decisions at County Court level since Poole, none has clarified them. The first High Court decision has now arrived – DFX & Others v CCC. Apparently Coventry City Council’s social services department were heavily involved with DFX & Others over a 15 year period. Statutory duties and activities undertaken by them over this period of time included section 47 investigations and support under section 17 Children Act 1989. The allegations in DFX & Others involved neglect and serious sexual abuse by their father, who was subsequently convicted of offences involving one of the siblings.
The court agreed with the defence lawyers on most of the salient points that they put forward in the civil trial. Much of the judgment does relate to the specifics of the DXF case itself, but it does have some wider and interesting implications on failure to remove claims generally:-
- DFX, as in Poole, confirmed that a high bar is necessary for claimants to show that local authorities owe a duty of care to children not in their care and in the community. It seems that 15 years of continuous social services support and assistance in itself is insufficient to give rise to an assumption of responsibility. The judgment confirmed that the cases of Michael, Robinson and Poole are the main cases now to be considered in relation to duty of care in relation to acts and omissions.
- In DFX, and of note, the judge preferred the evidence of the defendant’s social care expert, Felicity Schofield, above that of the claimant’s expert, Maria Ruegger. This was because Maria Ruegger was not involved in frontline childcare work post 1983, which was prior to the Children Act 1989 so her opinion was felt to be academic. This is helpful to lawyers defending these claims on behalf of local authorities, given that Ms Ruegger is one of the preferred claimant experts in this field.
- Section 47 and section 17 activities were found to be statutory duties and nothing more. Could a local authority assume responsibility merely by exercising its functions? Following Poole, DFX held not. The judge found that while section 47 and section 17 activities were capable of giving rise to an assumption of responsibility, there had to be “something more”. Local authorities cannot be found to have a duty of care merely by undertaking these statutory duties. There needs to be something “intrinsic to the nature of the statutory function itself which gives rise to an obligation on the defendant to act carefully in exercising that function” or “something about the manner in which the defendant has conducted itself towards the claimants which gives rise to a duty of care”. DFX confirms that an assumption of responsibility is only likely to arise in very narrow, fact specific circumstances.
- Following DFX, practitioners will need to pay particular attention to causation, in particular they will need to consider what the position would have been if the local authority had actually applied to remove children from their parental environment rather than omitted to do so. It is not a foregone conclusion that a court would have agreed and removed the children in situations such as these. This is likely to be an area of increased contention in claims of this nature, and practitioners will need to consider whether, based on the evidence available at that time, the children would have been removed at the stage alleged by the claimants.
On the facts of this case, despite extensive involvement with the claimants over a period of 15 years, the judge found that there was no assumption of responsibility and that no duty of care arose. This strengthens the position following judgments such as HXA v Surrey . It does therefore appear that claimants will find it more difficult to successfully bring failure to remove claims. However, there are still elements apparently unclear and yet to be considered by the court. The facts of DFX did not involve a consideration of section 20. Also in DFX the court has left it open for the potential of a duty to arise in circumstances where the failure results from a failure of a local authority to undertake a statutory step i.e. a failure to initiate care proceedings. These are still areas open to interpretation between practitioners.
We understand that another important judgment – YXA v Wolverhampton - is due to be handed down imminently and are certain that more will follow.