High Court rejects ‘failure to remove’ abuse claim

14 June 2021 by Dominic Ruck Keene

In a significant adverse judgment for child abuse claimants, DFX v Coventry City Council [2021] EWHC 1382 (QB), Mrs Justice Lambert rejected a claim brought by a number of claimants who alleged that the defendant council’s social services negligently delayed in instigating care proceedings and that had they been removed from the family home earlier they would have avoided serial abuse at the hands of their parents.

The factual background was that save for a hiatus between June 2001 and February 2002, the defendant’s social services department had been engaged with the claimants’ family throughout the 15 years from 1995 to 2010. Between 1996 and 1999, the first and second claimants were on the child protection register and, between March and September 2002, all of the claimants were on the register. In April 2009, the defendant issued care proceedings in the Coventry County Court. Initially, the removal of the children was sought under an emergency protection order. This was not successful. An interim order was in March 2010 removing all of the children, save for the eldest (a boy, by then aged 17), into foster care. In June 2010, full care orders were made and care plans removing the eight children from the family were approved by the court.

The claimants’ case was that they each suffered abuse, including sexual abuse, and neglect whilst in the care of their parents before their removal from the family in 2010. The claimants alleged that their parents were unfit to be parents and that this should have been obvious to the social workers involved with the family. Between 1992 and 1997, the father was convicted of four offences of indecency towards teenage girls. He had learning difficulties and had limited insight into his offending. The mother also had learning difficulties and it was alleged that she demonstrated repeatedly that she was either unable or disinclined to protect the claimants from their father or from predatory men who visited the home. The risks to the children were increased by the presence in the home of the maternal grandmother who lived with the family until March 2004. She also had learning difficulties and was associated with three “risky adult” men who visited the home. The home was often squalid and the children dirty and unkempt.

Mrs Justice Lambert noted that by the end of the hearing, the claimants’ case on the existence of a duty of care was predicated solely on whether or not the defendant had assumed responsibility for the claimants, such as to give rise to a wide ranging duty of care on the part of the defendant to keep the claimants safe and to protect them from harm from third parties.

That assumption of responsibility was on the basis of either: (1) of the council assuming a responsibility to undertake recommended reporting and monitoring of the children; or (2) by assessing that the children were at risk of significant harm and deciding that care proceedings were necessary, the council assumed responsibility to pursue those proceedings competently; or (3) by taking on direct work with the claimants and the family, the council assumed responsibility for carrying out that work effectively and reviewing its efficacy so that it provided reasonable protection to the claimants.

The claimants had relied upon the defendant’s interventions in their lives and argued that the social services department must have intended that the claimants should rely upon it to protect them otherwise their intervention would have been futile. It was submitted that a local authority can assume responsibility for children even though the children have not been taken into its care on the basis that the claimant has entrusted the defendant with his or her safety.

With respect to breach of that duty, the main focus of the claimant’s case was that a child protection conference in June 2002 reversed its earlier recommendation that care proceedings should be commenced, which was alleged to show a blatant lack of understanding of the purpose of professional work in protecting children.

Mrs Justice Lambert referred to the legal context as to whether or not the social workers owed the claimants a duty of care and began by noting at [165] that

... over recent decades the courts have adopted conflicting and at times inconsistent approaches to the question of whether a public authority owes a common law duty of care against the background of a statutory duty or power. In three recent cases, Lord Toulson in Michael v Chief Constable of South Wales Police [2015] UKSC 2, Lord Reed (majority reasoning) in Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4 and Lord Reed in N v Poole Borough Council [2020] AC 780, drew attention to this inconsistency and analysed how it had arisen. The judgments set out clearly (and with increasing emphasis) the correct approach to be taken by the courts when considering the establishment of a duty of care generally and by public authorities in particular.

At [167] Mrs Justice Lambert gave what she described as a ‘distillation of the key general principles’ from those three cases:

i) At common law public authorities are generally subject to the same liabilities in tort as private individuals and bodies. Accordingly, if conduct would be tortious if committed by a private person or body, it is generally equally tortious if committed by a public authority. It follows therefore that public authorities are generally under a duty of care to avoid causing actionable harm in situations where a duty of care would arise under ordinary principles of the law of negligence (Robinson at [33]).
ii) Like private individuals, public authorities are generally under no duty of care to prevent the occurrence of harm. In Michael, Lord Toulson said at [97]: “English law does not as a general rule impose liability on a defendant (D) for injury or damage to the person or property of a claimant (C) caused by the conduct of a third party (T): Smith v Littlewoods Organisation Ltd [1987] AC 270. The fundamental reason as Lord Goff explained is that the common law does not generally impose liability for pure omissions. It is one thing to require a person who embarks on action which may harm others to exercise care. It is another matter to hold a person liable in damages for failing to prevent harm caused by someone else“.
iii) The distinction between negligent acts and negligent omissions is therefore, as Lord Reed said in Poole at [28] of fundamental importance. Lord Reed reflected that the distinction to be drawn could be better expressed as a “distinction between causing harm (making things worse) and failing to confer a benefit (not making things better) rather than the more traditional distinction between acts and omissions, partly because the former language better conveys the rationale for the distinction drawn in the authorities and partly because the distinction between acts and omissions seems to be found difficult to apply“.
iv) Public authorities do not therefore owe a duty of care towards individuals to confer a benefit upon them by protecting them from harm, any more than would a private individual or body, see Robinson at [35]. Lord Reed continues at [36] “That is so, notwithstanding that a public authority may have statutory powers or duties enabling or requiring it to prevent the harm in question“. The position is different if, on its true construction, the statutory power or duty is intended to give rise to a duty to individual members of the public which is enforceable by means of a private right of action. If, however, the statute does not create a private right of action, then “it would be to say the least unusual if the mere existence of the statutory duty (or a fortiori, a statutory power) could generate a common law duty of care“. It follows that public authorities like private individuals and bodies generally owe no duty of care towards individuals to prevent them from being harmed by the conduct of a third party.
v) The general rule against liability for negligently failing to confer a benefit is subject to exceptions. The circumstances in which public authorities like private individuals and bodies may come under a duty of care to prevent the occurrence of harm were summarised by Tofaris and Steel in “Negligence Liability for Omissions and the Police” 2016 CLJ 128. They are (i) when A has assumed responsibility to protect B from that danger; (ii) A has done something which prevents another from protecting B from that danger; (iii) A has a special level of control over that source of danger; or (iv) A’s status creates an obligation to protect B from that danger.

She also referred to Stovin v Wise [1996] AC 923 and Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057, stating that:

In Stovin, Lord Hoffmann reasserted the importance of the distinction between harming the claimant and failing to confer a benefit typically by protecting the claimant from harm. He observed that the liability of a public authority in tort in the case of positive acts was in principle the same as that for a private individual, but it may be restricted by its statutory powers and duties. In relation to failures to perform statutory duties Lord Hoffmann remarked that if such a duty does not give rise to a private right to sue for breach, it would be unusual if it nevertheless gave rise to a duty of care at common law which made the public authority liable. Even more emphatically, in Gorringe, Lord Hoffmann said at [32] “Speaking for myself, I find it difficult to imagine a case in which a common law duty can be founded simply upon the failure (however irrational) to provide some benefit which a public authority has power (or a public law duty) to provide”.

Lastly, with regards to the specific instance of assumption of responsibility and the judgment in Poole, Mrs Justice Lambert noted that it is “possible even where no assumption can be inferred from the nature of the function itself, that it can nevertheless be inferred from the manner in which the public authority has behaved towards the claimant in a particular case.” (her emphasis)

Mrs Justice Lambert began her conclusion by finding that this was an ‘omissions’ case i.e. a failure to confer a benefit. The alleged injury was inflicted by third parties rather than resulting from any direct act by the defendant. The omission in question was a failure on the part of the local authority to exercise its statutory functions to commence care proceedings and/or to investigate. However, that in itself was not determinative of the claim in favour of the defendant:

… whilst the fact that a public authority is operating within a statutory scheme does not of itself generate a common law duty of care, it does not follow that a failure to exercise a statutory function, including taking a step which can only be taken lawfully by statute, can never be compensable at common law. Whether a duty of care is generated by (on the facts of this case) an assumption of responsibility depends upon whether there is, putting it colloquially, “something more”: either something intrinsic to the nature of the statutory function itself which gives rise to an obligation on the defendant to act carefully in its 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.

Mrs Justice Lambert held that while the defendant had obtained an external report in 1997, it was obtained not for the benefit of the claimants, but for “the benefit of social services in determining the parents’ ability to keep the children safe, the level of risk which the father posed to his children and whether the threshold for registration or care proceedings was met … in order to assist the social workers acting on behalf of the local authority to determine how best to fulfil their statutory obligations.”

Further, with regards to foreseeability, “the local authority’s assessment of risk may not be shared by the parents nor the children. Had proceedings been commenced, the parents would have been separately represented and the children’s interests represented by a Guardian ad Litem. It would not necessarily follow that the local authority’s viewpoint would be aligned with that of the family, children or parents.” According, it was not reasonably foreseeable that the claimants would rely on the defendant.

Mrs Justice Lambert further held that a recommendation that care proceedings be commenced could not be

… described as a positive act which had the effect of generating a duty of care, nor characterised as the provision of advice or service upon which the claimants might reasonably foreseeably rely, so giving rise to a duty of care to act carefully.

Like Lord Reed in Poole, I see nothing about the nature of the statutory function which the defendant was exercising which gave rise to a duty of care. Ms Gumbel has not pointed me in the direction of anything which was said or done by the defendant in the context of the obtaining of the Reaside report (or the defendant’s response to it) or in the context of the decisions made in 2002 which entailed that the defendant assumed or undertook a responsibility towards the claimants to perform its functions thereafter with reasonable skill and care. The position is, I find, similar to that in Poole and for similar reasons I reject Ms Gumbel’s argument that a duty of care was generated.

She also distinguished Phelps v Hillingdon [2000] UKHL 47 and Barrett v Engfield [1999] UKHL 25:

“… in Phelps, the injury (described as the failure to ameliorate the effect of the speech problems) was not inflicted by a third party but was a direct consequence of the negligent educational psychology assessment for which the local authority was liable. As such, the claim falls into a different category from the present case. As does Barrett, in which the court found that the impugned conduct occurred after the children had been taken into care. Lord Slynn drew on the analogy of a school which accepted a pupil and thereby assumed responsibility for the child’s educational needs giving rise to a duty of care. The court found that the effect of taking the child into care was that the local authority assumed responsibility for the child’s care thereafter. This is obviously very different from the facts of the case before me. Ms Gumbel did not advance a similar argument to that advanced on behalf of the claimants in HXA v Surrey County Council [2021] EWHC 250 (QB), namely, that because a duty of care was recognised following the making of a care order, so a duty of care could be reverse engineered back to an earlier stage of the local authorities’ involvement with the family. However, had she done so, I would have rejected it for the same reasons as those given by Deputy Master Bagot QC in that case.

The conclusion was as follows:

… on the facts of this claim, no duty of care was owed by the defendant to the claimants. 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 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. That being the case I come full circle and agree with Mr Weitzman that the claimants are, in this case, impermissibly seeking to create a common law duty of care from the defendant “merely operating a statutory scheme” contrary to the, now well-established, principle set out in Stovin and Gorringe.

Mrs Justice Lambert further held that there was, in any event, no breach of duty. She noted that risk assessment by social workers involved an evaluation and balancing of a range of different factors and had to take into account the views of a wide range of agencies. The decision to commence care proceedings or not also had to be judged within the framework of the 1989 Act and associated legislative guidance. The guidance emphasised foundational belief that children are generally best looked after within the family without resort to legal proceedings. It also stated that no order should or would be made by the court, even though the threshold for care proceedings may have been reached, unless an order would positively contribute to and improve the welfare of the child.

Comment

The case will be a further blow to those seeking to bring ‘failure to remove’ claims post Poole. Despite the considerable level of active involvement of social services with this particular family and the level of apparent risk posed by the parents, nevertheless, no assumption of responsibility was found.

Dominic Ruck Keene is a barrister at 1 Crown Office Row.

Lizanne Gumbel QC and Justin Levinson, also of 1 Crown Office Row, appeared for the Claimant but have not contributed to the writing of this article.