CN & Anor v Poole Borough Council, Court of Appeal - Civil Division, December 21, 2017, [2017] EWCA Civ 2185

Issuing Organization:Civil Division
Actores:CN & Anor v Poole Borough Council
Resolution Date:December 21, 2017
 
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Neutral Citation Number: [2017] EWCA Civ 2185

Case No: B3/2016/1465

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Mrs Justice Slade DBE

QB/2015/0490

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 21/12/2017

Before :

LORD JUSTICE DAVIS

LADY JUSTICE KING DBE

and

LORD JUSTICE IRWIN

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Between :

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E.A. Gumbel QC and Iain O'Donnell (instructed by Leigh Day Solicitors) for the

Claimants/Respondents

Lord Faulks QC and Paul Stagg (instructed by Wansbroughs Solicitors) for the

Defendant/Appellant

Hearing date: 8 June 2017

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Judgment Approved

Lord Justice Irwin :

Background and Factual Summary

  1. This appeal concerns the existence of a tortious duty of care to children, on the part of a local authority, to protect them from harassment and abuse by third parties. The duty claimed by the Claimant Respondents (hereafter ``the Claimants'') is framed in negligence, not as breach of statutory duty. Relevant statutory provisions are said to be (1) the duty under Section 17 of the Children Act 1989 to safeguard and promote the welfare of children within their area who are in need, (2) the power under Section 20 of that Act to provide accommodation for a child, if the local authority considers such provisions ``would safeguard and promote the child's welfare'', and (3) the obligation under Section 47 of the Act to inquire as to whether action should be taken, if the local authority has reasonable cause to suspect that a child is suffering, or is likely to suffer, significant harm.

  2. It is agreed that at the material times the first Claimant, CN, who suffers from severe physical and learning difficulties, was a child ``in need'' within Section 17 of the 1989 Act. He is now a protected party. The second Claimant, GN, was a child.

  3. Between 4 May 2006 and 14 December 2011, the Claimants and their mother were placed by the Appellant Defendant (``the Defendant''), under its powers as the local housing authority, in Grange Gardens, Poole, Dorset, owned by the Poole Housing Partnership Ltd (``PHP''). Before the placement, the Defendant is said to have been aware that a family lived in nearby accommodation who engaged persistently in anti-social behaviour. Predictably, it is said that family and their associates repeatedly subjected the Claimants to significant harassment and abuse. CN attempted suicide. The Home Office commissioned a review from an independent consultant, Trevor Kennett, who reported in March 2010. The report was critical of the Defendant, PHP and Dorset police.

  4. The claims were issued in December 2014, and Particulars of Claim served and filed on 7 April 2015, alongside a parallel claim by the mother and a claim from these Claimants based on the Housing Act. The Defendant applied to strike out, and these claims were struck out as disclosing no reasonable cause of action by Master Eastman on 2 October 2015. The Claimants appealed, but not the mother. The Claimants did not appeal in respect of the housing claim. The appeal came before Mrs Justice Slade on 16 February 2016, and in a judgment of 16 March she allowed the appeal and restored the claims of both claimants, as pleaded in the Amended Particulars of Claim.

  5. The Defendant was granted permission to appeal by Christopher Clarke LJ on the papers on 21 July 2016.

    The Pleaded Claim

  6. The Claimants plead a ``direct duty of care'' at common law, derived from the statutory duties under the Children Act 1989 identified above. The scope of the duty of care is said to ``reflect'' the statute, and to include ``a duty to protect children in their area and in particular children reported to them as being at foreseeable risk of harm'': Particulars of Claim, paragraph 4.1. That risk is alleged to have been communicated to the Defendants by at least July 2006. There is said to have been a duty to investigate the risks of abuse causing disturbance and injury (paragraph 4.3) and to take reasonable steps to protect them from such risks (paragraph 4.3). An assumption of responsibility is pleaded (paragraph 4.3).

  7. The claim also sets out particularised common law duties pleaded against ``social workers and/or social work managers and other staff... allocated ... [to] the Claimants or tasked with investigating [their] plight...'' for which the Defendant is said to be vicariously liable. The duties are said to be (a) ``a duty not to injure either Claimant ... and to protect each Claimant'' from harm; (b) ``a duty to monitor the Claimants' physical, emotional, psychiatric and psychological welfare''; (c) ``a duty to make arrangements to provide such medical ... treatment as was reasonably necessary ...'', (d) ``a duty to visit each of the Claimants and ascertain their views, wishes, anxieties and complaints ...'', (e) ``a duty to ascertain whether either Claimant was placed in immediate danger or at risk of harm from which the Claimants' mother was unable to protect them'' and (f) ``in the event of ... risk of harm from which their mother was unable to protect them, to remove the Claimant or Claimants from such risk ...''

  8. Causation is pleaded in the following terms:

    ``6.3 On the balance of probabilities competent investigation at any stage would have led to the removal of the Claimants from home. A child in need assessment should with competent care have been carried out in respect of each Claimant by September 2006 at the latest. By September 2006 no competent local authority would have failed to carry out a detailed assessment and on the balance of probabilities such detailed assessment if carried out competently would and should have led to the conclusion that each of the Claimants required removal from home if the family as a whole could not be moved. [Emphasis added] With the information obtained by competent assessment in September 2006 on application to the Court the Defendant would have obtained at lest respite care and if necessary by interim care orders in respect of each Claimant. Any competent local authority should and would have arranged for their removal from home into at least temporary care.''

    The Argument before Master Eastman

  9. The Master recorded that the parties were ``virtually ad idem'' on four principles of law:

    ``7. ... firstly in general (a) does not owe a duty of care to (b) to protect them from (c). The exception to that - and it is this exception which is pivotal to this case - exception being where (a) has assumed a responsibility to afford such a duty of care; (a) being the defendant in this case and (b) being the claimants and (c) effectively being the relevant family and their associates.

  10. The second principle is that a local authority does not owe a basic common law duty of care to protect people from anti-social behaviour. That is clearly set out in the Hussain case ([1998] EWCA Civ 834).

  11. The third basic principle is that, if the local authority is merely exercising a power under a statutory scheme, it does not thereby assume a responsibility at common law to those intended to benefit from the scheme. To which the claimant in this case says yes I agree with that but there will be exceptional cases in certain circumstances where it will have assumed such a responsibility.

  12. The fourth general principle to which both parties agree is that, if a local authority knows of particular circumstances affecting an individual it does not mean they assume a responsibility for those characteristics that is the Derby case ([2015] EWHC 909 (QB)).''

  13. The Master referred to the decision of the Court of Appeal in X v Hounslow London Borough Council [2009] EWCA Civ 286, [2009] PTSR 1198, also a case of vulnerable people subjected to antisocial behaviour. He was not persuaded, by analogy with that case, that there was any assumption of responsibility at law in the instant case. He did not consider the case to be ``borderline''. Insofar as the Claimants' case consisted of ``alleged common law claims arising out of duties imposed by the Children Act'' he rejected any such duty as existing. He considered the relevant passages in Charlesworth & Percy on Negligence, 10th Edition. His conclusion was that the Particulars of Claim, as pleaded, disclosed no reasonable cause of action.

  14. The Master also struck out the housing claims then pleaded that the Defendant owed a duty of care to rehouse the family and/or to halt the anti-social behaviour from which they had suffered. As I have said, these aspects of the original claim were not sought to be restored by the Claimants.

    The Argument before Slade J

  15. The judge began by considering the ``statutory background'' to the common law claim, as considered in X (minors) v Bedfordshire County Council [1995] 2 AC 633 and X v Hounslow London Borough Council. She adopted the conclusion of Lord Browne-Wilkinson in X v Bedfordshire (paragraph 11) that:

    ``The question whether there is a duty of care at common law must be profoundly influenced by the statutory framework within which the acts complained of were done. The same must be true of any omissions complained of''.

  16. Ms Gumbel QC for the Claimants submitted to the judge that the effect of X v Bedfordshire ``had been restated by subsequent authorities'' (Slade J, paragraph 11). Those authorities were Z v United Kingdom [2001] 34 EHHR 97, S v Gloucestershire County Council [2001] Fam 313, Barrett v Enfield London Borough Council and, ``most importantly'', D v East Berkshire Community NHS Trust [2004] QB 558. Those cases had not been considered by the editors of the 10th Edition of Charlesworth & Percy, since that edition was published in 2001.

  17. The parties were ``agreed on the test applicable'' to whether the council owed a duty of care: it was the three stage test of foreseeability, proximity and fairness, introduced by the House of Lords in Caparo Industries v Dickman [1990] 2 AC 605.

  18. The Claimants submitted that the instant...

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