On the case - New ruling gives clarity on ‘failure to remove’ claims

Friday 4 June 2021

The judgment of DFX and others v Coventry City Council is the first consideration, at High Court level, of duty of care issues since Poole Borough Council v GN and another [2019] (CN and GN).

CN and GN found that councils do not, as a matter of course, owe a common law duty of care to protect children from harm caused by third parties.

There has been much speculation since the judgment, which was determined in fairly unique circumstances. DFX reaffirms the decision. This provides useful guidance, as DFX follows a more ‘typical’ pattern for a ‘failure to remove’ case.

Statutory functions

It is confirmed that there must be more than the carrying out of statutory functions to establish an assumption of responsibility.

While Mrs Justice Lambert DBE was not willing to rule out that in different factual circumstances such a duty may arise, given the facts of this case, it is difficult to envisage when such a duty might exist.

Further judgments will no doubt follow, although it appears that a high bar has been set to establish the assumption of responsibility. It is therefore reasonable to assume that we can expect to see fewer claims of this nature pursued in negligence in the future.

Background

The Claimants’ case was that they should have been removed from their parents in or around 2002, due to significant abuse. The Claimants were removed pursuant to a care order in 2010. It was alleged that the abuse suffered between 2002 and 2010 could have been avoided.

The Defendant was involved significantly with the family over 15 years, including the provision of Section 47 investigations and placing the children on the Child Protection Register.

The Claimants argued that the Defendant’s conduct amounted to an assumption of responsibility, giving rise to a duty of care which was breached by its failure to intervene in 2002.

The Claimants relied on a report commissioned by the Defendant in 1997, providing recommendations. It was alleged that by obtaining the report the Defendant had ‘assumed responsibility’. Further, in 2002 the Defendant made the decision to issue care proceedings (not issued at that time) and completed direct work with the Claimants and their family.

Decision

Lambert J found that the Claimants’ case amounted to a failure to confer a benefit. There was nothing about the nature of the statutory function which gave rise to a duty of care. While the delay in removing the Claimants allowed the situation to continue, the acts of abuse were causative of the damage perpetrated by others.

Lambert J found that the Defendant had not assumed responsibility for the Claimants, reaffirming that more than carrying out a statutory function was necessary. This could be something intrinsic or external to the statutory function itself, contrary to arguments by the Defendant that it was never possible to establish a duty of care in circumstances where the failure was itself a failure to take a step prescribed by statute (argument dismissed).

Lambert J suggested that to establish an assumption of responsibility will depend on whether there is ‘something more’.

While the claim had already failed at that point, Lambert J went on to consider whether there was any breach of duty in any event. After considering all the facts, including the expert social care evidence, she found that the Claimants could not establish breach of duty in any event.

She then considered the claims under the Human Rights Act 1998 and held that the same considerations were applicable. It follows that as the negligence claim failed, so did the Human Rights Act claim.

Finally, the Judge found that the Claimants’ case failed in relation to causation. The Claimants’ home life deteriorated between 2002 and 2010 and as such, it was not correct that they could have been removed in 2002 had an application been made.

Louise Bedford (louise.bedford@kennedyslaw.com) is a Partner atKennedys, 

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