The Court of Appeal has today delivered its judgment in the claim of CN & GN v Poole Borough Council which will have a significant impact on failure to remove claims. View more details of the judgment.
The facts of the case are unusual involving an allegation that the Council was in breach of its common law duty of care in failing to remove children from a family where the anti-social behaviour of neighbours was abusive and the mother was unable to protect the children.
The wider implication of the case is that:
- It is that that X v Bedfordshire County Council has been restored as a governing authority which establishes that no duty of care is owed by the local authority, at least in the making of decisions as to whether care proceedings should be commenced.
- No duty of care can be owed by a local social services authority in the exercise of its child protection functions to investigate and take action to prevent significant harm to children, whatever its source.
The judgment may mean that a local authority does not owe a child living at home a duty of care even if the family are receiving support and oversight from social services. It is understood that the Court of Appeal has not given the claimants permission to appeal. The claimants may make an application for permission to appeal to the Supreme Court. Therefore, the Court of Appeal judgment might not be the end of this particular case.
A blanket policy on withdrawal of current offers may be attractive. Before following that route however, take the following into account:
- This is a very important decision. If this doesn't go to the Supreme Court, then another case, with more straightforward failure to remove facts, will at some point be tested in the next two - five years. Who knows what the Supreme Court decision will be?
- Many offers on the table may be very old. If you withdraw them you will lose costs protection. If a Supreme Court decision reverses the current law all the commercial protection will be lost.
- Cases can be very fact specific. The current popular analysis which suggests no duty of care is owed is likely to be subject to significant scrutiny and case law over the next few months and years.
- You may have sibling cluster cases where part of a group of children have had their cases settled. Is it appropriate to repudiate younger or remaining siblings' claims because of a change in law?
- It may be tempting to withdraw offers in cases where all that is needed is an approval hearing.
- Practically speaking offers are often made in cases which are based on constellation of facts; failure to remove, abuse in residential care, unhappy foster placements. These are complicated and will required careful review.
Browne Jacobson's view is that this judgment does not merit the unilateral withdrawal of all offers in failure to remove cases. Instead they recommend handlers review all outstanding offers in failure to remove cases, look at the reasoning behind each offer and then apply the six considerations listed above to each case.
Applying this methodology will ensure a fair and consistent approach can be demonstrated across each handler's caseload.
For more information, please contact Sarah Erwin-Jones.