This article is a plea to councils to ensure that lawyers and advocates instructed to appear in family courts are aware of case law in failure to remove cases.

Our observations are:

• The circumstances in which a child who is not the subject of a care order may bring a claim against councils alleging negligence by their social workers are very narrow indeed. 
• Solicitors must look to the costs’ consequences and the very severe risk of disproportionality. 
• If judges in family proceedings could be more specific about the reasons why they have given permission for a referral to the official solicitor, it is much more likely we will be able to litigate the claims which survive these changes in the law in a proportionate and child focused way, while respecting the confidentiality of third-party data.
• We see time and time again Family Proceedings Court Orders giving permission for the care proceedings papers to be disclosed to the official solicitor for the purposes of investigating a potential negligence or Human Rights Act claim without explaining why. 

Many family judges appear to be unaware that in the civil courts, and as matters currently stand, it is not likely a duty of care will be established in the absence of a pre-existing care order. 

Nevertheless, what we commonly see is claimants’ solicitors using this permission to assert that the council ought to release all social care files in relation to the child and their extended family in unredacted form.

It would be immensely helpful, and reduce potential significant unnecessary costs, if guidance could be given by the family courts on what, if any, additional disclosure should be made above and beyond the care proceedings bundle itself, and for what reason. 

Recent case law

Until 2019, most practitioners had been proceeding on the basis that it would be possible in certain circumstances for councils to owe a duty of care to children living at home with their parents and in the absence of care order. 

The decision of Poole v GN 2019 changed all that. The family was housed next door to a family that persistently engaged in anti-social behaviour. 

The Claimants and their mother became the target of harassment and abuse at the hands of the family and as a result it was alleged that the children suffered physical and psychological harm. Both Claimants were identified by the Council as children in need under the Children Act 1989 and had social workers allocated to them.

The Supreme Court struck out the negligence claim on the basis that the particulars of claim did not disclose a duty of care. The Supreme Court concluded that the claim was that the Council had assumed a responsibility towards the children to take reasonable care in investigating and monitoring their position. 

However, the Supreme Court concluded that this work did not involve the provision of a service to the children on which they or their mother could be expected to rely. Neither the children nor their mother had entrusted their safety to the Council and the Council had not accepted any responsibility or assumed a responsibility for the children’s welfare.

The years since that decision was handed down have seen many cases testing that principal. The two most recent are:

1. HXA v Surrey County Council 2021 where children were sexual and physically abused in the care of their mother and a succession of male partners. It was alleged that as a result of the Council’s involvement with the family they assumed responsibility for the children’s safety and welfare. It was claimed that the Council had added to the danger by ‘allowing’ the male partners to move in with the mother and they had failed to control the mother and her partners. The Court declined to find a duty of care was owed in this situation and pointed out that the Council had no ‘right’ to control the behaviour of the children’s mother or her partners. The allegations that the Council’s conduct prevented others from protecting the Claimant were also dismissed.
2. In YXA v Wolverhampton City Council 2021 the Claimant had profound physical disabilities and learning difficulties. Concerns were expressed by a paediatrician about potential chastisement and over medication by the child’s parents and to give them a break the Council provided short-term respite care. It was alleged that a duty of care arose as a result of the provision of this respite accommodation to the Claimant and that he should not have been returned to the care of his parents at the conclusion of each period of accommodation. The Court rejected the suggestion that a duty of care existed to consider care proceedings when respite care was provided and was dismissed.

There is a significant body of case law that now demonstrates there are few if any situations where a child that is not the subject of a care order, can demonstrate a duty of care is owed by a council for failing to remove them.

It is important that family law judges understand that. Otherwise release of papers created for the purposes of the family proceedings could lead to applications for disclosure and requests for the release of personal information about extended family beyond the claimant themselves – usually to a solicitor who had no involvement in the care proceedings.

It is also important for family law judges to understand how expensive that could be. While statistics have yet to be compiled fully, damages for those few cases that do succeed are usually modest (in the range £10,000 to £30,000) with claimant solicitor costs about three times as much.

Sarah Erwin-Jones (sarah.erwin-jones@brownejacobson.com) is Partner at Browne Jacobson.