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Wednesday 26 January 2022
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:
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:
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.
If you have a specific query, why not contact a member of our office team directly? We will be pleased to assist you - whatever your question.