Could this case be the end of 'failure to take into care' claims?

Posted by Malcolm Johnson on

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Failure to take into care claims are typically brought by children when social services have been alerted to safeguarding concerns (such as abusive parents), but the local authority has failed to manage the situation appropriately, leaving them in a situation where they have suffered personal injury, abuse or neglect that could have been avoided.

What is a duty of care?

A duty of care at common law can be owed by a local authority to children living in their borough to protect them from harm, including personal injury. That duty is not owed to parents who suffer loss in these circumstances, for example, if a local authority were to take a child into care on suspicion of abuse, but then discovered that their assessment of the risk was based on a negligent assessment, then the child might be able to bring a claim, but the parents could not.  

In the case of D v East Berkshire there were three linked cases. Each case involved accusations of child abuse, which were made against a parent by the professionals concerned for the welfare of that child and in each case the accusations proved to be unfounded.

D was the mother of a child (M). She claimed for the acute anxiety and distress that she suffered as a result of being incorrectly accused of suffering Munchausen Syndrome by Proxy. She was not in fact separated from her child, M, but asserted that she suffered acute anxiety and depression.

MAK was accused of sexually abusing his daughter, which led to his being denied access to her for a short period. The girl suffered from Schamberg’s disease which produces discoloured patches on the skin. This was misdiagnosed as bruising and evidence of sexual abuse.

RK and another were the parents of a child, accused of having inflicted injuries on their daughter, which led to the child being separated from her parents for nearly a year. An X-ray of her left thigh showed an oblique displaced fracture. However, she suffered from osteogenesis imperfecta, a bone condition rendering M particularly susceptible to fracture.

The Court of Appeal dismissed the appeals by the parents. Whilst the children could bring claims, the parents' position was held to be quite different. When assessing what action needed to be taken, the local authority had a conflict of interest which made it unfair that it should owe a duty to both parents and children. That decision was upheld by the House of Lords.

The duty of care towards children in these situations has been applied in subsequent cases, but it is only recently that that duty has been called into question.

In one case the Claimants were two children (one of whom was severely disabled) who alleged that the Defendant local authority negligently failed to take appropriate and necessary steps to safeguard them from prolonged abuse, anti-social and criminal behaviour perpetrated by members of a family who lived on the estate on which they were housed by the Council between May 2006 and December 2011.

An attempt was made by the Defendant to persuade the court that the judgment of the Court of Appeal in D v East Berkshire as it affected the claim by the child, who in that case, had been implicitly overruled by the judgment of the House of Lords in two earlier cases against Glasgow and South Wales councils.

The case in Glasgow concerned the liability of a local authority to warn a tenant about an event which could trigger violence by another tenant against the claimant. It was held that no action was taken by it to show that the local authority made itself responsible for protecting the claimant from the criminal act of another. Accordingly, it would not be fair, just or reasonable to impose a common law duty of care on the local authority. The Supreme Court in Michael considered whether the claimants, a victim's estate and her dependants, could bring a claim of negligence against a police force (by the Chief Constable) for failing to prioritise a call from a victim who was then killed by her partner. By majority, the Supreme Court held that the duty of the police for the preservation of the peace did not involve the kind of close or special relationship necessary for the imposition of a private law duty of care. 

In the case of CN & GN, the claims that the children should have been taken into care, were struck out by Master Eastman at first instance, but in the High Court, Justice Slade rejected the Defendant's argument and reinstated the claims. She quoted from the judgment of Baroness Hale in Michael, who observed that there were exceptions to the general rule that local authorities were not liable in these kinds of situations, and one of those existed in the judgment of the Court of Appeal in D v East Berkshire.

The case has now been heard by the Court of Appeal and judgment is awaited.

What does this mean for abuse claimants?

The facts in CN & GN are similar to those in the Mitchell and Michael cases, except that neither Mitchell nor Michael were about Children Act duties. The case of D v East Berkshire, which confirms a Children Act type duty has never specifically been overruled by any court.  Consequently, I expect the Court of Appeal to keep that type of duty as an exception to the rule.

At BL Claims, our specialist abuse lawyers make compensation claims against individuals or institutions that allowed the abuse to take place. We also make parallel claims, where possible, to the Criminal Injuries Compensation Authority.

Our dedicated personal injury experts will fight to get you the highest possible compensation for your physical and psychological injuries and to provide for any counselling and therapy.

If you would like to discuss whether you have a claim, please contact our team for confidential advice.

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About the Author

Malcolm is an Senior Associate in our London office, with nearly twenty years' experience.

Malcolm Johnson
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