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Articles | Mon 24th May, 2021
Today saw the handing down of the judgment by Lambert J in DFX v Coventry City Council. This is an important judgment regarding the liability of social services in respect of their functions and duties under the Children Act 1989. A second judgment in this area, YXA v Wolverhampton, involving Paul Stagg of 1 Chancery Lane, is due to be handed down imminently.
These cases will join the growing line of authorities which have started to make their way through the Courts since CN v Poole BC, in which I appeared for the defendant. There are likely to be many cases of this nature, used to test the limits of the reasoning in Poole, given the wide ranging factual bases that such claims traverse.
It would be fair to say that DFX was a resounding success for the local authority with Lambert J finding for the defendant on all key issues following a full trial on liability (with quantum having been agreed). Some of the key take-away points are as follows:
DFX was to a large extent a ‘classic’ failure to remove case. The claimant children (now adults) argued that they ought to have been removed from the care of their parents earlier than they were in fact removed. They were removed pursuant to a Care Order in 2010 but, it was alleged, ought to have been removed in 2002 or 2003 thereby obviating the majority of the abuse they experienced.
Sadly, the claimants did experience significant trauma and abuse, both at the hands of their own parents and other adults who frequented the home. This was recognised in the level of awards that were agreed; ranging from £25,000 to £125,000 (albeit this was significantly lower than the quantum initially sought by the claim which was in excess of £40 million). It goes without saying that a legal ‘victory’ for a local authority in a case of this nature in no way detracts from the sympathy and compassion that should be afforded to the individual claimants involved.
Lambert J first dealt with the question of duty of care. Despite the claimants’ apparent attempt to revisit the line of authority culminating in the apparent contradiction between X v Bedfordshire and JD v East Berkshire (an argument canvassed at length, and dealt with, in CN v Poole), Lambert J made it clear that the only three cases that need to be analysed in any depth on the issue of the existence of a duty of care in cases of this nature are now: Michael, Robinson and CN v Poole.
Having analysed these three cases she first decided that the present case was an ‘omissions’ case per Hoffman LJ language, or a ‘failure to confer a benefit’ case per Reed LJ language. The relevant question to ask when determining this issue was to ask what conduct it is said caused the injury. In this case it was clear that it was the abuse that was perpetrated against the claimants that was the cause of their injury; the delay in removing the children merely allowed this situation to continue. This was to be distinguished from, for example as suggested as a comparator by Ms Gumbel QC, the delayed delivery of a baby where the allegation of fault is in fact that the delay itself (caused by the treating doctor) caused the baby to suffer brain damage.
By the date of trial the claimants’ case had shifted significantly from the originally pleaded case and the only argument ran at trial was that the defendant’s conduct amounted to an assumption of responsibility and thereby the case fell into one of the exceptions to the ‘no duty for omissions’ rule.
It is fair to point out that the defendant did in fact fail to persuade Lambert J on one small issue in the case which involved an interesting, and superficially attractive, argument that it was never possible to have a duty of care arise out of a circumstance where the failure itself is a failure to take a step under statute. In this case, the failure was a failure to initiate care proceedings; a step that no private individual could take and which is exclusively within the power of the state pursuant to statute. Lambert J disagreed with this analysis and although she found that the allegation was indeed one that peculiarly related to the decision to exercise a statutory power and that there was no comparable analogy with private individuals, it was not right to say that this was the end of the road for the claimant’s case; it was still possible for a duty to arise in such circumstances.
That diversion aside, Lambert J went on to find for the defendant on all issues.
In an interesting analysis in which she searched for the ‘something more’ (see paragraphs 200 and 210) that was required to establish an assumption of responsibility in addition to merely carrying out statutory functions (which can be something intrinsic or external to the statutory function itself, contrary to the defendant’s argument which was dismissed above) she came up empty-handed. None of the three factual ‘hooks’ relied upon by the claimants (paragraph 180) came close to establishing the requisite assumption of responsibility when analysed against the framework set out in Michael and CN. The closest that the claimants came to establishing an assumption was through reliance on a psychology report commissioned by the defendant (in 1997) and the implementation of measures in respect of the family which were recommended therein. The Judge found, however, that this was not sufficient for an assumption of responsibility to arise. The Judge was somewhat critical of the claimants’ failure to expand on why an assumption arose; there was little argument at all for why it arose and instead a mere reliance appears to have been placed on certain facts that were said to give rise to one. The argument, insofar as there was one, appears to have been that one will recognise an assumption when one sees it.
Although not touched upon in the judgment expressly, a point I found somewhat perplexing was the suggestion that the as yet unborn claimants relied upon the defendant implementing the measures in the report. It seems highly unlikely that an unborn individual can be said to have relied, in fact or on an objective analysis, on anything said or done prior to her birth.
In short, the Judge found that the facts were in many ways similar to those in CN and, similarly, notwithstanding the extensive and prolonged involvement that social services had with the claimants’ family, no duty of care arose in the circumstances.
One issue of potential note (at paragraph 211) is that Lambert J appears to recognise that there may be a difference between the analysis of the present case (involving in the main an allegation of failures relating to s47 Children Act 1989) and one involving arguable breaches of s17 Children Act 1989; the latter being a system whereby services are offered and accepted on a wholly voluntary basis and which may involve different considerations of the issue of reliance. The point was not discussed further and this short comment may have inadvertently opened up a yet further battleground.
Having dismissed the claim on duty of care, Lambert J went on in any event to dismiss the claim on breach of duty. An important general point to note is her critique of Ms Ruegger’s (claimant’s expert) experience (predominantly academic and rather historic) when contrasted with Ms Schofield’s (defendant’s expert) experience (‘front-line’ and more contemporary); see paragraphs 157 and 158.
Lambert J found that breach of duty was not made out. Ms Ruegger conceded that the actions of the individual social workers were reasonable and so the nub of the criticism was that the information that had been gathered through the direct social work was not reasonably risk assessed so as to trigger the commencement of care proceedings. Although there were criticisms to be made of the defendant’s analysis of the risk to the children at various stages of their involvement, it could not be said that at the relevant time in 2002/3 it was Bolam negligent to have failed to remove them. Decisions to remove children in such circumstances are difficult ones which may involve differences of opinion (contrary to the evidence of Ms Ruegger that there is only ‘one answer’ to the question at any one time whether a child should be removed or not).
Having dismissed the claim on breach of duty, in very short order, the Judge also and for the same reasons dismissed the claims under Article 3 and Article 8 ECHR. She found that the same considerations apply (albeit her reasoning here is not set out) and therefore if the negligence claim fails, so must the HRA 1998 claims. This is an interesting point which seems set for having far greater consequences that the judgment perhaps intends or foresees by its somewhat cursory (albeit in my view correct) treatment of the issue. For example, it suggests that when gathering expert evidence for a pure HRA claim, it may well be sufficient to have a report dealing with breach of duty in a common law sense. This issue is likely to require further interrogation in due course.
The Judge finally went on to the issue of causation and found that even if the claimants had succeeded on duty of care and breach of duty, that it could not be said that the children would have been removed any earlier than they were in fact removed. As a matter of factual causation, the claimants’ case ignored the significant deterioration in the family situation between 2002/3 and 2010 and as a result it could not be said that simply because the children were removed in 2010, they would have been removed in 2002/3. As with CN v Poole, this case also highlights the importance of considering the reality of the answer to the ‘threshold question’ at the material time and underlines that establishing factual causation is by no means a given in circumstances where a child was, at a later date, removed from the care of his or her parents.
Having appeared in CN v Poole BC I, perhaps naively, thought that the judgment had determined clearly the question of the existence of a duty of care in cases of this nature. Encouragingly, Lambert J’s judgment provides a refreshingly clear endorsement of the principles in CN and applies them in a straightforward and commonsensical way.
Watch this space for the impending judgment in YXA v Wolverhampton which will, one hopes, further supplement the clear reasoning in DFX rather than herald a return to muddier waters.