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IntroductionPurchase_M_145391

The broad issue in this case is whether, absent a specific assumption of responsibility, a local authority owes a duty of care to protect a child from foreseeable harm caused by third parties.

Facts

The appellants were children, one of whom suffered from severe physical and learning difficulties. In its capacity as a housing authority, the local authority placed the family in accommodation near to another family who, to the local authority’s knowledge, engaged persistently in anti-social behaviour. That family subjected the appellants to abuse, with the result that CN attempted suicide.

The claim was initially formulated as a claim against the local authority in its capacity as a housing authority: the argument was that the whole family should have been relocated. However, following the Supreme Court judgment in Mitchell v Glasgow City Council [2009] 1 AC 874, that claim was withdrawn. The focus shifted to a claim against the local authority in its safeguarding capacity, specifically under the Children Act 1989: the argument now was that the children should have been removed (and, thus, separated from their mother) pursuant to a care order.

The Court of Appeal was highly critical both of that act of ‘legal legerdemain’ and of the notion that a care order would have been either proper or legally available in these circumstances. However, that did not dispose of the key issue of principle: against a background in which a person does not normally owe a duty of care to prevent harm by third parties, could such a duty exist in this case?

Legal background

In X v Bedfordshire County Council [1995] 2 AC 633, the House of Lords held that it would be wrong for public policy reasons to impose a duty of care across the statutory system for the protection of children at risk.

However, in D v East Berkshire Community Health NHS Trust [2004] QB 558, the Court of Appeal held that obligations under ECHR, arts 2, 3 and 8, as set out in the Human Rights Act 1998, meant that the common law needed to develop and that there was no longer any general principle that a duty of care towards a child could not exist in such cases. Whether it would be fair, just and reasonable to impose the duty would depend on the facts. (The D case was the subject of an appeal to the House of Lords, but only on the question whether local authorities or health bodies owed a duty of care to parents who were suspected of child abuse: they do not.)

The Court of Appeal decision in D has never been expressly overruled. However, a number of Supreme Court authorities were arguably inconsistent with it. In Mitchell, the widower of a secure tenant of the local authority claimed damages for its failure to protect him from being killed by a neighbour. The Inner House of Court of Session held that it was not necessary to develop the common law of negligence to protect his Convention rights and held that there was no duty of care. The Supreme Court upheld that finding: in the usual way, such a duty of care could only arise if there had been an assumption of responsibility. The mere fact that the local authority knew that the murderer had previously threatened Mr Mitchell was insufficient.

Then, in Michael v Chief Constable of South Wales Police [2015] AC 1732, the Supreme Court declined to impose a duty of care on the police to protect a women from her former partner after she had alerted them to the risk in a 999 call. The Supreme Court referred to the Court of Appeal judgment in D and, while the Court did not expressly disapprove of that judgment, held that there was no legal basis for fashioning a common law right based on Convention rights.

The Court of Appeal judgment

Agreeing with the Master, and disagreeing with Slade J in the High Court, the Court of Appeal held that D could no longer be considered good law in light of Mitchell and Michael. The general common law principle of not normally imposing a duty of care in respect of pure omissions, or to protect individuals from the acts of third parties, applied. Further, although such a duty might be imposed in specific circumstances (such as where there was an assumption of responsibility), there was no basis for a finding in this case of an assumption of responsibility by the local authority to protect the appellants from the neighbouring family.

Accordingly, the claims were struck out.

The issue for the Supreme Court

The Supreme Court will accordingly consider ‘whether the case of D… is correct and should continue to govern the position of local authorities in respect of their duties to children living in their areas’.