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No common law duty owed for 'failure to remove': DFX & Others v Coventry City Council

25 May 2021

Yesterday's (24 May 2021) landmark decision on so-called 'failure to remove' claims, in which DWF acted on behalf of the defendant, has provided much needed clarity to local authorities and their insurers, as well as potential claimants.

The judgment of Mrs Justice Lambert DBE in DFX & Ors v Coventry City Council [2021] EWHC 1382 (QB) gives guidance on whether a local authority can assume a duty of care to protect children in the community from harm caused by third parties.

Background

The case involved a claim for alleged negligence by the defendant's social workers for failing to commence care proceedings under section 31 of the Children Act 1989 ("the 1989 Act") and, linked to that failure, a failure to undertake a competent investigation and risk assessment under section 47 of the 1989 Act. It is a type of claim commonly known as a 'failure to remove' claim.

The local authority's social services department had been involved with the family for 15 years prior to the removal of the claimants into local authority care in 2010. Throughout that time, a constant feature of their work was seeking to manage and mitigate the risk of danger to the children from the sexual risk presented by the father, exposure to risky adults and the mother's inability to protect them.

The claimants' case was that they had suffered abuse, including sexual abuse, and neglect whilst in the care of their parents, that care proceedings should have been issued much sooner and that such proceedings would have resulted in their eventual removal from the family. They argued that the council had assumed responsibility to protect the claimants from the danger their father posed to them from sexual abuse.  

This was a claim pleaded in excess of £40m although pre-trial quantum was agreed (subject to liability) at a much more modest series of figures on the basis of an implicit acceptance that the claimants' cognitive impairments/learning disabilities were genetic in nature, rather than being caused by environmental factors.

Judgment

The court held that this was an 'omissions' case, or as Lord Reed put it in Poole Borough Council v GN & Anor [2019] UKSC 25, a failure to confer a benefit. This will be true of any claim where the central allegation is one of 'failure to remove' because that core allegation - failing to initiate care proceedings under section 31 of the 1989 Act - is one of omission, rather than a positive act causing harm. That was the distinction, for example, between the situation in Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4, which involved causing harm/making things worse, and the situation in Michael v Chief Constable of South Wales Police [2015] UKSC 2 or Poole both of which involved failing to confer a benefit/not making things better).

Like private individuals, public authorities do not owe a duty of care towards individuals to confer a benefit upon them by protecting them from being harmed by the conduct of a third party, save in a small number of exceptions. By the time of closing submissions, the claimants had withdrawn three of the four grounds upon which the pleaded case had asserted that a duty of care was generated, and the issue fell to be determined solely by the question of whether or not the defendant had assumed a responsibility sufficient to give rise to a common law duty of care (in accordance with the Hedley Byrne principle as amplified in Spring v Guardian Assurance Plc).

Mrs Justice Lambert DBE examined the nature of the statutory functions being exercised by the defendant under sections 47 and 31 of the 1989 Act and determined that there was nothing intrinsic to the nature of the statutory function itself which gave rise to an assumption of responsibility. Lambert J then also considered whether there was "something about the manner in which the defendant has conducted itself towards the claimants" which gave rise to an assumption of responsibility.

As Lambert J noted at paragraph 202 of the judgment, "before an assumption of responsibility can be inferred there must be (a) an act by the defendant upon which (b) it is reasonably foreseeable that the claimants will place reliance such that there is an obligation upon the defendant to exercise reasonable skill and care".

Lambert J stated that when viewed objectively, it is not reasonably foreseeable that the affected children would rely on the defendant's social workers, because the local authority’s assessment of risk may not be shared by the parents nor the children. Further, had care proceedings been commenced, the parents would have been separately represented and the children’s interests represented by a Guardian ad Litem. The viewpoint of the family, children or parents may not be aligned with that of the local authority. 

Therefore, having looked for "something more" as Lambert J put it she found "nothing" and accepted the defendant's submission that "the claimants are, in this case, impermissibly seeking to create a common law duty of care from the defendants "merely operating a statutory scheme" contrary to the now well established, principle set out in Stovin and Gorringe".

Lambert J in any event found that there was no breach by the defendant – "they did a difficult job reasonably", and furthermore, that the claimants' assertion, that an earlier application to the court (in 2002 - 04) would have resulted in the removal of the children, required "an inference too far". Therefore, the claim failed on factual causation also.

Is this an end to 'failure to remove' claims?

The judgment offers little guidance into the position under the Human Rights Act 1998 because Lambert J held that she did not need to address the contentious issues of law in that regard by reason of her findings on breach. Dealing with the common law claim, Lambert J did not accept the submission that as a point of general principle a failure to operate a statutory power is incapable of giving rise to a duty of care, holding that "whilst the fact that a public authority is operating within a statutory scheme does not of itself generate a common law duty of care, it does not follow that a failure to exercise a statutory function, including taking a step which can only be taken lawfully by statute, can never be compensable at common law".

Therefore, Lambert J rejected the defendant's submission that as a point of principle there was a distinction between a public authority’s failure to exercise a statutory power (which is incapable of giving rise to a duty of care), and an action taken by a public authority pursuant to a statutory power (which could give rise to a duty). However, the precise distinction was made by Lord Hoffmann in Customs and Excise Commissioners v Barclays Bank Plc [2006] UKHL 28 and this was cited with approval by Lord Reed at paragraph 72 of Poole

Ultimately, Lambert J came full circle finding that there was nothing intrinsic to the nature of the statutory functions under the 1989 Act performed by the defendant which engendered a duty of care – it required "something more". Further, the defendant's conduct towards the claimants' family was merely the operation of a statutory scheme and was plainly insufficient to meet that requirement of "something more". 

The requirement for "something more" might be seen to leave open a door and whether or not it will be found in any case – or even hypothetically exists - remains to be seen. Any claim in which the alleged failures are failures of social workers investigating and assessing risk under section 47 of the 1989 Act and a failure to protect children by issuing an application under section 31 of the 1989 Act for a care order to remove children from their parents care will encounter similar difficulties to those which resulted in the claimants' case failing in DFX. In all such situations the defendant may be merely operating a statutory scheme, and the claimants will face potentially insurmountable hurdles in identifying a positive act upon which there is reasonably foreseeable reliance sufficient to engender a duty of care by reason of an assumption of responsibility. 

In this video, Partner Paul Donnelly and Adam Weitzman QC, who acted for the defendant in this case, discuss the judgment and the implications for both local authorities and their insurers.

 

Further Reading

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