Whilst the underlying problem that led to this litigation was one of unruly, abusive neighbours and nuisance, through innovative legal presentation it has metamorphosed into a re-evaluation and reformulation of the basis upon which public authorities may be liable to compensate for the negligent provision of social care and children's services, with dire consequences for claimants.
Whilst departing from their reasoning, the Supreme Court has upheld the Court of Appeal's view that, as a default position, local authorities and social services do not have a civil, compensable liability for failing to remove children from harmful home situations.
Two clear exceptions are, however, reiterated: where the local authority has caused or created the source of the danger that has then caused the child harm, or where the local authority has assumed responsibility to protect the child from harm.
Both the Court of Appeal and the Supreme Court concluded that it was never a possibility that any court would have removed the claimants from their mother's care had this been sought. In other words, notwithstanding the way in which the claim was presented, the alleged failure to remove was never in fact the substantive issue or a sustainable one and this dramatic development has come about as a consequence of trying to hammer a larger square peg into a finer round hole.
Acts and omissions
The decision of the Supreme Court continues the line of recent authorities - Michael v Chief Constable of South Wales Police (2015) and Robinson v Chief Constable of West Yorkshire Police (2018) - demonstrating a fundamental change of approach that distinguishes between positive acts which cause personal injury and failures to protect individuals from harm caused by the actions of third parties.
A clear distinction is drawn between a situation where a local authority negligently removes a child - for example due to a mistaken belief that he/she is being abused by a family member - or for any negligence once a child has been taken into care (i.e. as per Barrett v LB Enfield (1999)), which also overlaps with the more obvious 'assumption of responsibility' scenarios.
This "red line" ring fence around 'failure to remove' claims is reached by drawing a philosophical distinction between "causing harm (making things worse)" and "failing to confer a benefit (not making things better)", failing to prevent a third party harming a child counting here as a 'benefit'.
The underlying principle is that a local authority may be liable for negligently causing individuals to suffer actionable harm, but is not liable for negligently failing to protect individuals from harm by others, absent a particular and acknowledged reason to justify this.
Each case will need to be considered on its own merits as to whether or not there could be considered to be a positive act sufficient to bring the claim within the scope of the duty of care owed by the public body, as opposed to merely the case of allegedly negligent omission.
However, claimant solicitors may feel that in CN, Lord Reed slightly loosened the position under Rowley v Secretary of State of Work and Pensions (2007) in which Dyson LJ focused on "the requirement that responsibility must be "voluntarily accepted or undertaken"… not met merely by the Secretary of State's performance of his statutory duty under the legislation".
The development of 'failure to remove' liability ran in parallel to the introduction of public authority liability under the Human Rights Act 1998 ("HRA") for breaches of the European Convention on Human Rights. The Supreme Court's curtailing of the compensable liability for failure to remove sits at odds with these HRA obligations and liabilities, yet it has not attempted to explain or reconcile this apparent conflict in its judgment.
Assumption of responsibility
Neither has it provided significant insight into what is now the key issue: exactly what does and does not amount to an "assumption of responsibility". The judgment provides a number of generic, if not slightly ethereal pointers – merely performing a statutory function does not give rise to an assumption of responsibility, but this does not mean one can never arise out of this; the provision of information and advice may do, but an assumption of responsibility is not confined to this; it can apply when a claimant entrusts a defendant with conduct of his/her affairs or a defendant undertakes a task or provision of a service – but nothing of a more specific or worldly nature pertaining directly to specific scenarios. It seems clear that the criteria are satisfied where a child has been taken into care, but there remains a significant grey area in relation to voluntary arrangements (i.e. those under section 20 of the Children Act 1989) and situations such as, hypothetically, parents dying and a local authority supporting/recommending a family friend obtaining a residence order.
It remains to be seen how, as the claimants' situation here found itself legally reformulated from one of unruly neighbours to social services negligence, the assumption of responsibility finds itself innovatively redefined and reformulated by claimant lawyers who try and push back against the Supreme Court's judicial 'red line'.
There is no doubt that this judgment is good news for local authority defendants, their insurers and tax payers. However, we will likely now see a resurgence in HRA claims and novel litigation involving claimants seeking to get over the 'no duty' hurdle by finding innovative definitions of what is a 'positive act'/'assumption of responsibility'.
There is now a backlog of stayed strike out applications. Lord Reed is clear that it will be a rare occurrence where the court should determine an assumption of responsibility issue on a strike out application. Defendants have found themselves in this position before and should learn from the development of vicarious liability case law. Local authorities and their insurers must now apply appropriately skilled resource to triage these stayed and pre-issue claims, identify the right cases to run, and the right cases to settle.
Necessity may be the mother of invention - or innovation – but trying to fit square pegs into round holes can go wrong and the outcome of CN v Poole should be seen as a cautionary tale, not just for claimant lawyers but for defendants too. Running the wrong case can have consequences well beyond its own conclusion.