CN V Poole BC distinguished in social services failure to intervene case

Insurers and perhaps social service professionals will not be pleased to read the judgment of HHJ Godsmark QC in X & Y v Derbyshire County Council (22.09.2020) [1]

The council applied to strike out claims in negligence, misfeasance and human rights by a father and his 15-year-old daughter (X).  Over an 8-year period the father, unsuccessfully, tried to convince social workers and management that his daughter was physically and emotionally abused by her mother.  Following assessments under section 17 Children Act 1989 the council concluded that his allegations were malicious and he was excluded from the statutory child protection process. 

The judge accepted X’s submissions that the pleaded facts did disclose an arguable case to establish a duty of care to protect her as  (1) this was a “causing harm” / “making matters worse” case rather than a “failure to confer a benefit” case given the council took positive action more akin to an adviser to the mother; alternatively (2) if the facts construed by reference to Lord Reed’s judgment in Poole v GN / CN amounted to a failure to confer a benefit case, meaning that the omissions principle applied, the council’s conduct meant that there was an arguable assumption of responsibility meaning that a duty of care arguably arose as an exception to the no duty principle as recognised in the Supreme Court decisions in Robinson v West Yorkshire Police [2018] and Michael v Chief Constables of South Wales & Gwent Police [2015].

X’s common law negligence and HRA claims under Articles 3 and 8 were allowed to proceed; the father’s negligence claim was struck out given the potential conflict recognised by the House of Lords in the JD v East Berkshire litigation, but his misfeasance and human rights claims survived. The father has sought permission to appeal the dismissal of his negligence claim.  The case is also of interest in that the judge accepted that the council’s admissions relating to their mishandling of his complaints amounted to a violation of his human rights.

Leading counsel for Derby argued that the common law claims were hopeless post CN v Poole because they (1) exemplified a failure to confer a benefit, as the facts amounted to no more than a series of omissions in the context of the performance of their statutory duty; (2) in the absence of facts akin to a contractual undertaking to protect X, social workers would not legally assume a responsibility and owed duties of care in tort only to their employing council; (3) there had been no positive acts causing harm or making matters worse.

The case is the first fully reasoned judgment in a public authority liability case where Lord Reed’s controversial analysis of the conferral of benefit / assumption of responsibility / making matters worse concepts CN / GN v Poole has been applied at 1st instance.

FACTS

Over the years the father doggedly pursued the statutory complaints process and applied several times to the family courts but was ultimately branded a vexatious litigant by a family court judge.  Social Services and CAFCASS consistently supported the mother. Tragically for X, she had to endure maternal abuse between the ages of 2 and 10 before a final assault led to her refusal to return home.  Her mother did not contest the move, only then did the council properly investigate and X went to live with her father full time.  By then she had suffered serious mental health issues, had developed suicidal thinking and was self-harming. 

The father’s case is that around X’s 2nd birthday social workers knew or suspected that the mother had fabricated or induced illness syndrome, previously known as Munchausen’s syndrome by proxy, and had been administering harmful prescription drugs. One of the allegations is that social workers had deliberately supressed evidence for reasons of administrative expediency and that over the years, social workers failed to take third party reports from concerned individuals and her school seriously.  The father followed the statutory complaints process, a significant number were accepted as valid but the council still failed to take any safeguarding action. 

The case continues.

Mr Bowen QC acts in public authority liability claims in all areas, acted in Robinson and Michael and supported by a team of committed and experienced juniors is happy to provide initial free advice, on normal terms or via public access.

Raj Manan of Bhatia Best Solicitors acted for X

The father acted in person

Adam Weitzman QC acted for Derby County Council