CN & Anor v Poole Borough Council

This appeal concerns the existence of a tortious duty of care to children, on the part of a local authority, to protect them from harassment and abuse by third parties. The duty claimed by the Claimant Respondents (hereafter “the Claimants”) is framed in negligence, not as breach of statutory duty. Relevant statutory provisions are said to be (1) the duty under Section 17 of the Children Act 1989 to safeguard and promote the welfare of children within their area who are in need, (2) the power under Section 20 of that Act to provide accommodation for a child, if the local authority considers such provisions “would safeguard and promote the child’s welfare”, and (3) the obligation under Section 47 of the Act to inquire as to whether action should be taken, if the local authority has reasonable cause to suspect that a child is suffering, or is likely to suffer, significant harm.

It is agreed that at the material times the first Claimant, CN, who suffers from severe physical and learning difficulties, was a child “in need” within Section 17 of the 1989 Act. He is now a protected party. The second Claimant, GN, was a child.

Between 4 May 2006 and 14 December 2011, the Claimants and their mother were placed by the Appellant Defendant (“the Defendant”), under its powers as the local housing authority, in Grange Gardens, Poole, Dorset, owned by the Poole Housing Partnership Ltd (“PHP”). Before the placement, the Defendant is said to have been aware that a family lived in nearby accommodation who engaged persistently in anti-social behaviour. Predictably, it is said that family and their associates repeatedly subjected the Claimants to significant harassment and abuse. CN attempted suicide. The Home Office commissioned a review from an independent consultant, Trevor Kennett, who reported in March 2010. The report was critical of the Defendant, PHP and Dorset police.

The claims were issued in December 2014, and Particulars of Claim served and filed on 7 April 2015, alongside a parallel claim by the mother and a claim from these Claimants based on the Housing Act. The Defendant applied to strike out, and these claims were struck out as disclosing no reasonable cause of action by Master Eastman on 2 October 2015. The Claimants appealed, but not the mother. The Claimants did not appeal in respect of the housing claim. The appeal came before Mrs Justice Slade on 16 February 2016, and in a judgment of 16 March she allowed the appeal and restored the claims of both claimants, as pleaded in the Amended Particulars of Claim.

The Defendant was granted permission to appeal by Christopher Clarke LJ on the papers on 21 July 2016.

The Claimants plead a “direct duty of care” at common law, derived from the statutory duties under the Children Act 1989 identified above. The scope of the duty of care is said to “reflect” the statute, and to include “a duty to protect children in their area and in particular children reported to them as being at foreseeable risk of harm”: Particulars of Claim, paragraph 4.1. That risk is alleged to have been communicated to the Defendants by at least July 2006. There is said to have been a duty to investigate the risks of abuse causing disturbance and injury (paragraph 4.3) and to take reasonable steps to protect them from such risks (paragraph 4.3). An assumption of responsibility is pleaded (paragraph 4.3).

The claim also sets out particularised common law duties pleaded against “social workers and/or social work managers and other staff… allocated … [to] the Claimants or tasked with investigating [their] plight…” for which the Defendant is said to be vicariously liable. The duties are said to be (a) “a duty not to injure either Claimant … and to protect each Claimant” from harm; (b) “a duty to monitor the Claimants’ physical, emotional, psychiatric and psychological welfare”; (c) “a duty to make arrangements to provide such medical … treatment as was reasonably necessary …”, (d) “a duty to visit each of the Claimants and ascertain their views, wishes, anxieties and complaints …”, (e) “a duty to ascertain whether either Claimant was placed in immediate danger or at risk of harm from which the Claimants’ mother was unable to protect them” and (f) “in the event of … risk of harm from which their mother was unable to protect them, to remove the Claimant or Claimants from such risk …”

Causation is pleaded in the following terms:

The Master recorded that the parties were “virtually ad idem” on four principles of law:

The Master referred to the decision of the Court of Appeal in X v Hounslow London Borough Council [2009] EWCA Civ 286, [2009] PTSR 1198, also a case of vulnerable people subjected to antisocial behaviour. He was not persuaded, by analogy with that case, that there was any assumption of responsibility at law in the instant case. He did not consider the case to be “borderline”. Insofar as the Claimants’ case consisted of “alleged common law claims arising out of duties imposed by the Children Act” he rejected any such duty as existing. He considered the relevant passages in Charlesworth & Percy on Negligence, 10^th Edition. His conclusion was that the Particulars of Claim, as pleaded, disclosed no reasonable cause of action.

The Master also struck out the housing claims then pleaded that the Defendant owed a duty of care to rehouse the family and/or to halt the anti-social behaviour from which they had suffered. As I have said, these aspects of the original claim were not sought to be restored by the Claimants.

The judge began by considering the “statutory background” to the common law claim, as considered in X (minors) v Bedfordshire County Council [1995] 2 AC 633 and X v Hounslow London Borough Council. She adopted the conclusion of Lord Browne-Wilkinson in X v Bedfordshire (paragraph 11) that:

Ms Gumbel QC for the Claimants submitted to the judge that the effect of X v Bedfordshire “had been restated by subsequent authorities” (Slade J, paragraph 11). Those authorities were Z v United Kingdom [2001] 34 EHHR 97, S v Gloucestershire County Council [2001] Fam 313, Barrett v Enfield London Borough Council and, “most importantly”, D v East Berkshire Community NHS Trust [2004] QB 558. Those cases had not been considered by the editors of the 10 ^th Edition of Charlesworth & Percy , since that edition was published in 2001.

The parties were “agreed on the test applicable” to whether the council owed a duty of care: it was the three stage test of foreseeability, proximity and fairness, introduced by the House of Lords in Caparo Industries v Dickman [1990] 2 AC 605.

The Claimants submitted that the instant case passed each aspect of the test. Harm was foreseeable from the abuse and harassment reported. The Defendant had assumed responsibility for protecting the family, including the Claimants, from harm. That was “demonstrated by the awareness of the Defendant that a child in need, CN, was living in their area” (paragraph 21). The Defendant had been involved since the placement of the family in May 2006. They had funded adaptations to the property “to accommodate CN’s needs”. They were aware of the difficult circumstances, with the mother being an “almost full time carer of a child who could not leave the house” (paragraph 21).

The Claimants submitted that the Master had been wrong to rely upon X v Bedfordshire to hold that no duty of care arose in this case. The Master should have followed the judgment of the Court of Appeal in the later case of D v East Berkshire . In that case, Lord Phillips MR considered the effect of the Human Rights Act 1998 and the jurisprudence of the ECtHR, including Z v United Kingdom , and concluded that:

The approach in D v East Berkshire had been adopted in Pierce v Doncaster MBC [2007] EWHC 2968 (QB) and NXS v London Borough of Camden [2009] EWHC 1786 (QB).

Mr Stagg representing the Defendant submitted that the decisions of the House of Lords in Mitchell v Glasgow City Council [2009] 1 AC 874 and of the Supreme Court in Michael v Chief Constable of South Wales [2015] UKSC 2, [2015] 2 WLR 343 were inconsistent with and “implicitly overruled” D v East Berkshire. Ms Gumbel replied that D v East Berkshire had not been expressly overruled and nor was that implied by the subsequent decisions. Michael v Chief Constable of South Wales was not a social services case. D v East Berkshire was binding and should be followed. It had the effect of:

Mr Stagg contended on the facts that the substance of the claims brought by CN and GN was “nothing to do with” the Defendant’s duty to children.

As the argument advanced, counsel for the Defendant made the following concession as recorded by the Judge:

The submissions on behalf of the council were further developed and recorded by the Judge as follows:

The Judge went on to consider the reasoning in X v Bedfordshire. She noted that in that case the first two of the tests in Caparo were satisfied, however the Court concluded that it would not be fair, just and reasonable to superimpose a common law duty of care on the council in respect of the “failure” of the council to take them into care. This outcome was reached for policy reasons: see the speech of Lord Browne-Wilkinson at p.749f – 751g.

In D v East Berkshire the Court of Appeal reviewed subsequent authority, European and common law, and held, in the words of Slade J at paragraph 40:

The Judge went on to consider whether D v East Berkshire had subsequently been overruled. The issue in Michael was whether the estate of a victim who had been killed by her partner could bring a claim in negligence against a police force for failing to prioritise a call from the victim. The Supreme Court, by a majority, had held that:

After reviewing the judgments in Michael, Slade J did not accept the submission of the Defendant that the judgment of the Court of Appeal in D v East Berkshire had been “implicitly overruled” either by the House of Lords in Mitchell or the Supreme Court in Michael. She considered that she was bound by the judgment of the Court of Appeal in D v East Berkshire. She found that X v Bedfordshire cannot now:

The submissions to us made by Lord Faulks QC for the Defendant and Ms Gumbel for the Claimants were consistent with those made below.

Lord Faulks for the Defendant conceded from the beginning that the facts of the case were “grim”. He stressed that the housing functions, and thus any statutory duties in respect of housing, were not in question. As the matter had progressed this was exclusively a social services case, principally based on the duties under the Children Act 1989.

Lord Faulks emphasised what he said would be the unjust result if legal liability was maintained against this Defendant alone. As was clear from a reading of the expert social work report relied on by the Claimants, given by Mrs Ruegger, if there were failings they might well be found to arise at the hands of the police and the housing association, a point relevant to the “fair, just and reasonable” test. If the claim was permitted to run and was to any extent successful, the Appellants had no prospects of indemnity claims against those others.

There was no arguable case of assumption of duty here. Although at one point a member of the Defendant’s social work staff had written a letter which spoke of the Defendant’s “duty of care” to the Claimants, that was a clearly insufficient basis for assumption of a legal duty of care in a context where a policy of the law ran counter to the existence of such duty: as the Court of Appeal noted in X v Hounslow LBC [2009] PTSR 1158. In the judgment of Sir Anthony Clarke MR at paragraph 24, the Court noted the remarks of Lord Hoffmann in O’Rourke v Camden London Borough Council [1998] AC 188, when he said at (page 196):

The Defendant then submits that the overall position in law is that a Defendant does not owe a duty of care to a Claimant to protect him or his property from harm by a third party: see Smith v Littlewoods Organisation Ltd [1987] AC 241 and Michael v Chief Constable of South Wales [2015] UKSC 2. The general exceptions to that principle are (1) cases where the third party is under the Defendant’s control and damage was foreseeable (see Smith v Littlewoods at 272F/G and Michael at paragraph 99), (2) cases where the Defendant creates a new risk that injury might be inflicted by the third party (see Mitchell v Glasgow City Council [2009] 1 AC 874, paragraphs 23, 82), and (3) cases where the Defendant assumes a positive responsibility to safeguard the Claimant (see Smith v Littlewoods at paragraph 272D-F and Michael paragraph 100). These principles apply equally to a public body as to a private individual.

The second key reference point is that no duty of care arises merely because the public authority is administering a statutory scheme, nor does any assumption of legal responsibility arise to a person assisted under that scheme (see Rowley v Secretary of State for Work and Pensions [2007] 1 WLR 2861, paragraphs 51-55 and X v Hounslow, paragraphs 62-65 and 90).

Where the relationship between a public authority or public servant and the Claimant gives rise in the normal way to a duty of care, and would do in the private sector, for example in the provision of medical care, a duty of care will subsist. However, the general principle is that in the context where “state controlled licensing, regulation, inspection, intervention and assistance aimed at protecting the general public from physical or economic harm caused by the activities of other members of society” the imposition of a duty of care would be contrary to the ordinary principles of law: see Michael, paragraphs 112-114. The mere fact that a relevant defendant is aware of an individual Claimant’s personal characteristics or vulnerabilities does not give rise to an assumption of responsibility on the part of the Defendant (see Darby v Richmond-upon-Thames LBC [2015] EWHC 909 (QB), paragraph 26 and [2017] EWCA Civ 252, paragraph 18). Where rights of review or appeal in relation to official action are conferred by the relevant statutory scheme or by the law generally, the imposition of the duty of care will generally be inconsistent with the statutory scheme (see Rowley, paragraphs 67-70, 78-79).

The Defendant submits that the particular legislation relied on in this case does not create or support the duty of care. Part III of the Children Act 1989 relates to the provision of services to children in need. Under Section 17(1) there is a duty “to safeguard and promote the welfare” of such children “by providing a range and level of services appropriate to those children’s needs”. To that end duties and powers are set out in Schedule 2 to the Act. Under Section 20(1)(c) the local authority has power to provide accommodation for the child if a person with the care of the child is “prevented … from providing him with suitable accommodation or care”. There is also a power under Section 20(4) to provide accommodation for the child if doing so “would safeguard or promote the child’s welfare”. However, those powers are subject to the consent of the parent who has the right under Section 20(7) and (8) to remove the child at any time.

Section 47(1) of the Act imposes a duty on the local authority where there is “reasonable cause to suspect that a child … is suffering, or is likely to suffer, significant harm” to make enquiries as may be necessary to enable the local authority to decide whether they should take any action (Section 47(1)(b)).

However, the Defendant emphasises that the local authority has no power simply to remove a child from the parents’ care (in contrast to the police, who do have a limited power to do so under Section 46). The local authority’s options are limited to applying for an Emergency Protection Order (Section 44) or applying for an Interim Care Order (Section 38) or a Final Care Order (Section 31).

The 1989 Act contains no provision giving rise to an action for breach of statutory duty and the Claimants can rely on no provision said to imply such a duty. The Defendant relies on the fact that at all relevant times there have been in existence systems for registering complaints against local social service authorities in respect of many of the functions under the 1989 Act (see Section 26 of the Act and the attendant regulations). Decisions in relation to the seeking of care and supervision orders are included (see Section 26(3A)(b) of the Act and Regulation 3(2) of the Children Act 1989 Representations Procedure (England) Regulations 2006 SI No 1738). If the 2006 Regulations do not apply, a complaint can be made under the Local Authority, Social Services and National Health Service Complaints (England) Regulations 2009 SI No 309. Local social services authorities have an express power to pay compensation to victims of maladministration (see Section 92 of the Local Government Act 2000). A system of referral exists to the Local Government Ombudsman.

It is against that background that the Defendant advances its two Grounds of Appeal. First, Slade J was in error in accepting that she was bound by D v East Berkshire Community NHS Trust so as to conclude that it was arguable that the Appellant owed a common law duty of care to the Respondents in the exercise of its functions under the Children Act. This Ground is stated as resting on the contention that D v East Berkshire Community NHS Trust has been “impliedly overruled” and is inconsistent with more senior authority in Smith and Michael. It is said this case falls into the third class of cases recognised by the Court of Appeal in Young v Bristol Aeroplane Co Ltd [1944] KB 718 at paragraphs 725-726: it is a case where the decision “although not expressly overruled, cannot stand with the subsequent decision of the House of Lords”.

Second, the Judge fell into error by failing to consider or by rejecting the Defendant’s contention that in substance the claim was not concerned with the exercise of functions under the 1989 Act, but was in substance concerned with powers and duties under the Housing Act 1996 or otherwise to prevent antisocial behaviour. In the alternative, for the reasons advanced under Ground 2, the case should be distinguished from that of D v East Berkshire Community NHS Trust.

The Claimants meet these arguments simply. D v East Berkshire Community NHS Trust remains good law, properly bound Slade J and properly binds this Court. Further, the distinction advanced between the situation in the instant case and the application of D v East Berkshire Community NHS Trust is at most arguable and therefore not properly to be struck out.

In my view, applying conventional principles of common law, and in the absence of an assumption of legal liability, there would be no liability in this case.

I must begin by questioning whether the statutory duties relied on, even if potentially giving rise to private law action, are apt to give rise to the duties and liabilities pleaded. What is alleged here derives from a housing placement, not from a decision under the Children Act. The heart of the claim is that this family were placed in the relevant house, and not moved, despite the prospect and then the actuality of significant harassment. There is no allegation that these children were at risk of harm from their mother or indeed any family member. The claim is that continued residence with their mother continued to expose them to harassment from others, and thus they should have been removed from their mother’s care. This is a rather startling proposition. In my view, it has two consequences. Firstly, in my view the pleaded case is highly artificial. Secondly, it means that an authority such as Mitchell v Glasgow City Council must be taken to be highly relevant to this case.

Can it really be said that the Appellant had a duty under the Children Act to remove this highly vulnerable disabled child, and his younger brother, from their single parent mother because of harassment by neighbours? The reality is that the Claimants have been forced to accept that they cannot sue the Defendant as Housing Authority for failing to move the family as a unit, and so the claim has been re-cast, seeking to erect a potential liability flowing from decisions under the Children Act. In my view, this is relevant not merely to the eventual prospects of the case if tried, but to the legal consideration of the pleaded claim.

The decision in X v Bedfordshire is too well known to require any general re-statement. Lord Browne-Wilkinson considered the careless performance of a statutory duty, where (within the categorisation of claims he developed) no statutory right of action (Category A) and no established common law duty of care (Category C) exist. After review of authority, principally Geddis v Proprietors of Bann Reservoir (1878) 3 App. Cas. 430 (HL) and Dorset Yacht Co Ltd v Home Office [1970] AC 1004 (HL), Lord Browne-Wilkinson concluded:

Lord Browne-Wilkinson went on to consider the cases where the exercise of a statutory duty “has brought about such a relationship between [the Defendant] and the Plaintiff as to give rise to a duty of care at common law” [p.735B]. He concluded:

Lord Browne-Wilkinson went on to consider the child abuse cases, and the statute in question in this case (and its predecessor). He concluded firmly (p.747E/748B) that there can have been no intention by Parliament to create a private law cause of action.

Then, in the passages of his judgment which have become so well known (p.749D to 751G), Lord Browne-Wilkinson set out his reasons as to why it would be wrong – based on public policy, on as he put it “very potent counter-considerations” to the principle that wrongs should be remedied (p.749G) – to impose a common law duty of care across the statutory system for the protection of children at risk. His reasons include the multi-disciplinary nature of the system of consultation and decision-making, the delicacy and difficulty of the decision-making, the need to avoid stimulating caution and defensiveness on the part of social workers, the need to minimise ill feeling and litigation arising from such disputes, the presence of complaints procedures to address alleged maladministration and the principle that the law of negligence should proceed incrementally and by analogy with decided categories.

These are all matters relied on by the Defendant as having application to this case, correctly so in my view, and in effect without contradiction by the Claimants as to their application, if not the outcome.

In his speech at 751B/G, Lord Browne-Wilkinson addressed the incremental development of the law in the following terms:

One important aspect of the passage is the reference to the “nearest analogies” between the duties of local authorities under the Children Act and the other categories of case (police and regulators) where public duties are laid on those who have responsibility for protecting society from the wrongdoings of others. In my view, this emphasises the aptness of authorities bearing on those analogous powers and duties to the question of liability here.

In my view it is also important to emphasise the fact that Lord Browne-Wilkinson had in mind the central responsibilities of social workers and their local authority employers under this legislation. What was in question was the key decision-making: whether or not to remove children from their families because of the risk of child abuse in the family setting. Despite the very serious nature of those risks, and the fact that such risks were absolutely at the centre of the statutory duties in question, the policy of the law precluded private law action. In my view, the answer would have been even more decisive were the House of Lords to have had the current case in contemplation: not a risk within the family setting but a problem arising from a housing placement. Here, to a greater extent even than in the cases in X v Bedfordshire, other disciplines, public bodies and public servants were involved; here the risk of complex dispute, loss of trust and ill-feeling must have been all the higher, since the allegation is that the Defendant’s social workers, in the face of failure by the Defendant’s housing department and/or PHP to rehouse the Claimants (and in the absence of a private law remedy against the latter), should have removed the Claimants from their mother’s care.

Against that backdrop, I turn to D v East Berkshire.

In giving the judgment of the Court in that case, Lord Phillips MR began by addressing the decision of Osman v United Kingdom (1998) 29 EHHR 245, and subsequent cases in which it was suggested that the English procedure of striking out cases on assumed fact had been held to infringe ECHR Article 6. This problem was largely resolved in Z v United Kingdom (2001) 34 EHHR 97, and TP and KM v United Kingdom (2001) EHRR 42. Despite the efforts of counsel for the Claimants in D v East Berkshire, they failed to “revive Osman”, the Court of Appeal concluding that the case was not affected by the concerns which underpinned Osman. However, that first issue in the case demonstrates the degree to which the decision in D v East Berkshire was reached in the light of the impact of the ECHR, as it was understood in early 2003, soon after the commencement of the Human Rights Act 1998, and by the incorporation of the European Convention of Human Rights into English law.

The second issue in D v East Berkshire was the question whether subsequent decisions had varied the principles laid down in X v Bedfordshire. Lord Phillips began with a review of key English authority, most importantly Barrett v Enfield LBC [2001] 2 AC 550, S v Gloucestershire County Council [2001] Fam 313 and Phelps v Hillingdon LBC [2001] 2 AC 619. Lord Phillips summarised the effect of these cases as follows:

The Court went on to consider the impact of the Human Rights Act 1998, and it was this that turned the scale. I do not intend to recapitulate all of the reasoning set out in paragraphs 55 to 87 of the judgment. The judgment rightly emphasised the vulnerability of children in care, and the primacy of the welfare of children, matters which will be agreed generally. The core reasoning was that litigation to enforce the Convention rights of children in respect of whom sex abuse was suspected, and where decisions about care arose, cut across the approach in X v Bedfordshire. The key conclusions are in paragraphs 81 to 83:

In understanding this change of direction, based on obligations under Articles 2 and 3, it is important to keep in mind the nature of the impugned decision in D v East Berkshire. The Court was considering the decision whether to leave a child in a family where abuse was in question. For the purposes of such a decision there exists no true “third” party, in the usual sense. The actual or potential wrongdoing by those who would retain (or gain) custody of a child is central to the decision being taken. It is the mainspring of the relevant decision. That is a significant distinction from the current case.

As we have seen, Lord Faulks attacks these conclusions on two main fronts. Firstly, he suggests that House of Lords authority after X v Bedfordshire had not amounted to a “discrediting” of the reasoning or outcome of the policy, even setting aside child abuse claims. Further, and crucially, he suggests that subsequent House of Lords and Supreme Court cases, particularly Mitchell and Michael, have reaffirmed the reasoning in X v Bedfordshire; and it is on that ground he invokes the third exception in Young v Bristol Aeroplane.

In Mitchell the House of Lords had to consider an appeal from the Inner House, Court of Session (Lady Paton and Lord Penrose, Lord Reed dissenting), who allowed an appeal from Lord Bracadale. The judge at first instance had dismissed the action, a decision restored by the House of Lords.

Mr Mitchell was a secure tenant of the local authority, as was a neighbour named Drummond. After a long course of aggression and threats from Drummond, of which the council were fully aware, Drummond killed Mitchell. His widow sued, claiming that the council owed her husband a duty of care and should have intervened, at least by warning about a forthcoming meeting likely further to agitate Drummond. The council’s case was that they owed no duty of care to protect Mr Mitchell from criminal acts by Drummond.

Although this was a case decided in Scots law, it was decided on common law principles, and on consideration of the council’s obligations as a public body to act in a manner compatible with the ECHR. The judgments recited English authority extensively, and in a number of speeches the identical nature of the law in both jurisdictions was emphasised.

I begin with the decision in the Inner House. In his dissenting judgment in the Inner House, Lord Reed conducted an extended review of authority, Scots and English. He also considered Mr Mitchell’s rights under ECHR Article 2 (on which issue he was in the majority). In my view, his analysis is particularly helpful and may properly be considered, given the affirmation of his judgment in the House of Lords.

In paragraphs 88 and 89, Lord Reed considered the relationship between affirmative duties, and the distinction between acts and omissions:

In further passages, Lord Reed went on to emphasise the importance of free will and capacity as underpinning the responsibility of the wrongdoer, and as militating against the extension of liability to others to prevent the wrongdoing: see paragraphs 90 to 94. Lord Reed quoted with approval from the judgment of Mason P in WD & HO Wills (Australia) Ltd v State Rail Authority of New South Wales (1998) 43 NSWLR 338, where that judge doubted that the existence of a duty of care turned upon the level of probability of harm ensuing, stating that:

Lord Reed also reviewed the examples given by Lord Goff in Smith v Littlewoods Organisation Ltd [1987] AC 241 at pages 272D to 275G, where “special circumstances” meant that a defendant might be held liable for injury inflicted by the deliberate wrongdoing of a third party. Lord Reed characterised this passage and related authority as follows:

In paragraphs 100 to 102, Lord Reed analysed earlier authority concerning such liability said to lie against public authorities. In the ensuing paragraphs he continued that review, focussing on the duties of council landlords arising from problem neighbours: see in particular Mowan v Wandsworth London Borough Council [2001] L.G.R. 228. His conclusion was that the scope of any duty owed to Mr Mitchell, at common law, could not be held to extend to a duty to protect him from the wrongdoing of Drummond.

Lord Reed went on to consider the impact of Article 2 of the European Convention. Putting the matter shortly, he concluded that the obligation of the State, even assuming that Glasgow City Council was aware of a real and immediate risk to Mr Mitchell’s life (paragraph 145), were discharged by a combination of effective common law provisions to deter offending, liability on the part of the offender for civil damages, and appropriate procedures to investigate the death (paragraph 146). He concluded that the “legal system … met the requirements of Article 2” without any requirement for common law liability on the part of the council.

When Mitchell was heard in the House of Lords, Lord Hope gave the leading opinion. He affirmed the approach of Lord Reed. He was of the view that foreseeability of harm was not enough to establish a duty, citing Dorset Yacht Co Ltd v Home Office [1970] AC 1004, Smith v Littlewoods Organisation Ltd (supra), Hill v Chief Constable of West Yorkshire [1989] AC 60 and Yuen Kun Yeu v Attorney General of Hong Kong [1988] AC 175 (see Lord Hope, paragraph 15). He cited Lord Goff in Smith v Littlewoods to the effect that the common law imposes no liability for “what … may be called pure omissions” (paragraph 15). Although the council had a relationship of proximity with Mr Mitchell, and was aware of risks posed by Drummond, and had “decided to take steps to address Drummond’s anti-social behaviour” (paragraph 17), those factors were insufficient to erect a duty of care and liability. Lord Hope went on to say:

Lord Hope went on to cite the “fair, just and reasonable” test in Caparo Industries plc v Dickman, quoting Lord Bridge in that case as acknowledging:

After reviewing other examples of cases where liability had been established, Lord Hope continued, considering the “fair, just and reasonable” test:

In paragraph 27, Lord Hope considered the potential breadth of a duty in such circumstances. If “social landlords are under such a duty, must social workers and private landlords not be under the same duty too?” The answer was that such a duty was undesirable:

Lord Hope’s conclusion on the common law was that a duty to warn of such risks would arise only:

Lord Hope also agreed with Lord Reed that, on the facts of Mitchell, the obligations under ECHR Article 2 did not alter the case (see paragraphs 30 to 34).

It is of interest that Lord Hope cited the case of D v East Berkshire in the House of Lords as supporting the proposition that

Lord Scott agreed that foreseeability of harm was an insufficient basis to “transform what would otherwise be a mere omission” into a legal duty (paragraph 40). He went on to review the various circumstances which had done so in the past, concluding that in each case the “question for the Court will be whether the circumstances were indeed sufficient for that purpose”. He agreed with the conclusions of Lord Hope.

Lord Rodger looked for “some identifiable principle, narrower than the mere foreseeability of harm … upon which liability can properly be imposed” (paragraph 56). Even though the local authority had a statutory power to recover possession of the house of an anti-social tenant, that was an insufficient basis on which to found liability: see Stovin v Wise and Gorringe v Calderdale Metropolitan (paragraphs 61 to 63). Lord Rodger found no “identifiable principle” which would found liability. He too went on to conclude (paragraphs 64 to 71) that the alleged breaches of Article 2 were irrelevant and could not found liability.

Baroness Hale agreed that foreseeability of harm is not enough to impose a duty to safeguard a person from criminal acts by a third party (paragraph 76). There had to be “some particular reason” for liability. On the facts in Mitchell, her view (as Lord Rodger) was that the defender council had a greater involvement than “mere omission” and was an “actor in the drama” because it was the meeting with the council officials which had precipitated Drummond’s attack (paragraph 76). However, despite that fact, and despite the existence of the powers of social landlords, Lady Hale agreed that it was not fair, just and reasonable for a duty to exist in such circumstances (paragraphs 76 and 77). Indeed, part of Lady Hale’s thinking strongly echoes the reasoning of Lord Browne-Wilkinson in X v Bedfordshire:

Lord Brown concurred in allowing the appeal and with the reasoning of Lord Hope and Lord Rodger. He went on to emphasise the importance of the police cases to claims of this kind: citing Van Colle v Hertfordshire Police, he stated:

In Michael the Supreme Court considered a tragic case of a woman murdered by her former partner. She made emergency 999 calls to the police asking for rescue. The calls were allegedly mishandled and it was said the failure prevented rescue and led to her death. Her estate and dependants sued.

It is instructive to note the way the arguments were advanced by the Appellants and Interveners. The Appellants submitted that the common law did (or, if it did not, should) erect a duty of care on these facts, arguing in direct reliance of the Court of Appeal decision in D v East Berkshire:

The Interveners focussed their argument heavily on publicly available material concerning violence against women, on Article 2 of the European Convention, and on the United Nations and Council of Europe conventions concerning discrimination and violence against women. The Interveners argued that these considerations required a change in public policy, and a change in the common law comprising an abolition of the rule in Hill v Chief Constable of West Yorkshire; see Michael, page 1738D to 1739 A.

It follows that the arguments advanced in the appeal tallied closely with the thinking of the Court of Appeal in D v East Berkshire, in seeking to extend liability.

In response, the Chief Constable argued that these arguments had been advanced and rejected in Van Colle v Chief Constable of Hertfordshire:

The Supreme Court sat in a constitution of seven. The leading judgment was given by Lord Toulson, with whom Lords Neuberger, Mance, Reed and Hodge agreed. Lord Kerr dissented on a broad range of points, and Baroness Hale supported that dissent on the explicit basis of the decision in D v East Berkshire, and on the requirement (as she considered it was) to recognise a duty of care in negligence to a protected child, derived from the importation of Convention rights into English law.

Before us the Defendant argues that since the argument and decision in Michael turned so heavily on D v East Berkshire, and the majority decision is (they say) inconsistent with that decision as it affected liability to children not just parents, the conclusion of the majority in Michael means that D v East Berkshire cannot any longer be good law.

Lord Toulson reviewed earlier authority concerning the liability of police for failure to prevent crimes by third parties. It is not necessary to follow his review in detail from the beginning.

Lord Toulson made an important point as to language and concept. Considering the decision of Lord Keith in Hill, Lord Toulson noted that Lord Keith had used the language of immunity, when concluding that the Court of Appeal in Hill were correct to find that the police were “immune from an action of this kind” [see speech of Lord Keith, pp 63-4]. Lord Toulson commented:

Lord Toulson noted that Lord Steyn in Brooks v Commissioner of Police for the Metropolis [2005] 1 WLR 1495, had approved the decision in Hill (with all his colleagues) but had said that the principle in Hill “should be re-formulated in terms of the absence of a duty of care rather than a blanket immunity” (Brooks, paragraph 27), an approach consistent with his own view, as expressed above.

After an extensive review of authority concerning the potential liability of police, English and foreign, Lord Toulson reiterated the general rule that the common law does not impose liability for pure omissions, or for failing to prevent harm caused by someone else (paragraph 97). He characterised two recognised exceptions: first, where the defendant had control over the third party and it was foreseeable damage might ensue unless care was exercised in that control. That is the Dorset Yacht example (paragraph 99). The second exception is where the defendant has assumed responsibility to safeguard the claimant under the principle laid down in Hedley Byrne & Co Ltd v Heller and Partners Ltd [1964] AC 465 (paragraph 100).

Lord Toulson considered the efforts which had been made to look for “some universal formula or yardstick” (paragraph 103) by which incremental development of the law in this field might be measured, but he quoted with approval from the speech of Lord Bridge in Caparo v Dickman, at p617/618 of that case, to the effect that no “single general principle” has been made to “provide a practical test which could be applied to every situation to determine whether a duty of care is owed and, if so, what is its scope” (paragraph 106). The law here has developed incrementally but in response to particular cases.

However, Lord Toulson did go on to articulate a broad principle which governed the case before him and, on the face of it, bears on the case before us:

Lord Toulson went on to consider the submissions, principally from the Intervener, based on the European Convention and explicitly on D v East Berkshire, and on those paragraphs (79-85) from the judgment of Lord Phillips MR, some of which are quoted above. Lord Toulson rejected the argument:

In my view Lord Toulson’s rejection of the argument that Articles 2 and 3 require an extension of common law liability is not confined to its application to the parents’ appeal before the House of Lords. The natural meaning of the paragraphs quoted above is, it seems to me, that there is no requirement and indeed no justification to extend the law of negligence on this basis.

Lord Toulson went on to reject the further submissions, based on the prevalence of violence to women and on the international conventions cited, that the Court should extend liability. Such change was a matter for Parliament:

It is common ground that Parliament did not create a right of private law action for breach of the duties, or negligence in the exercise of the powers, under the Children Act relevant to this case. Following the approach of Lord Steyn in Brooks, confirmed by Lord Toulson in Michael, the matter must be approached in terms of the existence or absence of a common law duty of care, not in terms of immunity from a duty of care which would implicitly otherwise exist. The critical passages from X v Bedfordshire quoted above read in that way: the policy considerations laid down there bear on whether a duty of care exists, not on immunity.

There are broadly two considerations here, reflecting the authority I have considered, which would militate against legal liability on these facts. The first is the concern, articulated in X v Bedfordshire in relation to social services and in Hill v West Yorkshire in relation to the police, that liability in negligence will complicate decision-making in a difficult and sensitive field, and potentially divert the social worker or police officer into defensive decision-making. The second is the principle that, in general, there is no liability for the wrongdoing of a third party, even where that wrongdoing is foreseeable. Both of these considerations, in my view, bite on the facts in this case.

In any event, insofar as the Defendant exercised powers and bore duties under the Children Act, it was not responsible for housing the Claimants in proximity to those who behaved in an anti-social fashion. This is not a case where the Defendant brought about the risk or had control over the individuals representing the risk: it does not fall into the Dorset Yacht exception to the general rule.

There is no attempt to revive a claim based on the Defendant’s functions as a housing authority. That would be bound to fail. There is no prospect of common law liability from such a route, as Mitchell must make clear.

Indeed, in my view this case illustrates perfectly why it is unjust to extend liability to one agency (the social services department of the local authority) when other agencies (the housing department, the “arms-length” housing provider and the police) are at least as involved and arguably more centrally involved in the relevant problem. By what logic is it just for there to be liability to a claim for damages through alleged omission on the part of social workers here, when those responsible for housing Mr Mitchell and his neighbour Drummond have no potential liability?

I accept Lord Reed’s formulation in paragraph 89 of his judgment in Mitchell, quoted in paragraph 61 above:

The Claimants’ claim is based squarely on the extension of liability set down in D v East Berkshire. In the course of argument, Ms Gumbel QC emphasised this. The claim stands or falls by that formulation of liability. That is clear also from the decision of Slade J. Ms Gumbel also told us that claims against local authorities, exercising powers and fulfilling duties under the Children Act, are widespread. In effect she told us that as a result of D v East Berkshire, social workers are sued as a consequence of their dealings with children, where others acting in relation to children in response to other similar statutory duties cannot be sued: a professional or sectoral distinction. The question whether D v East Berkshire remains good law is critical.

With very great respect to the constitution of this Court who reached that decision, I cannot see how it is consistent with subsequent higher authority. It seems beyond doubt that, but for the impact of the ECHR and the supposed need for an extension of common law liability to reflect the obligations of the State under the Convention, the decision would have been against an extension of liability. That consideration was the pivot of the decision. Yet that proposition has been explicitly rejected in the later cases cited above. With great respect to the judge in this case, it seems to me she was in error in the distinction she made as to the passage in Smith v Chief Constable of Sussex Police relied on by Lord Toulson in Michael. Although the passage in the speech of Lord Brown in Smith referred to the parents’ appeal to the House of Lords in D v East Berkshire, there seems to me no doubt that Lord Toulson was addressing the broader proposition. That was the argument advanced before him in Michael.

For those reasons I would accept the Defendant’s argument that D v East Berkshire falls into the third class of case in Young v Bristol Aeroplane and should no longer be followed.

I have considered carefully whether there was arguably an assumption of responsibility here, so as to bring the case within that exception to the general rule. That was not the basis on which Slade J reached her conclusion, and nor is it the key proposition advanced by Ms Gumbel QC. In my view there is no basis here for an assumption of care. I have summarised the matter relied on by the Claimant in paragraph 15 above, and the response from Lord Faulks QC in paragraph 29. In my view, he is correct that there is insufficient here arguably to amount to an assumption of care so as to satisfy the approach in X v Hounslow or Darby v Richmond-upon-Thames.

Therefore I would also accept the submission that this case on its pleaded facts does not fulfil any of the established exceptions in common law to the general rule that a Defendant is not liable for the wrongdoing of a third party.

Moreover, as should already be clear, it seems to me that the Defendant is correct in submitting that this claim is not in truth based on failures arising from duties and powers under the Children Act. The proposition that the remedy here was removal from the family, from the care of the Claimants’ mother, seems fanciful. The claim is in fact a criticism of the housing functions of the local authority, exercised through the agency of PHP, shoe-horned into a claim arising from duties and powers under the Children Act 1989.

For all those reasons, I would allow the appeal on both Grounds and restore the order of Master Eastman.

I agree that for the reasons given by Irwin LJ, the decision in D v East Berkshire cannot stand with the subsequent decisions of the Supreme Court in Mitchell and in Michael and I too would allow the appeal on both Grounds.

I would wish also to endorse the observations of Davis LJ as to the manner, once it became apparent that there was no viable action against the housing authorities, that this claim was recast by reference to a duty of care arising by virtue of the provisions of the Children Act 1989.

Irwin LJ set out at paragraphs 6 – 8 above, the way in which this claim was pleaded namely that the children should have been ‘removed from the care of their mother’. Causation was pleaded as follows:

I readily acknowledge that lawyers drafting pleadings in a case of this type may not necessarily have specific expertise in relation to care proceedings. In my view however, it is unacceptable that there appears to have been no understanding of, or reference to, the statutory basis upon which the draconian order sought, (resulting in the unilateral removal of these children from their mother) could have taken place.

The pleadings baldly assert that “on application to the Court the Defendant (ie the local authority) would have obtained at least respite care and if necessary by interim care orders in respect of each Claimant”. Such a statement fails to acknowledge that where, as here, a mother does not consent to the removal of her children from her care under an interim care order, the local authority must satisfy the court (pursuant to section 38(2) Children Act 1989) that there are reasonable grounds for believing that “circumstances with respect to the child are as mentioned in section 31(2)”.

Section 31(2) provides the ‘threshold criteria’ for state intervention in the care of a child:

On the facts of the case put before the court, it seems highly unlikely that it could be shown that there were reasonable grounds to conclude that the threshold criteria could be satisfied. Further, numerous Court of Appeal decisions have made it clear that satisfaction of the threshold criteria should not be equated with satisfaction of the case for the removal of a child from its parent. A care plan for the immediate removal of a child from its parent should only be approved by the court if the child’s safety demands immediate separation; see for example Re G (Interim Care Order) [2011] 2 FLR 955, CA. I note, for completeness, that there is no such order as a ‘respite care order,’ let alone as some sort of half way house to an interim care order.

In my judgment, the pleadings should have particularised the broad basis upon which it was said the threshold criteria was capable of being satisfied, and, having done so, why it was thereafter averred that the local authority would have been permitted to remove the children from the care of their mother absent her consent. Had that been done, it would have been apparent that not only was the proposal that these Claimant children should have been removed from their mother ‘utterly heartless’ and ‘utterly wrong,’ as characterised by Davis LJ, but legally unsustainable.

I agree that for the comprehensive reasons given by Irwin LJ, the decision of the Court of Appeal in D v East Berkshire (which departed from the previous decision of the House of Lords in X v Bedfordshire) is not obviously consistent with the subsequent decision of the House of Lords in Van Colle and Smith (see in particular at paragraphs 136 – 140 of the speech of Lord Brown); and it is inconsistent with and cannot stand with the subsequent decisions of the Supreme Court in Mitchell and in Michael. That in the present case the claimants are children, where in Mitchell and Michael they were not, can make no difference. D v East Berkshire is to be taken as overruled by those later authorities.

I also agree that in this case the local authority assumed no responsibility in law to the claimants simply by reason of its exercise (or non-exercise) of its statutory functions with regard to dealing with the position arising on the estate.

In any event, I found the formulated claim, by reference to a duty of care asserted to arise from the availability of asserted remedies under the provisions of the Children Act 1989, most disconcerting. The true complaint in reality was about the failure of the housing authorities to re-house the entire family in the light of the activities of the neighbouring family. (Previous proceedings commenced by the claimants and their mother in 2012 against, among others, the Chief Constable of Police and PHP had, I note, not been pursued and were struck out in 2013.) That, as is now accepted, gave rise to no viable cause of action against the relevant housing authorities. To seek then to re-cast the claim for damages against the local authority by reference to an alleged duty to seek and obtain a care order under the Children Act 1989 seems to me little more than legalistic legerdemain, designed to overcome the insuperable obstacles to formulating a viable claim in attacking the housing authorities in the exercise, (or, rather, non-exercise) of their housing functions. The courts should not be prepared to entertain such a step.

It was never said that the mother was an unfit mother. She loved and cared for her (vulnerable) children. They loved and needed her. Nothing she did or did not do caused them any harm: it was the harassment of the neighbours which did. True she failed, in spite of all her efforts, to achieve the cessation of that harassment or relocation of her family. But that was not her fault. On the contrary, it was the various agencies which, rightly or wrongly, have been blamed. But why or how could seeking a care order with regard to the children be justified in such circumstances?

In the present case, it seems to me that seeking a care order from the Family Court, which potentially would split the family, would not simply have been utterly heartless: it seems to me that such a step would have been utterly wrong. In the circumstances of this case, there was no justification for potentially separating, without the mother’s consent, mother from children, children from mother by use of care proceedings. To countenance care proceedings in the Family Court in order to overcome (or provide a subsequent remedy for) the problems caused by the neighbours on the estate would be, I would have thought, tantamount to an abuse of the process of that court.

I am in agreement with the judgment of Irwin LJ. Nothing in this case as pleaded requires or justifies it going to a full trial. It is unsustainable. It should be struck out now.