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:

“6.3

On the balance of probabilities competent investigation at any stage would have led to the removal of the Claimants from home. A child in need assessment should with competent care have been carried out in respect of each Claimant by September 2006 at the latest. By September 2006 no competent local authority would have failed to carry out a detailed assessment and on the balance of probabilities such detailed assessment if carried out competently would and should have led to the conclusion that each of the Claimants required removal from home if the family as a whole could not be moved. [Emphasis added] With the information obtained by competent assessment in September 2006 on application to the Court the Defendant would have obtained at lest respite care and if necessary by interim care orders in respect of each Claimant. Any competent local authority should and would have arranged for their removal from home into at least temporary care.”

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

“7.

… firstly in general (a) does not owe a duty of care to (b) to protect them from (c). The exception to that – and it is this exception which is pivotal to this case – exception being where (a) has assumed a responsibility to afford such a duty of care; (a) being the defendant in this case and (b) being the claimants and (c) effectively being the relevant family and their associates.

8.

The second principle is that a local authority does not owe a basic common law duty of care to protect people from anti-social behaviour. That is clearly set out in the Hussain case ([1998] EWCA Civ 834).

9.

The third basic principle is that, if the local authority is merely exercising a power under a statutory scheme, it does not thereby assume a responsibility at common law to those intended to benefit from the scheme. To which the claimant in this case says yes I agree with that but there will be exceptional cases in certain circumstances where it will have assumed such a responsibility.

10.

The fourth general principle to which both parties agree is that, if a local authority knows of particular circumstances affecting an individual it does not mean they assume a responsibility for those characteristics that is the Derby case ([2015] EWHC 909 (QB)).”

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:

“The question whether there is a duty of care at common law must be profoundly influenced by the statutory framework within which the acts complained of were done. The same must be true of any omissions complained of”.

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:

“81.

… the reason of policy that led the House of Lords to hold that no duty of care towards a child arises, insofar as those reasons have not already been discredited by the subsequent decisions of the House of Lords, will largely cease to apply …

…

83.

Insofar as the position of a child is concerned, we have reached the firm conclusion that the decision in X v Bedfordshire cannot survive the Human Rights Act …”

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:

“removing the exclusionary effect of X v Bedfordshire on decisions by local authorities in respect of claims by children so that negligence claims against local authorities in respect of duties owed to children may be pursued by them.” (paragraph 27)

Moreover, the facts of this case were such that it was not a claim apt for disposal by striking out (paragraph 28).

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.

“The substance is that the antisocial behaviour of members of the delinquent family should have been stopped. There was [then] no suggestion that the council should have taken the children into care. The alleged duty of care to CN and GN had nothing to do with the Children Act 1989. It is established by the authorities that no common law duty of care is owed by a council in respect of antisocial behaviour or to children in respect of re-housing.” (paragraph 29)

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

“However, Mr Stagg fairly recognised that if I declined to accept his argument that D v East Berkshire had been overruled, I must follow the decision of the Court of Appeal in that case. As the claims in this case are brought by children they do not fall within the exclusion of common law claims relating to duties of councils to children as explained in the Judgment of the Court of Appeal in D v East Berkshire. If that decision has not been overruled, X v Bedfordshire would not present an absolute bar to the current claims.” (Slade J, paragraph 30)

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

“33.

Mr Stagg submitted that it would not be fair, just and reasonable to impose a duty of care on the Council in this case for the following reasons:

i)

The Council did not have the power to re-accommodate or remove the children CN and GN from the premises without a Court Order or the agreement of the parent;

ii)

There was no enforceable statutory duty requiring the Council to provide accommodation for the children with their mother;

iii)

The Children Act 1989 Section 17 does not impose a duty which is enforceable by judicial review nor does section 47 give the Council power to re-accommodate or remove the children from the premises.

34.

Mr Stagg distilled his contention that the Council did not owe CN and GN a duty of care into six propositions:

i)

The substance of the Claimants’ claim against the Council was that they had failed to rehouse them. The Children Act 1989 is not relevant to such a claim;

ii)

The Council owe no duty at common law to prevent anti-social behaviour;

iii)

It would be odd if the Children Act 1989 gave rise to liability in these circumstances when there was no duty to exercise powers conferred by other legislation;

iv)

The Council’s duty to accommodate the children is not enforceable by judicial review. In those circumstances it would be odd if there could be a common law claim in damages;

v)

Partner agencies, such as the police, had been involved in the cases of CN and GN. Why should the Council be liable and the other agencies not?

vi)

Where there is a legislative scheme which does not provide a private law remedy none should be conferred by other means. Parliament has provided a statutory complaints procedure. Application may be made to the Ombudsman, there are political avenues for redress, as were taken by the mother in this case, and a statutory right of review may be available.”

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:

“…that the Human Rights Act and Strasbourg jurisprudence led to the removal of an absolute bar to claims falling within the “core proposition” in X v Bedfordshire which remained after Barrett.”

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:

“the duty of the police for the preservation of the peace did not involve the kind of close or special relationship necessary for the imposition of a private law duty of care” (paragraph 42)

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:

“… preclude the child claimants from pursuing such a claim in the circumstances of this case. The claim will be considered on its particular facts to ascertain whether all the elements necessary to establish a cause of action in negligence are present: forseeability, proximity or assumption of responsibility and that it is fair, just and reasonable to impose liability. Whether a common law duty of care was owed by the council to CN and GN will depend upon a full examination of the facts. This issue is not apt for determination on an application to strike out the claim.” (Slade J, paragraph 44)

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 concept of a duty in private law which arises only when it has been acknowledged to exist is anomalous. It means that a housing authority which accepts that it has a duty to house the applicant but does so inadequately will be liable in damages but an authority which perversely refuses to accept that it has any such duty will not. This seems to me to be wrong.”

The contested duty of care in this case must arise from the law or not at all.

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:

“In my judgment the correct view is that in order to found a
cause of action flowing from the careless exercise of statutory powers or duties, the plaintiff has to show that the circumstances are such as to raise a duty of care at common law. The mere assertion of the careless exercise of a statutory power or duty is not sufficient.” [p.734H/735A]

Lord Browne-Wilkinson dealt with this category of case (Category B) under the rubric “careless performance of a statutory duty – no common law duty of care”.

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:

“Much more difficult is the question whether it is appropriate to decide the question whether there is a common law duty of care in these cases. There may be cases (and in my view the child abuse cases fall into this category) where it is evident that, whatever the facts, no common law duty of care can exist.” [p.741A/B]

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:

“Finally, your Lordships' decision in Caparo [1990] 2 AC 605 lays down that, in deciding whether to develop novel categories of negligence the court should proceed incrementally and by analogy with decided categories. We were not referred to any category of case in which a duty of care has been held to exist which is in any way analogous to the present cases. Here, for the first time, the plaintiffs are seeking to erect a common law duty of care in relation to the administration of a statutory social welfare scheme. Such a scheme is designed to protect weaker members of society (children) from harm done to them by others. The scheme involves the administrators in exercising discretions and powers which could not exist in the private sector and which in many cases bring them into conflict with those who, under the general law, are responsible for the child's welfare. To my mind, the nearest analogies are the cases where a common law duty of care has been sought to be imposed upon the police (in seeking to protect vulnerable members of society from wrongs done to them by others) or statutory regulators of financial dealings who are seeking to protect investors from dishonesty . [Emphasis added] In neither of those cases has it been thought appropriate to superimpose on the statutory regime a common law duty of care giving rise to a claim in damages for failure to protect the weak against the wrongdoer: see Hill [1987] A.C. 53 and Yuen Kun Yeu v. Attorney-General of Hong Kong [1988] A.C. 175. In the latter case, the Privy Council whilst not deciding the point said, at p.198F, that there was much force in the argument that if the regulators had been held liable in that case the principles leading to such liability "would surely be equally applicable to a wide range of regulatory agencies, not only in the financial field, but also, for example, to the factory inspectorate and social workers, to name only a few." In my judgment, the courts should proceed with great care before holding liable in negligence those who have been charged by Parliament with the task of protecting society from the wrongdoings of others.”

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:

“49.

These decisions significantly restrict the effect of the Bedfordshire cases [1995] 2 AC 633. So far as the education authority cases are concerned, doubt was cast in Phelps v Hillingdom London Borough Council [2001] 2 AC 619 on the proposition that an education authority owes no duty of care to children when exercising powers and discretions under the 1981 Act. So far as child abuse cases are concerned, much of the reasoning advanced by Lord Browne-Wilkinson to justify holding that there was no duty of care was called into question. Lord Slynn in Barrett v Enfield Borough Council [2001] 2 AC 550 stated that the Bedfordshire cases established that decisions by local authorities whether or not to take a child into care were not reviewable by way of a claim in negligence. We consider that the effect of Barrett’s case and the other decisions that we have considered above is to restrict the effect of the Bedfordshire cases to that core proposition.”

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:

“81.

Thus litigation involving factual enquiries of the nature considered above is now a potential consequence of the conduct of those involved in taking decisions in child abuse cases. In these circumstances the reasons of policy that led the House of Lords to hold that no duty of care towards a child arises, in so far as those reasons have not already been discredited by the subsequent decisions of the House of Lords, will largely cease to apply. Substantial damages will be available on proof of individual shortcomings, which will be relevant alike to a claim based on breach of section 6 of the Human Rights Act and a claim based on breach of a common law duty of care.

82.

Can there, in these circumstances, be any justification for preserving a rule that no duty of care is owed in negligence because it is not fair, just and reasonable to impose such a duty? It is true that a claim under the Human Rights Act will only lie against public authorities and not against the individuals employed by them. But the reality is that claims in negligence are brought primarily to establish liability on the part of the local authorities and individuals are unlikely to be personally at risk. In so far as the risk of legal proceedings will inhibit individuals from boldly taking what they believe to be the right course of action in the delicate situation of a case where child abuse is suspected, we think that this factor will henceforth be present, whether the anticipated litigation is founded on the Human Rights Act or on the common law duty of care.

83.

In so far as the position of a child is concerned, we have reached the firm conclusion that the decision in Bedfordshire cannot survive the Human Rights Act. [Emphasis added] Where child abuse is suspected the interests of the child are paramount - see S.1 Children Act 1989. Given the obligation of the local authority to respect a child’s Convention rights, the recognition of a duty of care to the child on the part of those involved should not have a significantly adverse effect on the manner in which they perform their duties. In the context of suspected child abuse, breach of a duty of care in negligence will frequently also amount to a violation of Article 3 or Article 8. The difference, of course, is that those asserting that wrongful acts or omissions occurred before October 2000 will have no claim under the Human Rights Act. This cannot, however, constitute a valid reason of policy for preserving a limitation of the common law duty of care which is not otherwise justified. On the contrary, the absence of an alternative remedy for children who were victims of abuse before October 2000 militates in favour of the recognition of a common law duty of care once the public policy reasons against this have lost their force.”

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:

“88.

The general reluctance of Scots law, as well as English law, to impose affirmative duties to protect others is sometimes criticised on the basis that the distinction between acts and omissions is meaningless: the argument is sometimes illustrated by asking whether a negligent driver's fault arises from his act of driving or from his omission to keep a proper look-out or to apply the brakes. That argument was answered by Lord Hoffmann in Stovin v Wise [1996] AC 923 at page 945:

“Of course it is true that the conditions necessary to bring about an event always consist of a combination of acts and omissions ... But this does not mean that the distinction between acts and omissions is meaningless or illogical. One must have regard to the purpose of the distinction as it is used in the law of negligence, which is to distinguish between regulating the way in which an activity may be conducted and imposing a duty to act upon a person who is not carrying on any relevant activity. To hold the defendant liable for an act, rather than an omission, it is therefore necessary to be able to say, according to common sense principles of causation, that the damage was caused by something which the defendant did.”

[89] A different criticism is that the law's reluctance to impose affirmative duties to protect others has the consequence, illustrated by Lord Keith's example of the person who watches a stranger walk over a cliff, of sanctioning wilful indifference to the safety of others. The law's caution in imposing affirmative duties to protect others reflects however moral and political values embedded in the law and society. One consideration is that it is usually considered worse to do harm than to fail to help: see, for example, the discussion in Honoré, Responsibility and Fault (1999), Chapter 3, "Are Omissions less Culpable?" In addition, the law's general reluctance to impose affirmative duties reflects an aspect of individual liberty: the right (in general) to do as one chooses, provided one does not harm other people. Mill observed in the first chapter of On Liberty:

“To make any one answerable for doing evil to others, is the rule; to make him answerable for not preventing evil is, comparatively speaking, the exception”.

As Gleeson CJ said in the High Court of Australia in Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 C.L.R. 254 at para.28,

“If people were under a legal duty to prevent foreseeable harm to others, the burden imposed would be intolerable.”

These moral and political considerations, together with economic considerations, were drawn together by Lord Hoffmann, in a speech with which Lord Goff and Lord Jauncey of Tullichettle agreed, in Stovin v Wise at pages 943-944:

“There are sound reasons why omissions require different treatment from positive conduct. It is one thing for the law to say that a person who undertakes some activity shall take reasonable care not to cause damage to others. It is another thing for the law to require that a person who is doing nothing in particular shall take steps to prevent another from suffering harm from the acts of third parties (like Mrs Wise) or natural causes. One can put the matter in political, moral or economic terms. In political terms it is less of an invasion of an individual's freedom for the law to require him to consider the safety of others in his actions than to impose upon him a duty to rescue or protect. A moral version of this point may be called the 'why pick on me?' argument. A duty to prevent harm to others or to render assistance to a person in danger or distress may apply to a large and indeterminate class of people who happen to be able to do something. Why should one be held liable rather than another? In economic terms, the efficient allocation of resources usually requires an activity should bear its own costs. If it benefits from being able to impose some of its costs on other people (what economists call 'externalities,') the market is distorted because the activity appears cheaper than it really is. So liability to pay compensation for loss caused by negligent conduct acts as a deterrent against increasing the cost of the activity to the community and reduces externalities. But there is no similar justification for requiring a person who is not doing anything to spend money on behalf of someone else.”

Accordingly the "neighbour" principle, as stated by Lord Atkin in Donoghue v Stevenson (at page 44), is concerned with an act which affects another person, rather than an omission to prevent harm to such a person:

“The rule that you are to love your neighbour becomes in law, you must not injure your neighbour.”

Referring to Lord Atkin's speech, Brennan J observed in Sutherland Shire Council v Heyman (1985) 157 C.L.R. 424 at page 478:

“The judgment of Lord Esher MR in Le Lievre v Gould [1893] 1 Q.B. 491 which Lord Atkin cites makes it clear that the general principle expresses a duty to take reasonable care to avoid doing what might cause injury to another, not a duty to act to prevent injury being done to another by that other, by a third party, or by circumstances for which nobody is responsible.””

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:

“The mechanism of foreseeability is ultimately an unsatisfactory touchstone of a duty of care in this area.”

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:

“[97] The list of examples given by Lord Goff in Smith v Littlewoods was not intended to be exhaustive, and I do not doubt that the list is capable of extension. At the risk of making rather a sweeping generalisation, however, it can I think be seen that all the examples of primary (as opposed to vicarious) liability involve situations where it is readily understandable that the law should regard the defender as being under a responsibility to take care to protect the pursuer from the risk of deliberate injury by a third party. The responsibility does not arise merely from the foreseeability of such injury. Leaving aside responsibilities arising from the occupation of land, the situations listed by Lord Goff in which primary liability has been imposed upon a party for the consequences of a third party's deliberate wrongdoing involved the undertaking by the defender of an activity which created a foreseeable risk of injury by a third party whom the defender had a responsibility to control (as in Dorset Yacht), or the negligent creation by the defender of a source of danger with which third parties might foreseeably interfere, and which the defender therefore had a responsibility to protect from such interference (as in Haynes v Harwood), or reliance by the pursuer on an express or implied undertaking by the defender to protect the pursuer from the risk of injury by a third party (as in Stansbie v Troman). The imposition of liability in those situations is consistent with the general treatment of acts and omissions as explained by Lord Hoffmann in Stovin v Wise at page 944. A duty of care is "owed by a person who undertakes a positive activity which carries the risk of causing damage to others"; and, in addition,

“There may be a duty to act if one has undertaken to do so or induced a person to rely upon one doing so. Or the ownership or occupation of land may give rise to a duty to take positive steps for the benefit of those who come upon the land and sometimes for the benefit of neighbours”.

Similarly in Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057 his Lordship said, at para.17:

“Reasonable foreseeability of physical injury is the standard criterion for determining the duty of care owed by people who undertake an activity which carries a risk of injury to others. But it is insufficient to justify the imposition of liability upon someone who simply does nothing: who neither creates the risk nor undertakes to do anything to avert it.”

Dorset Yacht and Haynes v Harwood are examples of cases where the defender acted in such a way as to create a risk of injury to others: in other words, they are not, on analysis, "omission" cases at all, but cases where the defender undertook a positive activity which carried the risk of causing damage to others. As Lord Hoffmann observed, in relation to Dorset Yacht, in Stovin v Wise at page 948:

“All members of the House plainly did not regard the case as one in which the alleged breach of duty was merely an omission to use a statutory power. The negligence was caused by something which the Borstal officers did, namely to use their statutory powers of custody to bring the trainees onto the island, where they constituted a foreseeable risk to boat owners, and then take no care to prevent them escaping in the night.””

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:

“20.

Lord Reed examined this issue with great care, and concluded that Lord Goff's analysis of the problem that arises in cases where harm is caused by a third party's wrongdoing is to be preferred: 2008 SC 351, para 94. The scope of the duty in cases where the risk has been created by the defender, such as Attorney General of the British Virgin Islands v Hartwell [2004] 1 WLR 1273, may be capable of being determined by assessing the degree of likelihood of injury. But I agree with Lord Reed that Lord Goff's approach is the one that should be applied to the problem raised by this case. We are dealing here with an allegation that it was the defenders' duty to prevent the risk of harm being caused to the deceased by the criminal act of a third party which they did not create and had not undertaken to avert. The point at issue is whether the defenders were under a duty in that situation to warn the deceased that there was a risk that Drummond would resort to violence. I agree that cases of this kind which arise from another's deliberate wrongdoing cannot be founded simply upon the degree of foreseeability. If the defender is to be held responsible in such circumstances it must be because, as Lord Reed suggests in para 97, the situation is one where it is readily understandable that the law should regard the defender as under a responsibility to take care to protect the pursuer from that risk.”

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:

“22.

… that the concepts of proximity and fairness amount in effect to little more than convenient labels to attach to the features of different specific situations which, on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise to a duty of care of a given scope. He said that the law had moved in the direction of attaching greater significance to the more traditional categorisation of distinct and recognisable situations as guides to the existence, the scope and the limits of the various duties of care which the law imposes. These are cases where, as Lord Reed suggested in para 97, the imposition of a duty of care is readily understandable.”

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

“25.

…It is really no more than an expression of the idea that lies at the heart of every judgment about legal policy. If liability is to attach, it should be in situations where this is readily understandable because, looking at both sides of the argument, it is fair and reasonable that there should be liability. Smith v Chief Constable of Sussex Police, which is reported together with Van Colle v Chief Constable of the Hertfordshire Police [2008] 3 WLR 593, provides a recent example of its application in a case of personal injury. It was adopted without criticism by Lord Mackay of Clashfern when he spoke for the House in British Telecommunications plc v James Thomson & Sons (Engineers) Ltd 1999 SC (HL) 9, 12. It was applied by Lord Brodie in West v Castlehill LLP [2008] CSOH 182, para 23 in a situation where he would not have regarded an analysis based simply on foreseeability to be adequate.”

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:

“28.

These problems suggest that to impose a duty to warn, together with the risk that action would be taken against them by anybody who suffered loss, injury or damage if they had received no warning, would deter social landlords from intervening to reduce the incidence of anti-social behaviour. The progress of events in this case shows that the defenders were doing their best to persuade Drummond to stop abusing his neighbours. These attempts might have worked, as no doubt they have done in other cases. Far better that attempts should be made to cure these problems than leave them unsolved or to be dealt with, inevitably after the event, by the police. As in the case of the police, it is desirable too that social landlords, social workers and others who seek to address the many behavioural problems that arise in local authority housing estates and elsewhere, often in very difficult circumstances, should be safeguarded from legal proceedings arising from an alleged failure to warn those who might be at risk of a criminal attack in response to their activities. Such proceedings, whether meritorious or otherwise, would involve them in a great deal of time, trouble and expense which would be more usefully devoted to their primary functions in their respective capacities: see Lord Brown of Eaton-under-Heywood's observations in Van Colle v Chief Constable of the Hertfordshire Police [2008] 3 WLR 593, para 133.”

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

“…where the person who is said to be under that duty has by his words or conduct assumed responsibility for the safety of the person who is at risk.” (paragraph 29)

That observation, and Lord Hope’s conclusion that there had been no assumption of responsibility in that case, must be considered with the factual context in mind. It was agreed that the council knew of Drummond’s anti-social behaviour, of his earlier threats, and that the council had been actively engaged in attempting to modify his behaviour and in considering removing him. Despite that, there was no assumption of responsibility and no common law duty of care.

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

“… a local authority is not normally liable for errors of judgment in the exercise of the discretionary powers under a statute” (paragraph 7).

It does not appear that the Court of Appeal decision in D v East Berkshire was substantively addressed in argument.

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:

“77.

… The advent of secure public sector tenancies has meant that social landlords have had to be given powers to deal with anti-social behaviour by their tenants. It is in everyone's interests that those powers should be properly and responsibly used. But equally there are difficult choices to be made, given that social landlords cannot pick and choose their tenants with quite the freedom that private landlords can. So no-one now argues that there is a duty to use their powers in a particular way. If they do take action, it may be good practice to keep other tenants or even neighbours informed of the steps being taken, but landlords will also be concerned about the privacy interests of all concerned. They certainly should not be deterred from the responsible use of their powers by the threat of liability for the harm caused by the criminal acts of those anti-social tenants. Their anti-social tenants are presumed to be grown-ups with minds of their own who can make their own choices about how to behave. The liability is theirs and the fact that they may have no means to pay is not by itself a good enough reason to transfer the liability to someone else.”

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:

“84.

…But realistically, if the police owed no duty of care in the circumstances arising there, it would be highly surprising if the pursuers owed a duty of care in the circumstances of the present case. Not least, it would be odd indeed if the pursuers were liable in law for not warning the deceased whereas, had the police been told of all the facts and nevertheless failed to protect the deceased, they (the body principally charged with the protection of the public) would have been under no such liability.”

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 core principle [in the case of Hill] should be recalibrated to meet the evolving needs of the common law in light of developing case law and the domestic approach to rights under the Convention for the Protection of Human Rights and Fundamental Freedoms: see D v East Berkshire Community NHS Trust [2004] QB 558.”

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:

“It is simply unnecessary to develop the common law to provide a parallel cause of action to those provided for under the Human Rights Act 1998.” (p. 1740C)

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:

“44 An “immunity” is generally understood to be an exemption based on a defendant’s status from a liability imposed by the law on others, as in the case of sovereign immunity. Lord Keith’s use of the phrase was, with hindsight, not only unnecessary but unfortunate. It gave rise to misunderstanding, not least at Strasbourg. In Osman v United Kingdom (1998) 29 EHRR 245 the Strasbourg court held that the exclusion of liability in negligence in a case concerning acts or omissions of the police in the investigation and prevention of crime amounted to a restriction on access to the court in violation of article 6. This perception caused consternation to English lawyers. In Z v United Kingdom (2001) 34 EHRR 97 the Grand Chamber accepted that its reasoning on this issue in the Osman case 29 EHRR 245 was based on a misunderstanding of the law of negligence; and it acknowledged that it is not incompatible with article 6 for a court to determine on a summary application that a duty of care under the substantive law of negligence does not arise on an assumed state of facts.”

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:

“113.

… it is a feature of our system of government that many areas of life are subject to forms of 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 (or sometimes from natural disasters). Licensing of firearms, regulation of financial services, inspections of restaurants, factories and children’s nurseries, and enforcement of building regulations are random examples. To compile a comprehensive list would be virtually impossible, because the systems designed to protect the public from harm of one kind or another are so extensive.

114.

It does not follow from the setting up of a protective system from public resources that if it fails to achieve its purpose, through organisational defects or fault on the part of an individual, the public at large should bear the additional burden of compensating a victim for harm caused by the actions of a third party for whose behaviour the state is not responsible. To impose such a burden would be contrary to the ordinary principles of the common law.

115.

The refusal of the courts to impose a private law duty on the police to exercise reasonable care to safeguard victims or potential victims of crime, except in cases where there has been a representation and reliance, does not involve giving special treatment to the police. It is consistent with the way in which the common law has been applied to other authorities vested with powers or duties as a matter of public law for the protection of the public. Examples at the highest level include Yuen Kun Yeu v Attorney General of Hong Kong [1988] AC 175 and Davis v Radcliffe [1990] 1 WLR 821 (no duty of care owed by financial regulators towards investors), Murphy v Brentwood District Council [1991] 1 AC 398 (no duty of care owed to the owner of a house with defective foundations by the local authority which passed the plans), Stovin v Wise [1996] AC 923 and Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057 (no duty of care owed by a highway authority to take action to prevent accidents from known hazards).

116.

The question is therefore not whether the police should have a special immunity, but whether an exception should be made to the ordinary application of common law principles which would cover the facts of the present case.”

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:

“125.

The circumstances of the present case are different. The suggested development of the law of negligence is not necessary to comply with articles 2 and 3. On orthodox common law principles I cannot see a legal basis for fashioning a duty of care limited in scope to that of articles 2 and 3, or for gold plating the claimant’s Convention rights by providing compensation on a different basis from the claim under the Human Rights Act 1998. Nor do I see a principled legal basis for introducing a wider duty in negligence than would arise either under orthodox common law principles or under the Convention.

126.

The same argument, that the common law should be developed in harmony with the obligations of public bodies including the police under the Human Rights Act 1998 and articles 2 and 3 of the Convention, was advanced in the Smith case [2009] AC 225 as a ground for holding that the police owed a duty of care to the deceased after he reported receiving threats. Reliance was similarly placed on the approach of the Court of Appeal in D v East Berkshire Community NHS Trust [2004] QB 558 (as noted by Lord Phillips MR, who had delivered the judgment of the Court of Appeal in that case). Counsel for Mr Smith relied particularly on the analysis of the effect of the Human Rights Act 1998 in D v East Berkshire Community NHS Trust, at paras 55–87: see the reported argument [2009] AC 225, 240. The argument by analogy with that case which presently commends itself to Baroness Hale DPSC is therefore not a new argument, but one which failed to persuade the majority in the Smith case.

127.

The argument was rejected by the House of Lords for reasons given by Lord Hope (paras 81–82), Lord Phillips (paras 98–99) and most fully by Lord Brown: paras 136–139. Lord Brown did not consider that the possibility of a Human Rights Act claim was a good reason for creating a parallel common law claim, still less for creating a wider duty of care. He observed that Convention claims had different objectives from civil actions, as Lord Bingham pointed out in R (Greenfield) v Secretary of State for the Home Department [2005] 1 WLR 673. Whereas civil actions are designed essentially to compensate claimants for losses, Convention claims are 1767intended to uphold minimum human rights standards and to vindicate those rights. The difference in purpose has led to different time limits and different approaches to damages and causation. Lord Brown recognised that the violation of a fundamental right is a very serious thing, but he saw no sound reason for matching the Convention claim with a common law claim. To do so would in his view neither add to the vindication of the right, nor be likely to deter the police from the action or inaction which risked violating it in the first place.

128.

It is unnecessary for the purposes of this appeal to decide questions about the scope of article 3 and I would not wish to influence the Court of Appeal’s consideration of the judgment in DSD v Comr of Police of the Metropolis [2014] EWHC 436 (QB). It does not alter the essence of the argument which was considered and rejected by the House of Lords in the Smith case [2009] AC 225. I am not persuaded that it would be right for the court to depart from that decision, which itself was consistent with a line of previous authorities.”

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:

“130.

More generally, I would reject the narrower liability principle advocated by the claimants for the same reasons as the broader liability principle advocated by the interveners. If it is thought that there should be public compensation for victims of certain types of crime, above that which is provided under the criminal injuries compensation scheme, in cases of pure omission by the police to perform their duty for the prevention of violence, it should be for Parliament to determine whether there should be such a scheme and, if so, what should be its scope as to the types of crime, types of loss and any financial limits. By introducing the Human Rights Act 1998 a cause of action has been created in the limited circumstances where the police have acted in breach of articles 2 and 3 (or article 8). There are good reasons why the positive obligations of the state under those articles are limited. The creation of such a statutory cause of action does not itself provide a sufficient reason for the common law to duplicate or extend it.”

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 law’s caution in imposing affirmative duties to protect others reflects … moral and political values embedded in law and society.”

I accept also that society places a high emphasis on protecting vulnerable people, particularly vulnerable children. However, the essence of the common law answer to this problem is that it is not effective, or just, to do so by singling out one agency of the State for tortious liability as against the others, particularly in a crude “sectoral” manner.

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:

“6.3

…By September 2006 no competent local authority would have failed to carry out a detailed assessment and on the balance of probabilities such detailed assessment if carried out competently would and should have led to the conclusion that each of the Claimants required removal from home if the family as a whole could not be moved. With the information obtained by competent assessment in September 2006 on application to the Court the Defendant would have obtained at least respite care and if necessary by interim care orders in respect of each Claimant. Any competent local authority should and would have arranged for their removal from home into at least temporary care.”

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:

“(2)

A court may only make a care order or supervision order if it is satisfied-

(a)

that the child concerned is suffering, or likely to suffer, significant harm; and

(b)

that harm, or likelihood of harm, is attributable to-

(i)

the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him.”

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.