Has The Roller Coaster Ride Come To An End – The Future Of Social Services Negligence Claims?

The duty of care owed by Social Workers to children who they seek to protect has been a roller coaster ride over the last few years. Historically, no cause of action in negligence existed, but in 2004 the law changed to allow actions to be brought relatively easily. However, last year we returned to a position where prima facie no duty was apparently owed. Since then, these claims have been in limbo whilst the Supreme Court considers whether they can proceed. We now have the Supreme Court decision, and this article considers what happens next.

The Facts

Between May 2006 and December 2012 CN and GN (the anonymised children) and their mother were placed in housing by the local authority where they were harassed and subjected to anti-social behaviour by neighbours. A claim was brought against the local authority, the Police and Poole Housing (for whom David Knapp acted).

Various allegations were pleaded by the mother and children, in common law and under the HRA. The claim was struck out by a High Court Master. The case was then repleaded and the key part of their case became the assertion that it was negligent of the local authority not to remove the children from the harmful environment. The claim was reinstated by Mrs Justice Slade in March 2015, the decision was appealed to the Court of Appeal by the local authority , seeking to strike the case out again.

What issues did the Court of Appeal face?

Historically, decisions or omissions by local authorities whether to take a child into care (to protect them) were not actionable in negligence.

The 2004 decision in JD v East Berkshire Community Health NHS Trust changed this. The Court decided that the Human Rights Act meant that it was wrong for such children to be prevented from making a claim.

This decision was criticised in various cases, such as the Supreme Court decision in Michael v Chief Constable of South Wales, which held that there was ordinarily no duty on the Police or other emergency services to help members of the public in need. It seemed unfair that in a case where, as here, the claims against the Police and the Housing Partnership were struck out because no general duty in negligence was owed, the claim against social workers could continue. Hence the Court of Appeal decided to bring the responsibilities owed by Social Services professionals in line with other public services. They struck out the claim in negligence by CN and GN, which had alleged they should have been removed...

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