Poole BC v GN [2019] UKSC 25

Two vulnerable children suffered years of harassment from neighbours after being housed next to a persistently anti-social family. They sued the local authority for failing to protect them under its Children Act functions. The Supreme Court held no common law duty of care arose on the pleaded facts.

Facts

The appellants, anonymised as Colin and Graham, were children living with their mother, Amy, in Poole. Colin, then aged nine, was severely mentally and physically disabled and required constant care. In May 2006 the respondent local authority placed the family in a house on an estate adjacent to a neighbouring family known to the council for persistent anti-social behaviour.

The council adapted the property to meet Colin’s needs and provided him with a care package via its child health and disability team and an allocated social worker. His needs were assessed and kept under review.

Following an early incident involving the neighbours’ children damaging Amy’s car, Amy complained and the police issued a warning to the neighbouring family. Thereafter, the neighbours subjected Amy and the children to prolonged harassment and abuse over several years, including vandalism, attacks on the home, threats of violence, verbal abuse, and physical assaults on Amy and Graham. These incidents were reported to the council.

The authorities took various measures against the neighbours (including eviction, injunctions, contempt proceedings, anti-social behaviour orders and imprisonment), but the abuse continued. Amy repeatedly sought assistance and rehousing from the council and other agencies. Her complaints reached councillors and MPs and attracted media attention. An independent report commissioned by the Home Office was critical of the police and the council’s failure to use anti-social behaviour powers adequately.

Graham developed serious psychological difficulties. In 2008 he expressed suicidal ideas and, in 2009 aged ten, ran away leaving a suicide note. He received psychotherapy from the health authority. Social workers carried out assessments under the Children Act 1989. Graham was assessed as a child in need and later became subject to a child protection plan. The council itself accepted that some of its earlier assessments of Graham’s needs were flawed.

Eventually the council decided that the family should be rehoused away from the estate and, after adaptations to a new property, they moved in December 2011. It is alleged that the prolonged abuse and harassment between 2006 and 2011 caused the children physical and psychological harm.

Procedural History

An initial claim issued in 2012 was struck out. A fresh claim form was issued in December 2014 by Amy and the children, with the council as sole defendant. The particulars of claim pleaded two main bases:

• a duty arising from the council’s housing functions to protect the family from abuse by rehousing them; and
• a duty of care owed to the children in relation to the exercise of social services functions under sections 17 and 47 of the Children Act 1989.

In April 2015 the council applied to strike out the claim. Master Eastman struck out the whole claim on 2 October 2015, holding inter alia (relying on X (Minors) v Bedfordshire County Council) that no duty of care arose out of the 1989 Act functions.

The claimants appealed in respect of the second limb (social services). On 16 February 2016 Slade J allowed the appeal and held there was no absolute bar to a negligence claim by a child against a local authority for failure to safeguard against abuse. She granted permission to amend the particulars of claim.

The amended particulars (March 2016) alleged:

• a common law duty of care owed by the council in relation to its functions under sections 17 and 47 of the 1989 Act; and
• duties owed by named social workers, managers and staff, for whose negligence the council was said to be vicariously liable.

The claimants expressly relied on the statutory “backdrop” of the council’s duty to safeguard and promote children’s welfare under sections 17 and 47 as giving rise to a common law duty.

As to direct liability, it was pleaded that from July 2006 the council knew of a foreseeable risk of harm to the claimants, accepted responsibility for their “particular difficulties” by investigating the neighbours’ behaviour, and thereby came under a duty to investigate and protect them. As to vicarious liability, it was alleged that allocated social workers and managers owed duties to protect the children from physical and psychiatric damage, to monitor their welfare, arrange treatment, ascertain their views and risks, and, if necessary, to remove them from risk by exercising the council’s discretion to remove them to safe accommodation.

On breach, the pleadings asserted that the council:

“failed to assess the ability of the claimants’ mother to protect her children from the level of abuse and violence they were subjected to”

and thereby failed to remove the children from home, contending:

“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. 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 (sic) 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 council appealed. On 21 December 2017 the Court of Appeal allowed the appeal and reinstated the strike-out. Irwin LJ, with whom Davis and King LJJ agreed, held that no duty of care arose. He emphasised (i) policy concerns about defensive decision-making identified in X (Minors) v Bedfordshire and Hill v Chief Constable of West Yorkshire; and (ii) the general principle, reflected in Mitchell v Glasgow City Council and Michael v Chief Constable of South Wales, that there is no liability for the wrongdoing of third parties absent recognised exceptions. He concluded that none of the recognised exceptions applied, and that the Court of Appeal’s decision in D v East Berkshire had effectively been overtaken by later Supreme Court authority.

King LJ added that the pleadings misunderstood the statutory basis upon which children could be removed from their mother under interim care orders, and that it was highly unlikely the statutory threshold could have been met on the pleaded facts. Davis LJ described the proposed use of care proceedings to remove the children from a loving and capable mother simply to address neighbour harassment as tantamount to an abuse of process, stating:

“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. … 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.”

The children appealed to the Supreme Court.

Issues

Primary legal questions

• Whether, and in what circumstances, a local authority or its employees may owe a common law duty of care to children in respect of the manner in which it exercises, or fails to exercise, its social services functions under the Children Act 1989.
• Whether, on the facts pleaded, the council or its social workers owed the appellants a duty of care to protect them from harm inflicted by third parties (their neighbours), based on an alleged assumption of responsibility or “special relationship”.
• Whether the pleadings disclosed a tenable claim that a competent local authority would, and lawfully could, have obtained care orders or interim care orders to remove the children from their mother.

Statutory context

The proceedings focused on sections 17 and 47 of the Children Act 1989.

Section 17 imposes on every local authority a general duty:

“(a) to safeguard and promote the welfare of children within their area who are in need; and (b) so far as is consistent with that duty, to promote the upbringing of such children by their families, by providing a range and level of services appropriate to those children’s needs”.

“Child in need” is defined in section 17(10) to include a disabled child. Colin was such a child; Graham was assessed as a child in need in 2010. The section 17 duty is “general” and, as interpreted in R (G) v Barnet LBC, not a duty to meet the needs of any particular child but to provide an appropriate range and level of services.

Section 47(1) imposes a duty on the authority, where there is “reasonable cause to suspect that a child … in their area is suffering, or is likely to suffer, significant harm”, to make necessary enquiries to decide whether to take action to safeguard or promote the child’s welfare. Section 47(3) expressly refers to considering whether to apply to court or exercise other powers.

Care and interim care orders under sections 31 and 38 require satisfaction of threshold criteria in section 31(2), including that the child is suffering, or likely to suffer, significant harm attributable to a lack of reasonable parental care. Even where threshold is met, the court must separately determine at the welfare stage whether removal is necessary and proportionate.

Judgment

Lord Reed delivered the leading judgment, with which Lady Hale, Lord Wilson, Lord Hodge and Lady Black agreed.

Applicable principles on public authority negligence

The court surveyed the development of the law on public authority liability in negligence, emphasising the modern framework set out in Stovin v Wise, Gorringe v Calderdale, Michael, and Robinson v Chief Constable of West Yorkshire Police. Key points included:

• Public authorities are, in general, subject to the same principles of the law of negligence as private individuals, save where modified by statute.
• A fundamental distinction exists between (a) causing harm to a claimant (making things worse) and (b) failing to confer a benefit, such as failing to protect against harm caused by third parties (not making things better).
• There is ordinarily no liability in negligence for pure omissions or for harm caused by third parties, unless recognised exceptions apply, such as where the defendant creates the source of danger, exercises a special level of control over it, or assumes responsibility to protect the claimant.
• A statutory duty or power does not, without more, create a concurrent common law duty of care, particularly where the statute does not confer a private right of action.

The court clarified that the broad policy-based bar in X (Minors) v Bedfordshire County Council is no longer sustainable. Lord Reed stated that Bedfordshire can no longer be regarded as good law insofar as it ruled out on public policy grounds the possibility that local authorities or their staff might owe duties of care to children in the performance of functions under the 1989 Act, or insofar as it treated liability for inflicting harm on a child as dependent on an assumption of responsibility. Whether a duty exists must instead be determined by applying general negligence principles, as articulated in Robinson.

He summarised the current position:

• Public authorities may owe a duty of care where the principles applicable to private persons would impose such a duty, unless inconsistent with the relevant statutory scheme.
• They do not owe a duty of care merely by virtue of having statutory powers or duties, even where the exercise of such functions could prevent harm.
• They can come under a duty to protect against harm where, under ordinary principles, such a duty arises (for example, by creating danger or assuming responsibility), again subject to statutory consistency.

Assumption of responsibility

The court examined the concept of assumption of responsibility, tracing its origins in Hedley Byrne and subsequent authorities. An assumption of responsibility typically arises where a defendant undertakes to provide information, advice or services to a claimant, in circumstances where it is reasonably foreseeable the claimant will rely on the exercise of reasonable care, and the defendant thereby implicitly or explicitly undertakes such care.

Examples include doctors treating patients, solicitors advising clients, educational psychologists advising parents about a child’s needs, and local authorities taking children into care, thereby assuming responsibility for their welfare (as in Barrett v Enfield and Phelps v Hillingdon).

Lord Reed confirmed that conduct undertaken pursuant to statutory schemes can generate an assumption of responsibility where the factual criteria are met, but the mere operation of a statutory scheme does not automatically do so.

Application to this case: direct duty of care

The claim was characterised as one where the council allegedly failed to protect the children from harm inflicted by third parties (their neighbours). This was therefore a “failure to confer a benefit” case, not one where the council caused harm by positive acts.

The claimants did not rely on the council having created the danger through its housing functions; indeed, they brought no housing-based claim. Nor did they argue that the council had control over the neighbours. The case instead turned on whether the council assumed responsibility to protect the children through its social services functions.

The particulars of claim asserted that, by investigating and monitoring the risks from the neighbours, the council:

“accepted a responsibility for the claimants’ particular difficulties and/or there was a special nexus or special relationship between the claimants and the defendant.”

The pleaded basis for this was the allocation of social workers, the conduct of assessments under sections 17 and 47, and participation in meetings about Graham’s behaviour and risks.

Lord Reed held that these allegations did not amount to an arguable assumption of responsibility:

• The council’s investigation and monitoring did not involve offering a service to the claimants on which they or Amy could reasonably be expected to rely, in contrast to hospitals or schools providing core services.
• It might be foreseeable that Amy would be anxious for protective action or rehousing, but anxiety is not reliance. There was no suggestion that the family had entrusted their safety to the council or that the council had accepted that responsibility.
• The council had not taken the children into care, and thus had not assumed responsibility for their welfare in the manner recognised in Barrett v Enfield.
• The nature of the statutory functions (assessment, investigation, planning) did not, without more, entail a voluntary undertaking to perform them with a private law duty of care to these particular children.

The court acknowledged that an assumption of responsibility might sometimes be inferred from specific conduct towards a claimant, even where it cannot be inferred from the nature of the statutory function alone. However, the pleadings in this case did not identify any particular conduct, apart from performance of statutory functions, from which an undertaking of responsibility could be inferred. An email from an anti-social behaviour co-ordinator referring to a “duty of care” was insufficient; a duty cannot be created by its mere assertion.

Accordingly, the pleadings did not establish an arguable basis that the council owed a common law duty of care to protect the appellants from their neighbours’ behaviour.

Vicarious liability for social workers’ negligence

The appellants also alleged that social workers and managers personally owed them duties of care, breach of which would render the council vicariously liable. The particulars stated:

“Each of the social workers and/or social work managers and other staff employed by the defendant who was allocated as the social worker or manager for the claimants or tasked with investigating the plight of the claimants owed to the claimants a duty of care.”

The social workers were alleged to have owed wide-ranging duties, including protecting the children from physical and psychiatric damage, monitoring welfare, arranging treatment, ascertaining risks and, if necessary, securing their removal via care proceedings.

Lord Reed accepted that the social workers owed contractual duties of professional care to the council, but held that no separate common law duty to the children arose on the pleadings. Drawing an analogy with educational psychologists in Bedfordshire and Phelps, he noted that those cases involved professional advice to parents which they were foreseeably expected to rely on; their duty of care arose under the Hedley Byrne principle.

By contrast, here there was no allegation that social workers provided advice to Amy on which she was expected to rely, nor any allegation that the children or Amy entrusted the management of their affairs to the social workers in a way that implied a voluntary undertaking to protect them from third-party harm. The pleadings disclosed no factual basis from which an assumption of responsibility by individual social workers could be inferred.

Plausibility of alleged breach: removal into care

The court further held that the alleged breach of duty was, on its face, legally untenable. The appellants’ case was that a competent authority would have arranged for their removal from home into at least temporary care and obtained interim care orders if necessary. King LJ in the Court of Appeal had explained that such orders required meeting the threshold under section 31(2), namely significant harm, or risk of it, attributable to a lack of reasonable parental care, and that on the pleaded facts there was no realistic basis for concluding that threshold could be satisfied or that immediate removal would be justified at the welfare stage.

The Supreme Court agreed: on the pleadings, the harm suffered by the children was attributable to the neighbours’ anti-social conduct, not to Amy’s parenting. There was no suggestion she was an unfit parent; indeed, Davis LJ had observed that:

“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.”

Thus there were no sufficient grounds, on the pleaded facts, for removing the children from their mother under care proceedings. The proposed standard of care (requiring the authority to seek such orders) was therefore unsustainable in law.

Rejection of Court of Appeal’s reasoning but same result

Lord Reed disagreed with aspects of the Court of Appeal’s reasoning. In particular:

• The continued reliance on policy concerns from Bedfordshire and Hill was inconsistent with later case law, which treats such arguments as insufficient in themselves to negate duties of care.
• The conclusion that D v East Berkshire had been impliedly overruled by Michael was incorrect; the latter had rejected a specific argument about aligning tort law with Convention rights, but had not disapproved the core ratio of D v East Berkshire.

Nonetheless, applying the modern framework from Robinson and related authorities, he reached the same outcome: on the pleadings, there was no actionable assumption of responsibility by the council or its employees, the claim related to failure to protect from third-party harm, and the alleged breach (failure to seek care orders) lacked any statutory or factual foundation.

Implications

The decision refines, but does not close, the avenues for negligence claims against local authorities in the child protection context.

Clarification of Bedfordshire and recognition of possible duties

The Supreme Court confirmed that X (Minors) v Bedfordshire is not a blanket authority barring negligence claims against local authorities in child protection. Subsequent authorities such as Barrett v Enfield, Phelps v Hillingdon and D v East Berkshire demonstrate that common law duties of care may arise where:

• a local authority or its staff cause harm by positive acts (e.g. negligently removing a child from the family, or failing to care adequately for a child in care); or
• they assume responsibility to a child or parent for specific services or advice, giving rise to reliance.

This case underscores that such duties must be grounded in recognised common law principles, particularly assumption of responsibility, and not simply inferred from the existence of statutory functions or general safeguarding duties.

Omissions, third-party wrongs and social services

The judgment reinforces the general rule that public authorities are not liable in negligence for failing to prevent harm caused by third parties, absent recognised exceptions. In the social services context:

• Mere receipt of referrals, allocation of social workers, and carrying out assessments under sections 17 and 47 of the Children Act do not, without more, constitute an assumption of responsibility to protect a child from third-party harm.
• An assumption of responsibility may arise where a local authority provides a direct service to a child or family which they foreseeably rely upon (for example, specific professional advice or taking a child into care), but each case turns on its facts and pleadings must clearly articulate the basis for such an undertaking.
• Policy-based arguments about defensive practice are no longer determinative; instead, the focus is on orthodox negligence principles, tempered where necessary by statutory context.

Pleading standards and care proceedings

The case highlights the need for careful pleading in actions alleging failures to initiate care proceedings:

• Claimants must engage with the statutory threshold under sections 31 and 38, including attributing significant harm to inadequate parental care, and must explain why the threshold and welfare tests could realistically have been satisfied on the facts.
• Invoking care proceedings simply as a mechanism to address external risks (such as neighbour harassment) without any criticism of parental care is unlikely to be viable, and may even be characterised as an abuse of the statutory scheme.

Broader significance

The decision sits within, and reinforces, the Robinson/Michael line of authority. It confirms that:

• Local authorities can, in principle, owe duties of care in child protection work, particularly where they take children into care or provide specific professional services on which families rely.
• However, a general statutory duty to safeguard and promote welfare, or to investigate under section 47, does not automatically translate into a private law duty to protect any particular child from third-party harm.
• Future claims must be framed by reference to orthodox negligence categories (positive acts causing harm, assumption of responsibility, creation of danger, control over third parties), with close attention to the statutory framework for child protection and family life.

On the particular facts pleaded, the claimants’ case was held to be legally unsustainable and properly struck out as an abuse of resources to proceed to trial.

Verdict: Appeal dismissed; the strike-out of the claim was upheld on the basis that the particulars of claim disclosed no arguable duty of care owed by the council or its employees.

Source: Poole BC v GN [2019] UKSC 25