CN & Anor v Poole Borough Council

A local authority does not ordinarily owe a common-law duty to protect a person from criminal or anti-social acts by third parties. Foreseeability, knowledge of vulnerability and administration of a statutory welfare scheme are insufficient. Liability may arise only within recognised exceptions, including control of the wrongdoer, creation of the risk, or an assumption of positive responsibility. The Human Rights Act 1998 did not require a parallel negligence duty in child-protection cases. The Court held that the extension of liability adopted in D v East Berkshire could no longer stand with later authority and should no longer be followed. A complaint about housing arrangements could not be recast as a duty under the Children Act 1989 to remove children from a fit parent because neighbours caused the harm.

CN, a severely disabled child, and GN brought negligence claims against Poole Borough Council. The family had been housed near neighbours who allegedly subjected them to persistent harassment and abuse. The claims were framed as duties arising from the Council’s functions under the Children Act 1989, including investigating risk and seeking the children’s removal from their mother.

Master Eastman struck out the claims. Slade J allowed the children’s appeal and restored them. The Council appealed, arguing that D v East Berkshire was no longer good law after Mitchell and Michael, and that the claim was in substance a complaint about housing and anti-social behaviour. The central issue was whether the pleaded facts disclosed an arguable common-law duty of care.

1. Appeal allowed. The Court allowed the Council’s appeal on both grounds and restored Master Eastman’s order striking out the claims. The pleaded case required no full trial.
2. Applying orthodox negligence principles, a defendant is not ordinarily liable for failing to prevent harm caused by a third party. Foreseeability alone is insufficient. Recognised exceptions include control of the third party, creation of a new risk, and an assumption of positive responsibility to safeguard the claimant. Awareness of vulnerability or administration of a statutory scheme does not itself amount to such an assumption.
3. The policy considerations in X v Bedfordshire remained relevant to the exercise of statutory social-services functions. The reasoning in D v East Berkshire, which treated the Human Rights Act 1998 as removing the previous bar to negligence claims by children, was inconsistent with later higher authority. In particular, Mitchell and Michael rejected the creation of a parallel common-law duty merely because public authorities have Convention obligations. D v East Berkshire fell within the third category identified in Young v Bristol Aeroplane and should no longer be followed. Davis LJ described it as overruled by the later authorities.
4. There was no recognised exception on the pleaded facts. The Council did not create the risk, control the neighbours or assume responsibility for protecting the children from them. The claim was in substance a complaint about the failure of housing authorities to move the family or stop the anti-social behaviour. It was artificially recast as a claim under the Children Act 1989. No duty arose from that recasting.
5. King LJ additionally observed that removal from a non-consenting parent under an interim care order would require reasonable grounds satisfying the threshold in section 31(2), through section 38(2). Satisfaction of the threshold would not itself justify immediate removal. There was no such thing as a respite care order. This additional reasoning reinforced the legal unsustainability of the pleaded remedy.

• Court of Appeal (Civil Division): allowed the Council’s appeal on both grounds and restored the order striking out the claims.
• High Court, Queen’s Bench Division: Slade J allowed the children’s appeal from Master Eastman and restored the negligence claims on 16 March 2016.
• Master Eastman: struck out the claims on 2 October 2015 as disclosing no reasonable cause of action.