N v Poole Borough Council

The Supreme Court considered whether a local authority or its employees can owe a common law duty of care to children in the exercise of social services functions, specifically under the statutory backdrop of the Children Act 1989 (notably sections 17 and 47). The Court held that a local authority will not incur common law liability for negligently failing to protect children from third-party harm unless established common law principles (as clarified in Robinson and related authorities) are satisfied and the statutory scheme does not exclude such a duty.

The appeal was dismissed because the particulars of claim failed to plead facts capable of establishing (i) an assumption of responsibility by the council or its social workers towards the claimants, (ii) any other special circumstances that would justify imposing a duty to protect against third-party wrongdoing, or (iii) a sustainable basis for contending that the children should have been removed from their mother under the threshold for care orders in section 31(2) of the Children Act 1989.

Background and facts:

• The claimants (anonymised) were children placed by the council in housing adjacent to a family known to engage in persistent anti-social behaviour. Between May 2006 and December 2011 the claimants and their mother suffered harassment, assault and vandalism reported to the council. One claimant was severely disabled and had an allocated social worker; the other displayed self-harming behaviour and later became subject to a child protection plan. The family were rehoused in December 2011.

Procedural history:

• A claim was issued (following an earlier struck-out claim). The particulars advanced two limbs: negligence in housing functions (rehousing) and negligence in social services functions under sections 17 and 47 of the Children Act 1989. Master Eastman struck out the claim (2 October 2015). Slade J allowed an appeal and permitted amended particulars ([2016] EWHC 569 (QB)). The Court of Appeal allowed the council's appeal ([2017] EWCA Civ 2185). The claimants appealed to the Supreme Court.

Nature of relief sought: The claimants sought damages for physical and psychiatric injury suffered as children due to the council's alleged negligent failure to protect them.

Issues before the Supreme Court:

• Whether a local authority or its employees may owe a common law duty of care to children affected by the exercise or failure to exercise social services functions, and if so in what circumstances;
• Whether the particulars of claim in this case pleaded facts capable of establishing such a duty (by assumption of responsibility or other recognised basis);
• Whether, on the pleaded facts, it was arguable that competent investigation would have led to removal of the children from their mother under the Children Act 1989.

Court’s reasoning and conclusions:

• The Court reviewed governing negligence authorities (including X (Minors) v Bedfordshire, Barrett v Enfield, Phelps v Hillingdon, D v East Berkshire, Mitchell, Michael and Robinson) and reiterated the framework from Robinson: public authorities are subject to ordinary negligence principles unless inconsistent with statutory scheme; duties to protect against third-party wrongdoing arise only in special circumstances (for example, assumption of responsibility, creation of danger, special control, or status-based obligations).
• The Court held that X (Minors) v Bedfordshire no longer precluded a duty of care to children in all circumstances, but that liability still depends on application of ordinary common law principles and the statutory context.
• The particulars of claim in this case did not plead facts sufficient to raise an arguable assumption of responsibility by the council or its social workers: the council’s investigative and monitoring activity did not constitute a service to which the family reasonably could be said to have entrusted their safety or to have relied on such that an implied undertaking of care arose.
• There was no basis on the pleaded facts for contending that a competent investigation would have justified removing the children from their mother; removal without consent would require satisfying the threshold in section 31(2) (significant harm attributable to parental care) and the particulars did not suggest that could have been made out.
• Accordingly the particulars disclosed no arguable cause of action and the appeal was dismissed.

Appeal dismissed. The Supreme Court held that the particulars of claim did not disclose an arguable common law duty of care by the council or its employees to protect the children from third-party wrongdoing because (1) the pleaded facts did not establish an assumption of responsibility or other special circumstances that would justify imposing such a duty, and (2) the pleaded basis for removal to care was legally unsustainable given the threshold in section 31(2) of the Children Act 1989.

Master Eastman struck out the original claim (2 October 2015). Slade J allowed the claimants' appeal and granted permission to amend ([2016] EWHC 569 (QB)). The Court of Appeal allowed the council's appeal ([2017] EWCA Civ 2185). The claimants' appeal to the Supreme Court was dismissed ([2019] UKSC 25).