DFX & Ors v Coventry City Council

A local authority does not generally owe a common-law duty of care to protect children from harm inflicted by third parties merely because it exercises statutory child-welfare powers. An omission remains a failure to confer a benefit, even where the authority could have commenced care proceedings or undertaken investigations. A duty may nevertheless arise if the authority’s statutory function, or its conduct in the particular case, involves an assumption of responsibility supported by something more, such as reasonably foreseeable reliance. On the facts, the authority had not assumed responsibility for the claimants’ safety. Its risk assessments and decisions also fell within the reasonable range of professional judgment. The negligence and Article 3 claims therefore failed.

Four siblings brought claims against Coventry City Council arising from alleged abuse and neglect in their family home before their removal into care in 2010. They alleged negligence by social workers and breach of Article 3 of the European Convention on Human Rights. The negligence case contended that the Council had assumed responsibility for protecting them through risk assessments, direct work and decisions concerning care proceedings under the Children Act 1989.

The principal questions were whether a private law duty of care arose, whether the Council’s decisions in 2002 or 2003–04 were negligent, and whether earlier care proceedings would probably have resulted in the claimants’ removal. The Article 8 claim was withdrawn. The court also considered whether the operational failures alleged for Article 3 were established.

1. Duty of care. The claims were omissions claims. The alleged injuries were inflicted by third parties, not by any positive act of the Council. The relevant question was therefore whether the Council had assumed responsibility to protect the claimants, rather than whether it had caused harm directly.
2. The operation of a statutory scheme does not itself generate a common-law duty of care. However, the fact that a function can only lawfully be exercised under statute does not make a duty impossible. The court must ask whether there is “something more”: either something intrinsic to the statutory function or something in the authority’s conduct towards the claimant which gives rise to an assumption of responsibility and reasonably foreseeable reliance.
3. No such assumption arose. The Reaside report was obtained to assist the Council’s statutory assessment of risk, not as a service on which the claimants could reasonably be expected to rely. The 2002 recommendation that care proceedings be commenced to share parental responsibility was not, in the circumstances, a positive act or undertaking on which a duty of care could be founded. The claim therefore fell within the principle that a public authority is not liable merely for operating a statutory scheme.
4. Breach. Even if a duty had existed, the decisions were judged by the Bolam standard. The decision whether to commence proceedings in 2002 was not clear-cut. The Council’s assessment of the competing risks, parental co-operation, statutory criteria and legislative guidance fell within the reasonable range of social-worker opinion. The later disclosure concerning AD and the 2003 allegation of physical abuse did not materially alter that assessment.
5. Causation and human rights. The court rejected the submission that earlier proceedings would probably have resulted in removal. The family circumstances and evidence available in 2009 were materially different from those in 2002–04, and the court could not infer that earlier expert evidence would have reached the later conclusions. The operational failures alleged under Article 3 mirrored the negligence allegations and therefore also failed.
6. The claim was dismissed. Findings on limitation and the alleged real and immediate risk under Article 3 were unnecessary.

First-instance decision. No earlier decision under appeal was stated.