12 June 2019 | Comment | Article by Alan Collins
That is the question that we examine in this week's episode of the HJ Talks: About Abuse podcast. It is also the question that the Supreme Court has attempted to answer in the case of Poole Borough Council v GN  UKSC 25.
That is the question that the Supreme Court has attempted to answer in the case of Poole Borough Council v GN  UKSC 25.The two children who were the claimants in this case sought damages for the harm they suffered whilst living in a house provided by the Poole Borough Council (“the Council”). They were subjected to persistent anti-social behaviour on the part of a neighbouring family. It was several years before the Council rehoused the children and their parents, but in the meantime, they had suffered physical and psychiatric harm. They sought compensation from the Council.
The Council defended the case even though it knew that the children were in need, had social workers allocated to them, and knew of the harassment and abuse.
The Claimants’ case was that the Council had negligently failed to exercise its powers under the Children Act 1989 so as to protect them from harm.
The Supreme Court has ruled that local authorities do not owe a duty of care at common law merely because they have statutory duties to protect a child from harm. Nevertheless, they can come under a common law duty to protect a child where for example the authority has created the source of danger or assumed a responsibility to protect him or her from harm.
In this particular case, the Supreme Court held that the Council was not liable because it had not taken the children into its care, and assumed responsibility for their care, or had accepted any responsibility for their safety.
A local authority can be vicariously liable for its social workers but there will only be liability if there has been an assumption of responsibility to perform a function with reasonable care. Such a responsibility may exist where a particular task is to be undertaken which will have to be performed with reasonable care.
What does this mean in practice?
Merely because a child at risk of harm comes across social service’s radar does not make the local authority liable if he/she is later harmed.
If however social services having recognized that the child is at risk of harm, and for example places him/her on the at risk register, but the through a failure to adequately monitor his welfare, and suffers abuse as a result then the local authority could then be liable in negligence.
There is the argument that, perhaps, the judgment is too conservative given that Parliament has decreed in the Children’s Act 1989, and other legislation, what social services must do when it comes to the welfare of children? Surely it follows that if social services do not fulfil these statutory obligations they should be liable for the harm suffered regardless of whether what actions it took, if any, were reasonable or not?
Child abuse cases are invariably tragic, and the legal issues can be complex. This case demonstrates how fact specific they are when the courts are examining the issues of whether there was a duty of care, and if so whether it was breached.
These cases have pushed the legal boundaries of negligence and it is likely in years to come the Supreme Court will be asked to examine and rule on the question when are social services liable for the abuse of children?