Taking care

Should the line be re-drawn when it comes to social services departments' exposure to litigation? asks Peter Wake.

In the three month period prior to September last year it was reported that the number of care applications increased by nearly 50%. This came on the back of a steep rise in the court fees paid by local authorities for care and supervision proceedings. The decision of the previous government to abolish these fees has recently been reversed by the justice minister, Jonathan Djanogly, and the minister’s comments that the continuation of the fees will not put vulnerable children at risk have unsurprisingly attracted some criticism.

It is widely accepted that more court applications means less time and resources spent on early intervention and those services designed to help families achieve a stable environment where children can remain safely in the family home. Following the spending review it is only the schools budget that is ring-fenced and the task for local authorities of funding child protection will be challenging to say the least. In the annual Local Government Workforce Survey carried out by the Local Government Association, 85% of councils reported difficulties in retaining children’s social workers. This figure is comfortably higher than all other areas of employment. The survey also revealed that nearly eight out of ten local authorities have trouble recruiting children’s social workers.

As if children’s services do not have enough to contend with, it is against this difficult backdrop that civil damages claims against social services continue to rise. Such claims take many forms ranging from negligence claims for failure to remove children to claims under the Human Rights Act (by both parents and children) for removing without justification. Regardless of specifics, these claims share some common features including the fact they are document heavy and expensive.

It could be argued that the exposure of social services departments to litigation has gone too far. Just 15 years ago the situation was under much tighter control. In X Minors v Bedfordshire [1995] the House of Lords dismissed claims in negligence by children who alleged the council had failed to protect them from parental abuse. A number of policy considerations were cited as reasons for not imposing a duty of care. Most notably the court said that a common law duty of care would cut across the inter-disciplinary system set up for the protection of children at risk and the task of the local authority in dealing with children at risk is extraordinarily delicate and would be disrupted by the threat of damages claims. It was felt that the threat of liability might lead to local authorities adopting an overly cautious and defensive attitude towards their duties. Furthermore, remedies other than damages are available for maladministration in the statutory system for the protection of children and these were thought to be more appropriate than negligence claims.

With the work of social workers defined to a considerable extent by statute and informed by statutory guidance it seemed that social workers were largely, if not entirely, immune from claims in negligence. This is no longer the case. It begs the question of what happened to alter the legal landscape to such an extent that such claims are now commonplace.

The situation changed with the implementation of the Human Rights Act 1998 (the Act) following which local authorities that unlawfully interfered with family life could be subject to damages claims under Article 8 of the European Convention on Human Rights. In JD v East Berkshire Community NHS Trust [2004] the Court of Appeal ruled that the policy considerations in X Minors could not survive the implementation of the Act. If a local authority was subject to the threat of litigation under the Act this threat was to be felt regardless of whether a common law duty of care was recognised. Accordingly there was no sound basis for continuing to deny a duty of care to children on policy grounds in relation to decisions as to whether or not to take children into care.

We harbour reservations as to the accuracy of the Court of Appeal’s reasoning regarding the impact of the Act on the X Minors decision. Most strikingly, it is not consistent with subsequent decisions, e.g. Smith v The Chief Constable of Sussex [2008], a claim struck out on public policy grounds in which the House of Lords expressed the importance of the interests of the wider community, holding that the imposition of a duty of care would potentially induce defensive policing “focussed on preventing, or at least minimising the risk of claims in negligence”.

The same concern was voiced in X Minors as a reason for not imposing a duty of care on social workers. Further, and in contrast to the Court of Appeal decision in JD, the House of Lords had no difficulty restricting the imposition of a common law duty of care despite the potential for a parallel claim under the Act (Article 2 – the right to life). As Lord Hope put it “the common law …. should be allowed to stand on its own feet side by side with the alternative remedy”.

It is for these reasons that the legitimacy of the Court of Appeal’s acknowledgment of the common law remedy against social services for failing to take children into care is questionable Such decision-making is not only intensely difficult but also part of a wider process that involves obtaining and interpreting information from multiple sources. Subjective and decisive judgments need to made by the professionals involved and, for the same reasons cited by the House of Lords in respect of the police in Smith, social workers should not be inhibited in their decision-making by the threat of litigation.

It is true that the threshold for establishing negligence in these cases is a high one. Mere mistakes, errors of judgment or even bad social work will not usually amount to negligence, the test being more one of manifest incompetence. Importantly the resources (or lack of) available to social workers will always be a relevant consideration. However, the current climate gives cause for concern. There must be a risk that the environment created by the austerity programme may lead to increased exposure to litigation. This is arguably evidence in itself that the situation has gone too far. Further, the proposed reforms to the legal aid system suggest public funding may well remain in place for claims of this type given that they frequently involve state intervention alongside alleged human rights violations and allegations of abuse and assault.

In short, it seems the claims will continue unless the duty of care issue, and with it the litigation boundary, is re-drawn more narrowly. The system cannot be perfect and the priority must always be the safety and welfare of those children who need protection. However, it is arguably counter productive if scarce resources are diverted from children’s services and into defending civil claims or, due to the threat of litigation, if child protection decisions are made out of the fear of making a mistake rather than based on the professional judgment of social workers with the requisite experience and expertise to make them.

Peter Wake is an Associate in the Local Government Team of Weightmans LLP. He can be contacted by email at This email address is being protected from spambots. You need JavaScript enabled to view it. or on 0151 242 6866.