Supreme Court to rule next week on liability of social services authorities to protect children

The Supreme Court will next week (6 June) hand down its ruling in a key case on the liability of social services authorities to protect children from harm.

The main issue in Poole Borough Council (Respondent) v GN (Through his Litigation Friend "The Official Solicitor") and another (Appellants) was whether the case of D v East Berkshire Community NHS Trust [2004] QB 558 is correct and should continue to govern the position of local authorities in respect of their duties to children living in their areas.

The background to the case is that the appellants were, at the material times, children. CN suffered from severe physical and learning difficulties. They were placed in housing by the respondent council, and alleged that before the placement, the council was aware that a family lived in nearby accommodation who engaged in persistently anti-social behaviour.

This family repeatedly subjected the appellants to significant harassment and abuse, and CN attempted suicide.

In December 2014 the appellants brought claims against the council for breach of a common law duty of care derived from statutory duties under the Children Act 1989. It was alleged that they had suffered personal injury and other losses as a result of Poole’s failure to take appropriate and necessary steps to re-house them or otherwise safeguard them from prolonged anti-social behaviour.

This was alongside a parallel claim by the mother and a claim from these claimants based on the Housing Act.

Poole applied to strike out, and these claims were struck out as disclosing no reasonable cause of action by Master Eastman on 2 October 2015.

The claimants appealed, but not the mother. The claimants did not appeal in respect of the housing claim.

The appeal came before Mrs Justice Slade on 16 February 2016, and in a judgment of 16 March she allowed the appeal and restored the claims of both claimants, as pleaded in the Amended Particulars of Claim.

Poole appealed Mrs Justice Slade’s ruling and this was allowed by the Court of Appeal in CN & Anor v Poole Borough Council [2017] EWCA Civ 2185.

A panel of the Supreme Court - comprising Lady Hale, Lord Reed, Lord Wilson, Lord Hodge, Lady Black - subsequently heard the claimant children’s appeal on 16-17 July 2018.

1 Crown Office Row, which has a number of barristers involved in the case, said in April last year that the case raised four important issues relating to the liability of social services to protect children from harm:

1. Whether the decision in D v East Berkshire Community NHS Trust is correct.
2. Whether the Court of Appeal was wrong to find that D v East Berkshire has been “impliedly overruled” and is inconsistent with the House of Lords authority of Mitchell v Glasgow City Council and of the Supreme Court authority of Michael v Chief Constable of South Wales.
3. Whether it was wrong for the Court of Appeal to find this case fell within the third class of case recognised by the Court of Appeal in Young v Bristol Aeroplane Co Ltd.
4. Whether for the purposes of a strike out application it is appropriate to determine the facts against the Petitioners when there was expert evidence in support of the contention that their mother was unable to protect them from serious harm and they needed to be removed, at least temporarily, from home to prevent serious injury.

A number of organisations intervened: The AIRE Centre; Article 39; the Care Leavers Association; the Coram Children's Legal Centre; and the Equality and Human Rights Commission.