22nd September 2020
HHJ Godsmark QC
The case is the first fully reasoned judgment in a public authority liability case where Lord
Reed’s controversial analysis of the conferral of benefit / assumption of responsibility /
making matters worse concepts CN / GN v Poole has been applied at 1st instance.
The council applied to strike out claims in negligence, misfeasance and human rights by a father and his 15-year-old daughter (X).
The council applied to strike out claims in negligence, misfeasance and human rights by a father and his 15-year-old daughter (X). Over an 8-year period the father, unsuccessfully, tried to convince social workers and management that his daughter was physically and emotionally abused by her mother. Following assessments under section 17 Children Act 1989 the council concluded that his allegations were malicious and he was excluded from the statutory child protection process.
The judge accepted X’s submissions that the pleaded facts did disclose an arguable case to establish a duty of care to protect her as (1) this was a “causing harm” / “making matters worse” case rather than a “failure to confer a benefit” case given the council took positive action more akin to an adviser to the mother; alternatively (2) if the facts construed by reference to Lord Reed’s judgment in Poole v GN / CN amounted to a failure to confer a benefit case, meaning that the omissions principle applied, the council’s conduct meant that there was an arguable assumption of responsibility meaning that a duty of care arguably arose as an exception to the no duty principle as recognised in the Supreme Court decisions in Robinson v West Yorkshire Police [2018] and Michael v Chief Constables of South Wales & Gwent Police [2015].
These are of course only two strike out applications. It seems strong cases will be bought off by Defendants and we will have to be patient in our wait for a case to be interpreted by the Court of Appeal. On the basis of these cases there is reason for optimism on standards of social work and accountability.
David Greenwood is Head of the Child Abuse department at Switalskis Solicitors.
He can be contacted at [email protected]