“In the circumstances, the Defendant assumed responsibility for the welfare of the Claimants on each occasion when reports were responded to having been made to social services by police, other agencies and family members concerned for the safety and welfare of the Claimants. The Defendant assumed responsibility for investigating the plight of the Claimants in the light of this information through the commencement of an assessment and, in some instances, provision of assistance. The allocated social worker also assumed responsibility for investigating the safety of the Claimants in a household where there were multiple risks of significant harm. The referrers relied on the Defendant to keep the Claimants safe in the light of the information passed on. However, the Defendant failed competently to assess the risks posed to the Claimants or to take appropriate action in the light of the known dangers.”
“18. The actions of the defendant in purporting to assist the family and undertake child protection work and assess the risks posed by the claimants’ mother and Mr A … as set out above were steps in which the defendant assumed responsibility for the protection of the claimants and for the object of assisting the claimants to be safe. The claimants at least impliedly relied on the defendant to protect them…. 19. Further, in intervening in the Claimants’ home life, the Defendant assumed responsibility for the plight of the Claimants and the Claimants at least impliedly relied on them to do so competently…..”
“On28 April 2008 a pattern began of the second defendant receiving the claimant into its care for approximately 1 night every 2 weeks and 1 weekend every 2 months with the claimant’s parents’ agreement pursuant tosection 20 of the Children Act 1989 .”
“In the circumstances, when the Second Defendant received the Claimant into its care, on multiple occasions from August 2007 (when the Claimant moved to the area) onwards, it assumed a responsibility for his welfare, protection and safety. The Claimant relied on the Second Defendant for his protection and safety and the promotion of his welfare while he was accommodated by the Second Defendant. As the Second Defendant knew, there was nobody else discharging those functions for the Claimant because the Second Defendant was purporting to do so. On each occasion that the Claimant was in the Second Defendant’s care, the Second Defendant resolved to and did return the Claimant from his place of safety in its care, to his family, where he was not safe and foreseeably suffered significant harm. Placing the Claimant or tolerating him returning to such an unsafe environment enhanced the risk and created the situation which caused him harm as set out below.”
“(1) It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)— (a) to safeguard and promote the welfare of children within their area who are in need; and (b) so far as is consistent with that duty, to promote the upbringing of such children by their families, by providing a range and level of services appropriate to those children’s needs. (2) For the purpose principally of facilitating the discharge of their general duty under this section, every local authority shall have the specific duties and powers set out in Part 1 of Schedule 2. … (10) For the purposes of this Part a child shall be taken to be in need if— (a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part; (b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services….”
“Where it appears to a local authority that a child within their area is in need, the authority may assess his needs for the purposes of this Act at the same time as any assessment of his needs is made under [other specified statutes].”
“Every local authority shall take reasonable steps, through the provision of services under Part III of this Act, to prevent children within their area suffering ill-treatment or neglect.”
“Every local authority shall provide services (a) to reduce the need to bring (i) proceedings for care or supervision orders with respect to children within their area ….”
“(1) In this Act, any reference to a child who is looked after by a local authority is a reference to a child who is— (a) in their care; or (b) provided with accommodation by the authority in the exercise of any functions (in particular those under this Act) … (2) In subsection (1) “accommodation” means accommodation which is provided for a continuous period of more than 24 hours. (3) It shall be the duty of a local authority looking after any child— (a) to safeguard and promote his welfare; and (b) to make such use of services available for children cared for by their own parents as appears to the authority reasonable in his case.”
“Before they place a child the responsible authority shall, so far as reasonably practicable, make immediate and long-term arrangements for that placement and of promoting the welfare of the child who is to be placed.”
“Where C [a looked after child] is not in the care of the responsible authority and a care plan for C has not already been prepared, the responsible authority must assess C’s needs for services to achieve or maintain a reasonable standard of health or development, and prepare such a plan.”
“(1) Where a care order is made with respect to a child it shall be the duty of the local authority designated by the order to receive the child into their care and to keep him in their care while the order remains in force. … (3) While a care order is in force with respect to a child, the local authority designated by the order shall— (a) have parental responsibility for the child; and (b) have the power (subject to the following provisions of this section) to determine the extent to which (i) a parent … of the child; or (ii) a person who by virtue of section 4A has parental responsibility for the child, may meet his parental responsibility for him. (4) The authority may not exercise the power in subsection (3)(b) unless they are satisfied that it is necessary to do so in order to safeguard or promote the child’s welfare.” “Parental responsibility” was described by Baroness Hale of Richmond, the architect of the 1989 Act, as “the conceptual building block used throughout” the Act (“The Children Bill: the aim” [1989] Fam Law 217). It is defined in s.3(1) as meaning “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.” (b) have the power (subject to the following provisions of this section) to determine the extent to which (i) a parent … of the child; or (ii) a person who by virtue of section 4A has parental responsibility for the child, (ii) a person who by virtue of section 4A has parental responsibility for the child, “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.”
“Where a local authority … (b) have reasonable cause to suspect that a child who lives … in their area is suffering, or is likely to suffer significant harm the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare ….”
“In practice, the distinction between these categories is not always clear cut. Some accommodated children in need may also be at risk of harm if they are left at or returned home. In law, however, the distinction is clear. Compulsory intervention in the lives of children and their families requires the sanction of a court process. Providing them with a service does not.”
“39. … it may be confusing to talk of parental “consent” to the removal (or accommodation) of her child. If a parent does agree to this, she is simply delegating the exercise of her parental responsibility for the time being to the local authority. Any such delegation must be real and voluntary. Otherwise the local authority have no power to interfere with her parental responsibility by taking the child away…. 41. …[P]arents may ask the local authority to accommodate a child, as part of the services they provide for children in need. If the circumstances fall within section 20(1), there is a duty to accommodate the child. If they fall within section 20(4), there is power to do so. Once again, this operates as a delegation of the exercise of parental responsibility for the time being….”
“49. … there is nothing in section 20 to place a limit on the length of time for which a child may be accommodated. However, local authorities have a variety of duties towards the children whom they are accommodating. Their general duties towards looked after children in section 22 of the 1989 Act include a duty to safeguard and promote their welfare, in consultation with both the children and their parents. This is reinforced by theCare Planning, Placement and Case Review (England) Regulations 2010 , SI 2010/959, which require local authorities to assess a child’s “needs for services to achieve or maintain a reasonable standard of health or development” and prepare a care plan for her, to be agreed with the parents if practicable (regulation 4(1), (4)). The care plan has to record, inter alia, the arrangements made to meet the child’s needs and the long term plan for her upbringing (“the plan for permanence”) (regulation 5(a) and (b)). 50. Thus, although the object of section 20 accommodation is partnership with the parents, the local authority have also to be thinking of the longer term. There are bound to be cases where that should include consideration of whether or not the authority should seek to take parental responsibility for an accommodated child by applying for a care order….”
“Robinson did not lay down any new principle of law, but three matters in particular were clarified. First, the decision explained, as Michael had previously done, that Caparo did not impose a universal tripartite test for the existence of a duty of care, but recommended an incremental approach to novel situations, based on the use of established categories of liability as guides, by analogy, to the existence and scope of a duty of care in cases which fall outside them. The question whether the imposition of a duty of care would be fair, just and reasonable forms part of the assessment of whether such an incremental step ought to be taken. It follows that, in the ordinary run of cases, courts should apply established principles of law, rather than basing their decisions on their assessment of the requirements of public policy. Secondly, the decision re-affirmed the significance of the distinction between harming the claimant and failing to protect the claimant from harm (including harm caused by third parties), which was also emphasised in Mitchell and Michael. Thirdly, the decision confirmed, following Michael and numerous older authorities, that public authorities are generally subject to the same general principles of the law of negligence as private individuals and bodies, except to the extent that legislation requires a departure from those principles. That is the basic premise of the consequent framework for determining the existence or non-existence of a duty of care on the part of a public authority.”
“It follows (1) that public authorities may owe a duty of care in circumstances where the principles applicable to private individuals would impose such a duty, unless such a duty would be inconsistent with, and is therefore excluded by, the legislation from which their powers or duties are derived; (2) that public authorities do not owe a duty of care at common law merely because they have statutory powers or duties, even if, by exercising their statutory functions, they could prevent a person from suffering harm; and (3) that public authorities can come under a common law duty to protect from harm in circumstances where the principles applicable to private individuals or bodies would impose such a duty, as for example where the authority has created the source of danger or has assumed a responsibility to protect the claimant from harm, unless the imposition of such a duty would be inconsistent with the relevant legislation.”
“Since Hedley Byrne, the principle has been applied in a variety of situations in which the defendant provided information or advice to the claimant with an undertaking that reasonable care would be taken as to its reliability (either express or implied, usually from the reasonable foreseeability of the claimant’s reliance upon the exercise of such care), as for example in Smith v Eric S Bush, or undertook the performance of some other task or service for the claimant with an undertaking (express or implied) that reasonable care would be taken, as in Henderson v Merrett Syndicates Ltd[1995] 2 AC 145 and Spring v Guardian Assurance plc[1995] 2 AC 296 .”
“ …. In X (Minors) v Bedfordshire, the social workers were held not to have assumed any responsibility towards the claimants in the child abuse cases on the basis that they were not providing their professional services to the claimants, and it was not reasonably foreseeable that the claimants would rely on the reports which they provided to their employers. In the education cases, on the other hand, the local authority assumed responsibility for the advisory service which it was understood to provide to the public, since the public could reasonably be expected to place reliance on the advice; a school assumed responsibility for meeting the educational needs of the pupils to whom it provided an education; the headmaster came under a duty of care by virtue of his responsibility for the school; and an advisory teacher assumed responsibility for advice which he knew would be communicated to a child’s parents and on which they would foreseeably rely. In Barrett v Enfield, the local authority assumed responsibility for the welfare of a child when it took him into its care. In Phelps v Hillingdon, the educational psychologist assumed responsibility for the professional advice which he provided about a child in circumstances where it was reasonably foreseeable that the child’s parents would rely on that advice.”
“Clearly the operation of a statutory scheme does not automatically generate an assumption of responsibility, but it may have that effect if the defendant’s conduct pursuant to the scheme meets the criteria set out in such cases as Hedley Byrne and Spring v Guardian Assurance plc.”
“It is of course possible, even where no such assumption can be inferred from the nature of the function itself, that it can nevertheless be inferred from the manner in which the public authority has behaved towards the claimant in a particular case. Since such an inference depends on the facts of the individual case, there may well be cases in which the existence or absence of an assumption of responsibility cannot be determined on a strike out application. Nevertheless, the particulars of claim must provide some basis for the leading of evidence at trial from which an assumption of responsibility could be inferred. In the present case, however, the particulars of claim do not provide a basis for leading evidence about any particular behaviour by the council towards the claimants or their mother, besides the performance of its statutory functions, from which an assumption of responsibility might be inferred.”
“88. As has been explained, however, the concept of an assumption of responsibility is not confined to the provision of information or advice. It can also apply where, as Lord Goff put it in Spring v Guardian Assurance plc, the claimant entrusts the defendant with the conduct of his affairs, in general or in particular. Such situations can arise where the defendant undertakes the performance of some task or the provision of some service for the claimant with an undertaking that reasonable care will be taken. Such an undertaking may be express, but is more commonly implied, usually by reason of the foreseeability of reliance by the claimant on the exercise of such care. In the present case, however, there is nothing in the particulars of claim to suggest that a situation of that kind came into being. 89. The existence of an assumption of responsibility can be highly dependent on the facts of a particular case, and where there appears to be a real possibility that such a case might be made out, a court will not decide otherwise on a strike out application. In the circumstances which I have described, however, the particulars of claim do not in my opinion set out any basis on which an assumption of responsibility might be established at trial.”
“The following are examples of cases where the court may conclude that particulars of claim … fall within rule 3.4(2)(a) (1) those which set out no facts indicating what the claim is about … (2) those which are incoherent and make no sense, (3) those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant.”
“26. … Where the existence or non-existence of a duty of care has been established, a consideration of justice and reasonableness forms part of the basis on which the law has arrived at the relevant principles. It is therefore unnecessary and inappropriate to reconsider whether the existence of the duty is fair, just and reasonable (subject to the possibility that this court may be invited to depart from an established line of authority). Nor, a fortiori, can justice and reasonableness constitute a basis for discarding established principles and deciding each case according to what the court may regard as its broader merits. Such an approach would be a recipe for inconsistency and uncertainty …. 27. It is normally only in a novel type of case, where established principles do not provide an answer, that the courts need to go beyond those principles in order to decide whether a duty of care should be recognised. Following Caparo [Caparo Industries plc v Dickman[1990] 2 AC 605 ] the characteristic approach of the common law in such situations is to develop incrementally and by analogy with established authority. The drawing of an analogy depends on identifying the legally significant features of the situations with which the earlier authorities were concerned. The courts also have to exercise judgement when deciding whether a duty of care should be recognised in a novel type of case. It is the exercise of judgement in those circumstances that involves consideration of what is “fair, just and reasonable”
“In my speech in the X Case (at 740-741) with which the other members of the House agreed, I pointed out that unless it was possible to give a certain answer to the question whether the plaintiff's claim would succeed, the case was inappropriate for striking out. I further said that in an area of the law which was uncertain and developing (such as the circumstances in which a person can be held liable in negligence for the exercise of a statutory duty or power) it is not normally appropriate to strike out. In my judgment it is of great importance that such development should be on the basis of actual facts found at trial not on hypothetical facts assumed (possibly wrongly) to be true for the purpose of the strike out.”
“(i) The case must be looked at in the context that the law of tort in relation to the assumption of responsibility is still developing and emerging. (ii) The Supreme Court was at pains to point out in Poole Borough Council that each case turns on its own facts. (iii) An assumption of responsibility can arise where a claimant entrusts a defendant with the conduct of his affairs in general or particular. Such situations can arise where the defendant undertakes the performance of some task, or the provision of some service for the claimant, with an undertaking that reasonable care will be taken. Such an undertaking is commonly implied by reason of the foreseeability of reliance by the claimant on the exercise of such care. (iv) The existence of an assumption of responsibility can be highly dependent on the facts of a particular case, and where there appears to be a real possibility that such a case might be made out, a court will not decide otherwise on a strike out application (para. 89 of Poole). (v) The Claimant has set out in detail numerous positive acts, which the Defendant undertook for the assistance of the Claimant. The Claimant was reliant upon the Defendant’s Social Services Department and the positive acts taken by the Defendant are sufficient to give rise to an arguable assumption of responsibility. For the purposes of this case, it is common ground that it must be accepted that the Defendant was negligent and the Claimant has suffered sexual, physical and psychological injuries. (vi) I was taken by both parties to a number of first instance decisions, some of which had been upheld on appeal. In my judgment they provide very limited assistance because in some of them the facts are obscure and in others the facts are distinguishable or very different.”
“199. I conclude that whilst the fact that a public authority is operating within a statutory scheme does not of itself generate a common law duty of care, it does not follow that a failure to exercise a statutory function, including taking a step which can only be taken lawfully by statute, can never be compensable at common law. Whether a duty of care is generated by (on the facts of this case) an assumption of responsibility depends upon whether there is, putting it colloquially, "something more": either something intrinsic to the nature of the statutory function itself which gives rise to an obligation on the defendant to act carefully in its exercising that function, or something about the manner in which the defendant has conducted itself towards the claimants which gives rise to a duty of care. As Lord Reed made clear, and as Ms Gumbel [for the claimant] submits, this question is one which is ‘fact sensitive’.”
“204. …. a recommendation that care proceedings be commenced for the purpose of sharing parental responsibility cannot, it seems to me, be described as a positive act which had the effect of generating a duty of care, nor characterised as the provision of advice or service upon which the claimants might reasonably foreseeably rely, so giving rise to a duty of care to act carefully.”
“209. I conclude therefore that, on the facts of this claim, no duty of care was owed by the defendant to the claimants. I have considered whether there was anything in the nature of the statutory functions being exercised by the defendant under section 47 and section 31 of the 1989 Act or the manner in which those functions were exercised which generated a duty of care. Having done so, I find nothing which suggests to me that the defendant assumed responsibility to exercise those functions with reasonable skill and care. Having looked for "something more" as I have put it, I find nothing. The facts do not fall within any category in which the common law has recognised a duty arising. That being the case I come full circle and agree with Mr Weitzman [for the local authority] that the claimants are, in this case, impermissibly seeking to create a common law duty of care from the defendant "merely operating a statutory scheme" contrary to the, now well-established, principle set out in Stovin and Gorringe. 210. I acknowledge that the claimants are critical of some of the direct work undertaken by social workers and by the family support team. This work was undertaken pursuant to section 17 of the 1989 Act, rather than section 47. As Mr Weitzman has accepted, those services are offered and accepted on a wholly voluntary basis and, as such, different considerations may arise when addressing the issue of reliance. However, if a duty of care was generated by this work, the scope of that duty would be limited to the performing of the direct work competently. But [the expert witness] was not critical of the quality of the direct work which was undertaken … which she thought was for the most part thorough and competent. Her point was that the social workers failed to analyse the efficacy or likely efficacy of the work when assessing risk under section 47 of the 1989 Act.”
“A duty of care is recognised to arise when a care order is made, because the local authority has parental responsibility. But up until that point, parental responsibility remains unequivocally with the parent(s). A duty of care cannot, in my view, effectively be reverse engineered from the point at which a duty arises on the making of a care order ….”
“The argument seems to me to divide into two sub-questions, being (1) whether the provision of the Respite Care accommodation gave rise to a more general duty of care including to consider taking care proceedings generally and (2) whether it could give rise to a specific duty of care regarding whether the Claimant should actually be returned to the Parents at the end of the agreed Respite Care Period, at least without care proceedings having been considered and if appropriate taken.”
“the scheme of section 20 is that it requires and is controlled by the consent of the parents…. It would … be incongruous that the parents by consenting to a provision of accommodation a term of which was that they could always remove the child … were allowing to come into existence a duty (which would otherwise not exist) of the local authority to (at least) consider whether to launch care etc proceedings so as to prevent that removal. The duty which is sought to be imposed seems to me to be at least somewhat inconsistent with the statutory scheme.”
“64. The real question therefore is whether the claimants can distinguish the assumed facts in their claims, with those in binding, decided cases, where claimants were unsuccessful in establishing that the defendant had assumed responsibility to protect them from danger and thus bring them within the exception to the general rule against liability for negligently failing to confer a benefit. In considering that question Robinson reminds us of the importance of precedent, the maintenance of coherence and the need to avoid inappropriate distinctions. 65. It is beyond doubt that a local authority "investigating and monitoring" a child's position and by "taking on a task" or exercising its general duty [under] s.17, or placing a child on the child protection register, or investigating under s.47 does not involve the provision of a service to the child on which they can be expected to rely (Poole para 78, DFX para 180). "Something more" is required (X v Hounslow LBC[2008] EWCA Civ 286 and DFX para 199). The defendants are "merely operating a statutory scheme" which does not create a common law duty of care (see Stovin and Gorringe). 66. For the reasons set out by Lambert J in DFX, and Lord Reed in Poole, the placing of HXA on the child protection register on28 July 1994 , does not amount to "something more" which deals with the first limb of Mr Levinson's challenge in HXA. 67. The claim that the decision to undertake a full assessment in November 1994 gives rise to an assumption of responsibility is also unarguable. I agree with the Deputy Master – why must the fact of consideration being given to applying for a care order amount to an assumption of responsibility? Mr Levinson had no answer. A duty of care is recognised to arise when a care order is made, because at that point the local authority has parental responsibility under the Act, which is the "something else" sufficient to amount to an assumption of responsibility. Resolving to seek legal advice and undertake a full assessment is not sufficient to amount to that extra something. 68. Mr Levinson considered the defendant's decision to undertake "keeping safe" work with HXA and then not doing it, to be his best point. The particulars of claim do not suggest that if the keeping safe work had been done the claimant would have been able to protect herself and be safe from harm from Mr A and her mother, but rather it was alleged that if the keeping safe work had been done, care proceedings would have resulted. So firstly the allegation is expressly framed as an omission/failure to confer a benefit by not doing the keeping safe work, not an allegation of a positive act that amounted to an assumption of responsibility. Secondly, on a proper analysis, as with the other two matters, the criticism is the failure to institute care proceedings and is therefore indistinguishable from the reasoning in Poole and DFX and fails for the same reasons. As noted in DFX, even if a duty of care was generated by direct work, the scope of that duty would be limited to the performing of the direct work competently (para 210). It does not amount to the necessary something else. A number of questions are involved. It requires a careful analysis of exactly what is the responsibility is that defendant is said to have assumed, to identify for whose assistance it is provided and consider also the issue of reliance. Each of which would involved fundamental problems for HXA to overcome. 69. In YXA it is important to distinguish between the duty of care which arguably arises after the making of a care order when the local authority becomes the statutory parent (Barrett) and the entirely different position of a child, albeit a "looked after child" such as YXA (as defined in the Act) receiving temporary and intermittent care under s.20 with the consent of the child's parents, where the parents retain exclusive parental responsibility. 70. There was no criticism of the standard of care received by YXA during the intermittent periods of his temporary s.20 accommodation, which could give rise to a potential claim. Instead the claim was advanced, as it was in HXA, on the basis of an alleged duty of care which, if properly discharged, would involve the taking of care proceedings. It is now well established that there is no duty of care owed in relation to child protection functions generally and the fact of s.20 temporary accommodation cannot be used as a peg on which to assert the assumption of responsibility. The imprecise statutory duty in s.22(3)(a) cannot support a duty of care where none would otherwise exist. There is no logical reason why the provision of s.20 would make a difference: it does not amount to the "something else" needed to indicate an assumption of responsibility to take care proceedings, merely an assumption of responsibility of a duty of care in relation to the accommodation itself. …. 71. As to the argument that Master Dagnall erred in considering that YXA's case was not analogous to Barrett, the submission does not withstand close scrutiny. Although Barrett, too was a strike out claim, the issue was not a criticism of the social workers failure to remove him from his family through child protection proceedings, but the local authority's alleged failings after he had been placed in the care of the local authority. It was an allegation of causing harm, not an allegation of not conferring a benefit. By the same reasoning, D v East Berkshire Community NHS Trust[2003] EWCA Civ 1151 and the so-termed "wrongful removal" cases are not comparable. 72. The Supreme Court has now clarified the approach to be taken to ascertain whether a duty of care is owed in its judgments of Michael, Robinson and Poole. The facts alleged in these two appeals are on point, and so closely analogous to the recent Supreme Court judgements and now DFX and at first sight cannot now be described as a developing area of law, as noted by Deputy Master Bagot.”
“by dint of its being the sole agency which had the means to provide adequate protection for the [children].”
“the fact-intensive quality of this part of Lord Reed’s judgment suggests that the case could have been better dealt with on breach and causation grounds. The errors committed by the council did not clearly lead to actionable damage. A jurisprudence focused on ‘duty’ inevitable means that a more nuanced account of what amounts to fault in complex settings such as this will be slow to emerge.”