“developmentally he seems on track”
“does clap hands but does not wave bye bye yet”, He described HBC as a “bright, alert, playful child”
“Dr Kundu, the paediatric consultant at St Helier, who treated (him) at birth (resuscitation) has seen (him) twice since he has been in care. He is very happy with the (sic) HBC’s development. HBC has achieved all developmental milestones for his age…… The health visitor came to see him on the 27th of September for his one year check and had no concerns about him. HBC is meeting all his developmental targets. We had a further visit two Dr Kundu in October and he is completely satisfied with HBC’s development I no longer needs to see him.”
“Please can you confirm whether Mr Hamilton is agreeable to accept an SGO in the event the Court considers the same to be necessary.”
“21.1 Failed to properly consider, assess, review, monitor and/or report to the Court and the Claimant on HBC’s health status prior to the Order being made pursuant to theCare Planning, Placement and Case Review Regulations 2010 ,Children Act 1989 and guidance set out in the Independent Reviewing Officers’ handbook resulting in false/negligent representations to the Claimant. 21.2 Failed to provide appropriate care services to HBC. 21.3 Failed to safeguard and promote HBC’s welfare pursuant to theChildren Act 1989 . 21.4 Failed to fully disclose all material information and documentation to the Claimant prior to the Order being made. 21.5 Misled the Court and the Claimant by submitting statements that did not disclose HBC’s health status accurately.”
“21.6 Failed to disclose to the court and the claimant that HBC was not meeting his developmental milestones because HBC could not do the following: 1. Wave at 12 months. 2. Respond when his name was called. 3. Respond to age related instructions. 4. Use his fingers to point. 5. Focus on objects that were pointed to. 6. Respond to verbal communications. 7. Imitate simple gestures such as sticking out his tongue. 21.7 Failed to disclose to the court and the claimant that; 1. HBC had sensory issues. 2. HBC’s hyperactivity was abnormal and not age related. 3. HBC did not like loud noises or noisy environments.”
“23. Prior to entering the special guardianship, the defendant made verbal statements to the claimant about HBC’s health and development. The defendant’s social worker (Cynthia Addai) and foster carers (Mr John Hutton and Mrs Alison Hutton) told the claimant that: 1. HBC was developing normally. 2. There were no developmental concerns about HBC. 3. HBC was meeting all of his developmental milestones. 4. HBC had completed and passed all of his medical assessments. 5. If the claimant had any concerns about HBC’s behaviour or his development these concerns could be attributed to the developmental trauma that H had suffered after he was separated from his family just five months after his birth. 6. Mrs Alison Hutton told the claimant that HBC’s paediatrician (Dr Kundu) was pleased with HBC’s development because HBC had achieved all of his developmental milestones. This statement was false. 24. The representations were made to the claimant verbally between September 2018 and January 2019. 25. The representations were also reiterated in a life story book that was given to the claimant between December 2018 and January 2019. 26. Excerpts from the life story book are marked as Exhibit HFSB. 27. The representations regarding HBC meeting all his developmental milestones and targets were also reiterated in a booklet which H’s foster carers gave to the claimant in October 2018. Excerpts from the booklet are marked Exhibit ABH2018. These representations turned out to be false. 28. The claimant relied on the defendant’s misrepresentations regarding HBC’s development. 29. The Defendant intended to and did induce the claimant by these misrepresentations to enter into Special Guardianship of HBC. 30. The representations in paragraph 23 were false. HBC was not developing normally. HBC’s diagnosis of Benign External Hydrocephalus while he was under the defendant’s care was an example of concerns regarding HBC’s development. 31. HBC was not meeting all of his developmental milestones. HBC’s paediatrician (Dr Kundu) observed and recorded in writing, that HBC could not yet wave during an appointment on9th October 2018 . H could not wave at 12 months; therefore, HBC had missed this milestone. 32. HBC did not complete his statutory review health assessment that was due in September 2018 so there was no reliable medical evidence to confirm that HBC was meeting all of his age-related developmental milestones. 33. The developmental concerns that were present while HBC was under the defendant’s care were as follows: 1. HBC could not wave at 12 months. This developmental delay continued until approximately 2022. 2. HBC could not respond when his name was called. 3. HBC was unable to respond to age related instructions. 4. HBC did not use his fingers to point. 5. HBC could not focus on objects that were pointed to. 6. HBC could not respond to verbal communication. 7. HBC was unable to imitate simple gestures such as sticking out his tongue. 8. HBC had sensory issues. 9. HBC’s hyperactivity was abnormal and not age related. 10. HBC did not like loud noises or noisy environments. 11. HBC’s behaviour and his developmental issues were not caused by developmental trauma; they were as a direct result of HBC’s post-natal complications.”
“12. Ms Dobie asked Mr Hamilton what it was that meant HBC should have been diagnosed earlier. Mr Hamilton's answer whilst that HBC wasn’t waving goodbye, he wasn't responding to his name properly and he was dragging his feet while walking. Mr Hamilton referred me to paragraph 23 of his amended particulars of claim. 13. Ms Dobie challenged Mr Hamilton as to what it was that had induced him into taking up the SGO given that Mr Hamilton had received the diary extracts, from the foster carers, prior to the SGO being made. Mr Hamilton's response was that HBC wasn't displaying the developmental progress whilst he was with Mr Hamilton in the same way that he seemed to be doing when he was with the foster carers. Mr Hamilton insisted that he had been told that HBC had been developing normally and had completed all of his medical assessments. Mr Hamilton said he relied upon those statements about HBC’s milestones when agreeing to take on the special guardianship.”
“clear to me that there are significant factual issues in dispute.”
“…satisfied that, if the claim went to trial, the Claimant would obtain judgment.”
“I note that the application to strike out (to which the majority of the grounds relate) appear from Deputy District Judge’s findings to have been conducted as, at least in part, a trial of factual issues upon which, having heard evidence and what appears to have been questioning by Counsel for the Defendant of A1, factual findings were made. Although not an articulated ground, of the court’s own motion, I grant permission to appeal the Judge’s findings of fact at paragraphs 29-33, on the basis that there is a reasonable prospect of arguing that they were borne from a procedure inappropriate for a strike out application. It should be noted, however, that I have not had the benefit of any Respondent’s Notice or submissions from the Defendant in this regard, from which the Court will no doubt benefit at the Permission to Appeal hearing. I shall refer to this as Ground 1A.”
“There is a realistic prospect of successfully arguing an appeal that whether or not the Defendant owed A1 a duty by way of assumption of responsibility in relation to the information provided to him by the Defendant is a matter which should have been determined at trial and was not suitable for summary dismissal by way of strike out.” (b) In relation to ground 5 he stated “Ground 5 concerns the Judge’s conclusion that Mr Hamilton’s claims for the cost of a new house and the loss of income are ill founded at law. Whilst it seems, on the information from the Court, improbable that these losses would ultimately be recoverable, there is a reasonable prospect of arguing that the Judge’s brief reasons for concluding that there was no discernible cause of action was borne out of his conclusion to which Ground 1 and/or Ground 1A. On this basis, Permission to Appeal was granted. ”
“24.3 The court may give summary judgment against a claimant or defendant on the whole of a claim or on an issue if— (a) it considers that the party has no real prospect of succeeding on the claim, defence or issue; and (b) there is no other compelling reason why the case or issue should be disposed of at a trial.”
“21. The authorities therefore make clear that in the context of summary judgment the court is by no means barred from evaluating the evidence, and concluding that on the evidence there is no real (as opposed to fanciful) prospect of success. It will of course be cautious in doing so. It will bear in mind the clarity of the evidence available and the potential for other evidence to be available at trial which is likely to bear on the issues. It will avoid conducting a mini-trial. But there will be cases where the Court will be entitled to draw a line and say that -even bearing well in mind all of those points - it would be contrary to principle for a case to proceed to trial. 22. So, when faced with a summary judgment application it is not enough to say, with Mr Micawber, that something may turn up.”
"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." 75. Lord Reed stated at paragraph 66 that "the nature of an assumption of responsibility is of importance in the present context."
"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 ." 76. Lord Reed then illustrated how this approach was reflected in the earlier cases involving public authorities. He stated at paragraph 69. "…. 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." 77. Lord Reed summarised the position in these terms at paragraph 73: "
"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." 79. Lord Reed reiterated that a claim in negligence against a local authority arising out of its performance of its statutory duties based on the assumption of responsibility could arise in other circumstances. He stated at paragraph 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.” 80. Finally for the purposes of this appeal Lord Reed stated at paragraph 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."
“It further means that one has to be very careful not to slide back to resting the duty of care, and breach, at common law on the mere fact that the public authority had statutory duties towards, and powers in respect of, the claimant. In our view, some of the submissions made by Ms Gumbel KC on behalf of HXA and YXA fell into this trap. That is, she sometimes relied on there being a statutory duty on the local authority to safeguard children in need as the very reason why there must be a duty of care owed to such children.”
“It is very common for the language of “assumption of responsibility” to be used at a high level of generality. However, it helps to sharpen up the analysis always to ask, what is it alleged that the defendant has assumed responsibility, to use reasonable care, to do? Although Ms Gumbel framed the assumption of responsibility in several different ways, in essence she needs to satisfy the court that there was, arguably, an assumption of responsibility, to use reasonable care, to protect HXA and/or YXA from the abuse that the local authority was aware of or ought to have known about. If properly discharged, that duty of care would then have led, so it is alleged, to the local authority seeking a care order (whether interim or final), or an equivalent order (see para 32 above). In our view it is clear that there was no such assumption of responsibility”
“70. …The submission was based primarily on the judgment of Dyson LJ in Rowley v Secretary of State for Work and Pensions[2007] EWCA Civ 598 ;[2007] 1 WLR 2861 , paras 51-55, where it was held that the Secretary of State, in carrying out his statutory duty to make an assessment of child support maintenance, did not assume a responsibility towards the parent with care of the children in question. Dyson LJ focused on the requirement that responsibility must be “voluntarily accepted or undertaken”, as Lord Devlin put it in Hedley Byrne at p 529: a requirement which, he held, was not met merely by the Secretary of State’s performance of his statutory duty under the legislation. 71. That decision was followed in X v Hounslow London Borough Council[2009] EWCA Civ 286 ;[2009] 2 FLR 262 , a case with similarities to the present case, where it was held that a local authority’s social services and housing departments had not assumed a responsibility to protect vulnerable council tenants and their children from harm inflicted by third parties. Sir Anthony Clarke MR, giving the judgment of the Court of Appeal, observed at para 60 that the case was not one of assumption of responsibility unless the assumption of responsibility could properly be held to be voluntary. That was because “a public authority will not be held to have assumed a common law duty merely by doing what the statute requires or what it has power to do under a statute, at any rate unless the duty arises out of the relationship created as a result, such as in Lord Hoffmann’s example [in Gorringe, para 38] of the doctor patient relationship.”
“All the members of the Appellate Committee in [Hedley Byrne] spoke in terms of the principle resting upon an assumption or undertaking of responsibility by the defendant towards the plaintiff, coupled with reliance by the plaintiff on the exercise by the defendant of due care and skill. Lord Devlin, in particular, stressed that the principle rested upon an assumption of responsibility when he said, at p 531, that ‘the essence of the matter in the present case and in others of the same type is the acceptance of responsibility’ . . . .Furthermore, although Hedley Byrne itself was concerned with the provision of information and advice, it is clear that the principle in the case is not so limited and extends to include the performance of other services, as for example the professional services rendered by a solicitor to his client: see, in particular, Lord Devlin, at pp 529—530. Accordingly where the plaintiff entrusts the defendant with the conduct of his affairs, in general or in particular, the defendant may be held to have assumed responsibility to the plaintiff, and the plaintiff to have relied on the defendant to exercise due skill and care, in respect of such conduct.”
“Although a duty of care might be owed to the child, the court considered that the position of the parents was different. In view of the potential conflict between the best interests of the child and the interests of the parents, there were in the court’s view cogent reasons of public policy for concluding that, where child care decisions were being taken, no common law duty of care should be owed to the parents. Another way of expressing the point would have been to say that the imposition of a common law duty of care towards the parents would be inconsistent with the statutory framework, since it would interfere with the performance by the authority of its statutory powers and duties in the manner intended by Parliament.”
“Rather than justifying decisions that public authorities owe no duty of care by relying on public policy, it has been held that even if a duty of care would ordinarily arise on the application of common law principles, it may nevertheless be excluded or restricted by statute where it would be inconsistent with the scheme of the legislation under which the public authority is operating. In that way, the courts can continue to take into account, for example, the difficult choices which may be involved in the exercise of discretionary powers.”
“In my judgment, however, this is still an evolving area of the law. The ramifications of the change of direction heralded by the decisions of the Supreme Court in Robinson and Poole are still being worked through. Unusually for child protection cases, the risk of harm to the children in Poole came from outside their family. The risks to the children in the present cases came from within their families. To adopt Lord Steyn's words in Gorringe quoted above, this is an area of "great complexity" in which "no single decision is capable of providing a comprehensive analysis." It remains as he described it – "a subject on which an intense focus on the particular facts and on the particular statutory background, seen in the context of the contours of our social welfare state, is necessary". The decision in DFX is one judgment after a trial at first instance involving one set of facts. There are a range of factual scenarios that might arise in this context which did not arise in that case. It did not involve, for example, a decision to provide a child with keeping safe work or to accommodate a child under section 20.”
“102. The judgments in the lower courts in our cases, of Deputy Master Bagot QC, Master Dagnall and Stacey J, and the decision of Lambert J after a trial in DFX, all indicate that the courts have not been finding it too difficult to apply N v Poole to decide that there was no assumption of responsibility in these types of case. In contrast, the Court of Appeal has thrown the area into doubt - and would make it very difficult to strike out - by incorrectly stressing that this is an unclear developing area of the law so as to require the evidence to be heard at full trials in order to establish a body of case law. As we have said, these cases turn on applying N v Poole. Our decisions in these appeals should remove any conceivable doubt that lawyers may have had in understanding the full impact of N v Poole.”
“The court must order that the identity of any person shall not be disclosed if, and only if, it considers non-disclosure necessary to secure the proper administration of justice and in order to protect the interests of that person.”