Lana McMahon v Birmingham City Council [2024] EWHC 431 (KB)

“may strike out a statement of case if it appears to the court- (a) that the statement of case discloses no reasonable grounds for bringing or defending the claim…”

“I start by considering what is the correct approach on a summary application of the nature of Mr. Richards’s application at this early stage in the action when the pleadings show significant disputes of fact between the parties going to the existence and scope of the alleged duty of care. The correct approach is not in doubt: the court must be certain that the claim is bound to fail. Unless it is certain, the case is inappropriate for striking out (see Barrett v Enfield London Borough Council [2001] 2 AC 550 at p. 557 per Lord Browne Wilkinson). Lord Browne-Wilkinson went on to add: “[I]n 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]n 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.””

“ 40 …where the court holds that there is a defect in a pleading, it is normal for the court to refrain from striking out that pleading unless the court has given the party concerned an opportunity of putting right the defect, provided that there is reason to believe that he will be in a position to put the defect right.”

“The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if – (a) it considers that- (i) that claimant has no real prospect of succeeding on the claim or issue; …and (b) there is no other compelling reason why the case should be disposed of at a trial.” (a) it considers that- (i) that claimant has no real prospect of succeeding on the claim or issue; …and (b) there is no other compelling reason why the case should be disposed of at a trial.”

“The correct approach on applications by defendants is, in my judgment, as follows: i) The court must consider whether the claimant has a “realistic” as opposed to a “fanciful” prospect of success: Swain v Hillman [2001] 2 All ER 91; ii) A “realistic” claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel [2003] EWCA Civ 472 at [8] iii) In reaching its conclusion the court must not conduct a “mini- trial”: Swain v Hillman iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10] v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5) [2001] EWCA Civ 550; vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63 ; vii) On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725.” i) The court must consider whether the claimant has a “realistic” as opposed to a “fanciful” prospect of success: Swain v Hillman [2001] 2 All ER 91; ii) A “realistic” claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel [2003] EWCA Civ 472 at [8] iii) In reaching its conclusion the court must not conduct a “mini- trial”: Swain v Hillman iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10] v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5) [2001] EWCA Civ 550; vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63 ; vii) On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725.”

“20(1). Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of— (a) there being no person who has parental responsibility for him; (b) his being lost or having been abandoned; or (c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.” (a) there being no person who has parental responsibility for him; (b) his being lost or having been abandoned; or (c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.”

“28. Like private individuals, public bodies did not generally owe a duty of care to confer benefits on individuals, for example by protecting them from harm: see, for example, Sheppard v Glossop Corpn [1921] 3 KB 132 and East Suffolk Rivers Catchment Board v Kent [1941] AC 74. In this context I am intentionally drawing a distinction between causing harm (making things worse) and failing to confer a benefit (not making things better), rather than the more traditional distinction between acts and omissions, partly because the former language better conveys the rationale of the distinction drawn in the authorities, and partly because the distinction between acts and omissions seems to be found difficult to apply. As in the case of private individuals, however, a duty to protect from harm, or to confer some other benefit, might arise in particular circumstances, as for example where the public body had created the source of danger or had assumed responsibility to protect the claimant from harm: see, for example, Dorset Yacht Co Ltd v Home Office, as explained in Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15; [2004] 1 WLR 1057, para 39.” para 39.”

“65. 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.”

“…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 cases such as Hedley Byrne [1964] AC 465 and Spring v Guardian Assurance plc [1995] 2 AC 296.”

“v) The general rule against liability for negligently failing to confer a benefit is subject to exceptions. The circumstances in which public authorities like private individuals and bodies may come under a duty of care to prevent the occurrence of harm were summarised by Tofaris and Steel in "Negligence Liability for Omissions and the Police" 2016 CLJ 128. They are (i) when A has assumed responsibility to protect B from that danger; (ii) A has done something which prevents another from protecting B from that danger; (iii) A has a special level of control over that source of danger; or (iv) A's status creates an obligation to protect B from that danger.”

“32. A critical distinction is therefore to be drawn between causing harm (or making things worse) where a common law duty of care might arise if fair, just and reasonable to impose it; and failing to confer a benefit (or not making things better), where no such duty will ordinarily be imposed. Despite the fact that there can be difficulties in drawing or applying this distinction in borderline cases, it reflects a recognition that there is a fundamental difference between requiring a person to take care, if they embark on a course of conduct which may harm others, not to create a risk of danger; and requiring a person, who is doing nothing, to take positive action to protect others from harm for which they were not responsible, and to hold them liable in damages if they fail to do so. The law of negligence generally imposes duties not to cause harm to other people or their property and does not generally impose duties to provide them with benefits, which are, in general, voluntarily undertaken rather than being imposed by the common law. As in the case of private individuals, however, a duty to protect from harm or confer some other benefit might arise in particular circumstances, for example where the public body has created the source of danger or has assumed a responsibility to protect the claimant from harm. Lord Reed explained that drawing the distinction in this way rather than the more traditional distinction between acts and omissions, better conveys the rationale of the distinction drawn in the authorities, and might be easier to apply.”

“88. Applying the approach of looking at whether a private individual would have owed the children a duty of care to protect them from harm, it is clear that the claimants must here establish a relevant assumption of responsibility. This is because we are concerned with a failure to benefit the claimants by protecting them from harm by a third party. To establish liability for such a failure to benefit (which can be viewed as imposing liability for an omission), which is the exception rather than the rule in the common law, one of the recognised exceptional principles must be established. These principles were neatly encapsulated by Stelios Tofaris and Sandy Steel, "Negligence Liability for Omissions and the Police" (2016) 75 CLJ 128 in a summary which was cited and approved in Robinson and then in N v Poole. "In the tort of negligence, a person A is not under a duty to take care to prevent harm occurring to person B through a source of danger not created by A unless (i) A has assumed a responsibility to protect B from that danger, (ii) A has done something which prevents another from protecting B from that danger, (iii) A has a special level of control over that source of danger, or (iv) A's status creates an obligation to protect B from that danger."” "In the tort of negligence, a person A is not under a duty to take care to prevent harm occurring to person B through a source of danger not created by A unless (i) A has assumed a responsibility to protect B from that danger, (ii) A has done something which prevents another from protecting B from that danger, (iii) A has a special level of control over that source of danger, or (iv) A's status creates an obligation to protect B from that danger."”

“106. We agree with Baker LJ that it is plainly incorrect to say that there can never be an assumption of responsibility by a local authority, in respect of social work functions, to protect a child from harm. The obvious example is where the local authority has obtained a care order and has thereby taken on parental responsibility for a child: see para 30 above. In that situation, therefore, the local authority has assumed responsibility to use reasonable care to protect the child from harm including harm from third parties. This is exemplified by Barrett v Enfield London Borough Council [2001] 2 AC 550 ("Barrett") which was explained and approved in N v Poole at paras 69, 73 and 81. Lord Faulks submitted that that case did not establish that there was an assumption of responsibility even where a care order had been obtained because the decision not to strike out was based on a number of factors including that, at the time the case was decided, the decision in Osman v United Kingdom (Application No 23452/94) (1998) 29 EHRR 245 was casting a shadow over English courts' general approach to a strike out application. We reject that submission. The decision in Barrett is correct and is not restricted in the way suggested by Lord Faulks. 107. We also agree with Baker LJ that it is incorrect to say that there can only be an assumption of responsibility where, as in Barrett, the local authority has obtained a care order. While acknowledging that there may be other examples of an assumption of responsibility arising on particular facts, it is helpful to focus on the YXA case. In our view, and in agreement with Master Dagnall (see para 64 above), by accommodating YXA under section 20 of the 1989 Act, there was an assumption of responsibility by the local authority during the time that the child was in respite care, including the mechanics of return, to use reasonable care to protect the child against harm including from third parties (and it should also be noted that, as laid down in Armes v Nottinghamshire County Council [2017] UKSC 60, [2018] AC 355, in respect of abuse by the foster parents themselves, the local authority may be vicariously liable to the child for the torts of the foster parents). The assumption of responsibility flows from the fact that the child's safety has been entrusted to the local authority by the parents, the local authority has accepted that responsibility, and indeed the parents may be said to have delegated parental responsibility to the local authority (see para 36 above). If one thinks of the analogy of a private individual, a similar duty of care at common law would arise if a private individual was requested by a parent to, then agreed to and did, accommodate the parent's child. The assumption of responsibility flows from the fact that the private individual was entrusted by the parent with the child's safety and accepted that responsibility. An assumption of responsibility would be for the period of time that the child was being accommodated (and in respect of the mechanics of return) so that the private individual would owe a common law duty of care to protect the child against harm including from third parties during that period of time.”

“12. Section 6 of the Human Rights Act 1998 (the "HRA") provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. A person may bring proceedings in an appropriate court for a remedy which may include damages in certain circumstances: see sections 7 and 8 of the HRA. "Convention rights" are defined in section 1 of the HRA and include the right under Article 3 of the Convention which provides that: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." 13. The principles governing Article 3 are well established in the case law and are usefully summarised in X v Bulgaria (2021) 50 BHRC 244 in the following way (references omitted). "177. The obligation of the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment, including ill-treatment administered by private individuals…Children and other vulnerable individuals, in particular, are entitled to effective protection … 178. It emerges from the Court's case-law as set forth in the ensuing paragraphs that the authorities' positive obligations under Article 3 of the Convention comprise, firstly, an obligation to put in place a legislative and regulatory framework of protection; secondly, in certain well-defined circumstances, an obligation to take operational measures to protect specific individuals against a risk of treatment contrary to that provision; and, thirdly, an obligation to carry out an effective investigation into arguable claims of infliction of such treatment. Generally speaking, the first two aspects of these positive obligations are classified as "substantive", while the third aspect corresponds to the State's positive "procedural" obligation.” 14. Thus, Article 3 prohibits a state from inflicting inhuman or degrading treatment or punishment. It also imposes certain positive obligations on the state. These include putting in place a legislative and regulatory system for protection (often referred to as the "systems duty"). They also include an obligation to take operational measures to protect specific individuals from a risk of being subjected to treatment contrary to Article 3 (often referred to as "the operational duty"). They also include an obligation to carry out an effective investigation into arguable claims that treatment contrary to Article 3 has been inflicted (often referred to as the "investigative duty").” "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." "177. The obligation of the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment, including ill-treatment administered by private individuals…Children and other vulnerable individuals, in particular, are entitled to effective protection … 178. It emerges from the Court's case-law as set forth in the ensuing paragraphs that the authorities' positive obligations under Article 3 of the Convention comprise, firstly, an obligation to put in place a legislative and regulatory framework of protection; secondly, in certain well-defined circumstances, an obligation to take operational measures to protect specific individuals against a risk of treatment contrary to that provision; and, thirdly, an obligation to carry out an effective investigation into arguable claims of infliction of such treatment. Generally speaking, the first two aspects of these positive obligations are classified as "substantive", while the third aspect corresponds to the State's positive "procedural" obligation.”

“57. … There needs to be (1) a real and immediate risk (2) of the individual being subjected to ill-treatment of such severity as to fall within the scope of Article 3 of the Convention (3) that the public authority knew or ought to have known of that risk and (4) the public authority failed to take measures within their powers which, judged reasonably, might have been expected to avoid the risk.”

“97. … Allegations of ill-treatment falling within the scope of Article 3 will invariably engage the criminal law and the language used to describe the duty strongly indicates that 'investigation' in this context has a particular meaning. The investigative duty as described in D (supra) makes it clear that it refers to a criminal investigation discharged by the police and prosecuting authorities after the fact to recognise, apprehend and punish the wrongdoer. It is not an investigation for which the primary purpose is to establish the existence of future potential harm and protect the victim against it. The provisions of the 1989 Act are framed to empower social workers to investigate a child's circumstances in order to take steps to prevent any risk or further risk of significant harm. The purpose of section 47 investigations is to decide whether and what type of action is required to safeguard and promote the welfare of a child who is suspected of, or likely to be, suffering significant harm. Referrals may arise from the police or school. The provisions do not require an independent enquiry to identify what has happened and the purpose is not to punish a wrongdoer. 98. Accordingly, the investigative duty does not apply in the present case.”

“ 30. Prior to the final hearing the children's guardian had formally notified the local authority that she intended to issue proceedings in respect of the local authority's multiple breaches of DS's human rights contrary to Article 6 and Article 8 of the European Convention on Human Rights and Fundamental Freedoms A50 (‘the Convention’). 31. The mother issued proceedings against the local authority claiming damages for various alleged breaches of her Article 6 and Article 8 Convention rights. 32. Despite the appalling conduct of the local authority hitherto, it is right that I record that at the final hearing the local authority conceded it was liable in respect of both claims. It accepted it had acted in violation of DS's and the mother's article 6 and article 8 convention rights as follows: (a) … (b) Whilst the child was accommodated pursuant to section 20 CA on 30 January 2013, a decision to initiate proceedings was not made until 23 May 2013 and an application for a care order was not made until 5 November 2013. Over this period of 11 months the child was without access to any independent representation of his welfare interests and had no access to any remedy or recourse and no person was exercising parental responsibility for him, in breach of the child's article 6, 8 and 13 rights.” (a) … (b) Whilst the child was accommodated pursuant to section 20 CA on 30 January 2013, a decision to initiate proceedings was not made until 23 May 2013 and an application for a care order was not made until 5 November 2013. Over this period of 11 months the child was without access to any independent representation of his welfare interests and had no access to any remedy or recourse and no person was exercising parental responsibility for him, in breach of the child's article 6, 8 and 13 rights.”

“54. The assertion that appeared to have been made on behalf of AB was that he had a civil right to be taken into care. A child has no 'right' to seek a care order, or to have one made in respect of their care (see Re S [2002] UKHL 10, [2002] 2 AC 291, §65-81 and §78). It is only a local authority (or an authorised person) that is empowered to make an application to the court for a care order. In making such an application, the local authority is not acting on behalf of the child. The child is a respondent to the application and is separately represented by a Guardian ad litem. Further, the interests of the local authority and the child will not necessarily align. There is also no relevant dispute in this case. The defendants had not done anything to interfere with AB's rights or taken any action in relation to which such a dispute could have arisen. 55. Further, in PoC 5 it is averred that the defendants failed to refer the matter to court. In respect of BCC the case had been closed since October 2006, with no further social services involvement until 21 July 2008. There was no arguable basis for any social services involvement, let alone an application for a care order " shortly before July 2008 ". WCC social services opened the case for Initial Assessment in April 2012. There were various interventions thereafter, but it is not arguable that a care order, which is the most draconian of measures available to a local authority, would have been made on the basis of any of the incidents relied upon in PoC 5.”

“39. … Moreover, I think Mr. Johnson was right in submitting that if the consequences of a breach of a positive obligation are said to have been exposure to the risk of death or serious injury, as was the case here, the claimant can succeed only if he can establish a breach of the state's positive obligations under articles 2 or 3. In DSD v The Commissioner of Police for the Metropolis [2014] EWHC 436 (QB) Green J. observed in paragraph 242 that he could not see any circumstances in which article 8 would provide a greater level of protection than article 3 and that in none of the Strasbourg cases had the court treated article 8 as having an effect extending beyond article 3. It is unnecessary to reach a final decision on that question in the present case, but in a case in which the appellants pursued, but have since abandoned, a claim under article 2, it is difficult to see how they could hope to succeed under article 8. The judge was in my view right to reject that part of their case.”

“52. Thus although it is not a breach of section 20 to keep a child in accommodation for a long period without bringing care proceedings, it may well be a breach of other duties under the Act and Regulations or unreasonable in public law terms to do so. In some cases there may also be breaches of the child's or the parents' rights under article 8 of ECHR.”

“87. … In each case, it is said that the defendant assumed responsibility for protecting the claimant from that harm. In that context, the claimant should therefore identify the facts which are alleged to amount to an assumption of responsibility and the scope and extent of the alleged duty. Put simply, the claimants must identify clearly and concisely what it is said that the defendant has assumed responsibility for, and what facts are relied upon as establishing that the defendant has assumed that responsibility. In addition, the claimant should identify the dates upon which the alleged duty arose and, if relevant, the period or periods during which the duty was owed. The claimant must also identify the facts and matters said to establish breach, causation and loss.”

“The defendant failed to do all that could reasonably be expected of it to prevent treatment of the claimant violating Articles 3 and/or 8 of which it knew or ought to have had knowledge. 1. The defendant knew or ought to have known of a real or immediate risk of such treatment. Paragraphs 87 to 94 are repeated.”

“In light of that actual or constructive knowledge, the Defendant ought to have: a. Assessed properly the risk of harm posed to the Claimant while being accommodated. Paragraph 95(a) above is repeated. b. Provided suitable and reasonably safe accommodation for the Claimant. Paragraph 95(b) above is repeated. c. Arranged for the Claimant to undergo therapy in relation to her experiences of abuse. Paragraph 95(c) above is repeated. d. Issued care proceedings. Paragraph 95(e) above is repeated.”

“The Defendant failed to investigate effectively credible allegations that the Claimant’s Article 3 rights were being or were at risk of being violated. 1. The Defendant knew or ought to have known of a real and immediate risk to the Claimant of treatment violating Article 3. Paragraphs 87 – 94 above are repeated. 2. The allegations that the Defendant failed to investigate are set out above at paragraph 95(a). At what points the Claimant asserts an investigation ought to have been commenced is likewise set out above at paragraph 95(a). 3. All of the investigative failures set out in paragraph 95(a) were egregious and/or significant.”