Duty of care: key questions

Child abuse lawyer Peter Garsden explains the implications for councils of recent Supreme Court ruling.

The Supreme Court last month overturned a 2017 Court of Appeal decision that exempted social workers from a duty of care for children not officially in care. Here, Peter Garsden, head of abuse claims at Simpson Millar and president of the Association of Child Abuse Lawyers, explains the implications of the ruling

What areas of safeguarding practice does it cover?

The judgment handed down by the Supreme Court relates to an ongoing claim against a local authority that was accused of failing to protect two young boys from the sustained anti-social behaviour of their neighbours.

While the boys remained in the care of their mother, the local authorities were aware of the abuse, and the emotional and physical impact of the situation on them. It was argued that the children should have been taken into care to protect them.

Although this aspect of the appeal was unsuccessful, other parts of the previous judgment were overturned; specifically relating to the duty of care that council social workers have towards children who were not officially in care.

The previous Court of Appeal judgment ruled that social workers were exempt from being held legally accountable for failing to protect children whom they had not assumed responsibility for, on the grounds that if liability was imposed it would result in "defensive decision making".

But in the judgment handed down by the Supreme Court in June, that decision was overturned and the rule that social workers do owe children a duty of care to protect them from harm - even when there is no care order in force - was reinstated.

This serves to protect children who are known to the authorities to be vulnerable and potentially at risk, but remain in the care of a parent or guardian.

Who does the ruling affect?

This decision will affect any child who is known by social services to be at risk, and yet is not removed from harm and goes on to be subjected to sexual, physical or emotional abuse and neglect.

Various sections of the Children Act 1989 impose on the local authority a duty to ascertain whether a child is in need; to promote their welfare and provide services (section 17); make enquiries and take action where there is a child suffering and if necessary take action under section 47; apply for a care order where the child is suffering significant harm (section 31) and provide somewhere to live (section 20).

The distinction drawn in this case arose from the fact that the harassment and abuse was being caused by a third party - the next-door neighbours - rather than someone within the household, which is usually the case where the abuse happens intra-familial.

Social services' duty of care did not extend to the neighbour's behaviour, nor was there any duty on the housing department.

Does this mean other similar cases can be brought forward?

This does mean that any "failure to care" claim can now be brought by children who have not been cared for properly by social services and have suffered abuse where there were signs that abuse has been taking place, but nothing, or not enough, has been done by social services to take them into care.

Often, appropriate circumstances arise during care cases where the local authority has let the child down, which is picked up by the judge.

They will then give permission for the file to be sent to the Official Solicitor who acts on behalf of any party when there is no appropriate adult to take up such a case on their behalf.

The Official Solicitor then instructs a lawyer to take the case up on behalf of the children, who are usually entitled to legal aid.

As president of the Association of Child Abuse Lawyers, I have heard from many other abuse law experts whose cases have been on hold for the past 18 months awaiting the outcome of this appeal. We estimate that about 1,000 such cases will now be able to progress.

What does it mean for council children's services?

It does not impose any new liability on children's services which did not exist before this case went to the Court of Appeal in December 2017.

It simply reinstates normal liability in negligence for the way in which social workers in local authorities behave towards children at risk or in care.

The law as it was before this decision meant that the less local authorities did to assume responsibility for a child, the less likelihood they would be found liable for what happened if things went wrong.

Will it change how social workers practice?

We hope that this judgment will help to provide clarity for social workers with regards their duty of care when it comes to protecting children who are known to them, albeit not subject to an official care order.

It is also a positive step towards providing reassurance - and access to justice - for those who are being subject to abuse.

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