Abuse: Exposure to abuse in a family setting + action against a public authority (England).

There remain differeces between Australian and English law, however DFX & Ors v Coventry City Council [2021] EWHC 1382 (QB) (available on BAILII) remains of interest.

The claimants’ case was that they each suffered abuse, including sexual abuse, and neglect whilst in the care of their parents before their removal from the family in 2010. The claimants allege that their parents were unfit to be parents and that this should have been obvious to the social workers involved with the family. The action against the authority was brought in negligence and under the Human Rights Act 1998 (“the 1998 Act”) for breach of Articles 3 and 8 of the European Convention on Human Rights. The argument on Article 8 was withdrawn by the claimants during the course of the trial.

The primary judge noted that “The first issue that I need to resolve is the existence, or otherwise, of a private law duty of care owed by the defendant’s social workers (and other members of the child welfare team) to the claimants” (at [14]). Breach of duty focused on events in 2002 and whether care proceedings should then have been commenced (at [19]). As to causation, the claimants’ case is that, whether commenced in 2002, late 2003 or early 2004, care proceedings would have, on balance, led to an order by the court removing the claimants from the family (at [22]).

Briefly summarising the outcome:

  • The claim is an “omissions” claim and that the omission alleged is a failure by the local authority to exercise a statutory function.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. [195], [199].
  • On the facts of this claim, no duty of care was owed by the defendant to the claimants: [209].
  • As to breach, throughout its involvement the social workers’ risk assessments and decisions were reasonable. With hindsight it goes without saying that it is regrettable that care proceedings were not commenced earlier. The SSD were however faced with what was, at times, a fast-changing situation which they were required to manage within the structure of the 1989 Act and the related guidance. In these circumstances they did a difficult job reasonably: [246].
  • Finally the Court rejected the claimants case on causation, which overlooked the dramatic difference in the family circumstances in 2009 (compared with 2002/4) and the acute deterioration in the functioning of the family in the months directly preceding the application to the court: [251].