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child abuse claim strategy whilst we wait for the CN and GN v Poole Appeal

23 March 2018

It is common knowledge now that the Supreme Court has given the claimants permission to appeal in the CN & GN v Poole Borough Council case. In our experience it usually takes about two years for a claim to progress from the Court of Appeal to the Supreme Court and for judgment to be handed down.

A question for all defendants affected by the CN & GN decision is how we litigate during the period of uncertainty until final judgment comes out.

Abuse claims tend to fall into one of three categories:

  • vicarious liability
  • non-delegable duty
  • negligence (in the abuse context, these are generally 'failure to remove' cases).

Case law throughout 2017 and 2018 has shifted the position in relation to these heads of claims. Armes and other cases concerning vicarious liability have broadened the scope of vicarious liability whilst narrowing the circumstances under which non-delegable duties will apply.

By contrast CN & GN v Poole at least for the time being, limits the circumstances in which a duty of care arises. This has led to a renewed focus on the possibility of claims under the Human Rights Act (HRA). It was acknowledged in the Supreme Court decision of The Commissioner of the Police of the Metropolis v DSD and Another that an HRA claim may exist in relation to systemic failings and conspicuous/substantial errors and investigations where there is a credible allegation of serious harm to an individual.

So what does all of this mean? First, we can expect an increasing number of claims against local authorities for alleged abuse by foster carers. Claims against independent fostering agencies (IFAs) are also likely. Given the approach in Armes, it would seem that IFAs are likely to be treated as a foster carer’s 'employer' where they recruit, select and train foster carers, pay their allowances, and provide in-service training. Whether this will absolve a local authority of any liability is unclear. It is well established that more than one defendant may be vicariously liable for the actions of a worker and provision of foster care is core part of children’s services provision. We can expect to see the courts grappling with the details of the roles and responsibilities of local authorities and IFAs under a range of outsourcing arrangements in future claims.

Furthermore claimants’ solicitors are more likely to be pursuing foster care claims because the law in that regard is much more certain now than in claims concerning apparent short comings and social work practice. It is likely that local authorities will continue to be involved in claims where IFAs have been involved, given both the uncertainty in this area and their ability to pay claims.

We can predict further efforts to push the boundaries of vicarious liability, including to other outsourced care provision, such as independent children’s homes.

It is likely claimants solicitors will attempt to put their negligence claims on hold until after the CN & GN appeal is heard. After all, they frequently share the risk of losing with their clients and will only usually get their costs, and a share of the damages, if these claims succeed. The introduction or increased emphasis of human rights elements to the claims is also being used to bolster negligence cases, though in our experience to date these are often inadequately pleaded, with nothing more than an assertion that a right has been breached, and little explanation of the basis on which breach is alleged.

If claimants are children they may not face an immediate limitation deadline in relation to a negligence claim, though human rights claims may be at risk of becoming time barred. This allows children’s solicitors more flexibility to put a claim on hold pending the CN & GN appeal. Where claims are statute barred or likely to become so shortly, they will be anxious to agree limitation moratoriums with defendants and their insurers. Whether that moratorium is appropriate will depend on the fats of each case.

However, the following are likely to be certain:

  • we expect an increase in the number of claims based on vicarious liability
  • although there may be a slowing down in failure to remove claims, we do not anticipate that claimant’s solicitors will hold back on requesting pre-action disclosure of claimants files during this period of uncertainty, exploring the possibility of framing their cases on the basis of Human Rights Act or 'assumption of responsibility'
  • in any case where the claimant is proceeding on a basis other than vicarious liability we expect claimant’s solicitors to be requesting a limitation freeze or a stay. Whether that will be appropriate in any particular case will depend on:
    • the extent of the enquiries you have been able to make to date
    • the survival or otherwise of relevant witness evidence - we know from a government report published last autumn that councils’ ability to recruit and retain its social workers is a concern for over 50% of local authority senior leaders. If there is a risk that key witnesses are about to move on from your organisation, to retire or are in poor health, it may not be appropriate to agree a limitation moratorium. A compromise might be to ask the claimant’s solicitor to provide draft particulars of claim which can be investigated during the moratorium
    • whether you have already formed a view that this is a claim that ought to be settled, whatever the basis of the potential claim
    • issues around breach of duty - if, irrespective of whether there is a duty, you are confident of your defence on breach then it may be appropriate to respond robustly.

The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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