Switalskis prevent child abuse victim’s case from being struck out by court

By Carole Spencer

Published July 30, 2019In: Child Abuse

Earlier this year Solicitor & Director of the Child Abuse Department, David Greenwood, blogged about a case which had reached the Supreme Court. The case was about whether councils can be held liable for negligent social workers.

The case is called Poole Borough Council v GN [2019] UKSC 25 and the judgment was handed down in June 2019. The case decided the circumstances in which a council owes a duty of care (including to keep children safe).

A case pursued by Switalskis is the first to be decided under the new Poole case rules. We are pleased to announce that a judge has decided in favour of the claimant.

The brief facts of the case, RS v Calderdale Council, are that the child was removed from care of his mother and stepfather in 1972, aged 11, further to his mother making allegations that his stepfather was sexually abusing the child. The mother had significant mental health problems and subsequently withdrew her allegations, essentially blaming the child for the abuse. The child and 2 sisters were removed under a Place of Safety Order and then a number of Interim Care Orders were made.

The stepfather initially admitted the abuse to the police but then withdrew his guilty plea and at trial he was acquitted. A psychologist and a psychiatrist advised against the child going home and in August 1972 the court ordered a further psychiatric report and a detailed assessment. Shortly thereafter social services agreed that further short term care was required ‘until the home situation was resolved’.

Two days later the court ordered a 3 year supervision order to Probation Services and the case was concluded with no further involvement from Social Services. The child returned home and was subject to significant sexual abuse by his stepfather for a further 3 years until his removal in 1975.

As an adult Mr S bravely spoke out about the abuse and secured convictions against his former stepfather in 2016. His abuser was given a prison sentence of 19 years.

Carole Spencer of Switalskis is representing Mr S in a negligence claim against the council which is centred on the failure of social services to take adequate steps to secure a care order to prevent Mr S being returned to his abusive stepfather. If Mr S had remained in care he would have avoided 3 further years of severe sexual abuse and harm as a result. Carole argues that the council had a duty of care and a positive responsibility to safeguard Mr S from the abuse.

Following the Court of Appeal judgment in Poole v CN (subsequently appealed to the Supreme Court) the council applied to court for the case to be struck out and/or summary judgment in their favour.

The application was put on hold pending the outcome of the Supreme Court decision.

On 19 July 2019 the court rejected the application to strike out the claim in negligence in what is believed to have been the first application to be decided after the Supreme Court appeal in CN. The judge held that the council assumed parental responsibility under the Interim Care Order and that an interim order is no different from a final (full) care order. The court held that the council did have a duty of care to Mr S and it is arguable that a child, when taken into care, puts his welfare in the hands of the local authority and therefore relies upon the council’s skill (through its employees) to safeguard him. The judge also rejected the council’s application for summary judgment and the claim will now proceed.

The council sought permission to appeal to a higher court but this was refused.

This is a positive outcome for survivors of childhood abuse and secures the position such that there is no question that a council will have a duty of care to a child who is subject to an Interim Care Order and if they breach that duty they will be liable in negligence.

Reflecting on the case Carole Spencer said : “I am pleased for Mr S. I hope this and subsequent court decisions on the interpretation of Poole v CN come to establish that Councils can’t get away with providing low quality responses to reports of child abuse”.