A DECISION by the UK Supreme Court will mean that Children’s Services will potentially be able to avoid negligence claims by failing to act in cases where there is an obvious risk of harm to children, according to a lawyer who specialises in this area.
Advocate Darry Robinson, who is a leading children’s and human rights lawyer, said that the decision by the UK’s highest court would have “significant negative ramifications for Jersey children who have been abused while the Children’s Service were actively involved with their families and failed to prevent them from suffering harm”.
Advocate Robinson was responding to a judgment published last year, but whose significance is now being felt in Jersey, which involved two UK individuals who were children when they suffered sexual and/or physical abuse by their parents or parents’ partner.
They took their local councils to court, arguing that the councils should be held liable for negligently failing to protect the then-children from the harm they suffered.
It was argued that the local councils owed the children a duty of care because they had assumed responsibility for them by virtue of their involvement with the families and they should have taken steps to protect them from harm.
However, this argument was rejected by the Supreme Court, which ruled that a duty of care to protect a child from harm would only arise in circumstances where the local authority had “assumed responsibility” to protect the child from harm.
Advocate Robinson said: “That assumption of responsibility is now extremely difficult to establish in cases where there is a failure to act by the Children’s Service.
“The Supreme Court found in one of the children’s cases that an assumption of responsibility did not arise from the alleged local authority’s intention to carry out the keep safe work and that assessments of the child’s safety within the family was no more than preparatory step towards protecting the child.
“Even though the failings may be viewed as significant, the actions of the local authority fell significantly short of being an assumption of responsibility to protect the child from abuse.”
On the impact of the Supreme Court ruling in Jersey, Advocate Robinson said: “English law may be persuasive where Jersey law is based on English law. These cases were concerned with the law of negligence, in which the Courts of Jersey have accepted the English principles. It seems, therefore, that these cases will be a highly persuasive legal authority in the Courts of Jersey.
“The most difficult advice we are now giving to vulnerable children and adults is that no matter how obvious it was that they were being abused in the family home, the fact that the Children’s Service did nothing means that it is not possible to advance a claim against them for their inaction.”
