England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		16 March 2016

Mrs Justice Slade:

1. The Claimants CN and GN, appeal from the Judgment and Order of Master Eastman of 2 October 2015 striking out their claims for damages in negligence against Poole Borough Council ('the Council'). At all material times the Claimants' were minors. CN, who is severely disabled, is a protected party and GN who was a child, sue by their litigation friend, the Official Solicitor.
2. Previous proceedings issued by CN and GN and their mother against the Chief Constable of Dorset Police and Poole Housing Partnership Limited as well as the Council were dismissed as no Particulars of Claim were served.
3. The proceedings in issue in this appeal were brought by CN and GN and their mother. Miss Gumbel QC, counsel for CN and GN, stated that two categories of claim were set out in the Particulars of Claim of 7 April 2015. Counsel summarised them in her skeleton argument as follows:

i) A claim by all of the Claimants in common law negligence for the Defendant's failure to protect them as a consequence of its failure to remove the family from their housing on the Grange estate to a place of safety; and

ii) A claim brought by C2 and C3 only, both of whom were at all relevant times under the age of 18 years, for the failure to protect them as children and to remove them from home (and if necessary take them into the care of the local authority) if that was required to protect them from personal injury.

CN and GN appeal from the striking out of the second claim which concerns them alone. The mother does not appeal from the striking out of her claim.

4. Miss Gumbel summarised the issue in this appeal as whether, following Z v United Kingdom [2001] 34 EHRR 3 and subsequent authorities including in particular D v East Berkshire NHS Trust & Others in the Court of Appeal [2004] QB 558 a duty of care at common law can be owed by a local authority to children residing in its geographical area to protect them from harm, in this case risk of personal injury.

Summary of factual allegations

5. CN and GN allege that the Council negligently failed to take appropriate and necessary steps to safeguard them from prolonged abuse, anti-social and criminal behaviour perpetrated by members of a family who lived on the estate on which they were housed by the Council between May 2006 and December 2011. In this Judgment I will use the term 'delinquent' to describe the family although it is not part of my task in this appeal to make findings of fact about their conduct.
6. The Particulars of Claim refer to the distressing factual background that gave rise to the claim which is set out in paragraphs 2.0 to 3.65 of a Home Office Report into Anti-Social Behaviour dated 10 March 2010 ('the Home Office Report'). The Home Office Report paints a picture of the Claimants' family being constantly subjected to threats, harassment, anti-social and sometimes criminal behaviour on the estate where they were housed by the Council. CN attempted suicide.

The Particulars of Claim

7. Miss Gumbel made it clear that it is the striking out of the second category of claim set out in the Particulars of Claim concerning CN and GN alone which is the subject of the appeal before me.
8. Miss Gumbel referred to paragraphs 5.3.1 to 5.3.3 of the Particulars of Claim as setting out the basis for the legal duty of care asserted in the second category of claim. These paragraphs assert that:

i) the Council owed a common law duty of care to protect CN and GN, both of whom lived within the Council's geographical boundaries over the period between May 2006 and December 2011; [5.3.1];

ii) the Council had a statutory duty under the Children Act 1989 sections 17 and 47 to safeguard the welfare and promote the upbringing of all children in their area. Further section 17 makes specific reference to disabled children [5.3.2];

iii) the Children Act 2004 requires local authorities to ensure co-operation between local authorities and other agencies in order to promote the wellbeing and safety of the children in their area [5.3.3].

9. The particulars of negligence alleged by CN and GN alone are set out in paragraph 7.2.(l) to (p) of the Particulars of Claim. In summary these are that the Council:

i) Failed negligently to promote the safe upbringing of CN and GN when they knew that they were children in need of its protection from harm; [(7.2(l)];

ii) Failed negligently to remove CN and GN from the premises and to house them in a place of safety earlier than December 2011 [7.2(m)];

iii) Caused, permitted or suffered CN and GN to remain in the premises when they knew or ought reasonably to have known that they were at a foreseeable risk of harm [7.2(n)(o)];

iv) Failed to protect CN and GN who were vulnerable children [7.2(p)].

10. It is alleged that the negligence of the Council caused CN and GN to suffer physical and psychological damage.

The Judgment of Master Eastman

11. The Judgment of Master Eastman dealt with the application to strike out all the claims which at that stage included that of the mother. This appeal is concerned with the striking out of the negligence claims brought by CN and GN. As Miss Gumbel pointed out, the Master rightly observed that it was the "second limb" of the action which concerned CN and GN. In paragraph 11 of his Judgment he characterised the claim brought by them as raising:

"…a common law duty but also a common law negligence duty in their favour as a result of the provisions of the Children Act 1989 particularly as pleaded sections 17 and 47."

12. Master Eastman set out the broad measure of agreement between the parties as to four basic principles which govern negligence claims such as those before him. He stated:

"7. parties are virtually ad idem as to four basic principles which govern negligence claims in this regard. They have been put before me very helpfully this morning. Firstly in general (a) does not owe a duty of care to (b) to protect them from (c). The exception to that – and it is this exception which is pivotal to this case – exception being where (a) has assumed a responsibility to afford such a duty of care; (a) being the defendant in this case and (b) being the claimants and (c) effectively being the relevant family and their associates.

8. The second principle is that a local authority does not owe a basic common law duty of care to protect people from anti-social behaviour. That is clearly set out in the Hussain case ([1998] EWCA Civ 843).

9. The third basic principle is that, if the local authority is merely exercising a power under a statutory scheme, it does not thereby assume a responsibility at common law to those intended to benefit from the scheme. To which the claimant in this case says yes I agree with that but there will be exceptional cases in certain circumstances where it will have assumed such a responsibility.

10. The fourth general principle to which both parties agree is that, if a local authority knows of particular circumstances affecting an individual it does not mean they assume a responsibility for those characteristics that is the Darby case ([2015] EWHC 909 (QB))"

13. Of the additional claim brought by CN and GN, Master Eastman held at paragraph 18:

"18. Dealing with the second aspect of the claim namely the second and third claimants' alleged common law claims arising out of duties imposed by the Children Act I regret to say that I do not, I am not satisfied that there is any foundation in law for the assertion that there is in fact a common law duty in favour of children provided by that Act particularly in the circumstances of this case. Indeed, consulting as I have Charlesworth & Percy on negligence, chapter 11 paragraph 09, my judgment and the view that I take as to that point which post dates X v Bedfordfordshire [1995] 3 All ER 353 and Z v United Kingdom [2001] ECHR 333 which I am satisfied is a Human Rights Act case and therefore to my mind has nothing really to do with the common law duty position.

Having referred to Charlesworth on Negligence the Master observed:

"19. It is clear from that authoritative text book that the authors of that share the same view as I do that there is no separate common law duty created…."

Accordingly the Master struck out the claims and dismissed the action.

The Statutory Background to the Claims

14. Although CN and GN make no claim alleging breach of statutory duty by the Council it is relevant to consider the "statutory background" to the common law claim made. In X v Hounslow London Borough Council [2009] PTSR 1158 Sir Anthony Clarke MR (as he then was) held at paragraph 11:

"11. We begin with the statutory framework because the council is a creature of statue so that the question whether it owes a duty of care in any particular circumstances must be judged against the relevant statutory background. As Lord Browne-Wilkinson put it in X (Minors) v Bedfordshire County Council [1995] 2 AC 633, 739 c, the question whether there is a duty of care at common law must be profoundly influenced by the statutory framework within which the acts complained of were done. The same must be true of any omissions complained of. "

15. Paragraph 5.3.2 of the Particulars of Claim referred to the Children Act 1989 Section 17 provides:

"(1) It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)-

(a) to safeguard and promote the welfare of children within their area who are in need; and

…

by providing a range and level of services appropriate to those children's needs.

(2) For the purpose principally of facilitating the discharge of their general duty under this section, every local authority shall have the specific duties and powers set out in Part 1 of Schedule 2.

…

(10) For the purposes of this Part a child shall be taken to be in need if-

…

(c) he is disabled,

and "family", in relation to such a child, includes any person who has parental responsibility for the child and any other person with whom he has been living."

It was agreed that CN is and was at the material time a child in need.

16. Children Act 1989 section 20 deals with accommodation. Miss Gumbel accepted that the Court of Appeal in X v Hounslow held that a council's housing duties do not give rise to a common law duty of care. However counsel contended that such obligations may arise from a common law duty of care owed to a child.
17. The Children Act 1989 Section 47 imposes duties on a local authority to investigate and take certain steps in respect of children in their area who are suffering or are likely to suffer significant harm.

The Grounds of Appeal

18. Miss Gumbel submitted that Master Eastman erred in striking out the claims of CN and GM relying on X v Bedfordshire County Council [1995] 2 AC 633 to hold that the Council owed CN and GN no common law duty of care in the circumstances of this case. Counsel submitted that the effect of X v Bedfordshire had been restricted by subsequent authorities and that it was arguable that the Council owed CN and GN such a duty. Further, the reliance placed by the Master on what was the Tenth Edition of 'Charlesworth & Percy on Negligence' compounded the error. The Tenth Edition was published in 2001 and did not refer to cases such as Z v United Kingdom [2001] 34 EHRR 97 and the effect of Convention rights, S v Gloucestershire County Council [2001] Fam 313, Barrett v Enfield London Borough Council [2001] 2 AC 550 and most importantly JD v East Berkshire Health Authority [2004] QB 558.
19. Miss Gumbel and Mr Stagg, counsel for the Council, were agreed on the test applicable to determining whether the Council owed a duty of care to the minors, CN and GN. It is the three stage test of foreseeability, proximity and fairness, justice and reasonableness introduced by the House of Lords in Caparo Industries v Dickman [1990] 2 AC 605. In her submissions Miss Gumbel rightly used the word "proximity" and "assumption of responsibility" interchangeably. Lord Bridge held in Caparo that there was no real difference between the two expressions. He and the judges in other cases added the word "voluntary" to "assumption of authority".
20. Miss Gumbel submitted that it was foreseeable that the Claimants would suffer harm if they were housed in the premises on the estate. The family which perpetrated anti-social and criminal acts affecting the Claimants had been reported to the Council as having caused trouble on the estate before CN, GN and their mother moved in. The Claimants suffered from the very behaviour of which the Council was aware that members of the delinquent family had continuously perpetrated. The Council also knew that CN was disabled and that GN was a minor in a vulnerable family. The harm which the Claimants suffered was foreseeable by the Council.
21. Miss Gumbel submitted that on the pleaded case the Council had assumed responsibility for safeguarding CN and GN and for protecting them from harm. This was demonstrated by the awareness of the Council that a child in need, CN, was living in their area. The Council had been involved in what was described as the plight of the children since before their placement in the premises on the estate in May 2006. The Council had funded extensive adaptations to the property to accommodate CN's needs. They were also aware of the difficult circumstances in which the family lived with the mother being the almost full time carer of a child who could not leave the house.
22. As was observed by Sir Anthony Clarke in X v Hounslow it was relevant to have regard to the statutory background when determining whether a common law duty of care was owed by the Council. In this case the Council owed statutory duties to CN and GN. They were children in need of protection. Whilst the claim made by them was not of breach of statutory duty, its existence was consistent with the assumption of responsibility by the Council asserted by the Claimants.
23. Miss Gumbel submitted that it was fair, just and reasonable to impose a duty of care on the Council in these circumstances. The Master had wrongly relied upon X v Bedfordshire to hold that no duty of care arose in this case. Counsel pointed out that in the X v Bedfordshire group of cases the education cases succeeded but the social services, child abuse cases were held to have been rightly struck out. It was alleged that the local authorities were negligent and owed a common law duty of care in deciding whether or not to take a child into care. The House of Lords held that it was not just and reasonable to impose a common law duty of care on councils in such circumstances.
24. Miss Gumbel contended that Master Eastman was bound to follow the Judgment of the Court of Appeal in the later case of D v East Berkshire NHS Trust and Others [2004] QB 558.
25. The Court of Appeal in D v East Berkshire reviewed the domestic cases decided after X v Bedfordshire, in particular Barrett v Enfield and S v Gloucestershire. Lord Phillips giving the Judgment of the Court in D v East Berkshire held the domestic authorities significantly restrict the effect of X v Bedfordshire.
26. Miss Gumbel stated that after considering the Human Rights Act 1998 and jurisprudence of the ECHR including Z v United Kingdom 34 EHRR 97, the Court of Appeal in D v East Berkshire held:

"81… the reason of policy that led the House of Lords to hold that no duty of care towards a child arises, in so far as those reasons have not already been discredited by the subsequent decisions of the House of Lords, will largely cease to apply…

83. In so far as the position of a child is concerned, we have reached the firm conclusion that the decision in Bedfordshire cannot survive the Human Rights Act …"

This approach had been adopted in Pierce v Doncaster MBC [2007] EWHC 2968 and NXS v London Borough of Camden [2009] EWHC 1786.

27. In answer to the contention by Mr Stagg that the subsequent Judgments of the House of Lords in Mitchell v Glasgow Council Council [2009] 1 AC 874 and of the Supreme Court in Michael v Chief Constable of South Wales [2015] 2 WLR 343 implicitly overruled D v East Berkshire, Miss Gumbel contended that D v East Berkshire had not been expressly overruled nor should this be implied. Further, Michael was not a social services case. Miss Gumbel contended that as D v East Berkshire had not been overruled this Court is bound to follow it. D v East Berkshire removes the exclusionary effect of X v Bedfordshire on decisions by local authorities in respect of claims by children so that negligence claims against local authorities in respect of duties owed to children may be pursued by them.
28. Miss Gumbel submitted that in any event if the issue of whether a common law claim against a council could be brought by children in the circumstances under consideration was not clearly decided by D v East Berkshire it was arguable. X v Bedfordshire no longer precluded a negligence claim brought on the basis advanced by CN and GN. As the answer to the question of whether an arguable case was shown on the pleadings was unclear, the claim was not apt for disposal by striking it out.
29. Mr Stagg for the Council contended that the substance of the claims brought by CN and GN is nothing to do with their duties to children. The substance is that the anti-social behaviour of members of the delinquent family should have been stopped. There was no suggestion that the Council should have taken the children into care. The alleged duty of care to CN and GN had nothing to do with the Children Act 1989. It is established by the authorities that no common law duty of care is owed by a council in respect of anti-social behaviour or to children in respect of re-housing.
30. Mr Stagg submitted that the core finding in X v Bedfordshire that decisions by local authorities whether or not to take a child into care were not reviewable by way of a claim in negligence remains good law. Any observations to the contrary in D v East Berkshire have been overruled impliedly by the House of Lords in Mitchell and the Supreme Court in Michael. However, Mr Stagg fairly recognised that if I declined to accept his argument that D v East Berkshire had been overruled, I must follow the decision of the Court of Appeal in that case. As the claims in this case are brought by children they do not fall within the exclusion of common law claims relating to duties of councils to children as explained in the Judgment of the Court of Appeal in D v East Berkshire. If that decision has not been overruled, X v Bedfordshire would not present an absolute bar to the current claims
31. Mr Stagg fairly drew attention to the Judgment of the Court of Appeal in S v Gloucestershire [2001] Fam 313. May LJ at page 339B referred to the Judgment of the House of Lords in Barrett in which it was held, reversing the decision of the Court of Appeal, that a claim by a child asserting a common law duty of care owed to him by a council in respect of his treatment whilst he was in care was justiciable. In S v Gloucestershire and Barrett it was held that there was no bar to such a claim. The factual basis for it should be investigated to decide whether a common law duty of care was owed in the circumstances.
32. Mr Stagg submitted that the pleaded facts were insufficient to support a finding that the Council had assumed responsibility to protect CN and GN in the circumstances in which they found themselves. That the Council had housed them, carried out renovations on the premises and knew of CN's disability was insufficient. As in Darby v Richmond Upon Thames London Borough Council [2015] EWHC 909 QB, the Council were doing no more than fulfilling their statutory obligations. Knowledge of the children's circumstances did not lead to a conclusion that the Council had assumed the responsibility for protecting them from harm caused by the delinquent family.
33. Mr Stagg submitted that it would not be fair, just and reasonable to impose a duty of care on the Council in this case for the following reasons:

i) The Council did not have the power to re-accommodate or remove the children CN and GN from the premises without a Court Order or the agreement of the parent;

ii) There was no enforceable statutory duty requiring the Council to provide accommodation for the children with their mother;

iii) The Children Act 1989 Section 17 does not impose a duty which is enforceable by judicial review nor does section 47 give the Council power to re-accommodate or remove the children from the premises.

34. Mr Stagg distilled his contention that the Council did not owe CN and GN a duty of care into six propositions:

i) The substance of the Claimants' claim against the Council was that they had failed to rehouse them. The Children Act 1989 is not relevant to such a claim;

ii) The Council owe no duty at common law to prevent anti-social behaviour;

iii) It would be odd if the Children Act 1989 gave rise to liability in these circumstances when there was no duty to exercise powers conferred by other legislation;

iv) The Council's duty to accommodate the children is not enforceable by judicial review. In those circumstances it would be odd if there could be a common law claim in damages;

v) Partner agencies, such as the police, had been involved in the cases of CN and GN. Why should the Council be liable and the other agencies not?

vi) Where there is a legislative scheme which does not provide a private law remedy none should be conferred by other means. Parliament has provided a statutory complaints procedure. Application may be made to the Ombudsman, there are political avenues for redress, as were taken by the mother in this case, and a statutory right of review may be available.

Discussion and conclusion

35. As counsel developed their submissions it became apparent that the principal issue in this appeal was whether the Judgment of the Court of Appeal in D v East Berkshire had been implicitly overruled by Mitchell or Michael.
36. Miss Gumbel contended that Master Eastman erred in law in striking out the claim of the children CN and GN on the basis that no claim could be brought in common law against a local authority who were negligent in the performance of their duties towards children living in their area who were at a foreseeable risk of harm.
37. There have been significant developments in the authorities since the decision of the House of Lords in X v Bedfordshire. The Master relied principally upon that case to hold that the common law claims of CN and GN disclosed no reasonable cause of action. In the child abuse case considered in X v Bedfordshire, the council accepted that the first two of the tests in Caparo were satisfied. The council could foresee damage if they carried out their statutory duties negligently and that the relationship between the authorities and the claimants was sufficiently proximate. However Lord Browne-Wilkinson held that it would not be fair, just and reasonable to superimpose a common law duty of care on the council in respect of the claim of the children of the failure of the council to take them into care. Lord Browne-Wilkinson at page 749F to 751G reached his conclusions for policy reasons.
38. In D v East Berkshire the court heard three appeals together in which a parent and in one case a child claimed damages for negligence caused by false allegations of child abuse. Lord Phillips giving the Judgment of the Court identified the primary issue in each appeal as whether the decision in X v Bedfordshire was fatal to the claim [1]. The Court of Appeal considered the impact of the Human Rights Act 1998, decisions of the ECHR and domestic cases on the issue before it. Having reviewed developments in domestic authorities since X v Bedfordshire, the court held at paragraph 49:

"These decisions significantly restrict the effect of the Bedfordshire cases. So far as the education authority cases are concerned, doubt was cast in Phelps v Hillingdon London Borough Council [2001] 2 AC 633 on the proposition that an education authority owes no duty of care to children when exercising powers and discretions under the 1981 Act. So far as child abuse cases are concerned, much of the reasoning advanced by Lord Browne-Wilkinson to justify holding that there was no duty of care was called into question. Lord Slynn in Barrett v Enfield Borough Council [2001] 2 AC 550 stated that Bedfordshire established that decisions by local authorities whether or not to take a child into care were not reviewable by way of a claim in negligence. We consider that the effect of Barrett and the other decisions that we have considered above is to restrict the effect of Bedfordshire to that core proposition."

39. The Court of Appeal then reviewed the impact of the Human Rights Act 1998 on the common law principles of the law of negligence. Reference was made to Z v United Kingdom 34 EHHR 97 in which it was held that there was a positive obligation in the Government to protect children from treatment contrary to Article 3 of the Convention [57]. The Court of Appeal held that by reason of the Human Rights Act any English court must take into account their Convention rights when considering a claim in negligence by a child. The Court of Appeal held:

"81. Thus litigation involving factual inquiries of the nature considered above is now a potential consequence of the conduct of those involved in taking decisions in child abuse cases. In these circumstances the reasons of policy which led the House of Lords to hold that no duty of care towards a child arises, in so far as those reasons have not already been discredited by the subsequent decisions of the House of Lords, will largely cease to apply. ..

83. In so far as the position of a child is concerned, we have reached the firm conclusion that the decision in Bedfordshire cannot survive the Human Rights Act. Where child abuse is suspected the interests of the child are paramount - see S.1 Children Act 1989. Given the obligation of the local authority to respect a child's Convention rights, the recognition of a duty of care to the child on the part of those involved should not have a significantly adverse effect on the manner in which they perform their duties. In the context of suspected child abuse, breach of a duty of care in negligence will frequently also amount to a violation of Article 3 or Article 8. The difference, of course, is that those asserting that wrongful acts or omissions occurred before October 2000 will have no claim under the Human Rights Act. This cannot, however, constitute a valid reason of policy for preserving a limitation of the common law duty of care which is not otherwise justified. On the contrary, the absence of an alternative remedy for children who were victims of abuse before October 2000 militates in favour of the recognition of a common law duty of care once the public policy reasons against this have lost their force.

84. It follows that it will no longer be legitimate to rule that, as a matter of law, no common law duty of care is owed to a child in relation to the investigation of suspected child abuse and the initiation and pursuit of care proceedings. It is possible that there will be factual situations where it is not fair, just or reasonable to impose a duty of care, but each case will fall to be determined on its individual facts. "

40. If the Judgment of the Court of Appeal in D v East Berkshire remains good law there is no absolute bar to a negligence claim by a child against a local authority for failure to safeguard them from abuse. Lord Phillips explained at paragraph 49 that following developments in domestic jurisprudence the effect of the Bedfordshire case was restricted to the core proposition that decisions by a local authority whether or not to take a child into care were not reviewable by way of a claim in negligence. However the Court of Appeal held that the Human Rights Act and Strasbourg jurisprudence led to the removal of an absolute bar to claims falling within the "core proposition" in X v Bedfordshire which remained after Barrett. As was emphasised by Lord Phillips in D v East Berkshire at paragraph 84, whether all the elements founding a potential liability as explained in Caparo are present will depend on their individual facts.
41. Has D v East Berkshire been overruled? Mr Stagg contended that D v East Berkshire had been overruled implicitly by Mitchell and Michael. Mitchell concerned the liability of a local authority to warn a tenant about an event which could trigger violence by another tenant against the claimant. It was held that no action was taken by it to show that the local authority made itself responsible for protecting the claimant from the criminal act of another. Accordingly it would not be fair, just or reasonable to impose a common law duty of care on the local authority. The only reference in the Judgment to D v East Berkshire is in the speech of Lord Hope. At paragraph 7 Lord Hope held:

"It has been held in a series of cases that a local authority is not normally liable for errors of judgment in the exercise of its discretionary powers under a statue: see Hussain v Lancashire City County [2000] QB 1. X (Minors) v Bedfordshire County Council [1995] 2 AC 633; D v East Berkshire Community Health NHS Trust [2005] 2 AC 373, paragraph 82, Lord Nicholls of Birkenhead"

The Court of Appeal in D v East Berkshire allowed the appeal of the child claimant from the dismissal of their claim. The Court of Appeal dismissed the appeals by the parents from the dismissal of their claims. The Court of Appeal drew a distinction between the case for a duty of care owed to the child and that to the parent. The Court decided that the limits placed by X v Bedfordshire on negligence claims against local authorities in respect of their duties to children did not apply to the claim of the child. Lord Phillips at paragraph 86 observed that "The position in relation to the parent is very different". The parents appealed to the House of Lords. Their appeal was dismissed. Dewsbury Council did not appeal from the decision of the Court of Appeal allowing the appeal in the child's claim in the East Berkshire group of cases. The reference in paragraph 7 of Mitchell to D v East Berkshire in the House of Lords does not affect the decision or the dicta of the Court of Appeal in the case concerning the child. No other observation was made by the House of Lords in Mitchell about D v East Berkshire. That case cannot be said to have been overruled by Mitchell.

42. The Supreme Court in Michael considered whether the claimants, a victim's estate and her dependents, could bring a claim in negligence against a police force (by the Chief Constable) for failing to prioritise a call from a victim who was then killed by her partner. By majority the Supreme Court held that the duty of the police for the preservation of the peace did not involve the kind of close or special relationship necessary for the imposition of a private law duty of care. The only references to D v East Berkshire were at paragraphs 123, 126 and 191. Lord Toulson referred to D v East Berkshire in paragraphs 123 and 126 when setting out the contentions of counsel for the claimant. It was an argument by analogy with D v East Berkshire which Lord Toulson said at paragraph 127 had been rejected by the House of Lords in Smith v Chief Constable of Sussex Police [2009] 1 AC 225. Lord Toulson referred in particular to the speech of Lord Brown (paragraphs 136-139). The reference in paragraph 139 to D v East Berkshire is to the Judgment of the House of Lords in the parents' appeal. It does not affect the effect of the dicta of the Court of Appeal in the unappealed successful appeal by the child.
43. At paragraph 191 of her dissenting Judgment in Michael, Baroness Hale referred to the question of whether public authorities ever owe a duty of care in negligence towards individuals who suffer harm if they fail to perform those duties. Generally they do not. Baroness Hale observed:

"However, there are exceptions, and one which I find particularly instructive in this case is that established by the Court of Appeal in D v East Berkshire Community NHS Trust [2004] QB 558"

Baroness Hale at paragraph 192 quoted from paragraph 81 of the Judgment of the Court of Appeal.

44. For these reasons I do not accept the submission of Mr Stagg that the Judgment of the Court of Appeal in D v East Berkshire as it affected the claim by the child in that case had been implicitly overruled by the Judgment of the House of Lords in Mitchell and that of the Supreme Court in Michael. Counsel rightly recognised that if I did not accept his contention that the Judgment of the Court of Appeal in D v East Berkshire had been overruled I am bound to apply it. I do so. The result is that the claims of CN and GN against the Council for negligence were wrongly struck out. X v Bedfordshire does not preclude the child claimants from pursuing such a claim in the circumstances of this case. The claim will be considered on its particular facts to ascertain whether all the elements necessary to establish a cause of action in negligence are present: foreseeability, proximity or assumption of responsibility and that it is fair, just and reasonable to impose liability. Whether a common law duty of care was owed by the Council to CN and GN will depend upon a full examination of the facts. This issue is not apt for determination on an application to strike out the claim. Actions can only be struck out under CPR 3.4(2)(a) on the grounds that they disclose no reasonable cause for bringing the claims. The Master erred in so finding in this case.
45. Although it appears that no Anonymity Order has been made in these proceedings up to now and no formal application has been made, in my judgment an Anonymity Order should now be made. The Second Claimant is a protected party by reason of his serious disability and the Third Claimant sues by his litigation friend as he is a minor. Both are suing by the Official Solicitor. An important part of the allegations they make is that by reason of the alleged negligence of the Defendant Council they have been subjected to ongoing serious harassment and worse. Balancing their Article 8 rights with the public interest in publishing a report of proceedings that identified the Claimants, in my judgment the circumstances require the making of such an Order. It will remain in force until after Judgment in the substantive hearing of the claims or further Order. The Second and Third Claimants will be known as CN and GN respectively. The Respondent Council does not object to the making of such an Order. Consequential Orders will also be made.
46. The appeal is allowed and the Order striking out the claims of CN and GN is set aside.