Two brothers who claim they suffered harassment and abuse from neighbours have lost a landmark Supreme Court bid for compensation from their local council – but the Court reinstated the potential for children and young people to bring negligence claims against local authorities who have failed to protect them from harm.
The pair, identified only as CN and GN, alleged Poole Borough Council negligently failed to protect them from harm between 2006 and 2011, when they were aged under 10.
Part of their case was that they should have been taken into care for their protection.
But a panel of five justices ruled that their claim could not go ahead because the local authority had not assumed responsibility for their safety and did not owe them a duty of care.
The judges said there were “simply no grounds” for the council to take them into care, because the alleged harm they suffered was from their neighbours and not from a lack of parental care.
Lord Reed, giving the lead ruling, said: “Although the court does not have before it all the evidence which may emerge at a trial, there is no reason to believe that the claimants could overcome these fundamental problems as to the legal basis of their claim.
“That being so, it is to the advantage of all concerned that the claim should not proceed to what would be a costly but inevitably fruitless trial.”
CN, who is severely disabled, and his brother GN claimed the council knew they were at foreseeable risk when they were housed next door to a family who engaged in persistently anti-social behaviour.
The pair were said to have suffered significant physical and psychological harm as a result of attacks, threats of violence, verbal abuse and vandalism, and GN attempted suicide at the age of 12.
They brought claims against the council for breach of a common law duty of care derived from statutory duties under the Children Act 1989 but, in 2017, the Court of Appeal ruled against them.
The Supreme Court justices agreed with the Court of Appeal’s decision that CN and GN’s case should not proceed, but came to a different conclusion on the effect of previous rulings.
Lord Reed said that, although it did not apply in this case, there are circumstances in which a local authority can be held accountable for failing to protect vulnerable children.
The case was supported by charities including Article 39, which fights for the rights of children and young people who live in children’s homes, prisons and other institutions, and the Care Leavers’ Association, which supports care leavers of all ages.
Lawyers from Simpson Millar, which represented the charities, welcomed the ruling, saying it offered clarification on the law and meant other claims – which had been on hold following the Court of Appeal decision – could now go ahead.
Peter Garsden, a partner at the law firm, said: “This decision affects some of the most vulnerable members of our society and we are delighted that those affected will continue to have access to the justice that they deserve in instances where they are let down by those they have put their faith in.”
Carolyne Willow, director at Article 39, said: “We are incredibly relieved that the Supreme Court has reinstated the potential for children and young people to bring negligence claims against local authorities who have failed to protect them from harm.”
David Graham, national director of the Care Leavers’ Association, said: “A court ruling that a local authority had a duty of care and acted negligently can give care leavers a real sense of justice and vindication, as well as financial compensation for harm that should never have happened.
“We hope the courts will now quickly deal with the backlog of cases from adults who were failed as children.”
Three men have been jailed after being found guilty of historical sexual abuse at a school for vulnerable boys over a period of more than 30 years.
Colwyn Baker, 71, David Hennessy, 75, and Nigel Putman, 62, abused youngsters at the now-defunct Swaylands School in Penshurst, Kent.
As well as the abuse committed by the trio, Baker encouraged other pupils to abuse other children at the school for youngsters aged around eight to 16.
His “favourites” were known as “Baker’s Boys” and over many years Baker “ruled by fear” using intimidation and coercion, a judge said.
Sentencing the men, the judge said the case “constitutes one of the worst possible breaches of trust that a court can deal with”.
And he added that the abuse suffered by the victims would be “seared in their memory banks … for the rest of their lives”.
The three men were residential child care officers at Swaylands, which closed in 1994, but their abuse left many victims with life-long problems, according to victim impact statements.
Barnet Council in north London ran the school, which was an institution for young people with moderate learning difficulties and later schooled boys with emotional and behavioural problems.
At Maidstone Crown Court today, Baker, of Craighouse Avenue, Morningside, Edinburgh, was jailed for 20 years after being found guilty of 20 counts, stretching back to 1963, following a 12-week trial.
Hennessy, of Westfields, Narborough, King’s Lynn, Norfolk, was jailed for 12 years after being convicted of six counts and Putman, of Kings Road, Slough, Berkshire, was jailed for three years after being found guilty of two counts.
In a packed courtroom, victim impact statements were read by prosecutor Philip Bennetts QC, detailing the toll the abuse had had on victims’ lives.
One victim said in his statement: “At the time I didn’t realise it was wrong because the abuse was done in a way that made it seem OK.
“I was sent to the school because I needed looking after. I was a little boy and I wasn’t looked after. I was made to do things that I shouldn’t. This will always affect me.”
Another told how he had only been at the school for two weeks when Hennessy started abusing him. He said he blamed himself “for letting him do it” and could “never sleep peacefully”.
He said: “I didn’t stand a chance. It was a school for vulnerable children and they took advantage of that.”
He added that the experience had “ruined his life” and he suffers from nightmares and flashbacks.
All three men sat in the dock impassively as the statements were read, with Baker occasionally taking sips from a cup of water.
During their trial, Mr Bennetts said the atmosphere at the school was one “where abuse was almost the norm”.
One of Baker’s victims became so scared that he often stayed awake at night, sleeping in stairwells to avoid Baker.
As a result, the boy would often fall asleep in class, causing a dramatic decline in his learning. But Mr Bennetts said the boy ended up being caned by the headmaster as a punishment for dozing off.
In mitigation, Benjamin Narain, defending Baker, said he suffered from medical issues, including hypertension, diabetes and had made several suicide bids after suffering depression.
Since leaving Swaylands, Baker had gained a degree in software engineering from Edinburgh Napier University, Mr Narain added.
He conceded that prison would be a “hard experience” for Baker but accepted he faced a lengthy term of imprisonment for the abuse he committed.
Alan Kent QC, for married ex-Royal Navy member Hennessy, spoke of his client’s confusion about his sexuality in his younger years. And he said Hennessy had lived for the past 20 years an “unblemished life” in Norfolk.
Henry Grunwald QC, for Putman, described his client as “of positive good character” who was married with an adopted daughter, adding he suffered from Type 2 diabetes and was the primary carer for his ill wife.
Lawyers at law firm Leigh Day, representing survivors of abuse at the school, have said the men “picked on” the most vulnerable children who came from already troubled backgrounds or had special needs.
Instead of being sent from London to Swaylands to be cared for, the men “cruelly abused” them and created an environment where sex between children became “normalised through fear”, said Alison Millar, head of the abuse team at Leigh Day.
Questions have been raised about the checks made to ensure appropriate people were trusted with the care of the children and about supervision arrangements.
Jurors were told during the trial that Baker was convicted in 1994 of four counts of indecent assault on a boy aged under 16 and one count of gross indecency.
And it was also disclosed that Hennessy was convicted in December 1993 of four counts of indecent assault on a boy and two sex offences against a pupil.
There were further calls, following the case, for a British “mandatory reporting” law to be introduced where those who do not report child abuse suspicions face prosecution.
Barnet Council has said it was sorry for the abuse suffered by the victims. And it said there was a “continuing need to learn lessons from the past” to keep children safe.
A council spokesman said it no longer runs distant boarding schools for vulnerable children. Barnet’s two current residential children’s homes are both within the borough.
Judge Philip Statman said that, to the outsider, Swaylands had excellent facilities, with a swimming pool and regular trips were laid on for children.
“But when the veneer was stripped away in this courtroom it has been revealed in a wholly different picture, namely one of sexual abuse, perpetrated by those in a position of trust against young, vulnerable boys as they approached and proceeded through adolescence,” he said.
The judge praised the victims for their “courage, dignity and restraint” as well as police for upholding the “highest standards”.
And, addressing the men in the dock, he went on: “What those pupils, as they then were, suffered at your hands is seared in their memory banks, in my judgment, for the rest of their lives.
“At a time when they were journeying through adolescence and had arrived at school with educational difficulties, needing stability and a caring environment, they were met by sexual abuse.
“The night-time hours became a time of fear for them. Who among those who have sat in this court listening to the evidence will forget the evidence of (a victim) and of how he would hide at night to avoid attention from sexual abuse.
“They remained scarred by what happened to them and it’s clear from their victim impact statements of their shame and embarrassment.
“Who could they trust? Who would listen to them? How many have had to challenge their own sexual identity?”
Following the case, Detective Superintendent Paul Fotheringham, of the Kent and Essex Serious Crime Directorate, said: “This sentencing brings to a close a comprehensive investigation that has lasted a number of years.
“I’m pleased with the sentences that have been passed, and it shows that no matter how long the passage of time, if you are convicted of carrying out sexual offences you will feel the full weight of the law.
“As residential child care officers, Baker, Hennessy and Putman were supposed to look after the boys out of class. Instead they exploited the pupils in their care and committed horrible acts over a long period of time.
“The first victims in this case came forward in 2011. But it soon became apparent there had been others affected and officers went to great lengths to ensure no stone was left unturned.
“After a great deal of work by all parties, the Crown Prosecution Service agreed to charge these three men with 48 counts of sexual abuse on 24 children, though our officers spoke to many more ex-pupils as part of our very thorough investigation.
“Officers heard how some children who tried to resist the offenders’ abuse would be beaten or refused food. At other times, classmates of uncooperative victims were denied leisure activities – to make the victim unpopular and feel guilty.
“Despite the weight of this corroborative evidence the three men refused to admit to their crimes. Instead they forced their victims to appear at court and recount the abuse they had suffered all those years ago.
“We had 65 ex-pupils make allegations, and with the victims and CPS we have put forward the strongest case to the court.
“All the victims were involved in the process and have been kept fully up to date. This is justice for all of them and I’d personally like to thank all those who have helped bring this case to a conclusion.”
Alison Millar, head of the abuse team at law firm Leigh Day which is representing survivors of abuse at the school, said: “These offences were hideous and the sentences handed down are significant given the restrictions on the judge to use the sentencing requirements of the time, when the maximum sentences for serious sexual assault were very different.
“One of our clients told us that it felt like they’d waited all their life for this moment.
“However, the criminal justice process has been traumatic for our clients, requiring them to relive the most personal and traumatic memories and feelings and then be cross-examined in court about their recollections.
“This case clearly demonstrates the vital importance of proper support and assistance for those dealing with the lasting effects of abuse.
“It is also of great concern that Hennessy was allowed back into his post, to continue to abuse boys, having left ‘under a cloud’ 18 months before.
“The mistakes of the past cannot be allowed to happen in the present. We urgently call for mandatory reporting of all suspected child abuse to ensure that all schools and other institutions are made to report such concerns to the police and cannot be allowed to deal with it as they see fit.”
Theresa May is expected to announce the new chair of the troubled child abuse inquiry following the resignations of two previous holders of the post.
The Home Secretary has also been considering the format of the inquiry, which could potentially involve scrapping the existing panel and replacing it with a more powerful body.
The new appointment follows the loss of two former chairwomen, who stood down over perceived conflicts of interest.
A Home Office spokesman said: “The Home Secretary has been having a series of meetings with survivors of child abuse right up to this point. She is going to make an announcement today.”
The first person appointed to lead the inquiry was Baroness Butler-Sloss, who stood down as chairwoman in July last year amid questions over the role played by her late brother, Lord Havers, who was attorney general in the 1980s.
Her replacement Dame Fiona Woolf resigned following a barrage of criticism over her “Establishment links”, most notably in relation to former home secretary Leon Brittan, who died last month.
Mrs May, who set up the inquiry to consider whether public bodies had neglected or covered up allegations of child sex abuse following claims paedophiles had operated in Westminster in the 1980s, is also due to set out how it will proceed.
A fresh statutory inquiry or a Royal Commission could be set up to continue the work.
Alison Millar, from the law firm Leigh Day, which is representing dozens of abuse victims, said the inquiry had been a “shambles”.
Asked what she wanted to see happen, she told BBC Radio 4’s Today programme: “Obviously, rebooting this inquiry so that it has a new head in terms of the chair and so it is reconstituted with statutory powers, I think that’s very important.
“There is, as far as I can tell, almost unanimous agreement that an inquiry of this nature requires the power to compel witnesses to attend and to require the production of documents.
“I think terms of reference and a structure that engages much better with abuse survivors and gives them the confidence that this inquiry will listen to them and learn from them.”
She added: “The people I represent have really been waiting a lifetime for an inquiry like this but have become increasingly sceptical that this inquiry is going to get to the fundamental truth given the shambles there has been in the over 200 days since it first set up.”
Ms Millar suggested a Royal Commission could be the way forward: “That is the scale of the problem and if we are going to do this we have got to do this properly.”
Former children’s minister Tim Loughton said the situation had become a “mess” but the inquiry had to happen.
The Tory MP told Today: “We have just got to park on one side that this could have been handled a lot better, the way it was established could have been rather more transparent.
“I think nobody should doubt the Home Secretary’s absolute sincerity and commitment that we should get to the bottom of what is a very long, complicated, historical sex abuse story.”
He added: “People’s confidence has been completely knocked because of this constant tsunami of historic cases coming out.
“We need to get to the bottom of it, we need to see where it went wrong, how society appears to have covered up, is that cover-up still happening in certain places, are people responsible for that cover-up still in places of responsibility and, ultimately, now we must be assured that we have a child protection system… that is fit for purpose.
“That’s why we need an over-arching inquiry on top of all these different reviews and prosecutions going on, which must continue to go on, and we have got to get this back on track.”