Reporting and acting on child abuse and neglect Government consultation

The duty of care exists in common law. This means that it is not set out in written statutory law,
but is derived from historic judgments made by the courts. The duty of care is a civil (rather
than criminal) law concept. It is considered to represent the circumstances/relationship that
place an obligation upon an individual or organisation to take proper care to avoid causing
some form of foreseeable harm to another individual. An individual may bring a claim in the civil
courts against an individual or organisation for breach of a duty of care and be awarded
damages for that breach by a court – this is often referred to as a claim for ‘negligence’.

  1. In order for a claim to be successful:
     a duty of care must have been owed to the individual bringing the claim;
     that duty must have been breached;
     harm (damage) must have been caused as a result of that breach; and
     that harm must have been reasonably foreseeable.
  2. The courts will also consider whether it is fair, just and reasonable to impose a duty of care.
    This means that a duty of care will exist for some practitioners/organisations when they are
    providing a service to children and/or families, in certain circumstances, but not others. This is
    not consistent across all types of practitioners/organisations and the courts will look at the
    specific facts of the case when making a decision as to whether a duty of care applies in a
    particular case.
  3. The case law is complex but, for example, a duty of care will not always be considered to be
    owed by local authorities or social workers investigating allegations of sexual abuse against
    children. A duty of care may apply in relation to social workers and local authorities where the
    child in question is a child in care, however. The courts have decided that the police do not
    generally owe a duty of care to individual members of the public for their activities in the
    investigation and suppression of crime, although a duty may arise in specific circumstances if
    the police were aware of particular threats against individual claimants.

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