In CN & Anor v Poole Borough Council  EWHC 569 (QB), the Divisional Court rejected an argument that D v East Berkshire NHS Trust and Others  QB 558 (a duty of care is owed by childcare professionals to children in their care) had been implicitly overruled by the House of Lords in Mitchell v Glasgow Council  1 AC 874 and by the Supreme Court in Michael v Chief Constable of Wales  2 WLR 343.
The case involved an appeal by the Claimants, who were both children, from a Judgment and Order of Master Eastman that their negligence claims against Poole council for failing to protect them from harassment from neighbours on the estate where they lived were struck out.
Mrs Justice Slade said she was bound to apply D v Berkshire, the result being that the boys' claims had been wrongly struck out. She also held that the case of X (Minors) v Bedfordshire County Council  2 AC 633 did not preclude them from pursuing their claim in the circumstances of the 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.