Ennis v The Child and Family Agency: Can CFA be liable for actions of third parties not in their care?

On Wednesday, 20th of April, a seven judge panel of the Supreme Court will hear argument in Ennis v The Child and Family Agency on whether the Agency owed Ennis a duty of care for the actions of third parties not the Agency’s care, in the circumstances of the case.

Background

Ms A was a child from a dysfunctional family and was committed to the Agency’s care. Despite Ms A’s history of substance abuse and of absconding from care, on her reaching 18 years of age, the Agency leased a property to provide her with independent living accommodation. After complaints from neighbours about noise, a reported break-in and damage to the contents of the rented property, the Agency terminated the lease and returned Ms A to supervised accommodation. At a later date, Ms A and two young men broke into the formerly rented property, and the young men started a fire in an upstairs room.

Ennis owns the property next door and issued legal proceedings against the Agency for damage caused by the fire. In the High Court (here), Hogan J stated:

109. Take the position of Ms. Ennis. She has lost her house and has been forced to live in rented accommodation for the last nine years. She can justly say that none of this would have come about but for the actions of the HSE in placing a vulnerable teenager with a propensity for reckless and damaging behaviour in the house next door. [113] … as O’Donnell J. pointed out in Whelan, the just and reasonable test itself encompasses policy considerations. It is sufficient to say in this context that if (as has been made clear by a series of decisions of this Court and the Supreme Court) a duty of care can be imposed on the State in supervising and caring for prisoners, the same can be applied by analogy in respect of HSE staff charged with the equally demanding and difficult task of supervising troubled teenagers.

Hogan J held that the Agency owed Ennis a duty of care and made an award of €75,000 for damages. The Agency appealed that decision to the Court of Appeal. Allowing the appeal (here), Kelly J stated:

91. It would be neither fair or just or reasonable to visit a liability on the CFA on the facts of this case. To do so would be to make it liable for the criminal wrongdoing of persons over whom it had no control or indeed any dealings whatsoever. The court should be mindful that a too ready imposition of a duty of care on the CFA could have a stultifying effect on it in the discharge of its functions.

Ennis applied to the Supreme Court for leave to appeal. In its determination (here), the Court granted Ennis leave to appeal on two questions:

(1) Was the Court of Appeal correct to find that the Child and Family Agency did not owe a duty of care to the plaintiff/appellant in the circumstances of the case?

(2) If the Child and Family Agency did owe a duty of care to the plaintiff/appellant, was it in breach of that duty in the circumstances of this case?

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  1. Outstanding judgments carried over into the new legal year | SCOIRLBLOG

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