28 July, 2021
YXA v Wolverhampton follows HXA v Surrey CC and DFX v Coventry and further examines the duty of care owed to children in a social care context. All three have been determined in favour of the Local Authority in question.
The detailed exposition of caselaw in YXA is important as it carefully examines the extent of common law liability in circumstances where a Local Authority actively takes steps to improve a child's welfare by arranging short periods of Local Authority arranged accommodation with parental consent pursuant to s20 Children Act 1989. The case facts take us beyond a pure 'failure to remove/failure to confer a benefit' situation and provide helpful guidance to social work and legal practitioners on a topic that has been hotly contested since CN v Poole.
YXA had severe learning and physical disabilities. Concerns had been referred to Wolverhampton Council by social work and health professionals relating to YXA's parents' physical chastisement of YXA, their choice of a babysitter for YXA, their own substance misuse, and their potential over-medication of YXA. In consequence, from April 2008 Wolverhampton Council had been providing regular but infrequent periods of respite care to YXA, whilst simultaneously monitoring the conduct of his parents and their parenting capacity.
The respite care offered comprised one night every two weeks and a weekend every two months, and at the end of each fixed period of respite care, YXA was returned home to the care of his parents.
In December 2009, some 8 months' later, Wolverhampton Council received YXA into care on a full-time basis, utilising s20 Children Act 1989 and by 2010, care proceedings had begun, a full Care Order was obtained, and parental responsibility for YXA was formally transferred to the Council.
It was the Claimant's case that the provision of respite care, in accordance with section 20, gave rise to a duty of care, taking the case beyond a simple 'omissions' scenario and by providing Local Authority accommodation to the Claimant, the council had assumed responsibility for the Claimant's welfare. In this regard, the Claimant's Counsel in YXA suggested that having assumed a duty, the Local Authority could not simply cease to owe any duty of care at the end of the agreed period of accommodation. Claimant Counsel suggested that returning YXA to his parents' care from a place of safety (i.e. from Local Authority accommodation) was effectively creating a source of danger.
It was the Defendant's case however that pursuant to section 20, the Local Authority was statutorily obliged to return YXA to his parents' care at the expiry of the agreed period of accommodation, given YXA's parents still held parental responsibility for him. As confirmed by the Children Act 1989, a section 20 agreement is a voluntary agreement dependent upon the consent of the parents and/or legal guardian. In this case, Defendant Counsel disputed that the Local Authority had created or enhanced any danger in returning YXA home.
Upon hearing the evidence in this case, Master Dagnall decided it was appropriate to strike out the common law claim, even though there was a parallel claim under the Human Rights Act 1998.
Master Dagnall conceded that whilst it is possible for a Local Authority to owe a duty of care to a child accommodated pursuant to s20 Children Act 1989, it is very limited in scope and can only be established by the application of ordinary common law principles.
During the period that YXA was being provided with respite care, the Local Authority owed him a limited duty of care in relation to the provision of accommodation and matters linked to or flowing from that. This would extend to the provision of education whilst received into care [para 95 iv] and to the mechanics of YXA's return home (ie driving him home safely). Yet the respite care did not cause a general duty of care to then develop for future risks/ eventualities [para 91], and as such, no duty of care arose to consider or indeed commence public law proceedings once the provision of accommodation ended [para 95 iv].
The Master stated that it could not be argued that the council 'created a danger' by returning YXA to his parents, as the Local Authority was merely returning the child in accordance with the statutory requirement of section 20 to his original situation.
Using the 'Good Samaritan' analogy, Master Dagnall stated in his judgment:
"The mere fact that a person has aided another may well mean that a duty of care exists in relation to the provision of that aid, but does not mean that the person providing the benefit has a duty to provide further and other benefits even if they are desirable." [para 95 v]
A decision to intervene in part and then stop, can not be said to be 'encouragement to continue to harm' nor 'preventing other referrers from taking further steps' nor 'creation of a danger' as Claimant Counsel had contended. In the absence of a pleaded 'specific clear or imminent danger which would have been a clear change from the original norm…. the starting point remains that the Defendant was …rather under a positive duty to return the Claimant to his parents' and simply a return of the claimant back into the original situation [para 99]
It should be noted that this case has now been appealed and is due to be heard shortly, in conjunction with the earlier case of HXA.
The HRA element of YXA, at the time of writing, remains untested.
Although YXA v Wolverhampton is useful when considering cases involving periods of section 20 accommodation, it is clear that each individual case will turn on its own facts.
The 2015 statutory guidance states that a child is looked after by a Local Authority if s/he is in their care 'by reason of a care order or is being provided with accommodation under section 20 of the 1989 Act for more than 24 hours with the agreement of the parents …'
During the period of the section 20 voluntary arrangement the Local Authority does not hold parental responsibility for the child - parental responsibility remains with the parents. However, the Local Authority must comply with the duties set out in the 1989 Act and with the relevant Regulations.
Interestingly, as yet, there has been no judicial commentary concerning the Children Act 1989 Guidance and Regulations Volume 2 in respect of Care Planning, Placement and Review. These state that where a child has been looked-after for at least 20 working days, the decision to cease to look after her/him must not be put into effect until it has been approved by a Nominated Officer [regulation 39(4)].
Where the local authority is considering ceasing to look after a child aged 16 or 17 years, this decision must not be put into effect until it has been approved by the Director of Children's Services [regulation 39(5)], and before granting this approval the Nominated Officer or Director of Children's Services must be satisfied that:
For children looked-after for less than 20 working days, the Children Act 1989 Guidance and Regulations Volume 2 state that the Local Authority must be satisfied that return home is 'in the child's best interests' and that the proposed arrangements will 'safeguard and promote the child's welfare.'
The intermittent and short-term nature of the respite care in YXA, and the fact that it predates these Regulations, most likely explains the lack of consideration of them, but on other facts the Regulations might become relevant.
Certainly, a tension is developing between the legislation that states that a parent can withdraw consent to an s20 arrangement at any time requiring the Local Authority to return that child home, with the statutory guidance which states that social care must be satisfied that the child's return home would meet their welfare needs and safeguard them. We can think of a number of cases where the automatic return home of a child could not satisfy this requirement; such cases could become a new 'line of attack' if the facts support such a pleading.