17 November, 2021
The much-anticipated judgments in the appeals of HXA v Surrey CC  EWHC 250 (QB) and YXA v Wolverhampton CC  EWHC 1444 (QB), were finally handed down by Stacey J on 8th November 2021. In dismissing the Claimants' appeals, the striking out of the claims in negligence against Social Services authorities were upheld.
Both these cases arose out of neglect and abuse sustained within the family home. HXA suffered physical abuse and neglect from her mother, as well as sexual abuse by the mother's partner. YXA suffered from physical and learning disabilities and was over-medicated and neglected by parents. In that sense, they were sadly not untypical of many of the "failure to remove" cases that we deal with on behalf of our local authority clients.
Stacey J summarised when a duty of care based on an assumption of responsibility could arguably arise.
She focused mainly on Lambert J's decision in DXF and concluded that the approach of the Court of appeal in Kalma v African Mineral Ltd  EWCA Civ 144 to establish whether the essence of the allegation made was one of act, or one of omission, by the local authority. An omission cannot constitute an "assumption of responsibility. Stacey J said it was "abundantly clear" that because "the harm was being done by the claimants' families" the allegations fell into the omission category.
Furthermore, at para 65 of her judgement, she lists some tasks which she stated do not create an assumption of responsibility in terms of the provision of services provided to a child.
Stacey J importantly pointed out that "something more" was required to establish whether a local authority had a duty of care as a result of assuming responsibility for a child. Placing HXA on the child protection register did not amount to "something more," nor would a decision to conduct a full assessment and seek legal advice around care proceedings.
She further noted that for YXA, because the child received temporary and intermittent care under s20 of the Children's Act 1989, it was "entirely different" to the parental responsibility a local authority had of a child in care where formal court proceedings had been initiated. There was actually no criticism during the period YXA was in local authority care, but the basis of the complaint was of a failure to take care proceedings to remove him from the parents.
Cases such as Barrett v Enfield LBC  2 AC 550 and D v East Berkshire Community NHS Trust  EWCA Civ 1151,  QB 558 readily distinguished that there are no "logical reasons" why the provision of s20 accommodation made any difference as the claims were based on alleged failings after a child entered the local authority's care.
In respect of the appeal ground based upon a claim that the court should not strike out the case as the law was still developing Stacey J commented that these cases (along with DFX) were "so closely analogous to the recent Supreme Court Judgements" that the area of law could not be described as a "developing" area of law and she, therefore, rejected the submission that the area of law was "developing."
She went on to say "…. the question of assumption of responsibility by a local authority so as to give rise to a duty of care to remove children from their families in child protection proceedings is not a developing, but a settled, area of law."
Finally, she stated that the decisions of the Deputy Master and Master to strike the negligence claims out notwithstanding that some parts of each claim were not attacked and would go forward were case management decisions and could not be impugned. The appeals in HXA and YXA were therefore dismissed.
Whilst some arguments in this area still remain which have not yet been heard in the High Court, Stacey J's rejection of the appeals in HXA and YXA provide welcome further clarification of the major issue in failure to remove cases of when a duty of care is owed to a child by a local authority. There is no dispute that such a duty exists when a child is taken into care under a full care order. However, the law is now settled that a duty of care will not be created based upon a local authority merely carrying out its statutory duties of child protection even if it can be said to have failed in some respect in how those duties are performed.
This article was co-authored by John Myles and Shoaib Iqbal.
Learn more about our Insurance department here