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'Failure to Remove' Claims in the High Court: The Appeals in HXA v Surrey CC and YXA v Wolverhampton CC

The much-anticipated judgments in the appeals of HXA v Surrey CC [2021] EWHC 250 (QB) and YXA v Wolverhampton CC [2021] 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.

The Judgement

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.

i) On the assumed facts in each case did the defendant local authority assume a responsibility towards the claimant so that a duty of care arguably arose as a result of the following particular behaviour by the defendants?

a) In HXA's case when:

i) the defendant placed her name on the child protection register on 28 July 1994, or

ii) in November 1994 when the defendant decided to undertake a full assessment with a view to initiating care proceedings but failed to do so, or

iii) on 27 January 2000 when the defendant resolved to undertake "keeping safe" work with HXA, but failed to do so?

b) In YXA's case when he was given intermittent accommodation provided by the local authority away from the family home under s.20 of the Act?

The judge also had to consider other elements of the appeal raised by the claimants:

i) Was it wrong to strike out the negligence claims on the basis that the law in this area is a developing area of law?

ii) Was it wrong to strike out the negligence claims on the basis that certain aspects of each claim would remain even if the negligence claims were struck out?

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 [2020] 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.

"Investigating and monitoring" a child's position …. "Taking on a task" …. exercising its general duty [under] s17 [of the Children Act] …. placing a child on the child protection register …. investigating under s47 [of the Children Act]

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 [2001] 2 AC 550 and D v East Berkshire Community NHS Trust [2003] EWCA Civ 1151, [2004] 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.

The Implications

1. Combined with the decision in DFX, Stacey J's decision creates a body of authority binding up to the level of the High Court which has three main effects:
2. It should end claimants' solicitors' arguments that action taken by local authorities by way of investigating a family's position, providing services to try to relieve the family's position or invoking child protection powers short of obtaining a care order, can be seen as positive acts rather than omissions for the purposes of the law of negligence. They are cases of omission, or failing to make things better as it was put in Poole.
3. The decisions in Barrett and East Berkshire, frequently relied upon as analogous, are nothing of the kind. Barrett is, following Poole, to be seen as an example of a case in which an assumption of responsibility arises purely as a result of the nature of the service being provided to the claimant. As made clear by Stacey J, child protection functions are not such a service. The East Berkshire appeals concerned three cases not of omission, but of causing harm by removing children from the care of their parents with no basis in fact.
4. Stacey J rejected assertions that cases of this kind should nevertheless be allowed to go forward to trial on the ground that the law was developing. As she says, Poole, DFX and her judgment between them spell out clearly that an assumption of responsibility can only arise from some facts which fulfil the criteria for an assumption of responsibility on a factual basis. The law is, in that sense, settled.

Forbes comment:

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.

For more information contact John Myles in our Insurance department via email or phone on 07976277777. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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