HXA and YXA - The outcome of the Claimants' second appeals

On 31 August 2022, the much-awaited judgment from the joined appeals in the matters of HXA v Surrey County Council and YXA v Wolverhampton County Council [2022] EWCA Civ 1196 was handed down from the Court of Appeal.

The Court of Appeal has allowed the appeals of the Claimants to previously successful strike out applications brought by the defendants. The strike out applications were brought based on the fact that an assumption of responsibility by the defendants to the Claimants, could not be established following the previous Supreme Court case of CN v Poole (2019).

In YXA, the statutory duty to safeguard a Looked After Child was analysed and Lord Justice Baker stated that it is arguable that the provision of accommodation under s20 of the Children Act 1989 involved an assumption of responsibility not just to take reasonable steps to ensure that the accommodation arranged for the child was safe but was also to ensure the welfare of the child by not returning them to an unsafe environment at home.

In HXA it was alleged that the council had resolved to take care proceedings and carry out 'keeping safe' work with the Claimant but had failed to do so. Baker LJ held that both resolutions arguably created a duty of care despite the lack of a Care Order or any actual accommodation of the child. Lord Justice Baker said in his judgment that assumption of responsibility was 'not necessarily confined to the actual periods when the child was being accommodated.' Baker LJ decided that, in the absence of a body of decisions decided after a full trial, it was not possible to say where the line should be drawn between situations giving rise to an assumption of responsibility and situations which do not. Therefore, pending the development of a body of case law in this area, the Court of Appeal has confirmed that it is not appropriate to strike-out such claims.

The Court of Appeal has therefore allowed the Claimants' appeals and has refused to strike-out negligence claims in "developing" areas such as this, stating that the first instance courts need to create a body of jurisprudence following full trials. HXA and YXA will now potentially proceed to full liability trials where the facts of both cases will be further analysed.

It should be noted that the Defendants in both cases have sought permission to appeal to the Supreme Court.

Forbes' Comment

The law in relation to assumption of responsibility in such failure to remove claims is therefore far less clear than it was thought to be prior to the handing down of these judgements. Claimant Solicitors may now believe they have stronger negligence arguments than previously, and we may therefore see in the coming weeks an increase in such negligence allegations being presented to Local Authorities. However, the judgment handed down from the Court of Appeal last week is somewhat wooly and it should be borne in mind that the decision in CN v Poole (2019) as to what will amount to a duty of care in such negligence actions and at what point an assumption of responsibility might be established, was a Supreme Court ruling. DFX v Coventry City Council (2021), in which a full trial did take place, further endorsed the legal principle surrounding duty of care, established by CN v Poole (2019). However, the Court largely brushed over this lower court decision and doubted some of the conclusions reached in it. Nevertheless, this case does currently remain good law and could create risks for Claimants seeking to pursue 'failure to remove' actions under the common law.

The assumption of responsibility argument will therefore be a topic for much debate between both Claimant and Defendant lawyers when such claims are now being presented. That said, any attempts made by Defendant lawyers at this stage to strike-out such negligence actions, presented by Claimants, are unlikely to be successful following the Court of Appeal judgment in HXA and YXA.