Supreme Court Unanimously allows Local Authority appeals in HXA & YXA

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20 December, 2023

Kella Bowers
Partner and Head Social Care

Following on from the rather controversial decision of the Court of Appeal, the Supreme Court have handed down Judgment in HXA v Surrey County Council and YXA v Wolverhampton City Council [2023] UKSC 52 confirming the position that there is no assumption of responsibility and thereby no duty of care owed to protect a child from abuse in their home environment.

This appeal concerns two separate claims in the tort of negligence. HXA and YXA were children when they suffered sexual or physical abuse by a parent or parent's partner. One of the necessary components of a negligence claim is that the defendant owed the claimant a duty of care. Both claimants alleged that their LA owed them a duty of care because the LA had, by its conduct, assumed responsibility to protect them from harm caused by third parties. The claims related to whether the LAs owed a duty of care at common law to protect the claimants from harm.

As a child, HXA was physically assaulted by her mother and sexually abused by her mother's partner. HXA's mother's partner was convicted of seven counts of raping HXA between the ages of 9 and 16 and was sent to prison for 14 years. HXA's mother was convicted of indecently assaulting her and was sentenced to 9 months' imprisonment. The LA had resolved to obtain legal advice with regards to care proceedings and conduct "keeping safe" work with HXA but did not in fact do so.

In YXA's case, it was alleged that YXA, who has epilepsy, learning disabilities and autism spectrum disorder, was physically assaulted by his parents and given excessive medication by them to keep him quiet. The LA provided "respite care" for YXA by placing him in foster care for roughly one night every fortnight and one weekend every two months, with his parents' agreement.

The LAs applied to strike out the claims on the basis that they contained no arguable duty of care and therefore should not proceed to trial. The first instance judges and, on appeal, the High Court struck out the claims. The Court of Appeal allowed the appeal of HXA and YXA and reversed the strike-out.

In allowing the LAs appeal the Supreme Court referred back to their previous decision of N v Poole Borough Council [2019] UKSC 25, [2020] AC 780. The Supreme Court made clear there that in this type of case, where the issue is whether a local authority has a duty of care to use reasonable care to confer a benefit on the claimant by protecting them from harm by a third party, it is necessary to establish that the local authority has assumed responsibility to protect the claimant from that harm.

In HXA the Court found that the decisions to obtain legal advice or do keeping safe work, or indeed the failure to do either following a decision that they should be done, was not an assumption of responsibility but rather preparatory steps head of potentially applying for a care order.

In YXA the Court found that the mere act of accommodating a child under s20 of the Children Act 1980 did not amount to an assumption of responsibility to then protect a child from abuse in the home environment upon return. The Court essentially found that upon returning the child home, as they were statutorily required to do, the LA had returned the child to the status quo that existed before the s20 placement, they had not in so doing, created a danger as would be required by common law.

As such this judgement is good news for LAs and provides some clarity finally with a case that would be all square on the facts of most failure to remove cases. As such strong defences can be presented in most of these types of cases. However, should a care order be in place, a duty of care would of course still exist. There would also be an assumption of responsibility for the period in which a child is accommodated under a s20 placement. As such should a child face abuse or neglect during those periods, liability could still attach.

For more information contact Kella Bowers in our Insurance department via email or phone on 01254 222437. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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