GB Speciality's, Kate Prestidge and Jo Hallmark provide commentary on the Judgment of HXA v Surrey CC; YXA v Wolverhampton CC following the ruling on 20 December 2023. 

In the highly anticipated Judgment of HXA v Surrey CC; YXA v Wolverhampton CC, handed down on 20 December 2023, the Justices of the Supreme Court unanimously reversed the Court of Appeal’s findings, striking out both claims and ruling that, on the facts as pleaded, none of the statutory steps taken by the local authority amounted to an assumption of responsibility in either case. The Supreme Court further rejected LJ Baker’s view that this is an unclear, developing area of the law, removing any conceivable doubt on the impact of Poole Borough Council v N [2019] and its application to the duty of care owed by a local authority to protect a child from third party harm.

On first blush, the Supreme Court’s Judgment appears to provide much needed clarity on the common law duty of care owed by local authorities to children in the community and will be warmly welcomed by local authorities and their insurers after a challenging time in which many changes in child protection guidance and legislation have been introduced. Claimants will now find it challenging to argue that statutory steps taken outside of a care order being obtained will amount to an assumption of responsibility.

Further, it should now be more difficult for Claimants to argue against striking out a negligence claim in these “failure to remove” cases and we expect to see more local authorities starting to make greater use of such applications and possibly refusing pre-action disclosure, unless there is strong evidence of an assumption of responsibility.

Undoubtedly the opportunities to bring a failure to remove claim have been significantly narrowed, but to our minds the door has not been closed to other circumstances in which an assumption of responsibility could arise in the absence of a care order. This Judgment on a strike out application is very much based on the “facts as pleaded” and the finding that the particulars of claim did not disclose circumstances in which a relevant assumption of responsibility can be made out. YXA deals only with the provision of short periods of respite accommodation provided under Section 20 Children Act 1989 (S20), and given that YXA accepted statutory investigations under section 47 and Section 31 did not amount to an assumption of responsibility, in those circumstances the Court could not see how a duty of care could arise once YXA was returned to his parents if that duty did not exist beforehand.

The provision of respite S20 accommodation is a nuanced point and the majority of the cases in our practice arise out of longer term s20 accommodation, or those leading on to interim or final care orders. Whilst the Supreme Court have affirmed that a duty is owed to provide S20 accommodation with reasonable care and skill, our view is this duty does not extend any further than this limited application, and for Claimants to argue otherwise will require them to establish their case is distinguishable from YXA and to prove what specific nuances are said to amount to an assumption of responsibility. Given we are now faced with a common law position where there is limited scope for Claimants to argue that the performance of statutory steps in the absence of obtaining a care order will give rise to an assumption of responsibility being owed to a child, we anticipate Claimant solicitors will be very keen to distinguish the facts of their cases from YXA and HXA, or to make greater use of the Human Rights Act 1998 as a way to pursue these claims.

Read on to explore the background and Judgment of this landmark decision.

Background

The common law position with regard to “failure to remove claims” and the extent to which a local authority owes a duty to protect a child in its community from third party harm, has been the subject of much debate since the Supreme Court decision in Poole Borough Council v N [2019]. Prior to Poole, it was accepted that a child who was in the care and control of a local authority was owed a duty of care (Barrett v Enfield [2001].)

The Supreme Court held in Poole that the fact a local authority has statutory duties or powers to act under the Children Act 1989, does not automatically give rise to a common law duty of care, unless there are steps taken which gave rise to an assumption of responsibility. In DFX v Coventry CC [2022], J Lambert sought to clarify this to some extent as the “something more” test, but expressing her decision to be facts specific, leaving the door open as to further litigation on the other circumstances where such a responsibility could be assumed.

The trajectory of HXA & YXA

Separate proceedings were initially brought by both Claimants, pursuing damages from their respective Defendant local authorities for failing to remove them from a harmful home environment after many years of social service’s involvement. In YXA, the Claimant was in local authority care under S20 CA 1989and was subsequently returned to his parents before an interim Care Order was applied for. YXA argued that by providing intermittent, respite accommodation under s20, the local authority had assumed responsibility to ensure his safety on returning him to the home environment.

HXA contended that placing the Claimant on the Child Protection Register, together with planning legal Care Proceedings and undertaking keeping safe work, were all actions amounting to an assumption of responsibility. On applications by the Defendants, both claims were struck out at first instance on the basis that neither local authority’s actions met the “something more” test required following Poole and DFX and as such, no duty of care could exist.

In May 2022, the Court of Appeal heard a conjoined appeal against the strike out orders, with LJ Baker reinstating both claims and ruling that a duty of care is not confined to cases where a local authority acquires parental responsibility under the Children Act 1989. However, he declined to make a finding on what those circumstances are, placing much reliance on the principle that claims should not be struck out in an area of ‘developing law’, requiring the evidence to be heard at full trials. Both Defendants appealed the decision to reinstate the claims on the basis there were no causable actions arising from the particulars of claim.

Judgment of the Supreme Court

• Burrows LJ and Stephens LJ set out five key points, confirming that the decisions in both cases flow from the reasoning in Poole, roundly rejecting the Court of Appeal’s conclusion that one single decision is unable to provide a comprehensive analysis on the common law.

• The same principles of a common law duty of care apply to both a public authority and a private individual, rejecting the Claimant’s reliance that the presence of a statutory duty to safeguard children is evidence of a duty of care owed to such children.

• Because the Claimants are attempting to impose a liability for an omission, i.e. a failure to provide them with a benefit, they must demonstrate an assumption of responsibility by the local authority.

• There was no assumption of responsibility by either local authority in either case. In HXA, exercise of its statutory safeguarding functions did not involve the provision of a service to a child or an assumption of responsibility to use reasonable care to protect HXA from abuse, but rather were actions taken to benefit the local authority in enabling it to decide whether the threshold of s31 CA 1989 was met. By providing s20 CA 1989 respite care to YXA, there was a duty to ensure that provision of the accommodation was executed with reasonable skill and care, but that duty of care does not apply when a child is returned to its parents, which the local authority is legally obliged to do.

• Both cases were indistinguishable from Poole, with the parallels with HXA especially clear. Given there was no duty to protect children from abusive neighbours in Poole, they could see no basis in which there is an assumption of responsibility to protect a child from harm by its parent or parent’s partner.

• This is not a developing area of law and both the lower courts and trial judge in DFX had no difficulty in applying the principles of Poole.

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