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Failure to remove claims – YXA v Wolverhampton
Following our article last week on DFX & Others v Coventry City Council, another judgment on failure to remove has been handed down with YXA v Wolverhampton.
The facts of DFX did not involve consideration of Section 20 of the Children Act 1989 in relation to local authorities accommodating children without a care order. Indeed this point has not yet been considered by the High Court post-Poole. Section 20 allows local authorities to accommodate children without a court order – essentially voluntary care/accommodation. Parents must agree to the child being accommodated as parental responsibility remains with them, not the local authority. This issue was still open to interpretation between practitioners, some of whom felt that local authorities assumed responsibility at this point and others did not. However, although not a High Court case, YXA has now considered this point for the first time since the Poole decision and given some guidance.
YXA considered the point at which, in adherence with the Children Act 1989, a local authority came under a positive duty of care to apply for care proceedings, where they knew or should have known that the child was at risk of abuse/neglect. This raised the question of whether the local authority then became negligent for not acting.
It appears that YXA had a long and sad history. Born in 2001, the claimant was disabled and YXA’s parents abused substances. Their parenting was below standard and the claimant was at times put in danger in a number of different situations. It was alleged that Wolverhampton should have been aware of this danger from 2007 onwards when the family moved into the area. Temporary accommodation of YXA was made under Section 20 on a number of occasions by way of respite care, but YXA was always returned to their parents. A care order was not made until 2010.
Providing a lengthy and interesting judgment, Master Dagnall essentially struck out the common law case even though there was a concurrent claim under the Human Rights Act. He rejected the argument that any general duty of care arose merely as a result of a local authority providing the claimant with temporary accommodation under Section 20. Parental responsibility still remained with the parents of the claimant. Particular consideration was given as to whether the local authority owed a duty to return the claimant to the parental environment, if they knew it was or should have known that it was dangerous and without considering formal care proceedings. Master Dagnall felt that once a local authority voluntarily accommodated a claimant, they have a duty to ensure that when returned, the child is returned to a safe place. However, on the facts of this case he did not find that reasonable grounds had been pleaded to give rise to a duty of care at common law. It was considered to be a crucial distinction that when children are accommodated under Section 20, their parents retain parental responsibility and can demand the return of the child at any time.
Master Dagnall felt that the case could not be distinguished from Poole and consequently found that no common law duty of care was automatically owed in this case. It is therefore the case that there is no automatic duty of care arising from accommodating under Section 20. This is in stark contrast to the position taken by a number of claimants, who post-Poole have alleged that Section 20 accommodation is an automatic assumption of responsibility.