Keoghs Insight

Author

Nicola Markie

The High Court provides some stability to ‘Failure to Remove’ Claims in the appeals of HXA v Surrey County Council and YXA v Wolverhampton City Council

Client Alerts09/11/2021

CN v Poole Borough Council [2020] AC 780 (“Poole”) confirmed where there is no care order or interim care order relating to a child there is no automatic common law duty owed by a local authority. This changed the landscape of failure to remove claims and limited circumstances in which a claimant could allege negligence on the part of local authorities for failing to remove a child. Poole, however, acknowledged that there were three exceptions that would give rise to a duty in the absence of a care order and since Poole we have seen court decisions interpreting the exceptions referred to.

One of these exceptions is where a local authority is said to have “assumed responsibility” for a child. This exception has been the most prevalent argument relied upon by claimants for the imposition of duties in failure to remove claims and it was assessed by the court earlier this year in the cases of HXA v Surrey County Council [2021] EWHC 250 (QB) and  YXA v Wolverhampton CC [2021] EWHC 1444 (QB) (YXA)Both cases were applications by the defendant to strike out the claimants’ claims in negligence as there was no duty of care owed by the local authority as no assumed responsibility had been evidenced.

Both HXA and YXA had suffered appalling abuse and shocking treatment as children in the family home. In the case of HXA she suffered physical abuse and neglect from her mother, and sexual abuse perpetrated by her mother’s partner. YXA, who was disabled, suffered from neglect, physical abuse and over-medication by his parents. There was a long history of social services involvement with both families. We have previously discussed the first instance judgment of YXA in our article, which contains the full facts of the case. In both cases the Deputy Master and Master respectively found there was no assumed responsibility and no duty owed by the defendants.

Both claimants subsequently appealed to High Court and the cases were heard together.

Grounds of appeal

The main grounds for the appeals were:

  • The Deputy Master and Master were wrong to strike out parts of the particulars of claim because they should have found that it was at least arguable that a duty of care arose on the basis that the local authority defendant had assumed responsibility for the welfare and protection of the claimants.
  • That the Deputy Master and Master had been wrong to strike out those parts of the claim because this is a developing area of law where similar cases have been decided in the claimants’ favour.

Judgment

  • Assumed responsibility

After summarising the allegations made in the two cases, Stacey J noted the issues in the appeals for a duty are that if on the assumed facts the local authority assumed a responsibility towards the claimants then a duty of care arose as result of the defendant’s behaviour.

In HXA’s case this would be 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

In YXA’s case this would be when he was given intermittent accommodation provided by the local authority away from the family home under s.20 of the Act.

Stacey J carried out a detailed analysis of the provisions of the Children Act 1989 relevant to the claim and then an analysis of the case law, focusing mainly on Lambert J’s decision in DFX v Coventry CC [2021] EWHC 1382 (QB), [2021] PIQR P18 (“DFX”). In this case no assumed responsibility was found where a local authority had merely carried out their statutory functions. We again discussed this in a previous article. See the link for full details of the judgment.

Stacey J concluded that when assessing the facts in these types of claims it will fall to the distinction between causing harm (making things worse) and failing to confer a benefit (not making things better), i.e. determine if they are an act or omission.

The question is did the steps taken by the local authority amount to an act? The answer was found to be no. In each case the harm done to the claimants was by the claimant’s family and in the case of HXA her stepfather too. The essence of the claims is an allegation of a failure to take care proceedings timeously and not making things better. The attempt to carve out positive acts from a case which is principally about a failure to confer a benefit is to fail to identify correctly the underlying complaint. HXA and YXA had attempted to present the steps taken by the local authorities as negligent acts, but on proper analysis they were merely omissions.

The real question would be whether the claimants can distinguish the assumed facts of their claims with those already decided cases where claimants were unsuccessful in establishing an assumed responsibility. Stacey J found that it is clear from previous decisions that the following tasks could not amount to an assumed responsibility by the local authority:

  • Investigating and monitoring a child’s position
  • Taking on a task
  • Exercising its general duty under s17 of Children Act
  • Placing a child on the child protection register
  • Investigating under s47 of the Children Act

She said “Something more” was required to confirm an assumed responsibility and in turn a duty of care.

Turning to each case in hand, no assumed responsibility was found for HXA as the placing of HXA on a child protection register did not infer a duty nor did failing to carry out an assessment or initiate care proceedings. As for the “keep safe work” there was no evidence HXA would have kept herself safe had the assessment taken place. Further, the allegations was one of an omission as opposed to it being carried out incompetently.

For YXA there was no logical reason why the provision of S20 and temporary care made any difference as to whether there was a duty imposed. YXA was receiving temporary intermittent care and parental responsibility was not with the local authority. This was entirely different to a child in the local authority’s care. There was no criticism of the care that YXA received during those periods; instead, the complaint was of a failure to take care proceedings to remove him from the care of his parents and no assumed responsibility had been evidenced.

For the above reasons no assumed responsibility was found by Stacey J and no duty of care imposed. She concluded the Deputy Master and Master in the first instances were correct to conclude that both claims would fail and that the claims should be struck out.

  • Developing area of law

Having decided there was no assumed responsibility Stacey J considered if she should refrain from striking out the claim on the basis that the law was developing.

She rejected this submission as the cases were “so closely analogous” to Poole and now DFX that it could not be described as developing law.

Summary

Both appeals were dismissed and the striking out of the claims in negligence were upheld. 

The allegations were found to be of an omission/failure to confer a benefit/not making things better and in neither case had the claimant established that the defendants had assumed a responsibility for HXA or YXA to give rise to a duty. Since no duty arose the claims would be unsuccessful. Further, there was no argument that the law was developing as the facts fell within the established parameters established by precedent in DFX, Poole, Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4 and Michael v Chief Yorkshire Police [2015] UKSC 2.

Implications

This decision, coupled with the decision of DFX, provides a binding authority that prevents any arguments by claimants that actions taken by local authorities by way of investigating a family position, providing services to try to relieve the family’s position or invoking child protection powers short of obtaining a care order, will be seen as positive acts and evidence an assumption of a responsibility and a duty. Therefore, any claims presented in this way will not be successful and should be denied in the first instance.

Stacey J’s assertion that Poole, DFX and her judgment make it clear that an assumption of responsibility can only arise from facts that fulfil the criteria for assumption of responsibility has now settled the law on what was a developing area.

Whilst this has provided a great deal of stability, there is still scope for more litigation on failure to remove claims – for example if there is an involvement by the local authority which falls outside the involvements listed in this case and previously. In these very limited circumstances claimants may look to litigate these claims to assess if the involvement is the ‘something more’ to form an assumed responsibility. There also remains to be considered by the courts the other exceptions outlined in Poole, namely preventing others from protecting the claimant, failing to exercise control over the source of the danger, and the ‘status’ of the local authority where we anticipate further litigation in the future.

A final note to be taken from HXA and YXA is that the decisions make it clear Barret v Enfield London Borough Council [2001] 2AC 550 and D v East Berkshire Community Health NHS Trust [2005] 2AC 373 frequently relied upon as analogous are nothing of the kind. Barrett will give rise to an assumption, but this is purely as result of the nature of the service being provided to the claimant. As Stacey J confirms child protection functions are not a service. The East Berkshire cases refer to the harm caused by removing children from care and are not cases of omissions, and, therefore, a reliance on these authorities in claims of this type with similar facts to HXA and YXA are incorrect.

For further information, please contact Nicola Markie, Solicitor or Sarah Swan, Public Sector Lead.