The Court of Appeal has recently handed down its much anticipated judgment in HXA v Surrey CC and YXA v Wolverhampton CC [2022] EWCA Civ 1196, allowing the Claimants’ appeals against the striking out of their claims. What are the implications for local authorities and their insurers?

Background

Failure to Remove claims are claims for compensation arising from an alleged failure by Social Services to protect children, usually by allowing them to remain with parents or other individuals who are harming them when the Authority knew or should have known about the risk of harm being caused. In the seminal case of  CN v Poole Borough Council [2019], the Supreme Court held that no duty generally arises in law for failing to improve someone’s situation. Failure to remove claims will fall into this category, because the allegations are of failing to improve a child’s situation by removing them from a harmful environment. Therefore no duty in negligence is generally owed by social services professionals. In the CN case, which concerned the failure to protect a family from abusive neighbours, there was found to be no duty.

CN stated however, that there are exceptions to the general rule that no duty is owed, chiefly in cases where there has been an “assumption of responsibility”.

Since CN, the main area of debate between those acting for Claimants and Defendants has been what constitutes an assumption of responsibility, such that a duty of care may be owed.  It seemed following CN that the circumstances where one would exist would be few, and only after the Local Authority assumed full parental responsibility and took control of the care of the child. Merely being notified of a concern by, say, a neighbour, starting the Child in Need process, or even commencing “Section 47” child protection enquiries would not be sufficient.

DFX and others v Coventry City Council [2021] EWHC 13282 (QB), was the first High Court failure to remove trial since the CN decision. Lambert J determined there was no assumption of responsibility by social services, despite many years of involvement with a family and many different interactions with them.  This confirmed Defendants’ views that an assumption of responsibility would only take place in limited circumstances.

HXA and YXA

In the conjoined cases of HXA and YXA, the Court of Appeal considered the question of assumption of responsibility for the first time since the CN decision. In both cases the Claimants had suffered abuse and neglect in their parents’ care. In both cases there was involvement of social services over a period of years:

• In HXA there were child protection investigations and at one point the local authority decided to carry out a full assessment with a view to initiating care proceedings, however this was not done. At another time, following concerns regarding possible sexual abuse of HXA, the local authority decided to do “keeping safe” work with her but again this was not done.
• In YXA there were concerns about the Claimant’s parents’ ability to care for him. The  Claimant was accommodated on a number of occasions under s20 Children Act 1989 (temporary accommodation with parental consent but without the Authority taking full Parental Responsibility).
• Before being conjoined, the cases had been struck out on the basis that the facts did not give rise to a duty of care. That was upheld on first appeal. However, the Claimants’ appeal to the Court of Appeal was successful in both cases.

Court of Appeal Decision

The lead judgment was from Baker LJ, agreed by Elisabeth Laing and Lewis LJJ. He said:

• In HXA, it was “at least arguable” that in resolving to take legal advice with a view to initiating care proceedings and carrying out a full assessment, the local authority was assuming responsibility for the children. He considered that an agreement to carry out “keeping safe” work was capable of amounting to an assumption. The Court stated  that “a duty of care may arise in circumstances where a local authority, acting in accordance with its duties under statute, regulation, or statutory guidance, has taken, or resolves to take, a specific step to safeguard or promote the welfare of a child which amounts to an assumption of responsibility for a child.”
• In YXA, the Court decided that in accommodating a child under Section 20, the duty to safeguard and protect his welfare was not necessarily confined to the limited period when the child was accommodated and concluded that the claim should not be struck out.
• That the question of assumption can only be decided by reference to the facts of each case, and suggested that in many cases it may not be possible to establish whether there was a duty “without a full examination of the facts” so that it would be plainly wrong to strike out such claims.
• The Court regarded this as a developing area of the law “at a relatively early stage” since CN

Discussion

• Whilst CN remains the leading case as to the duties owed by social services, there is no doubt that this decision by the Court of Appeal has muddied the waters significantly.
• The point where a strike out of a failure to remove case may be successfully made, has moved in favour of Claimants. It remains to be seen if more claims will therefore be brought.
• Lord Justice Baker practised primarily in Family Law, so we consider it would be valuable if the Supreme Court were to consider the case from a more classic ‘negligence’ perspective. We await to hear if permission will be granted.
• In saying that the Courts should move on to look at whether there has been a breach of duty, rather than whether a duty exists, litigation will become more reliant on liability expert evidence, and therefore become more expensive and slower.
• The Court did make it clear that it expects clear and logical pleadings. We query the extent to which inherent case management powers will be used to strike out unfocussed and poorly drafted cases – we suspect that orders to amend rather than extinguish cases are more likely.