[2022] EWCA Civ 1196
These were failure to care cases which went to the Court of Appeal following the CN & GN v Poole Borough Council Supreme Court decision on assumption of responsibility. Thanks to Malcolm Johnson of Lime solicitors who put the following summary in our newsletters – see below for links and references
In HXA the Defendant made an application to strike out the majority of the First Claimant’s claim whilst the Second Claimant’s claim was stayed pending the outcome of the First Claimant’s claim.
The Claimants were half siblings born in 1988 and 1993. Their childhoods were characterized by abuse and neglect perpetrated by their mother and one of their mother’s partners. In 2009, that partner was convicted of raping the Claimant and the mother was convicted of indecently assaulting the First Claimant. The Claimant sought damages against the local authority in which they were brought up, which they alleged would have been avoided or lessened if the Defendant’s social workers had exercised reasonable care.
In YXA the question arose as whether an accommodation order taken out under Section 20 of Children Act 1989 would give rise to a duty of care. Under Section 20, a local authority can take a child into its care, but (by contrast to a care order) in order to do so, it needs the consent of the parent and the parent can object to that continuing care at any time.
The facts of the case were that the Claimant was a severely disabled child who suffered from epilepsy and autistic spectrum disorder. In 2007, he and his family moved to Wolverhampton and concerns were expressed by a paediatrician about over-medication by his parents. The paediatrician also said that the Claimant should be received into care. From April 2008, the council provided regular respite care. However, there were also concerns about the use of physical chastisement as well as the use by the parents of a known sexual offender to babysit for him. In December 2009, the Claimant was received into the care of the council on a full-time basis by agreement with the parents and a care order was made in the following year
The Court of Appeal held that only the assumption of responsibility route to the establishment of a duty was applicable in these cases. The council’s investigating and monitoring the Claimants’ position did not involve the provision of a service to them on which they could be expected to rely. In short, the nature of the statutory functions relied on in the particulars of claim did not in itself entail that the council assumed or undertook a responsibility towards the Claimants to perform those functions with reasonable care. Moreover, the particulars of claim did not provide a basis for leading evidence about any particular behaviour by the council towards the Claimants, besides the performance of its statutory functions, from which an assumption of responsibility might be inferred.
Stacey J then considered the provisions of CPR 3.4(2)(a) under which the court could strike out a statement of case if it appeared to the court that the statement of case disclosed no reasonable grounds for bringing or defending the claim. There were two questions – were there no reasonable grounds and if not, should the court exercise its discretion to strike out? An application to strike out should not be granted unless the court was certain that the claim was bound to fail. It was not suitable for striking out if it raised a serious live issue of fact which could only be properly determined by hearing oral evidence. A claim should also not be struck out if it concerned a developing area of law.
Stacey J said that the essence of the claims was an allegation of a failure to take care proceedings timeously and not making things better. Acts, which were really on analysis, omissions could not be brought wholesale within the parameters of a duty of care, or to put it colloquially, to fail to see the wood for the trees. It was beyond doubt that a local authority “investigating and monitoring” a child’s position and by “taking on a task” or exercising its general duty under Section 17 of the Children Act 1989, or placing a child on the child protection register, or investigating under Section 47 did not involve the provision of a service to the child on which that child could be expected to rely.
As for the human rights claims, the Master and the Deputy Master in the courts below had been entitled to strike out the common law negligence claims, leaving the human rights claims to go forward.
Finally, post N v Poole and DFX, the question of assumption of responsibility by a local authority so as to give rise to a duty of care to remove children from their families in child protection proceedings was not a developing, but a settled area of law.
For a fuller discussion of these cases including the reasoning before the Master and the Queens Bench Division see Malcolm Johnson’s comments in the June 2021 and December 2021 Newsletters.
See also the article by Richard Sweetman of Irwin Mitchell LLP in the December 2022 Newsletter, which comments in detail upon the Court of Appeal decision, here pp. 13-17
To read the actual Court of Appeal Judgment see BAILLII – https://www.bailii.org/ew/cases/EWCA/Civ/2022/1196.html