HXA and YXA in the Supreme Court
A recent Supreme Court ruling was very helpful for local authorities and their insurers but may not be the last word on ‘failure to remove’ claims, writes Paul Stagg.
By its decision in HXA v Surrey CC; YXA v Wolverhampton CC [2023] UKSC 52, the Supreme Court has allowed the appeals of the defendant local authorities from the decision of the Court of Appeal [2022] EWCA Civ 1196, [2023] 1 WLR 116. The court therefore restored the decisions at first instance striking out the negligence claims made against the local authorities by the claimants, whose essential complaint was that the councils’ social workers had failed to seek care orders on a timeous basis. In the argot of practitioners in this field, the claims were ‘failure to remove’ claims.
I have previously published a series of articles analysing the decisions of Deputy Master Bagot QC at first instance in HXA v Surrey CC [2021] EWHC 260 (QB) [link], Master Dagnall’s judgment in YXA v Wolverhampton CC [2021] EWHC 1444 (QB), [2021] PIQR P19 [link], the decision of Stacey J on appeal from those judgments [2021] EWHC 2974 (QB) [link] and the Court of Appeal judgment on the claimants’ appeals [link].
The previous decision of the Supreme Court in this field, N v Poole BC [2019] UKSC 25, [2020] AC 780, was handed down by the court nearly a year after the two day hearing before it. By contrast, the Supreme Court has reached its decision in HXA and YXA less than two months after it was argued on October 24th and 25th this year. This may well be because the outcome was less controversial within the court than was the case with N v Poole, in which the membership of the court included judges who had previously sought to adopt an expansive approach to the liability of public authorities in negligence. Although Lord Reed’s judgment was acceded to by all the members of the court, there may well have been considerable discussion within the court as to its formulation. By contrast, the tone of the questions and comments made by the judges during argument in HXA and YXA seemed to many observers to suggest that there was a unanimity of thinking within the court. The single judgment given by Lord Burrows and Lord Stephens, with which the other members of the court agreed, may well have been less controversial than Lord Reed’s approach in N v Poole. The relatively short wait for the judgment is welcome, but as will be seen, the court’s judgment is not as helpful as it was hoped it might be to practitioners in the field in determining when a ‘failure to remove’ claim might be arguable.
The Background Facts
At the outset of judgment in para 5, the Supreme Court rightly acknowledged the correctness of Baker LJ’s statement in the Court of Appeal that the factual background to the cases was “shocking and disturbing”. At paras 6 and 7, they adopted the summaries of the facts of the two cases given by Baker LJ.
HXA
HXA and her younger sister, SXA, complained that they had suffered the infliction of physical and emotional abuse and neglect by their mother (“M”) from 1993 onwards, and sexual abuse by M, her partner Mr A, and Mr A’s father from 1996 onwards. The local authority, Surrey CC, had been involved with the family since 1993, and it was alleged that numerous referrals had been made to the council from that date onwards first alleging inappropriate parenting by M, and later expressing concerns about Mr A's behaviour.
The sisters made allegations of sexual abuse from 1999, but they were not removed from the family home. HXA moved out of the family home in 2004. SXA made further allegations of abuse in 2007 and was removed from the care of M and Mr A under an emergency protection order. Both Mr A and M were prosecuted for sexual abuse of HXA. Mr A was found guilty of counts of rape and sentenced to 14 years’ imprisonment, and M received a sentence of 9 months’ imprisonment for indecent assault.
YXA
YXA is a severely disabled young man who suffers from epilepsy, learning disabilities and autistic spectrum disorder. He lived with his parents in London until 2007, when he was six years old. The family then moved to the area for which Wolverhampton CC was responsible. An assessment shortly after their move confirmed concerns about his parents’ ability to care for him. From early 2008, a paediatrician was expressing concerns that YXA was being subjected to inappropriate and excessive medication and neglect, and recommended that the council should take him into its care.
YXA was provided with respite care by agreement with his parents, pursuant to which he spent one night every fortnight and one weekend every two months in foster care. Despite that, over the next 18 months, concerns about the parents mounted. There were allegations that the parents were abusing drugs and alcohol, of continued over-medication of YXA, and that he was physically chastised in a way inappropriate for him. Eventually, the council accommodated him on a full-time basis with the agreement of the parents, and later obtained a care order.
The Claims and the Litigation
To understand the relatively narrow scope of the issues before the Supreme Court, it is important to appreciate the procedural history of the claims.
HXA
The Claim Form in HXA, issued on behalf of both HXA and her sister SXA, was issued as long ago as 2014. By agreement, the case was put on hold pending the outcome of the successive appeals in N v Poole. Particulars of Claim were finally served in October 2019. It was agreed that SXA’s claim would be stayed pending the outcome of her sister’s claim. Allegations were made of negligence on the part of social services and social workers in failing to take action to remove the claimants from the family home. There was also an allegation that HXA had disclosed to a dinner lady at her school that she was being subjected to improper behaviour by Mr A, and that the disclosure had not been properly handled by the school. The Particulars of Claim based the claimants’ assertion that a common law duty of care was owed to them on the full range of exceptions to the general rule that a defendant, D does not owe a claimant C, a duty of care to protect C from the conduct of a third party, TP. Thus it was alleged that the council assumed responsibility to protect the claimants, that it added to the danger to the claimants, that it failed to control the actions of M, Mr A and Mr A’s father, and it prevents others from protecting the claimants.
A Defence was served in January 2020 and an application to strike out was made. The application only related to the complaint that social services and social workers had not taken action to remove the claimants from the family home. No attempt was made to strike out the claim relating to the alleged negligence on the part of the school.
The application came before Deputy Master Bagot QC. In argument, counsel for the claimants only sought to uphold the existence of a duty of care on the basis that a few of the elements of the history amounted to an assumption of responsibility. The deputy Master rejected that submission and struck out the claim against social services. Stacey J upheld that decision on appeal and HXA then made a further appeal to the Court of Appeal. By the time of the hearing before the Court of Appeal, only two allegations were relied on as giving rise to an assumption of responsibility, which were expressed as follows in the Amended Particulars of Claim:
(l) In November 1994 there was a child protection investigation after the Defendant received a referral alleging that [HXA’s] mother had assaulted [HXA]. The Defendant’s social worker decided to seek legal advice with a view to initiating care proceedings. The Defendant resolved to undertake a full assessment, but did not do so.
....
(vv) On 27 January 2000, a child protection conference was held. It was noted that [HXA] had reported that [Mr A] had touched her breast. The Defendant resolved not to investigate this due to fear of how [Mr A] would react and because it was wrongly thought that there had been no previous similar concerns. It was resolved to do keeping safe work with [HXA], although this was never done.
It was said that as a result of those matters, the council “assumed responsibility” for HXA’s welfare and “investigating [her] plight”.
YXA
In YXA, the claims were made against Southwark LBC, the local authority for the area in which the claimant and his family had lived for the first years of his life, and Wolverhampton CC. The Claim Form was issued in July 2018 and made claims against both councils in negligence and for breach of the Human Rights Act 1998. Again, the basis on which the duty of care was said to arise relied on the full panoply of exceptions to the general rule that no duty was owed, as in HXA.
Both defendants applied to strike out the negligence claims against them. The claimant’s response was to discontinue the claim against Southwark LBC. By the time of the hearing before Master Dagnall, the duty of care was said to be owed by Wolverhampton CC purely on the basis of the provision of respite care to him under s20 of the Children Act 1989 which is said to have meant that the council “assumed a responsibility for his welfare, protection and safety”. Master Dagnall struck the negligence claim out, and again Stacey J upheld that decision.
The Decision of the Court of Appeal
Considering YXA first, Baker LJ pointed out that Wolverhampton CC had been subject to a specific statutory duty under s23(2) of the 1989 Act to safeguard and promote the welfare of YXA: para 90. It was wrong to restrict an assumption of responsibility to children in respect of whom a care order had been made, since that statutory duty was owed to all looked after children, which included those accommodated under s20, even on a respite basis. The duty was not affected by the fact that YXA’s parents could have withdrawn their consent to the placement at any time: paras 91-95. A full investigation of the facts was necessary to determine whether a duty of care was owed as alleged: para 102.
In the HXA case, Baker LJ asserted at para 96 that a duty of care could arise:
.... where a local authority .... 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.
An example of such a “specific step” was, at para 97, said to be:
.... a specific piece of work to assess the level of risk and/or to protect a child from a particular piece of harm.
He pointed out that the council in HXA had been involved with the family for a number of years, and that the factual circumstances of the claim were very different: para 103. He also regarded it as an “odd outcome” if the claim against social services was misconceived, but HXA’s complaints in relation to the handling by her school of her disclosure were to go to trial: para 104.
More generally, Baker LJ accepted the submission for the claimants that the law relating to negligence claims against social services and social workers was still a developing area of law and it was wrong to strike out such claims without the facts being investigated at a trial: para 100. He had earlier observed that there was much to be said for focusing on the issues of breach of duty and causation, rather than on the existence of a duty of care: para 98.
The Decision of the Supreme Court
As stated above, the single judgment of the court was given by Lord Burrows and Lord Stephens, with whom Lord Reed, Lord Briggs and Lord Sales agreed. They summarised the factual background at paras 5-7, the procedural history and the pleadings at paras 8-18, and the legislative context under the 1989 Act and regulations made thereunder at paras 19-33.
At paras 34-41, the court made a number of points on the content of s20 of the 1989 Act, drawing heavily on the discussion in Williams v Hackney LBC [2018] UKSC 37, [2019] AC 421. There was a “clear distinction” between the provision of accommodation under s20, which was consensual in basis, and the obtaining of a care order under s31, which was unilateral and required the sanction of the court. When a child was accommodated under s20, the parent was delegating parental responsibility to the local authority, and the parent could remove the child from the accommodation at any time without a reason. The circumstances giving rise to the duties and powers under s20 were radically different from those under s31.
The court said that it would proceed on the basis that the statutory duty under s22(3) would potentially be infringed if the local authority did not “think of the longer term” or consider whether to apply for a care order: para 42. However, that was not what the cases were about. The issue as to whether a common law duty of care was owed was fundamentally different to the issue of whether a statutory duty had been broken: para 43. In order to determine whether a common law duty existed, the court needed to look at the leading decision in N v Poole.
The court proceeded to examine the decision in N v Poole in detail at paras 44-56. It was an “authoritative guide” as to whether social services had entered into a relevant assumption of responsibility towards a child in its area: para 57. It then considered at paras 58-61 the decision of Lambert J after a trial in DFX v Coventry CC [2021] EWHC 1382 (QB), [2021] PIQR P18, and at paras 62-75 looked at the decisions of the Masters and Stacey J. The court then proceeded to summarise the Court of Appeal’s judgment at paras 76-85.
The court then embarked on an explanation as to why it disagreed with the Court of Appeal and would allow the appeals. It said that its views “may all be said, in general terms, to flow from the decision and reasoning in N v Poole”: para 86. First, it emphasised the distinction between the question of whether a statutory duty was owed and whether there was a common law duty of care: para 87:
.... one has to be very careful not to slide back to resting the duty of care, and breach, at common law on the mere fact that the public authority had statutory duties towards, and powers in respect of, the claimant. In our view, some of the submissions made by Ms Gumbel KC on behalf of HXA and YXA fell into this trap. That is, she sometimes relied on there being a statutory duty on the local authority to safeguard children in need as the very reason why there must be a duty of care owed to such children. ....
The cases were concerned with allegations of failure to protect the claimants from harm and therefore an assumption of responsibility had to be established: para 88. Just as in Robinson v Chief Constable of the West Yorkshire Police [2018] UKSC 4, [2018] AC 736 and N v Poole, the court cited with approval the taxonomy given by Tofaris and Steel in an academic article in the following terms:
In the tort of negligence, a person A is not under a duty to take care to prevent harm occurring to person B through a source of danger not created by A unless (i) A has assumed a responsibility to protect B from that danger, (ii) A has done something which prevents another from protecting B from that danger, (iii) A has a special level of control over that source of danger, or (iv) A’s status creates an obligation to protect B from that danger.
The claimants were only relying on exception (i), assumption of responsibility: para 89. It was said at para 90 that the “precise ingredients of an assumption of responsibility appear to vary according to the general context in which it is being used”. In particular, insisting that a claimant relied on the defendant to carry out an undertaking or task would not be necessary in the context of children seeking to establish an assumption of responsibility by social services: para 108.
The court went on to explain why there was no assumption of responsibility on the facts of the two appeals. It was necessary to ask what it was alleged that the defendant had assumed responsibility to do: para 91. In relation to HXA, the investigations and assessments which had been decided upon were not the provision of a service to the claimant, just as the same steps were not the provision of a service to the claimants in N v Poole. Rather, the steps were taken to help the council decide whether to bring care proceedings. The same was true of seeking advice about care proceedings; such advice was given to the council, not the claimants: para 93. The council’s alleged failure in 2000 to investigate HXA’s report of a sexual assault by Mr A was a failure to inform itself by way of investigation, and not a failure of a service provided to HXA herself: para 94. Nor was a decision to carry out “keeping safe” work an assumption of responsibility for her welfare: para 94. The court concluded as follows at para 95:
So, in HXA’s case, internal decisions to carry out keep safe work and assessment, designed to keep the children safe within the family and to find out further information, fall significantly short of being an assumption of responsibility to use reasonable care to protect HXA from the abuse. They are merely initial steps to prepare the ground for a possible later application for a care order. There was therefore no relevant assumption of responsibility to HXA flowing from any of the facts alleged ....
In YXA, there was a fundamental conflict between the fact that the council had a duty to return YXA to his parents at the expiry of a period of respite care and the alleged duty to protect him from the abuse and neglect that he was suffering at home: para 97. Since YXA had impliedly accepted that there was no wider assumption of responsibility in relation to investigations and the commencement of care proceedings, it was difficult to see why a duty of care would arise during respite care if it had not already arisen: para 98.
A further reason given by the court for its conclusion was that the facts of the two cases were indistinguishable from the decision in N v Poole. The council in that case had taken many of the same investigative and protective measures which had been undertaken by the defendant councils in HXA and YXA, and there was no provision of a service or benefit to the claimants in those cases: para 101. Further, the assertion that this was a developing area of the law was incorrect; the law in this area had been settled by N v Poole: paras 102-104.
At an important part of its judgment at paras 106-107, the court accepted that an assumption of responsibility could arise in relation to a local authority towards a child in its area in some situations. The “obvious example” was said to be following a care order, when the local authority had acquired parental responsibility by statute. Although the defendants had, in submissions, cast doubt on the reasoning in Barrett v Enfield LBC [2001] 2 AC 550, the court affirmed the correctness of the decision in Barrett and confirmed that it should be interpreted as based on an assumption of responsibility to the claimants. The court went on to agree with Master Dagnall in YXA that a duty of care could be owed in relation to ensuring the safety of the child while it was accommodated under s20 of the 1989 Act, including to ensure that he was safely returned to his parents’ care. The court said at para 107:
.... The assumption of responsibility flows from the fact that the child’s safety has been entrusted to the local authority by the parents, the local authority has accepted that responsibility, and indeed the parents may be said to have delegated parental responsibility to the local authority .... If one thinks of the analogy of a private individual, a similar duty of care at common law would arise if a private individual was requested by a parent to, then agreed to and did, accommodate the parent’s child. The assumption of responsibility flows from the fact that the private individual was entrusted by the parent with the child’s safety and accepted that responsibility. An assumption of responsibility would be for the period of time that the child was being accommodated (and in respect of the mechanics of return) so that the private individual would owe a common law duty of care to protect the child against harm including from third parties during that period of time.
The court, however, made it clear that these examples were not necessarily exhaustive, saying that:
.... there may be other examples of an assumption of responsibility arising on particular facts.
Discussion
The decision is clearly very helpful, in a number of ways, for local authorities and their insurers in meeting ‘failure to remove’ claims. First, it expressly disapproves of Baker LJ’s notion that the law in this area is unsettled and therefore the courts should refrain from striking out claims. Had that part of Baker LJ’s judgment stood unchallenged, defendants would have been faced with expensive preparation for and conduct of trials which may well, as in DFX, have led to the courts concluding that no duty of care was owed. It should now be impossible to argue that the court should refrain from striking out negligence claims in ‘failure to remove’ cases on that basis.
Another argument commonly deployed by claimants was that N v Poole was factually distinguishable from the more common type of ‘failure to remove’ case where the claimant was suffering from abuse or neglect within the family home. The Supreme Court has now confirmed that the source of the abuse (in N v Poole, of course, the danger to the claimants arose from the activities of neighbours) is not relevant to the application of the relevant principles.
The judgment does also provide some important further explanation of why there is generally no assumption of responsibility by a local authority in the exercise of its child protection functions. It clarifies that absence of reliance by the claimant is not the reason; quite understandably, a young child or one with learning difficulties will not have any understanding of the council’s involvement or will rely on it to remove him or her from the threat of abuse or neglect. Rather, it makes clear that the child protection functions exercised by a local authority do not involve any kind of service to the child; they are undertaken for the benefit of the local authority itself or, perhaps, the public good generally.
Where the judgment is somewhat less helpful is in ascertaining when there may be room for an assumption of responsibility by a local authority. The two examples that it gave are probably uncontroversial. It confirms that Barrett was rightly decided and so a duty of care is owed in relation to decisions taken in relation to a child’s upbringing once he or she is in care. There is also nothing new about the notion that a local authority may assume responsibility to take reasonable care for the safety of a child while he or she is being looked after. Such a finding had already been reached by the Court of Appeal in Bluett v Suffolk CC [2004] EWCA Civ 1707, [2005] 1 FCR 89, albeit with some rather unsatisfactory reasoning. As the Supreme Court pointed out, a local authority is vicariously liable for torts committed by foster carers towards a child in any event: Armes v Nottinghamshire County Council [2017] UKSC 60, [2018] AC 355. If a foster carer injured a child by negligent driving on the way to school or on the way to or from the parent’s house at the beginning or end of a period of respite care, a duty of care would be owed under the normal principles of the law. This assumed responsibility will probably not widen the potential scope of claims against councils very much, though it might mean that a council could be liable if a child was abused by another child in a foster placement, or in a council-run home, and the council ought to have known of the danger posed by the child.
There remain, however, at least three lines of argument which it may be anticipated that claimants’ advisers will continue to run.
First, they are likely to seize on the qualification in para 107 of the judgment that “there may be other examples of an assumption of responsibility arising on particular facts” and seek to distinguish N v Poole and the HXA and YXA cases on some factual ground or other. One might expect, for example, an attempt to be made to argue that a child suffering from sexual exploitation by local gangs of men, an increasingly common type of ‘failure to remove’ case, is in distinguishable factual position. However, the combined effect of the two cases should lead to the conclusion that exercising child protection functions at any level simply cannot amount to an assumption of responsibility.
Secondly and more importantly, the Supreme Court judgment says nothing about the applicability of the other exceptions to the general rule that no duty of care is owed, because they were not argued before it. The judgments of Deputy Master Bagot QC and Master Dagnall both deal with the other exceptions: see paras 34-35 and paras 84-87 respectively. Since counsel for the claimants did not make written or oral submissions seeking to uphold the existence of a duty of care on those grounds, the Masters’ rulings in relation to those grounds are obiter, but are nonetheless well-reasoned. It is, however, unfortunate that the Supreme Court refused permission to appeal in Champion v Surrey CC, in which the defendant had conceded the appeal to the Court of Appeal in light of the court’s decision in these cases. In that case, the whole panoply of arguments had been deployed for the claimant.
Thirdly, it is likely that some claimants will still seek to argue that where the council has undertaken positive acts in the course of its child protection functions, that takes the case outside the scope of the omissions principle altogether. Again, that argument is wholly erroneous, for at least two reasons. First, both in N v Poole para 74 and in HXA para 88, the Supreme Court has made it clear that the nature of a ‘failure to remove’ case is one of failing to protect from harm, not one of causing harm to a claimant. Secondly, it is the substance of the case being advanced rather than the way that it is portrayed in the proceedings which is important: see eg Kalma v African Minerals Ltd [2020] EWCA Civ 144, paras 121-126; FXJ v Secretary of State for the Home Department [2023] EWCA Civ 1357, para 36. Stacey J addressed this argument well in her judgment in the High Court in the following terms at para 63:
In spite of [counsel for the claimant]’s valiant efforts to describe the claims in terms of allegedly negligent acts, in both cases all the allegations relied on are unquestionably allegations of negligent omissions, as is abundantly clear if considered by reference to the terminology preferred by Lord Reed and the “distinction between causing harm (making things worse) and failing to confer a benefit (not making things better) rather than the more traditional distinction between acts and omissions”. In both cases the harm was being done by the claimants’ families and Mr A. The essence of the claim 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, as per the Court of Appeal in Kalma .... Or to put it colloquially, to fail to see the wood for the trees.
It may therefore be anticipated that the Supreme Court’s decision in these cases will not be the last word in ‘failure to remove’ claims.
Paul Stagg is a barrister at Deka Chambers. Paul was first junior counsel for the local authorities in HXA and YXA, and also acted for the local authorities in the Supreme Court case of N v Poole Borough Council in 2019. He is regularly instructed in relation to claims in negligence, for misfeasance in public office and under the Human Rights Act 1998 against social services and social workers, as well as a range of other public bodies including education professionals and the police. He is always happy to have informal discussions with solicitors about cases in their caseload.
