Supreme Court agrees to hear appeal by councils over ruling allowing ‘failure to remove’ claims to go ahead

The Supreme Court has granted two local authorities permission to appeal in unconnected cases where the claimants allege negligence on the part of social workers for failing to remove them from their parents or step-father.

In HXA v Surrey County Council [2022] EWCA Civ 1196 the Court of Appeal allowed the claimants’ appeals against the striking out of their claims.

Commenting on the Supreme Court’s granting of permission to appeal, Deka Chambers said: “It is to be hoped that the Supreme Court will provide guidance as to the circumstances, if any, as to when a social worker exercising child protection functions can assume responsibility towards a child in the local authority’s area so as to give rise to a common law duty of care.”

The set reported, however, that the Court refused permission to appeal in a third case, Champion v Surrey CC, which was said to have come before it by an unconventional route.

“The defendant’s application to strike out had been dismissed by HHJ Roberts at first instance. Permission to appeal to the High Court was granted. The claimant then applied for the appeal to be transferred direct to the Court of Appeal, which listed it for consideration after the HXA and YXA judgments were given. Since the outcome of HXA and YXA inevitably would have led to the dismissal of the defendant’s appeal in Champion, the appeal was dismissed by consent,” Deka Chambers said.

“The Supreme Court said that it was only in ‘unusual circumstances’ that it would give permission to appeal against an order made by consent and there was no judgment of a court below on some of the issues raised by the claimants in the Amended Particulars of Claim.”

Deka Chambers described the refusal of permission in that case as “unfortunate, because a much wider range of arguments is relied on in support of a duty of care in that case, and those arguments will probably not now be considered by the Supreme Court”.

Lord Edward Faulks KC and Paul Stagg of Deka Chambers act for the defendants in both HXA (on instructions from DWF) and YXA (on instructions from Browne Jacobson).

See also: Failure to remove claims now harder to strike out - Claimants in two unconnected cases recently won their appeals over the striking out of their claims in negligence brought against the local authorities arising out of the exercise of their statutory functions under the Children Act 1989. Sarah Erwin-Jones and Louse Fisher consider the implications of the Court of Appeal decision.