Supreme Court allows appeal by councils and strikes out 'failure to remove' claims

The Supreme Court has ruled that two local authorities did not have a duty of care to protect children from harm by a third party, as it could not be established that either had assumed responsibility to protect them from that harm.

Two cases came before the court: HXA v Surrey County Council and YXA v Wolverhampton City Council, the latter brought through the Official Solicitor as litigation friend.

Both alleged negligence on the part of social workers for failing to remove them from their parents or step father.

HXA and YXA were children when they suffered sexual or physical abuse by a parent or parent’s partner.

In their judgment, Lord Burrows and Lord Stephens said one of the necessary components of a negligence claim is that the defendant owed the claimant a duty of care.

Both here alleged the local authority had assumed responsibility to protect them from harm caused by third parties.

Neither claimed a breach of statutory duty under the under the Children Act 1989, but rather that the councils owed a duty of care at common law to protect them from harm.

HXA was physically assaulted by her mother and sexually abused by her mother’s partner. They were later jailed for nine months and 14 years respectively. Surrey had resolved to conduct ‘keeping safe’ work with HXA but did not in the event do so.

YXA has epilepsy, learning disabilities and autism spectrum disorder, and was physically assaulted by his parents and given excessive medication to keep him quiet.

Wolverhampton provided respite care by placing him in foster care one night every fortnight and one weekend every two months, with his parents' agreement.

Both councils had successfully applied to the High Court to strike out the claims on the basis they contained no arguable duty of care. The Court of Appeal though reversed the strike-out.

Surrey and Wolverhampton then went to the Supreme Court, which unanimously allowed their appeals.

In their joint judgment, Burrows and Stephens LJs said the particulars of claim “disclose no basis upon which a relevant assumption of responsibility by local authorities could be made out at trial”.

They said it was necessary to establish that the local authority has assumed responsibility to protect the claimant from that harm. An alleged duty of care had to be assessed by applying the same principles to the local authority as would be applied to a private individual and the fact that a local authority has statutory duties or powers neither automatically creates nor destroys a potential duty of care.

In HXA’s case, an assumption of responsibility did not flow from Surrey’s internal decisions to investigate, seek legal advice or undertake keeping safe work, the Supreme Court said.

Nor did it flow from such decisions, which were simply preparatory steps ahead of potentially applying for a care order.

Wolverhampton’s provision of temporary respite care for YXA did not mean the council assumed responsibility to protect YXA from abuse in his home.

YXA’s parents retained parental responsibility for him, and Wolverhampton had a statutory duty to return YXA to his parents and therefore no assumption of responsibility arose.

The court said that although no assumption of responsibility was established in these cases, it was possible for a local authority to assume responsibility to protect a child from harm, in respect of its social work functions.

Such assumptions would not be restricted to circumstances where it had obtained a care order, and there did not need to be a ‘specific reliance’ by a child on something that the local authority said or did to establish that it assumed responsibility towards them.

Lord Reed, Lord Briggs and Lord Sales agreed with the judgment.

Browne Jacobson partner Sarah Erwin-Jones, who acted for Wolverhampton, said: “Today’s judgment is a welcome one for local authorities across England and Wales, finally resolving the ongoing question of whether a common law duty of care is owed by local authorities to children living at home with their parents and when a Care Order is not in place. Seeking the court’s permission to take children into government care is a big step which councils don’t take lightly – many children have social workers while still living with their parents who are the only people that have parental responsibility.  

“With the care system already bursting at the seams, this judgment will ensure that local governments can focus on the Supporting Families Programme, which seeks to help vulnerable families thrive, building their resilience by providing effective whole family support to help prevent escalation into statutory services in the first place.” 

Mark Smulian