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Failure to remove claims: A review following recent appeals

  • 12 November 2021 12 November 2021
  • UK & Europe

The High Court recently handed down judgment on two complementary appeals dealing with claims made against local authorities in the tort of negligence for damages.

Failure to remove claims: A review following recent appeals

The claims alleged that psychiatric injuries and other injuries sustained by the Claimants at the hands of their parents/other parties could have been prevented or lessened had social workers for the respective local authorities exercised reasonable care. Upholding the first instance decisions, the appeals were dismissed on the grounds that “neither claim disclosed any recognisable basis for a cause of action in the tort of negligence against the defendants.”

HXA v Surrey County Council [2021] EWHC 2974 (QB) and YXA v Wolverhampton City Council

The dismissal of these appeals has provided further guidance on ‘failure to remove’ allegations pleaded in negligence.  Both HXA and YXA provided examples of actions that were not regarded as the ‘something more’, being those positive acts by a local authority establishing “assumed responsibility” and justifying an action in negligence. In line with previous decisions, the claims instead were held to centre on alleged omissions or a failure to confer a benefit.

Both appeals had argued that the claims involved a developing area of law, but Her Honour Justice Stacey found that “post 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 is not a developing, but a settled, area of law.

We have addressed the specifics of this appeal below and also where we now stand in when considering the circumstances in which a claim in negligence against a local authority might be successful.

Poole v GN [2019]

This Supreme Court decision is considered the landmark decision in ‘failure to remove’ claims and served as the background to the appeal in HXA and YXA. The claimants and their mother were placed in accommodation by the local authority.  The claimants suffered physical and psychological abuse from a nearby family, who persistently engaged in anti-social behaviour. The claimants alleged the council should have exercised its powers under the Children Act 1989 to remove them from their accommodation to protect them from harm.

The Supreme Court held that the council had not assumed a responsibility for the claimants' welfare such that a common law duty arose to protect them from harm.  The council's conduct in investigating and monitoring the claimants' situation did not involve the provision of a service upon which the claimants could rely.  They had not entrusted their safety to the council, nor had the council accepted such a responsibility. 

HXA v Surrey County Council

HXA was left in the care of their mother and her male partner, Mr A, despite being placed on the Child Protection Register and involvement by the Defendant’s social services department. They suffered physical neglect and sexual abuse. The Defendant had at various stages, resolved to undertake a full assessment with a view to initiating care proceedings, failed to act upon decisions to commence investigations or investigate allegations against the male partner.  It was also alleged that the Defendant had failed to investigate a report of abuse made to an educational officer, at a school managed and operated by the Defendant.

The Defendant successfully applied to strike out most of the claim with Deputy Master Bagot determining that Poole could not be distinguished when considering the question of duty of care in negligence.

HXA appealed, alleging the placement on the Child Protection Register, the contemplation of care proceedings via a full assessment, and the resolution to undertake ‘keeping safe’ work were all examples of an assumption of responsibility giving rise to a duty of care.

YXA v Wolverhampton City Council

YXA moved into the Defendant’s jurisdiction as a small child. The Defendant had various concerns about his welfare linked to his health problems and did accommodate him on a temporary basis at various points.

YXA was eventually placed with foster carers and subsequently removed. YXA (via his litigation friend) alleged that the local authority was negligent in failing to remove him. The claim also alleges breaches of the Human Rights Act.

The Defendant successfully applied to strike out the claim in negligence. YXA appealed, arguing that the Defendant has assumed responsibility to protect him from harm when he was a ‘looked after child’, i.e when brought into temporary accommodation.  YXA alleged that during each short period of care, the Defendant has assumed responsibility and should have sought a care order, preventing his return.

In both instances, the Defendants submitted that the first instance decisions had correctly applied Poole and other precedents.

Judgment in HXA and YXA

Stacey J held that the first instance judges in “both cases were correct to conclude that the claims were bound to fail.”  In the absence of a duty of care, the claims in negligence were “unwinnable”. The facts of the two claims fell within the established precedent.

Analysing the appeals, it was held that “in both cases all the allegations relied on are unquestionably allegations of negligent omissions.” Therefore, the question to be addressed was whether these claims could be distinguished, and the exception to the general rule against liability for negligently failing to confer a benefit applied.  Referring to the decision in X v Hounslow, it was noted that “something more” is required.

In respect of HXA, the placement on the Child Protection Register was not sufficient, nor was resolving to seek legal advice and undertake a full assessment. The alleged failure to undertake ‘keeping safe’ work was framed again as an omission, and not as a positive act giving rise to an assumption of responsibility. This was once again, effectively, a “criticism [of] the failure to institute care proceedings and is therefore indistinguishable from the reasoning in Poole.

Considering YXA’s appeal, the court had to distinguish before the duty of care arising after the making of a care order, and the temporary and intermittent care (under section 20 of the Children Act) provided by the local authority in this instance.  There had been no criticism of the temporary care, but once again, the claim was advanced on the omission to take up care proceedings.  The temporary care could not “be used as a peg on which to assert the assumption of responsibility,” and therefore did not amount to the ‘something else’ required.

Both Claimants had sought to emphasise that there would be minimal costs savings in striking out of the claims in negligence given that there were outstanding claims involving educational duties (HXA) and the Human Rights Act (YXA) respectively. HHJ Stacey was quite clear that these were matters for the judges at first instance, and “fell comfortably within [their] wide discretion over the exercise of [their] case management powers.” This decision supports defendants seeking to strike out elements of claims pleaded with no justifiable basis.

Where does this leave ‘failure to remove’ claims?

There is now a substantial body of case law dealing with ‘failure to remove’ claims, all of which contribute to an understanding of the circumstances (or lack of) in which a duty of care may have arisen.

It does appear that there remain avenues for claimants to pursue. However, the case law clearly suggests onerous factual and legal burdens to overcome, with claimants facing increasingly robust courts. Only a unique minority of fact-specific cases appear to have any chance of succeeding, with the vast majority of claims now likely to fail.

Per Poole, YXA and HXA, and the decision in DFX v Coventry City Council, the following actions have been held as not generating an assumption of responsibility giving rise to a duty of care:

  • General duties applicable under s17 of Children Act
  • Providing temporary care under s20 of the Children Act
  • Placing a child on the Child Protection Register
  • Investigating under s47 of the Children Act
  • General investigation and monitoring of a child’s position

So where does that leave us? Lord Reed in Poole did identify two instances in which it could be inferred that a local authority may have assumed responsibility:

  1. Where statutory functions relied upon the Claimant entail that the council assumed or undertook a responsibility to perform those functions with reasonable skill and care. The example of Barrett v Enfield LBC was given, via the action of taking a child into care and exercising parental responsibility.
  2. Where the manner that the council behaved towards a claimant justified the imposition of responsibility

Stacey J emphasised in her decision that Barrett was not analogous to YXA. The failings of the local authority in Barrett were causing harm after the child was in their care, and not any failure to remove before that time.

The judge did note that had there been “criticism of the standard of care received by YXA during the intermittent periods of his temporary s.20 accommodation”, this could have given rise to a potential claim. However, in this instance, there was not.

Given that Stacey J was unwavering in her view that this is a settled area, it is hard to envisage further circumstances in which a local authority could be said to have done the ‘something more’ leading to an assumption of responsibility.  Nonetheless, we expected that further claims will continue to be made, each being fact-specific, possibly leading to a positive finding for a claimant.

It should be noted that there remains a live Human Rights Act claim in YXA. Given the repeated refusal of the courts to date to impose an assumption of responsibility on local authorities in a wide range of circumstances, some claimants may now look to this alternative pleading. Nonetheless, it must be noted there is no automatic right to damages under the HRA, and which are only awarded where necessary to afford just satisfaction.  Claimant will also carry the burden of providing that any recognisable psychiatric injury was caused by the alleged breaches of convention rights.  This raises questions as to whether such injury is divisible for the purposes of a claim.

Human Rights Act claims also raise the issue of potential indemnity shortfalls for local authority or public bodies subject to those allegations.  It remains questionable whether the relevant operative public liability insurance for those bodies would respond to cases of HRA breaches where there is no 'bodily injury'.  It is entirely possible that discussions and case law on these issues may start to arise in the coming years.

End

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