HXA V SURREY COUNTY COUNCIL AND YXA V WOLVERHAMPTON CITY COUNCIL
[2021] EWHC 2974 (QB)
FACTS:-
These were two Claimants who were bringing proceedings against local authorities. YXA alleged that the local authority had failed to protect him from abuse by his parents, and HXA alleged that the local authority had failed to protect her from abuse by her mother and a Mr A. In HXA's case it was said that the Defendant should have applied for a care order for her in order to comply with the duty and in YXA's case compliance with the duty would have involved an application for a care order being made considerably sooner than it was.
HXA was born in 1988. From at least September 1993 matters of concern were raised with Surrey County Council about HXA's mother's inappropriate physical chastisement, verbal abuse and lack of supervision of her children from a wide range of sources including the NSPCC, which continued over the years. There were 5 investigations conducted under s.47 Children Act 1989 (the Act) in the 10 month period from September 1993 to 28 July 1994, when HXA and her siblings' names were placed on the Child Protection Register for neglect. There were well documented concerns of excessive and inappropriate treatment by their mother. In November 1994, after seeking legal advice, the Defendant resolved to undertake a full assessment with a view to initiating care proceedings, but failed to do so. Concerns about Mr A's behaviour towards the children were raised by a number of sources from late 1996 and it was known to the defendant that Mr A had been convicted after trial of assault occasioning actual bodily harm to his own child. Allegations of sexual abuse of HXA and her younger sister SXA by both Mr A and Mr A's father (MA) began to emerge in 1999. On 27 January 2000 a child protection conference was held when it was noted that HXA had reported that Mr A had touched her breast. The defendant resolved not to investigate the matter 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 and SXA but this was never done. HXA moved out of the family home in 2004. In 2007 the defendant obtained an emergency protection order in respect of SXA after she had reported sexual abuse by Mr A and MA to a school educational welfare officer in 2006. HXA reported sexual abuse by Mr A and MA to the police in April 2007. On 12 January 2009 at Guildford Crown Court, Mr A was convicted of 7 specimen counts of rape of HXA when she was between the ages of 9 to 16 and sentenced to 14 years imprisonment. HXA's mother was convicted of indecently assaulting HXA and sentenced to 9 months immediate custody.
YXA was born in November 2001. He was disabled and had epilepsy, learning disabilities and autistic spectrum disorder. He and his family moved to the Wolverhampton City Council area in August 2007 when he was aged 6. The Defendant had dealings with YXA within a month of the family's arrival in September 2007 and completed an assessment on 6 November 2007 which showed that YXA had a high level of need and identified concerns about his parents' ability to care for him. In March 2008 a paediatrician advised the Defendant that YXA was being given triple his prescribed dose of medication by his father with adverse consequences for his health and that he should be received into the Defendant's care. From 28 April 2008, a pattern began of the defendant receiving YXA into its care for approximately 1 night every 2 weeks and 1 weekend every 2 months with his parents' agreement pursuant to s.20 of the Act. Further concerns were reported in 2008: from a clinical psychologist advising that YXA's parents had been hitting him, to further reports of excessive medication being given to him by his parents, to a psychiatrist informing the defendant of YXA's mother's excessive alcohol and cannabis consumption. The Defendant also knew of a long history of substance abuse by both the parents. Concerns were raised at a looked after child review conducted in July 2008 and thereafter. Following further problems and matters raised in 2009 - including YXA being hospitalised for seizures thought to be caused by excessive medication, suspicions by the hospital staff that his mother had been hitting him and reports of domestic violence - on 17 December his parents admitted that they had medicated him inappropriately to keep him quiet and had smacked him. On 18 December 2009 YXA was received into the defendant's care with his parents' agreement. After making good progress in foster care, an interim care order was made in July 2010 and a final care order made in March 2011.
The Defendants in both cases applied to strike out the claims and in both cases, the Deputy Master and Master respectively found that it was not arguable that a common law duty of care was owed by the local authority to the Claimants to protect them from the harm that they suffered from the abuse and neglect of their parents. The Claimant’s appealed.
JUDGEMENT:-
Mrs Justice Stacey went over the facts of each case. The issues in the appeals were :-
i) On the assumed facts in each case did the Defendant local authority assume a responsibility towards the Claimant so that a duty of care arguably arose as a result of the following particular behaviour by the defendants?
a) In HXA's case when:
i) the Defendant placed her name on the child protection register on 28 July 1994, or
ii) in November 1994 when the Defendant decided to undertake a full assessment with a view to initiating care proceedings but failed to do so, or
iii) on 27 January 2000 when the Defendant resolved to undertake keeping safe work with HXA, but failed to do so?
b) In YXA's case when he was given intermittent accommodation provided by the local authority away from the family home under s.20 of the Act?
ii) Was it wrong to strike out the negligence claims on the basis that the law in this area is a developing area of law?
iii) Was it wrong to strike out the negligence claims on the basis that certain aspects of each claim would remain even if the negligence claims were struck out?
Stacey J considered the legislative context under the Children Act 1989 and referred to the case of DFX and Ors v Coventry City Council [2021] EWHC 1382 (QB), which summarised that context. In that case, Mrs Justice Lambert had conducted a comprehensive review of three leading authorities :-
These cases set out the following principles.
Only the assumption of responsibility route to the establishment of a duty was applicable in this case. In the case of Poole, the court identified two possible routes by which it can be inferred that a public authority has assumed responsibility.
A public body which offered a service to the public often assumed a responsibility to those using the service. A hospital undertook to exercise reasonable care in the medical treatment of its patients. The same was true of an education authority accepting pupils into its schools.
In the present case, on the other hand, the council's investigating and monitoring the Claimants' position did not involve the provision of a service to them on which they or their mother 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 would therefore conclude that the particulars of claim did not set out an arguable claim that the council owed the Claimants a duty of care. The judge referred to DFX above and the judge’s similar conclusion on the facts of that case.
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 therefore 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.
In HXA it was argued for the Claimant that the Defendant local authority first assumed responsibility for her welfare and protection on 28th of July 1994 when her name was placed on the child protection register under the category of neglect and care. Secondly it was argued for the Claimant that in November 1994 the Defendant assumed responsibility when there was a child protection investigation after the Defendant had received a referral alleging that the Claimant's mother had assaulted her. Thirdly the defendant assumed responsibility for the claimant on 27 January 2000 when it resolved to do "keeping safe" work with the Claimant after it was reported at a child protection meeting that Mr A had touched the claimant's breast. Moreover, it was argued that the Deputy Master in the court below was wrong to conclude that this was no longer a developing area of law in light of the Supreme Court's judgement in N v Poole. There was still uncertainty in this area.
Similar arguments were deployed in YXA. On the facts in YXA's case it was alleged the Defendant had assumed responsibility to protect him from harm when he was a "looked after child" on each occasion when he was in the Defendant's care pursuant to s.20 of the Act from 28 April 2008 onwards. There was no criticism of the accommodation provided but the challenge was to the Defendant's decision to allow him to return home to his parents. It was not alleged as a continuous obligation but was said to arise on each occasion that he was intermittently received into care. Also, since it was a developing area of law the claim should not have been struck out at a preliminary stage. Furthermore, the claimant brought his claim not only in negligence but also for damages under the Human Rights Act 1998 (HRA). Since the HRA claim arose out of precisely the same facts and allegations of breach there would have been no or minimal costs saving and court time and for that reason also the claim should not have been struck out.
Stacey J said that the essence of the claims 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 was principally about a failure to confer a benefit was to fail to identify correctly the underlying complaint - merely because something could be presented as an act did not mean that what were, on a proper analysis, omissions could 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 they could be expected to rely.
The Defendants were merely operating a statutory scheme which did not create a common law duty of care.
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.
The appeals would be dismissed.
[2021] EWHC 2974 (QB)
FACTS:-
These were two Claimants who were bringing proceedings against local authorities. YXA alleged that the local authority had failed to protect him from abuse by his parents, and HXA alleged that the local authority had failed to protect her from abuse by her mother and a Mr A. In HXA's case it was said that the Defendant should have applied for a care order for her in order to comply with the duty and in YXA's case compliance with the duty would have involved an application for a care order being made considerably sooner than it was.
HXA was born in 1988. From at least September 1993 matters of concern were raised with Surrey County Council about HXA's mother's inappropriate physical chastisement, verbal abuse and lack of supervision of her children from a wide range of sources including the NSPCC, which continued over the years. There were 5 investigations conducted under s.47 Children Act 1989 (the Act) in the 10 month period from September 1993 to 28 July 1994, when HXA and her siblings' names were placed on the Child Protection Register for neglect. There were well documented concerns of excessive and inappropriate treatment by their mother. In November 1994, after seeking legal advice, the Defendant resolved to undertake a full assessment with a view to initiating care proceedings, but failed to do so. Concerns about Mr A's behaviour towards the children were raised by a number of sources from late 1996 and it was known to the defendant that Mr A had been convicted after trial of assault occasioning actual bodily harm to his own child. Allegations of sexual abuse of HXA and her younger sister SXA by both Mr A and Mr A's father (MA) began to emerge in 1999. On 27 January 2000 a child protection conference was held when it was noted that HXA had reported that Mr A had touched her breast. The defendant resolved not to investigate the matter 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 and SXA but this was never done. HXA moved out of the family home in 2004. In 2007 the defendant obtained an emergency protection order in respect of SXA after she had reported sexual abuse by Mr A and MA to a school educational welfare officer in 2006. HXA reported sexual abuse by Mr A and MA to the police in April 2007. On 12 January 2009 at Guildford Crown Court, Mr A was convicted of 7 specimen counts of rape of HXA when she was between the ages of 9 to 16 and sentenced to 14 years imprisonment. HXA's mother was convicted of indecently assaulting HXA and sentenced to 9 months immediate custody.
YXA was born in November 2001. He was disabled and had epilepsy, learning disabilities and autistic spectrum disorder. He and his family moved to the Wolverhampton City Council area in August 2007 when he was aged 6. The Defendant had dealings with YXA within a month of the family's arrival in September 2007 and completed an assessment on 6 November 2007 which showed that YXA had a high level of need and identified concerns about his parents' ability to care for him. In March 2008 a paediatrician advised the Defendant that YXA was being given triple his prescribed dose of medication by his father with adverse consequences for his health and that he should be received into the Defendant's care. From 28 April 2008, a pattern began of the defendant receiving YXA into its care for approximately 1 night every 2 weeks and 1 weekend every 2 months with his parents' agreement pursuant to s.20 of the Act. Further concerns were reported in 2008: from a clinical psychologist advising that YXA's parents had been hitting him, to further reports of excessive medication being given to him by his parents, to a psychiatrist informing the defendant of YXA's mother's excessive alcohol and cannabis consumption. The Defendant also knew of a long history of substance abuse by both the parents. Concerns were raised at a looked after child review conducted in July 2008 and thereafter. Following further problems and matters raised in 2009 - including YXA being hospitalised for seizures thought to be caused by excessive medication, suspicions by the hospital staff that his mother had been hitting him and reports of domestic violence - on 17 December his parents admitted that they had medicated him inappropriately to keep him quiet and had smacked him. On 18 December 2009 YXA was received into the defendant's care with his parents' agreement. After making good progress in foster care, an interim care order was made in July 2010 and a final care order made in March 2011.
The Defendants in both cases applied to strike out the claims and in both cases, the Deputy Master and Master respectively found that it was not arguable that a common law duty of care was owed by the local authority to the Claimants to protect them from the harm that they suffered from the abuse and neglect of their parents. The Claimant’s appealed.
JUDGEMENT:-
Mrs Justice Stacey went over the facts of each case. The issues in the appeals were :-
i) On the assumed facts in each case did the Defendant local authority assume a responsibility towards the Claimant so that a duty of care arguably arose as a result of the following particular behaviour by the defendants?
a) In HXA's case when:
i) the Defendant placed her name on the child protection register on 28 July 1994, or
ii) in November 1994 when the Defendant decided to undertake a full assessment with a view to initiating care proceedings but failed to do so, or
iii) on 27 January 2000 when the Defendant resolved to undertake keeping safe work with HXA, but failed to do so?
b) In YXA's case when he was given intermittent accommodation provided by the local authority away from the family home under s.20 of the Act?
ii) Was it wrong to strike out the negligence claims on the basis that the law in this area is a developing area of law?
iii) Was it wrong to strike out the negligence claims on the basis that certain aspects of each claim would remain even if the negligence claims were struck out?
Stacey J considered the legislative context under the Children Act 1989 and referred to the case of DFX and Ors v Coventry City Council [2021] EWHC 1382 (QB), which summarised that context. In that case, Mrs Justice Lambert had conducted a comprehensive review of three leading authorities :-
- Michael v Chief Constable of South Wales Police [2015] UKSC 2
- Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4
- N v Poole Borough Council [2020] AC 780
These cases set out the following principles.
- At common law public authorities were generally subject to the same liabilities in tort as private individuals and bodies.
- Like private individuals, public authorities were generally under no duty of care to prevent the occurrence of harm.
- The distinction between negligent acts and negligent omissions was therefore, of fundamental importance.
- Public authorities did not therefore owe a duty of care towards individuals to confer a benefit upon them by protecting them from harm, any more than would a private individual or body.
- The general rule against liability for negligently failing to confer a benefit was subject to exceptions. They were (i) when A had assumed responsibility to protect B from that danger; (ii) A had done something which prevents another from protecting B from that danger; (iii) A had a special level of control over that source of danger; or (iv) A's status created an obligation to protect B from that danger.
Only the assumption of responsibility route to the establishment of a duty was applicable in this case. In the case of Poole, the court identified two possible routes by which it can be inferred that a public authority has assumed responsibility.
- Firstly, where the nature of the statutory functions relied on by the Claimant in themselves entailed that the council assumed or undertook a responsibility towards a Claimant to perform those functions with reasonable skill and care, such as by taking a child into its care and exercising parental responsibility.
- Secondly from the manner in which the public authority had behaved towards the Claimant in a particular case.
A public body which offered a service to the public often assumed a responsibility to those using the service. A hospital undertook to exercise reasonable care in the medical treatment of its patients. The same was true of an education authority accepting pupils into its schools.
In the present case, on the other hand, the council's investigating and monitoring the Claimants' position did not involve the provision of a service to them on which they or their mother 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 would therefore conclude that the particulars of claim did not set out an arguable claim that the council owed the Claimants a duty of care. The judge referred to DFX above and the judge’s similar conclusion on the facts of that case.
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 therefore 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.
In HXA it was argued for the Claimant that the Defendant local authority first assumed responsibility for her welfare and protection on 28th of July 1994 when her name was placed on the child protection register under the category of neglect and care. Secondly it was argued for the Claimant that in November 1994 the Defendant assumed responsibility when there was a child protection investigation after the Defendant had received a referral alleging that the Claimant's mother had assaulted her. Thirdly the defendant assumed responsibility for the claimant on 27 January 2000 when it resolved to do "keeping safe" work with the Claimant after it was reported at a child protection meeting that Mr A had touched the claimant's breast. Moreover, it was argued that the Deputy Master in the court below was wrong to conclude that this was no longer a developing area of law in light of the Supreme Court's judgement in N v Poole. There was still uncertainty in this area.
Similar arguments were deployed in YXA. On the facts in YXA's case it was alleged the Defendant had assumed responsibility to protect him from harm when he was a "looked after child" on each occasion when he was in the Defendant's care pursuant to s.20 of the Act from 28 April 2008 onwards. There was no criticism of the accommodation provided but the challenge was to the Defendant's decision to allow him to return home to his parents. It was not alleged as a continuous obligation but was said to arise on each occasion that he was intermittently received into care. Also, since it was a developing area of law the claim should not have been struck out at a preliminary stage. Furthermore, the claimant brought his claim not only in negligence but also for damages under the Human Rights Act 1998 (HRA). Since the HRA claim arose out of precisely the same facts and allegations of breach there would have been no or minimal costs saving and court time and for that reason also the claim should not have been struck out.
Stacey J said that the essence of the claims 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 was principally about a failure to confer a benefit was to fail to identify correctly the underlying complaint - merely because something could be presented as an act did not mean that what were, on a proper analysis, omissions could 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 they could be expected to rely.
The Defendants were merely operating a statutory scheme which did not create a common law duty of care.
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.
The appeals would be dismissed.