HXA V SURREY COUNTY COUNCIL and YXA V WOLVERHAMPTON CITY COUNCIL
[2022] EWCA Civ 1196
FACTS :-
Both claimants were involved with social services for a number of years whilst they remained at home with their families and continued to suffer abuse. The issue for the Court of Appeal was whether, at any stage in its contact with the children, the local authorities could be said to have assumed responsibility for their welfare so that they owed the children a duty of care at common law. The deputy master in the case of HXA and the master in the case of YXA and Stacey J on the conjoined appeals against both decisions all decided that the local authorities could not be said to have assumed responsibility so as to owe a duty of care to the children. As a result, the claims were struck out.
JUDGEMENT :-
Baker LJ with whom the rest of the court agreed, said that even if the appeals were decided in the Claimants’ favour, their cases would still have to proceed to trial and the judge would have to decide in each case whether the local authority did in fact owe a common law duty of care, and if so whether there was a breach of duty as a result of which the Claimants suffered damage.
Baker LJ summarised the facts in each case. He then considered the relevant statutory provisions of the Children Act 1989 and in particular Section 17, which stated the general duty of a local authority to safeguarding and promote the welfare of children within their area. He also considered Section 20, which related to the provision of accommodation for children and statutory regulations and Section 22, which was the general duty of local authority in relation to children looked after by them.
Baker LJ referred to Williams and another v London Borough of Hackney [2018] UKSC 37. The case concerned claims for damages for negligence, misfeasance in public office, and breach of human rights brought by parents of eight children who had been accommodated by the local authority under section 20 without, it was argued, the informed consent of the parents. The relevance of the case lay in the way in which accommodation under section 20 differed from receiving a child into care under a care order. There had been judicial criticism of local authorities who accommodated a child under the section for long periods without making proper long-term plans. One example was Worcestershire County Council v AA [2019] EWHC 1855 (Fam) in which a child was accommodated under section 20 for eight years from the age of five. It was only after the death of his mother that the local authority started care proceedings which led to the making of a special guardianship order in favour of his foster carers.
Baker J then considered the decision in CN v Poole Borough Council [2019] UKSC 25 which set out the following principles.
Baker LJ then considered the procedural law on striking out under CPR 3.4(2)(a) and then the case law since CN v Poole Borough Council.
Baker J then considered the judgements in the present case and the grounds of appeal. He commented that the task facing this court and and the courts below, had been hindered by the manner in which both claims have been pleaded. In the present cases, the particulars of claim were deficient. They did not include a concise statement of the facts upon which the Claimants relied. Instead, they each set out a lengthy "sequence of events". However, despite these difficulties, it had been possible to pick one's way through the pleadings and arrive at the following conclusions.
There was a fundamental difference between the general duty under section 17(1) of the 1989 Act and the specific duty under section 22(3). Under section 17(1)(a) every local authority was under a general duty to safeguard and promote the welfare of children in need within their area by providing a range of services appropriate to their needs. Under section 22(3), a local authority looking after a child was under a specific duty to safeguard and promote his welfare. A duty of care could not arise simply as a result of the local authority's general duties such as those under section 17(1)(a), but it might arise as a result of the local authority's exercise of its specific duties to a child if, on the specific facts of the case, the circumstances amounted to an assumption of responsibility for the child.
Depending on the facts of the case, an assumption of responsibility might arise out of the local authority's conduct where it acquired parental responsibility for a child when granted a care order under section 31. However, the circumstances in which a duty of care might arise were not confined to such cases. Those circumstances were defined on a case by case basis by reference to the specific facts of each case. It was not appropriate to seek to lay down guidance in a judgment such as this where the court was considering appeals against orders striking out claims. However, Baker LJ would make the following observations:
The Court of Appeal did not have to decide whether there was an assumption of responsibility in this case, however this was not a claim which should have been struck out under CPR 3.4(2)(a).
This was still an evolving area of the law in which it would only be through careful and incremental development of principles through decisions reached after full trials on the evidence that it would become clear where precisely the line was to be drawn between those cases where there had been an assumption of responsibility and those where there had not.
If the assumption of responsibility were to be confined to cases where a local authority had acquired parental responsibility under a care order, the line would be clear. Baker LJ said that this was not the effect of the decision in Poole.
Baker LJ would both allow both appeals.
[2022] EWCA Civ 1196
FACTS :-
Both claimants were involved with social services for a number of years whilst they remained at home with their families and continued to suffer abuse. The issue for the Court of Appeal was whether, at any stage in its contact with the children, the local authorities could be said to have assumed responsibility for their welfare so that they owed the children a duty of care at common law. The deputy master in the case of HXA and the master in the case of YXA and Stacey J on the conjoined appeals against both decisions all decided that the local authorities could not be said to have assumed responsibility so as to owe a duty of care to the children. As a result, the claims were struck out.
JUDGEMENT :-
Baker LJ with whom the rest of the court agreed, said that even if the appeals were decided in the Claimants’ favour, their cases would still have to proceed to trial and the judge would have to decide in each case whether the local authority did in fact owe a common law duty of care, and if so whether there was a breach of duty as a result of which the Claimants suffered damage.
Baker LJ summarised the facts in each case. He then considered the relevant statutory provisions of the Children Act 1989 and in particular Section 17, which stated the general duty of a local authority to safeguarding and promote the welfare of children within their area. He also considered Section 20, which related to the provision of accommodation for children and statutory regulations and Section 22, which was the general duty of local authority in relation to children looked after by them.
Baker LJ referred to Williams and another v London Borough of Hackney [2018] UKSC 37. The case concerned claims for damages for negligence, misfeasance in public office, and breach of human rights brought by parents of eight children who had been accommodated by the local authority under section 20 without, it was argued, the informed consent of the parents. The relevance of the case lay in the way in which accommodation under section 20 differed from receiving a child into care under a care order. There had been judicial criticism of local authorities who accommodated a child under the section for long periods without making proper long-term plans. One example was Worcestershire County Council v AA [2019] EWHC 1855 (Fam) in which a child was accommodated under section 20 for eight years from the age of five. It was only after the death of his mother that the local authority started care proceedings which led to the making of a special guardianship order in favour of his foster carers.
Baker J then considered the decision in CN v Poole Borough Council [2019] UKSC 25 which set out the following principles.
- Public authorities might owe a duty of care in circumstances where the principles applicable to private individuals would impose such a duty, unless such a duty would be inconsistent with, and was therefore excluded by, the legislation from which their powers or duties are derived.
- Public authorities did not owe a duty of care at common law merely because they had statutory powers or duties, even if, by exercising their statutory functions, they could prevent a person from suffering harm.
- Public authorities could come under a common law duty to protect from harm in circumstances where the principles applicable to private individuals or bodies would impose such a duty, as for example where the authority had created the source of danger or had assumed a responsibility to protect the claimant from harm, unless the imposition of such a duty would be inconsistent with the relevant legislation.
Baker LJ then considered the procedural law on striking out under CPR 3.4(2)(a) and then the case law since CN v Poole Borough Council.
- Champion v Surrey County Council (HHJ Roberts, siting in the Central London County Court, 26 June 2020, unreported
- DFX v Coventry City Council [2021] EWHC 1382 (QB)
Baker J then considered the judgements in the present case and the grounds of appeal. He commented that the task facing this court and and the courts below, had been hindered by the manner in which both claims have been pleaded. In the present cases, the particulars of claim were deficient. They did not include a concise statement of the facts upon which the Claimants relied. Instead, they each set out a lengthy "sequence of events". However, despite these difficulties, it had been possible to pick one's way through the pleadings and arrive at the following conclusions.
There was a fundamental difference between the general duty under section 17(1) of the 1989 Act and the specific duty under section 22(3). Under section 17(1)(a) every local authority was under a general duty to safeguard and promote the welfare of children in need within their area by providing a range of services appropriate to their needs. Under section 22(3), a local authority looking after a child was under a specific duty to safeguard and promote his welfare. A duty of care could not arise simply as a result of the local authority's general duties such as those under section 17(1)(a), but it might arise as a result of the local authority's exercise of its specific duties to a child if, on the specific facts of the case, the circumstances amounted to an assumption of responsibility for the child.
Depending on the facts of the case, an assumption of responsibility might arise out of the local authority's conduct where it acquired parental responsibility for a child when granted a care order under section 31. However, the circumstances in which a duty of care might arise were not confined to such cases. Those circumstances were defined on a case by case basis by reference to the specific facts of each case. It was not appropriate to seek to lay down guidance in a judgment such as this where the court was considering appeals against orders striking out claims. However, Baker LJ would make the following observations:
- First, a duty of care might arise in respect of looked-after children if circumstances arose which amounted to an assumption of responsibility by the local authority. The statutory duties owed by a local authority under section 22 were owed to every child being "looked after" by the authority. That category encompassed not only children who are in care but also children being provided with accommodation under section 20. This potential assumption of responsibility was not necessarily confined to the actual periods when the child was being accommodated, extended only to encompass "the mechanics of the return" to the parents' care. The local authority had also to be thinking of the longer term. The responsibility might well extend beyond the specific period when they were being accommodated.
- Secondly, a duty of care might arise in circumstances where a local authority, acting in accordance with its duties under statute, regulation, or statutory guidance, had taken, or resolved to take, a specific step to safeguard or promote the welfare of a child which amounted to an assumption of responsibility for a child. One example might be a decision to undertake or to commission a specific piece of work to assess the level of risk and/or protect a child from a particular type of harm.
The Court of Appeal did not have to decide whether there was an assumption of responsibility in this case, however this was not a claim which should have been struck out under CPR 3.4(2)(a).
This was still an evolving area of the law in which it would only be through careful and incremental development of principles through decisions reached after full trials on the evidence that it would become clear where precisely the line was to be drawn between those cases where there had been an assumption of responsibility and those where there had not.
If the assumption of responsibility were to be confined to cases where a local authority had acquired parental responsibility under a care order, the line would be clear. Baker LJ said that this was not the effect of the decision in Poole.
Baker LJ would both allow both appeals.