HXA v Surrey County Council and YXA v Wolverhampton City Council – a turning point in the scope of liability of public authorities for failing to protect children from abuse

Written by May Martin

The judgment of the Court of Appeal in HXA v Surrey County Council and YXA v Wolverhampton City Council [2022] EWCA Civ 1196 is a guarded, yet potentially seismic, shift in the law relating to liability of public authorities for failing to protect children.

THE FACTS

Both HXA and YXA involve claims against local authorities for failing to protect children from suffering abuse at the hands of their parents. In HXA, Surrey County Council had been involved with the family for over 6 years. In that time, they had (amongst other things):

• Made a decision to obtain legal advice with a view to issuing care proceedings, but then subsequently not taken any action;

• Made a decision not to investigate after the child made a report of sexual abuse; and

• Made a decision to do ‘keeping safe’ work with the children and the family.

In YXA, the local authority had an arrangement with YXA’s parents whereby YXA spent roughly one night a fortnight and one weekend every two months in foster care. The arrangement was made under section 20 of the Children Act 1989. The arrangement continued for approximately 18 months, during which there were increasing concerns about YXA’s treatment when in the care of his parents. YXA was subsequently accommodated full time under section 20 and a care order was made roughly two years later.  

Procedural History

Both claims were struck out at first instance. In HXA, Deputy Master Bagot QC decided that the case was virtually indistinguishable from Poole Borough Council v GN [2019] UKSC 25 (in which, broadly, it was held that local authorities do not owe a duty of care in these circumstances)and so there was no real prospect of the claimants establishing a duty of care.  

In YXA, Master Dagnall concluded that no duty of care arose from the provision of accommodation under section 20 and so struck out the claim.

Both strike-out decisions were upheld by Stacey J. Stacey J noted that the actions of the local authorities were no more than the local authority ‘operating a statutory scheme’ and accordingly their actions did not create a duty of care. Stacey J held that the facts alleged in both cases were so closely analogous to Poole that the area can no longer be described as a developing area.

THE LAW

The Children Act 1989

The Children Act 1989 imposes duties and confers powers upon local authorities and forms the basis of local authority involvement in the lives of children and their families. Under Section 17(1), local authorities have a general duty to safeguard and promote the welfare of children within their area who are in need.

There are two provisions that are particularly relevant for these cases.

1. Section 20 – this section relates to the provision of accommodation by the local authority. Under Section 20(1), the local authority has a duty to provide accommodation in certain circumstances (which are broadly where there is nobody else to provide the child with suitable accommodation). Under Section 20(4), the local authority has a power to provide accommodation for a child, even where someone else is able to, if the local authority considers that to do so would safeguard or promote the child’s welfare.
2. Section 47 – this section deals with the local authority’s duty to investigate potential harm to a child. Under this section, where a local authority has reasonable cause to suspect that a child is suffering, or is likely to suffer, significant harm, then the local authority must make such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare.

Duties of care owed by local authorities

The first step in establishing a claim in negligence is to establish that the local authority owed a duty of care to the children. The law relating to the situations in which a duty of care is owed is complex and an examination of the relevant case law is beyond the scope of this article. For those wishing to undertake a more detailed analysis of how the law in this area has developed, the judgment of Lord Reed in Poole is a very helpful summary.

Broadly speaking, in cases where the claim relates to a failure to act to prevent harm, as opposed to actively causing harm, no duty of care is owed unless the case falls into one of a number of well-recognised categories. The category which is usually relied upon by claimants in these cases is the ‘assumption of responsibility’ category. It works as follows:

1. The general rule is that A owes no duty to B to protect B from harm which is inflicted by C. A is perfectly entitled to stand back and allow C to cause B harm. The law does not require A to intervene to stop C.
2. However, if A assumes responsibility for protecting B from C,  that will create a duty of care.
3. That duty means that A has to actively do something to protect B. A can no longer simply stand back and allow C to harm B.

How does A assume responsibility to protect B from C? A has to undertake to perform some task or to provide some service to B, together with an undertaking that A will take reasonable care in doing that task or service. The undertaking can be express (A could say that he will take reasonable care) but it is more commonly implied, usually from the fact that it was foreseeable that B would rely upon A to take care in doing the task or service.

How does this apply to local authorities and children? In Poole, Lord Reed considered that nothing the local authority had done amounted to an assumption of responsibility towards the children. He concluded that the local authority’s investigating and monitoring, the allocation of a social worker, making the children subject to ‘child in need’ plans, performing an assessment under section 47, and making the children subject to child protection plans did not create an assumption of responsibility.

COURT OF APPEAL DECISION IN HXA AND YXA

Should the claims have been struck out?

The Court of Appeal overturned the decision to strike out the claims. At [92], Baker LJ (giving the sole judgment) makes clear that the circumstances in which an assumption of responsibility arise is an intensely factual question that can only be answered on a case-by-case basis. He states at [100] that this is still an evolving area of the law and the ramifications following Poole are still being worked through. He notes at [101] that identifying whether or not there has been an assumption of responsibility may be a complex exercise in a case where the local authority has been involved over a number of years.

For those reasons, the Court of Appeal concluded that it would be wrong to strike out a claim before the evidence has been heard. There is further guidance given at [105] that the line between those cases where there has been an assumption of responsibility, and those cases where there has not, will only be developed through decisions reached after full trials.

In what circumstances will an assumption of responsibility arise?

As well as dealing with the question of strike out, the judgment goes on to discuss situations in which a local authority may have assumed a responsibility towards a child. Baker LJ is clear that Poole is not authority that an assumption of responsibility only arises in situations where the local authority has obtained a care order in relation to a child.

Section 20 accommodation

The first situation that Baker LJ addresses is in relation to ‘looked-after children’ i.e. children in care and children being provided with accommodation under section 20. Baker LJ concludes that an assumption of responsibility in relation to children accommodated under Section 20 is ‘not necessarily confined to the actual periods when the child was being accommodated.’ Even for children who are only accommodated for a short period of time, the responsibility of the local authority may extend beyond the specific period of accommodation.

The consequences of Baker LJ’s comments in relation to section 20 are not entirely clear. He gives an example of a child who, during a period of accommodation under section 20, informs the local authority that he is subject to sexual abuse at home. Baker LJ notes that the local authority’s duty to protect the child would continue after the end of the period of accommodation. Baker LJ notes that if the local authority simply returned the child home, it would be in breach of its statutory duty. So far, uncontroversial.  

But Baker LJ goes on. He states that in such circumstances, the conduct of the local authority may amount, on certain facts, to ‘something more’[1] so that the assumption of responsibility that arises therefrom may give rise to a duty of care at common law.

When we look closer at this example, and in particular the reference to the ‘something more’, Baker LJ seems to suggest that accommodating a child under section 20 could, by itself, give rise to an assumption of responsibility. In the example given by Baker LJ, the local authority has done nothing more than accommodate the child. Whilst Baker LJ refers only to the possibility of an assumption of responsibility ‘on certain facts’, it not clear why he has chosen that particular example if not to suggest that a duty of care would arise upon those facts.

At [102] Baker LJ applies the principle to the facts of YXA. He states, ‘I consider it is certainly arguable that an assumption of responsibility may arise when a child is voluntarily accommodated in respite care as occurred in the case of YXA. He was accommodated with the same carers under a regular programme of short breaks or respite care because of concerns about his welfare in the care of his parents. He thus became a looked-after child whose welfare the local authority was under the statutory duty to safeguard and protect. I do not agree with the interpretation preferred by the master and the judge that this was merely an assumption of responsibility leading to a duty of care in relation to the accommodation itself. the duty to safeguard and protect his welfare was not necessarily confined to the limited period when the child was accommodated…In the case of YXA, therefore, I conclude that a local authority accommodating a child under section 20 is capable of amounting to ‘something more’ so as to give rise to an assumption of responsibility by the local authority.’

This conclusion lends support to the suggestion that simply accommodating a child under section 20 can, in certain circumstances (potentially in YXA’s circumstances) give rise to an assumption of responsibility. That is significant. [2]

Cases where a local authority takes, or resolves to take, a specific step to safeguard a child which amounts to an assumption of responsibility

The second situation discussed by Baker LJ is where the local authority decides to undertake or commission a specific piece of work to assess the level of risk and/or protect a child from a particular type of harm. This is plainly a reference to the case of DFX where the local authority commissioned a psychology report to assess the risk of harm to the child, and it was held that such an act did not create a duty of care on the part of the local authority.

Baker LJ questions two elements of the decision in DFX:

1. Whether it was right to conclude that the commissioning of the report was for the local authority’s benefit and not for the benefit of the child.
2. Whether it was right to say that it was not reasonably foreseeable that the child would rely upon the local authority to exercise reasonable care and skill when deciding whether to start care proceedings.

The relevance of those doubts raised by Baker LJ is that one recognised category of cases where a duty of care is owed to the child is where a local authority involves a specialist to provide an assessment, and that specialist can be said to be providing a service not just to the local authority, but to the child (or the child’s parents) themselves[3]. Such a category has (so far) been confined to an educational context.

However, if Baker LJ is right, and a psychological report obtained by social services could be said to be commissioned for the benefit of the child, the category could be extended beyond the educational context into the social care context. It would allow claimants a different avenue by which to establish that there has been an assumption of responsibility towards them.

Looking more broadly at Baker LJ’s comments, two features stand out.

1. Baker LJ refers to a ‘decision to undertake or to commission a specific piece of work to assess the level of risk’. On one reading, although it would be an extraordinary extension of the law, that could include all cases where the local authority makes enquiries under Section 47. Section 47 requires a local authority to ‘make such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare.’ In undertaking a Section 47 investigation, is the local authority not deciding to undertake a specific piece of work to assess the level of risk to the child?
2. Baker LJ refers not only to situations where the local authority actually takes a specific step to safeguard a child but also to situations where the local authority ‘resolves to take’ such a step. A frequent issue in cases of this nature are that the local authority makes a decision about a particular action to be taken, and then subsequently fails to take it. Under the law as understood following Poole, claimants would be unable to establish a duty of care in such cases precisely because the local authority had not done anything (as opposed to doing something negligently). Baker LJ’s statement appears to suggest that a duty of care could arise merely from the act of deciding to take a step, even if that step is subsequently not undertaken.

At [103], Baker LJ applies the principle to HXA. He notes that the decision to seek legal advice with a view to initiating care proceedings and to carry out a full assessment could amount to an assumption of responsibility. Further, he states that the agreement to carry out keeping safe work could amount to ‘something more’ so as to amount to an assumption of responsibility. Again, these are extraordinary statements which have the potential to significantly widen the scope of public authority liability in these cases.

COMMENT

The first point to note is that the Court of Appeal expressly stated it was not laying down any guidance in relation to the circumstances in which a local authority assumes responsibility so as to give rise to a duty of care. That, according to Baker LJ, is a question which ‘can only be answered definitely on a case by case basis by reference to the specific facts of each case.’ The judgment does not mean that a duty of care will be owed in any or all cases such as HXA and YXA moving forwards. All that the judgment does, strictly speaking, is conclude that the situation is not so unarguable from the point of view of a claimant that these cases should be struck out.

Despite that, it must be said that the decision and (more importantly) the reasoning is a substantial departure from Poole. Under Poole, the broad position was thought to be that nothing short of the making of a care order would amount to an assumption of responsibility. Section 47 investigations, care plans, child protection plans, section 20 accommodation etc. was not sufficient. HXA and YXA changes the landscape.

It is noticeable that Baker LJ distinguishes Poole from HXA and YXA. He does so on the basis that Poole was, for all intents and purposes, not a true failure to remove case. It was a case about children being harassed by their neighbours. That is not a situation which the Children Act was designed to deal with. I anticipate that all claimants moving forwards will seek to distance themselves from Poole in a similar manner. I do wonder whether the unique facts upon which Poole was decided leave the door open for another Supreme Court decision to revisit this area. The principle of an assumption of responsibility is almost certainly too embedded into the law for there to be any significant change, but it is definitely open to criticism on the basis that the cases from which it developed (e.g. Hedley Byrne v Heller) bear no resemblance to the context of local authority care cases.

WHAT DOES THIS MEAN?

Moving forward, there are 3 primary take-aways from the decision:

1. It should not be the general practice for cases of this nature to be struck out on the basis that there is no duty of care owed. These cases need to proceed to full trials. This may have an effect on the approach that local authorities take to defending and/or settling such cases.
2. This is a developing area of law in which this judgment hints at a significant expansion in the scope of duties owed by public authorities to children in these types of cases.
3. There will be many more decisions in this area as the precise line between an assumption of responsibility and no assumption of responsibility is worked out. One case to note is the case of Champion v Surrey County Council, in which HHJ Roberts refused to strike out the claims, which is due to be heard by the Court of Appeal later this year.

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[1] The reference to ‘something more’ arises out of the judgment of Stacey J in the High Court decision on HXA and YXA. Stacey J examined the authorities on assumption of responsibility, noting that the mere fact that a public authority is operating within a statutory scheme does not, of itself, generate a common law duty of care. Stacey J went on, ‘Whether a duty of care is generated by an assumption of responsibilities depends upon whether there is, putting it colloquially, ‘something more’: either something intrinsic to the nature of the statutory function itself which gives rise to an obligation on the defendant to act carefully in its exercising that function, or something about the manner in which the defendant has conducted itself towards the claimants which gives rise to a duty of care.’

[2] It is even more significant when we return to the decision of Stacey J in the High Court. She notes that a duty of care arises when a care order is made because at that point the local authority has parental responsibility for the child, which is the ‘something else’ sufficient to amount to an assumption of responsibility. In section 20 cases, the local authority does not have parental responsibility for the child. What, then, is the something more? Baker LJ seems to be suggesting that the provision of accommodation alone is sufficient for an assumption of responsibility.

[3] See Phelps v Hillingdon London Borough Council [2001] 2 AC 619