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Deputy Master strikes out of most of ‘failure to remove’ claim against county council

Surrey County Council has successfully had struck out most of a claim brought by a woman who said its social services department failed to protect her from abuse, neglect and rape.

In HXA & Anor v Surrey County Council [2021] EWHC 250 (QB) Deputy Master Bagot QC ruled the claims were with one exception bound to fail and struck them out.

The application was brought by Surrey over a claim made by HXA and a ‘mirror’ one by her half-sister SXA.

DM Bagot said various grounds existed to strike out a claim but it was not appropriate to strike one out if, as HXA argued, it concerned an area of developing jurisprudence.

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HXA is now aged 32 and SXA 27. They said their childhoods were characterised by abuse and neglect perpetrated by their mother and one her partners - Mr A - who was convicted in 2009 of seven counts of rape in relation to HXA and jailed for 14 years.

Her mother was convicted of indecently assaulting her and jailed for nine months.

The two sought damages for psychiatric and other injuries suffered by them as a result of child abuse, which they alleged would have been avoided or lessened had Surrey’s social workers exercised reasonable care for their safety and wellbeing.

DM Bagot said: “Unsurprisingly, front and centre of both parties' submissions was the decision of the Supreme Court in N v Poole BC [2019] UKSC 25, [2020] AC 780.

“But the parties differed as to the proper scope of that decision on duties of care owed by social services authorities.”

Surrey argued that the Poole ruling was a complete answer to its case while HXA said the facts were materially different and it was at least arguable that a duty of care existed and raised a case which should be tested at trial.

The judge said: “One can have nothing but sympathy for the shocking and long-standing abuse which the claimants endured as children. But I must make my decision based not on the sympathy I feel but on the legal principles which apply.”

He said: “Where there is a recent Supreme Court judgment which is on point or at least closely analogous, I do not accept that this can be described as a developing area of law (or a developing point within that area).”

Were he to accept HXA’s case “I would be making inappropriate distinctions to avoid applying a clear precedent from the highest court, thereby allowing legally flawed claims to continue past the interim stage.

“To do so would be no kindness to [HXA] only for the relevant claims to fail at trial, as I consider inevitable.”

DM Bagot did though allow to remain a claim for an alleged failure by Surrey school staff to act on a report of abuse in 1999. The defendant council accepted that it was at least arguable that a duty of care arises in the school context and that this allegation needs to be determined on the facts.

Mark Smulian

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