Councils to seek permission to appeal from Supreme Court after judges allow appeal by claimants over strike out of ‘failure to remove’ claims

Two councils intend to seek permission to appeal to the Supreme Court after claimants in two unconnected cases won their appeals over the striking out of their claims in negligence brought against the local authorities arising out of the exercise of their statutory functions under the Children Act 1989.

The Court of Appeal ruling in HXA v Surrey County Council [2022] EWCA Civ 1196 concerned a second appeal against the decision of Stacey J (reported at [2021] EWHC 2974 (QB)) to dismiss the claimants’ appeals.

Lord Justice Baker said: “The appeal involves consideration of the circumstances in which a local authority and/or the social workers for whom it is vicariously liable owe a duty of care to a child to whom the local authority is providing child protection services.”

The Court of Appeal judge said it was acknowledged on behalf of the respondent councils that the background to both cases was shocking and disturbing.

“There is no doubt that each claimant as a child was subjected to severe abuse and neglect. 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.”

Lord Justice Baker said the Court of Appeal was not, on this appeal, being asked to rule on whether either of the local authorities was at fault.

“The issue is whether, at any stage in its contact with the children, the local authorities can 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.

Allowing the appeals over the striking out, Lord Justice Baker said: “To sum up, this is still an evolving area of the law in which it will only be through careful and incremental development of principles through decisions reached after full trials on the evidence that it will become clear where precisely the line is to be drawn between those cases where there has been an assumption of responsibility and those where there has 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. But in my view that is not the effect of the decision in Poole.”

Lord Justice Baker said the responsibility for a child required to give rise to a duty of care could be assumed in wider circumstances. Whether a duty arises will always depend on the specific facts of the case.

“As the reports from the family courts demonstrate, there is a very wide range of circumstances in which the social services department of a local authority may become involved in the lives of children in its area who are or are at risk of being abused or neglected. In many such cases, it may not be possible without a full examination of the facts to establish whether or not a duty of care arose or, if it did, whether it was breached. In those circumstances, it is plainly wrong to strike out the claims.”

The Court of Appeal judge suggested that “in due course, as a body of case law emerges, it will become easier at the outset of proceedings to identify the circumstances in which an assumption of responsibility can exist so as to give rise to a duty of care.

“At that point, there will be greater scope for striking out claims which on any view full short of establishing a common law duty of care. But at this relatively early stage in the development of the law after the Poole case, striking out these claims would in my view be a wrong use of the power under CPR 3.4.”

Commenting on the ruling, 1 Chancery Lane – whose Lord Edward Faulks QC and Paul Stagg appeared for the defendant councils – said it was an irony that the claimants’ stated aim in bringing the appeals was to seek clarity in the circumstances in which a duty of care could be owed.

“Baker LJ refused to come to any firm conclusions as to that vexed question, instead leaving it to trial judges to resolve the issue. It is regrettable for all that courts of first instance and those advising claimants and local authorities in this area are left without firm guidance as to when claims are viable,” the set said. 

“If the Court of Appeal’s judgment stands, it will be difficult or impossible to strike out any claim of this type.”

They confirmed that the defendant councils intend to seek permission to appeal to the Supreme Court.

Lord Edward Faulks QC and Paul Stagg were instructed by DWF in the HXA appeal and by Browne Jacobson in the YXA case.