Supreme Court to hear appeal this week on local authorities and duty to take child into care

The Supreme Court will this week hear two unconnected cases whether the central issue is whether a local authority had assumed responsibility to protect a child from harm through its conduct, and therefore owed them a duty of care at common-law.

The claimants allege negligence on the part of social workers for failing to remove them from their parents or step-father.

The appeal relates to the ruling in HXA v Surrey County Council [2022] EWCA Civ 1196 (31 August 2022) in which the Court of Appeal allowed the claimants’ appeals against the striking out of their claims.

Facts of YXA (as set out by the Supreme Court)

A summary of the facts in YXA's case, as alleged by YXA, is set out at CA [13]-[16], Bundle p. 46-47). Not all of these facts are admitted by Wolverhampton City Council ("WCC"). As this concerns an application to strike out by WCC, the court is required to assume that the facts alleged by YXA are capable of proof (CA [4], Bundle p. 43).

YXA was born on 14 November 2001. From birth until August 2007, YXA lived in the London Borough of Southwark ("LBS") area. LBS was originally the first defendant to this claim, but the claim against it was discontinued. From August 2007 onwards, YXA lived in the WCC area. YXA suffers from epilepsy, learning disabilities and autism. LBS was extensively involved in YXA's family. Concerns were regularly expressed by professionals involved in his care (CA [13], Bundle p. 46).

When YXA's family moved to the WCC area, WCC's social services team got involved and completed an assessment in which they identified concerns about YXA's parents' ability to care for him. From March 2008, a paediatrician regularly expressed concern for YXA. The paediatrician advised WCC that YXA was being inappropriately medicated and recommended that he should be taken into care. In April 2008, an agreement was reached with YXA's parents and YXA was regularly accommodated by WCC under s.20 of the Children Act 1989 ("Children Act"). YXA then spent regular ˜respite periods' in foster care (CA [13], Bundle p. 46).

Over the following 18 months, there were further concerns about violence and aggression by YXA's parents towards YXA. There were allegations that YXA's parents drank and took cannabis to excess, that they physically assaulted YXA, and that they were continuing to administer medication excessively (CA [14], Bundle p. 46).

In December 2009, there were admissions by YXA's parents that they had medicated YXA excessively to keep him quiet and had smacked him. With YXA's parents' consent, under s.20 of the Children Act, YXA was then received into WCC's care full time. In 2010, care proceedings were commenced which resulted in the making of a care order in 2011. YXA then remained in long-term foster care (CA [14], Bundle p. 46).

YXA brought a claim against WCC. A letter of claim was sent in October 2012, but it was not until July 2018 that the claim form was issued and not until August 2019 that Particulars of Claim were served. YXA argued that WCC had assumed responsibility for his welfare by taking him into its care various times under s.20 of the Children Act. Accordingly, YXA argued that WCC owed him a common law duty of care. In July 2020, WCC applied to strike out the claim. In the High Court, both the Master (at first instance) and Stacey J (on appeal) decided that WCC did not assume responsibility and it was not arguable that WCC owed YXA a common law duty of care. Accordingly, the Master struck out YXA's claim, and Stacey J dismissed YXA's appeal (CA [15]-[16], Bundle p. 46-47). The CA disagreed (CA [107], Bundle p. 83). The CA held that it was arguable that a duty of care might arise in this situation and that the case should go to trial. WCC now seek permission to appeal to the Supreme Court.

Facts of HXA (as set out by the Supreme Court)

A summary of the facts in HXA's case, as alleged by HXA, is set out at CA [5]-[12] (Bundle p. 35-38). Not all of these facts are admitted by Surrey County Council ("SCC"). As this concerns an application to strike out by SCC, the court is required to assume that the facts alleged by HXA are capable of proof (CA [4], Bundle p. 35).

HXA was born in 1988. She has three younger sisters. One of her sisters, SXA, is the second claimant. Her claim is stayed pending resolution of HXA's claim (CA [5], Bundle p. 35).

From September 1993, SCC's social services team were made aware of the deficient and abusive care received by HXA and SXA. There had been various referrals to SCC relating to inappropriate physical chastisement, verbal abuse and lack of supervision of HXA and SXA. A number of allegations were investigated. HXA and SXA were placed on the child protection register. In November 1994, SCC took legal advice and decided to undertake a full assessment with the aim of starting care proceedings. However, no assessment was actually carried out. SCC continued to monitor the situation. On at least some occasions no decisions or actions were taken by SCC despite reports of concern (CA [6], Bundle p. 35-36).

HXA's mother then separated from the children's father and in July 1996, she formed a relationship with Mr A. Four years before this, Mr A had been convicted of assault on his own infant son. Several sources raised concerns with SCC about Mr A's behaviour towards HXA and her siblings (CA [7], Bundle p. 36).

In 1999, HXA made a disclosure to school staff that she and her sister were subject to sexual abuse by Mr A and Mr A's father. In January 2000, HXA alleged that Mr A had touched her breast. SCC decided 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. No action was taken other than carrying out "keeping safe" work with HXA and SXA. In 2004, aged 16, HXA moved out of the family home (CA [7], Bundle p. 36).

In 2007, SXA made allegations of sexual abuse against Mr A. An emergency protection order was obtained in respect of SXA and she was removed from the care of her mother. An investigation was carried out and HXA was interviewed. In 2009, Mr A was convicted of seven counts of rape of HXA and sent to prison for fourteen years. HXA's mother was convicted of indecently assaulting her and sentenced to nine months' imprisonment (CA [8], Bundle p. 36).

In September 2014, HXA and SXA filed a claim against SCC. HXA's claim is that SCC had assumed responsibility for her when SCC social services responded to various reports (from police, other agencies and family members) which had been made to them about her and her sibling's situation and when it was decided to undertake child protection work in relation to HXA and her siblings. Various time extensions were granted in the case. One extension was to await the Supreme Court's judgment in N v Poole Borough Council (AIRE Centre and others intervening) (CA [9]-[10], Bundle p. 36-37).

In January 2020, SCC applied to strike out the claim. No application to strike out was made in relation to the part of HXA's claim that related to the education department. In the High Court, both the Deputy Master (at first instance) and Stacey J (on appeal) decided that SCC did not assume responsibility and it was not arguable that SCC owed HXA a common law duty of care. Accordingly, the Deputy Master struck out HXA's claim, and Stacey J dismissed HXA's appeal (CA [11]-[12], Bundle p. 37-38). The CA disagreed (CA [107], Bundle p. 75). The CA held that it was arguable that a duty of care might arise in this situation and that the case should go to trial. SCC now seek permission to appeal to the Supreme Court.

A Supreme Court panel comprising Lord Reed, Lord Briggs, Lord Sales, Lord Burrows and Lord Stephens will hear the case on 24-25 October.