HXA v Surrey County Council and YXA v Wolverhampton City Council [2023] UKSC 52 - the doors close on failure to take into care claims

Is a local authority under a duty to take a child into care, if it is aware of concerns about that child’s safety? This vexed question was apparently settled by the UK Supreme Court in N v Poole Borough Council [2019] UKSC 25, which said that normally the local authority would be under no such duty, unless it had voluntarily assumed responsibility for the child.

The decision in N v Poole was followed by a number of first instance decisions, where various claimants tried to argue that there was just such an assumption of responsibility on the particular facts of their cases. This was hardly surprising, given that the facts in N v Poole involved harassment of vulnerable children and their parents by neighbours, rather than abuse by parents or a parent's partner.

Two such cases were HXA and YXA. These claimants were children when they suffered sexual or physical abuse from their parent or parent's partner. It was alleged that the local authorities owed a common law duty of care to them to protect them from that harm. The defendant local authorities had applied successfully at first instance, to have the statements of case struck out as disclosing no arguable cause of action. The Court of Appeal overturned those decisions and held that the claims should be allowed to proceed to trial, because it was arguable that there was a duty of care owed as alleged. The defendants now appealed to the Supreme Court, who gave a unanimous decision just before Xmas 2023.?

The Supreme Court went over the facts of each case and considered the relevant legislative provisions. It also considered its own judgment in N v Poole. In that case, the Court made reference to a long line authorities that distinguished between harming the claimant and, on the other hand, failing to confer a benefit on the claimant, typically in the context of public authorities, by protecting the claimant from harm. A public authority would only be liable for a failure to protect the claimant from harm if a private individual would also have been liable, for instance where the defendant had created the source of danger or there was an assumption of responsibility by the defendant to protect the claimant from harm. In N v Poole, it was held that the local authorities investigating and monitoring the claimants' position did not involve the provision of a service to them on which they or their parents could be expected to rely.

However, the Court of Appeal in HXA and YXA had said that 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.

The Supreme Court took a very different view. There was no arguable duty of care in these cases, for the following reasons.

(a)????? The mere fact that the public authority had statutory duties towards, and powers in respect of, the claimant did not mean that there was a common law duty of care.

(b)????? In the tort of negligence, a person A was not under a duty to take care to prevent harm occurring to person B through a source of danger not created by A unless (i) A had assumed a responsibility to protect B from that danger, (ii) A had done something that prevented another from protecting B from that danger, (iii) A had a special level of control over that source of danger, or (iv) A's status created an obligation to protect B from that danger.

(c)?????? In HXA’s case, it was alleged that there was a child protection investigation by the local authority followed by a failure to carry out a full assessment under Section 47 of the Children Act 1989.? The nature of this statutory function did not itself entail the local authority assuming responsibility towards HXA to perform the investigation with reasonable care. The investigation of HXA's position did not involve the provision of a service to HXA. Rather, the investigation was to enable the local authority to decide whether to bring care proceedings, In addition, no facts were alleged in HXA's claim from which it could be inferred that HXA had entrusted her safety to the local authority or that the local authority had accepted that responsibility.?

(d)????? In relation to YXA, it was alleged that an assumption of responsibility flowed from the fact of a pattern of accommodation having been provided to him by the local authority under section 20 of the 1989 Act. Providing respite accommodation for YXA did not constitute an assumption of responsibility to use reasonable care to protect YXA from the abuse. The local authority was temporarily taking YXA away, with the consent of his parents, on the basis that he would be returned. Indeed, the local authority had a duty to return YXA to his parents. This in itself did not constitute an assumption of responsibility to use reasonable care to protect YXA from the abuse.

(e)????? These cases were indistinguishable from N v Poole. Given that in that case, there was no assumption of responsibility to protect children from their abusive neighbours, it was hard to see how there was an assumption of responsibility in the cases of HXA and YXA to protect the children from the abuse by a parent or parent's partner.

(f)??????? After N v Poole, this was not a developing or uncertain area of law. The Supreme Court said that their decision in these cases, should remove any conceivable doubt that lawyers might have had in understanding the full impact of N v Poole.

However, this did not mean that there could never be an assumption of responsibility, and hence a duty of care owed, by the social services department of a local authority to protect a child from harm. The obvious example would be where the local authority had obtained a care order and had thereby taken on parental responsibility for a child. Moreover, by accommodating YXA under section 20 of the 1989 Act, there was an assumption of responsibility by the local authority during the time that the child was actually in respite care, including the mechanics of return, to use reasonable care to protect the child against harm including from third parties.

So the UK Supreme Court has firmly closed the door on "failure to take into care" claims based on common law. Whilst it was thought that the particular facts in N v Poole might provide an opening to argue for an assumption of responsibility, that line of argument has now been cut off, or at the very least, severely limited. It is difficult to conceive of any circumstances in which a child - outside the care system - could bring a claim against a local authority for failure to take it into the care system.

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