Local Authority’s Duty of Care to Children

31 August 2022:

A second appeal to the Court of Appeal in unconnected cases striking out negligence claims against local authorities arising out of their statutory functions under the Children Act 1989 involved consideration of the circumstances in which a local authority and/or the social workers for whom it was vicariously liable owed a duty of care to a child to whom the local authority was providing child protection services: HXA v Surrey County Council [2022] EWCA Civ 1196 Baker, Lewis, Elisabeth Laing LJJ

In cases which were acknowledged to be both shocking and disturbing, each child claimant was subjected to severe abuse and neglect. Both were involved with social services for a number of years whilst they remained at home with their families and continued to suffer abuse.

The court, on this appeal, was not being asked to rule whether either of the local authorities were at fault. Rather, the issue was whether, at any stage in its contact with the children, the local authorities could 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.

Giving the unanimous judgment of the court allowing the appeals, Baker LJ observed that this was still an evolving area of the law in which 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.

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 that was not the effect of the decision in Poole[1]. The responsibility for a child required to give rise to a duty of care could be assumed in wider circumstances. Whether a duty of arose would always depend on the specific facts of the case. As reports from the family courts demonstrated, there was 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 were 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 was wrong to strike out the claims.

In due course, as a body of case law emerged, it would become easier at the outset of proceedings to identify the circumstances in which an assumption of responsibility could exist so as to give rise to a duty of care. At that point, there would be greater scope for striking out claims which on any view fell 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 be a wrong use of the power under CPR 3.4.[2]

[1]  N v Poole Borough Council (AIRE Centre and others intervening) [2019] UKSC 25, [2020] AC 780

[2] CPR 3.4 – Power to Strike out a Statement of Case: (1) In this and rule 3.5, reference to a statement of case includes reference to part of a statement of case. (2) The court may strike out a statement of case if it appears to the court – (a) that the statement of case discloses no reasonable grounds for bringing or defending the claim; (b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings, or (c) that there has been a failure to comply with a rule, practice direction or court order …