(UKSC 2022/0149) ; (UKSC 2022/0148) – [2023] UKSC 52
This case joins two separate appeals by the local authority Respondents. In each case, the Respondent alleged that the Appellant owed them a duty of care to prevent harm that was done to them by their parents, on the basis that the Respondent had assumed responsibility to prevent that harm. In each case, the first instance judge struck out the claim, but the Court of Appeal overturned that decision and allowed each claim to proceed to trial. The facts as pleaded by the Appellants are summarised below. The parties accept that these facts must be assumed to be provable for the purposes of the strike-out applications.
HXA was born in March 1988. The Appellant (“SCC”) was involved with HXA’s family from September 1993. A child protection conference (“CPC”) was held in July 1994, at which HXA and her three sisters were placed on the child protection register under the category “neglect”. In November 1994: (i) a referral was made to SCC alleging that HXA had been assaulted by her mother; (ii) a SCC social worker decided to seek legal advice with a view to initiating care proceedings; and (iii) SCC resolved to undertake a full assessment but did not do so. The children were de-registered in January 1995.
Around July 1996, HXA’s mother formed a relationship with a male (“LA”), who moved into the house. All the children except HXA were re-registered in November 1996. In Spring 1999, HXA reported to a school dinner lady that LA came into the bathroom while she was in the bath. The report was passed to the headteacher, but no further action was taken. In January 2000, SCC received a referral from HXA’s school: a friend of HXA had alleged that LA had touched HXA intimately. At a January 2000 CPC: (i) SCC decided not to investigate the report further due to concern about LA’s reaction and an incorrect belief there were no previous concerns; and (ii) SCC resolved to conduct “keeping safe” work with HXA and her sisters, but that work was not carried out. In January 2009, LA was convicted of raping HXA, and HXA’s mother was convicted of indecently assaulting her.
YXA was born in November 2001 and lived in the Appellant (“WCC”)’s area from August 2007. YXA has epilepsy, learning disabilities and autism. Assessments were conducted by WCC in November and December 2007. YXA’s needs and concerns about his parents’ ability to meet them were identified. A paediatrician was concerned that YXA was being incorrectly medicated by his parents and recommended that he should be taken into care. From April 2008, WCC accommodated YXA for one night every fortnight and one weekend every two months, with the parents’ agreement. Concerns remained about the parents’ ability to meet YXA’s needs. In December 2009, YXA was received into care with his parents’ agreement. Care proceedings were later commenced, culminating in a final care order in March 2011.
The issue is:
In each of the appeals, is it arguable that the local authority Appellant owed the Respondent (a minor at the relevant times) a common law duty of care to protect them from harm on the basis that the Respondent had assumed responsibility to protect them from such harm?
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Judgment in the matter of hxa against Sur County Council and yxa against wolver Hampton City Council Lord buros will hand down the Judgment I must make clear at the outset that there is a court order in place that no one shall publish or reveal the name or address of the respondents who I
Shall refer to as HX XA and yxa or publish or reveal any information which would be likely to lead to the identification of the respondents or of any member of their families in connection with these proceedings these two cases concern claims in the T of negligence brought by
Hxa and yxa against local authorities in relation to their social services departments hxa and yxa were children when they suffered sexual or physical abuse by a parent or parent partner the facts or assumed facts in both cases are shocking and disturbing as a child hxa was assaulted
By her mother and sexually abused by her mother’s partner her mother’s partner was convicted of seven counts of raping h x a between the ages of 9 and 16 and he was sent to prison for 14 years axa’s mother was convicted of indecently assaulting her and was sentenced to 9 months
Imprisonment in yxa case it is alleged that yxa who has epilepsy learning disabilities and autism spectrum disorder was physically assaulted by his parents and given excessive medication by them to keep him quiet it’s alleged that the local authorities in question should be held liable to pay damages to the claimants
Who are now adults for negligently failing to protect them as children from the abuse that they suffered the central question that arises on these appeals is whether the local authorities owed the children children a common law duty of care such a common law duty of care which is a necessary starting point for
There being a claim in the tort of negligence is distinct from the statutory duties that are Ed by the local authorities in particular under the children act 1989 the local authorities sought to have the claim struck out without going to a full trial on the basis that it was
Not arguable that they owed a duty of Care at common law they succeeded in having the claims struck out at first instance and those decisions were upheld on appeal to a high court judge but the court of appeal allowed the appeals of both hxa and yxa and held
That the negligence claims should not have been struck out the local authorities now appeal to the Supreme Court the Supreme Court unanimously allows the appeals of the local authorities and decides that the negligence claims of hxa and yxa should be struck out because there was no relevant arguable common law duty of
Care owed by the local authorities to the children the judgment is given by myself and Lord Stevens and is agreed with by Lord Reed Lord Briggs and Lord sales in general terms the decisions in these cases turn on the application of the decision and reasoning in the leading
2019 Supreme Court case of n against pool bur Council in that case it was held that the defendant local authorities did not owe a duty of care to protect children who have been subjected to verbal and physical abuse by their neighbors it was made clear by the
Supreme Court that in this type of case where the issue is whether a local Authority has a duty of care to confer a benefit on the claimant by protecting them from harm by a third party it is necessary to establish that the local Authority has assumed responsibility to protect the claimant from that
Harm one needs that Assumption of responsibility because imposing liability in the tort of negligence for failing to confer a benefit on a claimant by preventing harm by a third party sometimes referred to as imposing liability for an Omission is more difficult to justify than where the defendant has itself harmed the claimant
By its own negligent acts and as the Supreme Court stressed in N against pool the principles applicable to liability and negligence for a failure to benefit by preventing harm by a third party are the same as those which apply if the defendant is a private individual rather than a Public
Authority on the alleged facts and the particulars of claim pleaded there was no relevant Assumption of responsibility in these two cases in X in hxa case the alleged internal Decisions by the social workers to carry out keep safe work and assessments of the child’s safety within the family were merely initial steps to
Prepare the ground for a possible later application for a care order they fell significantly short of being an assumption of responsibility to use reasonable care to protect hxa from the abuse by her mother and her mother’s partner in yxa case the local Authority was providing rest bike Care on a
Regular pattern whereby yxa spent roughly one night a fortnite and one weekend every two months in foster care but that did not constitute an assumption of responsibility to use reasonable care to protect yxa from the abuse by his parents the court of appeal had held that the claims should not be struck out
Because this was a developing and uncertain area of the law where one needed the full facts established at trial in order properly to determine whether there was a relevant Assumption of responsibility and hence a duty of care owed by the local authorities to protect the children from the abuse the Supreme Court
Disagrees in the light of a decision in N against pool this is not an uncertain and developing area of the law moreover these two cases are essentially indistinguishable from n against pool given that in N against against pool there was no Assumption of responsibility to protect children from
Their abusive neighbors it’s hard to see how there could be an assumption of responsibility in these cases to protect the children from the abuse use by a parent or parents partner this is not to say that there can never be an assumption of responsibility and hence a duty of care
Owed at common law by the Social Services Department of a local authority to protect a child from harm two examples are given by the Supreme Court the first is where the local Authority has obtained a care order and therefore has parental responsibility for the child that is exemplified by the
2001 House of Lords decision in Barrett against mfield London burough Council the second example is that where rest bite care is arranged by the local Authority with Foster carers there is an assumption of responsibility by the local authority to protect the child from harm During the period of the
Foster care including the mechanics of returning the child to its parents but that Assumption of responsibility does not extend to where the child is back with his or her parents so in these cases applying n against against pool there was no Assumption of responsibility by the defendant local authorities to use
Reasonable care to protect hxa and yxa from abuse by a parent or parents partner expressed at a more granular level the particulars of claim provide no basis for the leading of evidence at trial from which a relevant Assumption of responsibility can be made out it follows that there is no arguable duty
Of care owed as alleged and the claims in both cases were correctly struck out at first instance the appeals of the local authorities are therefore allowed thank you the court is now jined