HXA and YXA are both ‘failure to remove claims’ brought in negligence following the UKSC decision in CN v Poole. In both instances, the defendants applied to strike out the claims. Initially heard independently, the cases were consolidated and jointly addressed since the proceedings reached the High Court.
In HXA, the claimant suffered physical and emotional abuse and neglect from her mother and sexual abuse from one of her mother’s partners.
The particulars of claim asserted that a duty of care arose for the council for a number of reasons, ranging from contending that the mere exercising of child protection functions was sufficient to prove an assumption of responsibility, to the council adding to the danger the claimant faced by ‘allowing’ unsuitable partners to reside with their mother.
In YXA, the claimant had severe disabilities and additional needs. While living in the locality of Wolverhampton CC, a paediatrician raised concerns that his parents may have been over-medicating him, suggesting that he should be taken into care. He was provided with some regular but very short-term respite care by the council, under s20 of the Children Act. There were concerns about the use of physical chastisement and the use by parents of a known sexual offender to babysit the claimant.
The civil claim relates to the time that the claimant was at home when he was over-medicated and neglected by his parents. The question for the court was whether, by providing temporary respite care for him under s20, Wolverhampton CC assumed responsibility for him and thereby created a duty of care while he was in the family home in accordance with the principles outlined in CN v Poole.
LJ Baker, providing the Court of Appeal judgment, found that each case would need to be considered on its own merits and specific facts of the case. He found that the absence of a care order was not a total bar to a duty of care being established. It was consequently inappropriate to strike out these claims summarily. Each claim should proceed to a full trial, allowing for a thorough examination of the issues involved.
The defendants appealed this decision to the UKSC.
The UKSC unanimously allowed the appeals of the defendants and struck the claims out. They found the particulars of claim for HXA and YXA disclosed no basis upon which an assumption of responsibility by the local authorities could be made out at trial, meaning there was no arguable duty of care in either case.
Starting with HXA, the UKSC held that no assumption of responsibility arose from the council’s decisions to investigate, seek legal advice or undertake ‘keeping safe’ work, or indeed from carrying out – or failing to carry out – those decisions. These were “merely initial steps to prepare the ground for a possible later application for a care order”.
As to YXA, the UKSC accepted there was an assumption of responsibility during the period that the claimant was with the foster carers. However, it was not the relevant assumption of responsibility that the claimant needed to establish to find the alleged duty of care. It was simply an assumption of responsibility to use reasonable care to protect the child against harm during the time he was in respite care. The fact that the council had provided temporary respite care did not mean that it had assumed responsibility to use reasonable care to protect him from abuse in his home. While there was some delegation of parental responsibility for the period when he was being accommodated by the council, his parents retained parental responsibility, and the council had a duty to return him to them. There was no significant change in the situation in his home during the respite care and so there could be no assumption of responsibility when he was returned to that same situation.
The UKSC was critical of the Court of Appeal judgment, noting that the “Court of Appeal has thrown the area into doubt” by “incorrectly stressing that this is an unclear developing area of the law”. In fact, the earlier judgments in these cases, and the judgment in DFX v Coventry City Council [2021] EWHC 1382 (QB) showed that the law was settled and the courts were able to apply the law as set out in Poole.
It was confirmed that these cases are indistinguishable from Poole. In Poole, there was no duty to protect from abusive neighbours, and so it follows that in these cases there cannot be a duty to protect children from abuse by a parent or a parent’s partner.
Although no duty of care arose on the facts of the cases to hand, the UKSC confirmed there were circumstances where an assumption of responsibility could be established, and provided two examples of where this could arise:
The judgment is also critical of the pleadings in these cases. It is stated that the particulars of claim were excessively discursive and a long chronology of all involvements with the local authority was not necessary or helpful.
Although the judgment concerned local authorities, it is also relevant to public authorities generally including police forces. After all, it endorsed the Supreme Court’s judgment in N v Poole Borough Council [2019] UKSC 25, [2020] AC 780, which itself drew upon the police cases of Michael v Chief Constable of South Wales Police [2015] UKSC 2, [2015] AC 1732 and Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4, [2018] AC 736. In those cases, it was held that the police have no duty of care for their omissions to protect individuals from harm caused by the actions of third parties under common law merely because they have statutory powers or duties or by exercising their statutory functions. Instead, police forces may be liable in certain defined circumstances where they undertook a positive act which causes personal injury or where there is an assumption of responsibility. This remains the position.
For more specific guidance for police forces, we now await the outcome of Tindall v Chief Constable of Thames Valley Police & Ors [2022] EWCA Civ 25 in respect of which the claimant has been given permission to appeal to the Supreme Court. In which the Court of Appeal emphasised that “the circumstances in which the police will be held to have assumed responsibility to an individual member of the public to protect them from harm are limited”. Here, there was no feature “differentiating the relationship of the police with Mr Tindall from their relationship with any other road user” that could justify a finding of an assumption of responsibility. Whether this approach is endorsed by the Supreme Court remains to be seen.
Please contact Sarah Swan, Daniel Tyler, or Anna Churchill for more information.
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