Childhood abuse: neglecting a duty of care

The Court of Appeal handed down its much-anticipated judgment in the case of HXA & YXA v Surrey County Council and Wolverhampton City Council [2022] EWCA Civ 1196 on 31 August 2022. The appeal concerned two separate cases relating to alleged failures by social services departments to protect the claimants from childhood abuse.

The claimants were both successful in their appeals, with the Court of Appeal confirming it was at least arguable the Defendant Local Authorities assumed a responsibility to safeguard and protect the claimants from the alleged harm. The claims were therefore restored and will be allowed to proceed to a full trial for determination. The defendants stated, however, they will seek permission to appeal the decision to the Supreme Court.

The Court of Appeal’s judgment follows on from the High Court decision of Lambert J in DFX & 3 Ors v Coventry CC [2021] EWHC 1328 (QB), which had found following a full trial that, inter alia, no duty of care was owed by the defendant despite extensive social services involvement spanning over 14 years and which specifically related to a risk of sexual abuse within the family home. Lambert J considered claimants would need to show “something more” on the part of a Local Authority’s social services department, “either something intrinsic to the nature of the statutory function itself which gives rise to an obligation on the defendant to act carefully in its exercising that function, or something about the manner in which the defendant has conducted itself towards the claimants” (para. 199).

Background

HXA was born in 1988 and their childhood was characterised by physical abuse, emotional abuse and neglect by their mother.

From September 1993, the defendant’s social services were aware of an abusive home environment and HXA was placed on the child protection register on 28 July 1994. In November 1994, the Defendant sought legal advice with a view to starting care proceedings following a full assessment of HXA’s circumstances, but this never occurred.

A risk of sexual harm from the mother’s partner emerged in 1999, with disclosures made by HXA and HXA’s sister. In January 2000, the defendant resolved to complete ‘keeping safe work’ with HXA, but again this was never completed. HXA moved out of the family home in 2004. It transpired that the Claimant had suffered very serious sexual abuse as a child and on 12 January 2009 the mother’s partner was convicted of 7 specimen counts of rape relating to HXA between the ages of 9 to 16 (i.e. between 1997 – 2003).

YXA was born in 1991. He had additional needs as a child, including a diagnosis of ASD and learning difficulties. The defendant had completed an assessment on 6 November 2007, which identified concerns about YXA’s parents’ ability to care for him.

In March 2008, a paediatrician advised the defendant the claimant was being over-medicated by his parents and should be received into the defendant’s care. The defendant agreed to accommodate the claimant on an intermittent but regular basis under s. 20 Children Act 1989 (a voluntary arrangements requiring the consent of the parents) - 1 night every two weeks, and 1 weekend every two months.

Between 2008 – 2009, further concerns were raised and known by the defendant’s social services department regarding excessive medication, drug use within the home and physical abuse. YXA’s parents eventually admitted over-medicating YXA to keep him quiet in December 2009, following which the Claimant was taken into foster care and care proceedings were initiated.

In both cases, the claimants had brought a claim in negligence alleging, but for the failures by the defendants’ social services departments, they should and would have been protected from at least some of the childhood abuse they experienced.

The decision

Given the appeal related to strike-out decisions, the Court of Appeal was keen to emphasise their judgment shouldn’t be seen as laying down any general guidance on the topic. The question of when an assumption of responsibility will be owed to a child by a Defendant Local Authority is fact specific, and will still need to be determined on a case-by-case basis. Nevertheless, the Court had to grapple with the legal arguments raised by the parties in this case and explain their decision: in doing so, the judgment makes a number of observations and statements are likely to be very persuasive in other cases.

Dealing first with the proposition claimants are often faced with when advancing claims of this nature, the Court of Appeal rejected the idea a duty of care can only be owed by a Local Authority if there is a Care Order, or an Interim Care Order (i.e. in circumstances where the Local Authority has acquired parental responsibility for the child).

Turning to the facts of YXA’s claim, the Court of Appeal found a duty of care may arise in respect of Looked After Children (which would include children accommodated with parental consent under s.20 Children Act 1989) if circumstances arise amounting to an assumption of responsibility. For example, one will need to look at the conduct and actions of the Defendant and its social workers performed pursuant to its statutory obligations and related guidance and regulations. Furthermore, the Court of Appeal rejected the notion that any common law duty owed in this context would only relate to the period of accommodation (i.e. keeping a child safe whilst in care), but rather the duty could extend beyond this to include, perhaps, a duty to ensure it would be safe to return a child to their parents and/or take further steps to protect a child from known risks of harm if required.

The judgment makes it clear the existence of a statutory duty is not the same as the existence of a common law duty, and claimants will need to consider “the conduct of the local authority pursuant to the statutory scheme relating to the accommodation of the child” and whether this gives rise to an assumption of responsibility.

In YXA’s appeal, the Court of Appeal concluded: “a local authority accommodating a child under section 20 is capable of amounting to “something more” so as to give rise to an assumption of responsibility by the local authority.

Turning to HXA’s appeal, the Court of Appeal confirmed “a duty of care may arise in circumstances where a local authority, acting in accordance with its duties under statute, regulation, or statutory guidance, has taken, or resolves to take, a specific step to safeguard or promote the welfare of a child which amounts to an assumption of responsibility for a child”.

The judgment goes gives a specific example of when this might arise, noting: “One example might be a decision to undertake or to commission a specific piece of work to assess the level of risk and/or protect a child from a particular type of harm.”

It is of interest this example was put forward explicitly in the case of DFX referred to above, as in that case a specialist forensic psychiatric assessment was obtained by the Local Authority to assess the risk of sexual harm to the children. This was rejected as a basis for a duty of care in DFX, but Lord Justice Baker goes on to cast doubt over Lambert J’s reasoning in that case, leaving the door wide open for future claimants and, ultimately, judge’s at first-instance to take a different to approach to that espoused in DFX.

In HXA’s case, the Court of Appeal concluded in deciding to take legal advice with a view to starting care proceedings and carrying out a full assessment constituted steps taken by the Defendant which could arguably give rise to an assumption of responsibility. Similarly, resolving to undertake Keeping Save Work with the claimant following disclosures of sexual abuse was arguably an assumption of responsibility, notwithstanding the fact that such work was never completed.

Subject to any successful appeal to the Supreme Court, defendants will now find it very difficult to successfully apply for such claims to be struck-out. The litigation of negligence claims regarding allegedly poor social work practice is therefore set to continue until a reliable body of case law can emerge. In the meantime, one would expect Defendants and their insurers to reassess the level of risk faced by these claims and it may be a pragmatic approach to resolving such claims at an early stage can be put back on the table, which would no doubt benefit and assist a number of very vulnerable claimants who have sadly been let down by our social care system.

Richard Sweetman is an associate solicitor at Irwin Mitchell LLP irwinmitchell.com