Supreme Court decision in HXA v Surrey County Council; YXA v Wolverhampton City Council. Judgment handed down

Today the Supreme Court has doubled down on its 2019 decision in N v Poole. There is no pre-care order duty of care, unless the criteria in N v Poole are met.

HXA and YXA both pursued negligence claims against local authorities for the sexual and physical abuse they suffered from a parent or parent’s partner.

It was alleged that the local authority (LA) owed a common law duty of care to the claimants to protect them from harm. It was accepted the claimants were not under the care of the LA. However, the argument was that the LA had assumed responsibility due to the involvement of social services with the family and therefore owed a duty to use reasonable care to protect the claimants from the abuse perpetrated by their parents/parents’ partner. It was alleged that reasonable care would have led to the LA seeking a care order.

It was common ground between the parties that the provisions of the Children Act 1989, which imposes duties on local authorities, does not create a statutory cause of action in tort. There was also no suggestion the LA had made the position worse.

It is important to note that the decisions were made based on the pleaded cases only, no evidence had been heard from either party.

The claims had been struck out at first instance and the Supreme Court has upheld those decisions. The Supreme Court unanimously held that there was no assumption of responsibility following the decision in N v Poole BC [2019] UKSC25 for the reasons outlined below.

In HXA’s case, the LA’s internal decisions to carry out keep safe work and undertake an assessment were initial steps to prepare for a possible application for a care order. This falls significantly short of being an assumption of responsibility to use reasonable care to protect HXA from abuse.

In YXA’s case, the provision of accommodation under a section 20 was a temporary measure with the consent of his parents on the basis that he would return home. There was a duty to return YXA to his parents. By accommodating him there was no assumption of responsibility to protect him from his parents.

The Supreme Court was keen to highlight that assumption of responsibility is not a developing or uncertain area of law as the Court of Appeal had said in this case. However, they did make it clear that this decision does not mean there can never be an assumption of responsibility by a LA to protect a child from harm. Two examples are given:

1. Where the LA has obtained a care order and has taken parental responsibility for a child (Barrett v Enfield).
2. During the time the child is accommodated in respite care/foster care.

The decision will be welcome news to local authorities, but the door is still open for claims to be pursued for an assumed responsibility of care. Claims will continue to be assessed on their own facts. However, this decision has meant applications to strike out a claim can succeed.

This opens the door to greater use of strike out applications and gives grounds to refuse pre-action disclosure unless there is very strong evidence of assumption of responsibility.

That means that claims under the HRA are going to be the only realistic way to pursue claims for failure to intervene.