YXA v Wolverhampton City Council

A local authority’s statutory child-protection functions do not, without more, create a common-law duty to investigate abuse or commence care proceedings. The ordinary negligence principles apply. A duty may arise where the authority assumes responsibility for the child, performs services for the child, creates or controls the danger, prevents another from protecting the child, or where its status otherwise justifies liability.

Temporary accommodation under Children Act 1989, including the statutory duty to safeguard and promote welfare while the child is accommodated, creates a duty concerning the accommodation and ancillary matters. It does not ordinarily extend to a general duty to commence care proceedings or to avoid returning the child to the parents, particularly where the statutory scheme requires parental consent and permits removal of the child.

The claimant alleged that the defendant local authority should have intervened earlier to protect him from abuse and neglect, including by commencing care proceedings. He advanced a general duty case based on the authority’s knowledge of risk and a separate case based on periods when the authority provided temporary accommodation under section 20 of the Children Act 1989.

The defendant accepted that the parallel claim under section 7 of the Human Rights Act 1998 disclosed reasonable grounds, but applied under CPR 3.4(2)(a) to strike out the common-law negligence claims. The central issue was whether the pleaded facts disclosed an arguable common-law duty of care, either generally or arising from the temporary accommodation.

1. Disposition. The common-law negligence claims were struck out under CPR 3.4(2)(a). The Human Rights Act claim was not struck out.
2. The court adopted the approach in N v Poole [2019] UKSC 25. There is no general public-policy or statutory bar to a duty of care arising in child-protection work, but ordinary negligence principles govern. A public authority is not generally liable for failing to confer a benefit by protecting a child from harm caused by others.
3. The recognised exceptions include assumption of responsibility, preventing another from protecting the claimant, special control over the source of danger, and a status-based obligation to protect. Assumption of responsibility may arise through performance of statutory functions or provision of services, but the duty is confined to the service or responsibility actually undertaken. Dependence or need alone is insufficient.
4. The general allegations of knowledge, investigation, monitoring, referrals and power to seek care proceedings did not amount to an assumption of responsibility. Nor did the authority create the danger, control the parents, or prevent another agency from intervening. N v Poole could not materially be distinguished. The court declined to follow Champion v Surrey and found HXA v Surrey persuasive, although the latter was not binding.
5. During periods of temporary accommodation, the authority owed a duty concerning the provision of accommodation and ancillary matters, including the mechanics of returning the child. That duty did not extend to a general obligation to consider or commence care proceedings. The statutory duties in sections 20 and 22 did not themselves create that wider common-law duty.
6. The pleaded return to the parents was not a sufficiently analogous imminent-danger case. The danger arose from the parents, the authority was statutorily required to return the child subject to the scheme, and the facts did not show that the authority created or materially enhanced the danger. The continuing Human Rights Act claim and the desirability of determining the wider issue did not justify a trial where the common-law claims had no reasonable grounds.

First-instance decision. The judgment records the contemporaneous decision in HXA v Surrey [2021] EWHC 250 (QB), but this was a separate action and not an appeal in the present litigation.