HXA & Anor v Surrey County Council

On an application to strike out a negligence claim against a local authority, the court must ask whether the claim is bound to fail. A claim should not ordinarily be struck out where a developing or uncertain point of law depends on facts that require trial. That caution does not prevent strike-out where binding authority makes the alleged duty untenable and there is no real possibility that the pleaded facts could establish an exception. Social-services investigations, monitoring, assessments, child-protection conferences and proposed protective steps do not, without more, amount to an assumption of responsibility to protect a child from harm caused by third parties. Reliance must have a factual foundation. A common-law duty arising when a care order gives the authority parental responsibility cannot be traced backwards to earlier decisions to investigate or consider care proceedings.

The claimants sought damages for psychiatric and other injuries allegedly caused by childhood abuse. They alleged that Surrey County Council’s social workers had negligently failed to protect them through child-protection investigations, assessments, conferences and related interventions. The application concerned the First Claimant’s allegations in paragraphs 1 to 30 of the Particulars of Claim. The allegation that school staff failed to act on a 1999 disclosure was excluded and remained for determination.

The central issue was whether, applying Poole and the principles governing omissions and assumption of responsibility, the pleaded facts disclosed an arguable common-law duty of care or were bound to fail.

1. Application granted in material part. The claims in paragraphs 1 to 30 of the Particulars of Claim were struck out under CPR 3.4(2)(a). The school-related allegation was unaffected.
2. The applicable threshold was whether the relevant claims were bound to fail. Strike-out was inappropriate merely because the law was developing or uncertain, especially where factual findings could assist legal development. Here, Poole was a recent, binding and closely analogous Supreme Court authority.
3. The pleaded case concerned a failure to protect the claimant from harm caused by third parties. Statutory child-protection functions did not themselves create a common-law duty of care. The processes alleged—monitoring, investigation, assessment, child-protection registration, conferences, proposed legal advice and keeping-safe work—were not a service provided to the claimant on which reliance could reasonably be inferred.
4. An assumption of responsibility required more than a general assertion that the claimant relied on the authority. The pleading identified no specific undertaking, representation or conduct which induced reliance. Considering a care order did not alter the nature of the authority’s statutory child-protection functions, particularly where no proceedings were issued.
5. A duty arising on the making of a care order rests on parental responsibility and could not be reverse engineered into an earlier duty to investigate, assess or decide whether proceedings should be brought. Nor did the pleaded alternatives establish a duty: the authority had not created the danger, lacked control over the wrongdoers, and had not prevented another agency from protecting the claimant.
6. The court declined to distinguish Poole on the basis that a care order might have been available on the pleaded facts. That distinction concerned breach and causation in Poole, not the existence of a duty. The relevant claims were therefore bound to fail.
7. Costs of the application were summarily assessed at £10,934.50. Permission to appeal was refused because the issues were governed by binding authority and there were no real prospects of success.