HXA v Surrey County Council

Statutory child-protection functions do not, by themselves, create a common-law duty of care. The general duty to provide services under the Children Act 1989 section 17 is insufficient on its own.

A duty may nevertheless arise where the authority’s conduct pursuant to its statutory functions amounts, on the particular facts, to an assumption of responsibility. This may occur in relation to a looked-after child accommodated under section 20, or where the authority undertakes a specific protective or risk-assessment task. The issue is fact-sensitive. If the pleadings provide a real basis for establishing an assumption of responsibility at trial, summary strike-out is inappropriate.

These were conjoined second appeals concerning two unconnected negligence claims against local authorities arising from alleged failures to protect children from abuse and neglect.

HXA alleged that Surrey County Council assumed responsibility through child-protection investigations, a decision to consider care proceedings and an undertaking to provide keeping-safe work. YXA alleged that Wolverhampton City Council assumed responsibility through regular short-term accommodation under section 20 of the Children Act 1989, followed by his return to his parents.

The claims had been struck out by a deputy master and a master. Stacey J dismissed the appeals: [2021] EWHC 2974 (QB). The central issue was whether the pleaded facts arguably established an assumption of responsibility sufficient to support a common-law duty of care.

The Court of Appeal, in the judgment of Baker LJ with which Lewis and Elisabeth Laing LJJ agreed, allowed both appeals.

1. Applicable principles. Operating a statutory scheme does not automatically create an assumption of responsibility. The general duty under section 17(1) of the Children Act 1989 does not itself generate a common-law duty. However, conduct pursuant to statutory functions may do so where the specific facts establish the required assumption of responsibility: N v Poole Borough Council [2019] UKSC 25.
2. Looked-after children. Section 22(3) imposes a specific duty to safeguard and promote the welfare of every looked-after child, including a child accommodated under section 20. Although a section 20 authority does not acquire parental responsibility, parental responsibility is not the only possible basis for an assumption of responsibility. The duty may extend beyond the period of accommodation. Parental consent and the power to remove a child under section 20(8) do not absolve the authority from its statutory welfare duty.
3. Specific protective steps. A decision to undertake or commission particular risk-assessment or protective work may amount to the necessary additional feature. In HXA’s case, it was arguable that resolving to obtain legal advice and conduct a full assessment, and resolving to undertake keeping-safe work, constituted such an assumption. It was not appropriate to characterise the allegations conclusively as mere omissions or as no more than a failure to commence care proceedings.
4. YXA’s claim. Regular respite accommodation made it arguable that Wolverhampton had assumed responsibility for YXA’s welfare beyond the physical safety of the accommodation or the mechanics of return. Whether that responsibility existed, and whether any breach caused loss, required a full factual investigation.
5. Strike-out. Under CPR 3.4(2)(a), the pleaded facts were to be assumed true. Where the existence of an assumption of responsibility was highly fact-dependent and the pleadings provided a real basis on which it might be established at trial, striking out was premature. The developing nature of the law and the wide range of statutory and factual contexts reinforced that conclusion.

The claims were restored, including the relevant allegations concerning assumption of responsibility, breach and damage. The court also stressed that future pleadings should identify concisely the responsibility alleged, its scope, the dates or periods involved, and the facts relied upon.

• Court of Appeal (Civil Division) allowed both appeals and ordered restoration of the relevant pleaded claims: [2022] EWCA Civ 1196.
• High Court of Justice, Queen’s Bench Division Stacey J dismissed appeals against the strike-out decisions: [2021] EWHC 2974 (QB).
• First instance A deputy master struck out the social-services claim in HXA; a master struck out YXA’s claim.