HXA v Surrey County Council

The Supreme Court allowed the local authorities' appeals and held that the particulars of claim did not disclose an arguable common law duty of care. Applying the principles in N v Poole [2019] UKSC 25, the court emphasised that liability for omissions to protect a child from third‑party harm requires a relevant assumption of responsibility by the authority. The pleaded facts (limited decisions to investigate, a failure to undertake "keeping safe" work, and provision of section 20 respite care) did not amount to the "something more" needed to infer an assumption of responsibility to use reasonable care to protect the children. The court noted established exceptions (for example, where a care order is obtained or where a child is temporarily accommodated and the authority accepts responsibility during that period) but found those were not engaged on the pleaded facts.

Background and parties: These two consolidated appeals were brought by local authorities against claimants who, as children, suffered abuse by a parent or a parent’s partner. The claimants alleged that the authorities owed a common law duty of care to protect them from that abuse. The claims were brought in negligence and included allegations as to both the authorities' direct liability and vicarious liability for social workers.

Procedural history:

• First instance: strike‑out of the negligence pleadings in respect of the social services functions ([2021] EWHC 250 (QB); [2021] EWHC 1444 (QB)).
• High Court (Stacey J): appeals dismissed ([2021] EWHC 2974 (QB)).
• Court of Appeal: appeals allowed and strike‑out set aside ([2022] EWCA Civ 1196).
• Supreme Court: appeal allowed, reinstating strike‑outs ([2023] UKSC 52).

Nature of the claim / relief sought: Damages in negligence for alleged failures by local authority social services to protect the children from abuse. (In one case an alternative Human Rights Act 1998 claim remained alive but was not before the Supreme Court.)

Issues framed: Whether the amended particulars of claim provided a sufficient basis, under the approach in N v Poole, for leading evidence from which a relevant assumption of responsibility could be inferred and therefore an arguable common law duty of care to protect the child from third‑party harm would arise.

Court’s reasoning:

• The starting point was N v Poole: public authorities are liable for failures to protect from third‑party harm only where principles applicable to private individuals would impose such a duty, typically through an assumption of responsibility.
• The Court analysed the precise pleaded facts on which the claimants relied: (i) in HXA, decisions to seek legal advice and to undertake assessments or to carry out "keeping safe" work which were not implemented; (ii) in YXA, a pattern of section 20 respite accommodation followed by return to parental care.
• Those pleaded facts did not show that the claimants had entrusted their safety to the authorities or that the authorities had accepted responsibility to use reasonable care to protect them from abuse. Investigations and monitoring under the Children Act 1989 do not, of themselves, amount to provision of a service to the child giving rise to reliance or an assumption of responsibility.
• The Court distinguished limited circumstances in which an assumption of responsibility will exist (for example, where a care order is made or where a child is accommodated under section 20 and the authority accepts responsibility during the accommodation period), but held those were not pleaded so as to support the claimed duty of care.

Wider context: The court emphasised that N v Poole remains binding and that the pleaded particulars must provide some basis for leading evidence from which an assumption of responsibility can be inferred; it rejected the view that this is an open, developing area requiring trial in every case.

Appeal allowed. The Supreme Court held that, applying N v Poole, the particulars of claim in each case did not disclose an arguable common law duty of care because they did not provide a basis from which a relevant assumption of responsibility by the local authorities to use reasonable care to protect the children from third‑party abuse could be inferred. The court indicated narrow examples where such a duty may arise (eg care orders and responsibility during section 20 accommodation) but found those were not established on the pleadings.

First instance: parts of both claimants' negligence pleadings struck out (HXA: Deputy Master Bagot QC [2021] EWHC 250 (QB); YXA: Master Dagnall [2021] EWHC 1444 (QB)). High Court appeal dismissed by Stacey J [2021] EWHC 2974 (QB). Court of Appeal allowed the appeals and refused strike‑out ([2022] EWCA Civ 1196). Supreme Court allowed the defendants' appeals and reinstated the strike‑out ([2023] UKSC 52).