HXA v Surrey County Council

A public authority does not owe a common law duty of care merely because its statutory functions enable it to protect a person from third-party harm. The ordinary principles governing private persons apply. Liability for failing to protect generally requires a recognised exception to the omissions rule, such as an assumption of responsibility.

Investigating possible abuse, assessing risk, obtaining legal advice or proposing protective work does not, without more, amount to assuming responsibility to protect a child. Accommodating a child by parental agreement may create a narrower duty during the accommodation and the mechanics of return, but does not itself create a continuing duty to institute care proceedings. A care order, by contrast, ordinarily entails an assumption of responsibility because the authority acquires parental responsibility.

HXA and YXA alleged that, as children, they suffered serious abuse by parents or a parent’s partner. They claimed that the defendant local authorities had assumed responsibility to protect them and were liable in negligence for failing to intervene.

HXA relied on decisions to undertake an assessment and provide “keeping safe” work. YXA relied on periods of respite foster care provided with parental agreement under section 20 of the Children Act 1989. The negligence claims were struck out at first instance, and the High Court dismissed the claimants’ appeals. The Court of Appeal allowed further appeals: [2022] EWCA Civ 1196, [2023] 1 WLR 116.

The local authorities appealed. The central issue was whether the pleaded facts provided a basis for evidence from which a relevant assumption of responsibility, and therefore an arguable common law duty to protect the children from abuse, could be inferred.

1. The appeals were allowed unanimously. Applying N v Poole Borough Council [2019] UKSC 25, the pleaded facts disclosed no arguable assumption of responsibility to use reasonable care to protect either claimant from abuse. The negligence claims had therefore been correctly struck out at first instance.

2. A local authority’s statutory powers and duties do not themselves create a common law duty of care or a cause of action for breach of statutory duty. The court must apply the principles governing private persons. Since these claims concerned failures to protect the claimants from dangers created by third parties, liability required a recognised exception to the ordinary rule against liability for omissions. Only assumption of responsibility was relied upon.

3. In HXA’s case, investigating suspected abuse, resolving to undertake an assessment, seeking legal advice about possible care proceedings and proposing “keeping safe” work did not constitute services provided to HXA. Those matters were preliminary steps enabling the authority to decide whether compulsory intervention was appropriate. They fell significantly short of accepting responsibility to use reasonable care to protect her from abuse.

4. In YXA’s case, respite accommodation under section 20 of the Children Act 1989 did not entail responsibility to protect him after his return to his parents or to commence care proceedings. The arrangement was temporary and consensual. There was no pleaded material change during respite care from which a wider responsibility could be inferred.

5. Accommodation under section 20 did, however, involve a limited assumption of responsibility while YXA was in respite care, including the mechanics of his return. During that period the authority had accepted responsibility for his safety. This limited responsibility did not establish the broader duty alleged.

6. An assumption of responsibility is not confined to cases involving a care order. A care order is nevertheless the clearest example because the authority acquires parental responsibility and assumes a duty to use reasonable care to protect the child, including from third parties. Specific reliance by a vulnerable child is not necessarily required in this context.

7. N v Poole had clarified the applicable law. This was not an uncertain, developing area in which every claim required a trial. Where the pleadings provide no basis for a duty of care, striking out avoids an unnecessary trial on breach and causation.

1. United Kingdom Supreme Court: Allowed the local authorities’ appeals unanimously and restored the orders striking out the negligence claims: [2023] UKSC 52.
2. Court of Appeal: Allowed HXA’s and YXA’s appeals, holding that an assumption of responsibility was arguably established and that the claims should proceed: [2022] EWCA Civ 1196, [2023] 1 WLR 116.
3. High Court: Stacey J dismissed both claimants’ appeals from the strike-out decisions: [2021] EWHC 2974 (QB).
4. First instance—HXA: Deputy Master Bagot QC struck out the negligence allegations concerning the social services department: [2021] EWHC 250 (QB).
5. First instance—YXA: Master Dagnall struck out the negligence claim concerning the social services functions: [2021] EWHC 1444 (QB), [2021] PIQR P9.