Lana McMahon v Birmingham City Council

On strike out or summary judgment, pleaded facts are assumed to be true and the court must be satisfied that a claim is bound to fail, or has no realistic prospect of success. A local authority’s statutory provision of accommodation under Children Act 1989 s 20 does not, by itself, establish an assumption of responsibility giving rise to a common-law duty of care. Nevertheless, full-time s 20 accommodation may, on particular facts, amount to an assumption of responsibility to protect a child from harm, including harm by third parties.

An Article 3 operational-duty claim must distinguish the high threshold of a real and immediate risk from reasonable foreseeability in negligence and identify the reasonable measures said to have avoided the risk. The Article 3 investigative duty does not extend to local-authority safeguarding investigations directed principally at preventing future harm. Defective pleadings should generally be amended where the underlying case has a realistic prospect of success.

The claimant alleged that, while accommodated by Birmingham City Council under s 20 of the Children Act 1989 between the ages of 15 and 18, she suffered serious abuse and exploitation by third parties. She claimed damages and declaratory relief in negligence and for breaches of Articles 3, 6 and 8.

The defendant applied to strike out the negligence and Article 6 claims and later sought strike out or summary judgment concerning the Article 3 and 8 claims. The central questions concerned the existence of a common-law duty of care, the adequacy of the Article 3 operational-duty and investigative-duty pleadings, the relationship between Articles 3 and 8, and whether a failure to bring care proceedings could engage Article 6.

1. Strike-out and summary-judgment principles. The court assumed the pleaded facts to be true for strike out and would strike out only where the claim was bound to fail. Summary judgment required no real prospect of success and no other compelling reason for trial. Short points of law could be determined summarily, but factual disputes and developing evidence ordinarily required trial.
2. Negligence. The pleading that s 20 accommodation necessarily created an assumption of responsibility was defective because it equated a statutory function with a common-law duty of care. That part was struck out. A separate pleading based on the particular circumstances of the claimant’s prolonged, full-time accommodation disclosed a realistic case. Applying HXA/YXA, s 20 accommodation can generate an assumption of responsibility to protect a child from harm, including harm by third parties. However, the pleading failed to identify precisely the assumed responsibility, its scope, and when duties relating to the two alleged abusers arose. The claimant was given an opportunity to amend.
3. The alternative negligence case based on preventing police or relatives from protecting the claimant was struck out. The pleaded matters were omissions, such as failing to refer allegations or provide information, rather than positive acts preventing others from acting. They therefore did not fall within the limited exception concerning conduct that prevents another person from protecting the claimant.
4. Article 3. The operational duty required a real and immediate risk of treatment sufficiently severe to engage Article 3, knowledge or constructive knowledge of that risk, and failure to take measures within the authority’s powers which, judged reasonably, might have avoided it. The pleading improperly relied on negligence allegations concerning reasonable foreseeability and failed to identify the relevant periods, treatment, knowledge, and measures with sufficient clarity. Those defects were amendable, and the operational-duty claim was not struck out or summarily determined.
5. The Article 3 investigative-duty claim was struck out. The pleaded investigation concerned safeguarding inquiries by a local authority, whereas the investigative duty described in AB concerned an effective investigation of arguable Article 3 ill-treatment, principally directed to identifying and punishing wrongdoing. The factual case did not materially differ from AB.
6. Articles 8 and 6. The Article 8 claim was not struck out. It included a distinct claim concerning prolonged s 20 accommodation, and the court declined to determine summarily whether Article 8 could provide greater protection than Article 3. The Article 6 claim was also not bound to fail. Conflicting High Court authority and the possible deprivation of judicial scrutiny through failure to bring care proceedings required full argument at trial.
7. The applications were allowed in part. The three identified claims were struck out. The surviving causes of action required a replacement pleading, separately addressing each cause of action and its constituent ingredients.

This was a first-instance decision on applications for strike out and summary judgment. The judgment considered earlier decisions in related proceedings, including [2022] EWCA Civ 1196 and [2023] UKSC 52, but did not determine an appeal.