HXA v Surrey County Council

JurisdictionEngland & Wales
JudgeMaster Bagot
Judgment Date15 February 2021
Neutral Citation[2021] EWHC 250 (QB)
Date15 February 2021
Docket NumberCase No: QB-2014-004479
CourtQueen's Bench Division

[2021] EWHC 250 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

DEPUTY Master Bagot QC

Case No: QB-2014-004479

Between:
(1) HXA
(2) SXA (A protected party by her litigation friend Andrea Webb)
Claimants
and
Surrey County Council
Defendant

Justin Levinson (instructed by Scott Moncrieff & Associates Ltd) for the First Claimant

Paul Stagg (instructed by DWF LLP) for the Defendant

Hearing date: 6 November 2020

Approved Judgment

DEPUTY Master Bagot QC:

This judgment is in 7 parts as follows:

I. Introduction and background:

paras. [1]–[8]

II. The facts in more detail:

para. [9]

III. The core legal framework and submissions:

paras. [10]–[22]

IV. Application of the law:

paras. [23]–[27]

V. Strike-out decisions since Poole and determination:

paras. [38]–[44]

VI. Conclusion:

paras. [45]–[48]

VII. Costs and application for permission to appeal:

paras. [49]–[60]

I. Introduction and background

1

This is an application by the Defendant, heard remotely by MS Teams, and made under CPR 3.4(2)(a) to strike out the significant majority of the First Claimant's claim. Whilst it mirrors the First Claimant's claim, the Second Claimant's claim was stayed pending the outcome of the First Claimant's claim, by Order dated 3 October 2019. It is alleged that the statement of case discloses no reasonable grounds for bringing those aspects of the claims made to which I will refer in this judgment as “the relevant claims”.

2

There has been no material disagreement between the parties as to the threshold to be applied. Different formulations are set out in the case law and I have regard, for instance, to the Editors' notes and case law referred to at section 3.4.2 in The White Book. The guidance can best be summarised by observing that I must be satisfied that the relevant claims are bound to fail if the Defendant is to succeed on its application. Statements of case which are suitable for striking out include those which raise an unwinnable case where continuance of the proceedings is without any possible benefit to the respondent and would waste resources on both sides. It is not appropriate to strike out a claim in an area of developing jurisprudence, since, in such areas, decisions as to novel points of law should be based on actual findings of fact. Where an area of law is subject to some uncertainty and developing, it is highly desirable that the facts should be found so that any further development of the law should be on the basis of actual and not hypothetical facts. I also bear in mind the words of caution in relation to striking out alleged assumption of responsibility cases specifically, discussed below.

3

The Claimants are half siblings. They have the same mother, but different fathers. Their dates of birth are:

i) First Claimant, “HXA”, female: 26 March 1988;

ii) Second Claimant, “SXA”, female: 2 November 1993.

4

The Claimants have 2 sisters, who are full siblings of the Second Claimant. They have severe learning disabilities. They are:

i) MIX — born in April 1991;

ii) MEX — born in April 1992.

5

The Defendant was responsible for the management and provision of social services in the area in which the Claimants grew up.

6

The Claimants' childhoods were characterised by abuse and neglect perpetrated by their mother and one of their mother's partners (“Mr A”). On 12 January 2009, at Guildford Crown Court, Mr A was convicted of 7 counts of rape (specimen charges) in relation to the First Claimant and the Claimants' mother was convicted of indecently assaulting the First Claimant. Mr A was sentenced to 14 years imprisonment and the Claimants' mother to 9 months imprisonment.

7

The Claimants seek damages for psychiatric and other injuries suffered by them as a result of child abuse, which they allege would have been avoided or lessened had the Defendant's social workers exercised reasonable care for their safety and wellbeing in accordance with the duties alleged.

8

The alleged failure by the Defendant's school staff to act upon a report of abuse by the First Claimant, in 1999, is not subject to this application (paras. 31–35 of the Particulars of Claim). The Defendant accepts that it is at least arguable that a duty of care arises in the school context and that this allegation needs to be determined on the facts. But the Defendant says that all the other allegations made, i.e. those at paras.1 to 30 of the Particulars of Claim, fall to be struck out.

II. The Facts in more detail

9

For present purposes, on this strike out application, I must take the facts to be those alleged by the First Claimant. Although they are set out at considerable length in the Particulars of Claim (para. 14 under the heading ‘sequence of events’), I will reproduce them here in full to avoid any shortcoming of detail if I merely summarised them. The only amendment I have made is where family names are used in the pleading, I have reduced those entries to read, e.g. “[Mr A]” rather than using the full name, to reduce the risk of inadvertently providing a route to the identification of the Claimants, whose names have been anonymised in these proceedings. Paragraph 14 reads:

“The Defendant had dealings with the Claimants' family from no later than September 1993. In particular, the following events are relevant to this claim. A more detailed chronology is contained in the social services records:

a. In September 1993, it was noted that the Claimants' mother, who had learning difficulties, had been rough with the First Claimant and left her unsupervised in the bath.

b. In March 1994, a neighbour reported seeing the Claimants' mother hit the First Claimant so hard that she fell off her bike. The First Claimant was not medically examined or spoken to alone. The Defendant provided the family with no support or advice.

c. In July 1994, MEX was noted to have bite marks and bruising.

d. On 6 July 1994, the Claimants' mother reported that the First Claimant had been sexually assaulted by an older boy or boys. The Claimant was not spoken to.

e. On 28 July 1994, a child protection conference was convened. The children's names were placed on the child protection register under the category of neglect. By July 1994, there had been five section 47 investigations in the 10 months since September 1993. There were also documented concerns about the Claimants' mother's excessive and inappropriate physical chastisement of all the children and the lack of supervision afforded them

f. The Claimants' mother separated from the Second Claimant's father in 1994.

g. On 2 August 1994, several neighbours visited the Defendant's office to raise concerns about the Claimants' mother's verbally abusive behaviour towards the children and the lack of supervision afforded to them.

h. On 15 September 1994, there were child protection investigations after MEX presented with bruising. The Claimants' mother refused to co-operate with the investigation.

i. On 26 September 1994, MEX sustained further injuries.

j. In October 1994, a referrer informed the Defendant that she had witnessed the Claimants' mother leave her children unsupervised outside a shop, that the older children had attacked the Second Claimant and that others had witnessed similar behaviour on other occasions. The Defendant took no action.

k. On 31 October 1994, the Claimants' mother was refusing to attend the family centre with a view to preventing the First Claimant being interviewed.

l. In November 1994 there was a child protection investigation after the Defendant received a referral alleging that the Claimants' mother had assaulted the First Claimant. The Defendant's social worker decided to seek legal advice with a view to initiating care proceedings. The Defendant resolved to undertake a full assessment, but did not do so.

m. In January 1995, the case was transferred to the Defendant's Children with Disabilities Team from the Defendant's Child Protection Team, notwithstanding the child protection concerns. The children were on the child protection register at this time.

n. In February 1995, the Claimants' mother was noted to be engaging in sexual activity in the children's presence. The Defendant resolved not to commence a section 47 assessment as it did not wish to jeopardise its relationship with the Claimants' mother.

o. In April 1995, MIX sustained a possibly non-accidental injury.

p. In June 1995, the children's names were removed from the child protection register.

q. In September 1995, the Claimants' mother formed a relationship with [Mr D], a Schedule One offender, who was a member of the household between mid-1995 and July 1996. [Mr D] had been convicted of assaulting the child of his former partner.

r. In October 1995, the Second Claimant sustained a black eye and bruising to her head.

s. In January 1996, a marked deterioration in MEX and MIX's behaviour was reported. Child protection investigations were commenced.

t. In March 1996, an assessment of the risks posed by the Claimants' mother's relationship with [Mr D] was undertaken. It was concluded that the matter should proceed to an initial child protection case conference. It was noted that the children's behaviour had deteriorated over recent months, that there had been 10 section 47 child protection investigations since September 1993, that [Mr D]'s children were the subjects of care orders, that he had injured a 3 year old child and that the couple had refused to discuss their relationship.

u. On 30 April 1996, an initial child protection conference was held.

v. In June 1996, the Claimants' mother admitted to smacking MEX and leaving marks on her legs. There were several other suspicious injuries in June and July 1996.

w. In July 1996, the Claimants' mother formed a relationship with [Mr A]. [Mr A] was a Schedule One offender. In...

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5 firm's commentaries
  • 'Failure To Remove' Claims: Some Further Developments
    • United Kingdom
    • Mondaq UK
    • 24 January 2022
    ...the Tindall Case In a series of articles published last year, I analysed in detail the decisions at first instance in HXA v Surrey CC [2021] EWHC 250 (QB) [link] and YXA v Wolverhampton CC [2021] EWHC 1444 (QB), [2021] PIQR P19 [link], and the decision of Stacey J on appeal [link]. A furthe......
  • Tindall And Another v Chief Constable Of Thames Valley Police And Another [2022] EWCA Civ 25
    • United Kingdom
    • Mondaq UK
    • 26 January 2022
    ...down her long-awaited decision ([2021] EWHC 2974 (QB)) on the appeals from the decisions of Deputy Master Bagot QC in HXA v Surrey CC[2021] EWHC 250 (QB) and Master Dagnall in YXA v Wolverhampton CC [2021] EWHC 1444 (QB). She dismissed the claimants' appeals, upholding the striking out of t......
  • Tindall And Another v Chief Constable Of Thames Valley Police And Another [2022] EWCA Civ 25
    • United Kingdom
    • Mondaq UK
    • 26 January 2022
    ...down her long-awaited decision ([2021] EWHC 2974 (QB)) on the appeals from the decisions of Deputy Master Bagot QC in HXA v Surrey CC[2021] EWHC 250 (QB) and Master Dagnall in YXA v Wolverhampton CC [2021] EWHC 1444 (QB). She dismissed the claimants' appeals, upholding the striking out of t......
  • 'Failure To Remove' Claims: Some Further Developments
    • United Kingdom
    • Mondaq UK
    • 24 January 2022
    ...the Tindall Case In a series of articles published last year, I analysed in detail the decisions at first instance in HXA v Surrey CC [2021] EWHC 250 (QB) [link] and YXA v Wolverhampton CC [2021] EWHC 1444 (QB), [2021] PIQR P19 [link], and the decision of Stacey J on appeal [link]. A furthe......
  • Request a trial to view additional results

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