HXA v Surrey County Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Stacey |
| Judgment Date | 08 November 2021 |
| Neutral Citation | [2021] EWHC 2974 (QB) |
| Docket Number | Case No: QA-2021-000065 & QA-2021-000146 |
| Year | 2021 |
| Court | Queen's Bench Division |
[2021] EWHC 2974 (QB)
THE HONOURABLE Mrs Justice Stacey
Case No: QA-2021-000065 & QA-2021-000146
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justin Levinson (instructed by Scott-Moncrieff and Associates Ltd for HXA and Bolt Burdon Kemp for YXA) for the Claimants/Appellants
Mr Paul Stagg (instructed by DWF LLP in the HXA appeal and Browne Jacobson LLP in the YXA appeal) for the Defendants/Respondents
Hearing date: 7th July 2021
Approved Judgment
THE HONOURABLE Mrs Justice Stacey
There are two, quite separate, appeals in different cases before the court which have been listed to be heard together since the same legal issues arise in both. It is acknowledged and accepted that in both cases the appellants (who were the claimants below) suffered appalling abuse and shocking treatment as children from, in YXA's case his parents, and in HXA's case, from her mother and her mother's partner Mr A. In each case there was also a long history of social services involvement with each of their families. The respondents to the appeal are the local authorities responsible for the management and provision of social services in the respective areas where the claimants lived and grew up at the material time. I shall continue to refer to the appellants as the claimants (each of whose privacy is protected by an anonymity order pursuant to CPR 39.2(4)) and to the respondents to the appeal as the defendants, as they were below.
The claimants bring proceedings against their respective local authorities, including a claim in the tort of negligence, for damages for psychiatric and other injuries suffered as a result of the alleged abuse perpetrated by YXA's parents against him, and by HXA's mother and Mr A against her, which they allege would have been avoided or lessened had the defendants' social workers exercised reasonable care for their safety and wellbeing. In HXA's case it was said that the defendant should have applied for a care order for her in order to comply with the duty and in YXA's case compliance with the duty would have involved an application for a care order being made considerably sooner than it was.
In both cases the defendants applied to strike out the claims. In both cases the Deputy Master and Master respectively found that it was not arguable that a common law duty of care was owed by the local authority to the claimants to protect them from the harm that they suffered from the abuse and neglect of their parents and, in HXA's case, Mr A, and those parts of the claims were therefore struck out under Civil Procedure Rule 3.4(2)(a) as showing no reasonable ground for bringing the claim in the tort of negligence.
Both claimants rely on two grounds of appeal. The first was that the first instance Judge was wrong to strike out parts of the particulars of claim because he should have found that it was at least arguable that a duty of care arose on the basis that the local authority defendant had assumed responsibility for the welfare and protection of the claimants. The second ground of appeal in HXA's case was that the Deputy Master had been wrong to strike out those parts of the claim because this is a developing area of law where similar cases have been decided in the claimant's favour. YXA's second ground relied not only on the developing area of law argument, but also that his case is fact sensitive and as the same factual matters will be considered in his claim under the Human Rights Act 1998, the judge should have exercised his discretion in the claimant's favour.
For the purposes of the strike out application, the facts are taken to be those alleged by the claimants in their particulars of claim. I summarise below in turn, the allegations made by each claimant.
HXA was born in 1988 and is now aged 33. She is her mother's oldest child and her full sister, SXA, born in November 1993 is a second claimant in the proceedings whose claim has been stayed pending the outcome of HXA's appeal. They have two younger half-sisters who have learning disabilities. HXA and her younger siblings' childhood in Surrey was characterised by abuse and neglect perpetrated by their mother and also by Mr A when he formed a relationship with HXA's mother in July 1996. They married in July 1997.
From at least September 1993 matters of concern were raised with Surrey County Council about HXA's mother's inappropriate physical chastisement, verbal abuse and lack of supervision of her children from a wide range of sources including the NSPCC, which continued over the years. There were 5 investigations conducted under s.47 Children Act 1989 (the Act) in the 10 month period from September 1993 to 28 July 1994, when HXA and her siblings' names were placed on the Child Protection Register for neglect. There were well documented concerns of excessive and inappropriate treatment by their mother.
In November 1994, after seeking legal advice, the defendant resolved to undertake a full assessment with a view to initiating care proceedings, but failed to do so. Thereafter on some occasions no decisions or actions were taken on reported concerns. On other occasions decisions were made not to take further action for fear of alienating HXA's mother or Mr A. On further occasions decisions to commence investigations or take further action were made, but not acted upon. Concerns about Mr A's behaviour towards the children were raised by a number of sources from late 1996 and it was known to the defendant that Mr A had been convicted after trial of assault occasioning actual bodily harm to his own child, then aged 8 weeks old by shaking him with sufficient force so as to cause conjunctival haemorrhages and by breaking his leg. Allegations of sexual abuse of HXA and her younger sister SXA by both Mr A and Mr A's father (MA) began to emerge in 1999. On 27 January 2000 a child protection conference was held when it was noted that HXA had reported that Mr A had touched her breast. The defendant resolved not to investigate the matter due to fear of how Mr A would react and because it was wrongly thought that there had been no previous similar concerns. It was resolved to do “keeping safe” work with HXA and SXA but this was never done. HXA moved out of the family home in 2004 to live with her now husband.
In 2007 the defendant obtained an emergency protection order in respect of SXA after she had reported sexual abuse by Mr A and MA to a school educational welfare officer in 2006. HXA reported sexual abuse by Mr A and MA to the police in April 2007. On 12 January 2009 at Guildford Crown Court, Mr A was convicted of 7 specimen counts of rape of HXA when she was between the ages of 9 to 16 and sentenced to 14 years imprisonment. HXA's mother was convicted of indecently assaulting HXA and sentenced to 9 months immediate custody.
HXA also alleges a failure by the defendant to act upon a report of abuse that she made to the defendant's staff at her school in 1999. The school is described in the particulars of claim as being owned, managed and operated by the defendant. The defendant accepts that it is at least arguable that a duty of care arises in the school context and that the allegation needs to be determined on its facts since it was arguable that a duty of care was owed in the educational setting and that allegation was therefore not part of the strike out application.
YXA was born in November 2001 and is now aged 19. He is disabled and has epilepsy, learning disabilities and autistic spectrum disorder. Although now an adult he lacks capacity and the claim is brought by his litigation friend. He and his family moved to the Wolverhampton City Council area in August 2007 when he was aged 6. The defendant had dealings with YXA within a month of the family's arrival in September 2007 and completed an assessment on 6 November 2007 which showed that YXA had a high level of need and identified concerns about his parents' ability to care for him. In March 2008 a paediatrician, Dr Moore, advised the defendant that YXA was being given triple his prescribed dose of medication by his father with adverse consequences for his health and that he should be received into the defendant's care. From 28 April 2008, a pattern began of the defendant receiving YXA into its care for approximately 1 night every 2 weeks and 1 weekend every 2 months with his parents' agreement pursuant to s.20 of the Act.
Further concerns were reported in 2008: from a clinical psychologist advising that YXA's parents had been hitting him, to further reports of excessive medication being given to him by his parents, to a psychiatrist informing the defendant of YXA's mother's excessive alcohol and cannabis consumption. The defendant also knew of a long history of substance abuse by both the parents. Concerns were raised at a looked after child review conducted in July 2008 and thereafter. Following further problems and matters raised in 2009 — including YXA being hospitalised for seizures thought to be caused by excessive medication, suspicions by the hospital staff that his mother had been hitting him and reports of domestic violence — on 17 December his parents admitted that they had medicated him inappropriately to keep him quiet and had smacked him. On 18 December 2009 YXA was received into the...
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