HXA v Surrey County Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Baker,Lord Justice Lewis,Lady Justice Elisabeth Laing |
| Judgment Date | 31 August 2022 |
| Neutral Citation | [2022] EWCA Civ 1196 |
| Docket Number | Case No: CA-2021-003179 and 3178 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 1196
Lord Justice Baker
Lord Justice Lewis
and
Lady Justice Elisabeth Laing
Case No: CA-2021-003179 and 3178
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Honourable Mrs Justice Stacey
QA-2021-000065 and QA-2021-000146
Royal Courts of Justice Strand, London, WC2A 2LL
Elizabeth-Anne Gumbel QC and Justin Levinson (instructed by Scott Moncrieff and Associates Ltd for HXA and Bolt Burdon Kemp for YXA) for the Claimants/Appellants
Lord Faulks QC and Paul Stagg (instructed by DWF LLP in the HXA appeal and Browne Jacobson LLP in the YXA appeal) for the Defendants/Respondents
Hearing date: 10 May 2022
Approved Judgment
This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30am on 31 August 2022.
This is a second appeal against the decision of Stacey J (reported at [2021] EWHC 2974 (QB)) to dismiss appeals against decisions in two unconnected cases striking out claims in negligence brought against local authorities arising out of the exercise of their statutory functions under the Children Act 1989. The appeal involves consideration of the circumstances in which a local authority and/or the social workers for whom it is vicariously liable owe a duty of care to a child to whom the local authority is providing child protection services.
It is acknowledged on behalf of the respondents that the background to both cases is shocking and disturbing. There is no doubt that each claimant as a child was subjected to severe abuse and neglect. Both claimants were involved with social services for a number of years whilst they remained at home with their families and continued to suffer abuse. On this appeal, however, we are not asked to rule on whether either of the local authorities was at fault. The issue is whether, at any stage in its contact with the children, the local authorities can be said to have assumed responsibility for their welfare so that they owed the children a duty of care at common law. The deputy master in the case of HXA and the master in the case of YXA and Stacey J on the conjoined appeals against both decisions all decided that the local authorities could not be said to have assumed responsibility so as to owe a duty of care to the children. As a result, the claims were struck out.
It must be stressed that if we allow either or both of these appeals, the consequence is that one or both will proceed to trial. At that stage, the judge will have to decide in each case whether the local authority did in fact owe a common law duty of care, and if so whether there was a breach of duty as a result of which the claimant suffered damage for which she or he is entitled under general legal principles to recover compensation. If we allow these appeals, it does not follow that either claim will ultimately succeed.
SUMMARY OF ALLEGED FACTS
It is common ground between the parties that, for the purposes of the respondents' applications to strike out, the court is required to assume that the facts alleged by the appellants are capable of proof. Accordingly, what follows is a summary of the facts alleged in the two cases, not all of which are admitted by the respondents in their Defences.
(1) HXA summary of facts
HXA was born in 1988 and is now aged 33. She has three younger siblings, two of whom have learning disabilities. Their childhood was characterised by sustained abuse and neglect, perpetrated by their mother and at a later date by her partner Mr A, whom she met in 1996 and married a year later.
From at least September 1993, there were a series of referrals to the local authority, Surrey County Council, about the mother's inappropriate physical chastisement, verbal abuse and lack of supervision of her children. Between September 1993 and July 1994, five investigations were conducted under s.47 of the Children Act 1989. During this time, the names of HXA and her siblings were placed on the child protection register. In November 1994, after seeking legal advice, the local authority resolved to undertake a full assessment with a view to initiating care proceedings. In the event, however, no such assessment was carried out. The local authority continued to monitor the family but on at least some occasions no decisions or actions were taken despite ongoing concerns being reported.
In July 1996, HXA's mother formed a relationship with Mr A. Four years earlier, he had been convicted of assault on his own infant son. Thereafter concerns about Mr A's behaviour towards HXA and her siblings were raised with the local authority by several sources. In 1999, there were allegations of sexual abuse of HXA and her younger sister SXA by both Mr A and Mr A's father. It is alleged by HXA that she reported abuse to staff at her school which was run by the local authority's education department. In January 2000, it was recorded at a case conference that HXA had alleged that Mr A had touched her breast. The local authority decided 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 resolved not to take any action beyond carrying out “keeping safe” work with HXA and SXA. In the event, however, no such work was undertaken. In 2004, aged 16, HXA moved out of the family home.
In 2007, after SXA had made further allegations as a result of which she was removed from her mother's care under an emergency protection order, the police carried out an investigation during the course of which HXA was interviewed. As a result of this investigation, both Mr A and the children's mother were prosecuted. In January 2009, Mr A was convicted of seven counts of rape of HXA between the ages of nine and sixteen and sent to prison for fourteen years. Her mother was convicted of indecently assaulting her and sentenced to nine months' imprisonment.
On 26 September 2014, a claim form was filed by HXA and SXA (as a protected party through her litigation friend) against the local authority. Lengthy extensions of time were agreed and endorsed by the court (in part to await the outcome of the proceedings which ultimately resulted in the judgment of the Supreme Court in N v Poole Borough Council (AIRE Centre and others intervening) [2019] UKSC 25, [2020] AC 780, considered below). By another consent order in October 2019, SXA's claim was stayed pending the outcome of HXA's claim. In the event, it was not until 23 October 2019 that Particulars of Claim were served. The pleading, which is detailed and at times excessively discursive, set out in paragraph 14 a chronology, described as a “Sequence of Events”, which in 59 sub-paragraphs summarised the involvement of the local authority with HXA and her family between 1993 and 2007. These included:
(1) Under sub-paragraph (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.
(2) Under sub-paragraph (vv): On 27 January 2000, a child protection conference was held. It was noted that the First Claimant had reported that Mr A had touched her breast. The Defendant resolved not to investigate this 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 the Claimants, although this was never done.
The chronology also included the occasion when HXA had made allegations to staff at school about Mr A's conduct.
Under a heading “Assumption of Responsibility”, the claimants pleaded (paragraph 15):
“In the circumstances, the Defendant assumed responsibility for the welfare of the Claimants on each occasion when reports were responded to having been made to social services by police, other agencies and family members concerned for the safety and welfare of the Claimants. The Defendant assumed responsibility for investigating the plight of the Claimants in the light of this information through the commencement of an assessment and, in some instances, provision of assistance. The allocated social worker also assumed responsibility for investigating the safety of the Claimants in a household where there were multiple risks of significant harm. The referrers relied on the Defendant to keep the Claimants safe in the light of the information passed on. However, the Defendant failed competently to assess the risks posed to the Claimants or to take appropriate action in the light of the known dangers.”
It was further averred that the local authority had assumed responsibility for the claimants' welfare in a number of respects, including (under paragraphs 18 – 19):
“18. The actions of the defendant in purporting to assist the family and undertake child protection work and assess the risks posed by the claimants' mother and Mr A … as set out above were steps in which the defendant assumed responsibility for the protection of the claimants and for the object of assisting the claimants to be safe. The claimants at least impliedly relied on the defendant to protect them….
19. Further, in intervening in the Claimants' home life, the Defendant assumed responsibility for the plight of the Claimants and the Claimants at least impliedly relied on them to do so competently…..”
On 31 January 2020, the local...
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