HXA v Surrey County Council; YXA (a protected party by his litigation friend the Official Solicitor) v Wolverhampton City Council
| Jurisdiction | England & Wales |
| Judge | Lord Burrows,Lord Stephens,Lord Reed,Lord Briggs,Lord Sales |
| Judgment Date | 20 December 2023 |
| Neutral Citation | [2023] UKSC 52 |
| Court | Supreme Court |
[2023] UKSC 52
Lord Reed, President
Lord Briggs
Lord Sales
Lord Burrows
Lord Stephens
Appellants
Lord Faulks KC
Paul Stagg
Thomas Jones
(Instructed by DWF Law LLP and Browne Jacobson LLP)
Respondents
Elizabeth-Anne Gumbel KC
Justin Levinson
(Instructed by Scott-Moncrieff and Associates Ltd and Bolt Burdon Kemp LLP)
Heard on 24 and 25 October 2023
Lord Burrows AND Lord Stephens ( with whom Lord Reed, Lord Briggs and Lord Sales agree):
These two cases are concerned with claims in the tort of negligence brought against local authorities by HXA and YXA, who were children when they suffered sexual or physical abuse by a parent or parent's partner. It is alleged that the local authorities owed a common law duty of care to the claimants, when children, to protect them from that harm. The liability of local authorities in the tort of negligence for a failure to protect against harm by a third party has been explored and clarified by this court, in the context of alleged failures by a local authority's social services department, in N v Poole Borough Council [2019] UKSC 25, [2020] AC 780 (“ N v Poole”). The decisions in these cases turn on the application of the decision and reasoning in that leading case.
The defendant local authorities have applied to have the statements of case struck out (under CPR r 3.4(2)(a)) as disclosing no arguable cause of action. Their applications succeeded at first instance and on appeal to a High Court judge, but the Court of Appeal overturned those decisions and held that the claims should not be struck out because it was arguable that there was a duty of care owed as alleged. The defendants now appeal to the Supreme Court.
It is common ground that, applying N v Poole, the claimants need to establish that there was a relevant assumption of responsibility by the local authorities. Accordingly, this appeal is concerned with whether the particulars of claim provide some basis for the leading of evidence at trial from which a relevant assumption of responsibility can be made out, in accordance with the principles in N v Poole, so that the local authorities arguably owed HXA or YXA a duty of care at common law to protect them from harm.
The claims are brought against the defendants in respect of both direct (ie personal) and vicarious liability. That is, it is alleged that each local authority was in breach of a duty of care that the authority itself owed to each claimant; and it is also alleged that social workers, employed by the local authorities, were themselves in breach of a duty of care such that the local authority, as employer, was vicariously liable for the tort of its employees committed within the scope of their employment. But in terms of the correct analysis of the law, it is common ground that nothing in this case turns on whether one is looking at the defendants' direct, or vicarious, liability. Not least for ease of exposition, it is therefore appropriate for us to focus throughout on the direct liability of the defendants.
The court is required to determine the defendants' applications to strike out by reference to assumed facts as pleaded in the claimants' amended particulars of claim. In setting out a summary of assumed facts in each case it must always be borne in mind that there have been no factual findings in these proceedings and that not all the facts alleged in the two cases are admitted by the defendants in their defences. However, it is appropriate to highlight that it is clear that, as children, both HXA and YXA were subjected to severe abuse by, in the case of HXA, HXA's mother and her partner, and, in the case of YXA, by YXA's parents. As Baker LJ recorded, at para 2 of his leading judgment in the Court of Appeal, [2022] EWCA Civ 1196, [2023] 1 WLR 116, the background to both cases is “shocking and disturbing.”
We gratefully adopt the summary of the facts alleged in HXA's case as set out by Baker LJ in the Court of Appeal at paras 5 to 8.
“5 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.
6 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 section 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.
7 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.
8 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 16 and sent to prison for 14 years. Her mother was convicted of indecently assaulting her and sentenced to nine months' imprisonment.”
We also gratefully adopt the summary of the facts alleged in YXA's case as set out by Baker LJ at paras 13 to 14.
“13 YXA, who is now aged 19, suffers from epilepsy, learning disabilities and autism spectrum disorder. Initially he lived with his parents in London where the family came to the attention of the local authority social services department. In 2007, when he was six years old, he moved with his family to the West Midlands. A few weeks after their arrival, an assessment by the local authority for that area, Wolverhampton City Council, identified concerns about his parents' ability to care for him. In March 2008, a paediatrician advised the local authority that YXA was being inappropriately and excessively medicated and recommended that he should be taken into care. Thereafter, under an agreement reached between the local authority and the parents under section 20 of the Children Act 1989, a pattern of respite care was established whereby YXA spent roughly one night a fortnight and one weekend every two months in foster care.
14 In the course of the next 18 months, further concerns arose about YXA's treatment in his parents' care. There were allegations that the parents drank and took cannabis to excess, that they physically assaulted YXA, and that they were continuing to administer medication excessively. Eventually in December 2009, the parents admitted smacking him and giving him excessive medication to keep him quiet. With their consent, YXA was accommodated full time under section 20. Care proceedings were then started and a final care order made in March 2011 on the basis of a care plan under which YXA remained in long-term foster care.”
We here set out a summary of the procedural history in respect of each case. Furthermore, as “the particulars of claim must provide some basis for the leading of evidence at trial from which an assumption of responsibility could be inferred” (see N v Poole at para 82) it is appropriate at this stage to set out each claimant's (amended) particulars of claim which assert that there was an assumption of responsibility on the part of the defendants.
The claim form which instituted the proceedings on behalf of both HXA and SXA (HXA's younger sister) was issued in September 2014. Surrey County Council is the sole defendant. 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 this court in N v Poole. In the event, it was not until 23 October 2019...
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