On the case – ‘Failure to remove’ claims – where are we now?

Tuesday 16 March 2021

HXA v Surrey County Council [2021] is one of the latest decisions to consider the arguments and lack of clarity on the position on liability in ‘failure to remove’ cases left by CN & GN v Poole BC [2019].

In HXA the Claimants were in the care of their mother and a succession of male partners, despite regular expressions of concern and involvement by the Council’s social services department. They suffered physical abuse and neglect at the hands of their mother and, latterly, sexual abuse from one of the mother’s partners.


In HXA the claim was based on a formulation of the duty of care issue:

  • A duty of care existed by the mere exercise of child protection functions, because the effect of CN was to resurrect the decision of the Court of Appeal in D v East Berkshire Community NHS Trust [2003].
  • By the mere involvement with the Claimants’ family, the Council assumed responsibility for their safety and welfare.
  • The Council had added to the danger which the Claimants faced by ‘endorsing’ their parenting and ‘allowing’ the unsuitable male partner to move in with the mother.
  • The Council had failed to control the wrongdoers, namely the mother and her partner.
  • The Council’s inaction had prevented others from protecting the Claimants.
  • The first Claimant had complained to a lunch assistant at school about being frightened when her stepfather came into her bathroom when she was bathing, and the matter had been reported to the school office.

The above tactics are regularly seen in claims where there is an attempt to suggest that the mere involvement with a family automatically creates an assumption of responsibility.

The Council accepted that the last allegations may fall within the scope of the well-recognised duty of care owed by school staff to pupils, so didn’t seek a strike out of them. However, all the points on which it was said that its social services department owed duties of care were challenged.

The Claimant accepted that the case was one of ‘failing to confer a benefit’ rather than directly causing them harm. It was suggested that CN was distinguishable on the basis that it had been concluded that a care order could not have been obtained in that case, whereas it was an option in this matter.

The judgment

The Deputy Master rejected attempts to distinguish CN based on differences on the facts – mere assertion of reliance on the Council by the Claimants would not suffice. He also made an extremely important observation, distinguishing the cases where a care order had been made and a duty of care was recognised.

A duty of care is recognised to arise when a care order is made, because the Council has parental responsibility. But up until that point, parental responsibility remains unequivocally with the parent(s). A duty of care cannot effectively be reverse engineered from the point at which a duty arises on the making of a care order, in the way that Claimants would wish.

This involves saying that because the duty arises on the making of the order, so there is a duty to conduct any care proceedings brought competently; and so, there is a duty to decide whether to institute care proceedings competently; therefore, there is a duty to investigate competently to decide whether to bring care proceedings. That attempt to trace back a duty at an earlier and earlier stage does not provide a viable route to an arguable case here, in my judgment.

Finally, the Deputy Master rejected the argument that the striking out should be refused, because the case would have to go to trial on the issue of the alleged disclosure at school. Indeed, what if anything the school could have done to prevent the alleged abuse, other than making a referral, was questionable.

In CN the Supreme Court dismissed the claim, holding that in the circumstances of the case, the Council owed the Claimants no duty of care at common law to take protective measures to remove them from the family home to prevent them suffering the ill-effects of the anti-social behaviour to which they were subjected by neighbours.

Subsequent cases have been asked to distinguish CN. In Spence v Calderdale MBC [2018] the Claimant and his siblings had been promptly removed from their parents’ care following allegations of abuse. The Claimant’s stepfather was tried and acquitted for an indecent assault.

There was equivocal evidence that suggested the Council tried to keep the Claimant in its care, but the Magistrates’ refused a further interim care order and the Claimant was returned to his parents’ care. The Judge thought the case was arguably distinguishable from CN as the Claimant had been taken into care, and he declined to strike out the claim.

In Champion v Surrey County Council [2020] the court heard of a history of involvement of social workers with the Claimant’s family, but he had never been taken into care. The judgment noted several elements of the history were pleaded as representing positive acts, and the Judge took the view that those allegations: “are sufficient to give rise to an arguable assumption of responsibility”. We understand this case to be the subject of appeal.

In September 2020, District Judge Jackson struck out a claim against Bradford Metropolitan District Council in which the Claimant had been left in her mother’s care and was raped by her mother’s partner.

Although assumption of responsibility was alleged, it appears that no factual allegations in support of that suggestion were pleaded. The Judge is reported to have decided that the pleaded case was: “wholly inadequate in identifying the act or task or service relied on”.

Lessons learnt

Diverse conclusions are being made at first instance by judges on the various ways in which duty of care issues are argued before them, and until

such cases reach the higher courts, strenuous arguments as to how the Supreme Court judgment in CN should be interpreted are likely to rumble on. While the Deputy Master’s judgment in HXA is very detailed, it is unlikely the discussion surrounding these issues will end here.

Kella Bowers (kella.bowers@forbessolicitors.co.uk) is a Partner and Head of Abuse and Social Care in the Insurance Team at Forbes Solicitors. We thank Paul Stagg from 1 Chancery Lane Chambers for the analysis he provided regarding HXA v Surrey County Council.

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