Despite not professing to lay down definitive guidance, the Court of Appeal decision in the joined appeals of HXA v Surrey and YXA v Wolverhampton 2022 has the potential to impact the way in which councils and their insurers approach claims which allege a failure to remove. Rather than settling the issue which would give clarity to both claimants and defendants, there remains uncertainty.

When a council is faced with a claim of this nature, it will be required to conduct a highly fact-sensitive and complex analysis of evidence to determine whether it can be said that it might have assumed responsibility for a claimant. Councils and their insurers are unlikely to seek to strike out claims brought in negligence, as the Court of Appeal has strongly suggested it would be wrong to strike out such claims before the evidence has been heard.

The inherent uncertainty which now exists means that the Supreme Court is likely to have the last word on this topic, as each Defendant Council sought permission to appeal. But until any such landmark ruling, both claimants and defendants face uncertainty as to when an assumption of responsibility is likely to apply.

Failure to remove history

Since 2019, the Supreme Court’s decision in Poole Borough Council v GN and another 2019 (CN and GN) had been thought of as a landmark ruling, enabling councils to confidently respond to claims which alleged a failure to remove. Subsequently reported strike out applications cemented the basic position that councils do not, as a matter of course, owe a duty of care to protect children from harm.

While not formally departing from the principle of CN and GN, the Court of Appeal’s intervention has the potential to alter the legal landscape in claims where it is alleged a council has failed to protect a child.

HXA v Surrey County Council

The case of HXA v Surrey County Council was set against the backdrop of council involvement over some years, during which time various decisions were made in connection with the Claimant’s wellbeing. Despite such decisions, it had been determined that the Defendant Council had simply failed to confer a benefit and therefore there had not been a wider assumption of responsibility, which saw the claim struck out.

YXA v Wolverhampton City Council

The case of YXA v Wolverhampton City Council involved the accommodation of the Claimant under Section 20 of the Children Act 1989. From this case, it was understood that no duty of care arose from the provision of such accommodation (beyond duties during the provision of such accommodation) and, from this, it could not be argued that there had been a wider assumption of responsibility by the Defendant Council. As such, this claim also stood struck out.

The appeals

In the sole judgment delivered by Baker LJ on 31 August 2022, the decisions to strike out HXA and YXA have been over-turned. Dealing with the facts of YXA, the Court observed that accommodating a child under Section 20 could amount to ‘something more’ so as to give rise to an assumption of responsibility. For HXA, the appeal turned on a specific omission and a specific act by the defendant council (a failure to seek legal advice once a decision to do so had been reached & arranging ‘keeping safe’ work). In a similar vein, the Court observed this could potentially amount to an assumption of responsibility.

Accordingly, on the basis that each claimant had an arguable case, neither claim should stand struck out and the appeals were allowed by Baker LJ. It is also worth highlighting that while the judgment does not seek to disapply the principle of CN, it makes it clear that the obtaining of a care order is far from the be all and end all when answering the question of whether a council has assumed responsibility for a child.

Dan Couldrey (dan.couldrey@kennedyslaw.com) is an Associate at Kennedys.