On Wednesday 31st August the Court of Appeal handed down its highly anticipated judgment in the case of YXA/HXA.
This case was two conjoined appeals against the decision of Stacey J, who had previously dismissed appeals against decisions in the two cases, striking out claims of negligence brought against local authorities where the claimants suffered neglect and physical abuse at home.
The question to be determined by the Court of Appeal was in what circumstances will 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 (para 67). The Court then needed to consider whether the judges who heard these two cases previously were right to strike out these Claims.
The Court of Appeal gave a great deal of consideration to the previous Supreme Court decision of CN & GN v Poole Borough Council. Poole drew a distinction between cases where it was alleged that the local authority caused harm (making things worse) or failed to confer a benefit (not making things better e.g. protecting from harm).
A duty of care will typically arise where a claimant alleges that the defendant caused harm. However, the difficulty for claimants is when it is alleged that a defendant failed to confer a benefit. Poole established that a duty of care will only be owed when a defendant fails to confer a benefit in the following circumstances:
the defendant has control over a third party who causes the harm;
the defendant is itself creating or aggravating the risk of harm, or;
the defendant has assumed responsibility for the claimant’s welfare.
The difficulty for claimants arises with proving that the defendant has assumed responsibility. When does a defendant assume responsibility for a claimant?
The Court of Appeal were of the view that the decision in Poole did not provide a “clear line” that it is only when a local authority acquires parental rights under the Children Act 1989 that an assumption of responsibility arises. Lord Justice Baker considers that the circumstances in which a duty of care can arise are not just confined to cases where a care order or interim care order have been obtained.
Lord Justice Baker felt that the assumption of responsibility can be assumed in wider circumstances. So, what are those wider circumstances? The Court of Appeal has concluded that it is arguable that an assumption of responsibility may arise in the two following circumstances:
Where a child is voluntarily accommodated under a section 20. A child being accommodated under a section 20 is capable of amounting to “something more” so as to give rise to an assumption of responsibility depending on the facts of the case (para 95)
Where a local authority, acting in accordance with its duties under statute or regulation or statutory guidance, has taken or resolves to take a specific step to safeguard or promote the welfare of a child (para 96)
One thing which was made abundantly clear within this judgment was that this area of law is evolving and these cases are not straightforward. As more cases go through the court it will gradually become easier to ascertain when an assumption of responsibility exists. However, at this stage, it is far too premature for courts to be simply striking out these types of claims. Whether a duty of care arises will always depend on the specific facts of the case and those facts will need to be subject to full examination (para 105).
Therefore, both appeals were allowed on all grounds and the two claims will now progress to trial.
Only time will tell how this area of law will now evolve and what it will mean for potential claimants.
Here at Farleys Solicitors we represent claimants who have suffered severe neglect, physical abuse and sexual abuse whilst under the care of the local authority. We have taken on hundreds of cases challenging the conduct of local authorities up and down the country who have failed to act promptly and competently where children have been exposed to appalling conditions and abuse. This recent Court of Appeal decision will pave the way for claimants who at one stage may have been prevented from bringing a claim due to the Supreme Court decision of Poole.
The complexities of this area of law necessitate the specialist expertise of solicitors, such as those at Farleys Solicitors, who deal with these cases daily and lead the way for claimants.
To speak with our specialist abuse team please call 0330 134 6430 or send an enquiry through our online contact form.