This is the latest case to consider the extent to which a public authority can be sued in a private action for the alleged negligent application of their statutory powers. It follows on from the case of GN v Poole 2019 in which the Court ruled that a local authority did not owe a duty of care to residents it had placed in housing to protect them from abuse perpetrated by a neighbouring family.
Sadly, as is often the case in claims involving child protection services, the facts of the HXA case are somewhat distressing. The Court described the childhoods of the two Claimants, HXA, and SXA, as “…characterised by abuse...”
The facts as alleged by the Claimants did not appear to be explicitly accepted by the Defendant. Regardless, the judgment does confirm that in 2009 the partner of the Claimants’ mother was convicted of 7 counts of rape, with the First Claimant being the complainant. At the same time, the mother was also convicted of indecently assaulting the First Claimant.
The Claimants were seeking damages for psychiatric injuries and other injuries suffered as a result of the child abuse. It is alleged that the injuries would have been avoided or lessened had the Defendant’s social workers exercised reasonable care for their safety and wellbeing.
The Claimants and their mother had extensive dealings with the Defendant’s child protection services from 1994 through to 2007. Throughout this period a number of investigations were carried out by the Defendant. In addition, a number of further steps were carried out such as periodically placing the Claimants into foster care, as well as convening child protection conferences. The Claimants were also placed on the child protection register.
During this period, there were a number of apparent criticisms of the Defendant for failing to act on referrals or to follow up recommended actions or investigations.
The matter came before the High Court following an application by the Defendant to strike out a large proportion of the First Claimant’s Particulars of Claim (the Second Claimant’s claim having been stayed, awaiting the outcome of this application). Specifically, these were the allegations which were based on the contention that the Defendant owed the Claimants a duty of care in the provision of child protection services to the Claimants. Both parties relied on the case of GN v Poole.
The Defendant argued that there had been no assumption of responsibility by the Defendant. The Claimants had not been taken into the care system and no care proceedings were begun. Therefore, in the view of the Defendant, no duty of care arose in this context.
The Claimants argued the contrary; that it was at least arguable on the facts that an assumption of responsibility had undertaken by the Defendant to the Claimants, and accordingly a duty of care could follow. In particular, the Claimants argued that GN v Poole could be distinguished on the basis that in that claim, the Defendant was in no position to seek a care order as there was no lack of parental care, whereas in this case proceedings for a care order were considered and could have been started.
Deputy Master Bagot QC clearly confirmed that a duty of care is recognised to arise when a care order is made because the local authority assumes parental responsibility at that point. However up until that point, parental responsibility remains with the parents. The judge confirmed this point unequivocally, stating that:
In other words, the duty arises at the point of the care order, and cannot be inferred as having existed prior to that date simply because a care order was made.
Whilst it is difficult to have anything but sympathy for the Claimants, the judgment provided amounts to a clear and definitive application of the law.
In addition, Deputy Master Bagot QC also provided a robust summary of the jurisprudence on this topic, confirming that: “I do not accept that this can be described as a developing area of law (or a developing point within that area)”. What is defined as a developing area of law is of course open to interpretation. On this point it is interesting to note that within the judgment in GN v Poole, Lord Reed expressly confirmed that it was not the case that: “…an assumption of responsibility can never arise out of the performance of statutory functions.” And on that basis, developing or not, it would be surprising if this were the last case to consider whether a local authority has assumed responsibility for a person who is not in its statutory care or protection.
Interestingly, omitted from this application was the Claimant’s allegation that a disclosure was made to school staff and not followed up on. In that case the duty of care was not challenged. Whether the case proceeds on this point alone or is appealed further will no doubt be of keen interest.