Stacey J, in the High Court, had upheld decisions striking out claims against the Defendant local authorities. The High Court decision is discussed in my previous article found here. However, following successful appeals to the Court of Appeal, both cases can now proceed to trial. If they do, a trial judge will determine the extent of a duty of care owed by the social services departments to children who have suffered abuse at the hands of third parties, where the local authority had not assumed responsibility for the children through care orders.
In YXA's case it was not alleged that the child came to harm whilst in temporary accommodation with the local authority. However, the social services department (SSD) may well assume responsibility for the child beyond the specific period when they are being accommodated in light of the long term plan for the child which the SSD must undertake under its statutory powers.
In HXA's case the child had not been taken into care but the SSD had agreed to undertake some "keeping safe" work. This might at least arguably mean that the SSD was assuming responsibility for the children sufficient to create a duty of care towards them.
Both cases had originally been struck out on the basis that there was no prospect of success, as no duty of care was imposed.
In overturning the orders striking out the claims, the Court did not consider that there was a sufficiently established body of case law in this area for the cases to be struck out, and they ought to be allowed to proceed to trial.
The Defendants have sought permission to appeal to the Supreme Court. If the appeal is allowed it is hoped that the Supreme Court will be able to grant greater clarity than the Court of Appeal decision, which leaves the door open for further such claims with little firm guidance as to the circumstances in which a duty of care might arise. It remains to be seen whether either case still gets to trial and if it does, whether the Claimants succeed.