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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> HXA v Surrey County Council [2021] EWHC 2974 (QB) (08 November 2021) URL: https://www.bailii.org/ew/cases/EWHC/QB/2021/2974.html Cite as: [2021] EWHC 2974 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
HXA |
Claimant/ Appellant |
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- and – |
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Surrey County Council |
Defendant/ Respondent |
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And Between |
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YXA (A Protected Party by his Litigation Friend THE OFFICIAL SOLICITOR) |
Claimant/ Appellant |
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- and – |
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[discontinued] (1) Wolverhampton City Council (2) |
Defendant/ Respondent |
____________________
Mr Paul Stagg (instructed by DWF LLP in the HXA appeal and Browne Jacobson LLP in the YXA appeal) for the Defendants/Respondents
Hearing date: 7th July 2021
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Crown Copyright ©
The Honourable Mrs Justice Stacey:
i) On the assumed facts in each case did the defendant local authority assume a responsibility towards the claimant so that a duty of care arguably arose as a result of the following particular behaviour by the defendants?
a) In HXA's case when:
i) the defendant placed her name on the child protection register on 28 July 1994, or
ii) in November 1994 when the defendant decided to undertake a full assessment with a view to initiating care proceedings but failed to do so, or
iii) on 27 January 2000 when the defendant resolved to undertake keeping safe work with HXA, but failed to do so?
b) In YXA's case when he was given intermittent accommodation provided by the local authority away from the family home under s.20 of the Act?
ii) Was it wrong to strike out the negligence claims on the basis that the law in this area is a developing area of law?
iii) Was it wrong to strike out the negligence claims on the basis that certain aspects of each claim would remain even if the negligence claims were struck out?
Law: (1) Legislative context
"(a) to safeguard and promote the welfare of children within their area who are in need; and
(b) so far as is consistent with that duty, to promote the upbringing of such children by their families" (s.17(1))
And
"(10) For the purposes of this Part a child shall be taken to be in need if –
(a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without provision for him of services by a local authority under this Part;
(b) his health or development is likely to be significantly impaired or further impaired without the provision of him for such services; or
(c) he is disabled".
"22(3)(a) to safeguard and promote his welfare; and
(b|) to make such use of services available for children cared by their own parents as appears to the authority reasonable in his case."
"where a local authority-
….
(b) have reasonable cause to suspect a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm,
the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child's welfare." (s.47(1))
Law: (2) case law: existence of a duty of care owed by public authorities.
"169. In determining the existence or otherwise of a duty of care in the three cases, Lord Toulson and Lord Reed applied the orthodox common law approach and the established principles of law. What follows is a distillation of the key general principles drawn from those cases. It is intended to provide the uncontroversial backdrop to the issues which I must decide in this case.
i) At common law public authorities are generally subject to the same liabilities in tort as private individuals and bodies. Accordingly, if conduct would be tortious if committed by a private person or body, it is generally equally tortious if committed by a public authority. It follows therefore that public authorities are generally under a duty of care to avoid causing actionable harm in situations where a duty of care would arise under ordinary principles of the law of negligence (Robinson at [33]).
ii) Like private individuals, public authorities are generally under no duty of care to prevent the occurrence of harm. In Michael, Lord Toulson said at [97]: "English law does not as a general rule impose liability on a defendant (D) for injury or damage to the person or property of a claimant (C) caused by the conduct of a third party (T): Smith v Littlewoods Organisation Ltd [1987] AC 270. The fundamental reason as Lord Goff explained is that the common law does not generally impose liability for pure omissions. It is one thing to require a person who embarks on action which may harm others to exercise care. It is another matter to hold a person liable in damages for failing to prevent harm caused by someone else".
iii) The distinction between negligent acts and negligent omissions is therefore, as Lord Reed said in Poole at [28] of fundamental importance. Lord Reed reflected that the distinction to be drawn could be better expressed as a "distinction between causing harm (making things worse) and failing to confer a benefit (not making things better) rather than the more traditional distinction between acts and omissions, partly because the former language better conveys the rationale for the distinction drawn in the authorities and partly because the distinction between acts and omissions seems to be found difficult to apply".
iv) Public authorities do not therefore owe a duty of care towards individuals to confer a benefit upon them by protecting them from harm, any more than would a private individual or body, see Robinson at [35]. Lord Reed continues at [36] "That is so, notwithstanding that a public authority may have statutory powers or duties enabling or requiring it to prevent the harm in question". The position is different if, on its true construction, the statutory power or duty is intended to give rise to a duty to individual members of the public which is enforceable by means of a private right of action. If, however, the statute does not create a private right of action, then "it would be to say the least unusual if the mere existence of the statutory duty (or a fortiori, a statutory power) could generate a common law duty of care". It follows that public authorities like private individuals and bodies generally owe no duty of care towards individuals to prevent them from being harmed by the conduct of a third party.
v) The general rule against liability for negligently failing to confer a benefit is subject to exceptions. The circumstances in which public authorities like private individuals and bodies may come under a duty of care to prevent the occurrence of harm were summarised by Tofaris and Steel in "Negligence Liability for Omissions and the Police" 2016 CLJ 128. They are (i) when A has assumed responsibility to protect B from that danger; (ii) A has done something which prevents another from protecting B from that danger; (iii) A has a special level of control over that source of danger; or (iv) A's status creates an obligation to protect B from that danger."
"if someone possessed of a special skill undertakes quite irrespective of contract to apply that skill for the assistance of another person who relies upon such a skill a duty of care will arise."
"80 As Lord Browne-Wilkinson explained in relation to the educational cases in X (Minors) v Bedfordshire [1995] 2 AC 633 (particularly the Dorset case), a public body which offers a service to the public often assumes a responsibility to those using the service. The assumption of responsibility is an undertaking that reasonable care will be taken, either express or more commonly implied, usually from the reasonable foreseeability of reliance on the exercise of such care. Thus, whether operated privately or under statutory powers, a hospital undertakes to exercise reasonable care in the medical treatment of its patients. The same is true, mutatis mutandis, of an education authority accepting pupils into its schools.
81 In the present case, on the other hand, the council's investigating and monitoring the claimants' position did not involve the provision of a service to them on which they or their mother could be expected to rely. It may have been reasonably foreseeable that their mother would be anxious that the council should act so as to protect the family from their neighbours, in particular by rehousing them, but anxiety does not amount to reliance. Nor could it be said that the claimants and their mother had entrusted their safety to the council, or that the council had accepted that responsibility. Nor had the council taken the claimants into its care, and thereby assumed responsibility for their welfare. The position is not, therefore, the same as in Barrett v Enfield [2001] 2 AC 550. In short, the nature of the statutory functions relied on in the particulars of claim did not in itself entail that the council assumed or undertook a responsibility towards the claimants to perform those functions with reasonable care.
82 It is of course possible, even where no such assumption can be inferred from the nature of the function itself, that it can nevertheless be inferred from the manner in which the public authority has behaved towards the claimant in a particular case. Since such an inference depends on the facts of the individual case, there may well be cases in which the existence or absence of an assumption of responsibility cannot be determined on a strike-out application. Nevertheless, the particulars of claim must provide some basis for the leading of evidence at trial from which an assumption of responsibility could be inferred. In the present case, however, the particulars of claim do not provide a basis for leading evidence about any particular behaviour by the council towards the claimants or their mother, besides the performance of its statutory functions, from which an assumption of responsibility might be inferred. Reference is made to an e-mail written in June 2009 in which the council's anti-social behaviour co-ordinator wrote to Amy that "we do as much as it is in our power to fulfil our duty of care towards you and your family, and yet we can't seem to get it right as far as you are concerned", but the e-mail does not appear to have been concerned with the council's functions under the 1989 Act, and in any event a duty of care cannot be brought into being solely by a statement that it exists: O'Rourke v Camden London Borough Council [1998] AC 188, 196.
83 I would therefore conclude, like the Court of Appeal but for different reasons, that the particulars of claim do not set out an arguable claim that the council owed the claimants a duty of care. Although X (Minors) v Bedfordshire [1995] 2 AC 633 cannot now be understood as laying down a rule that local authorities do not under any circumstances owe a duty of care to children in relation to the performance of their social services functions, as the Court of Appeal rightly held in D v East Berkshire [2004] QB 558, the particulars of claim in this case do not lay a foundation for establishing circumstances in which such a duty might exist."
i) In 1996 the defendant had commissioned a psychological assessment of the claimants' parents conducted by the Reaside psychiatric unit, a specialist forensic centre dealing with sex offenders, to assess the risk of harm to the children in the light of the father's convictions for indecent assault and both parents' learning difficulties. The report, received in January 1997, recommended monitoring for the family. It was the claimants' case that the defendant had "assumed responsibility to the existing children of father for their protection" by undertaking the monitoring work recommended by the Raeside report and by purporting to provide the help that was recommended in the report. By doing so the defendant had assumed responsibility for the claimants' welfare and to keep them safe from the foreseeable risk of harm posed by their father whilst they remained in contact with him.
ii) In February 2002 the defendant assessed the children as being at risk of significant harm and that the criteria for instituting care proceedings under s.31 of the Act had been met. It was the claimants' case that when the defendant decided that the issuing of care proceedings was necessary it had assumed responsibility to the claimants for competently pursuing those proceedings.
iii) By taking on direct work with the claimants and the family through Gill Kane, family support worker and also by providing eight sessions of direct work with the children through Ms Kaur.
"The only allegation with real causative potency is the failure to commence proceedings which would have led to the claimants being removed from the family….and that the omission alleged is a failure by the local authority to exercise a statutory function" [194 - 195].
"199. I conclude that whilst the fact that a public authority is operating within a statutory scheme does not of itself generate a common law duty of care, it does not follow that a failure to exercise a statutory function, including taking a step which can only be taken lawfully by statute, can never be compensable at common law. Whether a duty of care is generated by (on the facts of this case) an assumption of responsibility depends upon whether there is, putting it colloquially, "something more": either something intrinsic to the nature of the statutory function itself which gives rise to an obligation on the defendant to act carefully in its exercising that function, or something about the manner in which the defendant has conducted itself towards the claimants which gives rise to a duty of care. As Lord Reed made clear, and as Ms Gumbel submits, this question is one which is "fact sensitive"."
"A recommendation that care proceedings be commenced for the purpose of sharing parental responsibility cannot, it seems to me, be described as a positive act which had the effect of generating a duty of care, nor characterised as the provision of advice or service upon which the claimants might reasonably foreseeably rely, so giving rise to a duty of care to act carefully" [204]
Law: (3) strike out
"89. The existence of an assumption of responsibility can be highly dependent on the facts of a particular case, and where there appears to be a real possibility that such a case might be made out, a court will not decide otherwise on a strike-out application. In the circumstances which I have described, however, the particulars of claim do not in my opinion set out any basis on which an assumption of responsibility might be established at trial."
"If, on the facts alleged in the statement of claim, it is not possible to give a certain answer whether in law the claim is maintainable then it is not appropriate to strike out the claim at a preliminary stage but the matter must go to trial when the relevant facts will be discovered"
Judgment below: HXA
"As for the particular examples cited, the Defendant's response to those is compelling and, in my judgment, correct as an application of the law:
i) The features relied upon in the first example also arose in Poole, where one of the children was placed on the child protection register and there were s.47 investigations into allegations of significant harm. There is nothing which places this in a different category from what went before, such as carrying out assessments and having meetings with partner organisations. I agree with the observation made that it is a distinction without a difference, in the circumstances. It is no more a service provided for the children than it was in the Poole case. That is not a factual circumstance which can arguably give rise to an assumption of responsibility.
ii) The assertion that consideration being given to applying for a care order must amount to an assumption of responsibility does beg the question, why? It is difficult to see how taking advice from a legal officer in the Council changes the way in which the Council is holding itself out in terms of its child protection functions. It is not a significant further step especially given that there is no allegation that any proceedings were issued. Again, I do not accept this is a factual circumstance which can arguably give rise to an assumption of responsibility.
iii) If a child protection plan has been drawn up and implemented, as in Poole, but no duty arises, it is difficult to see how this is changed by saying that some advice is going to be given. There is no allegation that inappropriate advice was given, it is simply an allegation of omission. That does not amount to an assumption of responsibility." [31]
"A duty of care is recognised to arise when a care order is made, because the local authority has parental responsibility. But up until that point, parental responsibility remains unequivocally with the parent(s). A duty of care cannot, in my view, effectively be reverse engineered from the point at which a duty arises on the making of a care order, in the way that the First Claimant 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." [33]
"even if I accepted the proposition that only minimal savings would be made, that could not, alone, trump the need to make a decision under CPR 3.4(2)(a) or permit a large proportion of a claim to proceed to trial where a party had established the threshold for striking out those parts of the opposing party's claim. But, here, the defendant is correct to observe that there will in all probability be significant savings of time, costs and court resources if the case is shorn of the relevant claims"
"In reality, whilst there are naturally some factual differences, there is much overlap in the process of monitoring, investigation and assessment carried out by the local authority in Poole and the present case. Poole cannot sensibly be distinguished from this case in terms of the appropriate legal analysis to be applied to the respective factual matrices when considering the question of duty of care."
Judgment below: YXA
"It seems to me that there is nothing materially different between this case and N v Poole. On the pleaded case, the defendant had (or should have had) the knowledge of significant harm (or the risk of it) and the power to intervene. The same existed in N v Poole but that was held as insufficient to amount to any assumption of responsibility; and paragraph 81 made clear that even a decision to investigate and monitor was not sufficient to create any duty. This, like N v Poole, is a pure non-intervention case where the ability to intervene existed; but where it was held that no duty existed to take steps to confer a benefit by way of protecting from harm from others" [82]
"The argument seems to me to divide into two sub-questions, being (1) whether the provision of the Respite Care accommodation gave rise to a more general duty of care including to consider taking care proceedings generally and (2) whether it could give rise to a specific duty of care regarding whether the Claimant should actually be returned to the Parents at the end of the agreed Respite Care Period[3], at least without care proceedings having been considered and if appropriate taken." [92]
Claimants' submissions
Defendant's submissions
Analysis and discussion
"merely because something can be presented as an act does not mean that what are, on a proper analysis, omissions can be, as the judge put it, "brought wholesale within the parameters of a duty of care"" [121]
Or to put it colloquially, to fail to see the wood for the trees.
Conclusions
Note 1 The full facts of the case are set out in the judgment in DFX at paragraphs 45 – 164.
[Back] Note 2 The judgment uses the term “respite care” which Mr Levinson objected to as inaccurate since he stated that the purpose of the s.20 accommodation was to protect YXA, not to provide respite for his parents. A neutral term is used in this judgment. For the sake of completeness I record that Mr Stagg noted that the claimant had not pleaded the reason why accommodation had been provided to YXA, (from the various powers given to the defendant in s20 to provide accommodation) and he made no admissions. [Back]