HXA v Surrey County Council [2023] UKSC 52
Citation: HXA v Surrey County Council [2023] UKSC 52
Rule of thumb: If a complaint is made to social work about a child being abused by their parent/guardian, is the Council liable for this? As a general rule, no, unless it can be shown that there was an ‘assumption of responsibility’ with actual knowledge (very difficult to prove).
Background facts: The basic facts of this case were that children were abused by their parents. Concerns were raised with the Council about this, and once these concerns became serious concerns a full investigation took place. The investigation did not lead to any clear conclusion on the allegations. The children continued to be abused by parent/guardian after this investigation was closed.
The children argued that the social department failed in their common law duties to investigate this matter properly & had breached the Children’s Act 1989, so they were liable for the abuse after they investigated it & did not remove the children from care. The Council argued that although complaints had been made, there was no clarity in the evidence after a serious & extensive investigation – the accusations had not reached the point of clarity where they had to ‘assume responsibility’ in the case so they were not liable for damages.
Court held: The Court did not uphold the claims of the children & upheld the arguments of the Local Council. There was not sufficient evidence for the Council to be absolutely clear about what was happening – there was no ‘assumption of responsibility’ reached, & just because this has been reported & investigated then continued to happen does not give an automatic claim.
Ratio-decidendi:
45. The claimants brought proceedings against the authority alleging that they had suffered physical and psychological harm as a result of the authority's breach of its common law duty of care to protect them from such abuse, derived from its statutory duties under sections 17 and 47 of the 1989 Act. Accordingly, N v Poole was concerned with the liability of a local authority for what was alleged to have been a negligent failure to exercise its social services functions so as to protect the children from harm caused by third parties. The principal question of law which the appeal in N v Poole raised was "whether a local authority or its employees may owe a common law duty of care to children affected by the manner in which it exercises or fails to exercise [its social services functions], and if so, in what circumstances." (para 1)… 87. It is clear that a local authority has relevant statutory duties and powers under, for example, the 1989 Act (see paras 22-33 above). It is also established law (see para 21 above), as laid down in X (Minors) v Bedfordshire CC, that, in respect of such duties and powers, there is no cause of action for the tort of breach of statutory duty even if the breach of statutory duty is a negligent breach. That does not mean that the common law tort of negligence has been excluded by statute. The statute is, in that respect, neutral. But what it does mean, as emphasised in N v Poole (see para 49 above), is that the courts must decide whether there is a duty of care at common law by applying to the public authority the same principles that would be applied if the public authority had been a private individual… (d) These cases are indistinguishable from N v Poole...
101. The denial of an assumption of responsibility in these two cases is, in any event, dictated by the decision that there was no assumption of responsibility in N v Poole. Given that in N v Poole there was no assumption of responsibility to protect children from their abusive neighbours, it is hard to see how there was an assumption of responsibility in our cases to protect the children from the abuse by a parent or parent's partner… 109. Applying the leading case of N v Poole, there was no assumption of responsibility by the defendant local authorities to use reasonable care to protect HXA and YXA from abuse by a parent or parent's partner. Expressed at a more granular level, the particulars of claim provide no basis for the leading of evidence at trial from which a relevant assumption of responsibility can be made out. It follows that there is no arguable duty of care owed as alleged and the claims in both cases were correctly struck out at first instance. For all the reasons we have given, we would allow the appeals’. Lord Burrows
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.