What will become of failure to remove cases?
Claims in negligence for failure to remove became increasingly common after the case of D v East Berkshire (CA, 31 July 2003). Courts were asked to scrutinise the actions of social services when investigating child protection concerns or deciding whether to start care proceedings. This run of cases stalled after the Supreme Court decision on CN & GN v Poole BC (SC, 6 June 2019). In CN, Lord Reed ruled that local authorities could not avoid liability on public policy grounds, but he distinguished between cases where they made things worse (‘positive acts’) and cases where they failed to make things better (‘pure omissions’). A duty of care existed for positive acts, but not for pure omissions usually.
There are two main ways in which social services owe a duty of care to children:
- if social services made things worse (e.g. they took a child in care when they should not have done so), or
- if social services did not make things better (e.g. they failed to remove a child at risk of harm from their parents’ care) AND the circumstances fall under one of three exceptions: (1) creation of risk/danger; (2) liability for the acts of a third party; (3) assumption of responsibility.
CN had been decided on unusual facts. As such, questions remained about applying CN to the more usual circumstances, and whether such cases could be distinguished from CN. We are now seeing more decisions at first instance on the scope of the exceptions – especially assumption of responsibility – and the suitability of a strike out.
The recent case of HXA v Surrey CC (HC, 15 February 2021) provides a helpful consideration of both points. This is a classic failure to remove case, where children suffered physical neglect via their mother and sexual abuse by one of her partners. The claimants tried to distinguish the case from CN and argued that an exception applied. The defendant rejected these submissions (save for one narrow point). Deputy Master Bagot QC agreed with the defendant on the exceptions and the strike out. But there are other cases making their way through the courts, and decisions can go either way. Paul Stagg, who appeared for the defendant in the HXA case, provides a useful update here.
Some issues need further testing (such as what happens when a child is placed in voluntary accommodation under s.20 of the Children Act 1989). Some concepts (e.g. reliance) may need refining. We expect more clarity when cases reach the Court of Appeal. We will also see more claims under the Human Rights Act 1998.
It is too early to say whether this is the end of the road for failure to remove claims.