‘Failure to remove’ and voluntary accommodation

YXA v Wolverhampton CC [2021] EWHC 1444 (QB)

Decisions applying the principles identified by Lord Reed in CN & GN v Poole BC [2019] UKSC 25 (‘Poole’) are coming thick and fast. 

  • Last week Master Dagnall struck out a claim for failure to remove in which the claimant had been accommodated under section 20 of Children Act 1989: this is called voluntary accommodation. Initially the claimant received regular respite care (one night every fortnight, plus one weekend every two months).  Later he was placed with foster carers with the agreement of his parents. Throughout there were concerns about the care provided by the parents. The claimant was eventually removed and taken into care.  He argued that he should have been removed sooner.

The claim was formulated in two ways: first, the council owed a duty of care due to its close involvement with the family (the ‘general duty’), secondly, the council owed a duty of care due to the provision of accommodation (the ‘specific duty’).  Master Dagnall rejected both propositions.  He also looked at previous decisions and considered the statutory provisions carefully.  He found that section 20 did not of itself give rise to a duty of care.  Also, on the facts, the council had not created the danger by returning the child to his parents.  He struck out the claim in negligence, but the claim under the Human Rights Act 1998 will proceed.. You can find the judgment here. We do not know if the judgment will be appealed.

Paul Stagg of 1 Chancery Lane appeared for Wolverhampton City Council.  His useful note can be found here.

These decisions provide welcome clarity but should be handled with care as some of the strike-out decisions are subject to appeal. 


Written by Geneviève Rich at BLM 
genevieve.rich@blmlaw.com

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