‘Failure to remove’ claims against social services – DXF v Coventry CC [2021]

Ever since CN & GN v Poole BC [2019] UKSC 25 (‘Poole’) we have been waiting for decisions applying the principles identified by Lord Reed. We have reported on some of these decisions, but now have the first authoritative decision applying these principles to a ‘standard’ claim for failure to remove: DXF v Coventry CC [2021] EWHC 1328 (QB).

The claimants are four children, who were removed and taken into care in 2010, after 15 years of social services involvement.  They alleged that Coventry City Council failed to remove them into care, and pointed to known concerns in 2002, 2003 and 2009 about the risk of sexual abuse by a third party known to the family, a report that one child had been sexually abused by that person, and later reports that other claimants were indecently assaulted by their father.  Criticism focussed on the investigation of child protection concerns and the instigation of care proceedings.

The trial in the High Court was heard in late 2020 and early 2021.  Judgment was handed down on 24 May 2021.  Mrs Justice Lambert found that the long period of social services involvement was a failure to provide a benefit (para. 195), and that no assumption of responsibility arose on the facts (para. 209). She also found for the council both on breach (para. 243 & 246) and causation (para. 251).  The carefully argued judgment is likely to have an impact on how future ‘failure to remove’ claims are decided and formulated. Adam Weitzman QC and Caroline Lody of 7 Bedford Row appeared for Coventry City Council. You can find their helpful note here.

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

Scottish Child Abuse Inquiry (SCAI) update

SCAI is now sitting again to hear evidence in public session from Tuesday 10 September 2019. Between 10 September and 5 November 2019, SCAI plans to conclude hearing evidence and submissions for its Phase 4 case studies on residential care establishments run by male religious orders.

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IICSA update

As IICSA continues to progress, we summarise recent and forthcoming developments in relation to its investigations.

Investigations Key Updates from the Inquiry
Cambridge House, Knowl View and Rochdale
  • Public hearings were held from 9-27 October 2017. Evidence from the hearings is available online.
Child Sexual Exploitation by Organised Networks
  • The Inquiry is not accepting applications for Core Participant (CP) status or requesting evidence currently.
  • The Inquiry is encouraging all victims and survivors of child sexual abuse to share their experience.
Accountability and Reparations
  • Public hearings will be taking place 26 November – 13 December 2018.
Children in Custodial Institutions
  • The first preliminary hearing took place on 1 February 2018.
  • Key issues for this investigation include: prevalence and culture issues, response issues, safeguarding systems and recommendations.
  • The Inquiry received 4 applications for designation as a CP. The Chair granted applications to the MoJ, the SoS for Education and Metropolitan Police. One reapplication was heard during the preliminary hearing.
  • Public hearings to be held 9 July 2018 for approximately 2 weeks.
The Internet
  • A week of public hearings was held from 22-26 January 2018.
  • Applications will be requested for more CPs in due course.
Investigation into the Institutional Responses to Allegations of Child Sexual Abuse involving the late Lord Janner of Braunstone QC
  • April 2017 the Inquiry published a Notice of Determination and revised the scope of this investigation. No preliminary hearing for oral submissions to be held.
  • No other significant updates.
Children in the Care of Nottinghamshire Councils
  • Second preliminary hearing held on 31 January 2018.
  • There are 90 CPs including 83 of whom are individuals who allege that they were sexually abused whilst in the care of Nottinghamshire Councils.
  • Public hearings to be held in October 2018.
  • From the list of 31 homes/thematic case studies, the 4 proposed are:
  1. Beechwood – institutional responses to disclosures of non-recent child sexual abuse or to contemporaneous and recent disclosures of allegations of sexual abuse by Andris Logins care workers at Beechwood in the 1980s;
  2. Foster care – institutional responses to disclosure of allegations by children placed in foster care in Nottinghamshire;
  3. Peer on peer abuse – institutional responses to disclosures of allegations of peer on peer abuse in residential children’s homes;
  4. Wollaton House – institutional responses to disclosures of allegations of child sexual abuse in the home.
  • The Chair re-emphasised that this investigation along with those into Lambeth Council and Rochdale institutions focuses on the experiences of children in institutions operated or overseen by local authorities.
Child Sexual Abuse in the Anglican Church
  • A further preliminary hearing was held on 30 January 2018
  • The first public hearing in relation to the Chichester Dicoese case study will commence for 3 weeks on 5 March 2018. There are twenty themes and issues being considered.
  • Further public hearings relating to Peter Ball will be heard commencing 23 July 2018 and in to the wider Anglican Church in 2019.
Child Sexual Abuse in Residential Schools
  • Currently no CPs designated.
  • No significant updates.
Allegations of Child Sexual Abuse Linked to Westminster
  • A preliminary hearing was held on 31 January 2018. A number of individuals, including Daniel Janner QC, reapplied for CP status.
  • This investigation will focus on the way Westminster institutions dealt with and responded to allegations. The Inquiry will not review recent high-profile police investigations but simply attempt to bring together as many of the basic facts related to these issues as possible.
  • The Inquiry have confirmed they do not anticipate this investigation will make any findings as to whether high profile politicians such as Edward Heath or Cyril Smith did or did not commit acts of child sexual abuse of which they have been accused.
  • The possible scope of this investigation could include the following areas:
  1. Interference;
  2. Improper influence on prosecutors;
  3. Inappropriate reactions from party leaders to warnings;
  4. What did various Whips Offices do;
  5. How did the ‘honours system’ secretariat react to allegations;
  6. What was the Paedophile Information Exchange and did it have influence in Westminster.
  • Further preliminary hearings will be held before the public hearings. Dates will be announced on the Inquiry’s website.
  • 3 weeks of public hearings will take place on 4 March 2019.
Protection of Children Outside the UK
  • The Panel’s report into the Child Migration Case Study is expected to be published shortly.
  • Public hearings for other aspects of this investigation will commence on 11 February 2019.
Children in the Care of Lambeth Council
  • No significant updates.
Child Sexual Abuse in the Roman Catholic Church
  • Initial hearings which focused on the Benedictine Order, in particular at Ampleforth and Downside were held in November.
  • Further public hearings relating to the Archdiocese of Birmingham case study will take place from 12-16 November 2018.
  • Public hearings relating to the Ealing Abbey case study will commence on 4 February 2019.

MIRIAM Written by Miriam Rahamim, solicitor at BLM

Sexual abuse and foster care

The issue of vicarious liability for foster parents in cases where there have been allegations of sexual abuse remains a fertile ground for litigation with another judgment handed down this week, whilst the Supreme Court is likely to hear the appeal in NA in early 2017.

In VN & SN v London Borough of Brent, VK & AK [2016] EWHC 936 (QB). the claimants alleged that they were physically, sexually and emotionally abused by their foster carers.

It was contended on behalf of the claimants that the defendant local authority was:

  1. Negligent in its approval and supervision of the foster carers and placement of the claimants; and
  2. Strictly liable on the basis of vicarious liability and a non delegable duty.

Sir Robert Nelson found that the claimants had not established their allegations of abuse.  However in obiter comments he noted that had abuse been established he would have been bound by the NA decision and thus have rejected the claimants’ arguments on both vicarious liability and non delegable duty. He considered that the claimants attempt to distinguish their claim from that in NA did not succeed because “the Children Act 1989 and subsequent regulations did not affect the heart of the decision in NA.”

It is clear that vulnerable children when placed in foster care should be safe and any abusive behaviour can only be condemned. However extending vicarious liability or the doctrine of a non-delegable duty to cover foster parents seems to be an extension too far because of the wider implications that would have for the ability of foster parents to provide a family environment to the children in their care. It is clear however that this will continue to be a subject for consideration by the courts and in due course possibly by the IICSA.


Amy Clarke, associate