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.
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‘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.
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.
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 |
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| Child Sexual Exploitation by Organised Networks |
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| Accountability and Reparations |
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| Children in Custodial Institutions |
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| The Internet |
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| Investigation into the Institutional Responses to Allegations of Child Sexual Abuse involving the late Lord Janner of Braunstone QC |
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| Children in the Care of Nottinghamshire Councils |
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| Child Sexual Abuse in the Anglican Church |
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| Child Sexual Abuse in Residential Schools |
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| Allegations of Child Sexual Abuse Linked to Westminster |
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| Protection of Children Outside the UK |
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| Children in the Care of Lambeth Council |
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| Child Sexual Abuse in the Roman Catholic Church |
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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:
- Negligent in its approval and supervision of the foster carers and placement of the claimants; and
- 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.
Author
Amy Clarke, associate
