Claims involving failure to remove children from harmful environments: empathy, analysis and legal boundaries

Claims against local authorities involving allegations that they didn’t remove children from harmful environments are some of the most complex cases. They’re emotionally charged, involve deeply difficult histories, and are often pursued years after the events took place.

For claims professionals, these cases require genuine empathy and respect for claimants, and a solid understanding of the legal limits of public authority responsibilities.

Over the years, courts have clarified the conditions under which local authorities can be held liable. These rulings have reduced the circumstances in which liability applies.

Zurich has been part of all the cases discussed here, collaborating closely with customers and panel solicitors. We understand that defining legal liability doesn’t lessen the seriousness of the abuse claimants have experienced. This article aims to explain the courts' stance on legal responsibility, not to assign or deny moral blame.

Starting with CN v Poole BC in 2019 through AB v Worcestershire CC & Birmingham and HXA/YXA in 2023, the Courts have outlined clear guidelines on when local authorities are responsible. Recent cases like SZR v Blackburn with Darwen BC in 2024 show that while suing under common law is limited, claims under the HRA rely heavily on specific details.

This article explains how the law now stands, what it means for these claims, and how Zurich has supported customers through some of the toughest legal battles.

Failure to remove claims: legal and practical context

These cases don’t accuse local authorities of committing harm themselves. Instead, they argue the authority failed to act early enough, usually by not removing a child from a harmful home environment.

‘Failure to remove’ claims sit at the crossroads of public law responsibilities, negligence laws and human rights obligations. They often involve hindsight analysis of real-time safeguarding decisions, made with incomplete information and multiple risks in play. Courts have repeatedly noted that tragic outcomes alone don’t establish a legal liability.

CN v Poole Borough Council: clarifying legal duty

The starting point is the Supreme Court decision in CN v Poole Borough Council [2019] UKSC 25. Although this case wasn’t directly about abuse, it set principles that now apply to safeguarding claims. The Court ruled that local authorities don’t automatically owe a duty of care just because they carry out statutory child protection duties. For example:

• Simply carrying out statutory functions doesn’t create responsibility for a child’s welfare
• Foreseeing potential harm isn’t enough to prove liability
• Negligence claims must show a recognised duty of care, not general criticisms of how powers were used

In essence, local authorities can’t be held liable just because they fulfil statutory duties. This case established the groundwork for later child protection rulings and made it clear that proving negligence requires a high threshold.

DFX & Others v Coventry City Council: putting Poole into practice

A clear example of how CN principles work in practice is DFX & Others v Coventry City Council [2021] EWHC 1382 (QB). This case involved six children. They argued the council should have removed them from their mother’s care earlier due to serious concerns about neglect, poor home conditions, and their behaviour.

The High Court dismissed their claim. The judge decided the council didn’t owe a duty of care in negligence just because it was working with the family or carrying out safeguarding duties. While some mistakes were identified, they didn’t break any common law duty. The council hadn’t taken responsibility for the children, like putting them in care, so there was no duty to act.

The judge also pointed out how tough social work decisions can be. These decisions often rely on incomplete information and involve weighing up risks. Sadly, harm happening doesn’t automatically mean the professionals made a mistake or were negligent.

HXA/YXA: applying Poole to child protection decisions

The Supreme Court recently made decisions in the cases of HXA v Surrey County Council and YXA v Wolverhampton City Council [2023] UKSC 52. These rulings applied the principles from the CN case specifically to child protection and abuse claims.

Both cases involved claimants who argued that their local authorities failed to act sooner to remove them from harmful environments. The Supreme Court rejected the claims and clarified the following:

• Investigating concerns, monitoring families, and making safeguarding decisions do not automatically create a legal duty of care
• Just knowing about a risk doesn’t mean the local authority has taken legal responsibility for the child
• Negligence liability typically arises only when the local authority has formally taken responsibility. For example, by placing the child in care under a care order

The Court also pointed out a risk of unintended consequences, making local authorities legally liable in these cases could lead to overly cautious decisions by children’s services and hinder effective safeguarding.

The HXA/YXA rulings set a high standard, showing that, without exceptional circumstances, common law claims about failure to remove a child are very difficult to pursue.

Human Rights Act: an alternative option?

Since common law negligence claims have been narrowed significantly, many claimants now turn to the Human Rights Act 1998, particularly Article 3 of the European Convention on Human Rights.

An Article 3 claim argues there was a failure to protect a child from inhuman or degrading treatment. This is a tough test to meet. Claimants must show that the local authority:

• knew, or should have known, about a real and immediate risk of such treatment; and
• failed to act reasonably within its powers to protect the child

The Courts aim to ensure that Article 3 claims do not become a backdoor route for claims already barred under negligence law.

AB v Worcestershire: reaffirming a high threshold

In AB v Worcestershire County Council & Birmingham City Council [2023] EWCA Civ 529, the Court of Appeal considered whether alleged safeguarding failures crossed the high Article 3 threshold. The claim did not succeed.

The Court emphasised the following:

• What matters is what the local authority knew at the time, not what hindsight reveals
• Article 3 claims can’t be used to re-argue negligence claims that Courts have already dismissed
• Local authorities have some discretion when balancing actions to protect a child against the risks associated with removing them from their family

While this case does not rule out the possibility of neglect leading to an Article 3 breach, it confirms only particularly severe situations will meet the threshold.

SZR v Blackburn: arguing the Human Rights route

In SZR v Blackburn with Darwen Borough Council [2024] EWHC 598 (KB), the High Court allowed a Human Rights Act (HRA) claim to proceed, despite prior rulings like CN, HXA/YXA, and AB.

The case involved serious and prolonged neglect of a vulnerable child. The local authority sought to have the claim dismissed early, but the Court disagreed. It found it arguable that:

• the neglect reached the high Article 3 threshold;
• the local authority was aware of a real and immediate risk; and
• it failed to act reasonably, such as by bringing care proceedings to remove the child

The Court made it clear it wasn’t deciding whether the claim would succeed but said it wasn’t suitable for dismissal without a full trial due to factual disputes. This confirms that claims under the Human Rights Act remain possible, but the Article 3 standard remains high.

Balancing sympathy and legal responsibility

In all these cases, the Courts have carefully separated compassion for claimants from legal liability. Many claimants have experienced profound harm, and their stories deserve respect and understanding.

However, the Courts consistently hold that not all tragic outcomes are due to negligence by local authorities. For claims handlers at Zurich Municipal, this distinction helps guide our decision-making. Our teams follow clear, detailed guidelines for managing these sensitive cases with care and fairness.

How does Zurich Municipal support its customers?

At Zurich Municipal, we understand these are complex times for customers dealing with sensitive claims. We’re here to help, recognising the legal, operational, and reputational challenges involved.

Here’s how we’ve supported our customers:

• We’ve involved specialist lawyers early to ensure alignment with the latest Supreme Court and appellate guidance
• We focus on making decisions based on current facts, not hindsight, often with the help of independent child protection experts
• We keep in close contact with customers, understanding how these claims can impact their operations and reputation

What does this mean for claims teams?

There are some key lessons from recent case decisions:

• Claims of common law negligence for failure to remove are now very hard to pursue
• HRA claims are still possible but tightly restricted and depend very much on the specific facts
• Keeping detailed records explaining safeguarding decisions is absolutely crucial
• Claims can be managed firmly but must still be handled with sensitivity

Where do things stand now?

The legal landscape for ‘failure to remove’ claims have shifted significantly in the last decade:

• Following CN and HXA/YXA cases, it’s now hugely challenging to sustain common law negligence claims based on alleged failure to protect children
• HRA claims, while possible, are tightly limited. As confirmed in the AB case, they’re only for situations where there’s clear knowledge of serious risk and a failure to take reasonable protective steps
• Cases like SZR show that HRA claims can sometimes proceed to trial when the facts are severe and disputed. That doesn’t mean infringement is guaranteed, though

While the rules around common law negligence are clearer, how the HRA applies to ‘failure to remove’ cases is still evolving. It’s likely we’ll see further test cases, potentially going to the Supreme Court, which could offer more clarity in years to come.

Until then, our focus remains clear: be realistic legally, recognising the limits of current laws and show humanity and sensitivity, respecting the people behind these claims.

Our approach remains a balance between firm legal defence of our customers and compassionate claims handling. That’s how we’ll manage these complex cases effectively.

Authors:

Dave Hall, Senior Claims Technician, Specialist Casualty Claims

Steven McGhee, Head of Specialist Casualty Claims