Child Abuse Negligence Claim Against Local Authority Fails
09/14/2021
YXA v Wolverhampton CC [2021] EWHC 1444 (QB)
YXA v Wolverhampton CC is one of several ‘failure to remove’ cases that have come before the Courts recently. The commonality in such cases, which includes N v Poole BC [2019] UKSC 25, [2020] AC 780, HXA v Surrey CC [2021] EWHC 250 (QB), and DFX v Coventry CC [2021] EWHC 1382 (QB) is that the Claimants were all placed in accommodation by a local authority under section 20 of the Children Act 1989. Section 20 sets out several duties applicable to local authorities. These include:
- A local authority must accommodate a child living ‘within their area’ who lacks anyone with parental responsibility for them, has been abandoned, or whose carer has “been prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care”.
- Accommodate any child aged 16 years or under whose welfare “is likely to be seriously prejudiced” if a home is not found.
- Provide local accommodation “if they consider that to do so would safeguard or promote the child’s welfare”.
Section 20, therefore, affords local authorities with the power to accommodate a child to provide respite care to parents, in cases where there is a temporary family crisis and no one can care for the child, or where both the parents and local authority agree that the child should be in medium or long-term care.
The fundamental difference between section 20 placements and a Care Order is that anyone with parental responsibility can take the child out of the provided accommodation at any time.
YXA v Wolverhampton CC is the first case to consider whether a local authority when placing a child in accommodation under section 20, assumes responsibility for that child and therefore owes them a duty of care.
Background to the case
The Claimant, C, was a severely disabled young man who suffered from epilepsy and autism. Throughout his childhood, his parents engaged in substance abuse. He argued that the Defendant, D, knew or should have known, from several reports concerning the matter, the risks of harm he faced (and endured) at the hands of his parents after he moved to Wolverhampton at the age of six years.
C stated that D had provided temporary accommodation for him under section 20 of the Children Act 1989 but he was always returned to his parents. D only took positive steps to start care proceedings in 2009 when C was eight years old.
C stated that D should have instigated care proceedings sooner. He pleaded:
i) a "general duty" that a local authority that had knowledge of, or of a potential possibility of, harm or risk of significant harm to a child in its area, owed a duty of care to the child to consider care proceedings.
ii) a "respite care duty" that where the local authority had provided the child with accommodation under section 20 then that would give rise to a general duty of care to consider care proceedings.
D argued that no duty of care existed sufficiently enough to bring about an action for common law negligence. If the facts of C’s case were proven, he may have a claim under section 7 of the Human Rights Act 1998.
The Court’s decision
Master Dagnell struck out C’s claim. He stated that there was no duty of care arising out of section 20 accommodation placements as parental responsibility remained with the parents at all times. Once a local authority places a child in temporary accommodation pursuant to section 20, it has a duty to ensure when the child is returned home that home is a safe environment. In this case, there was no evidence that this duty was not met.
Considering the Supreme Court case of N v Poole [2019] UKSC 25, Master Dagnell concluded (emphasis added):
“It seems to me that there is nothing materially different between this case and N v Poole. On the pleaded case, the defendant had (or should have had) the knowledge of significant harm (or the risk of it) and the power to intervene. The same existed in N v Poole but that was held as insufficient to amount to any assumption of responsibility; and paragraph 81 made clear that even a decision to investigate and monitor was not sufficient to create any duty. This, like N v Poole, is a pure non- intervention case where the ability to intervene existed; but where it was held that no duty existed to take steps to confer a benefit by way of protecting from harm from others.”
Comment
Master Dagnell’s extremely detailed and considered judgment makes for worthwhile reading for anyone who requires an understanding of section 20 of the Children Act 1989 and how it interplays with the common law duty of care.
You can read the full judgment here.
