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'Failure to remove' claims: a summary of the Court of Appeal hearing in YXA v Wolverhampton City Council and HXA v Surrey County Council

12 May 2022

On 10 and 11 May, the parties appeared before Lord Justice Baker, Lord Justice Lewis, and Lady Justice Laing for the conjoined appeal of two cases concerning the issue of whether the defendant local authorities owed a duty of care to keep the claimants safe from the foreseeable risk of injury from their respective families. This article provides a summary of the issues raised in the two-day hearing.

Elizabeth-Anne Gumbel QC and Justin Levinson, representing both claimants, appealed prior orders dismissing the claimants' appeals against the strike out of parts of their claims and the consequent costs orders made.

10 May 2022

Ms Gumbel QC took the court through what the claimants felt were the relevant considerations, which related to the overarching question of determining the circumstances in which a local authority or its social workers, for whom it would be vicariously liable, owe a duty of care to a child for whom a local authority is providing child protection services:

  • What is the task of a social worker?
  • Would a social worker or social workers be compliant in providing information to the local authority about children in their area, or does the duty of the social worker/s and the local authority extend to providing services to the children themselves who are at risk and who require protection?
  • Are social workers professionals whose actions can be judged by the Bolam test and who will be in breach of duty of care to a child in their actions if they fall below that of a competent social worker?

Tuesday's proceedings were largely devoted to Ms Gumbel QC's submissions on the various authorities touching upon the assumption of responsibility, integral to the claimants' appeal, with Baker LJ raising the point before the recess for lunch on the first day of the appeal, "if DFX is rightly decided, that's the end of this appeal, it could be said".

The claimants submitted that the assumption of responsibility, and therefore the duty of care, arose when the local authority agreed to look into a particular complaint raised by YXA.

Lewis LJ made the point that "the existence of a statutory power to investigate and the ability to prevent somebody being harmed by a third party doesn’t, on one reading of Poole, equal liability – there needs to be something over and above… The question is what, then, takes it outside the public law sphere and into the private law – and they must pay damages if they get it wrong?"

Lord Edward Faulks QC and Paul Stagg for the respective defendants submitted that Poole was effectively settled law on the point, making matters sufficiently clear and that the cases of HXA and YXA could not ultimately be distinguished from Poole.

11 May 2022

The second day of the appeal saw the defendants conclude their submissions. Their case is that there is no duty on the part of a local authority to protect a claimant from the acts of a third party, as per Poole. The defendants' counsel highlighted that the Supreme Court held that mere non-exercise of a power does not – if it is in the course of a statutory scheme – give rise to a duty of care.

The court further heard closing submissions from the claimants' counsel. Judgment was reserved to be handed down at a future date.

Watch the proceedings

The appeal was selected for live streaming, and the footage of the proceedings can be viewed on the Court of Appeal YouTube channel: Court of Appeal - Civil Division - Court 71 - YouTube

DWF acts on behalf of the local authority in the matter of HXA v Surrey County Council. For more information, please contact Mark Whittaker.

Further Reading