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Court of Appeal outlines a local authority’s duty to children in care

Two adults have won the right to bring claims against their local authorities for failing to provide adequate protection for them when they were children. 

The cases involved two claimants, known only as H and Y, who had both been subject to investigations by social services as children. 

H’s local authority became concerned about abuse and neglect by her mother. Social services had conducted five investigations and H’s name had been on the child protection register.  

The local authority resolved to initiate care proceedings, but never did so.  

Later, further concerns were raised about sexual abuse by the mother’s partner. The authority didn’t investigate and decided to carry out “keeping safe” work with H.  

Y suffered from epilepsy, learning disabilities and autism. When he was six, his local authority became concerned about his parents’ ability to care for him.  

He spent regular periods with foster parents before being placed into long-term care.  

Both H and Y brought claims on the basis that the local authorities had taken on a position of responsibility for their wellbeing.  

However, a master and deputy master decided that the authorities could not be said to have assumed responsibility and that it was not arguable that they owed a common law duty of care. They struck out the claims. 

That decision has been overturned by the Court of Appeal. 

In its ruling, the Appeal Court provided clarity on when a local authority can be seen to have assumed responsibility for the wellbeing of a child.  

Whether a duty arose would always depend on the specific facts of the case.  

The duty of care was not automatically applied as a result of a local authority’s general duties, but could arise if, within the circumstances surrounding the specific case, the local authority took a specific action that amounted to an assumption of responsibility for the child. 

Every child being “looked after” by an authority – either in care or being provided with accommodation – was owed statutory duties.  

A duty of care might arise when a local authority either takes, or resolves to take, a specific step to safeguard or promote the welfare of a child. 

In H’s case, the local authority could be argued to have assumed responsibility for her on the basis that it resolved to carry out a full assessment and carried out “keeping safe” work. 

In Y’s case, the local authority could be seen to have assumed responsibility for him after he was voluntarily accommodated in respite care. 

Neither case could be struck out in their specific circumstances and both appeals were successful. 

Case citations: HXA v Surrey CCYXA v Wolverhampton City Council Judge Baker LJ; Lewis LJ; Elisabeth Laing LJ Court of Appeal (Civil Division)  

If you would like more information or advice about the issues raised in this article, or any aspect of family law please contact our expert legal team on 02080040065, by email at [email protected] or using the form below.

The contents of this article are general information only. The information in this article is not legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should obtain independent expert advice from qualified solicitors such as those within our firm.

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