‘Failure to Remove’ Claims – Supreme Court grants permission to appeal in two cases

The Supreme Court has today granted permission to appeal to the defendants in HXA v Surrey CC and YXA v Wolverhampton CC, in which the claimants advanced claims alleging negligence on the part of social workers in not taking action to remove them from the care of their parents/step-father and exposing them to continuing abuse and neglect.

By its judgment handed down on August 31st 2002 (neutral citation [2022] EWCA Civ 1196, reported at [2023] 1 WLR 116) the Court of Appeal allowed the claimants’ appeals against the striking out of their claims.

It is to be hoped that the Supreme Court will provide guidance as to the circumstances, if any, as to when a social worker exercising child protection functions can assume responsibility towards a child in the local authority’s area so as to give rise to a common law duty of care.

The Supreme Court refused permission to appeal in a third case, Champion v Surrey CC, which had come before it by an unconventional route. The defendant’s application to strike out had been dismissed by HHJ Roberts at first instance. Permission to appeal to the High Court was granted. The claimant then applied for the appeal to be transferred direct to the Court of Appeal, which listed it for consideration after the HXA and YXA judgments were given. Since the outcome of HXA and YXA inevitably would have led to the dismissal of the defendant’s appeal in Champion, the appeal was dismissed by consent. The Supreme Court said that it was only in “unusual circumstances” that it would give permission to appeal against an order made by consent and there was no judgment of a court below on some of the issues raised by the claimants in the Amended Particulars of Claim. The refusal of permission in that case is unfortunate, because a much wider range of arguments is relied on in support of a duty of care in that case, and those arguments will probably not now be considered by the Supreme Court.

Lord Edward Faulks KC and Paul Stagg act for the defendants in both HXA (on instructions from DWF LLP) and YXA (on instructions from Browne Jacobson LLP).