HXA v Surrey County Council and YXA v Wolverhampton City Council were heard together. Both asked when a council that knows a child may be at risk at home takes on a legal responsibility to protect that child from harm by someone else. The distinction mattered because the claimants sought damages in negligence for steps they said the councils had failed to take.
The councils applied to strike out the parts of the negligence claims concerning their social services functions. They argued that even if the facts were as pleaded, those facts could not establish the duty alleged. The first-instance decisions and the High Court favoured the councils. The Court of Appeal considered that the claims should go to trial.
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Assumed facts and the pleadings relied on
At this stage the court worked from the allegations in the amended pleadings. It was deciding whether there was a legally arguable claim. There had been no trial of the allegations.
In HXA’s case, Surrey investigated concerns about her welfare and placed her on the child protection register. It resolved to obtain legal advice and carry out an assessment with a view to care proceedings. It later decided to carry out protective work with her. The claim alleged that the promised steps were never taken.
In YXA’s case, Wolverhampton arranged regular, short periods of foster care with parental agreement under section 20 of the Children Act 1989. His claim concerned the council’s failure to protect him from harm at home in the intervals between those stays.
The legal test
It was common ground, following X (Minors) v Bedfordshire County Council, that the duties and powers in the Children Act 1989—including sections 17, 20, 22, 31 and 47—do not themselves create a claim for breach of statutory duty. Under N v Poole, a public authority owes a common law duty to protect a person from harm by a third party only where a private individual would owe such a duty, typically because it has assumed responsibility to do so, and only if the legislation does not exclude that duty. Statutory powers or duties alone are not enough. The particulars must provide some basis for evidence from which a relevant assumption of responsibility could be inferred.
Why no duty was arguable
The court held that the pleaded facts supplied no such basis. Investigating HXA’s position, deciding to take legal advice, or resolving to assess her or to carry out keeping safe work did not provide a service to her. Those were steps in the council’s own decision whether to seek a care order. Nothing alleged showed that she had entrusted her safety to the council or that the council had accepted responsibility to use reasonable care to protect her from the abuse.
Nor did YXA’s respite care amount to that responsibility. The council accommodated him temporarily with his parents’ agreement and was obliged to return him to them. Treating the arrangement as an assumption of responsibility to protect him from abuse at home would contradict that duty to return him. A failure to investigate or to start care proceedings was not itself a relevant assumption of responsibility, and no significant change during respite care was alleged. There was a more limited assumption of responsibility while he was actually accommodated, including the mechanics of his return, but that was not the wider duty he alleged.
The claims were indistinguishable in substance from N v Poole, where investigation, monitoring and child-protection processes did not create a duty to protect children from harm by neighbours. After that decision this was not an uncertain, developing area requiring a trial before strike-out. If the pleadings disclose no duty, the cost of trying breach and causation can be avoided.
When responsibility may be assumed
A care order gives the council parental responsibility. A different, temporary form of responsibility arises when parents entrust a child to the authority for an agreed stay. A private person who agreed to care for a child would likewise be expected to take reasonable care during that period. The child need not personally demonstrate reliance. What YXA’s pleading did not support was an extension of that duty to cover the harm alleged at home.
Verdict: The Supreme Court unanimously allowed both councils’ appeals and restored the strike-outs. Neither pleading disclosed an arguable assumption of responsibility to protect the child from the abuse alleged at home. The judgment dealt only with the parts of the claims covered by the strike-out applications.
