HXA And YXA In The Supreme Court

• Published date: 02 January 2024
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Professional Negligence
• Law Firm: Deka Chambers
• Author: Paul Stagg

Introduction

By its decision in HXA v Surrey CC; YXA v Wolverhampton CC [2023] UKSC 52, the Supreme Court has allowed the appeals of the defendant local authorities from the decision of the Court of Appeal [2022] EWCA Civ 1196, [2023] 1 WLR 116. The court therefore restored the decisions at first instance striking out the negligence claims made against the local authorities by the claimants, whose essential complaint was that the councils' social workers had failed to seek care orders on a timeous basis. In the argot of practitioners in this field, the claims were 'failure to remove' claims.

I have previously published a series of articles analysing the decisions of Deputy Master Bagot QC at first instance in HXA v Surrey CC [2021] EWHC 260 (QB) [link], Master Dagnall's judgment in YXA v Wolverhampton CC [2021] EWHC 1444 (QB), [2021] PIQR P19 [link], the decision of Stacey J on appeal from those judgments [2021] EWHC 2974 (QB) [link] and the Court of Appeal judgment on the claimants' appeals [link].

The previous decision of the Supreme Court in this field, N v Poole BC [2019] UKSC 25, [2020] AC 780, was handed down by the court nearly a year after the two day hearing before it. By contrast, the Supreme Court has reached its decision in HXA and YXA less than two months after it was argued on October 24th and 25th this year. This may well be because the outcome was less controversial within the court than was the case with N v Poole, in which the membership of the court included judges who had previously sought to adopt an expansive approach to the liability of public authorities in negligence. Although Lord Reed's judgment was acceded to by all the members of the court, there may well have been considerable discussion within the court as to its formulation. By contrast, the tone of the questions and comments made by the judges during argument in HXA and YXA seemed to many observers to suggest that there was a unanimity of thinking within the court. The single judgment given by Lord Burrows and Lord Stephens, with which the other members of the court agreed, may well have been less controversial than Lord Reed's approach in N v Poole. The relatively short wait for the judgment is welcome, but as will be seen, the court's judgment is not as helpful as it was hoped it might be to practitioners in the field in determining when a 'failure to remove' claim might be arguable.

The Background Facts

At the outset of judgment in para 5, the Supreme Court rightly acknowledged the correctness of Baker LJ's statement in the Court of Appeal that the factual background to the cases was "shocking and disturbing". At paras 6 and 7, they adopted the summaries of the facts of the two cases given by Baker LJ.

HXA

HXA and her younger sister, SXA, complained that they had suffered the infliction of physical and emotional abuse and neglect by their mother ("M") from 1993 onwards, and sexual abuse by M, her partner Mr A, and Mr A's father from 1996 onwards. The local authority, Surrey CC, had been involved with the family since 1993, and it was alleged that numerous referrals had been made to the council from that date onwards first alleging inappropriate parenting by M, and later expressing concerns about Mr A's behaviour.

The sisters made allegations of sexual abuse from 1999, but they were not removed from the family home. HXA moved out of the family home in 2004. SXA made further allegations of abuse in 2007 and was removed from the care of M and Mr A under an emergency protection order. Both Mr A and M were prosecuted for sexual abuse of HXA. Mr A was found guilty of counts of rape and sentenced to 14 years' imprisonment, and M received a sentence of 9 months' imprisonment for indecent assault.

YXA

YXA is a severely disabled young man who suffers from epilepsy, learning disabilities and autistic spectrum disorder. He lived with his parents in London until 2007, when he was six years old. The family then moved to the area for which Wolverhampton CC was responsible. An assessment shortly after their move confirmed concerns about his parents' ability to care for him. From early 2008, a paediatrician was expressing concerns that YXA was being subjected to inappropriate and excessive medication and neglect, and recommended that the council should take him into its care.

YXA was provided with respite care by agreement with his parents, pursuant to which he spent one night every fortnight and one weekend every two months in foster care. Despite that, over the next 18 months, concerns about the parents mounted. There were allegations that the parents were abusing drugs and alcohol, of continued over-medication of YXA, and that he was physically chastised in a way inappropriate for him. Eventually, the council accommodated him on a full-time basis with the agreement of the parents, and later obtained a care order.

The Claims and the Litigation

To understand the relatively narrow scope of the issues before the Supreme Court, it is important to appreciate the procedural history of the claims.

HXA

The Claim Form in HXA, issued on behalf of both HXA and her sister SXA, was issued as long ago as 2014. By agreement, the case was put on hold pending the outcome of the successive appeals in N v Poole. Particulars of Claim were finally served in October 2019. It was agreed that SXA's claim would be stayed pending the outcome of her sister's claim. Allegations were made of negligence on the part of social services and social workers in failing to take action to remove the claimants from the family home. There was also an allegation that HXA had disclosed to a dinner lady at her school that she was being subjected to improper behaviour by Mr A, and that the disclosure had not been properly handled by the school. The Particulars of Claim based the claimants' assertion that a common law duty of care was owed to them on the full range of exceptions to the general rule that a defendant, D does not owe a...