The Court of Appeal has ruled that negligence claims against local authorities over their duty of care to abused children must be heard in court.

In HXA v Surrey County Council, judges upheld appeals against decisions to strike out claims in two unconnected cases. In both, the details of which were acknowledged by the local authorities involved to be ‘shocking and disturbing', each claimant had been subjected to severe abuse and neglect as a child whilst they remained at home with their families.

The issue to be resolved is whether at any stage the local authorities could be said to have assumed responsibility for the claimants’ welfare so they owed a duty of common care. Both claims were initially struck out but will now proceed to trial.

Although judges were careful to stress the merits of the case must still be heard, the ruling will give claimant lawyers hope that they can establish clarity about what is necessary for an ‘assumption of responsibility’.

The court in HXA heard submissions that defendants assumed responsibility for the welfare of the claimants when reports to social services were responded to. It was submitted that the claimants relied on their local authority to keep them safe and it failed to assess the risks posed to them.

Case law on the duty of care comes from the Supreme Court judgment in N v Poole Borough Council, where justices said the claimants, who were abused by neighbours as children, had not provided a basis on which an assumption of responsibility might be established. The court’s ruling identified ‘further difficulties’ that arose in relation to the breach of duty alleged.

In HXA, claimant lawyers argued that Poole had clearly established that a duty of care could be owed by social services department, even if the claimants in Poole were ultimately unsuccessful. Defendant lawyers, on the other hand, submitted that Poole established the opposite, with the argument that social workers could be held liable being unsustainable.

In his judgment, Lord Justice Baker said the potential assumption of responsibility was ‘not necessarily confined to the actual periods when the child was being accommodated’ by a local authority. He added: ‘The circumstances in which a local authority may assume responsibility for a child so as to give rise to a duty of care under the law of negligence are not confined to cases where it acquires parental responsibility under the Children Act 1989.’

He said that it may not be possible without a full examination of the facts to establish whether or not a duty of care arose or, if it did, whether it was breached. In those circumstances, it was ‘plainly wrong’ to strike out the claims.

Abbie Hickson, associate at Bolt Burdon Kemp, who represents one of the claimants said the decision in Poole left considerable uncertainty for claimants as to the circumstances in which a local authority owes a duty of care to a child, whose safety is known to be at risk. 

She added: 'This is still an evolving area of law and as such the striking out of such claims on the basis that a local authority can never owe a duty of care to a child living within its locality, is clearly wrong. Such cases are so fact sensitive, that it is only right that the court investigates the circumstances of each particular case fully at trial.

'This in turn will provide all practitioners with the necessary guidance as to the circumstances in which a local authority does owe a duty of care and what is necessary for an “assumption of responsibility” and will allow claimants to access the justice they richly deserve.'

Law professor James Lee noted on Twitter that the decision is 'problematic in its open-endedness':