More hope for children in failure-to-remove claims

The current legal landscape leaves little access to redress for children who suffered and continue to suffer abuse and neglect.

Often failed by the local authorities there to protect them, achieving justice can feel like another uphill battle.

A “failure-to-remove” claim is where allegations are made that social workers ought to have completed more robust investigations or instituted care proceedings when it is suspected a child is subject to abuse and/or neglect at home. Children who are not removed from an abusive or neglectful home often struggle with mental health issues, coupled with a sense of injustice and resentment towards the institutions they relied upon for protection.

Though the odds are stacked against them, with our help many individuals have successfully settled their claims having brought them as 'failure to remove' claims for negligence and/or under the Human Rights Act. Furthermore, developments in two recent cases may signal a change in the courts' perspective on this complex and evolving area of law.

Negligence Claims - HXA and YXA

Recently, the ability for children to bring these types of claims in negligence was re-established in the recent Court of Appeal Judgment in two cases heard together: HXA v Surrey County Council; YXA v Wolverhampton County Council.

Before this, the legal landscape meant it could be incredibly difficult to prove that a local authority had been negligent in failing to remove a child from abusive environments. In 2019, the Supreme Court in CN v Poole BC found that there is no duty on social services to protect an individual unless they have: i) accepted responsibility for the child, or ii) taken steps to prevent another person from protecting the child, or iii) had a special level of control over the source of the danger.

This meant that to bring a claim, a local authority must have “accepted responsibility for a child” or taken them into their care, and in effect local authorities could seek to rely on their own inaction as a defence. Claims brought in negligence were vulnerable to being “struck out” (stopped at an early stage) with defendants asserting these cases didn’t have sufficient merit to continue.

As a result, those bringing claims, in the vast majority of cases, could only rely upon the Human Rights Act, an avenue which is further explored below.

However, on 31 August 2022, the Court of Appeal gave helpful guidance to practitioners and in essence, confirmed that negligence claims should not be struck out in an area that is still “developing” and the facts of each case must be carefully scrutinised.

Lord Justice Baker said: "To sum up, this is still an evolving area of the law in which it will only be through careful and incremental development of principles through decisions reached after full trials on the evidence that it will become clear where precisely the line is to be drawn between those cases where there has been an assumption of responsibility and those where there has not"

The two local authorities have sought permission to appeal to the Supreme Court. However, the outcome of this decision and the future appeal to the Supreme Court could have far reaching effects for the body of ‘failure to remove’ claims, opening the door for other cases.

Claims under the Human Rights Act - AB v Worcestershire County Council

To add further complexity to the legal picture, the ability for children to bring Human Rights Claims was also called into question in November 2021 following the decision of the High Court in AB v Worcestershire CC and Anor [2022] EWHC 115 (QB).

AB (whose name has been anonymised to protect his identity) brought a claim under the Human Rights Act against two local authorities over their alleged failure to remove him from the care of his mother when he was a child. However, the Judge struck out the claim, meaning it could not continue. The High Court Judge found that a local authority would only owe duties to children already in their care, thereby applying a similar test to that set out in negligence.

AB sought to appeal this decision and in September 2022 the Court of Appeal granted permission for the appeal to proceed. It will be listed for final hearing in 2023.

This appeal may now signal a positive development on behalf of claimants in the pursuit of justice. It is in our view difficult to see how original decision can be maintained as it goes against so many other cases that have considered the threshold for bringing claims under the Human Rights Act.

We at Leigh Day are instructed to act for AB in this appeal along with Lizanne Gumbel KC of 1 Crown Row Office and Sam Jacobs of Doughty Street Chambers.

‘Failure-to-remove’ claims are notoriously complex, and children failed by their local authorities have felt equally failed by the judicial system. Nevertheless, it appears that the legal landscape may be on the brink of change. Children can now seek redress for wrongs they have suffered in the past at the hands of the local authorities that should have been there to protect them.