Ruling in YXA v Wolverhampton City Council [2021] EWHC 2974 (QB) last week, Mrs Justice Stacey distinguished the duty of care that arises where a full care order is made, making the local authority the statutory parent, from the position that arises where a child receives s 20 temporary and intermittent care with the consent of the child’s parents, who retain exclusive parental responsibility.
YXA was a severely disabled man, who suffers from epilepsy, learning difficulties and autistic spectrum disorder. Wolverhampton provided regular respite care from 2008 after concerns were raised about the parents. These concerns escalated to fears about alcohol and cannabis consumption, physical chastisement and excessive medication being given to the child. A care order was granted in 2011.
Sarah Erwin-Jones, partner at Browne Jacobson, who represented Wolverhampton City Council, said: ‘This is a significant judgment because it confirms the position that even though a local authority carries out various steps as part of its child protection functions, this does not automatically mean that it assumes responsibility for the children with whom it is working.
‘Since the Supreme Court ruling in CN & GN v Poole Borough Council [2019] UKSC 25, claimant solicitors in similar “failure to remove” claims have argued that s 20 accommodation creates an automatic assumption of responsibility. The starting point must now be that this is not the case.
‘The judge has also made it clear that this is not a developing but a settled area of law, which means claimants will struggle to bring similar “failure to remove” type claims in negligence against local authorities in the future. However, we can expect much more emphasis on potential claims under the Human Right Act 1989, which trigger interesting questions about funding, limitation and insurance cover.’
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