Councils not automatically fixed with duty of care under section 20 arrangements

A new key ruling from the High Court says local authorities do not automatically assume a duty of care in ‘Failure to Remove’ negligence claims.

15/11/21

Councils not automatically fixed with duty of care under section 20 arrangements

A recent judgment (8 November) has confirmed that the provision of section 20 accommodation under the Children Act 1989, does not automatically fix a local authority with a general duty of care.

The case was brought by YXA, a severely disabled man, who suffers from epilepsy, learning difficulties and autistic spectrum disorder.

YXA and his family moved to the Wolverhampton area in August 2007, where concerns were raised about the standard of parenting. It was recommended that YXA was placed into care, and from April 2008 onwards, the local authority provided regular respite care for YXA under section 20 of the Children Act 1989. However, XYA’s parents retained parental responsibility for YXA.

Lawyers for XYA had argued, in respect of the short placements into respite care, that a duty arose to consider care proceedings each time respite care was provided, and that a duty arose to consider whether it was appropriate to return the child to the parents each time respite ended.

However, in dismissing the appeal, the Honourable Justice Stacey distinguished the duty of care that arises after a full Care Order is made - where a local authority becomes the statutory parent, and the entirely different position of a child receiving temporary and intermittent care under section 20 of the Children Act 1989 with the consent of the child’s parents, where the parents retain exclusive parental responsibility.

Sarah Erwin-Jones, a partner at law firm Browne Jacobson who represented Wolverhampton City Council, said the ruling made it clear that this is not a developing, but a settled area of law.

“That means that claimants will struggle to bring similar ‘failure to remove’ type claims in negligence against local authorities in the future,” Erwin-Jones 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 claimant solicitors in similar ‘failure to remove’ claims have argued that Section 20 accommodation creates an automatic assumption of responsibility. The starting point must now be that this is not the case.

Despite Justice Stacey striking out the common law claim, she did not dismiss the parallel Human Rights Act Claim.

“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,” Erwin-Brown said.

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