Failure to withdraw Section 20 claims and accommodations: YXA v Wolverhampton City Council

Since the start of the year, three decisions have been issued in favor of the defendants as to how the decision in N vs. Poole BC [2019] UKSC 25, [2020] AC 780 concerns negligence claims against social services. The decision of Deputy Master Bagot QC in HXA vs. Surrey CC [2021] EWHC 250 (QB) was the first, and was discussed in an article I wrote and circulated in February when the decision was made [link]. On Tuesday of this week, Lambert J delivered his long-awaited judgment in DFX vs. Coventry CC [2021] EWHC 1382 (QB), in which she rejected the claims of four siblings after a trial. His decision is discussed in an article by my colleague and my fellow lawyers N vs. Poole, Katie Ayres, posted earlier this week [link].

A common feature of the non-elimination of claims is that claimants were admitted by local authorities at some point in history under section 20 of the Children Act 1989. Article 20 sets out important duties and powers with regard to the accommodation of children for whom the local authority does not have parental responsibility by virtue of a custody order. In short:

– Under subsection (1), the local authority must take in a child in need “in his area” who needs accommodation and who has no person with parental responsibility for him, has been lost or abandoned, or whose guardian has been “prevented (whether permanently or not, and for whatever reason) from providing adequate housing or care”.

– Subsection (3) requires the provision of housing to a needy child over the age of 16 whose well-being “is at risk of being seriously compromised” if housing is not provided.

– Subsection (4) gives the power to provide accommodation to a child in their area “if they consider that this would safeguard or promote the welfare of the child”.

Between them, these arrangements translate into the provision of housing for children in a wide variety of circumstances. At one end of the scale, children may be housed where there is no concern about a parent’s ability to care for them, but there is a temporary family emergency, such as when the parent is hospitalized and there is no family member or friend to care for them. for the child temporarily. Section 20 is also the ultimate source of the power to provide regular respite care to parents who need a break from caring for their children (see also, in the case of children with disabilities, paragraph 6 of the ‘Annex 2). In many other cases, Article 20 has been used to care for children in the medium or even long term in agreement with their parents. Courts have often criticized the use of section 20 by local authorities in this way; instead, they are expected to take the case to court to consider whether a placement order should be granted: see, for example, In re N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112, [2017] AC 167, s. 157-171.

The crucial distinction between children accommodated under section 20 and those accommodated under a placement order is that of parental responsibility. When a child is housed under Article 20, subsections (7) and (8) make it clear that the parent, or any other person with parental responsibility, may object to continued care for the child. any time. On the other hand, a custody order confers parental responsibility on the local authority and allows it to restrict the exercise by the parents of their parental responsibility: article 33 (3).

In “ non-displacement ” cases where a child has been accommodated under Article 20, it is often argued that the accommodation of the child gives rise to a duty of care by way of care. liability, even if other measures are taken by the local authority. do not do it. The cases decided to date have not had to address this question, which was examined for the first time by Master Dagnall in his judgment rendered this Wednesday of this week in YXA vs. Wolverhampton CC [2021] EWHC 1444 (QB).

The applicant is a severely disabled young man who suffered from epilepsy and autism spectrum disorders. He was born in 2001 and until 2007 lived in the London Borough of Southwark, which was originally the first defendant on his claim but against whom the proceedings were dropped. In 2007 the family moved to Wolverhampton. An early assessment was carried out after information was received from Southwark. Concerns were expressed by a pediatrician about over-medication by parents; she thought the provider should be taken care of. Since April 2008, the board has provided regular respite care for one night every two weeks and one weekend every two months. There were concerns about the use of physical punishment and the use by the parents of a known sex offender to babysit children in his stead. In December 2009, the provider was taken over by the full-time council in agreement with the parents. A care order was issued the following year.

Mr. Dagnall recorded in paragraph 24 of his judgment the two ways in which the case was presented for the plaintiff. First, it relied on the general involvement of the local family authority as part of its child protection functions. Second, it was said that a duty of care arose out of the provision of accommodation to the applicant and that he should not have been returned to his parents’ care at the end of each period of accommodation.

After a detailed review of the case law in paragraphs 27-69 and considering the concurrent submissions of Mr. Justin Levinson for the Applicant at paragraphs 70-71 and myself for the Respondent at paragraph 72, the Captain provided a helpful summary of the middle ground. between the parties.

At para 75, he rejected the Applicant’s argument that the decision D v East Berkshire Community NHS Trust [2003] EWCA Civ 1151, [2004] The QB 558 had been specifically approved by the Supreme Court in N vs. Poole. This is a statement frequently made in the “ models’ ‘which form the basis of many of the details of the claim produced by claimants’ representatives in this area since the ruling in N vs. Poole. As the Master said, the assertion is quite contrary to what N vs. Poole decided himself.

At para 76 he stated that Barrett vs. Enfield LBC [2001] 2 The IC 550 did not justify a broader proposition than that according to which a duty of care arose out of the assumption of responsibility when making a care order. In this case, the parents had retained parental responsibility.

In paragraph 78, he stated that he did not accept that the fact that a child was “dependent” on the local authority had to be equated with factual trust for the purpose of creating accountability.

Given the arguments based on the general involvement of the local authority, the captain concluded at para 82 that there was nothing to distinguish this case from N vs. Poole. He condemned the reasoning of HHJ Roberts in Champion against Surrey CC [2020] not reported, on June 26 as “unsatisfactory” and approved the decision in HXA. In particular, he adopted Deputy Chief Bagot QC’s rejection of arguments that the board had increased the risk to the plaintiff, failed to control the wrongdoers and prevented others from protecting the plaintiff: para. 83-88 and 100-101.

He then wondered if providing respite care made a difference. It was noted that a certain duty of care was probably owed in relation to the provision of care to the applicant, including return mechanisms, such as ensuring that he returned home safely: paragraph 90. argument based on two alternative propositions:

– An obligation arose to consider care procedures when respite care was provided.

– An obligation arose to determine whether the child should be returned to the parents at the end of the period concerned.

In paragraphs 93 to 95, he rejected the first proposal. The provision of accommodation did not alter the fact that the manner in which the case was presented implied a failure to confer a benefit. He gave detailed reasons for this and concluded that the fact that there was a legal obligation to return the child to the parents upon request made the suggested obligation incompatible with the legal regime. The wording of the legislation was not sufficient to give rise to an obligation where it would not otherwise exist: para. 97.

With respect to the second way of presenting the case, he considered the analogy of returning a child to a burning building or to a parent who clearly posed an immediate danger to the child. These dramatic examples were not presumed to be present in this case. It cannot be argued that the council “created” the danger by returning the child to its parents. All he did was return the child, in accordance with the law, to his parents as he was required to do: para. 98 to 99.

Finally, he considered that the common law claim should be struck out even if there was a parallel claim under the Human Rights Act 1998: para 103.

He therefore concluded that the claim should be struck out: para. 104.

The whole of this long considered judgment deserves careful reading. It is an important contribution to case law in this area. It remains to be seen whether the claimant will seek to appeal the captain’s decision. The call in HXA is currently listed for decision on July 7 and it may be possible to list the two cases together. It is understood that a call is unlikely DXF, so that expungement cases offer the highest likelihood of further High Court decisions in the near future.

The full judgment is available here

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About John McTaggart

John McTaggart

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