New ruling on ‘failure to remove’ and Section 20
This article first appeared in ALARM, June 2021.
Recent High Court judgments in the social care sector provide helpful guidance to councils and their insurers responding to claims alleging ‘failure to remove’.
These cases build on the Supreme Court’s landmark ruling in Poole Borough Council v GN and another  (CN and GN), which established that councils do not, as a matter of course, owe a duty of care to protect children from harm caused by third parties.
The case of YXA v Wolverhampton City Council [26.05.21] is the first to consider to what extent, if any, a child being accommodated under Section 20 of the Children Act 1989 could make a difference to the application and interpretation of CN and GN.
The judgment confirms that just because positive steps have been taken (including the provision of respite care), this will not necessarily give rise to a duty of care, or the assumption of responsibility, or a duty to take any further steps.
While cases of this type will inevitably remain highly sensitive and fact-specific, this decision demonstrates that the use of Section 20 accommodation does little to assist a claimant seeking to argue that there has been a wider assumption of responsibility by a defendant council at common law.
It is fair to assume that we can except to see fewer claims of this nature pursued in negligence.
In 2007 the claimant, who was severely disabled, moved to Wolverhampton and came under the defendant council’s control. There were safeguarding concerns between 2007 and 2010, and during this period, the defendant provided regular temporary respite care away from the family home, one night every two weeks and one weekend every two months. The claimant was placed in foster care in 2010 and later that year a care order was made.
The distinction between children accommodated under Section 20 and those accommodated under a care order is in the allocation of parental responsibility.
When a child is accommodated under Section 20, the parent, or other individual with parental responsibility, can object to the continuation of the care at any time. In contrast, a care order confers parental responsibility on the council, and enables it to restrict the exercise by parents of their parental responsibility.
In YXA, the claimant alleged that the defendant should have started care proceedings as early as 2007, in accordance with its general child protection functions. Also, that a duty of care arose as a result of the provision of accommodation to the claimant. It was additionally alleged that the claimant should not have been returned to the care of his parents at the conclusion of each period of accommodation.
Arguments advanced on the claimant’s behalf included allegations that the defendant had by its conduct increased the risk to the claimant, had failed to control wrong doers, had prevented others from protecting him and had repeatedly returned him to a harmful environment.
While accepting that the defendant owed some duty of care to the claimant during the provision of the respite care (such as ensuring he was returned home safely) the court held this arrangement did not create reliance and an associated assumption of responsibility.
Master Dagnall concluded that, despite the provision of accommodation and the numerous criticisms of the claimant’s circumstances, his arguments nonetheless amounted to a failure to confer a benefit.
It could not be argued that the Council had ‘created’ the danger by returning him to his parents, when this was no more than it was required to do in accordance with the Children Act 1989.
It remains to be seen whether the claimant will seek to appeal the decision.
ALARM is a not-for-profit membership association that has supported risk management professionals for 30 years. They provide members with outstanding support including training, guidance and best practice, networking and industry recognition for excellence across risk management. For more information, visit alarmrisk.com.