Reparation and child protection: clarity and consistency : HXA v Surrey CC

Brodie, Douglas (2024) Reparation and child protection: clarity and consistency : HXA v Surrey CC. Edinburgh Law Review, 28 (2). pp. 259-264. ISSN 1364-9809 (https://doi.org/10.3366/elr.2024.0900)

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Abstract

The plethora of statutory functions that local authorities possess mean that they are tempting targets in negligence actions. The aggrieved claimant will assert that they should have exercised such functions for their benefit and that the statutory framework puts the parties in a position of proximity for the purposes of the law of duty of care. Cognisant of such vulnerability the courts, ever since the decision of the House of Lords in Dorset Yacht v Home Office, have taken a protective stance where local authorities and other public bodies are concerned. The form that protection takes has varied over the years but its existence has been constant. The often deeply unpleasant circumstances at the heart of child protection cases mean that further litigation against local authorities is only to be expected. Claimants can always point to specific statutory powers which were not utilised but should, it is said, have been exercised for their benefit. Alternatively, it may be said that powers that were exercised should have been used competently. As recently as 2018 the Supreme Court put forward guiding principles which told us, in the child protection case of N v Poole (Poole), that the mere exercise of statutory functions would not give rise to a duty of care. The latter position was subject to exception and, in particular, a duty would arise should the defender assume responsibility. Poole appeared to set out the law in the clearest of terms but, somewhat surprisingly, very similar issues were to come before the Supreme Court in HXA v Surrey CC (HXA).

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