From: Jason W Neyers Sent: Thursday 21 December 2023 01:05 To: Matthew Dyson; obligations Subject: RE: HXA v Surrey County Council; YXA v Wolverhampton City Council [2023] UKSC 52 Dear Matt: Thank you for sharing this case. For me one of the more interesting issues/questions is whether reliance is a necessary part of the/an assumption of responsibility analysis. My gut reaction is that the court has confused the Hedley Bryne relationship (which it acknowledges generally requires detrimental reliance) with a status relationship such as parent-child (which do not) and conflated the two, thereby casting doubt on the requirement of reliance generally. They then propose a factual difference for the different rules, one is about economic loss and the other about harmed children. Instead, the difference is legal/conceptual: the control/management of another's affairs exercised by those in loco parentis can only be rightful if done for the benefit of the child, and therefore anyone who assumes that status is liable with or without the consent/reliance of the child. This is very different from the situation where I invite someone to rely on my provision of a service and they thereby suffer detrimentally by so relying. I think that this distinction is consistent with the way they analyze the cases but is not quite what they say. Sincerely, Jason Neyers Professor of Law Faculty of Law Western University Law Building Rm 26 e. jneyers@uwo.ca t. 519.661.2111 (x88435) -----Original Message----- From: Matt Dyson Sent: Wednesday, December 20, 2023 9:41 AM To: obligations Subject: HXA v Surrey County Council; YXA v Wolverhampton City Council [2023] UKSC 52 Dear All, An early Christmas present for those who like bright sparkly line rules and for local authorities has been handed down today in the UKSC. The two cases, heard together, were on what triggers and responses by the local authority demonstrate an assumption of a duty to take reasonable care of a minor, short of fully taking the child into care. The claims were in both direct and vicarious liability, with respect to alleged serious abuse during the time the children remained with their parents/parent and partner (sexual abuse by mother's partner and mother in HXA; over-medicating and smacking of child with epilepsy, learning disabilities and autism spectrum disorder) : HXA v Surrey County Council; YXA v Wolverhampton City Council [2023] UKSC 52 https://www.supremecourt.uk/cases/uksc-2022-0149.html Trial judge had struck out. CA reinstated. UKSC allows both appeals in a unanimous decision, Lords Burrows and Stephens giving the judgment, with Lords Reed, Briggs and Sales agreeing. UKSC claims to be straightforwardly applying N v Poole, with the core section of the judgment from paras 86 to 107. There's a clear sense that local authorities' failures to carry out either or both of what they esolve to do and what they would likely admit their own procedures trquire, will not generate an assumption of responsibility. E.g., re HXA, [95], "internal decisions to carry out keep safe work and assessment, designed to keep the children safe within the family and to find out further information, fall significantly short of being an assumption of responsibility to use reasonable care to protect HXA from the abuse. They are merely initial steps to prepare the ground for a possible later application for a care order." And re YXA, the failure to investigate, and abiding by the duty to return from respite care, are aligned by the court (e.g., [97]-[99].). The matters which trigger the assumption of responsibility are pushed back from any investigative stage. One might wonder what route, if any, is best for failures to investigate, for failures to investigate properly, for failures to carry out promised investigations and even for wilfully blind failures to investigate, as the implication is they will not easily fit into the assumption of responsibility route. The court accepts that there could be situations short of the obvious fully taking a child into care (e.g. Barrett v Enfield), where an assumption of responsibility is made out. That included the time the child spent on respite care, [107]: "The assumption of responsibility flows from the fact that the child s safety has been entrusted to the local authority by the parents, the local authority has accepted that responsibility, and indeed the parents may be said to have delegated parental responsibility to the local authority (see para 36 above)." Ex hypothesi that was not relevant to a claim in respect of abuse suffered when at home away from respite care. The UKSC added a footnote, in the main text: "10. A footnote on reliance 108. In the last two paragraphs, we have discussed situations in which there may be an assumption of responsibility, and hence a duty of care owed, by a local authority to protect a child from harm. That discussion suggests that it appears not to be a necessary feature of an assumption of responsibility in this area that there is reliance, in any real sense, by the claimant. For instance, in a case like YXA, where one has a vulnerable young child with learning difficulties, it would be inappropriate to insist on specific reliance by the child in order to find that there was an assumption of responsibility triggering a duty of care during the respite period." Perhaps the court were trying to draw a line against further cases like this: that the case was taken at all (4 years after N v Poole, and the judgment stating it is simply applying N v Poole), and then heard on 24-25 October with and a relatively concise and unanimous judgment handed down just under two months later. At the same time, the court stressed how fact sensitive assumption of responsibility cases would be; there seem no end of possible variations and one might succeed, just likely not for a while. (With thanks to Roderick Bagshaw and others for mentioning that the case was coming out, and to the UKSC's effective publication of their decisions; I hear, by the by, that the UKSC will soon, perhaps next year, make publicly available pleadings for their cases, following in the footsteps of the HCA). All best wishes, Matt -- Professor of Civil and Criminal Law Director of the Institute of European and Comparative Law Faculty of Law, University of Oxford matthew.dyson@law.ox.ac.uk Global Professor of Law, London Law Programme at the University of Notre Dame in England Associate Member of 6KBW College Hill Matthew Dyson, Explaining Tort and Crime (CUP, 2022), available here: https://www.cambridge.org/gb/academic/subjects/law/private-law/explaining-tort-and-crime-legal- development-across-laws-and-legal-systems-18502020?format=HB ---------- You're receiving this message because you're a member of the obligations group from The University of Western Ontario. 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