Failure to remove

When the Supreme Court handed down its judgment one bright morning on 6 June 2019 (CN & GN v Poole Borough Council [2019] UKSC 25 – ‘Poole’) we all hoped that the law applicable to claims for 'failure to remove' would be clarified. But there have been many twists on the legal road since, and it is difficult to predict the outcome of such cases.

Failure to remove are claims against social workers alleging that they failed to remove children from the care of their parents, which resulted in children suffering neglect or abuse. Poole suggested it would be much more difficult for claims in negligence to succeed. But over the last three years or so, the picture has remained confused. Some cases were allowed to proceed to trial; some cases were struck out at an early stage; some decisions at first instance were overturned on appeal; and it is still unclear how the law applies. For instance, there is confusion about what happens when children are voluntarily accommodated by local authorities (under section 20 of the Children Act 1989).

We have now heard that permission was given for two cases to be heard jointly in the Supreme Court: YXA v Wolverhampton CC and HXA v Surrey CC. Each case had been struck out at first instance. Both cases (heard jointly) were heard in the Court of Appeal last summer – when the judges overturned the early decisions and decided that each case could proceed to a full trial. The Supreme Court will now consider the position and, it is hoped, clarify the legacy of Poole.

Vicarious liability

The Supreme Court is due to hear the case of BXB v Jehovah’s Witnesses on 13 and 14 February 2023.

This case concerned the rape of a woman by an elder of the Barry Congregation. The woman pursued a claim against the Trustees of the Congregation asserting that they were vicariously liable for the rape. Both the High Court and the Court of Appeal (see The Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB [2021] EWCA Civ 356) found for the claimant: they determined that the test for vicarious liability was met. This is a dual test: stage 1 (is the relationship between tortfeaser and defendant “akin to employment”) and stage 2 (is the tort “closely connected” to that relationship?). 

Vicarious liability is often said to be ‘on the move’. It went through an expansionist phase for 10 years or so, but a more restrictive approach has been on the cards since Various Claimants v Barclays Bank Plc [2020] UKSC 13. This will be an opportunity for the Supreme Court to clarify how vicarious liability applies to religious organisations.