The Court of Appeal has today handed down Judgment in the matter of AB v Worcestershire CC and Birmingham CC [2023]. The Judgment will be welcomed by local authorities who have recently seen an increase in conventional ‘failure to remove’ claims presented as breaches of the Human Rights Act 1998. This Judgment clarifies the threshold test which a Claimant must meet to establish a breach of Article 3 of the European Convention on Human Rights (the Convention) which prescribes that no one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Background

The Claimant, AB, was a child known to social services since 2005, when aged 3. AB had initially resided in the area of Birmingham City Council (BCC) between July 2005 and November 2011 and had subsequently lived within the jurisdiction of Worcestershire County Council (WCC) from 2011 to 2016. AB pursued claims against both local authorities (the defendants), alleging physical and emotional abuse and neglect by his mother to include living in a dirty home, bruising to his legs and being forced to dress in women’s clothing for the amusement of others.

The defendants had both been involved with AB intermittently whilst he resided in their respective authorities and WCC had accommodated him on several occasions to include placing him into temporary foster care. In May 2015, AB was the subject of an Interim Care Order after he was alleged to have sexually abused a friend of his younger sibling. A Final Care Order was made in January 2016.

The Claim Advanced

The claim was initially advanced as a conventional ‘failure to remove’ case alleging common law negligence and breaches of the Human Rights Act, specifically Articles 3 (freedom from inhuman and degrading treatment), 6 (right to a fair trial) and 8 (right to a family life). The claim was formulated on the basis that a Care Order should have been sought at an earlier stage: from July 2008 onwards with regards to BCC and from around April 2012 with regards to WCC. Shortly before the High Court hearing, AB abandoned his Article 8 claim, accepting that it added nothing more to the Article 3 claim. He also abandoned his negligence claim against both defendants and thus the claim proceeded as a breach of Articles 3 and 6 only. Both defendants applied for strike out and summary judgment of AB’s remaining claims on the basis there was either no reasonable cause of action, or that the claims had no reasonable prospect of success.

High Court Judgment

The matter came before Deputy High Court Judge Margaret Obi on January 2022 who struck out AB’s Article 6 claims and granted summary judgment in relation to the Article 3 claims.

Article 6

In civil claims, the applicability of Article 6 is dependent on there being a genuine and serious dispute which relates to a ‘civil right’. AB’s alleged breach of Article 6 was formulated on the basis of him having a civil right to be taken into care. The Court rejected this assertion, and in doing so found that a child has no civil right to seek a care order nor to have one made in respect of their care. Only a local authority or an authorised person is empowered to make such an application and as such, the Court found the defendants had not done anything which interfered with AB’s rights. The Article 6 claim was struck out accordingly.

Article 3

Assessment of an Article 3 claim requires consideration of both the positive operational duty and the investigative duty. The former imposes a duty on the State to take reasonable steps to protect individuals from ill-treatment (the positive obligation) and the latter imposes a duty to investigate an alleged breach of Article 3.    

In striking out AB’s Article 3 claim, the Court found that although there were instances where AB was exposed to inadequate parenting, these appeared to have been isolated and sporadic and as such failed to meet the severity required for establishing the Article 3 threshold. AB had failed to specify what amounted to a ‘real and immediate’ risk of Article 3 treatment with reference to the social services documents, such that it would trigger the defendants’ operational duty and require care proceedings to be commenced.

Whilst the Court also accepted BCC’s assertion that a local authority does not owe an Article 3 operational duty (to protect from ill-treatment) to children living in the community because the requirement of exercising ‘care and control’ over the child is not met, the defendants subsequently conceded this point on appeal.

The Court also found that no investigative duty was owed by the defendants under Article 3 because this duty was intended to relate to a criminal investigation rather than the protection of individuals from future harm. Therefore, this duty did not apply to a local authority undertaking investigations pursuant to the provisions of the Children Act 1989.

Court of Appeal Decision

AB appealed the High Court’s decision, seeking adjudication from the Court of Appeal (CoA) as to the circumstances in which a local authority might be held liable for a breach of a child’s rights under Article 3 of the Convention, where that child is alleged to have been subjected to neglect or ill-treatment by a parent and the authority has taken no steps to remove the child from the care of the parent. The principal ground of the appeal was that the High Court had erred in finding there was no real prospect of AB establishing he had been subjected to treatment which fell within the scope of Article 3, such finding being at odds with the history of events contained in the social services records.

Following a two day hearing in April 2023, the CoA handed down their Judgment on 17 May 2023 in which they dismissed the Claimant’s appeal and upheld the High Court Judgment. At the hearing, both defendants conceded there was no requirement for a child to be in the care and control of a local authority before the operational duty could be engaged and as such, this element of the High Court’s Judgment could no longer be utilised in striking out the claims.

Counsel for AB submitted this was not a case that should be determined at summary judgment and a full trial was needed to properly consider all treatment AB had been subjected to, and whether this met the Article 3 threshold. Counsel for AB also asserted that whilst any of the incidents which caused him harm could be said to have reached the threshold, when these incidents were taken in accumulation, that threshold was certainly reached.

In dismissing the appeal, the CoA agreed with the High Court that there was no realistic prospect of AB establishing there was a real and immediate risk of him being subjected to treatment by his mother which fell within Article 3.

The CoA helpfully summarised that in considering whether there has been a breach of the positive obligation to prevent Article 3 treatment, there are four relevant components that are required: (i) a real and immediate risk (ii) of the individual being subjected to ill-treatment of such severity as to fall within the scope of Article 3 (iii) that the public authority knew or ought to have known of that risk and (iv) the public authority failed to take measures within their powers which, judged reasonably, might have been expected to avoid the risk. The CoA provided important analysis of how this test applies in the context of failure to remove claims, stating that it must not impose an “impossible or disproportionate burden” on social services departments, bearing in mind the “unpredictability of human conduct” and “operational choices” which had to be made in considering both the priorities and the resources within these departments.

Although the Judgment does not provide a definitive account of when ill-treatment in this type of situation will reach the Article 3 threshold and consequently amount to inhuman or degrading treatment or punishment, the CoA did find that the treatment must reach a minimum level of severity and that “serious and prolonged ill-treatment and neglect giving rise to physical or psychological suffering” could fall within Article 3.

Commentary

This is a pivotal Judgment for local authorities, many of whom will have seen an increase in failure to remove claims presented as breaches of Article 6 of the Human Rights Act in recent years. This shift in how these claims are presented has largely occurred due to the changing legal landscape in this area, most notably the decision in DFX v Coventry City Council [2021] which followed the approach established in Poole BC v GN and Another [2019] in finding that there could be no duty of care owed by a Social Services Department for children in the community unless an assumption of responsibility had arisen.

The Judgment in AB will make it increasingly difficult for Claimants to pursue local authorities in ‘failure to remove’ claims presented as breaches of Article 3 where the allegations are of poor parenting absent of serious neglect, or physical or psychological harm. It should be noted that where sexual abuse has been suffered, this will nearly always meet the threshold.

As practitioners and local authorities involved in this area of law will know, the common law continues to progress through a period of flux and uncertainty. It remains crucial that every case is considered based on its own factual matrix and merits, taking into account the manner in which the claim is pleaded and applying the relevant legal judgments and analysis. Whilst claims will no doubt continue to be formulated on the basis that children should have been removed from their parents at an earlier stage, local authorities should keep in mind the submissions advanced by Counsel for BCC (para 48 of the Judgment) that common law has already recognised it is better for children to be raised by their parents and families and as such, society should be willing to tolerate diverse standards of parenting which for some, will appear inadequate or even eccentric. This approach is consistent with the policy underlying the Children Act 1989, which is that the State should only intervene and remove children from their parents in exceptional circumstances, and where the Court is satisfied the child is suffering or is likely to suffer significant harm. The starting point for local authorities in responding to ‘failure to remove’ claims presented as breaches of Article 3 of the Convention must therefore be that children should only be removed from their parents as a last resort and where all else fails, followed closely by an assessment of whether a real and immediate risk existed at the time of the alleged breach, rather than assessing this by applying the benefit of hindsight.

Kate Prestidge

Senior Solicitor – GB Speciality 
 
Kate_Prestidge@gbtpa.com
 
M: 07858 372428