Claims brought against local authorities arising out of alleged failures by social services to remove children from the care of their parents to protect them from harm are known as ‘failure to remove’ claims. Developments in common law jurisprudence, in cases such as CN v Poole Borough Council [2017]; DFX & Other v Coventry City Council [2021]; YXA v Wolverhampton City Council [2021]; and HXA v Surrey County Council [2021] settled the position that a duty of care will not generally exist by reason of a local authority's operation of the statutory welfare scheme under the Children Act 1989. The first instance judgments in YXA and HXA went on to be overturned by the Court of Appeal in 2022, although a further appeal to the UK Supreme Court is listed to be heard in October this year.
As a result of the difficulties claimants faced bringing claims under common law, claims started to be brought under the Human Rights Act 1998, alleging an infringement of the Article 3 Right to protection from torture or inhuman or degrading treatment or punishment. Last year, in AB v Worcestershire County Council & Anor [2022] EWHC 115 (QB), Deputy High Court Judge Margaret Obi struck out a claim brought under the 1998 Act after the defendant local authorities applied for summary judgment. Paul Donnelly and Bushra Ali acted for Birmingham City Council in the case, details of which can be found in DWF's legal update No Article 3 Duty Owed in HRA 'Failure to Remove' Claim. The claimant appealed.
Yesterday, the Court of Appeal (with two of the same Lord Justices as sat in the Court of Appeal in YXA and HXA) dismissed the claimant's appeal, in a judgment where for the first time the Court of Appeal has considered a failure to remove claim alleging infringement of Article 3.
In this update, Paul and Bushra consider the judgment and its implications.
Background and first instance decision
AB who was born in 2002 lived in Birmingham's local authority area between July 2005 and November 2011 and thereafter in Worcestershire's local authority area until January 2016. He alleged that he suffered abuse and neglect whilst in the care of his mother which was so severe that it evidenced a real and immediate risk that the appellant would suffer further ill-treatment falling within the scope of Article 3 if left in the care of his mother and, consequently, the defendants should each have removed the claimant from the mother’s care to avoid that risk.
The defendants applied for summary judgment in respect of the claim based on the alleged violation of Article 3, and Deputy High Court Judge Margaret Obi granted the application. On the key issue, the judge held that there was no realistic prospect of the claimant establishing that he was subject to ill-treatment which falls within the scope of Article 3. Whilst he was undoubtedly vulnerable and at risk of being subjected to poor and inconsistent parenting and neglect, there was no realistic prospect of the claimant establishing there was a "real and immediate" risk of treatment falling within the scope of Article 3 and/or which the local authority defendants failed to take steps reasonably available to them which potentially would have avoided that treatment.
For a more in-depth account of the facts in the case and analysis of the first instance decision, see our 2022 update.
The appeal
The claimant sought to appeal based on six grounds, but in the principal ground of appeal, the claimant alleged that the judge was wrong to find there was no realistic prospect of establishing that he was subject to ill-treatment falling within the scope of Article 3. The claimant submitted the following reasons in support:
a) It was inappropriate to determine that the ill-treatment he suffered was incapable of falling within Article 3 without a full investigation of the facts. It was an issue for trial.
b) The documentary evidence, including the documents provided by Worcestershire for the care proceedings, strongly supported the case that the ill-treatment suffered by the claimant fell within the scope of Article 3.
c) Compared with other decided cases cited at first instance, the ill-treatment suffered by the claimant did cross the Article 3 threshold.
d) It was arguable on the material before the judge that there was a “real and immediate” risk that the defendants should have appreciated.
Note, before the Court of Appeal both defendant councils conceded the ground of appeal that the judge had been wrong to find that the operational duty was not applicable as the claimant had failed to establish that the respondents had care and control of the claimant while he was living in their area. The Court of Appeal agreed that the "concession was correctly made in the context and on the facts of this case" (paragraph 85).
Appeal findings
The court dismissed the claimant's appeal. The lead judgment was given by Lord Justice Lewis with whom Lord Justices Baker and Dingemans agreed.
The Scope of the Operational Duty under Article 3 (paragraphs 56 – 64)
The allegation was that there was a violation of the positive obligation on the two councils involved to take operational measures to protect the appellant against the risk of being subject to ill-treatment contrary to Article 3 of the Convention. In order for a positive obligation to arise,
"it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk of ill-treatment of an identified individual from the…acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid the risk…".
The positive obligation can be seen as comprising four components:
- there needs to be a real and immediate risk...
- ... of the individual being subjected to ill-treatment of such severity as to fall within the scope of Article 3 ECHR;
- the public authority knew or ought to have known of that risk; and
- the public authority failed to take measures within their powers, which, judged reasonably, might have been expected to avoid the risk.
Lewis LJ sets out a helpful guide to navigating those issues:
1. The real and immediate risk
This requires a determination of whether the authority knew or ought to have known at the time of the alleged violation of a present and continuing risk, rather than a risk that may arise at some stage in the future.
2. The Article 3 threshold and triggering of the positive obligation
Whether the ill-treatment alleged has reached a minimal level of severity to fall within the scope of Article 3 will depend on all the circumstances of the case. In particular, it will require consideration of the duration of the treatment or punishment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim. (Our previous article discusses some of the case law on the Article 3 threshold quoted by the judge at first instance.)
3. Consideration of whether the public authority knew or ought to have known of that risk
The court must be wary of assessing events with the benefit of hindsight. The court should assess the events as they unfolded at the time.
4. The positive obligation to take operational measures to protect the claimant
This is to be interpreted in such a way as not to impose an impossible or disproportionate burden on the authority, bearing in mind the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources. Furthermore, regard must be had to the other convention rights, including the right to respect for family and private life under Article 8. Lewis LJ expands on this point further by stating:
"a court will need to have regard to the “difficult and sensitive decisions facing social services and the important countervailing principle of respecting and preserving family life.”
Citing the judgment in Z v United Kingdom (2002) 34 EHRR 97 he added,
"Accordingly, not every risk of ill-treatment can entail for the authorities an obligation pursuant to Article 3 to take measures to prevent that risk from materialising. That is why it must be established that the authorities know or ought to have known at the material time of the existence of a real and immediate risk of treatment and failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk".
Finally, Lewis LJ draws support from Van Colle v Chief Constable of Hertfordshire Police [2008] UKHL 50, identifying that the test for determining whether a public authority has violated Article 3 - by failing to take reasonable measures within its powers to avoid a real and immediate risk of harm, which it knows or ought to have known - is a stringent test that is not readily satisfied.
Application of the guidance to the two cases
Evidentially, therefore, the question was whether the various reports in the social services records raising cause of concern, individually or cumulatively, were such that the defendants should have been aware that there was a real and immediate risk of the claimant being subjected to Article 3 ill-treatment by his mother and, if so, did the defendants, judged reasonably, fail to take measures that they might have been expected to take to avoid that risk by not applying for a care order so that he would be removed from his mother’s care.
In both cases, Lewis LJ agreed with the judge that whilst the reports showed failings by the mother to ensure appropriate care for the claimant, they did not "provide a basis for concluding that there would be a risk of real and immediate treatment (or punishment) which would fall within the scope of Article 3 of the Convention" and "There was no other basis for concluding that there was such a risk."
Further, he agreed the judge was right to find that there was no realistic prospect of either defendant being found to have failed to take appropriate measures because they did not seek a care order. He emphasised that the Convention itself, and the case law of the ECtHR, recognise the importance of respecting and preserving family life and that the domestic legislation provides for support and services to assist the child and the family, and to help the family remain together, and he repeated the material passage from the judge's findings, that there was:
“no realistic prospect of AB establishing that any particular aspects of this disorderly and unstable family situation should have led the social services to conclude that a care order was required. While there were occasions when AB demonstrated significant distress in the family environment, he also showed strong ties to his mother. Cogent reasons would have been required for a care order bearing in mind the principle of respecting and preserving family life and such reasons were not present in July 2008 or at any time between April 2012 and June 2014.”
Summary judgment, and the role of liability expert evidence
Lewis LJ cautioned that in a summary judgment application the court should not conduct a "mini-trial" albeit that "the court must take into account not only the evidence actually placed before it but also the evidence that can reasonably be expected to be available at trial" (paragraph 81).
In this case, (paragraph 82) there was no other evidence that could reasonably be expected to be available. It was "unrealistic to suggest that social workers would be able to do more than refer to the contemporaneous documents made between about 8 and 16 years ago", and still less was it "likely that a school teacher or another pupil, could realistically or reasonably be expected to give material evidence about events."
Lewis LJ clearly stated:
"There was no need for expert evidence. This is not a negligence claim where a court would be considering whether a particular professional, such as a social worker, had acted in accordance with a body of expert opinion. On this aspect of an alleged violation of Article 3 of the Convention, the question was whether “judged reasonably”, either Birmingham or Worcestershire had failed to take appropriate steps to avoid a real and immediate risk of Article 3 ill-treatment. That was a question for the court, not for expert evidence".
Conclusion
The judgment offers helpful guidance to practitioners, local authorities and insurers seeking to address 'failure to remove' cases brought under Art 3 ECHR pursuant to the Human Rights Act.
There is now clear Court of Appeal authority to support the view that in weak cases with no real prospect of success it is right for the lower courts to "grasp the nettle" and determine the issues at an early stage and without a need for the time-consuming and costly process of trial. Further, it shows that proper analysis of the social services records is key and notes that evidence from social workers or teachers years after the event is unlikely to add to what can be ascertained from the records. Finally, the Court of Appeal has endorsed that there is generally no need for liability expert evidence in such cases. These are cases for infringement of ECHR protected human rights and not claims in negligence for breach of duty by social workers. Whether or not a Care Order would have been made in the circumstances alleged is ultimately a judicial decision.
There is also now clear guidance as to the considerations to take into account when assessing whether allegations cross the Article 3 threshold.
The claimant made written submissions seeking permission to appeal to the Supreme Court, which was rejected by the Court of Appeal. It remains to be seen whether that application for permission to appeal will be renewed and made directly to the Supreme Court.
Read the judgment AB v Worcestershire County Council & Anor [2023] EWCA Civ 529 (17 May 2023)
For further information, please contact Paul Donnelly or Bushra Ali
