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No Article 3 duty owed in HRA 'Failure to Remove' claim

20 January 2022

Paul Donnelly, who acted on behalf of the Second Defendant and its insurers, reviews today's judgment in AB v (1) Worcestershire County Council (2) Birmingham City Council [2022], a case which has provided much needed judicial guidance on claims brought under the Human Rights Act 1998 alleging a failure by local authorities to apply to the court to remove children from their parents' care. 

See the case here: AB v Worcestershire County Council & Anor [2022] EWHC 115 (QB) 

Notwithstanding the decision in DFX v Coventry City Council [2021] and the strike outs in HXA v Surrey County Council [2021] and YXA v Wolverhampton County Council [2021] (both of which have been upheld on appeal - [2021] EWHC 2974 (QB)), local authorities and their insurers have continued to receive a high volume of Failure to Remove claims. With the common law position clear, 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 1989 Act"), such claims have been brought under the Human Rights Act 1998 ("the HRA").

These cases often allege that by failing to apply to the court for a Care Order to remove a child from his/her parents' care a local authority can be held liable for a breach of Articles 3, 6 and/or 8 of the European Convention on Human Rights, that is:

  • Article 3 – “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”  
  • Article 6 – the right to “the determination of ... civil rights and obligations…”
  • Article 8 – the "right to respect for private and family life"

In this article DWF Partner Paul Donnelly, who acted for the successful local authority Defendant and its insurers in DFX & Others v Coventry City Council [2021] and the Second Defendant, Birmingham City Council ("BCC") in AB, looks at the implications of this much needed judicial clarity provided by Ms Margaret Obi, sitting as a Deputy High Court Judge, on the application of Articles 3 and 6 (Article 8 having been withdrawn in submissions in AB, as it was in DFX, following acceptance that the allegation added nothing over and above the Article 3 claim).

Background

AB lived in Birmingham between July 2005 and November 2011 when he moved to Worcestershire until January 2016.  He alleged that he was abused and neglected whilst in the care of his mother. He was the subject of an Interim Care Order in May 2015 followed by a Final Care Order in January 2016.  AB asserted that the Second Defendant, BCC, should have applied for a care order around or shortly before July 2008 and that the First Defendant, Worcestershire County Council ("WCC"), should have similarly applied from about April 2012 and that by failing to take this step by these dates the Defendants had breached his ECHR Article 3 and 6 Rights (the Article 8 claim having been withdrawn, as discussed above).

In support of his claim against BCC, AB relied on seven reports in the Social Services' records throughout 2005 to 2009. Those reports consisted of him living in a dirty home, not being fed properly, being dirty and smelly, having bleached hair which had left him with chemical burns, some bruising to his legs caused by his mother's partner, being locked in a room, struck by a third party with his mother's consent, dressed up in women's clothes for the amusement of others, pushed to the ground by his mother and slapped by a babysitter.

In addition, AB relied on a further four entries from the WCC Social Services' records dated 2013 to June 2014, which identified AB having been seen walking unaccompanied at night, neglect including squalid home conditions and emotional and physical abuse including his mother having pushed him, sat on him, bumped his head, scratched him and dragged him upstairs with her hands around his throat.

Strike out / Summary Judgment

The Defendants applied for strike out and summary judgment and referring to ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] and Owens v Chief Constable of Merseyside Police [2021] submitted that Obi J should "grasp the nettle" and determine matters of law to conclude that the claims under both Article 3 and 6 had no realistic prospect of success.

The Article 6 claim

Obi J accepted the Defendants' submissions that the underlying basis of the Article 6 claim was inherently flawed and the claim doomed to fail. She therefore struck out the Article 6 claim.

The applicability of Article 6 in civil matters depends upon the existence of a genuine and serious "dispute" which must relate to a "civil right" which must be recognised in domestic law.  Having considered in detail the statutory scheme operated by a local authority's social services department (particularly, sections 17, 31 and 47 of the 1989 Act) Obi J accepted the Defendants' submissions that Re S [2002] HL establishes that a child has no right to seek a Care Order or to have one made in respect of their care and, as Lambert J discussed in DFX, when making such an application the local authority is not acting on the child's behalf.  

The Article 3 claim 

The Article 3 claim required AB to prove that he was subjected to treatment of sufficient severity to cross the Article 3 threshold and that there were steps which BCC or WCC should have taken which had a reasonable prospect of preventing such treatment. Moreover and in any event, as a point of law AB would also have to establish either:

  1. That there was a breach by the Defendants of an investigative duty owed under Article 3, in that the Defendants failed to properly investigate the reports made to them; and/or 
  2. That there was a breach of an operational duty to take steps reasonably available to the Defendants which had a reasonable prospect of preventing Article 3 treatment (i.e. applying for a Care Order);

The Article 3 threshold

Obi J stated "it is clear that inhumane or degrading treatment is set at a high level" and discusses much of the European case law on the threshold for Article 3, including

  • Z v UK [2002] where it was found that neglect and inadequate home standards may meet the threshold depending on the seriousness and severity. 
  • Ireland v UK [1979-80] where treatment was found to be "degrading" because it was "such as to arouse in their victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance".  
  • VK v Russia [2018] - where the cumulative effect of the conduct rendered the treatment "inhumane" because: "it had been premeditated, had been applied for hours at a stretch and had caused either actual bodily injury or intense physical and mental suffering" and also "degrading" because "it had [caused] feelings of fear, anguish and inferiority capable of humiliating and debasing them… [it] must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment".
  • Tyrer v UK [1978] where judicial corporal punishment on a 15 year old boy in the form of three strokes of the birch, which raised, but did not cut the skin, was not sufficiently severe so as to amount to inhumane punishment.
  • Costello-Roberts v UK [1993] where smacks to the buttocks administered as punishment through shorts with a soft soled shoe causing no visible injury did not attain the minimal level of severity to amount to degrading punishment. 

Obi J discussed in detail the specific incidents relied on by AB within the Social Services records and found that: 

"although it is asserted that these incidents amounted to ill treatment falling within the scope of Article 3 there is no realistic possibility of that being established… in my judgment, none of the reported incidents, taken at their highest either individually or cumulatively, involved actual bodily injury, intense physical or mental suffering, or humiliation of the severity required to meet the Article 3 threshold.  Nor is it arguable that [from July 2008 re BCC or from April 2012 re WCC] there was a "real and immediate risk" of Article 3 treatment".

Referring to the threshold test in Osman v UK [1998] (which applies equally to Article 3 claims as to Article 2) and Lord Dyson's judgment in Rabone v Pennine Care NHS Trust [2012] Obi J considered therefore that (1) AB could not realistically establish that BCC or WCC knew or ought to have known of the existence of a real and immediate risk of AB suffering Article 3 treatment, and (2) that AB could not even arguably hope to establish that BCC or WCC failed to take measures within the scope of their powers which had a real prospect of avoiding that risk (see E v United Kingdom [2003]). 

Obi J found that whilst AB was at risk of being subjected to poor and inconsistent parenting and neglect, there was no realistic prospect of establishing that any aspects of the disorderly and unstable family situation should have led Social Services to conclude that an application for a Care Order was required.

No applicable investigative duty under Article 3

Quoting from D v Commissioner for Police for the Metropolis [2019] Obi J accepted the Defendant's submissions that the investigative duty as described in D refers to a criminal investigation discharged by the Police and prosecuting authorities.  The investigative duty does not apply to a local authority social services department undertaking, for example, child protection investigations under section 47 of the 1989 Act. In any event, the complaints to the Defendants had been investigated and AB had no realistic prospect of success on this issue.

No applicable operational duty under Article 3

Obi J noted that the question of whether a local authority owes an Article 2 (right to life) operational duty to a child in the community, with whom Social Services had involvement, but who was not in their care and control, was expressly considered in R v HM Coroner for the County of Kent [2012] where the Court found:

"there was…no operational duty in place…and, accordingly, no scope for an Article 2 inquest.  The Claimant did not have parental responsibility for [the child] and he was not "in care" in the sense that no proceedings had been commenced under Section 31 of the Children Act 1989.  He was not therefore living within the control or under the direct responsibility of the local authority".

Obi J noted that it was observed in Osman and Rabone that the operational duty should be interpreted "in a way which does not impose an impossible or disproportionate burden on authorities" particularly "in terms of priorities and resources" and that the Court in Kent had also held that the measure of responsibility arising from the provision of services to children in need under Section 17 of the 1989 Act was insufficient to give rise to an operational duty because it would impose an impossible or disproportionate burden on local authorities.

Obi J was "satisfied" that the "care and control" aspect of the operational duties under Article 2 and Article 3 are similar, if not identical and accepted the submission made by BCC's counsel, Ms Lody, that the touchstone is "care and control" or "assumption of responsibility and the capacity to control the immediate risk, for example by arresting or detaining or otherwise removing the source of the risk otherwise the duty would be too burdensome".  

Therefore, Obi J accepted the submission that BCC did not have care and control of AB while he was living in its area and the operational duty was therefore not engaged.  If there was no operational duty in place, there can be no breach of it.  Accordingly, Obi J stated that had she not already determined that the treatment did not meet the Article 3 threshold, she would have found that the claim against BCC had no realistic prospect of success due to the absence of "care and control".  

Conclusion

We noted in our article on DFX v Coventry that the judgment of Lambert J in that case offered little guidance into the position under the HRA. For all those interested in such cases – whether Claimants, lawyers, local authorities and/or insurers - this judgment provides much needed judicial clarity on the application of the HRA in Failure to Remove cases.

The Claimant in AB has confirmed his intention to seek permission to appeal and so there may be more twists and turns down the road yet but without doubt this case provides an important step in starting to address and clarify the significant hurdles that must be navigated when Failure to Remove cases are brought under the HRA.

For further information please contact:

Paul Donnelly  - Partner

Further Reading