On 17 May 2023, the Court of Appeal confirmed that claims for failure to remove under Article 3 of the European Convention on Human Rights must reach a minimum level of severity and that courts can determine these claims by way of summary judgment.
Since the 2019 Supreme Court case of CN & GN v Poole Borough Council (‘Poole’) claims for failure to remove are difficult to bring in negligence. They are now increasingly formulated under the Human Rights Act 1998 (HRA) – which provides for direct applicability of the European Convention on Human Rights. The purpose is to circumvent the stringent criteria that apply to claims in negligence. Claims are usually made under Article 3 (absolute prohibition of torture or inhuman or degrading treatment or punishment), Article 8 (right to family life) and Article 6 (right to a fair trial). One recurrent issue is the threshold for Article 3: what are the minimum requirements (level of harm, urgency) before Article 3 is engaged? Is this assessed individually or cumulatively? Another issue is whether such claims need to go to trial or whether the courts can strike out and/or enter summary judgment on weak claims.
Yesterday the Court of Appeal handed its decision in the case of AB v (1) Worcestershire County Council and (2) Birmingham City Council  EWCA Civ 529.
Lewis LJ gave the only judgment. This decision confirms that Article 3 is not engaged unless the threshold is reached and clarifies how this applies to failure to remove. It also confirms that courts can enter summary judgment, and a trial is not always necessary.
AB is now 20 years old. He alleged that two local authorities, Worcestershire County Council (WCC) and Birmingham City Council (BCC) failed to remove him from his mother’s care between 2005 and 2014, during which time he was subjected to abuse and neglect. The claim was first made in negligence and re-amended many times until it was pursued for breaches of Articles 3, 6 and 8. The two local authorities applied to strike out (Article 6 claim) and for summary judgment (all claims). The High Court judge (Margaret Obi J) entered summary judgment for the local authorities on the Article 3 claims. Amongst other things, she found that the pleaded fact did not reach the required threshold. The claimant appealed.
Lewis LJ repeated the 4 criteria for a positive obligation (operational duty) under Article 3:
(1) ill-treatment reaches a minimum level of severity;
(2) the risk of ill-treatment must be real and immediate;
(3) the authorities either knew or ought to have known about this risk; and
(4) the authorities failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid the risk.
Lewis LJ went through the pleaded allegations. The case against BCC alleged seven incidents over five years (neglect, bruising by the mother’s friend, being locked in his bedroom and often going hungry, struck by a friend of his mother; dressed in women’s clothes for the amusement of her friends; being pushed to the ground and slapped by a babysitter) while the case against WCC alleged four incidents over three years (being left outside late at night, two separate complaints of occasional physical abuse; one complaint of emotional and physical abuse).
The social care records showed that some of the allegations were unsubstantiated or malicious, and that some incidents had been sporadic or caused by third parties. For instance, during BCC’s involvement the isolated act of chastisement was done by a third party. During WCC’s involvement the incidents were sporadic, and AB was closely monitored by social services until he was removed from his mother’s care. This was a case of poor parenting, but was it a case of inhuman and degrading treatment?
Lewis LJ agreed with the judge at first instance that the incidents did not reach the required threshold, either individually or cumulatively.
“. All the circumstances need to be considered in assessing whether the reported concerns amounted to evidence ill-treatment contrary to Article 3. These include the circumstance in which the reported injury came to be inflicted, the severity of the injury, and the age and vulnerability of the individual involved.”
He was also sensitive to the local authorities’ duty to promote the upbringing of children by their families in so far as it is consistent with their duty to safeguard and promote the welfare of children in their area. An application for a care order is the last resort. He cited an earlier case in the European Court of Human Rights:
“The Court has had previous occasion to acknowledge the difficult and sensitive decisions facing social services and the important and countervailing principle of respecting and presenting family life.”
Finally he determined that it was appropriate to decide the case by way of summary judgment because oral evidence would not assist on this occasion. There was no need for an expert report as this was not a claim in negligence.
This is a common-sense decision. Weak claims for breach of Article 3 can be kept away from the courts, and expert social work evidence is not a prerequisite. It also serves as a reminder of the fundamental difference between claims in negligence and claims under the HRA: it is for the courts to decide whether “judged reasonably” a local authority had failed to take appropriate to avoid a real and immediate risk of Article 3 ill-treatment.
We expect future cases to test what precise type of ill-treatment will meet the ‘minimum level of severity’.