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The Court of Appeal (CoA) has upheld the decision of the High Court to grant summary judgment to the defendant local authorities in a case alleging breach of Article 3 of the Human Rights Act (HRA) 1998 for failure to remove the claimant from his mother’s care. In doing so, the CoA has provided useful guidance which will assist in dealing with these claims.
Background to the judgment
The claimant, AB, lived within the area of both defendant local authorities for a number of years during his childhood. He resided in the area of Birmingham City Council (BCC) from 2005 to 2011 and Worcestershire County Council (WCC) from 2011 to 2016.
In 2020, he issued a claim for damages against both defendants arising from the alleged failure by social services to remove him from his mother’s care. It was alleged that he suffered ill treatment and neglect at the hands of his mother during this time.
It was alleged in the claim that the following reports were made to social services:
- BCC - that the claimant was living in a dirty home, not being fed properly, was dirty and smelly, had bleached hair which had left him with chemical burns, had bruising to his legs caused by his mother's partner, was locked in his room, was struck by a third party with his mother's consent, was dressed up in women's clothes for amusement, was pushed to the ground by his mother and slapped by a babysitter.
- WCC - that the claimant had been seen walking unaccompanied at night, that his mother had pushed him, sat on him, bumped his head, scratched him, that his mother had dragged him upstairs with her hands around his throat and that he had disclosed his mother was emotionally and physically abusive.
The claim alleged, amongst other matters, a breach of the defendants’ operational duty to protect the claimant under Article 3 of the European Court of Human Rights (freedom from inhuman and degrading treatment).
The defendants applied for summary judgment of the Article 3 claims against them. At first instance, Margaret Obi, sitting as a Deputy High Court judge, carried out a full review of the reports received by social services and concluded that none of these “taken at their highest either individually or cumulatively, involved actual bodily injury, intense physical suffering, or humiliation of the severity required to meet the Article 3 threshold”. There was therefore no realistic prospect of the claimant establishing a breach of Article 3.
In addition, the High Court accepted the defendant’s submission that there should be an element of “care and control” by the defendant before any operational duty under Article 3 was owed and that was absent in this case. Summary judgment was therefore granted for the defendants on the Article 3 claim.
The claimant appealed to the Court of Appeal.
The judgment of the Court of Appeal
The Court of Appeal dismissed the claimant’s Appeal. The leading judgment was given by Lord Justice Lewis with whom Lord Justices Baker and Dingemans agreed. The Court helpfully defined the State’s operational duty under Article 3 as comprising four components as follows:
“There needs to be (1) a real and immediate risk (2) of the individual being subjected to ill-treatment of such severity as to fall within the scope of Article 3 of the Convention (3) that the public authority knew or ought to have known of that risk and (4) the public authority failed to take measures within their powers which, judged reasonably, might have been expected to avoid the risk” (paragraph 57).
The Court of Appeal found that:
- BCC - two of the seven reports were considered to be inaccurate and therefore showed no real and immediate risk of ill treatment (para 66). Regarding the remaining five, these were not sufficient to meet the required threshold. The Court held that “The Judge was correct to conclude that 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 amount to Article 3 ill-treatment. The reports did not, therefore, 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” (para 70).
- Secondly, considering the factual background, there was no basis on which it could be said that BCC should have sought to remove the appellant from the care of his mother in any event (para 72).
- WCC - having analysed the four reports in that case, there was also no “real and immediate risk” at the material times.
- Again in respect of WCC it was noted that, judged reasonably, it did not fail to take appropriate measures (para 78).
By the time the appeal was heard, the defendants had conceded the “care and control” issue, accepting this was not necessary for the operational duty to apply, which the Court of Appeal endorsed. However, that did not make any difference to the result, the appellant having failed on the principal ground (Article 3).
Comment
This is a useful decision which confirms the appropriate test to be applied to alleged breaches of Article 3 in a failure to remove context, and provides an illustration of how this works in practise. We make the following observations:
- The Court emphasised that the State’s obligation under Article 3 should not impose a disproportionate burden on authorities and that a Court must equally have regard to the countervailing interest of preserving family life under Article 8. In our view, the Court adopted a realistic approach in this case and this should be welcomed by defendants and their insurers.
- The decision is obviously highly fact specific but equally there are many similar cases we see as defendant lawyers, involving neglect and/or sporadic involvement of social services over several years. This case is likely to provide a barrier to many of those cases.
- The case did not concern sexual abuse but it is likely that such abuse would fall to Article 3 and as such, we expect to continue to see claims brought under the HRA in those circumstances.
- One particularly helpful point for the conduct of claims for failure to remove pursued under the HRA rather than in negligence is that the Court specifically rejected the suggestion that expert evidence was necessary, stating that the question was whether “judged reasonably” the defendants had failed to take reasonable steps, and that was a matter for the Court not an expert. This point has been the subject of debate between those acting for claimants and defendants in recent years. This indication from the Court of Appeal will certainly be welcomed by defendants and their insurers, the instruction of social work experts is of course costly in these type of cases.
- It appears that the “care and control” issue is no longer a barrier for claimants and going forward, defendants will need to focus upon the issues of threshold and breach instead, for which this decision provides some useful guidance as noted.
In contrast to the recent CoA judgment in HXA v Surrey County Council; YXA v Wolverhampton County Council [2022] which allowed the claimants’ appeals, in the present case the CoA agreed that, there being no suggestion that further evidence was to be adduced at trial, to proceed to trial would not materially change the position.
In conclusion, this decision will be welcomed by defendants especially as, following CN v Poole BC [2019] and DFX v Coventry City Council [2021], claimants have perhaps seen the HRA as a good alternative to common law claims. Whilst this judgment is of course fact specific we predict that fewer HRA claims for failure to remove will be brought. With HXA already on its way to the Supreme Court, if leave were to be sought and granted in this case too, then we may obtain some broader guidance on how the Courts should treat both negligence and HRA claims. We also expect that this case will have implications beyond the social care world, and extend to claims in other sectors involving lower level breaches of the HRA.
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Public sector
United Kingdom