High Court strikes out ‘failure to remove’ claim

The recent judgment from the High Court in the case of AB v (1) Worcestershire County Council and (2) Birmingham City Council [2022] EWHC 115 (QB) (see here) highlights the present challenges that potential claimants face when alleging breaches of the Human Rights Act 1998 {‘HRA’) against local authorities for failure to remove.

Case background

AB 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 by his mother. This claim was initially brought against the defendants in negligence but was dropped in July 2021. It was replaced with a claim for breach of Articles 3, 6 and 8 of the HRA in which the claimant has had to amend their particulars of claim four times.

The purpose of the High Court proceedings was to consider three applications:

  1. The defendant’s application for strike out of AB’s Article 6 claim under the HRA
  2. The defendant’s application for summary judgment, and
  3. AB’s application to re-amend his Particulars of Claim.

This blog focuses on the Deputy High Court Judge Obi’s decision in relation to AB’s claims brought for breach of Article 6 (right to a fair trial) and Article 3 (Freedom from inhumane and degrading treatment).

AB’s Article 6 claim

The claimant submitted that he had a civil right to be taken into care by the local authorities and thus a right to seek care proceedings to be issued. The judge rejected this submission stating that a child has no “right as such to seek a care order, or to have one made in respect of their care.” The judge stated that it was only in the local authority’s power to make such an application to the court for a care order. In doing so, the local authority is not acting on behalf of the child. Thus, the judge granted the defendant’s application to strike out the Article 6 claim.

The judge’s decision regarding the applicability of Article 6 will likely attract further development in this novel area of law as more claimants seek to pursue damages under the HRA rather than the standard route of negligence.

AB’s Article 3 claim

On hearing the second application, the judge considered whether AB’s Article 3 claim met the threshold for treatment or punishment falling within the scope of Article 3 and whether the defendants owed an operational duty or an investigative duty under Article 3 to the claimant.

Article 3 threshold

In considering the social services records of both BCC and WCC, the judge concluded that the mother’s treatment indicated a “variable standard of care” but it was not sufficient to establish that the local authorities knew or ought to have known, at the time, of the existence of a “real and immediate” risk of an Article 3 violation.  The judge found that the reported incidents which AB alleges as inhumane and degrading treatment were isolated and sporadic and AB was at risk of being subjected to poor and inconsistent parenting and neglect. Again, these incidents were not enough to prove that there was a realistic prospect of there being a real and immediate risk of such treatment falling within the scope of Article 3.

Operational duty

In examining whether there was an operational duty, the judge ruled that in order to establish such a duty it must be shown, in addition to there being a real and immediate risk, that the local authority had “care and control” or an assumption of responsibility and that the local authority has the capacity to remove the source of the risk. In proving that an operational duty was owed, the judge stated that the operational duty should be interpreted “in a way which does not impose an impossible or disproportionate burden on the authorities”.

Investigative duty

The judge adopted a narrow interpretation when considering whether an investigative duty was owed stating that “allegations of ill-treatment falling within the scope of Article 3 will invariably engage the criminal law”. What investigative duty refers to is a criminal investigation and not an investigation “for which the primary purpose is to establish, the existence of future potential harm and protect the victim against it.”  The judge concluded that if such a duty were to be breached, only very significant failures that give rise to unlawful conduct would be sufficient.

In considering the above issues, the judge ruled in favour of the defendants and granted the application for summary judgment as well as refused the claimant’s submission to re-amend their particulars of claim.

Comments

The high threshold required to prove a breach under Article 3 to show a “real and immediate” risk will be significant hurdle for future claimants to overcome. Potential claimants are also set back in having to establish that the local authorities have assumed responsibility, a significant bar which has already limited claims brought in negligence. Considering the significance of this judgment, we should expect to see further development in this area of law and expect further decision which offer more legal certainty for both claimants and defendant authorities.


Written by Louis Solomon, Trainee Solicitor at BLM (louis.solomon@blmlaw.com)

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