09 March, 2022
Deputy High Court Judge Margaret Obi delivered a significant judgment in the case of AB v Worcestershire County Council & Anor  EWHC 115 (QB). Breaches of Article 3 and Article 6 of the ECHR were being alleged by the Claimant.
The claim for AB was brought on his behalf by the Official Solicitor due to him being a protected person as he did not have the capacity to conduct proceedings in his own right. Between July 2005 and November 2011, AB lived within Birmingham City Council's authority and between November 2011 and January 2016, AB lived within the jurisdiction of Worcestershire County Council. During these periods, AB alleged that he was abused and neglected whilst in the care of his mother. AB alleges numerous incidents of abuse and neglect, with some including:
The two Local Authorities had sporadic involvement with the family with AB being accommodated by Worcestershire Country Council on several occasions in 2013. An Interim Care Order was made in May 2015 following AB being accommodated in August 2014 due to allegations he had sexually abused a female friend of his younger brother. Subsequently, a Final Care Order was made in January 2016.
AB alleged that whilst he was in the local authority of Birmingham City Council, he should have been made subject of a Care Order around or shortly before July 2008 and likewise in Worcestershire County Council from April 2012.
During Court procedures, both Defendant's applied for the claims to be struck out and for summary judgment on the basis that the Claimant had no real prospect of success in their claims.
District High Court Judge Margaret Obi needed to establish whether AB would be successful in his claim for breaches of Article 3 (Freedom from torture and inhuman or degrading treatment) and Article 6 (Right to a fair trial). AB submitted not only one particulars of claim in relation to these alleged breaches, but five. The previous particulars of claim also brought claims for breach of Article 8 and negligence; however, these were abandoned. Altogether, AB relied on 12 entries and reports from his social care records as to the abuse he endured over the years and the failures of the two Authorities to act and remove him from the abuse.
Article 6 protects an individual's right to a fair trial. Article 6 was dealt with quite quickly by DJ Obi. The Claimant alleged that the Defendant's had failed to take AB into care and that he had a civil right to be taken into care.
Following the Defendant's applications to strike out this claim, DJ Obi concluded that no child or individual has the right to seek a care order and this decision can only be made by a Local Authority of an authorised person as per the Children Act 1989. The Claimant's Article 6 claim was therefore struck out.
Article 3 imposes a positive duty on the State to take adequate steps to prevent individuals from suffering inhuman and degrading treatment at the hands of private individuals. This duty is split into two parts: the operational duty and the investigative duty.
The treatment in question must attain a minimum level of severity. Whilst this is objective it shall be considered on the circumstances of the case. As per the case of Rabone, an operational duty will be held to exist where there has been an assumption of responsibility by the state for the person's wellbeing. It must then be established that the Local Authority knew or ought to have been aware of the existence of a real and immediate risk to life.
It was found in the case of AB that the operational duty was not engaged and therefore there could be no breach of it.
A significant failure of this duty is needed to give rise to unlawful conduct. AB clarifies that the investigative duty will relate to Police authorities only and their duty to investigate crimes.
The particulars of claim established by AB failed to provide an "explanation of what in those social services reports is alleged to amount to Article 3 treatment". The Claimant had failed "to identify what specifically amounted to a 'real and immediate' risk of Article 3 treatment around July 2008 and April 2012 so as to trigger the defendant's operational duty and require care proceedings to be initiated". The Claimants had asserted the possibility of an Article 3 claim but the 'possibility' was not enough to amount to a successful claim.
It was not suggested that any further evidence in relation to the allegations would be brought before the Court if the matter were to go to a full trial as it was not pleaded that the events relied upon were only the 'tip of the iceberg'. When assessing the events that the claim is based upon, AB's recollection and the social worker reports were sometimes two different versions.
In order for AB to be successful in their Article 3 claim, they must have proven the existence of a "real and immediate risk" of a violation of this Article. It had been detailed in the case Chronology and the care records that the care provided by AB's mother was of a variable standard however there was nothing to show a "real and immediate" risk that AB would suffer significant harm.
Within Birmingham City Council's records, there was nothing to show that they should have taken steps to start care proceedings. They did not have actual or constructive knowledge that AB was at risk of such treatment prior to the events happening. Due to the draconian nature of a Care Order, it is always emphasised that a Care Order is the last resort and children are normally best looked after within the familial home. Therefore, whilst AB was living within the Birmingham City Council area there was nothing to warrant the commencing of Care proceedings or a Care Plan to be put in place.
Whilst under the care of Worcestershire County Council, AB and his brother were taken into police protection following them being in the care of Mrs B in April 2012. It is accepted that the living arrangements with Mrs B were unsatisfactory which AB's mother was aware of, however, there was no allegation of the children being placed with her again. When the children were visited with their mother they were being cared for appropriately. The children were also placed on Child Protection Plans following an initial assessment which caused them to be categorised under neglect. However, following the review period, it was agreed that the children were no longer at risk and they could be removed from the register.
AB was also taken into foster care whilst under the care of Worcestershire County Council however in August 2013 it was agreed that he did not need to be made subject to a Child Protection Plan. Whilst in foster care, disclosure was made regarding AB's mother's historical abuse and 'being horrible'. However, as this disclosure was made at a time of AB being in foster care, there was no "real and immediate" risk of harm from his mother. DJ Obi concluded that whilst in the care of Worcestershire County Council there was no treatment which would have surpassed the Article 3 threshold.
Therefore, Deputy High Court Judge Obi concluded that albeit AB did not have a good start in life due to the inadequacy of his mother's parenting skills, none of the reports provided the necessary evidence to reach the threshold required to pursue a successful Article 3 claim. The striking out of this claim will greatly assist Local Authorities in seeking to defend such Human Rights Act claims, particularly where a failure to remove is alleged. AB highlights the steps and hurdles that Claimants are required to get over in order to be successful in their Human Rights Act claims.
However, as of 31 January 2022, it has been confirmed that the Claimants are seeking to appeal this decision and so both those involved in social care and the legal profession will have to await the conclusion of the appeal to further assess the impact of this case going forward.
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