02 June, 2023
On Wednesday 17 May 2023, the Court of Appeal handed down its judgement in AB v Worcestershire County Council and Birmingham City Council dismissing the Claimants appeal and upholding the deputy High Court Judge Obi's decision to give summary judgment to both defendants.
The Appellant, ("AB"), was born on 5 October 2002 and lived around the second respondent, Birmingham City Council ("Birmingham"), between July 2005 and November 2011, and the area of the first respondent, Worcestershire County Council ("Worcestershire") between November 2011 and January 2016. AB claimed damages for, amongst other things, a breach of his rights under Article 3 of the Convention, freedom from torture and inhuman or degrading treatment. In essence, the particulars of claim, which underwent a number of amendments, alleged that he suffered ill-treatment and neglect by his mother which was of such severity that it evidenced a real and immediate risk that he would suffer further ill-treatment falling within the scope of Article 3 if left in the care of his mother and, consequently, the respondents should each have removed him from his mother's care to avoid that risk.
The two Local Authorities had sporadic involvement with the family with AB being accommodated by Worcestershire County 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 subject to a Care Order around or shortly before July 2008 and likewise in Worcestershire from April 2012.
The appeal did not deal with the article 6 arguments raised at the previous hearing as prior to the appeal hearing both Local Authorities submitted that a requirement for AB to be in the care and control of them was not consistent with the established case law or the scheme of the Children Act 1989 and therefore conceded this ground.
The issue therefore before the Court of Appeal concerned an alleged violation of the positive obligation on the two public bodies involved to take operational measures to protect AB against the risk of being subject to ill-treatment contrary to Article 3 of the Convention. The ill-treatment alleged was parental abuse and neglect.
At paragraph 57 of the Judgment Lewis LJ held that the obligation compromises of four components, and there needs to be 1) a real and immediate risk 2) of the individual being subjected to ill-treatment of such severity 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.
The ill-treatment must reach a minimum level of severity if it is to fall within the scope of Article 3. LJ Lewis at paragraph 59 states that the assessment of that level is, in things, relative and depends on all the circumstances of the case, principally the duration of the treatment or punishment, its physical or mental effects and, in some cases, the sex, age, and state of health of the victim and he refers to paragraph 177 of X v Bulgaria (2021) 50 BHRC 224.
In considering whether the authorities know or ought to have known at the time that there was a real and immediate risk of ill-treatment contrary to Article 3 and the court should assess the events as they unfolded at that time of the alleged violation and not a risk that may arise at some stage in the future.
At paragraph 62, Lewis LJ stated that the positive obligation is to be interpreted in such a way as not to impose an impossible or disproportionate burden on the authorities which also must have regard to the right to respect for family and private life under Article 8 of the Convention.
Lewis LJ having considered this was satisfied that Deputy High Court Judge Obi was correct to conclude that there was no realistic prospect of AB establishing that Birmingham was in breach of its operational duty under Article 3 of the Convention. In addition, he was also satisfied that the Judge was entitled to conclude there was no real and immediate risk to AB if he was left in the care of his mother and Worcestershire did not fail to take appropriate measures.
In the original summary judgement, The Deputy High Court Judge, Margaret Obi, granted that application and held that none of the incidents of mistreatment reported by AB, considered individually or cumulatively, involved actual bodily harm, or physical or mental suffering, or humiliation of the severity required to amount to treatment contrary to Article 3 of the Convention.
Claimant's Counsel submitted in the appeal that Deputy High Court Judge Obi was wrong to resolve these claims by means of summary judgment and the claims should have gone to full trial given other evidence that might reasonably have become available. Lewis LJ at Paragraph 82 stated that there was no other evidence that could reasonably be expected to be available, AB would not be able to give evidence of the relevant events and it is unrealistic to suggest that social workers would be able to do more than refer to the contemporaneous records which were already to hand. In addition, there was no need for expert evidence. Lewis LJ went on to advise that it was correct to deal with the claim by way of summary judgment.
Lewis LJ therefore concluded that the appeal was dismissed and there was no realistic prospect of AB establishing that either of the Local Authorities had violated Article 3 of the Convention by failing to take steps to seek a Care Order to remove AB from his mother's care at the material time. There was no real and immediate risk of AB being subjected to treatment by his mother that would fall within the Scope of Article 3 and neither Local Authority failed to take appropriate measures to address any risk that might exist by adopting measures which were less intrusive than seeking a Care Order.
The judgement suggests therefore that low level neglect would not reach the threshold of Article 3 of the convention. However, this would depend on the level of neglect but if the case was based on physical or sexual abuse, this would still meet the threshold.
The fact that the article 6 argument was dropped and not considered at appeal means that there is no requirement for a child to be in the care and control of the Council before any positive obligation would bite. As such HRA arguments remain open to be argued in failure to remove cases.
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