On 21 November 2023, the Supreme Court refused the claimant’s application for permission to appeal the decision of the Court of Appeal in AB v Worcestershire County Council and Birmingham City Council. It is now settled law that allegations of low level neglect and physical abuse will not meet the threshold for Article 3 so as to enable a claim to be brought under the Human Rights Act 1998.
The claim was brought under the Human Rights Act 1998 against two local authorities for failing to remove the claimant from his mother’s care during childhood. It was alleged that the claimant suffered ill treatment and neglect by his mother during this time.
At first instance, the High Court granted an application for summary judgment by the defendants in the claim for breach of the claimant’s rights under Article 3 (freedom from inhuman and degrading treatment). The Court found that the treatment alleged by the claimant did not meet the required threshold.
The claimant appealed to the Court of Appeal. However, the Court of Appeal judges agreed with the judge in the High Court that there was no arguable breach of Article 3. Looking at the treatment alleged and the actions taken by social services, there was no real and immediate risk of Article 3 treatment in this instance. The Court of Appeal also helpfully set out the test for establishing a breach of Article 3.
The Supreme Court has now confirmed there is to be no further appeal in this case. In refusing permission, the Court indicated that the application did not raise an arguable point of law.
The application of Article 3 was considered in detail - and the same conclusion reached - at both first instance and on appeal here. The Court of Appeal also clearly set out the test to be considered in an Article 3 case. In these circumstances it may not be seen as surprising that the Supreme Court refused permission for this case to be considered further.
The decisions of both the High Court and Court of Appeal have provided practitioners in this area with welcome guidance as to when a Human Rights Act 1998 claim may be brought for failure to remove.
There will, of course, remain cases where the treatment alleged meets the Article 3 threshold, so a claim may be brought, such as claims involving sexual abuse. We expect however, to see fewer claims brought under the Human Rights Act 1998 for failure to remove as a result of this case.
We now await the decision of the Supreme Court in the conjoined appeals of HXA v Surrey County Council and YXA v Wolverhampton County Council which it is hoped will provide clarity as to when a claim might be brought in negligence for failure to remove.