Judicial clarity provided on the Human Rights Act and ‘failure to remove’ cases
AB v Worcestershire County Council & Anor [20.01.22]
This case provides detailed judicial consideration of the possible resulting claims under the Human Rights Act (HRA) 1998. Whilst briefly considered in the case of DFX and others v Coventry City Council , when Lambert J found that the claimant’s inability to prove a breach of duty in negligence caused the claim under the HRA to likewise fail, she did not consider the issues any further.
The claimant (AB) brought a claim against Worcestershire County Council and Birmingham City Council having lived in both areas during his childhood. He alleged that he was abused and neglected whilst in the care of his mother.
The focus of AB’s claim was that both local authorities should have applied for a care order to remove him from his mother’s care earlier than they did, and to protect him from harm. There were periodic referrals to social services and periods of accommodation, after which he was made subject to a final care order.
Claims were pursued in negligence (subsequently abandoned) and also under Articles 3, 6 and 8 (also abandoned) of the HRA.
The defendants applied to strike out the claim and for summary judgment on the basis that the claims under the HRA had no real prospects of success.
The court’s decision
Article 6 of the HRA concerns an individual's right to "the determination of [...] civil rights and obligations." Whether Article 6 applies in civil matters firstly depends on the existence of a genuine and serious "dispute", which must relate to a "civil right" which can be said, at least on arguable grounds, to be recognised under domestic law. AB appeared to assert that he had a civil right to be taken into care.
The court concluded that a child has no 'right' to seek a care order. It is only a local authority (or an authorised person) that can apply to the court for such an order. Further, the local authority is not acting on behalf of the child, but rather, the child is a respondent to the application and is separately represented. Therefore, the interests of the local authority and the child will not necessarily align.
The court also found that there was no relevant dispute in this case. The defendants had not done anything to interfere with AB's rights or taken any action in relation to which such a dispute could have arisen.
The claimant’s claim under Article 6 was struck out in short order.
Article 3 provides that "no one shall be subjected to torture or to inhuman or degrading treatment or punishment." It imposes positive duties to take adequate steps to prevent individuals from suffering treatment at the hands of private individuals. This involves two positive duties:
- An operational duty: a duty to take reasonable steps to protect individuals from ill-treatment falling within Article 3.
- An investigative duty: a duty to investigate an arguable breach of Article 3 in order to increase the likelihood of future compliance.
Margaret Obi, sitting as a Deputy High Court Judge, found that most of the incidents which were considered by the local authorities in this case did not involve persistent or serious abuse and negligence sufficient to fall under Article 3.
On this basis, the Article 3 claim was bound to fail in relation to duty of care/causation.
Notwithstanding these initial findings, she went on to consider the operational and investigative duty.
In relation to the operational duty, Birmingham City Council advanced arguments that no operational duty could be owed to the claimant, having never been under their care and control (and thus a lack of any assumed responsibility). This was accepted; such a duty would be too burdensome.
Both defendants submitted that the investigative duty was directed towards investigation of criminal behaviour and subsequent punishment, which was accepted by the court. It was held that such an investigation did not apply to local authorities undertaking investigations under the Children Act 1989. In any event, only very significant operational failures would give rise to such a breach of duty, which was not the case here.
The claimant’s claim under Article 3 was struck out.
This further guidance from the courts will be welcomed by local authorities.
What constitutes inhumane and degrading treatment under Article 3 is not clearly defined, especially in relation to neglect. Looking to the future, it will be difficult for claimants to establish a breach of Article 3 in the absence of severe neglect and /or abuse.
However, the “control” issue under Article 3 raises important questions including, when does a local authority demonstrate “control” and does this require a care order? No doubt we will see further decisions on the point before the issue is crystalised.
Related item: Further developments in ‘failure to remove’ claims