Jack Harding examines case law on failure to remove claims and the application of the Osman test in the context of domestic violence.
In a claim for a violation of the operational duty under articles 2 or 3  of the European Convention of Human Rights, the applicant must satisfy the ‘Osman' test . Where it is alleged that the victim was killed, or subjected to inhumane or degrading treatment, by third parties, as distinct from agents of the state, it must be shown that:
“the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk”
This is unquestionably a high threshold, reflecting as it does the need for clear evidence before the imposition of liability on the state for the criminal acts of persons for whom they have no direct responsibility. In R (on the application of A) v Lord Saville of Newdigate  1 WLR 1249, Lord Phillips of Worth Matravers MR observed that:
“The search for a phrase which encapsulates a threshold of risk which engages article 2 is a search for a chimera . . . Of one thing we are clear. The degree of risk described as ‘real and immediate’ in Osman v United Kingdom 29 EHRR 245, as used in that case, was a very high degree of risk calling for positive action from the authorities to protect life. It was ‘a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party’ which was, or ought to have been, known to the authorities . . . Such a degree of risk is well above the threshold that will engage article 2 when the risk is attendant upon some action that an authority is contemplating putting into effect itself”.
It is also well established that the assessment of this risk must be based exclusively upon what is known or ought to have been known at the time, without the benefit of hindsight. Thus, Lord Hope in Mitchell v Glasgow City Council  1 AC 874 stated: “The court must try to put itself in the same situation as those who are criticised were in as events unfolded before them. These events must, of course, be in their whole context”
The majority of the leading cases in which the Osman test has been analysed and applied domestically, and at Strasbourg, have involved article 2 (as distinct from article 3) and have arisen out of specific, self-contained incidents leading directly to the death of the victim. Thus, for example, Osman itself concerned a teacher who had injured a student to whom he had developed an inappropriate attachment, and who had killed the student’s father. Prior to this incident he had carried out attacks on the family’s property and threatened the deputy head teacher who had expressed strong concerns regarding his behaviour.
The application of the test to situations of domestic violence and abuse (whether or not leading to death) which have developed over a longer period of time, rather than as part of defined incident or series of short incidents, has always been more problematic. In those cases where claims arising out of alleged mistreatment or abuse have reached the European Court, the immediate risk of death or mistreatment has either been conceded (see for example E v United Kingdom  1 FLR 348, Z v United Kingdom  34 EHRR 3) or the Court has addressed the issue on the facts without grappling specifically with the formulation of the Osman test itself (for example in DP v United Kingdom  36 EHRR 14).
In Kurt v Austria  74 EHRR 6, the Grand Chamber of the European Court of Human Rights has for the first time addressed this issue head-on. The claim concerned the allegation by K that the Austrian authorities had failed to protect her and her children from violence by her husband. In May 2012 K had filed for divorce on the grounds of domestic abuse. Later the same day, she reported her husband to the police for rape. She stated that, for a period of a year, the husband had been threatening on a daily basis to kill her or the children. However, the situation had escalated in May 2012, culminating in the rape. The police spoke immediately to the husband, who contested the allegations. A ‘barring order’ (a form of injunction under Austrian law) was obtained which prohibited the husband from entering the family home and his keys were confiscated. Criminal proceedings were also instigated. However, on 25th May 2012, the husband went to the children’s school and asked if he could speak to one of his children in private. The teacher (who had no knowledge of the other issues) agreed and the husband took the child to the school basement and shot him, causing injuries from which he died. The husband later committed suicide.
The Court took the opportunity to explain how the Osman test should be applied in cases involving domestic violence. Having emphasised the vital importance of an immediate response to any allegations, and of risk assessments as a tool for assessing complaints of domestic abuse, the court held that “the application of the immediacy standard in this context should take into account the specific features of domestic violence cases, and the ways in which they differ from incident-based situations” such as that which pertained in the Osman case itself. In particular, it observed that “consecutive cycles of domestic violence, often with an increase in frequency, intensity and danger over time, are frequently observed patterns in that context“.
With specific reference to the wording of the Osman test and the need for there to be an ‘immediate’ risk, the Court held that:
“The term “immediate” does not lend itself to a precise definition. In Opuz, for example, the Court concluded in relation to the immediacy of the risk that the authorities could have foreseen the lethal attack against the applicant’s mother because of the escalation of violence, which was also known to the authorities and was sufficiently serious to warrant preventive measures. On the basis of the long history of violence in the relationship (six reported episodes) and the fact that the applicant’s husband was harassing her, wandering around her property and carrying knives and guns, the Court found that it was “obvious” that the perpetrator posed a risk of further violence. The lethal attack had therefore been imminent and foreseeable. In Talpis, the Court found that because the police had already had to intervene twice on the same night in respect of the applicant’s husband, and because he was intoxicated and had a police record (two successive episodes of violence requiring police intervention on the same night), the authorities “should have known that [he] constituted a real risk to her, the imminent materialisation of which could not be excluded”. In its case-law on the issue, the Court has thus already applied the concept of “immediate risk” in a more flexible manner than in traditional Osman-type situations, taking into account the common trajectory of escalation in domestic violence cases, even if the exact time and place of an attack could not be predicted in a given case”
The focus on the need for there to be a clear “trajectory of escalation”, characterised by “an increase in frequency, intensity and danger over time” is a welcome clarification in this developing area of the law. It is consistent with Lord Dyson’s opinion in Rabone v Pennine Care NHS Trust  2AC 72 that an ‘immediate’ risk should be understood as one which is ‘present and continuing’. It follows that a fluctuating risk, arising (for example) from sporadic incidents of alleged misconduct which are punctuated by periods of relative stability or inactivity, would not meet the threshold. This can be seen in two cases where claims for an alleged failure to remove a child into care have failed on the fact (and resulted in a finding that article 3 was not violated).
In DP v United Kingdom (above), the applicants, a brother and sister, were sexually abused by their stepfather when they were children. In rejecting a claim for breach of the operational duty under article 3, the court observed that the ‘sporadic’ incidents of violence which had occurred during the applicants’ childhood “cannot be regarded as revealing a clear pattern of victimisation or abuse”. The Court was therefore not persuaded that “there were any particular aspects of the turbulent and volatile family situation which should have led the social services to suspect a deeper, more insidious problem in a family which was experiencing financial hardship, occasional criminal proceedings and with a mother observed to be “less caring” than she should be”'
More recently, in AB v Worcestershire County Council  EWHC 115 (QB), in dismissing a claim under article 3 against two local authorities, the High Court observed (amongst many other matters) that “There is clear evidence of poor parenting whilst AB was living in WCC’s area for which his mother received reasonable and appropriate support. The incidents appear to have been isolated and sporadic and, save for the emotional conflict in June 2014, were not repeated. In my judgment none of the reported incidents, taken at their highest either individually or cumulatively, involved actual bodily injury, intense physical or mental suffering, or humiliation of the severity required to meet the Article 3 threshold”.
On the facts of Kurt itself, the Grand Chamber also concluded that there had been no violation of the child’s right under article 2:
“The Court reiterates that the applicant’s children had been subjected to slaps by their father and to the mental strain of having to witness violence against their mother, which must in no way be underestimated. However, according to the information which the authorities had to hand in the instant case, the children had not been the main target of E’s violence or threats. The latter had all been targeted at the applicant, be it directly or indirectly”
“The Court agrees with the Government that, on the basis of what was known to the authorities at the material time, there were no indications of a real and immediate risk of further violence against the applicant’s son outside the areas for which a barring order had been issued, let alone a lethality risk. The authorities’ assessment identified a certain level of non-lethal risk to the children in the context of the domestic violence perpetrated by the father, the primary target of which had been the applicant. The measures ordered by the authorities appear, in the light of the result of the risk assessment, to have been adequate to contain any risk of further violence against the children. The authorities were thorough and conscientious in taking all necessary protective measures. No real and immediate risk of an attack on the children’s lives was discernible under the Osman test as applied in the context of domestic violence. Therefore, there was no obligation incumbent on the authorities to take further preventive operational measures specifically with regard to the applicant’s children, whether in private or public spaces, such as issuing a barring order for the children’s school”
The decisive factors in the case were, therefore, the absence of any consistent, escalating pattern of violence targeted directly towards the ultimate child victim. The occurrence of occasional acts of violence, in the context of difficult and troubled domestic circumstances, was not enough. The concurring opinion of 8 of the court’s judges, led by Judge Koskelo, is particularly illuminating on this issue. The judges noted that:
“As regards the preventive operational duties arising under art.2 in particular, they are determined by reference to the risk and the action. The requisite risk, which triggers the duty, is qualified, and the requisite preventive response is, in turn, qualified in relation to that risk. Even though the obligation at issue is one of means and not one of result, the finding of a violation of that duty could not be based on acts or omissions that are not causally relevant, in time or in substance, to the risk that triggers the duty to respond. The main issues in such cases are, first, whether the competent domestic authorities knew or ought to have known of the presence of a lethal danger requiring immediate preventive measures and, if so, whether there was a failure to act that was causally relevant to the fatal outcome.
When, as in the present case, art.2 of the Convention is engaged, what is at issue is a risk to life—not a risk of any kind of violence. Furthermore, what is at stake here is the risk to life of a particular family member, the child whose life was taken. Consequently, what the Court has been called upon to examine in this case is whether the competent domestic authorities have failed in their duty to assess the risk to life in respect of the applicant’s son, and more specifically whether there was a real and immediate risk, known or knowable to the relevant authorities, that the child might be killed by his father, despite the barring and protection order issued by the police on 22 May 2012.
The preventive operational duty arising under art.2 is linked with the presence of such a risk, or more precisely, with a diligent and reasonable assessment that such a risk is present. In other words, the duty to take preventive operational measures is triggered by a risk which is specific in kind and in its object. We share the conclusion as set out in the judgment that in the present case, the preventive operational duty was not triggered”
The same, it is submitted, is true of the operational duty under article 3. What is at issue is the risk of inhumane and degrading treatment. It is well established that this must reach a minimum threshold of severity. Acts, however unpleasant, which fall short of that threshold will not be causally relevant (in time or substance) unless they form part of a very clear trajectory of escalation, increasing in intensity and frequency and leading to the conduct which is actually alleged to have been sufficiently serious to trigger the duty to take protective measures by taking the child into care. This will not be an easy thing to prove, and nor should it be. As the European Court has noted on a number of occasions:
“Notwithstanding a margin of appreciation enjoyed by the domestic authorities in deciding on placing a child into public care, severing family ties means cutting a child off from its roots, which can only be justified in very exceptional circumstances […] In particular, where the decision is explained in terms of a need to protect the child from danger, the existence of such a danger should be actually established” (Saviny v Ukraine  51 EHRR 33)
 See, for example, AB v Worcestershire County Council  EWHC 115 (QB)
 Osman v United Kingdom (2000) 29 E.H.R.R. 245