Court of Appeal to hear child’s ‘failure to remove’ claim under the Human Rights Act

The Court of Appeal has agreed to hear an appeal of a claim that Worcestershire County Council and Birmingham City Council both failed to remove a boy (AB) from the care of his mother.

The argument brought in AB v Worcestershire County Council & Anor [2022] EWHC 115 (QB) contended that an interim care order for AB came too late, which amounted to a breach of his human rights under the European Convention on Human Rights (ECHR).

AB’s Official Solicitor argued a breach of Article 3 [freedom from torture and inhuman or degrading treatment] and Article 6 [right to a fair hearing] of the European Convention on Human Rights.

A High Court judge dismissed the claim in January of this year, stating that there was “insufficient evidence” that the incidents referenced by AB reached the threshold required to sustain his breach of Article 3 claim.

The judge added that the “Article 6 claim does not disclose a legally recognisable claim”.

But in an application for permission to appeal, AB argued that the judge had misapplied the test to determine whether a duty arises under Article 3 and looking at the facts of this case.

The Court of Appeal has now given leave for an appeal to proceed. The appeal hearing will be listed for final hearing in 2023.

AB lived in Birmingham City Council’s local authority area between July 2005 and November 2011, and in Worcestershire County Council’s local authority area between November 2011 and January 2016.

He alleged that he was abused and neglected whilst in the care of his mother. AB was accommodated by Worcestershire on several occasions in 2013 and was subsequently made the subject of an interim care order in May 2015 followed by a final care order in January 2016.

However, AB asserted that Birmingham should have applied for a care order around or shortly before July 2008 and that Worcestershire should have applied for a care order from about April 2012.

Worcestershire County Council and Birmingham City Council declined to comment on the proceedings.

Adam Carey