Court of Appeal finds judge was correct to find “no realistic prospect” of appellant establishing councils violated Article 3 rights in ‘failure to remove’ case

The Court of Appeal has dismissed an appeal against a Deputy High Court judge’s finding that there was “no realistic prospect” of the appellant establishing that Worcestershire County Council or Birmingham City Council violated Article 3 of the European Convention on Human Rights by failing to take steps to seek a care order to remove him from his mother's care at the material time.

In AB v Worcestershire County Council & Anor (Rev1) [2023] EWCA Civ 529, Lord Justice Lewis said the case concerned the circumstances in which a local authority may be held liable for a breach of the rights of a child under Article 3 of the Convention “when the child is said to have been subject to neglect or ill-treatment by a parent and the authority did not take steps to remove the child from the care of the parent”.

The Court of Appeal judge, with whom Lord Justice Dingemans and Lord Justice Baker agreed, said: “First, the evidence does not establish that there was any real and immediate risk of the appellant being subjected to treatment by his mother which would fall within the scope of Article 3 of the Convention.

“Secondly, judged reasonably, neither Birmingham nor Worcestershire failed to take appropriate measures to address any risk that might exist by adopting measures which were less intrusive than seeking a care order.”

However, the Court of Appeal also clarified that there is no requirement for children to already be placed in the care of a local authority for the obligations under Article 3 of the Human Rights Act to arise.

The background to the case was outlined by Lord Justice Lewis as follows: “The appellant, AB, was born in 2002. He lived in the area of 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.”

Worcestershire's social services department had “periodic contact with the appellant and his family” between 2011 and 2016, said the Court of Appeal judge.

On 20 August 2014, AB was accommodated by Worcestershire following allegations that he had sexually abused a female friend of his brother. He never returned to the care of his mother.

In May 2015, an interim care order was made placing the appellant in the care of Worcestershire and a final care order was made in January 2016.

Lord Justice Lewis said: “By a claim form issued on 26 June 2020, he claimed damages for, amongst other things, a breach of his rights under Article 3 of the Convention.

“In essence, the particulars of claim, which underwent a number of amendments, alleged that the appellant had suffered ill-treatment and neglect by his mother which was of such severity that it evidenced a real and immediate risk that the appellant 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 the appellant from the mother's care to avoid that risk.”

The respondent councils applied for summary judgment pursuant to CPR 24 in respect of the claim based on the alleged violation of Article 3. The deputy High Court Judge, Margaret Obi, granted that application.

Judge Obi held that “none of the incidents of mistreatment reported by the appellant, considered individually or cumulatively, involved actual bodily injury, or physical or mental suffering, or humiliation of the severity required to amount to treatment contrary to Article 3 of the Convention”.

AB appealed this decision.

Considering the relevant legal framework, Lord Justice Lewis said: “Section 6 of the Human Rights Act 1998 (the "HRA") provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right.

“A person may bring proceedings in an appropriate court for a remedy which may include damages in certain circumstances: see sections 7 and 8 of the HRA. "Convention rights" are defined in section 1 of the HRA and include the right under Article 3 of the Convention which provides that:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

Lord Justice Lewis noted that in her judgment, Judge Obi dealt with the factual background, “indicating that the appellant relied on seven reports within Birmingham's social services records in relation to its claim against Birmingham, and those reports and four other reports within Worcestershire's social services records in relation to its claim against Worcestershire”.

Judge Obi summarised the content of the 11 reports. She then dealt with the procedural history of the claims.

The first report related to concerns reported to Birmingham on 8 July 2005 that AB was living in a dirty home, not being fed and had bleached hair which had left him with chemical burns to his scalp.

The social services records recorded the response of the social services to the concerns raised. A social worker made a visit to AB's home. The social worker noted that AB was happy and well cared for. His hair was not bleached and he did not have burns to his scalp. The house was tidy and food was available, Judge Obi noted.

After considering two further reports, Judge Obi said: “The first and third incidents were a cause for concern, but the social workers concluded that the allegations were unsubstantiated. No additional evidence is likely to be forthcoming and based on the paucity of the evidence there are no proper inferences that could be drawn.

“Although it is asserted that these incidents amounted to ill- treatment falling within the scope of Article 3 there is no realistic possibility of that being established.”

Lord Justice Lewis noted that in relation to the claim against Birmingham, Judge Obi had concluded:

“The social service records represent the high water mark of AB's claim. The mother's ability or willingness to protect AB from physical chastisement from others was inconsistent. Regrettably, there were also occasions when she appears to have demonstrated poor caring and nurturing abilities. Cumulatively, the picture presented by the detailed chronology is of a variable standard of care, but there is nothing within [Birmingham's] records which comes close to alerting [Birmingham] to a "real and imminent" risk that AB will suffer significant harm amounting to Article 3 treatment."

In relation to the claim against Worcestershire, Judge Obi had reached the same conclusions.

She concluded at paragraphs 105 and 106 of her judgment: “In conclusion, the merits of the overall claim are poor and have no realistic prospect of success."

Turning to the present appeal, Lord Justice Lewis said: “Permission to appeal was sought on six grounds. The principal ground is ground 3 which is that:

"[…] The finding of the Judge at paragraph 86 of her judgment that there is no realistic prospect of the Claimant establishing that he was subject to ill-treatment that falls within the scope of Article 3 was wrong in law and contrary to the documentary evidence before her for the following reasons:

(a) It was inappropriate to determine the ill-treatment suffered by the Claimant was incapable of falling within Article 3 without a full investigation of the facts.

(b) The documentary evidence including the documents provided by [Worcestershire] for the care proceedings strongly supported the case that the ill-treatment suffered by the Claimant fell within the scope of Article 3. [For the avoidance of doubt this subparagraph is only relied upon in the appeal against [Worcestershire]].

(c) By comparison with other decided cases cited to the Judge the ill-treatment suffered by the Claimant clearly fell within Article 3. 

(d) It was arguable on the material before the Judge that there was a "real and immediate" risk and that such a risk ought to have been appreciated by the Defendants".

Grounds 4 to 6 were that Judge Obi was (a) wrong to refuse the appellant permission to amend the particulars of claim (b) wrong to find that the claim was bound to fail and (c) wrong to order the appellant to pay the respondents' costs.

Ground 1 of the appeal was that Judge Obi was wrong to find that the operational duty was not applicable as the appellant had failed to establish that the respondents had care and control of the appellant while he was living in their area.

Lord Justice Lewis said: “The respondents have conceded that ground of appeal and I deal with it below. Ground 2 of the appeal concerned the investigative duty imposed by Article 3. The appellant no longer pursues that ground of appeal. Nothing further needs to be said about that ground.”

Outlining submissions from the parties on ground 3, Lord Justice Lewis said that Lizanne Gumbel KC had submitted on behalf of the appellant that Judge Obi was “wrong to conclude that there was no realistic prospect of the appellant being able to establish a violation of Article 3.

“So far as Birmingham was concerned, this was a young child in respect of whom there were complaints over time that he was not fed, was physically punished, and was left with inappropriate adults including offenders.”

In relation to Worcestershire, Ms Gumbel KC submitted that there were “specific errors in the Judge's reasons. The Judge failed to consider whether there was a real risk of inhuman or degrading punishment. She submitted that the Judge also considered, wrongly, at paragraph 31 of her judgment, that actual bodily injury was required to establish a violation of Article 3.”

Adam Weitzman KC, on behalf of Birmingham, submitted that Judge Obi's analysis and conclusions on the incidents relied upon by the appellant were correct and consistent with the case law.

Further, Mr Weitzman submitted that Judge Obi “did not err in dealing with the matter by summary judgment. This was not a case where there was likely to be any more available evidence.”

Analysing the Birmingham appeal, Lord Justice Lewis said: “I do not accept Ms Gumbel's submission that each of the reported incidents was of itself enough to amount to treatment contrary to Article 3 of the Convention.

“[…] The Judge properly considered each reported incident. She correctly considered whether in all the circumstances the reported treatment amounted to "actual bodily injury, intense physical or mental suffering, or humiliation of the severity required" as she said at paragraph 79 of her judgment.”

In relation to Worcestershire, the Court of Appeal judge said: “Worcestershire did not fail to take appropriate measures after April 2012 by seeking to use other means of addressing the shortcomings and difficulties in the mother's care of the appellant rather than applying for a care order. The Convention itself, and the case law of the European Court of Human Rights, recognise the importance of respecting and preserving family life.”

Turning to the issue of ‘Summary Judgment’, Lord Justice Lewis said that Ms Gumbel submitted that it was inappropriate to resolve these claims by means of summary judgment and the claims should have gone to full trial. She submitted that “other evidence might reasonably have become available from social workers, or possibly others at the school attended by the appellant, and that expert social work evidence was necessary to deal with what she described as the issue of a breach of Article 3 of the Convention”.

Lord Justice Lewis concluded, however, that “the Judge was entitled to deal with the claim that there had been a violation of Article 3 of the Convention by summary judgment.”

He dismissed the appeal on the principal ground, ground 3.

Turning to the other grounds of appeal, the Court of Appeal judge said that counsel for the respondent local authorities had submitted that a requirement for the appellant to be in the care and control of the respondents was not consistent with the established case law or the scheme of the 1989 Act.

He said: “I agree that that concession was correctly made in the context and on the facts of this case. The 1989 Act deals with the powers and obligations of local authorities to protect children for whom they are responsible. In that context, there is no additional requirement that the child has to be under the care and control of the local authority, such that the authority assumed responsibility for the child's safety and welfare, in order to establish that there has been a violation of the operational duty imposed on local authorities by Article 3 of the Convention. Ground 1 therefore succeeds.”

However, he noted that that would “not of itself result in the appeal being allowed”, adding that the appellant needed to succeed on the principal ground, ground 3, in order for the appeal to be allowed.

On the remainder of the grounds, he said: “In relation to ground 4, Ms Gumbel did not make oral submissions arguing that the Judge erred by not allowing the particulars of claim to be amended. The proposed draft, the fifth version, was not materially different, so far as Article 3 is concerned, from the earlier draft. No further, amended version was produced. The claimant had not provided the further information of his claim under Article 3 that had been requested. In those circumstances, ground 4 fails.

“Ground 5 contends that the Judge was wrong to find that the claim was bound to fail. The Judge in fact found that there was no realistic prospect that the appellant could establish that there had been a violation of Article 3 of the Convention and there was no other compelling reason for a trial. She was entitled to reach those conclusions.

“Finally, ground 6 challenges the decision of the Judge on costs. As the Judge was correct to grant summary judgment, there is no basis for challenging her decision on costs.”

Dismissing the appeal, Lord Justice Lewis said: “The Judge was correct to find that there was no realistic prospect of the appellant establishing that either Birmingham or Worcestershire violated Article 3 of the Convention by failing to take steps to seek a care order to remove the appellant from his mother's care at the material time.

“First, the evidence does not establish that there was any real and immediate risk of the appellant being subjected to treatment by his mother which would fall within the scope of Article 3 of the Convention. Secondly, judged reasonably, neither Birmingham nor Worcestershire failed to take appropriate measures to address any risk that might exist by adopting measures which were less intrusive than seeking a care order.”

Outlining what she believed to be a positive outcome of the ruling, Anna Moore, Partner at law firm Leigh Day who acted for AB in the appeal, said: “The Court of Appeal has now unequivocally confirmed that the Human Rights Act can be used to bring claims in these circumstances. This means that others may seek redress when they have faced serious abuse and neglect and action was not taken to protect them.

“Although we are disappointed that the Court of Appeal did not agree that the treatment AB suffered passed the severity threshold, this was based on limited information put before the High Court and may be subject to further appeal.”

Lottie Winson