Since CN v Poole Borough Council [2020] AC 780 (“Poole”), the court has been asked to consider a number of claims to assess if claimants can allege negligence on the part of local authorities for failing to remove a child. This litigation has provided clear guidance on what circumstances will not amount to a duty on the part of the local authority. In particular, the cases of DFX v Coventry CC [2021] EWHC 1382 (QB), [2021] PIQR P18, 9 (this was discussed in our article here) HXA v Surrey County Council and YXA v Wolverhampton City Council (see article here) prevent any arguments by claimants that actions taken by local authorities by way of investigating a family position, providing services to try to relieve the family’s position or invoking child protection powers short of obtaining a care order, will impose a duty on local authorities. These decisions make the position in negligence for ‘failure to remove’ relatively clear and claimants are now favouring arguments under the Human Rights Act 1998 (“the HRA”) as an alternative route for ‘failure to remove’ claims.
Claimants allege that local authorities by failing to apply for a care order to remove a child from a parent’s care can be in breach of the following articles under the European Convention of Human Rights:
Although claims citing the Human Rights Act have been received for some time, until now there had been no judicial consideration of them. The recent case of AB v (1) Worcestershire County Council (2) Birmingham City Council [2022] is the first case to provide guidance on the area.
The claimant lived in Birmingham City Council (“BCC”) area between July 2005 and November 2011 and in Worcestershire County Council (“WCC”) between November 2011 and January 2016. The claimant alleges he was abused and neglected whilst in the care of his mother. He was accommodated by WCC 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 asserts that BCC should have applied for a care order around or shortly before July 2008 and that WCC should have applied for a care order from about April 2012.
Both authorities had periodic involvements with the claimant through referrals regarding the care of his mother and allegations of neglect and physical abuse. The claimant was not accommodated at any time by BCC, but following a disclosure to his school that he had been physically assaulted by his mother, he and his younger brother were placed in foster care from July 2013 until April 2014. He returned initially confirming he was happy to return, but later complained that his mother was again being abusive to him. In August 2014, he was accommodated by agreement after an allegation was made that he had sexually abused a friend of his brother. He never returned to the care of his parents.
The claimant initially brought a claim alleging negligence and breaches of Article 3, 6 and 8. Following the decision of DFX & Others v Coventry City Council [2021] EWHC, the claimant abandoned his negligence claim against BCC, as there was no care order in this period, and pleaded that both authorities breached the human rights articles by failing to make an application for a care order. The negligence claim against WCC continued.
Both defendants submitted applications to strike out the claimant’s claim and for summary judgment.
By the time of the hearing the claimant only advanced arguments under Articles 3 and 6; all other claims had been abandoned.
Article 6
Article 6 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.
The court found in this case that there was no such right at issue. The claimant did not have a “civil right” to seek a care order or to have one made and in any case it was not arguable that a care order would have been made on the basis of the incidents identified in the claim form. The Article 6 claim was, therefore, struck out.
Article 3
Article 3 provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” This imposes two positive duties to the state: (1) a duty to take reasonable steps to protect individuals from ill-treatment falling within Article 3: the “operational duty”, and (2) a duty to investigate an arguable breach of Article 3 in order to increase the likelihood of future compliance: the “investigative duty”.
The issue in this case was whether the defendant should be granted summary judgment for the allegations under Article 3.
In order to determine this the court needed to address the following issues:
In relation to (1) the court looked at each reported incident relating to the claimant and analysed them individually and this analysis can be found from paragraphs 65–85. In each case it was found that the claimant was undoubtedly vulnerable and at risk. It was also found he was at risk of being subjected to poor and inconsistent parenting and neglect. However, he had no real prospect of establishing he was subject to ill-treatment under Article 3. The reason for this was there was no “real and immediate” risk of treatment failing under the scope of Article 3 as most of the incidents which came to the defendants’ attention did not involve persistent or sufficiently serious neglect or abuse to bring them under Article 3. Further, there was no real prospect of showing the defendants should have known of a “real and immediate” risk of Article 3 treatment and finally there was no arguable case that a care order should have been sought in the circumstances.
Turning to (2) which had been raised on behalf of BCC only. The court highlighted that for an operational duty to arise there must be “care and control”. BCC did not have “care and control” whilst the claimant was living in that area. Therefore, the operational duty was not engaged and without it being engaged there could be no breach of it. Even if the treatment had been found to be have met the threshold of Article 3 the claim against BCC would fail as there was no operational duty.
Issue (3) dealt with the investigative duty. The claimant argued that the defendants breached their investigative duty, but did not particularise this in their pleadings. Their counsel submitted that the application of the investigative duty will depend on the context and that the duty to investigate should not be limited to the circumstances noted in Supreme Court in the case of D v Commissioner of Police for the Metropolis [2019] AC 196 which was the duty of the police to properly investigate offences.
The judge found that the allegations of ill treatment falling within Article 3 will invariably engage the criminal law and the language used to describe the duty indicates that “investigation” refers to criminal investigation discharged by the police and prosecution. It is not an investigation for the primary purpose to establish the existence of potential future harm and protect the victim against it. The framework and the provisions of the Children Act 1989 are to empower social workers to investigate a child’s circumstances in order to take steps and to prevent any risk or further risk of significant harm. The purpose of section 47 investigations is to decide whether and what type of action is required to safeguard and promote the welfare of children; the provisions do not require an independent enquiry to identify what has happened and the purpose is not to punish the wrongdoer. Accordingly the investigative duty did not apply in this case.
Even if it did, the judge said there would not be a breach as only very significant failures could give rise to a breach and there was no evidence of this and the claimant has no reasonable prospect of success.
The overall merits of the claim were found to be poor with no realistic prospect of success. Despite there being empathy for the claimant, there was insufficient evidence that the various incidents relied upon by him reached the high threshold to sustain an Article 3 claim and his claim was bound to fail. Further, Article 6 does not disclose a legally recognisable claim.
The decision of the judge shows that unless there is evidence of consistent ill treatment of sufficient severity, a claimant is unlikely to succeed in demonstrating that the Article 3 threshold will be met for degrading treatment and punishment. The judgment provides an analytic review for many involvements by the local authorities and this will be a useful tool for examining if degrading treatment and punishment will be found in future claims citing Article 3.
Further, and perhaps the more far-reaching argument that the defendant will only have an operational duty if they are in the “care and control” of the defendant. This provides a defence for most ‘failure to remove’ claims as these arise from children experiencing neglect or abuse within the family home. The question which was not addressed in the judgment was what is required for “care and control” – is it a care order or is temporary accommodation under s20 enough to establish care as the claimant had been accommodated temporarily accommodated when with WCC. The issue of “assumed responsibly” for “care and control” was also referenced in the judgment, but it is unclear if this would have the same meaning in the private law of negligence and, therefore, further clarification is needed on this issue.
The opinion in relation to investigative duty confirms that the claimant’s solicitors have a misconception of this duty and that it applies to local authorities. If the operational duty under Article 3 applies then this involves an obligation of inquiry, because there will be a liability if the local authority ought to have been aware of the risk of Article 3 ill treatment. However, there is no separate obligation of investigation where there is no operational duty.
For further information please contact Nicola Markie.
Nicola Markie
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