The Supreme Court on 21 November 2023 refused permission to appeal the Court of Appeal judgment of AB v Worcestershire County Council and Birmingham City Council. The law is now clear that allegations of neglect, emotional abuse and minor physical abuse are unlikely to amount to “inhuman and degrading” treatment within the meaning of Article 3 of the European Convention on Human Rights (ECHR).
This case was initially heard in November 2021 with Deputy Judge Margaret Obi in the High Court, with the judgment being released on 20 January 2022. It was then appealed to the Court of Appeal and heard 25 and 26 April 2023, with the judgment being released on 17 May 2023. Refer to our articles Court Guidance on the Human Rights Act 1998 in ‘Failure to Remove’ Claims | Keoghs and The Court of Appeal provides guidance on failure to remove | Keoghs for a detailed summary of the facts and judgments in each instance.
In brief, the claimant brought a claim alleging abuse within his family home, and that both defendant local authorities had failed to remove him from his mother’s care when they were resident in their respective areas. The claimant’s allegations were of mistreatment by his mother but did not include allegations of sexual abuse. He brought the claim in both negligence and the Human Rights Act on the basis that the actions of the defendants were in breach of Articles 3, 6 and 8 of the ECHR.
The defendants applied to strike out the claims and sought summary judgment. By the hearing, the claimant had discontinued his claims of negligence and under Article 8 of the ECHR. At first instance, DJ Obi granted the defendants’ application and struck the claim out. The claimant appealed to the Court of Appeal. At the Court of Appeal hearing no appeal was put forward to Article 6 and the claimant conceded this point. Therefore, only Article 3 was considered by the Court of Appeal.
The Court of Appeal dismissed the appeal and confirmed the district judge was correct to find that there was no realistic prospect of the appellant establishing that either local authority violated Article 3 of the ECHR. Within this judgment, the Court of Appeal helpfully set out a clear four-stage test for parties to consider whether a public body is in breach of the positive operational duty imposed by Article 3. Please see The Court of Appeal provides guidance on failure to remove | Keoghs for full details of this test. In summary, the claimant’s allegations of neglect, emotional abuse and minor physical abuse of a child as in this case did not amount to “inhuman and degrading” treatment under Article 3.
The claimant applied for permission to appeal the decision, but permission has now been refused by the Supreme Court.
The Court of Appeal judgment and the Supreme Court’s refusal to permit an appeal have provided clarity as to the circumstances where a failure to remove a claim under the Human Rights Act, Article 3 may be successful. In claims relating to physical or emotional abuse, ill-treatment or neglect, the facts of each case will need to be carefully reviewed to consider whether the threshold under the four-stage test as set out by the Court of Appeal will be met. If there are allegations of neglect, emotional abuse and minor physical abuse that are not prolonged or serious then it can be argued they will not amount to “inhuman and degrading” treatment within the meaning of Article 3 of the ECHR.
This clarity should reduce the number of claims being presented in this manner. However, this case did not involve sexual abuse which is more likely to amount to “inhuman and degrading” treatment and it does not mean all cases involving sexual abuse will be successful under Article 3 as the four-stage test will still need to be met. It is interesting to note that the Court of Appeal provided commentary suggesting sexual allegations could still fail under Article 3 under this test. It is anticipated case law will develop around this test.
See The Court of Appeal provides guidance on failure to remove | Keoghs for full details of the four-stage test.
If you have any queries, please do not hesitate to contact Nicola Markie, Sarah Swan, or Anna Churchill.
Author: Nicola Markie - Solicitor
Sarah Swan - Partner
Anna Churchill - Senior File Handler
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