The Court of Appeal provides guidance on failure to remove claims

On 17 May 2023, the Court of Appeal handed down its judgment in AB v Worcestershire County Council & Birmingham City Council. This case was initially heard in November 2021 with Deputy Judge Margaret Obi’s judgment being released on 20 January 2022. Refer to our article prepared by Nicola Markie for further information relating to the first instance hearing of this matter: Court Guidance on the Human Rights Act 1998 in ‘Failure to Remove’ Claims | Keoghs

Following this judgment, the claimant appealed to the Court of Appeal on six grounds. The Court of Appeal heard this matter on 25 and 26 April 2023, with the judgment being released on 17 May 2023.

The facts

Our previous article gives a detailed summary of the facts of this claim. 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 European Convention on Human Rights.

The defendants applied to strike out the claims and sought summary judgment. By the hearing, the claimant had discontinued his claims in 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.

The Grounds of Appeal

The six grounds of appeal were:

1. It was incorrect of the judge to find that the operational duty under Article 3 was not applicable as the claimant was not under the ‘care and control’ of the defendants while living in their area.
2. This ground was not pursued by the claimant, but initially related to the investigative duty under Article 3.
3. The finding of the judge that there was no realistic prospect of the claimant establishing that he was subjected to ill-treatment that falls within the scope of Article 3 was wrong.
4. The judge was wrong to refuse the appellant permission to amend the Particulars of Claim.
5. The judge was wrong to find the claim was bound to fail.
6. The judge was wrong to order the appellant to pay the respondent’s costs.

No appeal was put forward relating to Article 6 as the claimant conceded this point. The claimant also conceded ground 2.

Prior to the Court of Appeal hearing, the defendants conceded ground 1 and did not pursue the argument that children in the community were not owed a duty under Article 3 as they were not under the ‘care and control’ of the local authority. At paragraph 85 of the judgment, the Court of Appeal agreed that this concession was correct.

Grounds 4, 5 and 6 all followed from the other grounds of appeal. In practice, it was, therefore, ground 3 – whether there was a realistic prospect of establishing that the claimant was subject to treatment that met the threshold for ‘inhumane or degrading treatment’ under Article 3 ECHR.

The Judgment

Lord Justice Lewis gave the leading judgment in the Court of Appeal, with Lord Justice Baker and Lord Justice Dingemans in agreement.

The claimant’s appeal was dismissed. The district judge was said to be correct to find that there was no realistic prospect of the appellant establishing that either local authority violated Article 3 of the ECHR.

The Court of Appeal helpfully set out a clear test to consider whether a public body is in breach of the positive operational duty imposed by Article 3 as follows:

1. The ill-treatment must reach a minimum level of severity to fall within the scope of Article 3. This must be considered on a case-by-case basis, but it was expressed that this must be serious and prolonged ill-treatment and neglect;
2. The risk of ill-treatment contrary to Article 3 must be real and immediate, in that the risk must be present and continuing;
3. The authority must have known, or ought to have known at the time that there was a real and immediate risk of ill-treatment contrary to Article 3. When considering this, the court must assess matters without the benefit of hindsight; and
4. The public authority must have failed to take measures within their powers which judged reasonably might have been expected to avoid the risk.

The court also noted that both Article 8 (the right to respect for family and private life) and the Children Act 1989 stress the importance of keeping families together wherever possible. Article 3 must not be developed to contravene these rights.

The judgment does not attempt to provide a comprehensive account of circumstances which can meet the threshold under Article 3. However, on the facts of this matter, the threshold was not met and the appeal was consequently dismissed.

Comment

The Court of Appeal has provided a clear test for parties to consider when dealing with claims under Article 3. Public bodies have seen an increase in ‘failure to remove’ claims being brought under the Human Rights Act in light of recent judgments (such as HXA v Surrey CC and YXA v Wolverhampton and DFX v Coventry) which have restricted these claims in negligence.

It is of note that AB does not include allegations of sexual abuse. This claim failed at stage 1 of the above test, on the grounds that the treatment alleged by the claimant did not meet the threshold of inhumane or degrading treatment under Article 3 of the convention. 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 will be met. This will be a high bar and evidence of severe treatment will be necessary.

In cases involving sexual abuse, the threshold and stage 1 of the test will be more easily met. However, that does not mean that all cases of sexual abuse will be successful under Article 3. The remainder of the four-stage test must also be proven. It is important to note the Court of Appeal’s comment at paragraph 57 that even in cases of sexual abuse, the risk may have been concealed or hidden and the authority may have had no reason to know of the risk and, therefore, the claim could fail at stage 3.

It is also important for all parties to remember the emphasis on keeping families together in both the ECHR and the Children Act. Removing children from their families is not to be taken lightly, and where alternative steps are appropriate, a local authority should not be penalised for taking steps to try to avoid removing children from their home. 

This judgment has provided clarity as to the circumstances where a failure to remove claim under the Human Rights Act may be successful, by way of the clear four-stage test. It has cleared the way for such claims to be brought, particularly in cases of sexual abuse, albeit the test will not be easily met. The interplay of Article 3 and Article 8 is key and a delicate balancing act must be carried out. Children should only be removed from their families as a last resort.

It is anticipated that case law will develop around the four-stage test set out in this judgment. In the meantime the Court of Appeal judgment has provided parties with a clear test and principles to apply when considering failure to remove claims brought under Article 3, and each stage of the test set out in the judgment.

If you have any questions, please do not hesitate to contact Anna Churchill.