Katie Ayres considers the Court of Appeal’s recent judgment in AB v Worcestershire County Council & Anor (Rev1) [2023] EWCA Civ 529.
“Society will have to tolerate very diverse parenting including the barely adequate and the inconsistent and children will have very different experiences of parenting and very unequal consequences as a result…” – Lewis LJ at [78].
The judgment in AB v Worcestershire County Council and Birmingham County Council [2023] EWCA Civ 529 is likely to significantly change the way that Article 3 ‘failure to remove’ claims are pursued and defended, but perhaps not in the way it was expected.
In AB, the Court of Appeal dismissed the Claimant’s appeal against summary judgment granted in favour of two defendant councils in respect of allegations that their failure to seek care orders exposed the Claimant to mistreatment by his mother, thereby infringing the operational duty to protect him under Article 3 ECHR. The crux of the appeal involved consideration of the test for treatment crossing the Article 3 threshold. However, arguably the most interesting outcome following AB will be due to one paragraph towards the very end where, at [82], the Court stated:
“This is not a negligence claim where a court would be considering whether a particular professional, such as a social worker, had acted in accordance with a body of expert opinion. On this aspect of an alleged violation of Article 3 of the Convention, the question was whether “judged reasonably”, either Birmingham or Worcestershire had failed to take appropriate steps to avoid a real and immediate risk of Article 3 ill-treatment. That was a question for the court, not for expert evidence.”
At present, many Article 3 claims of a similar nature to AB rely on social work expert evidence to assist the Court in determining what action was reasonable in response to the circumstances facing social workers at the time and whether appropriate steps were taken. In AB, the Court has in two sentences (contrary to the submission of the Claimant, at [47]) completely changed the way these claims will now be run. This will have a significant impact on the costs that need to be expended running and defending these types of claims where expert evidence (often costing tens of thousands of pounds) will now not be needed. The judgment also empowers Defendants to seek summary judgment early on in proceedings, relying on documentary evidence contained in social work records and without the need for any expert commentary on the same. However, it is important to note that, where a claimant (or some other person present contemporaneously with intact memories) is able to give oral evidence of the treatment suffered which is said to cross the threshold (which was not the case in AB, at [82]), it may be more difficult to persuade a court to deal with the claim summarily.
In terms of its discussion of Article 3 more widely, the Court provided a useful summary of the components necessary for such a claim and the ways in which each component might be undermined (at [57]):
“The obligation can be seen as comprising four components. There needs to be (1) a real and immediate risk (2) of the individual being subjected to ill-treatment of such severity as to fall within the scope of Article 3 of the Convention (3) that the public authority knew or ought to have known of that risk and (4) the public authority failed to take measures within their powers which, judged reasonably, might have been expected to avoid the risk. Depending on the facts, a particular case may focus on one or more of those component parts. An allegation of a violation may fail because one or more of the component parts is not established. The issue may be, for example, whether the public authority knew, or had any reason to know, of a particular risk to a child. The risk may, for example, be of sexual abuse but the abuse may have been concealed or hidden and the local authority may have had no reason to know of the risk. In other cases, the risk may not be real and immediate. Or it may be that the ill- treatment to which the person is at risk of being subjected would not be of such severity as to fall within the scope of Article 3. It may be that the particular public authority did take appropriate steps, judged reasonably, to avoid the risk (even if the risk did, ultimately, materialise and the individual did suffer ill-treatment falling within the scope of Article 3).”
The bulk of the judgment deals with the question of the nature and severity of treatment required to cross the threshold for a violation of Article 3 (encompassed by components 1, 2 and 3 above). The conclusions reached by the Court of Appeal are not ground-breaking and do not provide any greater insight into the applicable test than was authoritatively set out in the first instance judgment which, on this issue, the Court upheld in full (it is suggested that the first instance judgment is worth reading for its more comprehensive analysis of the applicable law). Lewis LJ agreed that there was no realistic prospect of the Claimant establishing that he was subject to a real and immediate risk of being subjected to treatment falling within Article 3 by his mother. This decision was reached despite the Claimant’s reliance on episodes of physical chastisement which, somewhat dated, case law has previously suggested may be sufficient to reach the threshold required. The suggestion now is that this case law is no longer a reliable guide to the Article 3 threshold in these types of claims and that a clear pattern of persistently bad, seriously neglectful, and damaging parenting which does not improve with intervention by the authorities, will be required for the threshold to be crossed.
One final area of clarification was that the Court of Appeal agreed with the Defendants’ (sensible) concession (on the first ground of appeal, see [44]) that there was no requirement that a child be under the care and control of the local authority before the Article 3 operational duty could apply (see, [85]). Although this aspect of the first instance judgment was treated with some scepticism from the outset, AB now confirms that this reasoning cannot be used to dismiss a claim.
The judgment in AB provides some much-needed clarity to this area and should empower Defendants to apply for summary dismissal of claims on the papers where the threshold is unlikely to be met, or where is it clear that reasonable steps were taken.
