AB (by The Official Solicitor; his litigation friend) v Worcestershire County Council

Hearing dates: 25 and 26 April 2003

Approved Judgment

This judgment was handed down remotely at 10.30am on 17 May 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

INTRODUCTION

This appeal concerns 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 for the Protection of Human Rights and Fundamental Freedoms (“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.

In brief, the appellant, AB, was born on 5 October 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. 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 respondents 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 (“the Judge”) granted that application. The Judge 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. In the circumstances, the Judge concluded that there was no realistic prospect of the appellant establishing that the respondents knew or ought to have known of the existence of a real and immediate risk of the appellant suffering treatment contrary to Article 3 of the Convention. Further, the Judge considered that there was no realistic prospect that the unstable family situation would have led the respondents' social services departments to conclude that removal of the child from the mother's care by means of an application for a care order was required.

The appellant appealed. The principal ground of appeal is that the finding that there was no realistic prospect of the appellant establishing that he had been subject to treatment falling within the scope of Article 3 of the Convention was wrong and contrary to the documentary evidence before the Judge.

THE LEGAL FRAMEWORK

The Children Act 1989

For present purposes, the powers and duties of local authorities in relation to children are contained principally in the Children Act 1989 (“the 1989 Act”).The 1989 Act includes powers in Part III for supporting children and families. In brief, section 17 is headed “Provision of services for children in need, their families and others”. The material provisions of section 17 provide that:

“(1) It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)—

(a) to safeguard and promote the welfare of children within their area who are in need; and

(b) so far as is consistent with that duty, to promote the upbringing of such children by their families, by providing a range and level of services appropriate to those children's needs.

…..

(2) For the purpose principally of facilitating the discharge of their general duty under this section, every local authority shall have the specific duties and powers set out in Part 1 of Schedule 2.

…..

(10) For the purposes of this Part a child shall be taken to be in need if—

(a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;

(b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services …”

Part 1 of Schedule 2 includes the following provisions:

“4(1) Every local authority shall take reasonable steps, through the provision of services under Part III of this Act, to prevent children within their area suffering ill-treatment or neglect.”

…..

7(1) Every local authority shall take reasonable steps designed—

(a) to reduce the need to bring—

(i) proceedings for care or supervision orders with respect to children within their area …”

Part 1 of Schedule 2 provides power for the provision of a range of other services to children and their parents, including advice, guidance, and counselling (paragraph 8) and the provision of family centres (paragraph 9).

Section 20 of the 1989 Act confers powers on a local authority to provide accommodation for children. Section 22 deals with the duties of authorities towards looked after children, that is children who are in care or who are provided with accommodation by the local authority for more than 24 hours. The authority is under a duty, amongst other things, to safeguard and promote the child's welfare.

Part IV of the 1989 Act (incorporating sections 31 to 42) contains provisions dealing with the making of care and supervision orders by a court. Part V (incorporating sections 43 to 52) contains provisions for the protection of children. Section 47 deals with the duty of an authority to investigate and provides so far as material that:

“(1) Where a local authority

….

(b) have reasonable cause to suspect that a child who lives … in their area is suffering, or is likely to suffer significant harm, the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child's welfare

..…

“(3) The enquiries shall, in particular, be directed towards establishing –

(a) whether the authority should

(i) make any application to court under this Act;

(ii) exercise any of their other powers under this Act;

…..

with regards to the child.”

There are a range of orders that a court may make. These include emergency protection orders pursuant to section 44 of the 1989 Act. They also include an order placing the child in the care or under the supervision of the authority pursuant to section 31 or an interim order pursuant to section 38 of the 1989 Act.Section 31(2) provides that:

“(2) A court may only make a care order or a supervision order if it is satisfied –

(a) that the child concerned is suffering, or is likely to suffer significant harm; and

(b) that the harm, or likelihood of harm, is attributable to –

(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give him; or

(ii) the child's being beyond parental control.”

A court may only make an interim care or supervision order if it considers that there are reasonable grounds for believing that the circumstances in respect of the child are such as to fall within that subsection: see section 38(2) of the 1989 Act.

The Convention

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.”

The principles governing Article 3 are well established in the case law and are usefully summarised in X v Bulgaria (2021) 50 BHRC 244 in the following way (references omitted).

“177. The obligation of the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment, including ill-treatment administered by private individuals…Children and other vulnerable individuals, in particular, are entitled to effective protection …

178. It emerges from the Court's case-law as set forth in the ensuing paragraphs that the authorities' positive obligations under Article 3 of the Convention comprise, firstly, an obligation to put in place a legislative and regulatory framework of protection; secondly, in certain well-defined circumstances, an obligation to take operational...