Court of Appeal due to hear child’s ‘failure to remove’ claim under the Human Rights Act.
On 6 September 2022, the Court of Appeal agreed to hear an appeal of a claim that both Worcestershire County Council ('WCC') and Birmingham City Council ('BCC') failed to remove a boy (AB) from the care of his mother.
Background and High Court decision
AB is an adult claimant however he is classed as a 'protected party' as he does not have capacity to conduct proceedings in his own right. An anonymity order has been made as evidence in this case involves highly sensitive matters.
AB started as a typical “failure to remove” case. AB lived in BCC local authority area between July 2005 and November 2011, and in Worcestershire County Council’s WCC local authority area between November 2011 and January 2016. AB alleges that he was abused and neglected whilst in the care of his mother. AB 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.
AB brought claims for breach of Article 3 (freedom from torture and inhuman or degrading treatment) and Article 6 (right to a fair hearing) of the European Convention on Human Rights.
The claim was struck out after a successful application by the local authorities. The Deputy High Court judge, Obi J ruled in their favour, stating that "there is no realistic prospect of AB establishing there was a 'real and immediate' risk of the ill treatment falling within the scope of Article 3. Nor is there a realistic prospect of establishing that the defendants knew or ought to have known of the existence of a 'real and immediate' risk of Article 3 treatment". The judge also stated that the Article 6 claim did not disclose a legally recognisable claim.
In an application for permission to appeal, AB argued that the judge had misapplied the test to determine whether a duty arises under Article 3 and looking at the facts of this case.
The Court of Appeal gave leave for an appeal to proceed. The appeal hearing will be listed for final hearing in 2023.
Following CN & GN v Poole BC  UKSC 25 and notwithstanding the decision in DFX v Coventry City Council  and the strike outs in HXA v Surrey County Council  and YXA v Wolverhampton County Council , local authorities have continued to receive a high volume of Failure to Remove claims.
Although a duty of care can arise in social welfare cases when the local authority creates the source of danger or has assumed responsibility to protect the claimant from harm; the above cases have confirmed that a local authority will not generally owe a duty of care in negligence in respect of “failure to remove” claims.
In light of these circumstances, some claimants have struggled to prove their ‘failure to remove’ type claims against local authorities and consequently the focus has recently shifted to the Human Rights Act 1998 as an alternative cause of action. In AB’s case, the Article 3 claim requires AB to prove that he was subjected to treatment of sufficient severity to cross the Article 3 threshold and that there were steps which BCC or WCC should have taken which had a reasonable prospect of preventing such treatment.
With the appeal being heard in 2023, there will be further developments to discuss, and this case will be a step forward in starting to address and clarify the hurdles that must be navigated when Failure to Remove cases are brought under the HRA.
The High Court decision can be found here: AB v Worcestershire County Council & Anor  EWHC 115 (QB)