AB V WORCESTERSHIRE COUNTY COUNCIL AND ANOTHER [2022] EWHC 115 (QB)
FACTS:-
The Claimant brought a claim against Worcestershire CC (“WCC”) and Birmingham CC (“BCC”). He lived in the area of BCC between 2005 and 2011 and in the area of WCC between 2011 and 2016. He claimed that BCC should have applied for a care order around 2008 and that WCC should have applied for a care order from about 2012. His grounds were that there were numerous reports of neglect and abuse about his birth family. He claimed for both negligence and also human rights, namely Articles 3, 6 and 8 of the European Convention on Human Rights. The claim in relation to Article 8 was abandoned as was the claim in negligence in light of the decision DFX & Others v Coventry City Council [2021] EWHC.
Article 3 provided that "No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
Article 6 enshrined an individual's right to "the determination of .... civil rights and obligations."
The Defendant made an application to strike out the remaining Article 3 and 6 human rights claims.
JUDGEMENT:-
Ms. Justice Obi reiterated the procedural history of the case and the law of “strike out.” She also considered Articles 3 and 6 of the European Convention. She began with Issue 1, which related to Article 6. Both defendants submitted that the statement of case in respect of the Article 6 claim did not "disclose any legally recognisable claim against the defendant."
The Claimant asserted that he had a civil right to be taken into care. Obi J said that a child had no such right (see Re S [2002] UKHL 10) and it was only the local authority that was empowered to make an application to the court for a care order.
There was no arguable basis for any social services involvement, let alone an application for a care order "shortly before July 2008" as the Claimant alleged. WCC social services opened the case for Initial Assessment in April 2012. There were various interventions thereafter, but it was not arguable that a care order, which was the most draconian of measures available to a local authority, would have been made on the basis of any of the incidents relied upon by the Claimant.
In any event, since the alleged breach of AB's Convention rights lay in not applying for a care order at an earlier stage, the claim under Article 6 added nothing to the claim under Article 3. The application to strike out the Article 6 claim would be granted.
That left the following five issues :-
In relation to Article 3, the Claimant’s Particulars of Claim contained no explanation of what in those social services reports was alleged to amount to Article 3 treatment. Obi J considered the facts of the case. The Claimant was required to establish that BCC knew or ought to have known, at the time, of the existence of a "real and immediate" risk of an Article 3 violation from the acts of an identified individual and failed to take measures within the scope of their powers which, judged reasonably, might be expected to avoid that risk. The social services records represented the high water mark of AB's claim. There was nothing within BCC's records which came close to alerting BCC to a "real and imminent" risk that AB would suffer significant harm amounting to Article 3 treatment. During AB's time in BCC's area, the case did not cross the child protection threshold so as to warrant a section 47 investigation, let alone registration on the child protection register and consideration of care proceedings. Obi J was satisfied that there was no realistic prospect of AB establishing that an interim or final care order would have been made whilst he lived in the BCC area. None of the reported incidents, taken at their highest either individually or cumulatively, involved actual bodily injury, intense physical or mental suffering, or humiliation of the severity required to meet the Article 3 threshold. Nor was it arguable that from July 2008 there was a "real and immediate risk" of Article 3 treatment.
In relation to WCC, Obi J said that none of the reported incidents, taken at their highest either individually or cumulatively, involved actual bodily injury, intense physical or mental suffering, or humiliation of the severity required to meet the Article 3 threshold. Nor was it arguable that from April 2012 there was a "real and immediate" risk of Article 3 treatment. Further, there was nothing within WCC's records which came close to alerting the local authority to a "real and imminent" risk that AB would suffer significant harm amounting to Article 3 treatment.
For all of these reasons, there was no realistic prospect of AB establishing that he was subject to ill-treatment which fell within the scope of Article 3.
In relation to Issue 3, this was whether a local authority owed an operational duty in terms of 'care and control' under Article 3 to children in the community. The operational duty would be held to exist where there had been an assumption of responsibility by the state for the individual's welfare and safety. This included where the state had detained an individual, whether in prison, in a psychiatric hospital, or an immigration centre (Mitchell v Glasgow City Council [2009] 1 AC 874).
However, in Rabone v Pennine Care HS Trust [2012] UKSC 2 it was said that a court might find an operational duty even where there had been no assumption of control by the state, such as where a local authority failed to exercise its powers to protect a child who to its knowledge was at risk of abuse as in Z v United Kingdom (2001) 34 EHRR 97.
Obi J said that these comments in Rabone were obiter, and in Z, the issue was not contested and there was no adjudication on the point. However, in an inquest into a child’s death, which involved Article 2, R on the application of Kent County Council v HM Coroner for the County of Kent (North West District) [2012] EWHC 2768 (Admin) the court held there was no operational duty in place and, accordingly, no scope for an Article 2 inquest. This was because the child in question was not “in care” in the sense that no proceedings had been commenced under section 31 of the Children Act 1989. He was not therefore living within the control or under the direct responsibility of the local authority.
There was reason in principle why the test for Article 2 should be any different for the purposes of a claim under Article 3. Obi J was satisfied that the “care and control” aspect of the operational duties under Article 2 and Article 3 were similar if not identical.BCC did not have "care and control" of AB whilst he was living in that area. The operational duty was therefore not engaged. If there was no operational duty in place, there could be no breach of it.
There was then Issue 4 - did the Defendants when exercising child protection functions owe an Article 3 investigative duty? Obi J considered the caselaw on this issue and concluded that this aspect of the Article 3 claim was misconceived. The investigative duty referred to a criminal investigation discharged by the police and prosecuting authorities after the fact to recognise, apprehend and punish the wrongdoer. It was not an investigation for which the primary purpose is to establish the existence of future potential harm and protect the victim against it. The provisions of the 1989 Act were framed to empower social workers to investigate a child's circumstances in order to take steps to prevent any risk or further risk of significant harm. The purpose of section 47 investigations was to decide whether and what type of action was required to safeguard and promote the welfare of a child who was suspected of, or likely to be, suffering significant harm. The provisions did not require an independent enquiry to identify what has happened and the purpose is not to punish a wrongdoer.
Accordingly, the investigative duty did not apply in the present case.
Moreover, only very significant failures would give rise to unlawful conduct. Only obvious and significant shortcomings in the conduct of the police and prosecutorial investigation would give rise to the possibility of a claim. This aspect of AB’s claim has no realistic prospect of success.
There was then Issue 5 – was there otherwise a good reason to dispose of the claim at trial? Obi J said that there was no good reason to dispose of this claim at trial. There were aspects which were misconceived and overall the claim was weak. It would be contrary to the overriding objective to permit weak claims to proceed as it would result in significant further costs and court resources being expended in circumstances where there was no justification.
Finally, there was Issue 6 – should AB be given an opportunity to re-amend his claim? Obi J said that this claim would clearly require amendment if it were to proceed to trial. However, this would not be appropriate. There was no indication that if pleaded for a sixth time the claim would establish reasonable grounds for bringing either an Article 3 or Article 6 claim.
FACTS:-
The Claimant brought a claim against Worcestershire CC (“WCC”) and Birmingham CC (“BCC”). He lived in the area of BCC between 2005 and 2011 and in the area of WCC between 2011 and 2016. He claimed that BCC should have applied for a care order around 2008 and that WCC should have applied for a care order from about 2012. His grounds were that there were numerous reports of neglect and abuse about his birth family. He claimed for both negligence and also human rights, namely Articles 3, 6 and 8 of the European Convention on Human Rights. The claim in relation to Article 8 was abandoned as was the claim in negligence in light of the decision DFX & Others v Coventry City Council [2021] EWHC.
Article 3 provided that "No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
Article 6 enshrined an individual's right to "the determination of .... civil rights and obligations."
The Defendant made an application to strike out the remaining Article 3 and 6 human rights claims.
JUDGEMENT:-
Ms. Justice Obi reiterated the procedural history of the case and the law of “strike out.” She also considered Articles 3 and 6 of the European Convention. She began with Issue 1, which related to Article 6. Both defendants submitted that the statement of case in respect of the Article 6 claim did not "disclose any legally recognisable claim against the defendant."
The Claimant asserted that he had a civil right to be taken into care. Obi J said that a child had no such right (see Re S [2002] UKHL 10) and it was only the local authority that was empowered to make an application to the court for a care order.
There was no arguable basis for any social services involvement, let alone an application for a care order "shortly before July 2008" as the Claimant alleged. WCC social services opened the case for Initial Assessment in April 2012. There were various interventions thereafter, but it was not arguable that a care order, which was the most draconian of measures available to a local authority, would have been made on the basis of any of the incidents relied upon by the Claimant.
In any event, since the alleged breach of AB's Convention rights lay in not applying for a care order at an earlier stage, the claim under Article 6 added nothing to the claim under Article 3. The application to strike out the Article 6 claim would be granted.
That left the following five issues :-
- Did AB's claim, on the facts pleaded, meet the threshold for treatment or punishment which falls within the scope of Article 3? (Issue 2)
- Did a local authority owe an operational duty under Article 3 to children in the community? (Issue 3)
- Did a local authority's social services department exercising child protection functions owe an Article 3 investigative duty? (Issue 4)
- Was there otherwise a good reason to dispose of the claim at trial? (Issue 5)
- Should AB be given an opportunity to re-amend his claim? (Issue 6)
In relation to Article 3, the Claimant’s Particulars of Claim contained no explanation of what in those social services reports was alleged to amount to Article 3 treatment. Obi J considered the facts of the case. The Claimant was required to establish that BCC knew or ought to have known, at the time, of the existence of a "real and immediate" risk of an Article 3 violation from the acts of an identified individual and failed to take measures within the scope of their powers which, judged reasonably, might be expected to avoid that risk. The social services records represented the high water mark of AB's claim. There was nothing within BCC's records which came close to alerting BCC to a "real and imminent" risk that AB would suffer significant harm amounting to Article 3 treatment. During AB's time in BCC's area, the case did not cross the child protection threshold so as to warrant a section 47 investigation, let alone registration on the child protection register and consideration of care proceedings. Obi J was satisfied that there was no realistic prospect of AB establishing that an interim or final care order would have been made whilst he lived in the BCC area. None of the reported incidents, taken at their highest either individually or cumulatively, involved actual bodily injury, intense physical or mental suffering, or humiliation of the severity required to meet the Article 3 threshold. Nor was it arguable that from July 2008 there was a "real and immediate risk" of Article 3 treatment.
In relation to WCC, Obi J said that none of the reported incidents, taken at their highest either individually or cumulatively, involved actual bodily injury, intense physical or mental suffering, or humiliation of the severity required to meet the Article 3 threshold. Nor was it arguable that from April 2012 there was a "real and immediate" risk of Article 3 treatment. Further, there was nothing within WCC's records which came close to alerting the local authority to a "real and imminent" risk that AB would suffer significant harm amounting to Article 3 treatment.
For all of these reasons, there was no realistic prospect of AB establishing that he was subject to ill-treatment which fell within the scope of Article 3.
In relation to Issue 3, this was whether a local authority owed an operational duty in terms of 'care and control' under Article 3 to children in the community. The operational duty would be held to exist where there had been an assumption of responsibility by the state for the individual's welfare and safety. This included where the state had detained an individual, whether in prison, in a psychiatric hospital, or an immigration centre (Mitchell v Glasgow City Council [2009] 1 AC 874).
However, in Rabone v Pennine Care HS Trust [2012] UKSC 2 it was said that a court might find an operational duty even where there had been no assumption of control by the state, such as where a local authority failed to exercise its powers to protect a child who to its knowledge was at risk of abuse as in Z v United Kingdom (2001) 34 EHRR 97.
Obi J said that these comments in Rabone were obiter, and in Z, the issue was not contested and there was no adjudication on the point. However, in an inquest into a child’s death, which involved Article 2, R on the application of Kent County Council v HM Coroner for the County of Kent (North West District) [2012] EWHC 2768 (Admin) the court held there was no operational duty in place and, accordingly, no scope for an Article 2 inquest. This was because the child in question was not “in care” in the sense that no proceedings had been commenced under section 31 of the Children Act 1989. He was not therefore living within the control or under the direct responsibility of the local authority.
There was reason in principle why the test for Article 2 should be any different for the purposes of a claim under Article 3. Obi J was satisfied that the “care and control” aspect of the operational duties under Article 2 and Article 3 were similar if not identical.BCC did not have "care and control" of AB whilst he was living in that area. The operational duty was therefore not engaged. If there was no operational duty in place, there could be no breach of it.
There was then Issue 4 - did the Defendants when exercising child protection functions owe an Article 3 investigative duty? Obi J considered the caselaw on this issue and concluded that this aspect of the Article 3 claim was misconceived. The investigative duty referred to a criminal investigation discharged by the police and prosecuting authorities after the fact to recognise, apprehend and punish the wrongdoer. It was not an investigation for which the primary purpose is to establish the existence of future potential harm and protect the victim against it. The provisions of the 1989 Act were framed to empower social workers to investigate a child's circumstances in order to take steps to prevent any risk or further risk of significant harm. The purpose of section 47 investigations was to decide whether and what type of action was required to safeguard and promote the welfare of a child who was suspected of, or likely to be, suffering significant harm. The provisions did not require an independent enquiry to identify what has happened and the purpose is not to punish a wrongdoer.
Accordingly, the investigative duty did not apply in the present case.
Moreover, only very significant failures would give rise to unlawful conduct. Only obvious and significant shortcomings in the conduct of the police and prosecutorial investigation would give rise to the possibility of a claim. This aspect of AB’s claim has no realistic prospect of success.
There was then Issue 5 – was there otherwise a good reason to dispose of the claim at trial? Obi J said that there was no good reason to dispose of this claim at trial. There were aspects which were misconceived and overall the claim was weak. It would be contrary to the overriding objective to permit weak claims to proceed as it would result in significant further costs and court resources being expended in circumstances where there was no justification.
Finally, there was Issue 6 – should AB be given an opportunity to re-amend his claim? Obi J said that this claim would clearly require amendment if it were to proceed to trial. However, this would not be appropriate. There was no indication that if pleaded for a sixth time the claim would establish reasonable grounds for bringing either an Article 3 or Article 6 claim.