Article 3 and ‘failure to remove’ claims: why AB v WCC and BCC is wrong

1. Following the decision of the Supreme Court in CN v Poole Borough Council [2019] UKSC 25, [2020] AC 780, and the narrowing of the circumstances in which a social services authority will owe a common law duty of care in discharging its child protection functions, attention has increasingly turned to availability of claims for alleged failures of such an authority to protect a child from abuse and neglect pursuant to Article 3 of schedule 1 to the Human Rights Act 1998.
2. In AB v Worcestershire County Council and Birmingham City Council [2022] EWHC 115 (QB) Margaret Obi, sitting as a deputy High Court judge, struck out claims for alleged breaches of Articles 3, 6 and 8. The claimant alleged those breaches arose from failures to protect him from parental neglect.
3. Two particular features of the judgment warrant consideration: (a) the application of the ‘severity threshold’ for the purposes of an Article 3 claim; and (b) whether an operational duty can only be owed where the child is in the ‘care and control’ of the State.  The former is highly fact sensitive to each particular case, but the latter is an important matter of principle which, if correct, would significantly restrict (if not eliminate) the possibility of ‘failure to remove’ claims based on Article 3.  However, in my view, the judgment is wrong on the point and is unlikely to survive analysis by a higher court.

THE SEVERITY THRESHOLD

4. It is well established that treatment must attain a particular level of severity before it can amount to “inhuman” treatment which engages Article 3.  The application of the severity threshold is highly fact sensitive.

5. In my view, the following might be noted in relation to the judge’s summary of the applicable principles in AB (at §§28-32):

(a) Although the judge stated that children are “especially vulnerable” which was a “key factor” in assessing whether the treatment meets the severity threshold (§28), there was limited reference to case law which considers the point.  Such cases might include ZH v Commissioner of Police of the Metropolis [2013] EWCA Civ 69, [2013] 1 WLR 3021, Bouyid v Belgium (2016) 62 EHRR 32, and Mitunga v Belgium (2008) 46 EHRR 23.  In the latter, detaining a five-year-old child separately from her family for two months in a facility designed for adults met the severity threshold, even though the staff had done their best to be kind to the child.  The court noted the potentially serious psychological effects on the child.  In E v Chief Constable of the Royal Ulster Constabulary [2008] UKHL 66, [2009] 1 AC 536, Lady Hale described Mitunga as an “instructive case” (at §8).  It certainly offers a different complexion to the cases cited by the judge in AB, which are focused on coercive interrogation techniques and violence.

(b) The judge referred to three cases concerning physical chastisement, the most recent of which dates from over two decades ago (see §31).  However, the Convention is a living instrument. More recently, in FO v Croatia (App No. 2955/13, 22nd April 2021) the Strasbourg court referenced earlier cases on corporate punishment in schools and described that, since then, there had “been an evolution of social attitudes and legal standards concerning the application of measures of discipline towards children, emphasising the need of protection of children from any form of violence and abuse”, as “reflected in various international instruments” (at §59).  The trajectory of recent case law increasingly recognises the importance attached to protecting children from harm.

(c) The extent to which the judge considered Article 3 necessarily or was generally associated with physical violence causing significant injury is unclear (see, for example, §31).  It is clear, however, that physical violence is not required.  For example, Lord Bingham in R (Limbuela) v Secretary of State for the Home Department [2005] UKHL 66, [2006] 1 AC 396 was satisfied that the severity threshold could be crossed by an asylum seeker being denied shelter, food or the basic necessities of life (at §7).  It must follow that similar severe neglect (without more) of a young child could also engage Article 3.

6. One important lesson from AB is that where the harm is primarily one of neglect (rather than sexual abuse or significant physical violence), it will be particularly important for claimants to draw out the cumulative impact of the neglect in demonstrating that severity threshold was reached.  It is generally in the overall impact of neglect that the gravity and inhumane nature of the treatment may exist.  The judge appears to have been alive to this point but stated that the particulars had not indicated the extent to which reliance was placed on the chronology as a whole and had not produced a medical report supporting the alleged psychiatric injury or specified the inferences the court would be invited to draw from the chronology (at §61).

7. The judge subjected the pleaded facts and records to a careful analysis and considered that there was not in fact evidence of sufficient concern to warrant the local authority making enquiries pursuant to section 47 of the Children Act 1989, let alone justifying removal.  In those circumstances, it is perhaps unsurprising that, on the facts, it was considered that the severity threshold was not met.

OPERATIONAL DUTY AND ‘CARE AND CONTROL’

8. In a mere six paragraphs, the judge made the striking (and, if correct, far reaching) finding that an operational duty to protect a child from Article 3 ill-treatment cannot be owed unless the child is in the “care and control” of the State, or there exists “an assumption of responsibility and the capacity to control the immediate risk, for example by arresting or detaining or otherwise removing the source of the risk” (§92).  The formulation is striking for its similarity to the law as it stands in relation to duties of care in negligence.

9. It is well-established that a “real and immediate risk” of harm is a necessary but not sufficient condition to establish the existence of an operational duty.  In Rabone v Pennine Care NHS Trust [2012] UKSC 2, [2012] 2 AC 72, Lord Dyson identified three indicia which point the way toward that duty: (a) where there has been an assumption of responsibility for the individual’s welfare, including by the exercise of control (such as in respect of a detained person) (§22), (b) the vulnerability of the victim (§23), and (c) the nature of the risk (§24). 

10. As was cited by the judge in AB, Lord Dyson in Rabone stated that (at §23):

“In circumstances of sufficient vulnerability, the ECtHR has been prepared to find a breach of the operational duty even where there has been no assumption of control by the state, such as where a local authority fails to exercise its powers to protect a child who to its knowledge is at risk of abuse as in Z v United Kingdom (2001) 34 EHRR 97.”

11. However, in explaining why an operational duty may be owed to an informal psychiatric patient Lord Dyson went on to say that the “patient’s position is analogous to that of the child at risk of abuse in Z v United Kingdom where … the court placed emphasis on the availability of the statutory power to take the child into care and the statutory duty to protect children” (§28).

12. The judge in AB (perhaps boldly) dismissed Lord Dyson’s dicta as obiter and said that the point had not been considered in Z v UK (at §90).  The judge referred instead to the judgment of the Divisional Court in R (Kent County Council) v HM Coroner for the County of Kent [2012] EWHC 2768 (Admin).  That case concerned the death of a boy from a methadone overdose. He had been receiving some limited support from the local authority pursuant to section 17 of the Children Act 1989.  The court considered that, although there was a known risk to the boy’s welfare, there was no known risk to his life (§46).  The court also noted, dealing with the matter in a single paragraph, that the boy was in the care of his parents (who did not themselves pose him any risk) and was not in the care and control of the authority (§49).  Moreover, the section 17 support owed to the boy was also owed to around 5,000 or 6,000 children within that single authority at any one time, and to impose a duty toward each of those children would be a disproportionate burden (§51).

13. In my view, it is clearly wrong to take from the Kent County Council case that ‘care and control’ is a pre-requisite to an operational duty, including in relation to protection children from a known risk of abuse. 

14. First, the Kent County Council case is wholly different, for a range of reasons.  The boy did not require protection from his parents and was not, therefore, in a similarly vulnerable position.  At most the authority would have supported the parents to look after him.  There was no suggestion that the authority had any powers of compulsion to take any specific action to protect the boy.  The authority owed a general duty pursuant to section 17 of the Children Act 1989, but no more.  As the Court noted, a similar duty was owed by the authority to 5,000 to 6,000 children at any one time.  It was not suggested that there was any power or duty to protect the boy from serious harm as required by section 47.  All of that distinguishes the case from the scenario of a child who is at risk of abuse by parents or other caregivers and which may require the authority to exercise its compulsory powers of protection. 

15. Second, the judge’s approach is also, in my view, a misreading of Kent County Council.  At §49 the Divisional Court observed that the boy was not living within the control or under the direct responsibility of the local authority.  That was a relevant observation because, if he was, there would more likely be an operational duty.  By analogy, an operational duty might be owed to a prisoner using illicit drugs (being in the care and control of the state), but not to a person doing so in the community, as is consistent with the heightened responsibility to those in state detention.  Whether the boy was in the care and control of the state was relevant.  That is very different to saying, and the Divisional Court did not say, that care and control is a necessary pre-requisite in every case before an operational duty may be owed.  There is nothing in the judgment which indicates any intention to depart from what had been observed by Lord Dyson in Rabone in respect of Z v UK.

16. Third, there is an array of authority in which an operational duty has been triggered in respect of potentially criminal acts between private individuals where care and control has not been a feature.  Z v UK is not a sole example of such a case in the child protection context.  Other examples include E v UK (2003) 36 EHRR 31and M and M v Croatia (2017) 65 EHRR 9. 

17. There are also examples in the Article 2 context, including:

(a) In Van Colle v Chief Constable of Hertfordshire [2008] UKHL 50, [2009] 1 AC 225 the Supreme Court considered an Article 2 operational duty could arise where the police came into possession of information indicating that a person was at a real risk of being harmed.  Neither the victim nor the perpetrator were in the care and control of the state.

(b) Similarly, in Michael v Chief Constable of South Wales Police [2015] UKSC 2, [2015] AC 1732 the Supreme Court declined to strike out an Article 2 claim based on an alleged failure to respond adequately to a telephone call reporting that Ms Michaels had received threats.  There was no doubt that an operational duty could be owed in principle, and the question was whether, on the facts, it might have been breached.   Again, neither the victim nor perpetrator were within the care and control of the state.  Neither had there been any assumption of responsibility.  Indeed, one feature of Michael was that no common law duty was established (in the absence of any assumption of responsibility), but the Article 2 claim could proceed.

(c) Very recently, in Kurt v Austria (2022) 74 EHRR 6 the Grand Chamber of the ECtHR repeated that the operational duty required an “immediate response to allegations of domestic violence” (§190).  There was no requirement for care and control over the victim or perpetrator.

18. To find that care and control is a necessary pre-requisite to the existence of an operational duty is manifestly incorrect.  Whether or not Lord Dyson’s observation is Z v UK is strictly obiter, it is consistent with a clear line of authority, both before Rabone and since.

19. One might also consider that, although there is an imperative to interpret positive obligations in a manner which does not impose disproportionate burdens upon the State, there are also imperatives pointing the other way, including the need to ensure the rights guaranteed by the Convention are “practical and effective”.[1] The judge in AB clearly considered that Z v UK had been wrongly decided, but that was a case in which the children were described as having suffered “horrific experiences” and “appalling neglect”.  The judge in AB appears to contemplate that Article 3 would not impose any duty upon the authority to intervene and protect the child.  That is striking and, at least for children who are unable (or less able) to call for action (e.g. report matters to the police), would render their Article 3 rights largely meaningless.  

20. If it really is correct that the State being aware a child being at risk of suffering torture or inhumane treatment owes no duty pursuant to Article 3 to protect the child, then the effectiveness of Article 3 is significantly impaired.  In my view, it cannot be correct and a future court will depart from the view adopted in AB.

[1] As is the frequent refrain of the Strasbourg court: see, e.g., Oneryildiz v Turkey (2005) 41 EHRR 20 at §69.