What AB v Worcestershire CC Does and Doesn’t Mean for Victims

The Court of Appeal’s recent decision in AB v Worcestershire County Council [2023] EWCA Civ 529 reaffirmed a basic principle of law on Article 3 ECHR and highlighted litigation pitfalls for victim litigants. 

The appeal was against the decision of Obi J in the High Court, which had upheld the striking out of a claim of violations of Article 3 as a result of alleged failure by two local authorities to remove a child from his mother’s care.

Obi J upheld the strike out on the basis that there was no realistic prospect of showing a real and immediate risk of Article 3 ill-treatment; and on the basis that the child had not been under the care and control of either authority.  

The Court of Appeal refused the appeal. Its analysis is, for the most part, a reflection of what it described as the “unusual” nature of the case before it (§82). 

The decision might further embolden authorities to be bullish about whether they owe duties to children in their areas. However, even if AB goes no further, its implications should be not be over-stated. Rather, it’s a reminder that victims’ lawyers, and courts, need to take great care with pleading such cases, and with the analysis of the available evidence. 

No Need for “Care and Control”

First and foremost, the Court of Appeal confirmed what the local authorities had already conceded (§85). In the High Court, Obi J had ruled that the authorities did not owe an operational duty under Article 3 unless a child was in their “care and control”. This finding was contrary to the entire body of Article 3 case-law – as previously set out in a blog post by Sam Jacobs (who was instructed on appeal but not in the earlier proceedings). 

The concession on appeal was a necessary reaffirmation of the law. Article 3’s protections go beyond those under the common law of negligence (where it is more difficult to establish a duty of care). The underlying flaw of Obi J’s analysis was to conflate these two fields. After the Court of Appeal’s judgment human rights law is realigned with precedent. This is the most significant part of the judgment and the one that should have the broadest impact.

The Positive Operational Duty

The Court of Appeal confirmed the components of the test for a violation of the Article 3 positive operational duty (§57): a real and immediate risk, of sufficiently severe ill-treatment, of which the authority knew or ought to have known, and in relation to which it had failed to take measures within their powers that, judged reasonably, might have been expected to avoid the risk. 

The application of that test is not straightforward. In AB the case had been pleaded on the basis that certain incidents of ill-treatment, of which the authorities were aware, were enough to meet the threshold. The courts took each of the reported incidents in turn and concluded that they did not evidence a “real and immediate” risk of sufficiently severe ill-treatment. 

The Court of Appeal said it took the incidents into account individually and cumulatively. However, the seeming absence of a pleading that the incidents were merely the “tip of an iceberg” made it easier to consider the case summarily (High Court, §63; Court of Appeal §30). There is a lesson here, to which I will return, but first the Court’s analysis of “real and immediate risk” merits comment.

What Is A “Real and Immediate Risk”?

The Court of Appeal’s discussion of operational duties read across principles from Article 2 ECHR case-law (see e.g. the reliance on Rabone at §§60-61).  But it did not do so comprehensively. 

For example, in asking there is a “real and immediate risk”, the Court of Appeal did not read across a commonly relied upon aspect of the Rabone ruling. There, a risk of 5-20% was held to be sufficiently “real and immediate” in the context of the Article 2 operational duty. 

If that test is read-across, a 5-20% risk of ill-treatment should be enough to trigger the Article 3 operational duty. 

This would not mean that a 5-20% risk of ill-treatment would be sufficient to take a child into care. Rather, it would trigger the duty to take reasonable steps to avoid or mitigate the harm. That could involve, for example, an escalation of a local authority’s involvement with the family. 

Ultimately, given that the question (in respect of strike-out) was whether there was a “realistic prospect” of the claimant establishing the risk, the evidential burden at summary stage should not be a very high one. 

If the Court of Appeal had asked whether the chronology in AB meant there was a realistic prospect of establishing a 5-20% risk of severe ill-treatment they might have come to a different conclusion on the engagement of the positive operational duty (breach would still be a separate question, of course, and in AB’s case the Court of Appeal was satisfied with the steps taken by the authorities). 

Evidence of Fact

On the question of summary judgment, the Court of Appeal was significantly influenced by its conclusion that there was “no other evidence that could reasonably be expected to be available” at trial (§82) and that expert evidence was not necessary (see further below). 

Various factors made this analysis possible, including how the claim had been pleaded, the appellant’s own admission that he could not give evidence on the ill-treatment, and the passage of time since the alleged violations of rights. However, the Court of Appeal’s short shrift sits uneasily. 

The European Court of Human Rights significantly scrutinises Article 3 claims, applying “beyond a reasonable doubt” as a standard of proof (as an autonomous concept; not based on the standard of proof in English criminal law). Sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact can be enough to satisfy the standard (see Bouyyid, §§82-83).

Moreover, while the applicant before the European Court must prove what she alleges, where the relevant events  “lie wholly, or in large part, in the exclusive knowledge of the authorities”, the European Court will apply presumptions of fact (Bouyyid, §83). The paradigmatic case is the victim is injured in state custody where prison records may be principal evidence. 

AB, and similar children, are not in state custody. However, it would frustrate the protection of their Article 3 rights if the forensic analysis of their claims were limited to review of a chronology. If that were the case public authorities could benefit from poor record-keeping or failures to inquire. 

The European Court guards against this, e.g. in prison cases, by the use of presumptions of fact. Given the Court of Appeal’s reasoning it seems likely that AB’s first instance pleadings did not seek to rely on such presumptions. 

Still, even absent such pleadings, the European Court’s underlying rationale is salient. The evidential hurdle facing a vulnerable child (who is entirely reliant on their carers, social workers and other professionals), should not be allowed to become insurmountable.

Victims' lawyers can guard against this with their pleadings. But courts should also be slow to strike-out, least evidential hurdles pave a path to impunity for abusers, and for those that ought to intervene.

Expert Evidence

The Court was not convinced by the appellant’s argument that he would, at trial, rely on expert evidence. It held that, unlike a claim in negligence, expert evidence was not necessary to establish a violation of Article 3.

Clearly, in cases where the ill-treatment is extremely severe, and the failure to act so blatant, expert evidence might be redundant. 

But in many cases (perhaps including AB’s), an expert will be able to assist the court with (i) the likely impact on a child of, for example, cumulative experiences of neglect and/or other abuse; and (ii) what would constitute reasonable measures, which in consequence could fulfill the Article 3 positive operational duty. 

Victims’ lawyers may need to be robust in this respect – for example if authorities seek to rely on AB to refuse limitation moratoriums to provide time to obtain expert evidence. In difficult cases, expert evidence can provide all parties with a useful indication of the likely outcome of a trial, and help avoid costly litigation. 

The Need for Caution

It is clear that much of the judgment is fact-specific. The most impactful ruling involved a concession: public authorities may owe Article 3 positive operational duties to children who are not in their care and control.

The rest is a cautionary tale. The pre-action scrutiny of social services records is a lengthy, painstaking, and necessary task. It may not, of itself, provide a sufficient evidential basis for a claim. It is vital to consider what lies behind the records, what other evidence may be available, and what pleadings are necessary to bring that evidence to light.

The courts, too, must be cautious. A finding of violation of Article 3 is a significant censure and must be proven. But the prospect of such censure plays a role in shaping how authorities work with children and their families. It would help no-one if litigation procedure makes the burden on victims so onerous as to make the prospect of accountability illusory.