‘Failure to remove’ claims and Article 3: SZR v Blackburn with Darwen Borough Council [2024] EWHC 598 (QB)

Sam Jacobs, Doughty Street Chambers; Anna Moore, Leigh Day Solicitors

For claims concerning alleged failures by social services departments to remove children from situations of neglect and abuse, the sands continue to shift.  Decisions of the Supreme Court in CN v Poole [2019] UKSC 25 and HXA and YXA [2023] UKSC 52 appear to have narrowed the scope of claims in negligence.  Attention has increasingly turned to the scope of similar claims that may be brought pursuant to Article 3 of schedule 1 to the Human Rights At 1998, in particular, relying on the ‘operational duty’ to take reasonable preventative measures to protect a member of the public from a real and immediate risk of harm of which the authorities are or ought to be aware.

In AB [2022] EWHC 115 (QB), the High Court made the striking ruling that no operational duty could arise at all unless the child was in the “care and control” of the authority:  Article 3 ‘failure to remove’ claims were momentarily dead in the water.  But, that was wrong as a matter of principle, and was conceded to be wrong by the local authorities in that case by the time the matter had reached the Court of Appeal.  The claim was, however, struck out for other reasons, with the court being satisfied that the claimant had not real prospect of success in demonstrating that the treatment he suffered had reached the ‘severity threshold’ so as to engage Article 3, that there was any real and immediate risk of such treatment, and that, in any event, there had been any failure to take reasonable preventative measures: [2023] EWCA Civ 529.

That decision might have given cause for thought that the scope for Article 3 claims was really quite narrow.  However, the High Court, in a judgment of Mrs Justice Hill, has recently dismissed an application for summary judgment and strike out in a claim concerning alleged failures, in breach of Article 3, to protect a child from prolonged neglect: SZR v Blackburn and Darwen Borough Council [2024] EWHC 598 (QB) (available at https://www.bailii.org/ew/cases/EWHC/KB/2024/598.html). 

Inevitably, questions of the severity threshold, real and immediate risk, and reasonable preventative measures, are highly fact and context specific.  But, the case is nonetheless a helpful steer as to the approach to be applied under Article 3.  We suggest there are eight key ‘takeaways’.

First, some care must be applied in seeking to ‘read across’ AB to other cases.  AB was a case pleaded in an “unusual way” in that the facts on which reliance was placed were briefly set out in the particulars, and a lengthy chronology in an annex.  No other evidence was relied upon by the claimant in that case in resisting the summary judgment application.  Although it was a case of alleged neglect, the claimant’s case was limited to the 11 incidents set out in the particulars, and it did not focus on a picture of cumulative neglect (SZR, [26], [51]).  In contrast, in SZR it was “not appropriate to focus on any one date, or series of dates, nor on any one element of the treatment; rather, it was necessary to look at the cumulative impact of the various elements on which the Claimant relies, and test that against the Article 3 threshold” (SZR, [52]; see, similarly, [54]).   We would suggest it is also important to note that in addressing each of the incidents in AB the Court of Appeal placed differing emphases on different aspects of the elements of an Article 3 violation.  Some incidents were not of a severity to engage Article 3, but in respect of others, greater emphasis was placed on the authority having taken effective steps to protect the claimant. 

Second, though many of these types of cases will rely heavily on social services records, the issues raised may still be inapt for resolution on a summary judgment application. The records may be voluminous and the issues may demand careful and close examination.  Seeking to resolve the issues on a summary judgment application may be to invite precisely the sort of “mini-trial on the documents” which is not permitted (see, e.g., SZR, [46], [53], [60]).  In SZR, there was a detailed factual picture, with contested statements from social workers, and expert evidence upon which reliance was placed by the Claimant: it was “inherently unsuitable for strike out” (SZR, [59]).

Third, for those representing claimants, it is important that a claim based on prolonged neglect identifies and spells out the invidious and profound harm that prolonged neglect can cause.  That is well known to social workers, but may not be obvious to the court, and needs to be pleaded and, preferably, supported with independent social work evidence, psychiatric evidence, or a combination of both.  It was relevant in SZR: see [81-84].

Fourth, that a picture of neglect fluctuates over time does not preclude a finding that the severity threshold is reached.  In SZR, “while the evidence did suggest that at times the Claimant’s mother was able to improve her living conditions, it is reasonably arguable” that the Claimant was “regularly facing the prospect that her conditions would continue indefinitely” (SZR, [88]).  That was sufficient.

Fifth, the seminal Z v UK was a serious case, but there is nothing in it to suggest that it provides some sort of ‘floor’ for the severity threshold, below which claims must fail.   As Hill J observed, it “did not appear to be a borderline case.  Nor is there any reason to conclude that Z v UK set the standard of what is required in order to meet the Article 3 threshold” (SZR, [90]).  We suggest it is also worth observing that in the early period of intervention in Z v UK, the circumstances were not dissimilar to many neglect cases seen by practitioners in this area.

Sixth, a question arises, and remains to be resolved, as to whether the operational duty requires nothing more than to remove the immediacy of the risk.  The Defendant in SZR argued that interventions sufficient to bring about short term improvements were sufficient to discharge the operational duty (SZR, [106]).  The Claimant argued that an approach which limited the applicability of Article 3 to the immediate alleviation of risk would render the right no longer practical and effective (SZR, [107]).  The judge described it as novel issue which was inappropriate for resolution on a summary judgment application.  The issue may, however, have been a red herring: given the inability of the mother to sustain improvements, it was arguable that the risk remained immediate in any event, in the sense that it was a “present and continuing risk”, as is the test (SZR, [108-109]).

Seventh, the role for independent social work evidence in this sort of claim, pursued under Article 3, may need to be further addressed. In AB, the Court of Appeal considered that expert evidence was not necessary (at [82]).  It might be noted, however, that the issue in AB was whether adducing expert evidence at trial was a reason to decline summary judgment; there was no argument before the court as to whether, generally, independent social work evidence may appropriately feature in an Article 3 claim.   The issue was not conclusively resolved in SZR.  However, it appears to us to be inevitable that a court will often consider it appropriate to grant permission in an Article 3 ‘failure to remove’ claim to rely on the evidence of an independent social worker.  It may well be that a court can, as in AB, determine whether the threshold for care proceedings had or would have been met without expert evidence.  That was, essentially, the narrow question that arose in AB.  However, there may well be compelling reasons that independent social work evidence is entirely appropriate and necessary. First, in contrast to AB, there may well be far more nuanced issues that arise upon which expert evidence is of great assistance.  It may include matters such as understanding in social work as to factors which are indicative of risk or of there having been abuse, or of effective social work assessment, and so on.  Hill J in SZR appears to have found the evidence helpful: see [120-122]. Second, it is improper to allege professional negligence against a social worker without independent expert evidence.  Quite why allegations of violations of Article 3, arising out of the same or similar failings, can be produced by lawyers who do not have social care expertise and without expert evidence is difficult to fathom.  Third, absent a claimant’s ability to rely on independent social work evidence there may be a real problem of fairness.  It cannot be right that a defendant can rely on the evidence of several of its professionally qualified social workers, and claimants are limited to relying on legal representative’s arguments as to what social work input a particular scenario demanded. 

Eighth, Article 8 may be an alternative avenue for such claims.  Hill J accepted the Claimant’s submission “that if the Claimant’s Article 3 claim fails, she may nevertheless succeed in her alternative claim under Article 8.  Prolonged neglect of the sort alleged here is clearly capable of impairing a persons psychical and psychological integrity” so as to engage Article 8.  The Claimant had a “reasonable prospect of showing at trial that the Defendant’s failure to remove her from her mother’s care violated her Article 8 rights” (SZR, [141]).

These are all helpful points, for claimants and defendants, to identify meritorious claims.