AB v WORCESTERSHIRE COUNTY COUNCIL

A child has no civil right to require a local authority to apply for, or obtain, a care order. A failure to commence care proceedings therefore does not itself engage Article 6.

An Article 3 operational duty requires a real and immediate risk of treatment reaching the high Article 3 threshold. For a child living in the community, the duty also requires care and control, an assumption of responsibility, or the capacity to control the immediate risk. The Article 3 investigative duty concerns an effective criminal investigation into arguable ill-treatment, rather than the child-protection investigations undertaken by social services.

AB, a protected party represented by the Official Solicitor, claimed that Worcestershire County Council and Birmingham City Council had breached Articles 3, 6 and 8 of the European Convention on Human Rights by failing to investigate alleged abuse and neglect, remove him from his mother’s care, or apply for care proceedings.

The defendants applied to strike out the Article 6 claim, obtain summary judgment on the Article 3 claim, and resist further amendment. AB withdrew the Article 8 claims and the negligence claim against Worcestershire. The central issues were whether the pleaded treatment met the Article 3 threshold, whether either local authority owed operational or investigative duties, and whether the Article 6 claim was legally recognisable.

1. Article 6. The Article 6 claim was struck out under CPR 3.4(2)(a). A child has no right to seek a care order or to have one made. Only a local authority or authorised person may apply, and the child is a respondent rather than the applicant. No relevant dispute concerning a civil right was identified. The claim would in any event add nothing to the Article 3 claim.
2. Article 3 threshold. Summary judgment was granted on the Article 3 claims. The pleaded incidents, individually or cumulatively, did not involve actual bodily injury, intense physical or mental suffering, or humiliation of the severity required by Article 3. The evidence showed poor and inconsistent parenting and neglect, but not treatment reaching the high threshold or a real and immediate risk of such treatment. The assessment had to be made without hindsight and in the context of the family as it appeared to the authorities at the time.
3. Operational duty. A real and immediate risk is necessary but insufficient. The operational duty also requires care and control, an assumption of responsibility, or the capacity to control the immediate risk. Social-services involvement and the provision of voluntary services under section 17 of the Children Act 1989 were insufficient. Neither local authority had care and control of AB while he lived in the community.
4. Investigative duty. The Article 3 investigative duty did not apply to the defendants’ child-protection functions. It concerns a criminal investigation capable of establishing the facts, identifying those responsible and, where appropriate, securing punishment. Section 47 investigations have a different preventive and welfare-protection purpose. Even if an investigative duty existed, the alleged shortcomings did not have a realistic prospect of meeting the necessary standard of obvious, significant, conspicuous, substantial or egregious failure.
5. The proposed further amendment was refused. The Article 8 claims and the remaining negligence claim were withdrawn or discontinued. The claim was dismissed, with costs subject to detailed assessment and the statutory determination required for publicly funded litigation.

First-instance decision of the High Court (Queen’s Bench Division). The court struck out the Article 6 claims, granted summary judgment on the Article 3 claims, refused further amendment, recorded the withdrawal or discontinuance of other claims, and dismissed the proceedings.