AB v Worcestershire County Council

The Court of Appeal upheld summary judgment dismissing the claimant's claim that Worcestershire County Council and Birmingham City Council breached the operational positive obligation under Article 3 of the European Convention on Human Rights by failing to remove the claimant from his mother's care. The court applied the established Article 3 framework: (i) the ill-treatment must attain a minimum level of severity to fall within Article 3; (ii) there must be a "real and immediate" risk; and (iii) the public authority must have known or ought to have known of that risk and failed to take reasonable measures within its powers.

The deputy High Court Judge's factual assessment of contemporaneous social‑services records was endorsed: the reported episodes (individually and cumulatively) were isolated, sporadic and not of sufficient intensity or duration to meet the Article 3 threshold, and did not demonstrate a present and continuing risk. The local authorities’ decisions to provide support rather than seek care orders were reasonable in the statutory and Convention context, and summary judgment was appropriate because no further material evidence could reasonably be expected at trial.

Background and parties

The claimant AB (born 2002) alleged that, while living with his mother, he suffered ill‑treatment and neglect amounting to inhuman or degrading treatment contrary to Article 3. He lived in Birmingham between 2005 and 2011 and in Worcestershire between 2011 and 2016. By a claim form issued in June 2020 AB sought damages for breaches of Convention rights and common law negligence against Birmingham City Council and Worcestershire County Council.

Procedural history

• At first instance the deputy High Court Judge granted summary judgment for the defendants on the Article 3 claim, concluding there was no realistic prospect of success; the claimant appealed.
• The case reached the Court of Appeal from the High Court: [2022] EWHC 115 (QB) (Deputy Judge Margaret Obi).

(i) Nature of the claim

AB alleged that multiple reports in local authority records disclosed ill‑treatment and a "real and immediate" risk of further treatment contrary to Article 3 such that the authorities should have removed him from his mother's care (by applying for care orders) instead of providing support under the Children Act 1989.

(ii) Issues framed by the court

• Whether the reported incidents individually or cumulatively met the Article 3 severity threshold;
• Whether there was a "real and immediate" risk of Article 3 treatment at the material times;
• Whether the local authorities knew or ought to have known of any such risk; and
• Whether they failed to take reasonable measures within their powers (for example, applying for care orders) that might have been expected to avoid the risk.

(iii) Reasoning and conclusion

The Court of Appeal endorsed the deputy judge's approach to the Article 3 operational duty and emphasised settled principles: the minimum severity requirement, the present and continuing nature of the risk, avoidance of hindsight, and the need to balance Article 3 obligations against family‑life considerations and the statutory scheme promoting family preservation under the Children Act 1989. The contemporaneous social‑services records showed isolated and sporadic incidents over several years, often investigated and not substantiated or addressed by support measures; the events lacked the severity, persistence or immediacy required for Article 3. The authorities had taken reasonable, proportionate steps (child protection plans, specialist family support, section 17 assistance) and a care order was not clearly required at the material times. The court also held summary judgment was appropriate because no material additional evidence was reasonably likely to be available at trial.

The appeal was dismissed.

The appeal was dismissed. The Court of Appeal held that the deputy High Court Judge was entitled to conclude, on the contemporaneous records and admitted facts, that the incidents relied on were isolated, sporadic and insufficiently severe to amount to inhuman or degrading treatment within Article 3, did not demonstrate a real and immediate risk, and that the local authorities reasonably employed less intrusive measures under the Children Act 1989 rather than seeking care orders. Summary judgment was appropriate because no material further evidence was reasonably to be expected at trial.

On appeal from the High Court of Justice, Queen's Bench Division (Deputy Judge Margaret Obi), [2022] EWHC 115 (QB); the Court of Appeal ([2023] EWCA Civ 529) dismissed the appeal.