AB v Worcestershire County Council & Anor

A local authority’s operational duty under Article 3 arises where it knows, or ought to know, of a real and immediate risk that an identified child will suffer ill-treatment reaching the minimum level of severity required by Article 3, and it fails to take measures within its powers which, judged reasonably, might avoid that risk.

Severity depends on all the circumstances, including the treatment’s duration and effects and the child’s age, health and vulnerability. The risk must be present and continuing. Events must be assessed without hindsight, while respecting family life and avoiding an impossible or disproportionate burden on authorities. Removal is a last resort. Diverse, barely adequate or inconsistent parenting does not itself require care proceedings.

The appellant sought damages from two local authorities for allegedly failing to protect him from neglect and ill-treatment while he lived with his mother. He alleged that reports received between 2005 and 2014 disclosed a real and immediate risk of treatment contrary to Article 3 of the Convention and required the authorities to seek a care order.

A deputy High Court judge granted summary judgment under rule 24.2 of the Civil Procedure Rules 1998, holding that the reported incidents did not individually or cumulatively reach the Article 3 threshold or disclose the required risk. The decision is reported at [2022] EWHC 115 (QB).

The principal issue on appeal was whether the evidence gave the claim a realistic prospect of establishing a breach of the Article 3 operational duty. The court also considered whether summary judgment was appropriate, whether the duty required the child to be in the authority’s care and control, and whether fresh evidence should be admitted.

1. Appeal dismissed. The Article 3 operational duty comprises four requirements: a real and immediate risk; prospective ill-treatment severe enough to fall within Article 3; actual or constructive knowledge of that risk; and a failure to take measures within the authority’s powers which, judged reasonably, might have avoided it. The risk must be present and continuing.

2. Ill-treatment must attain a minimum level of severity. Assessment is relative and depends on all the circumstances, particularly duration, physical or mental effects, and the victim’s age, health and vulnerability. Serious and prolonged child abuse or neglect may qualify. The reported incidents in this case were isolated and sporadic, however, and did not individually or cumulatively disclose treatment, punishment or humiliation of the required severity.

3. The authorities’ knowledge and conduct had to be assessed as events unfolded, without hindsight. The operational duty must not impose an impossible or disproportionate burden. It must also accommodate the right to respect for family life under Article 8. Not every risk therefore requires removal of a child from parental care.

4. Neither authority failed, judged reasonably, to take appropriate measures. Birmingham investigated reports and had no proper basis for seeking removal. Worcestershire removed immediate sources of risk, used child-protection plans, arranged support and temporarily placed the appellant away from his mother. Under section 17(1) and paragraph 7 of Schedule 2 to the Children Act 1989, authorities should promote upbringing within the family and reduce the need for care proceedings. A care order is a last resort where the statutory threshold of significant harm is met.

5. Summary judgment was appropriate. The pleaded case and contemporaneous records contained the material facts, and no further evidence could reasonably be expected at trial. Whether an authority, judged reasonably, failed to take appropriate protective measures was a question for the court, not for expert social-work evidence.

6. The judge erred in treating care and control, and an assumption of responsibility for the child’s welfare, as an additional requirement of the operational duty. Ground 1 therefore succeeded, but this did not affect the disposition because it concerned only an alternative basis for dismissing the claim. The application to admit fresh evidence was refused and the remaining grounds failed.

1. Court of Appeal (Civil Division): Dismissed the appeal from the grant of summary judgment, although it accepted that the judge had erred by imposing an additional care-and-control requirement. [2023] EWCA Civ 529.
2. High Court of Justice, King’s Bench Division: A deputy judge granted both respondents summary judgment on the Article 3 claim and refused further amendment of the particulars of claim. [2022] EWHC 115 (QB).