Severe neglect and failure to remove claims

April 15, 2024

A recent High Court case shows that there is still scope for arguable failure to remove claims, writes Ella Davis.

With CN v Poole Borough Council [2019] UKSC 25 and HXA v Surrey County Council [2023] UKSC 52 having all but closed the door to common law claims (despite the Supreme Court maintaining in HXA that there might be examples of an assumption of responsibility arising on particular facts), claimants have had to turn to the Human Rights Act 1998 to make good failure to remove claims. Last year, in a further restriction on such claims, AB v Worcestershire County Council & Anor [2023] EWCA Civ 529 demonstrated that not all cases of poor parenting and even parental neglect will engage Articles 3 and 8.

The recent decision of Hill J in SZR v Blackburn with Darwen Borough Council [2024] EWHC 598 (KB), however, shows that there is a route to a successful failure to remove claim in cases of severe, persistent neglect. Dismissing the Defendant’s application for summary judgment and/or strike out, she held that it was arguable that the Claimant suffered treatment by her mother which engaged Articles 3 and 8, and that the Defendant was in breach of its obligation to take operational measures, specifically the seeking of a care order, to protect the Claimant from such harm.

The Facts

The Claimant’s case was that she suffered profound and prolonged neglect over a period of years in the care of her mother. The Defendant’s social services team were involved with the family over three key periods from when she was aged 13 to shortly after her 18th birthday. She relied on a number of matters which, taken cumulatively, were said to show that the Defendant was or ought to have been aware of a real and immediate risk of her suffering inhumane and degrading treatment of a severity that engaged Article 3. These included dirty and inadequate clothing, poor diet, limited social contact, limited access to education, poor personal hygiene and infestation with nits, an extremely dirty home environment, neglect of her emotional and behavioural development, and neglect of her medical needs (including an untreated ankle injury which caused her to limp). She was particularly vulnerable as she had autism, ADHD and learning difficulties Her mother’s parenting ability was also restricted by her own learning difficulties, misuse of alcohol and poor mental health. It was pleaded that the Claimant was an extremely vulnerable child, living in squalor and her needs were so neglected that she was isolated in her home, keeping professionals away by arming herself with a pole.

The Application

The Defendant applied for strike out and/or summary judgment, relying heavily on AB. The Defendant argued that the Claimant had no real prospect of succeeding on and/or no reasonable grounds for arguing that:

The treatment she was experiencing was of sufficient severity to cross the high threshold required for Article 3 (“the threshold issue”);
The Defendant was on notice that she was at a real and immediate risk of experiencing such treatment at the relevant times (“the risk issue”);
The Defendant did not take reasonable measures to safeguard the Claimant from the risk of Article 3 treatment (“the breach issue”); and/or
But for the alleged breaches, the Claimant would not have suffered the treatment said to cross the Article 3 threshold (“the causation issue”).

The Defendant also argued that if the Article 3 claim failed the Article 8 claim failed with it.

The correct approach to the application

Counsel for the Defendant sought to take the court to a significant number of social services records to provide fuller factual context to the treatment to which the Claimant was exposed. It was noted that in AB the High Court and the Court of Appeal had examined each of the incidents pleaded in the Particulars of Claim to determine: (i) whether they individually constituted Article 3 treatment; (ii) whether the Defendant was or ought to have been aware of them at the relevant time; and (iii) whether, stepping back, the events could cumulatively amount to treatment crossing the Article 3 threshold. Hill J did not consider that approach to be directly applicable to the instant case, which was advanced only on a cumulative basis, unlike AB which revolved around a finite and relatively small number of incidents. She held that rather than focus on any one date or element of the treatment, it was necessary to look at the cumulative impact of the various elements, and test that against the Article 3 threshold.

Further, AB proceeded on agreed facts or chronologies included in and appended to the Particulars of Claim. In this case the Defendant had chosen to rely on evidence from professionals in support of the application, and the Claimant had served expert evidence. Hill J therefore held that the factual basis for the application was “much more fluid than the position in AB”. There were a number of serious live issues of fact, particularly on the breach issue, which rendered the claim inherently unsuitable for strike out or summary judgment if their resolution required a mini-trial.

The threshold issue

The Defendant argued that there was a spectrum of neglect cases with Z v UK (2002) 34 EHRR 3 (an application to the ECtHR made by the Claimants in X v Bedfordshire [1995] 2 AC 633) at one end and AB at the other. Hill J found a number of features in common between this case and Z v UK, but also noted that, because of the fact-specific nature of the Article 3 threshold assessment, AB could only provide limited assistance. AB was advanced in a conceptually different way and there were very specific factual reasons why it was dismissed. These were effectively, a combination of the reported concerns being found to have been unsubstantiated, not being considered sufficiently serious or having been responded to appropriately. The Defendant was therefore wrong to contend that the reasons in AB amounted to conclusive findings on the threshold issue which were binding on other cases.

However, AB is authority for the proposition that in the context of alleged failures to remove a child from the care of the parent, “serious and prolonged ill-treatment and neglect, giving rise to physical or psychological suffering”, is capable of amounting to treatment contrary to Article 3. Hill J found that test to be arguably met in this case.

The risk issue

There was a dispute between the parties as to the meaning of dicta in Rabone & Anor v Pennine Care NHS Trust [2012] UKSC 2 AC 72 to the effect that the Article 3 obligation is to focus on a risk which exists at the time of the alleged violation, and not a risk that may arise at some stage in the future. The Defendant argued that its interventions periodically improved circumstances in the home such that there was no real and immediate risk at that time, and that there was no longer term obligation to ensure that the situation did not deteriorate in the future. The Claimant argued that such an approach would render the right no longer practical or effective.

Hill J held that this was a novel legal issue which could only be resolved on findings of fact, which in itself rendered it unsuitable for summary determination. Further, she was not taken to material which conclusively showed lengthy periods where the threshold was not met, and there was evidence of the mother’s inability to sustain improvements. It was thus arguable that the risk remained “present and continuing”.

The breach issue

Hill J held that the Defendant’s contention that there was no real prospect of establishing a failure to take reasonable preventative measures, rested solely on a bare assertion by its legal representative that reasonable steps were taken. This was an inadequate basis for summary judgment or strike out. Further, while there was force in points made in the Defence about the effect of the Defendant’s intervention from time to time, and of the potential harm involved in taking the Claimant into care, they were not so persuasive that it could be said that the Claimant’s case had no real prospect of success. In particular, the Claimant relied on an apparently clear and rational expert opinion identifying numerous occasions when the Defendant should have initiated care proceedings.

The judge was also satisfied that this report provided sufficient evidence to conclude that there was a real prospect of succeeding on the causation issue.

Article 8

Finally, the judge held that there was nothing improper in the Article 8 claim having been pleaded on the same factual matrix as the Article 3 claim, but also that an Article 8 claim should not simply be treated as an alternative to an Article 3 claim simply with a lower threshold. There are cases where a person’s experience has been found to be outwith Article 3 but to engage Article 8. It was not therefore right to say that if the Article 3 claim fails the Article 8 claim also necessarily fails.

Conclusion

The judgment only resolves an application for summary judgment and the case still has to be tried on its facts. It is an indication, however, that even after CN, HXA and AB, there will be claimants with arguable failure to remove claims.

Ella Davis is a barrister at Deka Chambers.