High Court rejects ‘failure to remove’ Human Rights Act claim brought against two councils

A Deputy High Court judge has dismissed a claim brought by a claimant (AB) under the Human Rights Act against two local authorities over their alleged failure to remove him from the care of his mother.

The case of AB v Worcestershire County Council & Anor [2022] EWHC 115 (QB) was brought on AB’s behalf by the Official Solicitor as he did not have capacity to conduct proceedings in his own right.

AB lived in Birmingham City Council's local authority area between July 2005 and November 2011, and in Worcestershire County Council's local authority area between November 2011 and January 2016.

He alleged that he was abused and neglected whilst in the care of his mother. AB was accommodated by Worcestershire on several occasions in 2013 and was subsequently made the subject of an interim care order in May 2015 followed by a final care order in January 2016.

However, AB asserted that Birmingham should have applied for a care order around or shortly before July 2008 and that Worcestershire should have applied for a care order from about April 2012.

He brought claims for breach of Article 3 [freedom from torture and inhuman or degrading treatment] and Article 6 [right to a fair hearing] of the European Convention on Human Rights.

Granting the defendants summary judgment, Margaret Obi, sitting as a Deputy High Court judge, said: “There is no realistic prospect of AB establishing that he was subject to ill-treatment which falls within the scope of Article 3. AB was undoubtedly vulnerable and at risk. He was at risk of being subjected to poor and inconsistent parenting and neglect.

“However, there is no realistic prospect of AB establishing there was a "real and immediate" risk of treatment falling within the scope of Article 3. Nor is there a realistic prospect of establishing that the defendants knew or ought to have known of the existence of a "real and immediate" risk of Article 3 treatment. There is also no realistic prospect of AB establishing that any particular aspects of the disorderly and unstable family situation should have led the social services to conclude that a care order was required.”

The judge said that while there were occasions when AB demonstrated significant distress in the family environment, he also showed strong ties to his mother. “Cogent reasons would have been required for a care order bearing in mind the principle of respecting and preserving family life and such reasons were not present in July 2008 or any time between April 2012 and June 2014.”

The judge concluded that the merits of the overall claim were poor and had no realistic prospect of success.

She said: “It would be difficult not to empathise with AB. There were a catalogue of reports in the social service records which raised a cause for concern and strongly indicate that the parenting skills of his mother were inadequate. He may well feel that he did not have a good start in life, and he is now a vulnerable adult.

“However, my task has been to determine whether the claims as pleaded are viable. In the circumstances, and for the reasons set out above there is insufficient evidence that the various incidents relied upon by AB reached the high threshold required to sustain an Article 3 claim and are bound to fail. Further, the Article 6 claim does not disclose a legally recognisable claim.”

Sarah Erwin-Jones, a partner at law firm Browne Jacobson who represented Worcestershire County Council, said: “We know how nuanced and difficult social workers’ roles are, and how much their concerns about this type of claim can impact their ability to use their best judgement effectively. We hope that this judgment will limit Article 3 claims where neglect only is alleged, and also narrow the issues in claims alleging different types of abuse in the family home. 

“Following the Supreme Court decision in CN & GN v Poole Borough Council in 2019 and other subsequent cases, it is now established law that the mere fact that various steps are taken by local authorities in the discharge of its child protection functions is not enough to give rise to an assumption of responsibility. 

“Consequently, claimants have struggled to prove their ‘failure to remove’ type claims against local authorities and we have seen an increased emphasis on potential claims under the Human Rights Act 1998. In addition, claimant solicitors are bringing novel claims to circumvent their difficulties.”