Summary disposal of Article 3 and 6 claim in “failure to remove” case by Caroline Lody

On 20^th January 2022 Ms Margaret Obi, sitting as a Deputy High Court Judge, handed down her judgment in AB v Worcestershire CC and Birmingham CC [2022] EWHC 115 (QB).

Caroline Lody represented the second defendant, Birmingham CC.

The Deputy Judge struck out the Art 6 claim on the grounds that it disclosed no reasonable cause of action. She rejected the claimant’s assertion that he had a right to be taken into care, which amounted to a “civil right” within the meaning of Art 6. The Deputy Judge concluded that a child has no civil right to seek a care order or to have one made in respect of their care. Nor had the defendants done anything to interfere with AB’s rights or taken any action in relation to which an applicable dispute could have arisen. She rejected the claimant’s alternative formulation of the “civil right”, which was advanced in oral submissions – that he had a right to determination of his Art 3 rights within a reasonable time through the mechanism of care proceedings – finding it equally misconceived.

The Art 3 claim was struck out on a number of different bases:

• The claimant had no realistic prospect of proving that any of the alleged treatment was of the severity required to meet the Art 3 threshold, nor was there a realistic prospect of establishing that either defendant knew or ought to have known of the existence of a real and immediate risk of Art 3 treatment.
• The Deputy Judge accepted the submissions made by Caroline Lody on behalf of BCC that a local authority does not owe an Art 3 operational duty to children living in the community. She noted that in R on the application of Kent County Council v HM Coroner for the County of Kent (North West District) [2012] EWHC 2768 (Admin) the court had held that a local authority did not owe an Article 2 (right to life) operational duty to a child in the community, with whom social services had involvement, but who was not in their care and control. She considered that there was no reason why the test under Art 3 should be any different and accepted the submission made on behalf of BCC that the touchstone is “care and control or an assumption of responsibility and the capacity to control the immediate risk, for example by arresting or detaining or otherwise removing the source of the risk” otherwise the duty would be too burdensome.
• Lastly, the Deputy Judge accepted the defendants’ submissions that there was no applicable investigative duty owed under Art 3. It was clear from D v Commissioner of Police for the Metropolis [2019] AC 196 and other cases that the duty was directed towards a criminal investigation to apprehend and punish the wrongdoer rather than the protection of individuals from future harm.

Caroline has written a longer article which provides a guide to the decision. You can read the article here.

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