The Court of Appeal identifies test under Article 3 for failure to remove in AB v Worcestershire County Council.

Today the Court of Appeal handed down its judgment in AB v Worcestershire County Council and Birmingham City Council. The Court dismissed the Claimant’s appeal, upholding deputy High Court Judge Obi’s decision to give summary judgment to both defendants.

Following CN v Poole BC and DFX v Coventry City Council claimants have sought to bring claims for failure to remove under the Human Rights Act rather than in common law.  AB provides useful guidance in such claims.

The judgment is given by Lord Justice Lewis with whom Lord Justices Baker and Dingemans agreed. While it is obviously fact specific, the decision identifies the approach that a court should take when approaching the question of a breach of the positive obligation to prevent Art 3 mistreatment in the context of parental abuse and neglect. At paragraph 57, Lewis LJ held that the positive obligation had 4 components: (1) a real and immediate risk; (2) of the individual being subjected to ill-treatment of such severity as to fall within the scope of Article 3 of the Convention; (3) that the public authority knew or ought to have known of that risk; and (4) the public authority failed to take measures within their powers which, judged reasonably, might have been expected to avoid the risk.

Much of the discussion of these 4 components restates the existing case law. For practitioners in this area the most useful part of the judgment is the Court’s attempt to identify how those tests apply in the context of a failure to remove case. At paragraph 62, Lewis LJ explained that the positive obligation must not place an impossible or disproportionate burden on local authority social services departments which also had to have regard to parental rights under Article 8. In identifying that not every risk of parental mistreatment would reach the threshold for intervention Lewis LJ made reference to the ECtHR decisions in X v Bulgaria and DP and JC v UK, both of which set a higher threshold for intervention than that argued for by the claimants on the appeal.

Another noteworthy element of the judgment is that the Court rejected the claimant’s submission that expert social work evidence was required to determine the issue.  At paragraph 82, Lewis LJ distinguished between a claim in negligence, where such evidence was required, and a claim under the HRA.

The judgment deals solely with the Article 3 threshold. Prior to the appeal the respondents had made the concession that there was no requirement for a child to be in the care and control of the local authority before the positive obligation was engaged. At paragraph 85, Lewis LJ held that in this context, that concession was properly made.

Adam Weitzman KC and Caroline Lody represented Birmingham City Council instructed by Paul Donnelly of DWF Law LLP.

The judgment is available here.

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