‘What next for local authority liability in ‘failure to remove’ claims?’

What next for local authority liability in ‘failure to remove’ claims?

The Supreme Court’s decisions in Poole v GN and CN [2019] UKSC 25 and HXA Surrey County Council [2023] UKSC 52 limited the circumstances in which local authorities will owe a duty of care to children who face abuse or neglect while in their parents’ care.

But claimants who allege that they suffered from serious abuse or neglect while in the care of a parent may be able to bring claims against the relevant local authority on the basis that social service’s failure to remove them from the parental home violated their fundamental human rights.

In AB v Worcestershire County Council, the Court of Appeal set out the approach that courts should take when considering whether a local authority has breached its obligations under Article 3 of the ECHR in failure to remove cases.

In the recent case of SZR v Blackburn with Darwen Borough Council [2024] EWHC 598 (QB), the High Court applied the test from AB to the Claimant’s Article 3 claim and also considered whether it was arguable that a failure to remove claim could succeed under Article 8.

Mrs. Justice Hill DBE found that on the basis of the pleaded case and the evidence disclosed, the claims under each of Article 3 and Article 8 – that the local authority had violated SZR’s human rights to freedom from torture, inhuman or degrading treatment and to respect for her private and family – were reasonably arguable. Hill J dismissed the Defendant’s applications for summary judgment and strike out.

What does this mean for the future of local authority liability in ‘failure to remove’ claims?

First, in relation to Article 3 claims, the judgment charts a path for Claimants to properly distinguish their claims from those that don’t meet the requirements set out in AB. The Claimant’s case was that the local authority owed her a positive obligation to take operational measures to protect her from the risk of serious neglect, which was so severe that it could reasonably be argued that it violated Article 3. The judgment dealt carefully with the four ‘elements’ which AB set out – all of which have to be reasonably arguable for an Article 3 claim to get past an application for strike out or summary judgment. Crucially, this includes obtaining enough evidence to show that all the considerations set out in AB are reasonably arguable.

Second, the judgment makes a crucial distinction between cases where a Defendant is seeking summary judgment and strike out on the basis that facts relied on in the Claimant’s pleaded case are agreed, and cases (such as the case of SZR), “the factual basis for [the applications was] much more fluid than the position in AB; and there were a significant number of serious live issues of fact […] [which] rendered the claims inherently unsuitable for strike-out or summary judgment” [59]. AB was distinguished on the basis that it revolved around a “finite, and relatively small number of incidents” and proceeded on the basis of agreed facts [54]-[56]. Simply put, a Defendant will struggle to argue that the facts pleaded are not agreed while also seeking to show that the claim is appropriate for summary judgment.

Third, in relation to the question of whether the neglect that SZR faced was so severe that it could fall within the scope of Article 3, the way that the circumstances of the alleged neglect are pleaded matters. This was referred to as the “threshold issue” in SZR. The Claimant’s case was pleaded on a “cumulative” basis: she argued that a significant number of aspects of the way she was treated, which continued to exist to varying degrees over a four-year period cumulatively amounted to treatment which would fall within the scope of Article 3. Of course, the specific facts in SZR’s were highly relevant, but the way it was pleaded assisted the Court in concluding that there was at least an arguable case that the Defendant’s failure to remove the Claimant amounted to degrading treatment which (based on expert evidence from a consultant psychiatrist) arguably lead to long-term suffering for the Claimant [100]-[103].

Fourth, there may still be scope for the law to develop in this area in relation to the requirement that the risk of treatment which violates Article 3 being “real and immediate”. The Defendant argued that where a social services team had taken reasonable steps to bring about improvements which were effective, they could not have been on notice of any real and immediate risk, even if the situation deteriorated again later [106]. The Claimant argued this was an incorrect formulation of the test of real and immediate risk. Hill J found that the parties’ differing approaches raised a “novel legal issue” which can only be resolved on the basis of a finding of fact.
Finally, the judgment left the door open for failure to remove claims to be brought under Article 8 as well as Article 3 and accepted that they can be properly pleaded on the same basis [136]. Hill J concluded that there are cases of prolonged neglect where a person’s experiences might not amount to a violation of Article 3 but may nevertheless “impair a person’s physical and psychological integrity” and therefore violate their Article 8 rights [140] – [141].

While every ‘failure to remove’ claim will be highly fact specific, SZR illustrates there are important steps that Claimants can take to show that they have a reasonably arguable case, keeping in mind the criteria set out in AB v Worcestershire.

Written by Nour Haidar.

Share: