The Court of Appeal has now handed down its long-awaited decision in the case of AB v Worcestershire County Council and others [2023] EWCA Civ 529. The decision provides important clarification of the Article 3 duties owed by local authorities to children in their area. However, the court did not take the opportunity to provide any guidance on the “threshold” of seriousness required for a breach of Art3.
The claim was brought against two local authorities. AB lived in the defendants’ areas, with his mother until he was accommodated by the local authority, aged 11 and taken into care aged 12. Whilst in the care of his mother he was subjected to a number of incidents of abuse and neglect, which were recorded by the local authorities.
At first instance, the judge accepted the second defendant’s submission that a local authority owed no duty to children in its area under Art3, who were not under its “care and control.” This finding had been a surprise to most practitioners, flying, as it did, in the face of longstanding ECtHR authority (E and others v The United Kingdom (33218/96), DP & JC v The United kingdom (38719/97). Very sensibly, the defendants conceded this issue on appeal and that concession was endorsed by the court as having been correctly made [85]. Although not surprising, this development brings to an end 16 months of unwelcome uncertainty and will allow many cases to be resumed, which had been stayed pending the outcome of this appeal.
The judgment is the first occasion on which a domestic appeal court has considered the application of Article 3 to a local authority’s duty to protect a child from neglect and abuse. It provides a clear and concise statement of the test [57-63], which is likely to be useful to practitioners and trial judges.
The court also noted [82] that: “This is not a negligence claim where a court would be considering whether a …social worker had acted in accordance with a body of expert opinion…the question was whether “judged reasonably” [the defendants] had failed to take appropriate steps to avoid a real and immediate risk of Article 3 ill-treatment.. was a question for the court, not for expert evidence.” This principle might prove useful for Claimants, particularly in historic cases, where social work practice at the time might now be thought to be woefully inadequate but might have satisfied the Bolam test.
The appeal failed on its facts. The court upheld the finding that, whilst the Claimant was “vulnerable and at risk of being subjected to poor and inconsistent parenting and neglect”, he was not at a “real and immediate risk” of treatment of the kind prohibited by Article 3. In other words: his mis-treatment had not met the Art3 “threshold”.
The appeal was determined on the basis that the Claimant had suffered only seven relevant incidents over a period of nine years. The particular circumstances of those incidents should be ascertained from the judgment, but many practitioners might conclude that the frequency and severity of the incidents is towards the lower end of the range of cases with which they are involved. As such, the failure of this appeal on its facts is likely to have little, if any, effect on most claims.
In summary, the judgment:
- Confirms that a local authority owes an Art3 operational duty to children within its area, irrespective of the extent or absence of “care and control” and restores the law to its position prior to the decision at first instance;
- Thereby removes the “logjam” caused by cases that had been stayed pending the outcome of that decision;
- Sets out, and applies, the (well established) test for Art3 in the context of a “failure to remove” case against a local authority;
- Notes that the assessment of the reasonableness of the defendant’s actions is a matter for the court, not expert opinion, and that, in effect, the defendant cannot avail itself of a Bolam defence;
- Provides an illustration of a case in which the frequency and severity of incidents falls below the Art 3 “threshold”;
- Does not take the opportunity to provide any guidance on the frequency and severity of abuse/neglect that would meet the “threshold.” This will be a matter of regret, but perhaps not surprise, for practitioners. The level of the “threshold” remains an open question and is one that will probably only be answered as a body of decided cases emerges over time.
