https://www.dekachambers.com/wp-content/uploads/2023/05/AB-Judgment-CA-final-v2.pdf
The appellant brought a claim for damages against two local authorities, Worcestershire (first respondent) and Birmingham (second respondent), alleging that failure to remove him from his mother’s care, whilst a child, breached his obligations under ECHR art.3: Prohibition of torture; No one shall be subjected to torture or to inhuman or degrading treatment or punishment. A claim for negligence had been included when the proceedings were first underway, but was not continued now.
In 2020, the appellant claimed that the respondents should have removed him from his mother’s care as he had suffered ill-treatment and neglect which was of such severity as to evidence a real and immediate risk of further ill-treatment under art.3 if left in her care.
This was an appeal against summary judgement for the defendants, in which the judge had stated that there was no evidence that the respondent local authorities had known, or should have known, of the existence of any real or immediate risk of treatment contrary to art.3.
The appellant was born in 2002 and lived in Birmingham from July 2005 until late 2011 when his mother, and he, a short time later, moved to Worcestershire. Whilst living in Birmingham the social services department had periodic contact with the appellant and his family. The appellant claimed that Birmingham social services had received reports that he had suffered chemical burns from having his hair bleached; had bruising to his legs caused by his mother’s partner; had been slapped by a babysitter; was often hungry; and was dressed in women’s clothes for the amusement of his mother’s friends.
Whilst living in Worcestershire the social services department had periodic contact with the appellant and his family between 2011 and 2016 and a care order was made in January 2016. The appellant highlighted four reports received by Worcestershire social services including allegations that he had been seen walking unaccompanied at night with his two-year-old brother, and physical assault by his mother in July 2013 where his mother had pushed him, sat on him, bumped his head, and scratched him with her fingernails.
What was considered
Under Human Rights law, in order to be obliged to act and take operational measures to protect the appellant against the risk of being subject to ill treatment contrary to art.3, it first had to be established that the respondents knew, or ought to have known, of the existence of a real and immediate risk of ill-treatment of such severity as to fall within art.3.
In considering this, the judge applied Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2, citing that the risk of art.3 ill-treatment had to be present and continuing, with the obligation to focus on risks present at the time, and not potential future risks. The judge further stated that the Court had to be wary of assessing events with the benefit of hindsight and assess the events as they unfolded at the time, applying Van Colle v Chief Constable of Hertfordshire [2009] 1 A.C. 225, whilst being mindful of not applying any impossible or disproportionate burden on the local authorities, given the countervailing need to preserve family life, and given the operational choices made by the authorities in terms of priorities and resources at the time of the events.
The judge considered that other ECHR rights were of relevance in this case, including art.8, Right to respect for private and family life. [Everyone has the right to respect for his private and family life, his home and his correspondence, and specifically in this case, there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.]
In considering this, the judge applied the test set out in Z v United Kingdom (29392/95) [2001] 2 F.L.R. 612, and Osman v United Kingdom (23452/94) [1999] 1 F.L.R. 193 stating that not every risk of ill-treatment could entail an obligation to take measures to prevent that risk from materialising.
The judge reviewed the reports raised to Birmingham social services and concluded:
- Social workers investigated reports regarding chemical burns and that the appellant was often hungry and found these not to be accurate.
- The incidents were spread over four years with significant gaps in between.
- The report of his mother dressing him in women’s clothes demonstrated conduct that was unkind, insensitive, and an example of poor parenting, but it did not meet the required threshold under art.3.
The judge reviewed the reports raised to Worcestershire social services and concluded:
- Following the incident where the appellant and his brother were found wandering the streets, further reports concluded that the children were settled at home and in school and that care provided by the mother was adequate.
- Worcestershire social services had applied other means of addressing highlighted shortcomings in care rather than applying for a care order under the Children Act 1989 Sch.2 Pt I para.7 which states that local authorities must take reasonable steps to reduce the need to bring proceedings for care and supervision, with the aim that, so far as possible, children remain with the family.
The judge ultimately held that none of the incidents of mistreatment reported by the appellant amounted to actual bodily injury, physical or mental suffering, or humiliation of the severity required to amount to treatment contrary to art.3. She further found that whilst there was an unstable family situation, there was no evidence to suggest that this would have led to the respondents’ social services departments applying for a care order to remove the child from his mother’s care.
The Court rejected the claimant’s submission that expert social work evidence was required to determine the issue. Lewis LJ distinguished between a claim in negligence, where such evidence was required, and a claim under the HRA – and said that in the latter case it was a matter for the court, judged reasonably.
A decision on a similar issue has gone the other way, in HXA v Surrey County Council; YXA v Wolverhampton County Council [2022] which allowed the claimants’ appeals. With HXA already on its way to the Supreme Court, if leave were to be sought and granted in this case too, then we may obtain some broader guidance on how the Courts should treat both negligence and HRA claims. Barristers also expect that this case will have implications beyond the social care world, and extend to claims in other sectors involving lower level breaches of the HRA.
In terms of severity, the first instance Court cited these cases: in V.K v Russia (2018) 66 EHRR 7 a 4-year old boy was emotionally and physically abused by his nursery school teachers for a number of weeks. Eyedrops were forcibly administered without the consent of his parents and without medical necessity; he was locked in the dark and told he would be eaten by rats; he was made to stand in the lobby in his underwear and with his arms up for prolonged periods of time; his mouth and hands were taped with Sellotape; and he was told that if he complained to his parents he would be subjected to further punishment. As a result, the child sustained serious damage to his health in the form of a post-traumatic neurological disorder. The ECtHR concluded that the cumulative effect of those acts of abuse rendered the treatment sufficiently serious as to be considered inhuman and degrading treatment.
“Treatment has been held by the Court to be “inhuman” because, inter alia, it had been premeditated, had been applied for hours at a stretch and had caused either actual bodily injury or intense physical and mental suffering, and also “degrading” because it had been such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them. In order for a punishment or treatment associated with it to be “inhuman” or “degrading,” the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment.”
Actual bodily injury of sufficient severity or intense suffering is also required. In A v United Kingdom (1999) 27 EHRR 611 a 9-year-old boy was beaten with a cane by his step-father with considerable force on more than one occasion, causing bruising and suffering. On examination, by a consultant paediatrician, he was found to have the following marks on his body:
“(1) a fresh red linear bruise on the back of the right thigh, consistent with a blow from the garden cane, probably within the preceding twenty-four hours; (2) a double linear bruise on the back of the left calf, consistent with two separate blows given some time before the first injury; (3) two lines on the back of the left thigh, probably caused by two blows inflicted one or two days previously; (4) three linear bruises on the right bottom, consistent with three blows, possibly given at different times and up to one week old; (5) a fading linear bruise, probably several days old.”
The ECtHR held in A that the step-father’s conduct met the requisite threshold of inhuman treatment.
CASCAIDr Comment:
There has been a number of civil damages claims against children’s social services which have failed to hold that local authorities could even owe a common law duty of care in potential cases of negligence. These include negligence claims for failure to remove children from family or other placements for removing children without justification.
CN and GN v Poole Borough Council [2019] UKSC 25 was therefore a seminal decision by the Supreme Court which held that a local authority could owe such a duty in the exercise of its social welfare functions, but that this would be fact specific. It was suggested that this may include a duty of care towards children in the exercise of a local authority’s social services function and statutory interventions.
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.
There is however, at the time of writing, no such duty able to be spelt out of adults’ social work decision-making. But there is no decision holding that a council could not be in breach of human rights for failure to make an intervention to rescue someone from a situation that was objectively intolerable.
There are four steps in proving negligence:
- That there is a duty in the circumstances to take care.
- That the behaviour or inaction of the defendant in the circumstances did not meet the standard of care which a reasonable person would be under in the circumstances (breach of duty).
- That the claimant has suffered injury or loss which a reasonable person in the circumstances could have been expected to foresee (damage).
- That the damage was caused by the breach of duty (causation).
Due to CASCAIDr’s remit, we have looked at the implications of this case through the lens of adult social care law and human rights. The crux of the implications of this case, and others like it, for adult social care is whether duties in human rights law, sounding in damages, for Care Act breaches, can ever arise, with regard to the meeting of needs….even in situations where negligence duties do not arise.
Section 18 of the Care Act 2014 places a statutory duty upon local authorities to meet needs for care and support, and Section 42 states that a local authority must make (or cause to be made) whatever enquiries it thinks necessary to enable it to decide whether any action should be taken in the adult’s case where it has reasonable cause to suspect that an adult in its area is experiencing, or is at risk of experiencing, abuse or neglect.
These duties are central to the work of adults’ social services councils; they have no choice in the matter and previous case law has tended to baulk at the idea of making all councils liable in negligence at common law, simply because they discharge these functions poorly. The factor of a person’s autonomy and right to take risk, so far as they may have capacity to do so, and the inability of the State to stop a person from exercising that freedom, other than through decision making about services, is an obvious difference as between adults and children’s services geared towards protection. Social care values based on human rights themselves include risk enablement and positive risk-taking as desired approaches to respecting the individual’s rights, and promoting independence is supported by the third principle of the Mental Capacity Act 2005: adult individuals have the right to make ‘unwise’ decisions.
The courts have long been concerned that liability in negligence could complicate decision-making and increase incidences of defensive decision-making and risk-averse practices, which are in direct contravention of social care values. Working with people is an art and not a science, and many complex factors must be taken into account when completing assessments and making judgements on the best course of action in the context of Care Act decision-making – which a capacitated person can always reject anyway. We think that this case about breach of human rights – which does not say that one can never arise on facts of this nature, but that it didn’t, here, – is a good way of dealing with that concern.