On 17 May 2023, the Court of Appeal dismissed the claimant's appeal in AB, upholding the granting of summary judgment for the Defendant by Deputy High Court Judge, Ms Margaret Obi. This was a judgment where for the first time the Court of Appeal considered "a failure to remove claim" alleging infringement of Article 3 ECHR and set the test for how such cases should be addressed. Subsequently the Claimant filed an application to the Supreme Court for permission to appeal.
On 21 November 2023, the Supreme Court (Lord Reed, Lord Leggatt and Lord Richards) dismissed the claimant's application for permission to appeal because it did not raise an arguable point of law.
In this short update, Paul Donnelly and Bushra Ali who acted for Birmingham City Council in the case, consider the significance and implications of the Supreme Court's decision for practitioners, local authorities and insurers across the market who are faced with addressing failure to remove claims brought pursuant to the Human Rights Act.
Firstly, the decision confirms that the clear guidance provided by the Court of Appeal as to the considerations to take into account when assessing whether allegations cross the Article 3 threshold is binding and remains good law to follow. The guidance comes in the form of the 4-stage test, which is broken down as being:
- a real and immediate risk
- of the individual being subjected to ill-treatment of such severity as to fall within the scope of Article 3 of the Convention
- that the public authority knew or ought to have known of that risk and (4) did the public authority fail to take measures within their powers which, judged reasonably, might have been expected to avoid the risk.
For a more in-depth review of this test please see our earlier article following the Court of Appeal decision.
This guidance provided much needed clarity as to the appropriate approach to adopt to similar cases and indicates that in order for the Article 3 threshold to be met and crossed, there needs to be more than just some neglectful treatment and/or lower level physical or emotional abuse. Instead, a clear pattern of persistent and serious bad neglect, ill-treatment or mistreatment is required which causes harm and has failed to improve through relevant authorities intervention. Ultimately, it is a very fact dependant question but the Court of Appeal and first instance judgements in AB provide a good analysis of the type of issues that the court will take account of.
Secondly, the decision has set a bar for Article 3 claims and demonstrated the Courts willingness to summarily dispose of weak claims. It provides clear authority to reinforce the view that in circumstances where the evidence within the social work records indicates that the case has no real prospect of success it is correct for the lower courts to "grasp the nettle" and determine the issues at an early stage in the proceedings. It may often be that factual evidence is going to offer very little if anything over and above the contemporaneous documentary evidence.
Further, the decision has recognised that there is generally no need for liability expert evidence(i.e. from a social work expert) to be obtained in failure to remove claims alleging infringement of ECHR protected human rights. Whether or not a Care Order would have been made in the circumstances alleged is ultimately a judicial decision, which the court often does not require expert social work evidence to determine.
The Supreme Court's decision to refuse the Claimant's application for permission to appeal, on the basis that the application did not raise an arguable point of law, provides comfort that the test identified and applied by the Court of Appeal is correct. There is now, therefore, a clear framework to be applied in such cases under the Human Rights Act. Of course, the Supreme Court has recently considered the conjoined appeal in YXA v Wolverhampton City Council and HXA v Surrey County Council (in which DWF Partner Mark Whittaker acts for Surrey County Council) and its judgment to address the correct position in relation to when a common law duty is/is not owed is awaited.
For more information, please contact Paul Donnelly, Mark Whittaker or Bushra Ali.
