Upon hearing all the evidence, Deputy High Court Judge Obi concluded that none of the reports received by the local authorities “taken at their highest either individually or cumulatively, involved actual bodily injury, intense physical suffering, or humiliation of the severity required to meet the Article 3 threshold”. There was therefore no realistic prospect of the claimant establishing a breach of Article 3 and summary judgement was granted to the defendants.
The claimant appealed to the Court of Appeal, but their appeal was dismissed, the court agreeing that the reports received by the local authorities had not provided a basis for concluding that there would be a risk of real and immediate treatment (or punishment) which would fall within the scope of Article 3 of the Convention. The leading judgment was given by Lord Justice Lewis who at paragraph 57 defined the state’s operational duty under Article 3 as comprising four components as follows:
(1) The existence of 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 about; and
(4) Where the public authority failed to take measures within its powers which, judged reasonably, might have been expected to avoid the risk.
On 21 November 2023, the Supreme Court refused the claimant's application to appeal the Court of Appeal decision and further upheld Deputy High Court Judge Obi's decision in the High Court.
So what can we learn when seeking to determine whether Article 3 has been breached in a social care context?
Article 3 comprises three obligations on the state:
- Article 3 imposes a negative obligation on states to refrain from intentionally inflicting serious harm on persons within their jurisdiction.
- Article 3 imposes a positive obligation on the state to put in place a legislative and regulatory framework of protection and to take operational measures (in defined circumstances) to protect specific individuals against a risk of treatment contrary to Article 3.
- Article 3 imposes a procedural obligation on the state to carry out an effective investigation into arguable claims of infliction of such treatment.
Article 3 does not require the state to prevent all instances of ill-treatment. To do so would be unworkable, imposing a disproportionate and unrealistic burden on state authorities.
Instead, Article 3 is designed to protect state citizens from ill treatment of a minimum level of severity. In assessing whether threshold is met, issues such as the duration, intention and motivation behind the ill treatment, its physical or mental effects, the sex, age and state of health of the victim, and the context and environment will be salient.
Torture, premeditated and lengthy punishment, or inhuman treatment causing actual bodily injury or intense physical and mental suffering, will almost always meet the threshold for Article 3 and perhaps also for Article 8 insofar as it seeks to protect physical and mortal integrity.
Understanding context perhaps helps explain why in the case of AB, the threshold was not felt to be met, despite AB's home conditions being very difficult.
Caselaw is clear that the operational duty to protect must be interpreted in such a way as not to impose an excessive burden on state authorities, bearing in mind, in particular, the unpredictability of human conduct and operational choices which must be made by any state in terms of priorities and resourcing.
For a positive obligation to arise and for a breach to be established, a claimant must first reach the required threshold, then establish that the state authority knew or ought to have known of the real and immediate risk of ill-treatment to them at the material time, and then establish that the state failed to take measures within the scope of their powers, which, judged reasonably, might have been expected to avoid that risk developing (a matter for the court to determine, not for an expert).
What is sometimes also forgotten is that the state must equally have regard to the countervailing interest of preserving family life under Article 8.
These are difficult cases to manage and judge. This case however, has now reached a conclusion, and the test to be applied in neglect cases is at least a little clearer.