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Published 16 February 2022

50 predictions: Construction & Engineering

The recent High Court decision has been welcomed by local authorities and their legal representatives in determining if use of the Human Rights Act in claims involving allegations of failing to remove children from neglectful and abusive homes is the right legal framework. However, will this see an end to these claims going forward?The FactsThe Claimant, AB, alleged that he had been abused and neglected by his mother and that social services, through BCC, had become involved in 2005, when he was 3. He said that he continued to be abused until an Interim Care Order was made in May 2015. BCC was the responsible local authority from 2005 to 2011 and WCC from 2011 to 2016 when the final Care Order was made. AB had been accommodated by WCC on several occasions in 2013 but was never the subject of any formal orders until the making of the ICO. The claim was pursued on the basis that he should have been removed by BCC in around July 2008 and by WCC from about April 2012. It was alleged that the failure to do so was a breach of Article 3 (freedom from inhuman and degrading treatment), Article 6 (right to a fair trial) and Article 8 (right to family life) by reason of not removing him and placing him a happy and secure adoptive or foster family.The allegation of a breach of common law duty of care set out in the original Particulars of Claim was discontinued. It  appears that there is as an acceptance of the challenge by the Defendants that the decision in CN and GN v Poole BC and subsequent cases (primarily DFX and Others v Coventry City Council) that the councils were merely exercising their statutory function of monitoring and support and nothing more. The Article 8 claim was also abandoned on the basis that it adds nothing to the Article 3 claim.The claims came before the High Court on applications by the Defendants to strike out the Article 6 claims on the basis of there being no reasonable cause of action or, alternatively, for summary judgment of the claims on the basis that the claims had no reasonable prospect of success.The JudgmentThe Court first dealt with Article 6 and noted that the assertion that appeared to have been made on behalf of AB was that he had a civil right to be taken into care so that Article 6 applied. This was not correct. Further it was noted that there was no arguable basis for a Care Order in any event.The Court then moved on to consider Article 3.Operational DutyThe judge noted that Article 3 imposes an operational duty on State organisations to take reasonable steps to protect individuals from ill-treatment and an investigative duty to look into  an alleged breach. It was further noted that the threshold for inhuman and degrading treatment was objective and difficult to define but is clearly set at a high level. Neglect and inadequate home standards may meet that threshold but that would be dependent on the severity. Deliberate physical harm is more likely to meet that test, and sexual harm always will.The judge observed that the final Particulars of Claim and response to Part 18 questions did not provide explanation or clarification of what was said to amount to a real and immediate risk of Article 3 treatment of AB so as to trigger the operational duty to protect him from harm. The claim suggested a possibility that AB would have been  subjected to ill-treatment. This was found to be an insufficient basis for an Article 3 claim. The judgment of the Court was that none of the reported incidents “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.”In addition, the Court accepted the Defendant’s submission that there should be an element of “care and control” before the operational duty was owed.Investigative dutyNor was it considered that there had been a real and immediate risk or that the investigative duty arose. This was because, in the context of the Human Rights Act, the investigative duty relates more to criminal investigation rather than an investigation to consider potential future harm.Decision of the Court.The claims were therefore struck out on the basis of that AB had shown no real prospect of proving a breach.DiscussionFollowing CN v Poole and more recent decisions, it is now settled law that a local authority will not generally owe a duty of care in negligence in respect of “failure to remove” claims. In these circumstances, the focus has recently necessarily shifted to the Human Rights Act 1998 as an alternative cause of action.DACB has previously queried whether the Courts will allow the HRA to develop in a manner at odds with the law of negligence, and the AB decision confirms that the HRA is not going to step in as a panacea to fill a perceived gap here.The decision serves as a reminder that HRA claims must be fully pleaded, and clearly define the facts which comprise the alleged breaches of the Act.It also provides a useful illustration of how the Courts will approach the Article 3 threshold, which is unlikely to be met in many cases involving neglect. It does mean that general neglect type claims, will not fall within the ambit of the HRA, but claims involving sexual abuse, and higher level physical abuse, will. This case helps show where the dividing line between an actionable case and one that will be struck out, lies.The Court’s finding that “care and control” is required for the operational duty to be owed under Article 3 is of particular note, although we do expect that this will be subject to further challenge in the Courts over the coming months.Generally, whilst AB is a useful and well considered decision, we do not expect this to be the last word on the issue of HRA liability in a failure to remove context. It is also worth noting that the decision did not consider Article 8, which is also regularly pleaded in these claims.

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