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‘FAILURE TO REMOVE’ CLAIMS AND ARTICLE 3: EXE V CITY OF BRADFORD MDC [2024] EW MISC 20 (CC)

Claims involving alleged failures by children’s social services departments to remove children from neglectful and/or abusive placements have seen significant development throughout the last five years.

The decision of the Supreme Court in CN v Poole [2019] UKSC 25 and HXA and YXA [2023] UKSC 52 appeared to have narrowed the potential to bring such claims in negligence and practitioners turned to bring similar claims pursuant to Article 3 of Schedule 1 to the Human Rights Act 1998 relying on the ‘operational duty’ upon a local authority to take reasonable preventative measures to protect a member of the public from a real and immediate risk of harm of which the authority is or ought to be aware.

In AB [2022] EWCA Civ 529 the Court of Appeal struck out one of these such failure to remove claims, brought pursuant to Article 3, with the Court deciding that:

a) the Claimant had no real prospect of success in demonstrating that the treatment he suffered was sufficiently severe so as to engage Article 3,

b) that there was no real and immediate risk of such treatment, and that,

c) in any event, there had been no  failure to take reasonable preventative measures.

Giving some optimism to the otherwise seemingly limited ability to bring Article 3 claims was the Judgment of Mrs Justice Hill DBE earlier this year in the case of SZR v Blackburn and Darwen Borough Council [2024] EWHC 598 (KB), handed down in March 2024 in which the High Court dismissed the Defendant’s application for summary judgment and strike out in a claim concerning alleged failures, in breach of Article 3, to protect a child from prolonged neglect.

Building on this is the more recent Judgment of HHJ Malek in EXE v City of Bradford MDC [2024] EW Misc 20 (CC) in which, again, the Defendant’s application for summary judgment and strike out, was dismissed. Interestingly, and in contrast to

 many claims of this nature, this claim centres specifically on the physical assaults the Claimant was subject to between the age of 8 and 14 years, including but not limited to:

• The Claimant being punched in the arm and lifted by the hair by the mother’s boyfriend.

• The Claimant being slapped by the mother’s boyfriend and her brother being encouraged to also smack her.

• The Claimant being punched, dragged upstairs, pulled by her hair and kicked in the head by the mother’s boyfriend; and

• The mother’s boyfriend throwing shoes and a chair at the Claimant.

The Claimant contends that during her childhood the Defendant’s social services department was aware that she was suffering cruel, inhuman and degrading treatment which contravened her rights under Article 3 and that the Defendant should have taken reasonably available measures which could have had a real prospect of altering the outcome or mitigating the harm.

Regarding the issue of the severity of treatment required to trigger Article 3, HHJ Malek referenced the case of AB noting that sexual or physical abuse of a child is capable of involving ill-treatment falling within the scope of Article 3. He further noted that the special vulnerability of children is relevant to the assessment as to whether the Article 3 threshold is met as was mentioned in SZR.  The Defendant advanced that the incidents the Claimant endured did not involve serious physical assault and did not result in serious physical injury. It suggested that the context of these incidents was generally family argument and disagreement, parental difficulties with the teenage Claimant and (at worst) overzealous chastisement. HHJ Malek disagreed and stated in his Judgment, ‘…to categorise these particular incidents as simply overzealous chastisement is to considerably understate the case. The assault of a nine / ten year old girl by an adult male by punching, kicking in the head, pulling her hair and throwing a chair at her can fall, on any reasonable measure, to be categorised as serious physical abuse. Even accepting the evidence that these assaults did not result in serious injury it still remains the case that these were nasty assaults which are capable of properly being categorised as serious physical abuse.’

The Judge was keen to highlight that there is limited use in trying to compare the severity of incidents in earlier cases as some sort of ‘threshold yardstick’ by which the seriousness of incidents might be measured at trial.

Turning then to the issue of the Defendant’s failure to take reasonably available measures which could have altered the outcome or mitigated the harm, the Defendant argued that the Defendant did in fact take such measures by reference to:

• A Duty Social Worker’s quick response to investigate on one occasion resulting in a medical examination which concluded that most injuries complained of were substantiated.

• Police interviews.

• The mother’s boyfriend leaving home and the mother agreeing to prevent unsupervised contact between him and the Claimant.

•Social work visits.

• Other support services being involved with the family.

HHJ Malek was clear that the Defendant’s submission was based solely upon a review of the Defendant’s records carried out by the Defendant’s solicitor. He went on to say that the Claimant’s recollection of events (which took place over six years ago and whilst she was a child) was likely to be patchy, but pointed out that her evidence may well cast a very different light on the documents. He noted that there also remains the possibility that other witnesses (who can speak to and clarify the documents) can be identified.

HHJ Malek was eager to avoid a mini-trial by examining the investigations carried out and measures put in place by the Defendant; referencing the detail the Defendant’s solicitor was obliged to go into in her witness statement to illustrate her point on the issue.

HHJ Malek was unable to determine that the Claimant had no prospect of successfully arguing that a Care Order should have been made and the Claimant removed from her family earlier than April 2018. Going further than this, he noted that the Claimant also pleads that the Defendant failed to take “reasonable and available measures” as a result of which the Claimant suffered harm. Therefore, the Claimant remains able to argue at trial that the Defendant failed to take other reasonable measures, as an alternative to a Care Order. 

Of course, it must be borne in mind that assessment of the severity threshold, real and immediate risk, and reasonable preventative measures, are always going to be specific to the facts and circumstances of each case.

Yet, taking further confidence from this Judgment, Claimants should take home the following points:

a) Cases involving sexual assaults, physical assaults of the kind in this present case and neglect may all still be capable of amounting to inhuman and degrading treatment.

b) Evidence should not only be taken from the Defendant’s social care records, but from available witnesses who will no doubt add detail to the circumstances and facts of the claim.

c) A Care Order is not the only measure available to the Defendant to protect the Claimant from harm, and lesser measures should be considered and pleaded where appropriate 

Helen Horne

Enable Law