Court of Appeal clarifies operation of Human Rights Act in judgment in case of former looked-after child in Birmingham and Worcestershire

AB v Worcestershire County Council & Anor [2023] EWCA Civ 529

Judges confirmed that there is no requirement for children to already be in the care of a local authority for the obligations under Article 3 of the Human Rights Act to arise.

The court considered the case of AB, a former looked after child, who claims that Birmingham and Worcestershire authorities failed to remove him from a neglectful and abusive home environment. In the High Court the authorities argued that the Human Rights Act could not be used to bring this claim as AB was not already in their care.

AB (through his litigation friend) sought to appeal the decision that his claim could not continue because the treatment he endured in the care of his mother and known to the authorities was arguably not serious enough to have breached his human rights.

Although the Court did not find that there was a breach of the Human Rights Act in AB’s case due to the particular facts, this judgment provides important clarification about the operation of the Human Rights Act in cases involving children who should be protected by authorities.

Today judges confirmed that there is no requirement for children to already be placed in the care of a local authority for the obligations under Article 3 of the Human Rights Act to arise.

The Court found that “there is no additional requirement that the child has to be under the care and control of the local authority, such that the authority assumed responsibility for the child’s safety and welfare, in order to establish that there has been a violation of the operational duty imposed on local authorities by Article 3 of the Convention.”

This appeal arose after AB brought a claim under the Human Rights Act against Birmingham County Council (BCC) and Worcestershire County Council (WCC). AB is a protected party and so cannot be named in the proceedings.

He was accommodated by WCC several times in 2013. In May 2015 he was made the subject of an interim care order and a final care order was made in January 2016.

AB says he should have been removed from his mother’s care at an earlier date as he was subject to abuse and neglect which was known to both authorities.

He pursued a claim for breach of Article 3 [freedom from torture and inhuman or degrading treatment] of the European Convention on Human Rights but the local authorities won their case to have the claim struck out.

In September last year, AB (via his litigation friend) was granted permission to appeal the decision to strike out the claim and the substantive appeal hearing was heard on 25 and 26 of April. Judgment was handed down on 17 May 2023.

Anna Moore, Partner at Leigh Day acted for AB in the appeal, along with Lizanne Gumbel KC of 1 Crown Office Row and Sam Jacobs of Doughty Street Chambers.

Anna Moore said:

“This case will have significance for many people like AB who, as children, should have been removed from abusive and neglectful environments, but the authorities responsible for their care did not step in to protect them. The Court of Appeal has now unequivocally confirmed that the Human Rights Act can be used to bring claims in these circumstances. This means that  others may seek redress when they have faced serious abuse and neglect and action was not taken to protect them. Although we are disappointed that the Court of Appeal did not agree that the treatment AB suffered passed the severity threshold, this was based on limited information put before the High Court and may be subject to further appeal.

It is helpful that the Court of Appeal has clarified the position for other potential Claimants. The position is now clear: there is no requirement for a child to have already been taken into the care of a local authority for obligations under the Human Rights Act to arise.”