SZR v Blackburn with Darwen Borough Council [2024] EWHC 598 (KB)
Since CN v Poole Borough Council [2019] UKSC 25 (CN) and HXA v Surrey County Council [2023] UKSC 52 (HXA) common law claims for failure to remove circumstances have been restricted most notably to where an assumption of responsibility may arise. Claimants have, therefore, had to consider the Human Rights Acts 1998 to reframe their claims. However, last year AB v Worcestershire County Council & Anor [2023] EWCA Civ 529 (AB) demonstrated that not all cases of poor parenting and parental neglect will engage Articles 3 and 8.
A recent High Court decision of SZR v Blackburn with Darwen Borough Council [2024] EWHC 598 (KB) has confirmed that there is a route for failure to remove claims to be brought in cases involving severe, persistent neglect.
The claimant’s case was that she had suffered serious neglect as a child over a period of several years while being cared for by her mother. She contended that while the defendant’s professionals were involved with her family at various points from April 2012, effective action was only taken after the adult social care team became involved after her 18th birthday in September 2017, and the defendant’s failure to take earlier action violated its obligation to protect her under Articles 3 and 8 of the Human Rights Act 1998.
Her claim focused on the defendant’s involvement over three key periods from 2013 until 2017. During each of these periods, it was said that there were numerous occasions on which protective action by the defendant was warranted. The picture of neglect included dirty and inadequate clothing, poor diet, limited social contact, limited access to education, poor personal hygiene, infestation with nits, an extremely dirty home environment, neglect of her emotional and behavioural development and neglect of her medical needs. The claimant pleaded that she was extremely vulnerable as she had autism, attention deficit hyperactivity disorder (ADHD), and learning difficulties and was left in squalid conditions with her needs so neglected that she remained isolated at home with no socialisation. The claimant was reported to be smelly and infested with nits to the extent that they would drop from her head. She alleged that this was inhumane and degrading treatment under Article 3. Further, the fact that the defendant has been afforded by Parliament the necessary compulsory powers to intervene and protect her generated the Article 3 operational duty.
The claimant argued that for the same reasons, the defendant owed her an operational duty under Article 8 because the harm being suffered violated her family and private life.
The defendant submitted an application to strike out the claim on the grounds that there was no reasonable prospect of success on the following grounds:
Article 3
(i) The treatment she experienced was of sufficient severity to cross the high threshold required for Article 3 (the threshold issue).
(ii) The defendant was on notice that the claimant was at a real and immediate risk of experiencing such treatment at the relevant times (the risk issue).
(iii) The defendant did not take reasonable measures to safeguard the claimant from the risk of Article 3 treatment (the breach issue); and/or
(iv) But for the alleged breaches, the claimant would not have suffered the treatment said to cross the Article 3 threshold (the causation issue).
Article 8
The defendant contended that no separate claim had been pleaded in respect of a breach of Article 8 and that if the Article 3 claim failed, the Article 8 claim also failed.
The defendant sought to take the court to a significant number of social services records to provide a fuller factual context to the treatment to which the claimant was exposed. The defendant’s reasoning for this was that in AB the High Court and Court of Appeal had examined each of the incidents pleaded in the particulars of claim to consider whether individually they had constituted a breach under the Article 3 threshold.
The court did not consider this approach to be directly applicable in this case, which was advanced on a cumulative basis, unlike AB which relied around a limited and comparatively small number of incidents. The court held that rather than focus on any one date or element of the treatment, it was necessary to look at the cumulative impact of the various elements and test that against the Article 3 threshold.
Further, the evidence position was very different in this case. AB was based on composite chronologies agreed to represent the overall picture, whereas in this case the claimant had identified several pages on which reliance was placed but the defendant was seeking to rely upon its own chronology which did not summarise all the records and had not been agreed with the claimant. Unlike in AB, the claimant also served expert evidence and the defendant had expressly invited the judge to consider it. Considering this, the application was more fluid than that in AB and there were a number of significant live issues of fact, especially on the breach issue that rendered the claim unsuitable for strike out or summary judgment because in order to resolve these issues, a mini-trial would be required.
The defendant argued that there was a spectrum of neglect cases with Z v UK [2002] 34 EHRR 3 (Z) (an application to the ECHR made by the claimants in X v Bedfordshire [1995] 2 AC 633) at one end and AB at the other. They argued that the conditions alleged by the claimant were not the same as those experienced by the children in Z and it was quite clear that the claimant’s treatment fell at the end of the AB spectrum. It was argued that unless AB could be distinguished from this case, it is binding, and the Article 3 claim must be dismissed.
The court found a number of features in common between this case and Z but also noted that because of the fact-specific nature of the Article 3 threshold assessment, AB could only provide limited assistance. AB was advanced in a different way and there were very specific factual reasons why it was dismissed. These were effectively, a combination of the reported concerns being found to have been unsubstantiated, not being considered sufficiently serious or having been responded to appropriately. The defendant was, therefore, wrong to contend that the reasons in AB amounted to conclusive findings on the threshold issue which were binding on other cases.
However, the court acknowledged that AB is authority for the proposal that in the context of alleged failures to remove a child from the care of the parent “serious and prolonged ill-treatment and neglect, giving rise to physical or psychological suffering” is capable of amounting to treatment contrary to Article 3. The court found that test to be arguably met in this case.
There was a dispute between the parties as to the effect that the Article 3 obligation is to focus on a risk which exists at the time of the alleged violation and not a risk that may arise at some stage in the future. The defendant argued that its interventions periodically improved circumstances in the home such that there was no real and immediate risk at that time, and that there was no longer-term obligation to ensure that the situation did not deteriorate in the future. The claimant argued that such an approach would render the right no longer practical or effective.
The court found that this was a novel legal issue which was only touched upon in the submissions before the court. It, therefore, remained a live issue between the parties and could only be resolved on a finding of fact, and was unsuitable for summary determination. Further, the court was not taken to material which conclusively showed lengthy periods where the threshold was not met and, in fact, there was evidence of the mother’s inability to sustain improvements. It was thus arguable that the risk remained “present and continuing”.
The defendant argued that there was no real prospect of establishing a failure to take reasonable preventative measures. The court highlighted that this rested solely on a bare assertion by its legal representative that reasonable steps were taken. This was an inadequate basis for summary judgment or strike out. Further, while there was force in points made in the defence about the effect of the defendant’s intervention from time to time and of the potential harm involved in taking the claimant into care, they were not so persuasive that it could be said that the claimant’s case had no real prospect of success. In particular, the claimant relied on an apparently clear and rational expert opinion identifying numerous occasions when the defendant should have initiated care proceedings.
The court was also satisfied that this report provided sufficient evidence to conclude that there was a real prospect of succeeding on the causation issue.
The court held that there was nothing improper in the Article 8 claim having been pleaded on the same factual matrix as the Article 3 claim, but also that an Article 8 claim should not simply be treated as an alternative to an Article 3 claim simply with a lower threshold. There are cases where a person’s experience has been found to be out with Article 3 but to engage Article 8. It was, therefore, not right to say that if the Article 3 claim fails the Article 8 claim also necessarily fails.
As the judgment concerns an application for summary judgment the case still has to be tried on its facts. However, it has provided some guidance as to how courts will apply the four-stage test set out in AB in relation to the type of treatment that may be considered “serious and prolonged ill-treatment and neglect” and guidance on how evidence will be considered for each strand of the four-stage test to consider which claims may be able to proceed under Article 3 and 8 of the Human Rights Act 1998. It also assists with the framing of applications for summary judgment/strike out such as providing an agreed chronology of the events upon which the parties will rely, as was the case in AB. The parties cannot simply expect the court to consider expert reports and carry out fact-finding investigations, and if this is required any application will be unsuccessful.
We anticipate that claimants’ solicitors will reassess any failure to remove claims they have and consider if they are similar in fact to this claim and if they can be framed under the four-stage test set out in AB. When presented with these claims, defendant solicitors will need to consider the four-stage test and if there is evidence to support that the test will not be met.
For more information, please contact:
Nicola Markie - Solicitor
Email: NMarkie@keoghs.co.uk
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