A 19-year-old boy who brought claims against Worcestershire County Council and Birmingham City Council for failing to protect him from his mother’s ongoing abuse has been told by a judge that the maltreatment and neglect he suffered did not meet the legal threshold for “inhuman or degrading treatment.”

He argued that the councils should have placed him in care much sooner than they did, and that as a result of their failure to remove him from his home he suffered emotional and physical harm.

The young man was considered lacking in capacity to bring his own claim so he was represented by the Official Solicitor.

The judge overseeing the hearing was Margaret Obi, who sat as a deputy high court judge for the hearing in the High Court.

The case confirms that there is no legal duty owed by local authorities to make a care order in failure to remove claims.

The case was subsequently thrown out, but the young man was given the opportunity to appeal. We hope he did.

A very good summary of the background produced by LexisNexis is added below:

“AB lived in Birmingham between July 2005 and November 2011 when he moved to Worcestershire until January 2016. He alleged that he was abused and neglected while in the care of his mother. He was the subject of an interim care order in May 2015, followed by a final care order in January 2016. AB asserted that the second defendant, Birmingham City Council, should have applied for a care order around or shortly before July 2008 and that the first defendant, Worcestershire County Council, should have similarly applied from about April 2012, and that by failing to take this step by these dates the defendants had breached his rights under Articles 3 [inhuman and degrading treatment] and 6 of the European Convention on Human Rights (ECHR) [right to a fair trial], the Article 8 claim having been withdrawn.

In support of his claim against Birmingham City Council, AB relied on seven reports in the social services’ records throughout in 2005–2009. Those reports consisted of him living in a dirty home, not being fed properly, being dirty and smelly, having bleached hair which had left him with chemical burns, some bruising to his legs caused by mother’s partner, being locked in a room, struck by a third party with mother’s consent, dressed up in woman’s clothes for amusement of others, pushed to the ground by his mother and slapped by a babysitter.

In addition, AB relied on a further four entries from Worcestershire County Council’s social services’ records dated 2013–June 2014, which identified AB having been seen walking unaccompanied at night, issues as to neglect including squalid home conditions, along with emotional and physical abusive including his mother having pushed him, sat on him, bumped his head, scratched him and dragged him upstairs with her hands around his throat.”

For the purposes of this post we are just going to focus on Article 3: “no one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

There is a summary of how Article 3 should be interpreted added to the published judgment. This is what it says:

“Article 3 provides that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” It imposes positive duties on the State to take adequate steps to prevent individuals from suffering treatment at the hands of private individuals.

This involves two positive duties: (i) a duty to take reasonable steps to protect individuals from ill-treatment falling within Article 3: the “operational duty” and (ii) a duty to investigate an arguable breach of Article 3 in order to increase the likelihood of future compliance: the “investigative duty”.
The operational duty

To fall within the scope of Article 3 the treatment must attain a minimum level of severity. This is an objective test based on the circumstances of the case.

Although it is difficult to define the conditions and circumstances which will meet the Article 3 threshold, it is clear that inhuman or degrading treatment is set at a high level. In Ireland v UK (1979-80) 2 EHRR 167 the European Court of Human Rights (ECtHR) stated at §162:

“The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects, and in some cases, the sex, age and state of health of the victim.”

Children are especially vulnerable. This is a key factor in assessing whether the ill-treatment to which they have been subjected reaches the minimum level of seriousness to engage Article 3 protections.

Suffering must also attain a particular level before treatment or punishment can be classified as “inhuman.” As to degrading treatment, the actions described in Ireland v UK (wall-standing, hooding, subjection to noise, sleep deprivation and deprivation of food and drink) were said (at §167) to be “degrading”, because: “they were such as to arouse in their victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance.”

“Actual bodily injury of sufficient severity or intense suffering is also required.”

The judgment goes on to list several cases where physical injuries were a feature with some injuries accepted as reaching the threshold while others did not. To our mind there is a chaotic and unfocused randomness to these judgments, which highlights that many of the judges in these cases have no understanding of maltreatment or neglect.

The apparent cherry-picking of injuries and levels of distress, based on nothing more than non-evidence based opinion and conjecture by professionals who have little to no training in child maltreatment is deeply concerning.

In her judgment Obi concludes:

“It would be difficult not to empathise with AB. There were a catalogue of reports in the social service records which raised a cause for concern and strongly indicate that the parenting skills of his mother were inadequate. He may well feel that he did not have a good start in life, and he is now a vulnerable adult. However, my task has been to determine whether the claims as pleaded are viable. In the circumstances, and for the reasons set out above there is insufficient evidence that the various incidents relied upon by AB reached the high threshold required to sustain an Article 3 claim and are bound to fail.”

With all the evidence available today about how child maltreatment and neglect affects children, we think Obi should have pushed some legal boundaries here. There was more than enough evidence of this young man’s maltreatment as a child, and during the life of the case he laid out how the abuse had impacted him.

A very helpful breakdown of the case is provided by LexisNexis for those with memberships.

The judgment itself can be read for free on the brilliant BAILII.

Image by John Hain