Recent bids to strike out failure to remove claims

Ella Davis analyses the outcome of recent attempts to strike out 'failure to remove' claims.

Just a few months after judgment in SZR v Blackburn with Darwen Borough Council [2024] EWHC 598 (KB) was handed down, EXE v City of Bradford Metropolitan District Council [2024] EW Misc 20 (CC) is another example of a failed application for strike out/summary judgment in an Article 3 failure to remove claim.

The Claimant had pleaded a series of incidents of physical abuse by her mother’s boyfriend which she relied on individually or cumulatively as ill treatment engaging Article 3.

The relevant legal tests

The judge, HHJ Malek, set out the familiar dicta in Easyair Limited (trading as Openair) v Opal Telecom Limited [2009] EWHC 339 (CH) before further directing himself that, following AB v Worcestershire CC & Anor [2023] EWCA Civ 529, a Claimant in an Article 3 failure to remove claim must show:

“…(1) a real and immediate risk (2) of the individual being subjected to ill-treatment of such severity as to fall within the scope of Article 3 of the Convention (3) that the public authority knew or ought to have known of that risk and (4) the public authority failed to take measures within their powers which, judged reasonably, might have been expected to avoid the risk”.

The grounds

The Defendant argued that the ill-treatment alleged to have been suffered did not meet the minimum level of severity so as to fall within the scope of Article 3 (“ the threshold issue”) and that the Claimant would not be able to show that the Defendant failed to take measures within its power which, judged reasonably, might have been expected to avoid the risk of the incidents occurring (“the breach issue”).

The threshold issue

HHJ Malek directed himself that the trial judge’s assessment would be relative and depend upon all the circumstances of the case – principally the duration of the treatment or punishment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim. Per AB sexual or physical abuse of a child is capable of falling within the scope of Article 3, and per SZR, the special vulnerability of children is relevant to the assessment as to whether the Article 3 threshold is met.

The Defendant submitted that while the Particulars of Claim identified what appeared to be 11 incidents, only four were capable of being causally significant. Of these four, it was submitted that none involve sexual assault or serious physical assault, and none resulted in serious physical injury. The incidents occurred at a rate of about one a year and it was said that they were not of a different order of severity to the incidents in AB (unlike the much more serious abuse alleged in SZR and Z v UK). Finally, it was argued that the incidents took place in the context of general family argument and parental difficulties with the teenage claimant. The Defendant characterised them as amounting to at worst “overzealous chastisement”.

The judge noted the limited utility in comparing the severity of incidents in other cases and using cases like AB as a “threshold yardstick”. Further, appeal cases only tell us that the judge below did not err, they are not a threshold assessment by the appeal court.

Looking at the four incidents identified by the Defendant, these involved allegations that the abuser, an adult male, had punched the Claimant, pulled her hair, kicked her in the head and thrown a chair at her when she was nine or ten years old. To describe them as overzealous chastisement was to considerably understate the case. They amounted to serious physical abuse, even if they did not cause serious injury. The Claimant accordingly was held to have every prospect of succeeding on the threshold issue.

The breach issue

The judge reminded himself that the positive obligation under Article 3 must not be interpreted in a way that imposes an “impossible or disproportionate burden on the authorities, bearing in mind the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources…” (para 62 AB). Further, that there was no need for expert evidence in relation to the conduct of the social workers and that it was for the court to judge reasonably whether there had been a breach of the Article 3 obligation. Finally, he reminded himself of the aim of the Children Act 1989 to ensure so far as possible that children can remain with their family (see para 78 of AB).

The Defendant relied on witness evidence from its solicitor as to her review of the Defendant’s records and the action taken in response to reports from the Claimant. On that evidence it was submitted that in respect of one of the allegations the Defendant had carried out a model investigation. The judge noted that the problem with that submission was that the Claimant’s evidence may well cast a very different light on those documents.

In respect of the other three allegations, the Defendant submitted that it took such measures as could reasonably be expected to avoid the risk. However, the judge noted that examining the actions taken in the sort of detail required, and the sort of detail that the solicitor’s statement went into, began to feel like a mini-trial.

The judge further rejected any argument that summary judgment should be entered on the basis that there was no prospect of successfully arguing that a care order would have been made earlier than April 2018 (when the Claimant was accommodated by the Defendant under section 20). It was, on the pleading, open to the Claimant to argue at trial that the Defendant failed to take alternative reasonable measures.

Finally, the Defendant argued that a distinction should be made between cases advanced on a cumulative basis only, and those advanced on an individual and cumulative basis.  In the former, which includes cases of long-term persistent neglect, the evidential basis is more fluid and there are likely to be a number of issues of fact rendering such cases inherently unsuitable for summary judgment. This had been one of the matters which Hill J had relied upon as distinguishing SZR from AB in dismissing the Defendant’s application in that case (see paras 51 and 54 of SZR).

The judge did not find such categorisation helpful. In any summary judgment application, including failure to remove cases identifying individual, cumulative or both types of incidents, if resolving an issue requires a mini-trial, that issue is unlikely to be suitable for summary judgment.

Conclusion

The result in AB may have encouraged the applications in SZR and EXE, but it should now be clear that it will lend very limited support to such applications. Further, if it was believed following SZR that such applications had a better chance of success where the allegations relied on were individual or individual and cumulative, EXE would suggest that this is not necessarily so, and the relevant question is simply whether a mini-trial would be required to resolve any disputed issue. It now appears that only in the clearest circumstances will it be appropriate to strike out or give summary judgment in Article 3 failure to remove claims.

Ella Davis is a barrister at Deka Chambers.