The Court of Appeal has today dismissed the claimant’s appeal against the order of Ms Margaret Obi, sitting as a Deputy High Court Judge, granting summary judgment to two defendant councils in respect of allegations that their failure to seek care orders in respect of the claimant exposed him to mistreatment by his mother, infringing the operational duty to protect him under Art 3 of the European Convention on Human Rights.
The background to the case can be seen from para  of the judgment of Lewis LJ, who gave the only substantive judgment with which Baker and Dingemans LJJ agreed. The claimant lived in the area of the second defendant, Birmingham City Council between 2005 and 2011 and then in the area of the first defendant, Worcestershire County Council, until 2016. Both councils were involved periodically with the claimant’s family in relation to child protection concerns relating to the claimant and his brother. It was his case that he ought to have been taken into care earlier than occurred.
The issues considered by the Court of Appeal were narrower than those considered by the Deputy Judge. She had ruled that a claim under Art 6 of the Convention should be struck out on the basis that a child has no “civil right” to apply for a care order or have an application for one considered by the court: paras - Besides granting summary judgment on the Art 3 claims following a detailed analysis of the pleaded allegations and evidence at paras -, she also found that the operational duty did not apply at all in relation to children living in the community: paras -. She also rejected an assertion that the investigative duty arising under Art 3 applied to local authorities investigating child protection concerns, since that duty was concerned with criminal law investigations: paras -.
Before the Court of Appeal, it was accepted by both councils that the alternative ground on which Art 3 operational duty claim had been attacked was unsound. The Court of Appeal agreed: see para  of the judgment of Lewis LJ. There was no requirement that a child be under the care and control of the local authority before the operational duty could apply. That part of the Deputy Judge’s judgment can therefore no longer be used to strike claims out.
No appeal was pursued in relation to the claims under Art 6 or based on the Art 3 investigative duty. The Deputy Judge’s judgment on those issues remains authoritative and binding on all courts up to High Court level.
As to the main challenge to the Art 3 operational duty claims, Lewis LJ agreed with the conclusions of the Deputy Judge that there was no realistic prospect of the claimant showing that, at the reasonable time, he was subject to a real and immediate risk of being subjected to treatment falling within Art 3 by his mother. He also agreed that there was no arguable failure to take appropriate measures to protect the claimant by seeking a care order. He emphasised at paras  and  that the emphasis of the Convention (in particular Art 8) and the Children Act 1989 is on keeping families together.
Lewis LJ’s judgment does not attempt to provide a comprehensive account of the circumstances in which ill-treatment inflicted by parents or carers can amount to “inhuman or degrading treatment or punishment” within the meaning of Art 3. However, he emphasises at para  that the treatment must “reach a minimum level of severity” and that “serious and prolonged ill-treatment and neglect, giving rise to physical or psychological suffering” can fall within Art 3. The duty focuses “on a risk which exists at the time of the allegation violation and not a risk which may arise at some stage in the future”: para . Hindsight is to be avoided: para . It can be seen from Lewis LJ’s judgment and that of the Deputy Judge that not all cases of parental neglect amount to mistreatment contrary to Art 3; and indeed it is likely that a clear pattern of persistently bad parenting which is seriously neglectful and damaging to the child, and unresponsive to any intervention by the authorities, will be required for the threshold to be crossed. It is also clear that there must be a proper basis on which a care order could have been obtained at the relevant time, or some lesser measure could have been taken which would have brought the neglect to an end, for a claim to succeed.
Although allegedly excessive physical chastisement was a feature of this case, Lewis LJ did not review the authorities on when physical chastisement can contravene Art 3 and the case law is now of some age and may not be a reliable guide to the scope of Art 3 in 2023. Sexual abuse was not a feature of this case but it is suggested that almost any type of sexual abuse of a child involving touching will fall within Art 3.
It is clear, however, that the judgments of the Deputy Judge and Court of Appeal should act as a significant barrier to claims made under Art 3 arising from poor parenting which lacks the features of persistence and seriousness referred to above.