SZR v Blackburn with Darwen Borough Council
[2024] EWHC 598 (KB)
Local authorities' duties regarding children in need are primarily found in the Children Act 1989.
Children Act 1989
Under the Human Rights Act 1998, it's unlawful for public authorities to act incompatibly with Convention rights, including Article 3 (prohibition of torture and inhuman or degrading treatment).
Human Rights Act 1998
Article 3 imposes positive obligations on states, including an operational duty to protect individuals from a real and immediate risk of ill-treatment.
X v Bulgaria (2021) 50 BHRC 244
For an Article 3 violation, ill-treatment must reach a minimum severity, the risk must be real and immediate, the authority must have known or ought to have known of the risk, and they failed to take reasonably expected measures to avoid it.
Case law summarised in the judgment
Care orders are draconian measures, used only when a child is suffering or likely to suffer significant harm.
Children Act 1989, section 31(2); Re MA [2009] EWCA Civ 853
In assessing Article 3 claims, hindsight should be avoided, and the court should not impose an impossible or disproportionate burden on authorities; Article 8 (right to family life) is a relevant countervailing factor.
Osman v United Kingdom (1998) 29 EHRR 245; Van Colle v Chief Constable of Hertfordshire Police [2008] UKHL 50
Appeal dismissed.
The court found no realistic prospect of AB establishing Article 3 violations by either council.
Ground 1 of the appeal (lack of care and control) succeeded.
The councils conceded this point; the Children Act 1989 doesn't require care and control for Article 3 liability.
Other grounds of appeal failed.
Insufficient evidence to support amendments or to overturn the summary judgment.
[2024] EWHC 598 (KB)
[2023] EWCA Civ 334
[2023] EWCA Civ 1241
[2023] UKSC 52
[2023] EWHC 1833 (Admin)