The appeal in AB v WORCESTERSHIRE COUNTY COUNCIL and BIRMINGHAM CITY COUNCIL (2023) EWCA Civ 529 concerned circumstances in which a local authority may be held liable for a breach of the human rights of a child under ECHR Article 3, inhuman or degrading treatment, when the child is said to have been subject to neglect or ill-treatment by a parent, and that authority did not take effective operational measures, steps under the Children Act 1989, to provide protection by seeking a care order to remove the child from the care of the parent. Lewis LJ observed at para 13 that the principles governing Article 3 are well established in the case law, and are usefully summarised in X v BULGARIA (2021) 50 BHES 244 at para 177/178. Lewis LJ continued:-

“14. Thus, Article 3 prohibits a state from inflicting inhuman or degrading treatment or punishment. It also imposes certain positive obligations on the state. These include putting in place a legislative and regulatory system for protection (often referred to as the “systems duty”). They also include an obligation to take operational measures to protect specific individuals from a risk of being subjected to treatment contrary to Article 3 (often referred to as “the operational duty”). They also include an obligation to carry out an effective investigation into arguable claims that treatment contrary to Article 3 has been inflicted (often referred to as the “investigative duty”).

15. This appeal concerns only the second of those obligations, that is the positive obligation to take operational measures to protect specific individuals against the risk of being subject to treatment contrary to Article 3 of the Convention.”

See also paras 56-64 inclusive, especially as to the four components to the positive operational obligation and principles governing its interpretation and application. In this case there was no realistic prospect of breach of the operational duty on the part of either local authority being established: paras 71, 79 and 87-89 inclusive. The evidence did not establish that there was any “real and immediate risk” of there being treatment by the mother that would fall within Article 3. Moreover, judged reasonably, neither authority failed to take appropriate measures to address any risk that might exist by adopting measures which were less intrusive than seeking a care order.

There can be a tension between the  Article 8 right to private life under Article 8 of the ECHR  and the right to freedom of expression under Article 10. This is addressed by the Court of Appeal in STOUTE v NEWS GROUP NEWSPAPERS (2023) EWCA Civ 523. The basic principle is that a claim for misuse of private information will succeed only if both of two conditions are satisfied : (1) the claimant has a reasonable expectation of privacy in respect of the information; and (2) the right to privacy outweighs the defendant’s right in the circumstances to freedom of expression.

Various circumstances are relevant to whether a reasonable expectation of privacy exists. Various criteria have been established as relevant to the balance between the rights.

The circumstances and criteria include that (i) photographs require special consideration, because they are particularly intrusive, 9ii) a person is less likely to have a reasonable expectation of privacy with respect to a photograph taken in a public place, but that is not an absolute rule, and (iii) such a claim is more likely to succeed if the photograph involves the depiction of something private.