More on Article 2: care does not equate to detention by the state

1 February 2022

Boyce, R (On the Application Of) v HM Senior Coroner for Teesside and Hartlepool [2022] EWHC 107 (Admin) (21 January 2022) (BAILII link)

Grace Peers was 15 years old when she took her life whilst under the care of Middlesbrough Borough Council which placed her in a private children’s home (Farm House).  The coroner ruled that the requirement for an Article 2 inquest was not engaged.  The judicial review primarily concerned that decision.

The grounds

  1. As Grace was under the care of the local authority, she was in state detention and accordingly Article 2 applied automatically as it does to those detained under the Mental Health Act or in custody.
  2. Article 2 was engaged because of an arguable breach of the systemic duty due to failures in care identified by an expert and by Ofsted.
  3. The coroner was wrong to hold that the only material effect of an inquest not being an Article 2 inquest is on the conclusions that may be returned, rather than on the scope of the inquest.

The decision

Ground 1 – Is care in a children’s home state detention?

The court was not persuaded for the following reasons:

  • In Rabone the court found on the facts that the deceased’s status as an informal patient (i.e. not detained under the Mental Health Act) was sufficiently analogous to a detained patient such that Article 2 applied in that case.  However, as the recent case of Morahan carefully explained, informal patients do not fall under the category cases where Article 2 arises automatically.
  • Farm House had no powers of compulsion or detention.  There was no care order in favour of the home and the staff could not order the children to do anything under any legislative scheme.
  • There was a very real and obvious difference between a child in secure accommodation who has been deprived of heir liberty and a child in care who is free to come and go.  It is a difference of substance not merely one of form.
  • Though the above would be sufficient to dismiss the ground, the Court also held that a private children’s home is not a public authority for the purposes of the Human Rights Act 1998 (YL v Birmingham City Council [2008] 1 AC 95 applied)

Ground 2 – Was Article 2 engaged on the basis of the systemic duty?

  • There were systemic failures.
  • However, the requisite threshold of causation – that the deceased lost a substantial chance of surviving because of the breach – was not satisfied on the facts.

Ground 3 – Is there a material difference between Article 2 and Jamieson inquests other than as to conclusions?

  • There is no difference between Article 2 and Jamieson inquests in so far as scope is concerned.
  • Inquest hearings should address the broad circumstances especially if there is a possibility that Article 2 may become relevant in the future.

Comment

  • Following on from Morahan, the case places limits on the category of cases where the Article 2 duty applies automatically.  That is unsurprising given the rationale for the category, as described in R. (L(a patient)) v Secretary of State for Justice [2008] UKHL 68; [2009] 1 AC 588L, is that it is always at least possible that those who are responsible for the deceased’s care have failed in either their systemic and operational duties.  That can hardly be said in respect of people who are free to come and go as they wish.
  • The case is clear authority for the proposition that the Article 2 is not engaged automatically in respect of children placed in Children’s Homes.  It follows that the duty will not arise automatically on the basis of a local authority providing services to a child and nothing more.  For the duty to arise automatically, some form of detention such as secure accommodation, is required.
  • The judgment cited various dicta in relation to there not being any difference in relation to scope between Article 2 and Jamieson cases.  However, that is difficult to understand.   An Article 2 inquest must be capable of making findings on the central issues in the case insofar as they relate to public authorities that may be responsible for the death.  Accordingly, the scope must consider those matters.  Whilst in practice (which is what most of the cited dicta relate to), coroners may treat scope in the same way in non- Article 2 cases, that same legal duty does not apply.  That is a particularly crucial distinction for those seeking to challenge scope by way of judicial review.
  • The case will prove helpful to those seeking to keep scope wide in non-Article 2 cases.

Authors

Jonathan Landau

Call 2004

Related areas

Inquests

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