Consideration of the, still evolving, Art 2 procedural duty in respect of inquests will often demand an intricate analysis of several different strands from judicial precedents that then need to be woven together to establish a nuanced legal tapestry. The difficulty facing the Coroner in this case was that the interested persons had, rather unhelpfully, managed to weave those threads into a complicated web of such knotted complexity in their own submissions that, in ruling on the issue, the Coroner also got himself into a tangle. It required the incisive brain of Mrs Justice Hill to disentwine the arguments and clarify what would be required to engage the Art 2 general systems duty in respect of a vulnerable child who had died in the community.
This is the first judgment on an aspect of coronial law to be handed down by one of our newest High Court judges who not only sat as an assistant coroner but spent a large part of her professional life at the bar appearing for interested persons in inquests. With its helpful exposition of how the general systemic Art 2 duty might potentially arise, Hill J’s judgment provides valuable clarification for all inquest lawyers. For Coroners it is also a useful reminder that you may well need to look further than the arguments being put before you by counsel when coming to your own view on Art 2’s application.
Here the Coroner made a PIRH ruling against the bereaved family’s submissions that Art 2 was arguably engaged. Unfortunately, the submissions before the Coroner focussed on matters which (as Hill J found) were not required for the determination of the Art 2 issue, unnecessarily complicating the picture. It was not necessarily that the Coroner had arrived at the wrong Art 2 decision, but, given the matters he addressed and the limited explanation of the reasons why he had found as he did, the Coroner now needed to go back and make his Art 2 decision all over again with the correct legal test in mind.
Kianna Patton was only 16 when her body was found hanging in an abandoned building. Kianna had a troubled adolescence and was under the care of Specialist Child and Adolescent Mental Health Services (‘CAMHS’). At the time of her death Kianna had been living with a friend, whose mother had tolerated Kianna’s cannabis use. Before Kianna died her mother’s concerns for her daughter’s mental health had led her to seek help from social workers and Police officers. She now alleged serious failings in the way the public bodies responded to those entreaties.
Her concerns were backed up by the Health Board’s own ‘review of concerns’ relating to Kianna’s death which had identified several issues with care delivery and the way in which Kianna’s risk had been assessed. The report noted that safeguarding screening had not been completed when it was identified that Kianna was no longer living at home and that a friend’s father had accompanied her to various appointments. The report set out several lessons and recommendations.
At a PIRH before Kianna’s inquest the Claimant averred that the enhanced investigative Art 2 duty was engaged. Notably, the Claimant was not arguing that there was any operational Art 2 duty in Kianna’s case (ie a duty owed to a particular individual) as it seemed there was no evidence of a real and immediate risk to Kianna’s life that might have founded that contention. Rather, she argued that the provisions of s.76 and s.78 of the Social Services and Well-being (Wales) Act 2014 (‘the 2014 Act’) gave rise to a duty to accommodate Kianna and offer her a care and support plan as a ’looked after child’. It was argued before the Coroner that this gave rise to a general Art 2 obligation to put systems in place to safeguard and promote Kianna’s well-being, which had been breached by all three public bodies.
When the Coroner ruled that the Article 2 ECHR procedural investigative duty did not arise Mrs Patton sought Judicial Review.
The Legal Issues
The first issue the learned judge had to sort out was what duty was actually being argued for and on what basis. The Claimant was only arguing for the Art 2 general (systems) duty that is owed to all citizens, but she averred that this duty then applied to Kianna because of the 2014 Act’s provisions. In effect, her case was that she needed to, and did, satisfy a ‘gateway’ into this general Art 2 duty by virtue of s.76 duties to Kianna having arisen. She submitted that those s.76 duties would have led to the Council having a significant degree of control over, and delegated parental responsibility for, a very vulnerable child, who had proven to be a suicide risk.
The Coroner had responded to this argument by (briefly) ruling that he did not agree the s.76 duties had been owed to Kianna as she “was not a person requiring accommodation… she had the support of her best friend’s parents who permitted her to reside with them, albeit an arrangement which [her] mother did not approve of. She did not present to the authority as homeless or a child requiring accommodation.” As the Coroner had found the Claimant’s s.76 argument was not made out, he said it must therefore follow that Article 2 was not engaged.
Unfortunately, the Coroner had been led astray by the Claimant having taken the wrong legal approach at the outset. Hill J held that, the Claimant’s ‘gateway’ argument was legally flawed. The general Art 2 duty exists much more widely and was a general duty “to put in place a legislative and administrative framework to protect the right to life involving effective deterrence against threats to life, including criminal law provisions to deter the commission of offences, backed up by a law enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions”. As such the existence of the general duty did not require that the relevant public body had in some way assumed responsibility or exercised control over a particular individual, or that the person was particularly vulnerable. The Claimant had in effect transposed arguments about the Rabone criteria for the existence of an operational Art 2 duty into arguments about the Art 2 general duty.
By accepting and then ruling on this ‘gateway’ argument the Coroner had not approached the issue on the correct basis.
“The Art 2 duty on the state, to put in place an adequate legislative and administrative framework to protect of life did not require any gateway step.”
It seems the Coroner had not been assisted by the Council not having directly challenged the ‘gateway’ approach as inherently flawed, but rather they had put forward an alternative legal proposition that in ‘childcare cases’, it was only where the operational duty was owed that the general duty could also be owed. The Coroner had correctly rejected the Council’s argument, but had then adopted and answered (in the negative) the ‘gateway’ point in his judgment.
How to approach the decision
One must have some sympathy for a Coroner who had not been helped by the legal submissions before him not having focused on the necessary steps for making the Art 2 decision. Hill J’s judgment helpfully sets out the right way to approach this Art 2 issue:
- The Coroner should have proceeded on the basis that the general duty was, in principle, applicable to the relationship between Kianna and the Council, regardless of the s.76 duties.
- Consideration should also have been given to whether the general duty existed as between Kianna and the Police and Health Board.
- Once those matters had been resolved, or perhaps conceded, the focus should have been on whether there were any arguable breaches of the general duty, applying the low arguability threshold, and bearing in mind the key distinction between systemic and individual failings.
- Finally, it was necessary to address whether any proven arguable breaches meant that there had been a loss of a substantial chance of a different outcome:
The Coroner’s brief ruling dealing with the Claimant’s flawed proposition had not separately tackled the necessary legal issues of (i) the existence of the general duty, (ii) the arguable breach of it, and (iii) any causation. As such he had given insufficient reasons as to why he was of the view Art 2 was not engaged. The s.76 issue although not relevant to the existence of a general duty could be relevant to its breach; the fact that Kianna did have accommodation did not negate the potential s.76(1)(c) duty if her accommodation was unsuitable. The Coroner’s short judgment had simply not addressed this suitability point. He had similarly given no reasons for finding that “no obligation to provide accommodation arose’ under s.76(3). It was incumbent on the Coroner to explain, even in brief terms, how he had come to that view. Merely restating a statutory test and saying it was not met was not enough.
Once the correct legal test was identified it was apparent that the Coroners reasoning must be inadequate. As the judicial review process had illustrated, the entire approach to the general duty in this case needed to be reconsidered. Hill J declined the Claimant’s invitation to now make the decision herself, in her view the most sensible and fair course was to remit the decision back to the Coroner to make the s.5(2) CJA decision afresh, reminding the reader of the sage words of Lord Brown:
“The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the ‘principal important controversial issues’, disclosing how any issue of law or fact was resolved.
Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds.”
 The interested parties were: Pembrokeshire County Council, Hywel Dda University Local Health Board and the Chief Constable Of Dyfed Powys Police. The Coroner and Health Board remained neutral, both assisting the court through counsel, the police took no part in the proceedings however the local Council played an active role in the proceedings, defending the Coroner’s decision.
 Which mirrors s.20 of the Children Act 1989
 as described in Morahan v Assistant Coroner for West London  EWHC 1603 (Admin);  ILR 126
 Derived from R (Kent County Council) v HM Coroner for Kent  EWHC 2768;  ILR 110
 South Buckinghamshire District Council v Porter (No. 2)  1 WLR 1953 at ,
In the JR claim Sebastian Naughton of Serjeants’ Inn Chambers represented the Assistant Coroner and James Berry of Serjeants’ Inn Chambers appeared for the Health Board – neither counsel having appeared at the earlier PIRH.