Protection of Children and Vulnerability to Ill-Treatment

E (a child), Re (Northern Ireland) [2008] UKHL 66 (12 November 2008)

In this case, the House of Lords decided that a police response to sectarian unrest in Northern Ireland did not constitute a breach by the State of its positive obligation to prevent the infliction of inhuman and degrading treatment upon its citizens under art 3 of the European Convention on Human Rights.

Baroness Hale discussed how the special vulnerability of children impacted upon the State’s obligations under article 3.

Facts

The appellant’s daughter attended a Catholic girls’ primary school in Belfast, Northern Ireland.  Along with other parents, the appellant regularly walked her daughter to the school along Ardoyne Road.  Houses along this road were primarily inhabited by Catholic families but one part of the road was bordered on either side by an estate occupied by Protestant families.

For unknown reasons, there was an outbreak of disorder between the two religious groups in June 2001.  This developed into abuse towards children walking to and from school with their parents along Ardoyne Road, such abuse including the throwing of explosive devices and other missiles, death threats, verbal abuse, shouting of sexual obscenities and the use of piercing whistles and sirens.  It was the police response to this behaviour which formed the subject matter of the appellant’s complaint.

Police responded by erecting barriers along Ardoyne Road and deploying significant numbers of police in riot gear in order to ensure the safe passage of the children and their parents.  A number of officers were injured in the operation, some severely.  The operation was successful in that no children were injured, however the intimidating and violent environment created by the police response had a marked impact on the emotional health of many children.

The appellant initially applied for judicial review, arguing that the chief of police had failed to secure the effective implementation of the criminal law, but this application was dismissed.  The appellant was then granted leave to appeal that decision to the Court of Appeal in Northern Ireland for reasons of ‘public interest’, however that appeal was also dismissed.

The appellant was granted leave to appeal to the UK House of Lords ‘on account of the importance of the issues concerned’.  The key argument presented by the appellant was that the State (through its law enforcement arm, the police) was in breach of its positive obligation under art 3 of the European Convention to take the steps required of it to prevent the infliction of inhuman and degrading treatment upon the appellant and her daughter.

Decision

The House of Lords unanimously agreed to dismiss the appellant’s appeal.  Lord Carswell, delivering the lead judgment, identified four issues required to be resolved in relation to article 3:

• whether the appellant was entitled to seek relief on behalf of her child, who was not formally a party to the proceedings;
• whether the appellant and her daughter suffered inhuman or degrading treatment;
• whether art 3 was engaged so as to give rise to the positive obligation under that article; and
• if so, whether the police took sufficient steps to discharge that obligation.

In relation to the first question, Lord Carswell found that the proceedings were properly instituted but that it would have been preferable for the child to have been joined as a party.

On the second question, Lord Carswell noted that the respondents had conceded that some of the more extreme behaviour experienced by the appellant and her daughter did constitute inhuman and degrading treatment, and his Lordship regarded this as a correct concession.

On the third and fourth questions, Lord Carswell noted with approval that all parties had accepted that art 3 imposes both a negative obligation (an obligation not to inflict inhuman and degrading treatment) and a positive obligation (an obligation to take steps to prevent the infliction by third parties of inhuman and degrading treatment) on the State.  Lord Carswell confirmed that the positive obligation under art 3 requires States to do all that could reasonably be expected of them to avoid the risk of inhuman or degrading treatment, once they are aware or ought reasonably to be aware, of that risk.  An assessment of the ‘reasonableness’ of a State’s response requires the court to make an objective assessment of proportionality, taking into account the circumstances of the case, the ease or difficulty of the State taking the precautions and the resources available.  After applying this approach to the facts, Lord Carswell found that ‘the evidence supports the overall wisdom of the course which (the police) adopted’.

In response to an argument by the appellant that the police failed to have regard to the best interests of the children pursuant to art 3(1) of the UN Convention on the Rights of the Child, Lord Carswell found that the police action was taken in the children’s best interests.

Baroness Hale saw fit to provide additional comments regarding the impact of the special vulnerability of children on the requirements set out in art 3 of the European Convention.  According to Baroness Hale, the special vulnerability of children is relevant in two ways:

• First, ill-treatment will only attract the protection of art 3 if it satisfies a minimum level of severity.  The special vulnerability of children will be a relevant factor in assessing whether this level of severity is met.
• Second, the special vulnerability of children will impact upon the scope of a State’s obligation to protect them from inhuman or degrading treatment.

Baroness Hale considered that although the State’s actions made the experience even more frightening for the children, the evidence did not show that the children’s experiences would have been any better had the police responded in another way.

Relevance to the Victorian Charter

Section 32(2) of the Charter states that “[i]nternational law and the judgments of domestic, foreign and international courts and tribunals relevant to human rights may be considered” when interpreting a Charter provision.

The principles enunciated in Lord Carswell’s decision may be relevant to a court’s consideration of the scope of the rights set out in s 10 of the Charter (protection from torture and cruel, inhuman or degrading treatment).

Baroness Hale’s comments provide useful insight into the special rights afforded to children and may be relevant to a court’s assessment of s 17 of the Charter (children’s rights and the requirement to act in the best interests of children).

The decision is available at http://www.bailii.org/uk/cases/UKHL/2008/66.html.

Jessica Zikman is on secondment to the Human Rights Law Resource Centre from Lander & Rogers