High Court judge quashes determination of coroner not to hold Article 2 investigation

A High Court judge has quashed a coroner's ruling that the inquest into the death of a 16-year-old girl will not investigate in what circumstances she came by her death.

In Patton, R (On the Application Of) v HM Assistant Coroner for Carmarthenshire And Pembrokeshire [2022] EWHC 1377 (Admin) (07 June 2022) Mrs Justice Hill remitted the issue to the coroner for re-determination.

Pembrokeshire County Council played an active role in the proceedings, defending the coroner's decision concerning the death of the child, Kianna Patton.

At the time of her death Kianna was under the care of Specialist-Child and Adolescent Mental Health Services ("S-CAMHS"). Kianna had mental health issues and was known to use drugs. She had lived at a family friend's home for more than a year before she passed away in October 2019.

Her mother sought to challenge the coroner's ruling dated 8 August 2021 to the effect that the inquest into Kianna's death will not investigate in what circumstances she came by her death, pursuant to section 5(2) of the Coroners and Justice Act 2009, because the procedural investigative duty contained in Article 2 of the European Convention on Human Rights did not arise.

On 24 November 2021 she was granted permission on all her three grounds by Upper Tribunal Judge Grubb, sitting as a judge of the High Court.

Kianna’s mother advanced the following three grounds:

1. The coroner erred in law in concluding that the council did not owe a duty to provide Kianna with accommodation under section 76(1)(c) of the Social Services and Well-being (Wales) Act 2014;
2. The coroner failed to provide adequate reasons for the finding that no obligation to provide accommodation to Kianna arose under section 76(3) of the 2014 Act; and
3. His decision that section 5(2) of the Coroners and Justice Act 2009 was not engaged was in breach of section 6 of the Human Rights Act 1998.

The coroner stated that Kianna did not require accommodation because "whilst she had been excluded from the family home, 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".

However, the claimant argued that the coroner had erred by focusing on the fact that Kianna had accommodation rather than whether it was suitable or not.

As an interested party, the council submitted that the coroner's decision did not involve any error of law and was correct.

The local authority argued that looking at section 76 in isolation was inappropriate. It was part of a much wider system of statutory regulation in Wales under the 2014 Act, it claimed. This system included section 6(2) of the 2014 Act, which requires the local authority, so far as is reasonably practicable, to ascertain and have regard to the views, wishes and feelings of the individual to whom care and support is being provided.

The local authority added that the wording of section 76 does not generate a mandatory or immutable duty on the council.

Mrs Justice Hill said Ground 1 “distils to a single question, namely whether the Coroner was required to conduct his own assessment of the suitability of Kianna's accommodation and erred by failing to do so”.

The findings of Salford City Council v W [2021] EWHC 1689 (Fam) heavily influenced the judge's decision on ground 1. In Salford, the ratio of the judgment was that where there is a dispute between the parties as to whether a child was looked after, the court must conduct its own assessment by applying the statutory framework to the evidence before it, applying an objective scope, and giving the word "prevented" within section 76(1)(c) "the widest possible scope".

"[In Salford,] Macdonald J therefore rejected the argument advanced by the council before me that the court should simply look at what actually 'appeared' to the local authority under section 76(1)(c) rather than what 'should have' appeared to them," Mrs Justice Hill noted.

She later added that Macdonald J "makes clear that the views of one of the parties as to whether a child is in fact looked after are not determinative, and the court must conduct its own assessment of whether a child should have been considered as such. 

"The brevity of the coroner's reasons in this case make it hard to have confidence that he undertook this exercise."

The judge ultimately found the coroner's approach to the section 76(1)(c) question flawed.

On ground 2, the claimant submitted that the coroner's report did not provide adequate reasoning for the claimant to understand the basis on which the coroner did not consider the section 76(3) duty to be applicable.

"Here, the coroner simply re-stated the statutory test in section 76(3)(c), saying that "no obligation to provide accommodation arose because... Kianna's well-being was likely to be seriously prejudiced," the judge said. "He gave no reasons for his decision that no obligation arose." 

The main point advanced by Ms Patton was that accommodation, where Kianna was reportedly permitted to smoke cannabis, despite her mental health issues, would self-evidently seriously prejudice her well-being. Accordingly, this was the principal important controversial issue, and it was therefore incumbent on the coroner to explain how he had resolved it, the judge said.

"Again, I am concerned that the coroner may have used his decision on the section 76(3) issue as a basis for finding that no general duty was owed, which was incorrect.

"For these reasons I consider that the Coroner's approach to the section 76(3) issue was also flawed," the judge concluded.

In arguing the third ground, the claimant submitted that if the judge was satisfied that the coroner had erred in the manner alleged in Ground 1 and/or 2, it followed that their decision on the section 5(2) 2009 Act question was incorrect.

"On balance I consider that the most sensible and fair course is for me to remit the decision to the Coroner to make the section 5(2) decision afresh," Mrs Justice found.

The claim succeeded on all three grounds, and the judge ordered that the coroner's ruling dated 8 August 2021 be quashed and the issue remitted to the coroner for re-determination.

Adam Carey