Court of Appeal rejects claim council infringed right to be protected from modern slavery

The Court of Appeal has upheld a High Court ruling which found a council did not infringe upon the protections against modern slavery afforded the appellant (H) under Article 4 of the European Convention of Human Rights (ECHR).

Michael Kent QC, sitting as a Deputy Judge of the High Court, had concluded that Swindon Borough Council had breached its duty to H pursuant to section 47 of the Children Act 1989 ("local authority's duty to investigate").

However, the judge dismissed H's claim that the local authority had infringed his rights under Article 4 ("no one shall be held in slavery or servitude").

In H (A Minor), R (On the Application Of) v Swindon Borough Council [2021] EWCA Civ 1836 (03 December 2021), Lord Justice Dingemans rejected claims that the High Court judge had wrongly refused to consider evidence showing the claimant was a victim of modern slavery and ruled that he was entitled to find that there was no infringement of Article 4 of the ECHR.

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The claimant, referred to as 'H' in the proceedings, is a victim of human trafficking. He is 18 years old and was born in Iraq.

In 2018, at the age of 15, he entered the United Kingdom illegally and was classed as an unaccompanied asylum-seeking minor.

He was placed into care after being found by police in Swindon.

While in care, he exhibited challenging behaviours and had a series of foster placements that broke down. He was given a six-month referral order after threatening to kill one of his foster parents.

In November 2018, H served a fourth-month prison sentence after pleading guilty to assaulting a carer and causing criminal damage.

In December 2019, a claim for judicial review was issued seeking to challenge the council's failure to conduct an assessment of the risks faced by H.

Consequently, Lane J ordered the council to conduct an assessment of H under section 47 of the 1989 Act, but the council requested a statutory assessment be carried out instead.

At the same time, the Single Competent Authority (SCA) made a "conclusive grounds" decision that H was a victim of modern slavery. The exploitation was on the grounds of "Manual labour in Kirkuk, Iraq" and "forced criminality in the UK".

The council carried out the statutory assessment, which found that H was "very vulnerable towards further criminal exploitation and trafficking".

Permission to apply for judicial review was refused on the papers, but in September 2020, H was granted permission to amend the judicial review claim form to include a new claim for infringement of Article 4 of the ECHR and granted permission to apply for judicial review.

In the Administrative Court Judge Kent found Swindon had breached its section 47 Children Act 1989 duty but had not infringed on H's rights under the ECHR.

Challenging the decision at the Court of Appeal, H relied on two main grounds, both relating to the judge's dismissal of the claim for infringement of Article 4 of the ECHR.

The first ground contended that the judge erred in concluding that the council was entitled to regard the police and the SCA as the agencies principally concerned with the protection duty in Article 4.

The second ground of appeal claimed the judge erred in concluding that the council had discharged its duties under Article 4 in February 2020 in circumstances where the judge had identified steps that the council should reasonably have taken, but had not taken, to protect H from the risk of further trafficking.

Lord Justice Dingemans said the real issue on the appeal was whether the judge was wrong to find that there was no breach of Article 4 of the ECHR.

The Court of Appeal judge said: "It is right to record that the judge did not set out in detail his reasons for finding that the council had not breached Article 4 of the ECHR. The judge did find that the council had acted in breach of statutory duty under section 47 of the 1989 Act by failing to make relevant inquiries of the police and the SCA about the risks to which H was subject.

"That important finding was, however, made with a finding that H was being accommodated, and attended by social workers, teachers, support workers and health professionals. It is apparent from the detailed notes of the statutory assessment completed on 4 February 2020 that H's needs and vulnerabilities were being met and considered by the council. H was being reasonably protected from the risks to which he was subject, while attempts were being made to recognise his own right to make decisions as an individual."

Lord Justice Dingemans found it apparent from "the evidence before the judge and the findings made by the judge that, although the council could have made additional inquiries of the police, they have as a matter of fact accommodated, supported and protected H from the risks of re-trafficking".

He added: "In these circumstances the judge's finding that there had been no infringement of H's rights under Article 4 of the ECHR was right."

The judge dismissed the appeal. Lady Justice Whipple and Lord Justice Newey agreed.

Adam Carey