R (Boyce) v HM Senior Coroner for Teeside and Hartlepool [2022] EWHC 107 (Admin)
Mrs Justice Belcher upheld the Coroner’s decision that Article 2 was not engaged by the death of a 15 year old girl (Grace Peers) who died while in the care of Middlesborough Borough Council, who had placed her on an interim basis in a private residential care home for young people with complex behavioural needs (Farm House).
The facts
Grace had been subject to a care order for 18 months prior to her death. She was found hanging at the care home in September 2018. The Coroner held that there was insufficient evidence of a real and immediate risk to life, and accordingly there was no breach of the operational duty under Article 2. The Coroner indicated she remained undecided as to whether there was a breach of the systemic duty, and directed that independent expert evidence be obtained into a number of specific matters all of which were directed to the question of whether Farm House had been an appropriate venue for Grace given her needs and requirements. The Coroner accepted that there were clearly issues with the systems and procedures operated by MBC social services department and by Farm House. However, she concluded that it was not arguable that there was a real and substantial chance that improved systems and procedures would have saved Grace’s life, given the level of care she in fact received at Farm House.
Article 2 automatically engaged
The first ground of challenge brought by the Claimant (Grace’s mother) was on the basis that Article 2 was automatically engaged as Grace was in the care of the local authority. By virtue of the extent of control and supervision over Grace her death was analogous to that of a person who commits suicide whilst in state detention.
Mrs Justice Belcher referred to the familiar summary of the relevant principles by Popplewell LJ in R (Morahan) v HM Asst Coroner for West London[2021] EWHC 1603 at [122] [cited in the article elsewhere in this edition of the QMLR covering the judgment in R (Patton) v HM Assistant Coroner for Carmarthenshire and Pembrokeshire [2022] EWHC 1377 (Admin)]
The Claimant referred to the decision of the Supreme Court in P v Cheshire West[2014] UKSC 19, and ‘the acid test’ of Lady Hale at [49]
”The answer, as it seems to me, lies in those features which have consistently been regarded as “key” in the jurisprudence which started with HL v United Kingdom 40 EHRR 761: that the person concerned “was under continuous supervision and control and was not free to leave” (para. 91). I would not go so far as Mr Gordon, who argues that the supervision and control is relevant only insofar as it demonstrates that the person is not free to leave. A person might be under constant supervision and control but still be free to leave should he express the desire so to do. Conversely, it is possible to imagine situations in which a person is not free to leave but is not under such continuous supervision and control as to lead to the conclusion that he was deprived of his liberty.”
Accordingly, as Mrs Justice Belcher noted at [22]:
“In this case Grace was the subject of a care order under Section 31 Children Act 1989 placing her in the care of MBC. As a result MBC had parental responsibility for Grace. Dr Van Dellen [for the Claimant] submitted that the imposition of parental responsibility is important given the reference to state responsibility in paragraph 122(6) of Popplewell LJ’s … I challenged this submission, pointing out to Dr Van Dellen that if he was correct, then any suicide by a child in care would automatically result in an Article 2 inquest. Dr Van Dellen agreed that was not attractive, but he submitted it is nevertheless the correct position. He pointed out that children are vulnerable compared to adults; that the state was effectively exercising its power by reason of its parental responsibility for Grace, and that Grace was controlled and supervised by MBC. Dr Van Dellen submitted that if Grace had left the home without permission, the police would have been called, and the state and the police would have tracked Grace down and returned her to the home. He pointed out that Grace was not exercising any choice to live at Farm House of her own free will, but was placed there by the state saying “We control you and supervise you and you must live there”. He submitted that this is stronger control over the individual by the state than simply a question of parental responsibility.”
Mrs Justice Belcher was referred to R (Ferreira) v Inner South London Senior Coroner [2017] EWCA Civ 31 and noted that Mr Hough (for the Respondent) submitted that:
“…a child in care is obviously different to those detained within closed societies such as prisons, conscript cases or those involuntarily detained pursuant to the MHA. He pointed to the fact that Grace was free to leave Farm House to attend school. In response to that, Mr Van Dellen said that Grace was taken to and from school, only went into town with a staff member and was allowed no access to a phone on her own. I have received no evidence to support those points, although they were not challenged by Counsel for TVC.”
She held that:
“32… Regardless of how she got there, there is no suggestion that Grace was deprived of her liberty at school. Like all pupils she would be subject to school rules but the school could not prevent her leaving the school premises had she chosen to do so. No doubt attempts would have been made to find her and return her to the care of the local authority, but she was free to leave. There is no suggestion that she was any more restricted at school than any of the other students. Mr Hough made the further point that there was a lock on Grace’s bedroom door. At the time of her death, Grace had locked that door from the inside. She was not locked into her room and by locking it from the inside, she had the liberty to exclude others. On the face of it, that is not consistent with Dr Van Dellen’s submission that Grace was under constant supervision and control.
33. In this case, whilst Grace was the subject of a Section 31 care order, she was not the subject of a Section 25 secure accommodation order, nor had she been placed in secure accommodation pending the making of an emergency application for such an order. Nor is there any suggestion that she should have been in secure accommodation. Dr Van Dellen made the point that if Grace had left the home, she would have been found and returned. No doubt if that was a repeated occurrence, MBC might then have considered applying for secure accommodation order.
34. I am not persuaded that Grace’s situation in care is analogous to state detention. When discussing the case of Rabone in his Judgment in Morahan, Popplewell LJ (at paragraph 49) pointed out that in Rabone the power to impose involuntary detention which the court held should have been exercised, meant that the difference for Ms Rabone between a voluntary and involuntary patient was, as Lord Dyson put it, one of form, not substance. That will not be the case for every voluntary psychiatric patient. Popplewell LJ rejected the submission that all voluntary psychiatric patients would fall into the same category for the purposes of the existence of the operational duty irrespective of their personal circumstances…
36. In my Judgment there is a very real and obvious difference between a child in secure accommodation who has thereby been deprived of her liberty, and a child in care who is free to come and go, notwithstanding that if she simply left the home, police assistance would have been sought to find and return her to the home. In my judgment the difference is one of substance, not merely one of form. I consider Dr Van Dellen goes too far when he describes Grace’s living arrangements as meaning that she is living in a gilded cage. It follows that I reject the challenge in Ground 1. In my judgment there is no automatic Article 2 enhanced investigative inquest simply by reason of Grace being a child in care who sadly took her own life.” [Emphasis added]
Mrs Justice Belcher went on hold at [40] that Article 2 would not be engaged as the care home was not a public authority for the purposes of Article 2.
Article 2 systemic duty
The Claimant argued that there was an arguable breach of the Article 2 systemic duty. Both the interested parties accepted for the purposes of the hearing that in light of the independent expert evidence there were systemic failures, and Mrs Justice Belcher noted that “They were plainly right to do so.”
The Claimant submitted that there was evidence of possible causative failings (i.e. failings that related to the particular death in question) as risk assessments were not tailored to individual needs and there were only generic strategies in place to address self-harming behaviour, which took no account of individual circumstances or history.
Mrs Justice Belcher held at [59] that “Given the high standard and high level of that care which was inevitably addressed to Grace’s individual circumstances and history, in my judgment it was open to the Coroner to conclude that it was not arguable that improved systems and procedures would have presented Grace with a real and substantial chance of survival.”
Scope of the Inquest
Lastly, Mrs Justice Belcher considered whether the Claimant was wrong to hold that the only material effect of an inquest being deemed not to be an Article 2 inquest is the conclusions that may be reached, rather than scope. She held at [74] that in practice there was no difference in scope of Article 2 and non-Article 2 inquests and accordingly “the practical solution is for inquests to address the broad circumstances especially if there is a possibility that Article 2 may become relevant in the future. In those circumstances the enquiry should be broad enough to cover the ground for the coroner or jury to make the necessary conclusions.”
Comment
This judgment is a (largely unsurprising) rejection of the argument that any suicide by a child in care would automatically result in an Article 2 inquest. It again illustrates the somewhat unsatisfactory state of the current law whereby the boundaries of ‘equivalence to detention’ are constantly being explored by way of repeated challenges to Coroner’s determinations on this issue. However, the final conclusion of Mrs Justice Belcher as to the requirement for inquest to address broad circumstances may be of some assistance to families at the pre inquest stage, albeit conversely it may reduce their chances of getting legal aid if Coroners adopt the approach of ‘It isn’t Article 2 officially, but will be treated in practice during the inquest as if it is.’
