E (a child), Re (Northern Ireland)

The House rejected the appellant's challenge that the police breached the State's positive obligation under Article 3 of the European Convention on Human Rights to protect a child from inhuman or degrading treatment. The court accepted that some conduct by the loyalist protesters reached the threshold of inhuman or degrading treatment but held that the Article 3 positive obligation requires the State to take measures that are reasonable and proportionate in all the circumstances rather than to adopt an absolute duty to prevent such treatment. The court applied the proportionality approach developed in Huang, Daly and Denbigh rather than the narrower Smith/Wednesbury standard and concluded that, on the evidence, the police took measures which were within the range of reasonable and proportionate options available to them. The court also held that the mother could properly bring proceedings on behalf of her child and that no unlawful discrimination contrary to Article 14 (taken with Article 3) had been shown.

This was an appeal by a mother seeking declarations that the police and the State had breached Convention rights in their handling of sustained loyalist protests outside Holy Cross Girls' Primary School in north Belfast during June–November 2001. The principal relief sought was that the police had failed in their positive obligation under Article 3 (inhuman or degrading treatment) to protect the appellant's young daughter and that they had discriminated against the child and her mother contrary to Article 14 taken with Article 3. The claim was brought by way of judicial review after an initial dismissal in the High Court (Kerr J, 16 June 2004) and dismissal of the subsequent appeal by the Court of Appeal ([2006] NICA 37).

The facts were that a sustained and intimidating series of protests took place on Ardoyne Road, involving missiles, obscene posters and sectarian abuse that made the daily walk to school a frightening and harmful experience for the children. The police adopted a strategy of protecting the group of parents and children by forming an escorted corridor, deploying large numbers of police and soldiers and incurring injuries and substantial expense, rather than forcibly dispersing the protesters at the outset because of a judged risk of escalation and wider disorder.

The House framed the legal issues as:

• whether the mother could bring proceedings on behalf of her child;
• whether the treatment of the child reached the Article 3 threshold;
• whether Article 3 imposed a positive obligation to protect against third-party ill-treatment in the circumstances;
• if so, whether the police satisfied that positive obligation; and
• whether Article 14 (non-discrimination) was engaged in conjunction with Article 3.

The court accepted that the mother could bring the claim for her vulnerable child and that certain conduct of the protesters amounted to inhuman or degrading treatment. On the content of the State's positive obligation the House rejected submissions that Article 3 imposes an absolute duty to prevent such treatment whenever it is within the State's power to do so. Drawing on Strasbourg jurisprudence (notably Osman and post-Osman cases) and the domestic authorities on proportionality (Huang, Daly, Denbigh), the court held that the standard is what the authorities reasonably and proportionately did in all the circumstances. The House assessed the police evidence and intelligence, the risks of wider violence, the operational difficulties of making arrests in a volatile situation, and the steps actually taken (escorted passage, screening attempts, negotiation and eventual de-escalation). It concluded those measures fell within the range of reasonable and proportionate responses and that there was no breach of Article 3. The Article 14 complaint was rejected for want of evidence that the police treated the child and parents less favourably for sectarian reasons. The court also held that, while the United Nations Convention on the Rights of the Child and the best-interests principle are relevant considerations, they did not alter the outcome on the Article 3 assessment.

Appeal dismissed. The House held that (i) the mother could bring the proceedings on behalf of her child; (ii) some of the protesters' conduct amounted to inhuman or degrading treatment but (iii) the Article 3 positive obligation requires reasonable and proportionate measures, not an absolute duty to avert all such treatment; and (iv) on the evidence the police measures were within the range of reasonable and proportionate responses and there was no breach of Articles 3 or 14.

High Court (Kerr J) — judicial review dismissed, 16 June 2004; Court of Appeal — appeal dismissed, [2006] NICA 37 (19 October 2006); House of Lords — appeal dismissed, [2008] UKHL 66 (12 November 2008).