H (R on the application of) v Swindon Borough Council

Article 4 imposes systems, investigation and protection duties on public authorities in relation to trafficking. The protection duty arises where authorities knew or ought to have known of circumstances creating a credible suspicion that an identified person had been trafficked or faced a real and immediate risk of trafficking or exploitation. It requires appropriate measures within the authority’s powers, without imposing an impossible or disproportionate burden. A breach of the statutory inquiry duty under the Children Act 1989 does not automatically establish an Article 4 breach. The court must assess the protective measures actually taken. Where a child has been accommodated, supported and in fact protected from the identified risk, a failure to make additional inquiries may not amount to a breach.

H, an unaccompanied asylum-seeking child and confirmed victim of modern slavery, challenged Swindon Borough Council’s failure to undertake a section 47 assessment and to investigate the risks of further trafficking. The Administrative Court, in [2020] EWHC 3065 (Admin), found a breach of the council’s statutory duty but dismissed H’s claim under Article 4 of the ECHR. H appealed only the Article 4 decision. The appeal concerned the council’s responsibilities, the relevance of inquiries that had not been made, and whether the protective measures actually provided to H prevented any breach.

Appeal dismissed. The Court of Appeal refused to admit fresh evidence from the Single Competent Authority. The material could have been obtained for the hearing below, had been refused by the judge after the hearing, and the council had not appealed that ruling.

1. The judge’s statement that the police and the Single Competent Authority were principally concerned with the operational and procedural duties required clarification. The police and the Single Competent Authority had principal functions concerning the detection, prevention and prosecution of criminality. However, the local authority remained the primary service provider responsible for safeguarding and responding to the needs of child victims of trafficking under the Children Act 1989 and relevant guidance. The clarification did not itself justify allowing the appeal.
2. The parties accepted that Article 4 imposes systems, investigation and protection duties. The protection duty is engaged where authorities knew or ought to have known of circumstances giving rise to a credible suspicion that an identified person had been trafficked or faced a real and immediate risk of trafficking or exploitation. The authority must take appropriate measures within its powers, subject to the need not to impose an impossible or disproportionate burden. The threshold is high and fact-sensitive.
3. A failure to make relevant inquiries may in some circumstances breach Article 4, and proof of subsequent loss or re-trafficking is not always required. However, a breach of section 47 of the Children Act 1989 does not automatically establish a breach of Article 4. The court must examine the protective measures actually taken and must not combine dicta from different authorities to produce an automatic result.
4. Although the council could have made further inquiries, H had been accommodated, supported and protected from the risks of re-trafficking. His needs and vulnerabilities had been addressed in the statutory assessment. The judge was therefore entitled to find no infringement of Article 4.
5. The court also observed that case management in protection-duty claims should address the issues, evidence and need for oral evidence at an early stage.

• Court of Appeal (Civil Division) dismissed H’s appeal and refused admission of the fresh evidence.
• Administrative Court, Deputy High Court Judge, [2020] EWHC 3065 (Admin), found a breach of the section 47 statutory duty but dismissed the Article 4 claim.