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

The Court of Appeal dismissed an appeal by H against the judge's finding that, although Swindon Borough Council breached its statutory duties under section 47 of the Children Act 1989 by failing to make relevant inquiries, the council did not breach the protection (operational) duties under article 4 ECHR. The court accepted that article 4 was engaged (the Single Competent Authority had made a conclusive grounds finding of trafficking) but held that, on the evidence, the council had in fact accommodated, supported and taken reasonable steps to protect H from the risk of re-trafficking. The decision applied and analysed the three strands of state obligations under article 4 (systems, investigation and protection), considered Strasbourg and domestic authority (including Rantsev and R (TDT)), and refused to admit late evidence from the SCA.

Background and parties: H, a child at the relevant times and a recognised victim of trafficking, brought judicial review proceedings challenging Swindon Borough Council's failure to carry out appropriate inquiries and to discharge protection duties after being referred under the National Referral Mechanism. H alleged breach of section 47 of the Children Act 1989 and breach of article 4 of the European Convention on Human Rights (forced labour/trafficking). The case reached the Court of Appeal on H's appeal against the judge's dismissal of the article 4 claim. The proceedings originated in the Administrative Court where Michael Kent QC gave judgment ([2020] EWHC 3065 (Admin)).

Nature of the application (i): judicial review challenging the council's failure to carry out a child protection investigation under section 47 Children Act 1989 and alleging breach of article 4 ECHR protection duties. Damages for article 4 were sought below but not pursued on appeal.

Issues framed by the court (ii): (a) whether the court should admit fresh evidence from the Single Competent Authority obtained after the hearing below; (b) whether the judge erred in suggesting the council could regard the police and the SCA as principally responsible for operational and procedural duties; and (c) whether the judge was wrong to find no breach of article 4 ECHR.

Reasoning and disposition (iii): The Court of Appeal refused to admit the SCA materials because they could and should have been produced at the hearing below and the judge had refused their admission; there was no good reason to treat the request as a cross‑appeal. The court clarified that, while the council was not absolved of responsibility (local authorities are primary safeguarding agencies for child victims), the judge's reference reflected counsel's submissions and did not itself found a ground of appeal. On the substantive article 4 issue the court accepted the article 4 protection duty was engaged (SCA conclusive grounds) but held that the relevant question was whether the authority failed to take appropriate operational measures within its powers to remove the individual from risk. Although the council had failed to make some inquiries, H was in accommodation and receiving support from social workers, education and health professionals; the authority had, as a matter of fact, taken measures to protect him. Applying Strasbourg and domestic authority (including Rantsev, Kilic, Osman, and R (TDT)), the court concluded there was no breach of article 4 and dismissed the appeal. The court noted case-management difficulties created by the late amendment and compressed timetable.

The appeal is dismissed. The court refused to admit late SCA material, clarified that local authorities remain the primary safeguarding agency for child victims (but that the judge was reflecting opposing counsel's submission), and upheld the judge’s conclusion that, although the council breached its domestic statutory duty under section 47 Children Act 1989 by failing to make certain inquiries, it did not breach the operational/protection duty under article 4 ECHR because H had been accommodated, supported and reasonably protected in the circumstances.

Appeal from the Queen's Bench Division, Administrative Court (Michael Kent QC) [2020] EWHC 3065 (Admin). The proceedings originated in a claim for judicial review issued 20 December 2019; Lane J made an interim order directing the council to conduct an assessment on receipt of service. Permission to amend to add an article 4 challenge was granted and the matter was heard before Michael Kent QC, whose order and reasons were the subject of this appeal.