NAA (by his litigation friend NAD) v An Independent Review Panel & Anor

A public authority must notify the Secretary of State under section 52 of the Modern Slavery Act 2015 where the available material provides reasonable grounds to believe that a person may be a victim of slavery or human trafficking. The threshold concerns possibility, not proof on the balance of probabilities. A local authority cannot postpone referral merely because it is making its own safeguarding inquiries. Article 4 ECHR may require reasonable protective steps where the authorities knew, or ought to have known, of a credible suspicion of trafficking. Those steps may include communicating relevant concerns and a Reasonable Grounds determination to a school involved in exclusion proceedings. An independent review panel is not automatically required to recommend reconsideration merely because it knows of material not before the governing body, particularly where the application is expressly confined to quashing the exclusion decision.

The claimant, a school pupil later determined to have been a victim of child criminal exploitation, was permanently excluded after selling drugs to another pupil and threatening that pupil. Before the incident, the local authority had received safeguarding information indicating a high risk of exploitation. The police subsequently referred the claimant to the National Referral Mechanism, and the Single Competent Authority made a positive Reasonable Grounds determination.

The claimant challenged the Independent Review Panel’s decision upholding the exclusion and alleged breaches by the local authority of section 52 of the Modern Slavery Act 2015 and article 4 ECHR. The central issues included the statutory referral threshold, the scope of the article 4 protective duty, pleading and delay, the effect of the Reasonable Grounds determination on the exclusion process, and whether the outcome was highly likely to have been the same.

1. Section 52. The court held that the local authority would have breached section 52 of the Modern Slavery Act 2015. The evidence, including a high-risk CCE assessment and a social-work assessment recording a serious risk of grooming, manipulation and exploitation, crossed the threshold of reasonable grounds to believe that the claimant might be a victim. The duty concerned possibility and did not require fact-finding on the balance of probabilities. The authority acted irrationally in treating its own inquiries as a reason not to refer the matter to the specialist decision-maker. Permission was nevertheless refused because the claim was brought out of time.
2. Article 4. Applying the principles in Rantsev and R (TDT), the court held that article 4 duties were triggered by the pre-existing credible suspicion and, in any event, by the positive Reasonable Grounds determination. The authority’s failure to notify the school of the exploitation concerns, and its failure to notify the school and governing body of the Reasonable Grounds determination, were breaches of the protective duty. Notification would have been a simple and proportionate operational measure. The duty was one of means, not result. The claimant was a victim for the purposes of section 7 of the Human Rights Act 1998, and the availability of the exclusion review process did not prevent judicial review of earlier harm.
3. Independent Review Panel. The challenge to the panel’s decision was arguable but failed on the merits. The panel knew of the Reasonable Grounds determination, but the claimant’s application expressly sought only quashing under section 51A(4)(c) of the Education Act 2002. The panel conscientiously addressed that case. It was not irrational for it to decline to recommend reconsideration under section 51A(4)(b), although a credible suspicion of trafficking was capable of being a relevant factor in exclusion decisions.
4. Section 31 and relief. The court could not conclude that the exclusion outcome would highly likely have been substantially the same if the relevant information had been communicated. The claimant was therefore entitled to declarations of breach. The court refused to direct a County Court assessment of damages because the declaration constituted just satisfaction and no realistic basis for damages had been shown.

Permission was refused on the section 52 ground for delay and on several unpleaded article 4 allegations. Time was extended for the three adequately pleaded article 4 breaches.

First-instance judicial review proceedings. The court refused permission on the section 52 ground and on several unpleaded article 4 grounds, granted permission on the remaining article 4 grounds and declared breaches, and granted permission to challenge the Independent Review Panel’s decision but dismissed that challenge on the merits.