Children’s rights legal digest – June 2020

This issue examines the right to be protected from torture and inhuman or degrading treatment or punishment following a recent decision by the High Court which found the government’s ‘no recourse to public funds’ policy to be unlawful. We also look at the importance of intermediaries in supporting young people during criminal proceedings and ensuring their rights to participate effectively and receive a fair trial are effectively protected. 

Current ‘no recourse to public funds’ policy breaches the ECHR

The case involved an 8 year-old British boy whose mother, J, a Ghanaian national, came to the UK in 2009. In 2013, she was granted leave to remain in the UK on what is known as the ‘10-year route to settlement’. This route requires repeat applications for leave (permission) to remain in the UK which is granted for 2 ½ years at a time. It is also normally subject to a condition that the applicant has ‘no recourse to public funds’ (NRPF), meaning they are ineligible for almost all benefits, including those intended to maintain the basic welfare of children.

J works as a carer but because of the NRPF condition she and her son have periodically experienced destitution, including street homelessness. Before J’s latest application for leave, she compiled evidence to show that imposition of the NRPF condition would leave her destitute; despite this, NRPF was still imposed. This led to a judicial review claim that challenged this decision and the NRPF regime as a whole. It argued, in part, that the regime fails to ensure that an NPRF condition will not result in inhuman treatment contrary to Article 3 of the European Convention on Human Rights (ECHR).

Article 3 ECHR guarantees protection from torture as well as inhuman or degrading treatment. In a previous significant case, the House of Lords examined the point at which denial of support to asylum seekers might breach Article 3. The judgment found that “treatment is inhuman or degrading if, to a seriously detrimental extent, it denies the most basic needs of any human being”. It acknowledged that the threshold is high but that it “may be crossed if an [individual] with no means and no alternative sources of support, unable to support himself, is, by the deliberate action of the state, denied shelter, food or the most basic necessities of life”. The House of Lords also held that the government should act to avoid a breach of Article 3 ECHR.

The High Court found that the NRPF policy breaches Article 3 as it requires applicants to become destitute before they can apply for the NRPF condition not to be imposed, or to be lifted. The judgment emphasises the government’s obligation to prevent inhuman and degrading treatment, and not just react to it after it has already been suffered.

You can access the full judgment here.

Appointment of intermediary in criminal proceedings necessary to enable effective participation and ensure fair trial

In this case, the High Court quashed an earlier decision by a district judge not to appoint an intermediary for a 15 year-old boy, TI, awaiting trial at Bromley Youth Court. TI, who has been out of school since November 2017 and has had previous contact with the criminal justice system, is awaiting trial for charges of theft and breach of a criminal behaviour order.

A psychologist had recommended the appointment of an intermediary for TI’s trial due to his learning difficulties and detachment “from his family, education and society in general”, as he would not be able to engage with the trial process or understand the need to participate without assistance. TI had also been assessed by an intermediary who noted his reluctance to engage, poor concentration, and his struggle to explain events in sequence and difficulties in understanding.

The application to appoint an intermediary had previously been rejected for several reasons, including that the Youth Court is a specialist jurisdiction well-accustomed to dealing with vulnerable young people and could adapt its processes to enable participation; and that TI had appeared in court on four previous occasions and had been able to give evidence without assistance from an intermediary.

The High Court rejected these arguments, stating:

Where a defendant cannot participate effectively in the proceedings, whether in whole or in part, he will not have a fair trial. Particular problems may arise in cases involving vulnerable young defendants and a court must be vigilant to consider how issues of concentration and understanding may affect such a defendant’s ability to participate in his trial. […] where the defendant is under 18, the court is under a duty to “have regard to the welfare of the child or young person pursuant to Section 44(1) of the Children and Young Persons Act 1933.”

Criminal Practice Directions, which are binding on all courts, state that for defendants under the age of 18 the decision regarding an intermediary should be made on an individual basis, in the context of the circumstances of the particular case.

The judge ordered the appointment of an intermediary in TI’s trial and made several important points, including that:

  • specialism of the Youth Court does not mean that assistance from another professional cannot be provided;
  • even if appointment of an intermediary is rare, it does not mean that there is a high hurdle to overcome if this is necessary to ensure effective participation in the trial process; and
  • the fact that a defendant had not had an intermediary during previous court proceedings cannot serve to justify denying one now.

This challenge was supported by Just for Kids Law; you can access the full judgment here.

Article 3 of the European Convention on Human Rights

Article 3 of the European Convention on Human Rights (ECHR) states: No one shall be subjected to torture or to inhuman or degrading treatment or punishment. Torture is defined as any act by which severe physical or mental pain or suffering is intentionally inflicted on a person for a specific reason (such as to intimidate, punish or coerce them). Inhuman treatment entails a deliberate infliction of mental or physical suffering but its intensity is not severe enough to be defined as torture. The European Court of Human Rights (ECtHR) defines the term ‘degrading’ as causing feelings of fear and inferiority or causing a person to feel humiliated or debased. It has held that the age and vulnerability of a person are relevant factors in determining the minimum severity for Article 3 to be engaged.

The prohibition expressed in Article 3 is absolute and not qualified by the existence of specific factors or circumstances. This means that there is no scenario in which individual governments signed up to the ECHR can limit or restrict the applicability of Article 3 in their domestic laws.

Most cases that reach domestic courts and the ECtHR in relation to Article 3 breaches concern detention, such as in immigration settings or custodial settings, and detention for medical reasons (for instance in care homes and hospitals). The ECtHR has confirmed, however, that all circumstances of a case must be considered in order to determine whether Article 3 has been breached and cases such as the one described above and concerning the government’s NRPF policy demonstrate its relevance outside of detention settings too.

Finally, it is worth noting that prohibition of torture and inhuman or degrading treatment or punishment is enshrined in other treaties ratified by the UK government. This includes the UN Convention on the Rights of the Child 1989 (Article 37), the International Covenant on Civil and Political Rights 1966 (Article 7) and the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1987.