Children’s rights legal digest – March 2021

In February, the European Court of Human Rights awarded damages to two victims of trafficking whose human rights were breached by the UK. The Courtdecided unanimously that there had been a violation of Article 4 (prohibition of forced labour) and Article 6(1) (right to a fair trial) of the European Convention on Human Rights, when two Vietnamese children, VCL and AN, were prosecuted for drugs-related offences despite being identified as victims of trafficking.

The European Court of Human Rights awards damages to two child victims of trafficking

In 2009, VCL, then aged 15, and AN, then aged 17, were discovered on two different cannabis farms in England and were both arrested. During the police interview, VCL said that he had been smuggled into the UK by his adoptive father and was subsequently taken by two men to a cannabis farm. AN described being looked after by Vietnamese people after arriving in the UK and later being taken to a cannabis farm where he had been put to work without pay. AN also described doors to the farm being locked from the outside, said he thought that the farm was being guarded and that his life would be at risk if he stopped working.

At the time of VCL’s arrest the Crown Prosecution Service guidance identified Vietnamese children as a vulnerable group and advised prosecutors to “be alert to the possibility […] a young offender may actually be a victim of trafficking”. Despite this, the children’s claims and concerns expressed by children’s social care and specialist charities, neither VCL nor AN were referred for assessments as potential victims of trafficking. Both were charged with production of a controlled drug. Both pleaded guilty and received custodial sentences.

In the UK, decisions about who is recognised as a victim of modern slavery, including trafficking, are made by trained specialists in designated ‘competent authorities’. The two designed competent authorities for the UK are the UK Human Trafficking Centre (UKHTC) and the Home Office.*  

Following their convictions, assessments by competent authorities confirmed that both VCL and AN had been trafficked into the UK. VCL and AN appealed their convictions saying, among other things, that as victims of human trafficking they should not have been prosecuted. The Court of Appeal dismissed both appeals on the basis that the decision to prosecute had been justified but, at the same time, it reduced the length of VCL’s and AN’s custodial sentences. When VCL and AN applied for permission to file an appeal with the Supreme Court, permission was denied. They then applied to the European Court of Human Rights, claiming that UK authorities had failed to protect them as victims of trafficking (Article 4) and that they did not receive a fair trial (Article 6(1)).

Article 4 (Prohibition of forced labour: no one shall be held in slavery or servitude or required to perform forced or compulsory labour)

The Court concluded that while international law did not grant immunity from prosecution to victims of trafficking, if the authorities become aware that someone might be a victim, an assessment should be carried out by a properly qualified person. A decision to prosecute should be made only after such an assessment has been completed, especially in cases where the suspected victims of trafficking are children. If an assessment identifies the person as a victim of trafficking, the prosecution service “would need to have clear reasons which are consistent with the [international] definition of trafficking” to disagree with the outcome of the assessment.

The Court said that the fact that VCL and AN had been discovered on cannabis farms while still legally children should by itself have created a “credible suspicion” that they had been victims of trafficking. Even after assessments confirmed that VCL and AN were both victims of trafficking, the prosecution service upheld the decision to prosecute as correct because in their view VCL and AN had not been trafficked. The European Court decided that the Crown Prosecution Service had not given clear reasons for reaching such a conclusion and reiterated that states’ positive obligation under Article 4 encompasses not only prevention of trafficking but also protection of victims and investigation of suspected trafficking cases.

Article 6(1) (Right to fair trial: everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law)

The key issue examined by the Court was whether the failure to recognise VCL and AN as potential victims of trafficking led to them not having a fair trial. The Court decided that VCL’s and AN’s guilty pleas had not been made “in full awareness of the facts” because at the time they had not been assessed as potential victim of trafficking and that this had potentially prevented them from presenting evidence which might have helped their defence. Moreover, this fact had not been picked up and rectified by the Court of Appeal. Therefore, VCL’s and AN’s criminal proceedings were not fair and were in violation of Article 6(1) of the ECHR.

VCL and AN were each awarded 25,000 euros in (compensatory) damages, as well as 20,000 euros each for costs and expenses.

The judgment is especially significant because it was the first time that the European Court had considered the relationship between Article 4 of the ECHR and the prosecution of victims and potential victims of trafficking.

You can read more about the case in the ECtHR’s press release.

You can access the full judgment here.

* The roles of competent authorities are set out in national guidance. You can learn more about protecting children from trafficking and modern slavery here.

Using the European Convention on Human Rights to defend children’s rights

The European Convention on Human Rights (ECHR) protects the civil and political rights of all people who live in the UK, adults and children alike. It protects the right to liberty and security (Article 5), the right to a fair trial (Article 6) and the right to respect for private and family life (Article 8), and grants protection from torture or inhuman or degrading treatment (Article 3), protection from slavery and forced labour (Article 4) and protection from discrimination (Article 14).

Unlike most international treaties, the ECHR has direct effect in UK law because it has been made part of domestic law through the Human Rights Act 1998. This means that the ECHR is binding on all public bodies, including the government and local authorities. Section 6(1) of the Human Rights Act requires all public authorities, including schools, children’s social care, hospitals, the police, prisons and central government, to act compatibly with (to follow) Convention rights. Section 3 requires primary and secondary legislation to be interpreted and implemented as far as possible in a way which is compatible with Convention rights.

Breaches of the rights set out in the ECHR can be challenged in domestic courts, all the way to the Supreme Court. Where individuals have not succeeded in obtaining a remedy for alleged breaches through domestic courts, they can apply to take their case to the European Court of Human Rights (ECtHR). The ECtHR is the highest court for considering alleged violations of rights in the ECHR and the Human Rights Act requires UK courts and tribunals to “take into account” all judgments and decisions of the ECtHR.

Advocates can use the ECHR/Human Rights Act to challenge injustice and defend children and young people’s rights. Examples of advocacy issues that can be pursued using the ECHR include:
* The right of children living away from home to see and spend time with their family (Article 8);
* The right to protection against unlawful deprivation of liberty, which can include unlawful use of restrictive interventions (Article 5);
* Protection against inhuman or degrading treatment or punishment (Article 3).  

Note: the UK’s withdrawal from the EU has no bearing on the ECHR and its status as a source of law in the UK. This is because the ECHR is connected to UK’s membership of the Council of Europe, not the European Union.

Schedule 1 of the Human Rights Act 1998 contains the Articles of the ECHR.