R (Patton) v Assistant Coroner for Carmarthenshire & Pembrokeshire [2022] EWHC 1377 (Admin): Clarifying the general Article 2 ECHR duty

Kianna Patton was 16 years old when she took her own life. She had been under the care of Specialist-Child and Adolescent Mental Health Services in the community. At the time of her death, Kianna had been living with a friend whose mother had permitted her to use cannabis. Kianna’s mother, Ms Patton, sought assistance from the Council and Police prior to her daughter’s death.  She raised concerns specifically about her daughter’s accommodation and the effect of cannabis upon her mental health.

At a PIRH, Ms Patton submitted that the procedural investigative duty contained within Article 2 ECHR applied to the case. Ms Patton did not suggest that there had been any arguable breach of the state’s operational duties. Instead, she contended that there had been an arguable breach of the state’s general duty.

In arguing that the general duty applied to the relationship between the Council and Kianna, Ms Patton relied upon section 76 of the Social Services and Well-being (Wales) Act 2014. Section 76 requires local authorities to provide accommodation for children who are without parents, or who are lost or abandoned.

Ms Patton argued firstly that section 76 had required the Council to provide suitable accommodation, care and support to Kianna. Ms Patton then submitted that the duty under section 76 gave rise to a general Article 2 duty to put in place systems to protect Kianna’s well-being. That duty, Ms Patton argued, had been breached.

In a short ruling, the Coroner concluded that the section 76 duties were not owed to Kianna.  Responding to the legal framework as it had been presented by Ms Patton, the Coroner found that the general duty was not engaged and that the enhanced investigative duty under Article 2 would not apply to the proceedings.

Importantly, the Coroner approached the question of whether a general duty arose by reference to the factors contained within section 76. Having found that the section 76 duty did not apply, the Coroner concluded that the general Article 2 duty was not engaged.

Ms Patton was granted permission to judicially review the Coroner’s decision.

Mrs Justice Hill found that the Coroner’s approach had been fundamentally flawed. The general Article 2 ECHR duty exists far more widely than the circumstances advanced by Ms Patton, as was clear from Morahan v Assistant Coroner for West London [2021] EWHC 16603 (Admin). The application of the general duty should not have been made contingent upon satisfying the factors set out in section 76.

The matter was further complicated by a failure clearly to distinguish the question of the existence of a general duty, from the question of whether there had been any arguable breaches of that duty. Ms Patton effectively relied upon the Council’s breach of section 76 in support of both her submission that a duty was owed and it had arguably been breached.

The court concluded that the Coroner should have proceeded on the basis that the general duty was, in principle, applicable to the relationship between Kianna and the Council. There was no need for Ms Patton to show a breach of the section 76 duties in order for the general duty to be engaged.

Once that matter had been resolved, the focus of the Coroner’s enquiry should have been on whether there had been any arguable breaches of the general duty, bearing in mind the distinction between systemic and individual failings.

The final issue to assess would be whether there was a link between the breach and the harm caused – i.e. was there a “loss of a substantial chance of a different outcome”.

Having established that the Coroner’s reasoning was flawed, the court quashed the decision and remitted the case back to the Coroner to make the section 5(2) decision afresh.

The question of whether the enhanced Article 2 procedural obligation is engaged is often complex.  In these proceedings, that question had been made significantly more complicated by the arguments made at the PIRH. Mrs Justice Hill’s decision provides a helpful and lucid example of how to approach the issue of the general Article 2 ECHR duty.

Redmond Traynor