R (Plymouth City Council) v HM Coroner for Devon
| Jurisdiction | England & Wales |
| Judgment Date | 27 May 2005 |
| Neutral Citation | [2005] EWHC 1014 (Admin) |
| Date | 27 May 2005 |
| Court | Queen's Bench Division (Administrative Court) |
: [2005] EWHC 1014 (Admin)
Court and Reference: Administrative Court; CO/4280/04
: Wilson J
: P Storey QC and D Archer (instructed by Plymouth City Council Legal Department) for the claimant; W Hoskins (instructed by Withers LLP) for the defendant; J Eadie and K Gallafent (instructed by the Treasury Solicitor) for the Secretary of State for Education and Skills as the intervener.
: Whether Art 2 ECHR required a coroner to conduct a broad investigation into the role of protective agencies following the death of a child who was under an interim supervision order and who remained in his mother's care at his death; the nature of the state's duty to protect the right to life of a child living with a parent in the community.
: P, a nine month old boy, had died from bronchopneumonia. The uncontested medical evidence was that, although the illness was in its early stages, it had proved fatal because he was in a debilitated and dehydrated condition, and that he had suffered the dehydration in the last two days of his life.
At the time of his death P was in the care of his mother and her new cohabitant. They had failed to recognise the severity of P's illness and had taken no action, despite other people who had seen him in the course of his last day having expressed great concern about the severity of his illness and having suggested to them that he be taken to hospital. P's mother and her cohabitee had subsequently pleaded guilty to, and been convicted of, wilful neglect of P under s. 1 Children and Young Persons Act 1933.
Before P's death the applicant council had had substantial concerns about the parenting capacity of P's mother (who was a known drug abuser) and P and his siblings had been under an interim supervision order at the time of his death. Notwithstanding frequent concerns about the quality of the mother's care there had been no suggestion that the children's lives were ever at risk.
During P's life the local support agencies had provided a high level of support for the family, designed to protect the children, improve the capacity of the mother to provide care for them and enable the children's welfare to be monitored. During the 30 weeks of life spent by P at home: (a) a health visitor saw him on 27 occasions; (b) the Crisis Intervention Team made 47 successful visits to the home; (c) family support workers made 23 successful visits.
At a preliminary inquest hearing the council contended that any inquiry should be limited to events during the last two days of P's life. The coroner concluded that he had a duty to conduct a broader inquiry under the Human Rights Act 1998 and ruled that the investigation should extend to the role played by the statutory child protection agencies in relation to P during his life and, specifically, to whether, by act or omission, they had contributed to his death.
He held that:
(a) the statutory child protection agencies, as public authorities, had, or might have, failed to protect P's right to life under Art 2;
(b) a duty was therefore cast upon the state by Art 2 to conduct an investigation into whether any such agency had indeed infringed P's right to life ("the investigative duty"); and
(c) the investigative duty was not discharged by any other investigation which was being conducted, or could have been conducted, into the role played by the child protection agencies in relation to P, with the result that it fell to his court to discharge it.
The applicant council contended that determinations (a) and (c) were wrong in law and applied for judicial review.
Section A: Introduction
1. By this claim for judicial review Plymouth City Council challenges the lawfulness of a decision made by Mr Nigel Meadows, HM Coroner for the County of Devon, Plymouth and South West District, on 13 July 2004. His decision related to the scope of an inquest which, with a jury, he proposes to conduct into the death of a baby boy, who died on 16 July 2002 at the age of nine months and to whom I will refer by his first name, "Perrin". The coroner has formally opened the inquest; and the decision under challenge was reached at the end of two substantial preliminary hearings. Pending determination of this claim he has refrained from embarking on the main part of the inquest to which his decision relates.
2. At the time of his death Perrin, with his two sisters, was in the care of his mother and her new cohabitant. Even prior to his birth the social services department of Plymouth City Council (to which department I will refer as "Plymouth") had substantial concerns about the parenting capacity of the mother. Throughout Perrin's life Plymouth provided substantial professional support for the family and sought closely to monitor his well-being and that of his sisters. Indeed eight weeks prior to his death Plymouth issued an application under s. 31(1)(b) of the Children Act 1989 for an order placing Perrin and his sisters under its supervision; and five weeks prior to his death the family proceedings court in Plymouth made such an order on an interim basis.
3. The unanimous medical evidence is that the cause of Perrin's death was bronchopneumonia; that, although the illness was in its early stages, it had proved fatal because he was in a debilitated, and in particular a dehydrated, condition; and that he had suffered the dehydration in the course of the last two days of his life. There is no challenge to the evidence of one doctor that, had the mother and her cohabitant sought medical attention for Perrin even only ten hours prior to his death, his dehydration could have been treated and his death prevented. In due course the mother and her cohabitant pleaded guilty in the Crown Court to an offence of acting with cruelty towards Perrin by neglecting to take that course of action.
4. The decision under challenge was that the investigation to be conducted by the coroner with the jury should not, as Plymouth contended, be limited to events during the last two days of Perrin's life, when his dehydration as a result of diarrhoea and vomiting and then his bronchopneumonia had arisen; but rather that it should extend to the role played by the statutory child protection agencies (in particular, but not only, Plymouth) in relation to Perrin during his life and, specifically, to whether, by act or omission, they had contributed to his death.
5. A broadened inquest of that character is sometimes described as an inquest into "systemic neglect". But the coroner stressed that the phrase did not precisely reflect the inquest which he had decided to conduct. He said:
"The inquest would not be an analysis of the whole child protection system. Rather, the investigation looks at the operation of the system in each particular case, focusing on what information was, or should reasonably have been, known by the authorities and what action they took (or could have taken) as a result. The system is judged by its results, ie how it operated and whether any changes are required in order to avoid a similar consequence in the future."
6. The coroner's estimate, with which no one substantially disagrees, is that the broadened inquest which he has decided to conduct will require to be heard over four weeks.
7. The coroner's decision to hold the broadened inquest was based on his conclusion that he had a duty to do so under the Human Rights Act 1998. By virtue of s. 6(1) thereof, it is unlawful for a coroner's court (or indeed a statutory child protection agency), as a public authority, to act in a way which is incompatible with a right under the Convention for the Protection of Human Rights and Fundamental Freedoms 1950. Article 2 of the Convention provides:
"1. Everyone's right to life shall be protected by law"
8. The coroner held that:
(a) the statutory child protection agencies, as public authorities, had, or might have, failed to protect Perrin's right to life under Art 2;
(b) a duty was therefore cast upon the state by Art 2 to conduct an investigation into whether any such agency had indeed infringed Perrin's right to life ("the investigative duty"); and
(c) the investigative duty was not discharged by any other investigation which was being conducted, or could have been conducted, into the role played by the child protection agencies in relation to Perrin, with the result that it fell to his court to discharge it.
9. In the present proceedings Plymouth contends that each of the coroner's determinations at para 8(a) and (c) above was wrong in law. On balance, and notwithstanding what follows, it will be convenient to describe them as the first and second determinations respectively. Oddly, and through no fault of his own, the coroner made the second determination at the end of the first preliminary hearing and the first determination at the end of the second such hearing. At the first such hearing, which took place on 2 and 3 June 2004, the advocates were for some reason not ready to make submissions on the first issue and so the coroner acceded to an application to hear argument on the second issue upon anassumption that the proposition in the first determination was valid. On 3 June 2004 the coroner gave oral reasons, which have been transcribed, for the second determination. The second such hearing took place on 13 July 2004, at the end of which the coroner seems to have done no more than to announce the first determination. His reasons, carefully drawn and set in 90 paragraphs, were contained in a written ruling which followed with enviable speed, dated 22 July 2004.
10. The coroner wisely appointed "counsel to the inquest"; and, at the two preliminary hearings following which the determinations under challenge were made, Mr McFarlane QC (as he then was) and Mrs Burwin appeared in that role. They submitted that the coroner was indeed required by law to hold the broadened inquest. But they...
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