Children Rights Alliance For England v SS For Justice

Summary: This case concerned an application for judicial review of the refusal of the Secretary of State to provide information about the illegal use of restraint techniques on children who had been detained in Secure Training Centres. Previous cases had clearly established that the use of restraint in these centres had been wrongly thought to be lawful by the government and by the private companies running the centres. There are undoubtedly many children who were detained who were also subject to unlawful physical restraint, and who do not realise that is the case: the Claimants wanted to be given information about these children in order that they could seek redress in their particular cases. The Court of Appeal refused to declare that the Secretary of State was under a duty at common law or under the ECHR to hand over that information, expressing concern that this would amount to saying that in some circumstances, the State, as a potential defendant to a civil suit must declare itself as such. This would be 'discordant with the common law's adversarial system of justice' and was not appropriate where the Secretary of State was not responsible for the trainees' ignorance of their rights and had not tried to impede their access to justice. Not inviting people to sue you was rather different from hindering their attempts to do so. While the Secretary of State might have a duty to tell people who asked for details of when and where they were detained, there was no duty to tell them about the 'legal quality' of the acts done to them.

Comment: The case is of interest to practitioners in the Court of Protection because of its potential application where there have been failures to comply, for example, with the deprivation of liberty safeguards. It suggests that there may not be a duty on statutory bodies to inform people that their Article 5 rights have been violated. This could be of particular relevance when the Supreme Court gives judgment in the Cheshire West and P and Q cases later this year, if the approach set out by the Court of Appeal in those cases is not followed.