FATAL INCIDENTS: HUMAN RIGHTS AND THE “INDIRECT VICTIM”

The definition of dependants under the Fatal Accidents Act 1976 is set out in clear terms in the Act itself. In Daniel -v- St George’s Healthcare NHS Trust [2016] EWHC 23 (QB) Mrs Justice Lang DBE considered issues of eligibility when a claim is brought under the Human Rights Act and the ECHR.

KEY POINTS

• A former foster mother of a deceased person had sufficient contact and an ongoing relationship with the deceased person to be considered an indirect victim under s 7(1) of the Human Rights Act and Article 4 of the Convention.
• A former “foster brother” did not have a relationship sufficient to be an indirect victim. The relationship was akin to that of close friends. Such a relationship could give rise to the status of “indirect” victim

PRACTICE POINTS

• Neither of the claimants here would be considered dependants under the Fatal Accidents Act, however one of them had a right of action under the Human Rights Act.

THE CASE

The deceased (James Best) had died of natural causes in prison. The claimants brought an action against the Health Trust and Ambulance Service based on  allegations of delay and mistreatment.  The action failed in relation to both breach and causation. However the judge also considered the eligibility of the claimants to bring the action.

THE DISCUSSION OF “VICTIM STATUS”

In order to bring an action under the Human Rights Act the claimants had to establish that they were “vicims”.

Victim status

1. By subsection 7(1) of the HRA 1998, a person may only bring a claim if he is a “victim of the unlawful act” complained of. Subsection (7) provides that “a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act”.

2. Article 34 of the Convention provides that the court may receive applications from any person claiming to be the victim of a violation of a Convention right, but does not define the term “victim”. The status of “victim” is an autonomous concept which the ECtHR interprets independently of domestic law rules on capacity and standing. In principle, therefore, the class of victims of an Article 2 violation might well extend beyond the class of persons entitled to seek financial compensation for a death under domestic law. Although the Defendants relied upon the observations of Lord Scott in Savage v South Essex NHS Trust [2009] 1 AC 681, at 690G, where he doubted whether the class of victims could be so extended, Lord Dyson described those observations as incorrect in Rabone v Pennine Care NHS Trust [2012] 2 AC 72, at [48], and I respectfully agree.

3. The general rule is that a victim must show that he is affected in some way by the matter complained of. It is not necessary to show damage – this is primarily relevant to the assessment of just satisfaction under Article 41.

4. The “Practical Guide on Admissibility Criteria” (2015) 60 E.H.R.R. SE8 issued by the ECtHR, provides a useful summary of principles which have emerged from the case law. It is, of course, merely guidance.

“2. Categories of petitioners

“(a) Physical persons”

10. Applications can be brought only by living persons or on their behalf; a deceased person cannot lodge an application (Aizpurua Ortiz and Others v Spain, § 30; Dvoracek and Dvorackova v Slovakia § 41), even through a representative (Kaya and Polat v Turkey (dec.); Ciobanu v Romania (dec.)).“

…..

“3. Victim status

(a) Notion of “victim”

“15. The word “victim”, in the context of Article 34 of the Convention, denotes the person or persons indirectly affected by the alleged violation. Hence, Article 34 concerns not just the direct victim or victims of the alleged violation, but also any indirect victims to whom the violation would cause harm or who would have a valid and personal interest in seeing it brought to an end (Vallianatos and Others v Greece [GC], § 47). The notion of “victim” is interpreted autonomously and irrespective of domestic rules such as those concerning interest in or capacity to take action (Gorraiz Lizarraga and Others v Spain, § 35), even though the Court should have regard to the fact that an applicant was a party to the domestic proceedings (Aksu v Turkey [GC], § 52; Micallef v Malta [GC], § 48)… “

“16. The interpretation of the term “victim” is liable to evolve in the light of conditions in contemporary society and it must be applied without excessive formalism …..”

(b) Direct victim

“17. In order to be able to lodge an application in accordance with Article 34, an applicant must be able to show that he or she was “directly affected” by the measure complained of (Tanase v Moldova [GC], § 104; Burden v United Kingdom [GC], § 33. This is indispensable for putting the protection mechanism of the Convention into motion (Hristozov and Others v Bulgaria, § 73), although this criterion is not to be applied in a rigid, mechanical and inflexible way throughout the proceedings (Micallef v Malta [GC], § 45;Karner v Austria, § 25; Aksu v Turkey [GC], § 51).”

(c) Indirect victim

“18. If the alleged victim of a violation has died before the introduction of the application, it may be possible for the person with requisite legal interest as next-of-kin to introduce an application raising complaints relating to the death or disappearance (Varnava and Others v. Turkey [GC], § 112). This is because of the particular situation governed by the nature of the violation alleged and considerations of the effective implementation of one of the most fundamental provisions in the Convention system (Fairfield v United Kingdom (dec.)).“

“19. In such cases, the Court has accepted that close family members, such as parents, of a person whose death or disappearance is alleged to engage the responsibility of the State can themselves claim to be indirect victims of the alleged violation of Article 2, the question of whether they were legal heirs of the deceased not being relevant (Van Colle v United Kingdom, § 86.”

“20. The next-of-kin can also bring other complaints, such as under Articles 3 and 5 of the Convention on behalf of deceased or disappeared relatives, provided that the alleged violation is closely linked to the death or disappearance giving rise to issues under Article 2.”

“21. For married partners, see McCann and Others v United Kingdom [GC], Salman v Turkey [GC]; for unmarried partners, seeVelikova v Bulgaria; for parents, see Ramsahai and Others v Netherlands [GC], Giuliani and Gaggio v Italy [GC]; for siblings, seeAndronicou and Constantinou v Cyprus; for children, see McKerr v United Kingdom; for nephews, see Yasa v Turkey.”

“22. In cases where the alleged violation of the Convention was not closely linked to the death or disappearance of the direct victim, the Court has generally declined to grant standing to any other person unless that person could, exceptionally, demonstrate an interest of their own (Nassau Verzekering Maatschappij N.V. v Netherlands (dec.), § 20). See, for example, Sanles Sanles v Spain (dec.), which concerned the prohibition of assisted suicide in alleged reach of Articles 2, 3, 5, 8, 9 and 14 and where the Court held that the rights claimed by the applicant, who was the deceased’s sister-in-law and legal heir, belonged to the category of non-transferable rights and that therefore she could not claim to be the victim of a violation on behalf of her late brother-in-law; see also Bic and Others v Turkey (dec.) and Fairfield v United Kingdom (dec.). “

1. On analysis, applications by indirect victims in respect of Article 2 violations have been made in two capacities, which are conceptually distinct, though often combined – see e.g. Keenan v United Kingdom 33 E.H.R.R. 38, at [134]. The first is where the deceased’s next-of-kin is representing the estate or interests of the deceased. The second is where blood relatives, spouses or partners are claiming for their own pain, distress and bereavement at the ill-treatment of the deceased leading to his death. It was common ground that the Claimants were only pursuing this claim in the second capacity. I consider that they would not have been able to pursue the claim in the first capacity because they were not named by JB as his next-of-kin, when he was remanded in custody, in August 2011. The records showed that the First Claimant’s husband, Mr Godfrey Daniel, residing at an address in Hastings, was named by JB as his next-of-kin. He was contacted by the police after JB’s death and this was how the Claimants came to hear of his death.

2. I now turn to consider the basis upon which a person may qualify as an indirect victim and thus be able to apply on his own behalf for a remedy. As Lord Dyson said in Rabone v Pennine Care NHS Trust [2012] 2 AC 72, at [46]; “[t]he ECtHR has repeatedly stated that family members of the deceased can bring claims in their own right both in relation to the investigative obligation and the substantive obligations” in Article 2. A blood tie or marriage is not essential. An unmarried partner of the deceased was acknowledged as a victim in Velikova v Bulgaria App. No. 41488/98. There was evidence of an established relationship akin to marriage – they had lived together for 12 years; they had three young children together and the whole family was financially dependent upon him. In Morgan v Ministry of Justice [2010] EWHC 2248, Supperstone J. concluded that the deceased’s fiancée could fall within the class of “victim” though it would depend upon the nature and length of their relationship and whether they had a child together.

3. The Claimant submitted that the text underlined below from Supperstone J.’s judgment in Morgan at [70] was an appropriate test for me to apply. Supperstone J. said:

“It is clear from the decisions of the ECtHR that the Court takes a broad view for the purposes of determining whether a person is capable of claiming to be a “victim” of a breach of Article 2 of the Convention. The Strasbourg authorities suggest a test that involves consideration of whether the relationship between the applicant and the deceased is such that the applicant has “suffered gravely” as a result of serious violations [Veilkova v Bulgaria] and is “personally concerned” by them [Yasa v Turkey (1998) 28 EHRR 408]. Each case is to be determined on its particular facts. A family member as distant as a nephew can bring a claim; so too can a partner of the deceased, in particular if that person is also the parent of a child of the deceased. I have not been referred to any case where the applicant is a fiancée of the deceased, but in my view, such a person is capable of being a victim as falling into the category of persons who “suffered gravely” as the result of serious violations of Article 2. If the First Claimant was “merely in a relationship with the Deceased” whether that would suffice will have to be determined on the particular facts of the case. The nature and length of the relationship and whether the Second Claimant is the biological child of the Deceased will be important factors for consideration. If she is not biologically the Deceased’s daughter but “has been brought up on the understanding that she is” whether that is sufficient to make her a victim, again, will depend on the facts of the particular case…”

1. Whilst not intending any criticism of the passage underlined, I do not agree that it ought to stand alone as the test to be applied, because, when taken out of context of the rest of the judgment, it does not sufficiently explain the special basis upon which indirect victims have been permitted to apply in Article 2 claims and not others, and that so far they have been limited to next-of-kin and family members (including partners). The class of indirect victims has not included close friends, lovers, housemates, or colleagues from a common workplace or other institutions, such as a college or club. One can readily envisage circumstances in which such persons could “suffer gravely” and be “personally concerned” at the ill-treatment and death of their friend or colleague. Yet the Claimant’s counsel rightly does not suggest that the ECtHR would accept them as indirect victims. Some additional family tie or legal relationship appears to be required.

2. In my judgment, the likely approach of the ECtHR in determining the status of the Claimants in this case would be to consider all the facts and circumstances to assess:

i) the nature of the legal/family relationship between the Claimants and JB;

ii) the nature of the personal ties between the Claimants and JB;

iii) the extent to which the alleged violations of the Convention (1) affected them personally and (2) caused them to suffer;

iv) involvement in the proceedings arising out of JB’s death.

Family/legal relationships

1. The First Claimant and her husband were foster parents for JB for 3 years. He was aged 15 when he was placed with them by the local authority. He left when he turned 18 because he ceased to be a child in care and the foster placement terminated. As JB was born on 11 December 1973, the First Claimant thought it likely that his placement began in 1988 and ended in 1991, though she did not recall the precise dates.

2. The First Claimant said that JB did not know his natural parents and was adopted at age 18 months. The adoption broke down and he was placed in the care of the local authority. The local authority then placed him in foster care.

3. It was common ground that a local authority retains parental responsibility for a child in their care who is placed with foster parents. The child continues to be in care during the placement, and any decisions concerning the child are made by the local authority which retains responsibility for his welfare. Foster care is a valuable and flexible means of providing a home environment for children who would otherwise be in children’s homes. It can range from short term foster care, for a few weeks or months, to long term foster care for many years. Foster carers are paid by the local authority and they may have more than one foster child placed with them. The First Claimant confirmed that they were paid to care for JB but provided no details as to whether she had fostered other children before, during or after his placement.

4. Counsel have not been able to find any case in which, following a death alleged to be in violation of Article 2 and 3, a foster parent of the deceased has applied to be treated as a victim within Article 34.

5. In my view, the ECtHR would not be likely to treat foster parenting as automatically giving rise to a lifelong family/legal relationship analogous to a biological or adoptive parent, because foster parents do not have parental responsibility; foster placements are temporary and may be brief; and foster parents are providing a service to the local authority for reward. However, the ECtHR might accept that a foster parent was an indirect victim on the particular facts of the case. Some examples (by no means exhaustive), are (1) if the alleged Article 2 violation occurred during the currency of the foster placement; or (2) if the foster placement lasted for a very long period representing most of the child’s minority; or (3) if the foster parents and child had voluntarily entered into an informal parent/child relationship which transcended the limits of a conventional foster placement and continued after its termination.

6. The Second Claimant described himself as a “foster brother”, which is a concept recognised in the dictionary though it has no legal status. He lived with him in the family home during the 3 years of the foster placement. The Second Claimant was 9 years old when JB came to live with them.

7. As I have stated above, JB named Mr Daniel as next-of-kin. The First Claimant said in evidence that she recalled JB asking in 2000, before he left to work in Portugal, if “we” would be his next-of-kin and she “thought that would be all of us”. The implication was that the fact that only Mr Daniel was named was a mere technicality and she was de facto next-of-kin too. I do not agree. Mr Daniel was neither living with, nor married to, the First Claimant. They were divorced in about 1992. Mr Daniel was neither a party to this claim nor a witness. The First Claimant had not seen JB for 11 years at the time of his death, though they had telephone contact. According to the First Claimant, Mr Daniel was the “point of contact” for JB. After JB returned from Portugal in 2011, he went to visit Mr Daniel at his home in Hastings, where the Second Claimant was also living temporarily. So JB had seen Mr Daniel more recently than the First Claimant and, for all I know, there may also have other reasons why he preferred to name Mr Daniel as next-of-kin. In my view, JB’s express wishes should be respected, and his next-of-kin treated as Mr Daniel, not the First Claimant.

8. The Second Claimant did not assert that he considered himself to be JB’s next-of-kin.

Personal ties

1. The First Claimant’s evidence was that she treated JB as her son and part of her family during the foster placement. I observe that, as JB later asked Mr Daniel to be his next-of-kin, he must have formed a long-lasting bond with him too during the foster placement.

2. After JB left foster care, he came to visit the First Claimant from time to time and stayed with her for 6 months on one occasion. He became mentally ill and was admitted to a local hospital for a few months and returned to her home on discharge from hospital.

3. The First Claimant did not see him again after he left to live in Portugal in 2000. She planned to visit him with her sons, but did not do so because she was battling breast cancer, working full time, and caring for her elderly parents. Later, JB became unwell, and so a visit was further postponed. JB did not write or use the internet much, but they kept in contact by telephone. By the time he returned to the UK in 2011, she had moved to live in Cumbria. When she last spoke to him, he had been compulsorily admitted to a psychiatric unit under section 3 of the Mental Health Act 1983 for self-harm.

4. I consider it to be significant that she considered herself to be in loco parentis to him throughout the 16 years she knew him, and viewed the ongoing relationship as particularly important since he had no contact with either his natural or adoptive parents. The evidence indicates that JB felt the same way about her and Mr Daniel. Shortly before his death, he sent her a card signed “James, your 3^rd son”.

5. The Second Claimant’s evidence was that, during the foster placement, he looked up to JB as if he was an older brother and role-model. Despite the 6 year age gap, they spent much time together, with shared interests. After JB left, they remained in touch and the Second Claimant visited him frequently until JB moved to Portugal in 2011. The Second Claimant worked in Egypt for some of the time. So they only maintained contact by telephone, ringing each other at birthdays and Christmas. JB returned to live in the UK in about 2011. The Second Claimant met him on two occasions. JB was in poor health and had become an alcoholic. After he was remanded in custody, they exchanged letters, but the Second Claimant was in Egypt and so was not able to visit him. They considered each other to be foster brothers.

6. On considering the evidence as a whole, I accept that both Claimants maintained personal relationships with JB after the end of the foster placement. I accept that the First Claimant continued to view JB as her foster son, although if JB had been the First Claimant’s adopted or biological son, I consider that she would have maintained closer contact with him, judging by the closeness of her relationship with the Second Claimant. However, her relationship with him was comparable to many other family relationships which are valued, even though they are conducted at a distance, with only intermittent contact. There were understandable reasons, outlined above, why they found it difficult to meet in person. The Second Claimant also only had occasional contact with JB, for understandable reasons, but they remained in touch, and were important to one another.

The extent to which the alleged violations of the Convention (1) affected them personally and (2) caused them to suffer

1. As the Claimants did not live with JB, and were not in any way dependant upon him, his death had no practical impact upon them. However, I accept that it has caused them suffering. The First Claimant’s evidence was that she has been “devastated by JB’s death and the circumstances surrounding it”. She has had bereavement counselling. The Second Claimant’s evidence was that he has “struggled emotionally and mentally to come to terms” with the death and has had therapy and medication.

2. I consider that, as JB was only 37, and was not suffering from a life-threatening illness, his premature death would have shocked and upset them, no matter how it occurred. It is a natural reaction to question whether his life could have been saved if he had been given appropriate treatment in time. However, the First Claimant, in particular, has had a heightened emotional reaction to his death and the events surrounding it.

Involvement in the proceedings arising out of JB’s death

1. The First Claimant has taken a very active role in pressing for an investigation into the circumstances of JB’s death and criticising those whom she believes to be at fault. I gained the impression that she is a forceful personality. The Second Claimant seemed to have a secondary role, supporting his mother.

2. The First Claimant gave evidence at the Inquest. She has explained that Mr Daniel was unable to do so because of his poor health. Mr Bishop correctly pointed out that she did not fall within any of the specified categories of “interested person” under section 47 of the Coroners and Justice Act 2009 and so must have been treated by the Coroner as a person with a “sufficient interest” under sub-paragraph (m). The Second Claimant attended the Inquest.

3. The PPO report was sent to Mr Daniel as next-of-kin and the First Claimant then asked for a copy and challenged some of the findings. The Claimants and Mr Daniel were invited to visit the HMP Wandsworth and view JB’s cell. Only the Second Claimant wished to attend.

Conclusions on victim status

1. I am just persuaded that the ECtHR would be likely to be satisfied that the First Claimant was an indirect victim under Article 34 because:

i) The First Claimant and her then husband Mr Daniel had been JB’s foster parents for 3 years, which led to a long-standing parent/child relationship with JB which lasted until his death. This was particularly important to JB because he had no family of his own. The First Claimant considered that she was in loco parentis to JB throughout his life, and he described himself as “your 3^rd son” shortly before his death.

ii) The First Claimant has suffered acute distress as a result of JB’s death.

iii) The First Claimant has taken a very active role in proceedings arising out of JB’s death, in the role of foster mother.

1. I am not satisfied that the ECtHR would find that the Second Claimant was an indirect victim under Article 34. Unlike the First Claimant, he never had any formally recognised relationship or status in respect of JB. The status of “foster brother” is not recognised in UK domestic law or ECtHR case law. The Second Claimant was a young child when his parents fostered JB, and they only lived together for a relatively short period, many years prior to his death. Although they became close, and remained so until JB’s death, their relationship was akin to a close friendship between childhood school friends or family friends. On the authorities, this is not a sufficient basis upon which to found a claim as an indirect victim. The Second Claimant has suffered severe distress at JB’s death, but distress at the death of a friend is not a sufficient basis upon which to found a claim. The Second Claimant’s involvement in the proceedings after JB’s death has been a secondary one, as a support to his mother.”

Tags: Dependency, Fatal Accidents Act 1976