Information Note on the Court’s case-law 226
February 2019
Khan v. France - 12267/16
Judgment 28.2.2019 [Section V]
Article 3
Degrading treatment
Precarious living conditions of unaccompanied foreign minor in a shantytown and failure to execute judicial placement order: violation
Facts – The applicant, an unaccompanied foreign minor, had lived for six months in the southern section of the “lande de Calais” site when aged twelve. Since he had not been taken into care by the authorities like most unaccompanied foreign minors, he lived in a hut.
On 19 February 2016 a non-governmental organisation applied to the Children’s Judge for the applicant’s provisional placement. By order of the same day, the Children’s Judge, noting that the applicant had no legal representatives in France, appointed a temporary representative. By order of 22 February 2016 he ordered the applicant’s placement with the child welfare department in order to provide him with accommodation and enable him to be reunited with members of his family living in the United Kingdom, within one month.
The applicant submitted that neither the département of Pas-de-Calais nor the Prefecture had taken action to protect him. Therefore, after the demolition of his hut during the operations to dismantle the southern section on 2 March 2016, the applicant moved to a “makeshift shelter” in the northern section. During the week of 20 March 2016 he left the “lande de Calais” and illegally entered England.
Law – Article 3 (substantive limb): Given the authorities’ failure to provide him with care and despite the support which he had obtained from non-governmental organisations present on the “lande de Calais” site, for six months the applicant had lived in an environment manifestly unsuitable for children, and characterised by insalubrity, precariousness and insecurity. The failure to provide for the applicant had worsened after the dismantling of the southern section of the site, owing to the demolition of the hut in which he had been living and the general deterioration of living conditions on the site. Moreover, it was because of the hazardous situation facing the applicant that the Children’s Judge had ordered his placement with the child welfare department on 22 February 2016.
Before the applicant’s placement order, the competent authorities had not even identified the applicant as an unaccompanied foreign minor even though he had been on the “lande de Calais” site for several months and as a young child he should have been very conspicuous. The means employed to identify unaccompanied foreign minors present on the site had been inadequate.
Accordingly, although the applicant would have accepted official protection, as a twelve-year-old child with limited knowledge of the French language it was not for him personally to take the administrative steps necessary to obtain his placement. Nor could the non-governmental organisations which had voluntarily supported the applicant, the lawyer who had represented him in the proceedings resulting in the order of 22 February 2016, or the temporary representative who had been appointed on 19 February 2016, be criticised for failing to accompany him to the officially designated reception centre, given that that had manifestly been the responsibility of the authorities.
The domestic authorities had been facing a complex task, having regard in particular to the number of persons present on the “lande de Calais” at the material time, as well as the difficulty of identifying unaccompanied foreign minors among those persons and of defining and implementing a mode of care provision suited to their situation, especially as some of the children had been reluctant to accept such provision. However, since the authorities had failed to enforce the applicant’s provisional placement order, they had not done all that could reasonably be expected of them to fulfil their obligation to protect and provide care for the applicant, a twelve-year-old unaccompanied foreign minor unlawfully present in the national territory, who therefore belonged to one of the most vulnerable categories in society.
The combination of the precariousness of the child-unfriendly environment in which the applicant had thus lived for several months in the “lande de Calais” shantytown and the non-enforcement of the Children’s Judge’s order designed to protect the applicant had amounted to degrading treatment.
Conclusion: violation (unanimously).
Article 41: EUR 15,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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