Case No. UKUT-00560-(IAC)

[2009] I AC 536 Lady Hale made some observations which are relied on. What she said so far as material was this, in paragraphs 8-9: “8. These and later cases show that the special vulnerability of children is relevant in two ways. First, it is a factor in assessing whether the treatment to which they have been subjected reaches the 'minimum level of severity' - that is, the high level of severity - needed to attract the protection of article 3. As the Court recently reiterated in the instructive case of Mubilanzila Mayeka and Kaniki Mitunga v Belgium (2006) 46 EHRR 449, para 48: ‘In order to fall within the scope of article 3, the ill-treatment must attain a minimum level of severity, the assessment of which depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim.’ Detaining a Congolese child of five, who had been separated from her family, for two months in an immigration detention facility designed for adults met that high threshold even though the staff had done their best to be kind to her. 9. The special vulnerability of children is also relevant to the scope of the obligations of the state to protect them from such treatment. Again, in Mubilanzila Mayeka and Kaniki Mitunga v Belgium, at para 53, the court reiterated, citing Z, A, and Osman, that: 18. Clearly that indicates that it is necessary to have particular regard to the vulnerability of children. What Lady Hale said was agreed to by Lord Brown but was not dealt with by the other three of their lordships who sat on that case and so we accept that the observations are obiter. Nonetheless they carry considerable weight and they coincide with the approach that has been indicated to be correct from the Convention on the Rights of the Child and we have no doubt that that is the approach that should be adopted. 19. That discrimination which has particular adverse effects can mean that there is persecution is undoubtedly so. An example given has been discrimination that prevents the access to employment or to education. But that that is not essential in order for persecution to be established is clear, Miss Knorr has referred in her skeleton argument to a decision of the Federal Court of Canada in