TP AND KM V UNITED KINGDOM [2001] ECHR 28945/95
FACTS:-
The Applicants alleged that KM had been unjustifiably taken into care and separated from her mother, TP and that they had had no access to court or effective remedy in respect of that interference with their rights. TP had given birth to her daughter, KM in January 1983. Between 1984 and 1987, the local authority, the London Borough of Newham suspected that KM was being sexually abused, as a result of a persistent urinary tract infection and because of her behaviour. She had told a social work that TP’s boyfriend had “hurt my bum.” There were further investigations and eventually in November 1987, the local authority was granted a place of safety order over KM with limited access granted to TP. In 1988 TP had a further son, but the local authority did not apply to remove him from her care. In November 1988 the local authority recommended that KM be returned to the care of her mother. This was following the disclosure of the transcript of a video interview with KM, in which she had denied any abuse. In November 1989, the care order was discharged. It was alleged by the Applicants that this transcript should have been disclosed when the first emergency place of safety application in November 1987 was made.
In November 1990, the Applicants issued proceedings against the local authority in negligence. The proceedings were struck out at first instance and on appeal. The majority in the Court of Appeal held that there could be no claim for breach of statutory duty in respect of sections 1 and 18 of the Child Care Act 1980. The case then came to the House of Lords as one of the X and Others v Bedfordshire [1995] 3 All ER 353 group of cases, where again the decision of the Court of Appeal was upheld. The Applicants applied to the European Court of Human Rights alleging a breach of Articles 8, 6 and 13 of the Convention.
HELD:-
The European Court of Human Rights (ECHR) considered the relevant domestic law and practice in England and Wales. This included:-
The ECHR also considered the tort of negligence and its three elements, duty of care, breach of duty and damage. In the case of Caparo Industries v Dickman [1990] 2 AC 605 it was said that in order to show a duty of care, the Claimant had to satisfy a threefold test:-
X v Bedfordshire had decided that local authorities could not be sued for negligence or breach of statutory duty in respect of the discharge of their functions concerning the welfare of children. However there had been two further cases since that time:-
W and Others concerned claims made by a mother and father who had agreed to act as foster parents. The Defendant local authority placed a foster child with them who was a known sexual abuser, and he went on to abuse their children. The court at first instance struck out the parents’ claims but not those of the children and the decision was upheld by the Court of Appeal. The Court of Appeal said that it was arguable that the giving of information to the parents fell outside the ambit of the local authority’s discretion. The Defendant had already conceded that the damage was foreseeable and there was sufficient proximity. However it was not just and reasonable to impose a duty of care on the local authority in relation to the parents.
However on appeal by the parents, the House of Lords held that it was impossible to say that the psychiatric injury allegedly suffered by the parents, was outside the range of psychiatric injury recognised by the law. Neither was it unarguable that the local authority had owed a duty of care to the parents.
In Barrett, the Claimant had been in care from the age of ten months to seventeen years and alleged that the local authority had failed to safeguard hi welfare. The House of Lords held that the decision in X v Bedfordshire did not prevent a claim in negligence being brought against the local authority where the Claimant was already in the care of that authority.
The ECHR also considered Order 18 Rule 19 of the Rules of the Supreme Court, which provided for a claim to be struck out if it disclosed no reasonable cause of action.
Here there was an alleged violation of Article 8 of the Convention:-
“1.Everyone has the right to respect for his….family life…”
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The ECHR considered each party’s submissions. It was not disputed that the measures by which KM had been taken into care disclosed an interference with her rights under Article 8. The question was whether this interference complied with the requirements of the second paragraph of Article 8. In this case it appeared that the removal of KM had been in accordance with the law, since it had been pursued under Section 28 of the Children and Young Persons Act 1969.
The removal of KM and the subsequent measures also were clearly aimed at protecting the health or morals as well as the rights and freedoms of others. In relation to whether the measures were necessary in a democratic society the ECHR had to consider whether, in the light of the case as a whole, the reasons adduced to justify them were relevant and sufficient. Domestic authorities enjoyed a wide margin of appreciation, in particular when assessing the necessity of taking a child into care. The decision making process had to be fair and afford due respect to the interests safeguarded by Article 8. In particular the parents had to be involved in the decision making process. The ECHR had previously found that failure to disclose relevant documents to parents during the care proceedings might mean a breach of Article 8.
The actual decision to take out a place of safety order was supported by relevant and sufficient reasons. The ECHR was not persuaded that the mistakes made by social workers in misinterpreting what KM was saying deprived that decision of legitimacy. KM was less than five at the time and could not speak in grammatical sentences. The process of questioning her was very sensitive indeed. Neither did the place of safety order pose any disproportionate obstacle to TP’s ability to challenge the removal of her daughter into care.
However the ECHR did consider that it was essential that a parent be placed in a position where he or she might obtain access to information which was relied upon by the authorities in taking measures of protective care, although that right was not absolute. It was not the sole responsibility of the parent to obtain that information.
Therefore there had been a breach of Article 8 of the Convention.
In relation to Article 6 this stated:-
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
The Applicants claimed that the decision of the House of Lords in X v Bedfordshire deprived them of access to the court as the exclusionary rule for claims against social services prevented their claims from being decided on the facts.
The ECHR said that the Applicants could not have been prevented from bringing their claims before a court given that they reached the House of Lords and were well able to bring their claims. Nor was the ECHR persuaded that the Applicants’ claims were rejected due to the application of an exclusionary rule. The House of Lords had applied ordinary principles of negligence law. Their decision did end the case without the factual matters being determined on the evidence, but if there was no basis for the claim, the hearing of evidence would have been very expensive. The Applicants’ claims were properly and fairly examined in light of the applicable domestic legal principles concerning the tort of negligence.
Therefore there was no violation of Article 6 of the Convention.
In relation to Article 13, this stated:-
“Everyone whose rights and freedoms as set forth in the Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The ECHR considered that, where an arguable breach of one or more of the rights under the Convention was in issue, there should be available to the victim a mechanism for establishing any liability of State officials or bodies for that breach. There had already been a finding of a violation of Article 8, in relation to the non-disclosure of the video interview of KM. In these circumstances, the exercise of the court’s powers to return KM almost a year after the first emergency place of safety order, was not an effective remedy. It did not provide redress for the psychological damage allegedly flowing from the separation over this period. The possibility of applying to the Local Government Ombudsman or exercising their rights under the statutory complaints procedure did not provide any enforceable right to compensation.
The ECHR found that in this case the Applicants did not have available to them an appropriate means for obtaining a determination of their allegations that the local authority breached their right to respect to family life and the possibility of obtaining an enforceable award of compensation.
Therefore there had been a violation of Article 13 of the Convention.
In relation to damages the sum of £10,000 would be awarded to each Applicant, together with £25,000 by way of costs.
FACTS:-
The Applicants alleged that KM had been unjustifiably taken into care and separated from her mother, TP and that they had had no access to court or effective remedy in respect of that interference with their rights. TP had given birth to her daughter, KM in January 1983. Between 1984 and 1987, the local authority, the London Borough of Newham suspected that KM was being sexually abused, as a result of a persistent urinary tract infection and because of her behaviour. She had told a social work that TP’s boyfriend had “hurt my bum.” There were further investigations and eventually in November 1987, the local authority was granted a place of safety order over KM with limited access granted to TP. In 1988 TP had a further son, but the local authority did not apply to remove him from her care. In November 1988 the local authority recommended that KM be returned to the care of her mother. This was following the disclosure of the transcript of a video interview with KM, in which she had denied any abuse. In November 1989, the care order was discharged. It was alleged by the Applicants that this transcript should have been disclosed when the first emergency place of safety application in November 1987 was made.
In November 1990, the Applicants issued proceedings against the local authority in negligence. The proceedings were struck out at first instance and on appeal. The majority in the Court of Appeal held that there could be no claim for breach of statutory duty in respect of sections 1 and 18 of the Child Care Act 1980. The case then came to the House of Lords as one of the X and Others v Bedfordshire [1995] 3 All ER 353 group of cases, where again the decision of the Court of Appeal was upheld. The Applicants applied to the European Court of Human Rights alleging a breach of Articles 8, 6 and 13 of the Convention.
HELD:-
The European Court of Human Rights (ECHR) considered the relevant domestic law and practice in England and Wales. This included:-
- Section 28(1) of the Children and Young Persons’ Act 1969 - power to take a child into a place of safety
- Sections 1 and 2 of the Child Care Act 1980 - duty of local authority to take care for children)
- Section 44 of the Children Act 1989 - replacing Section 28(1) of the 1969 Act
- Part III of the Local Government Act 1974 - complaint to a local authority for maladministration
- Wardship – the power of the High Court to make a child a ward of court
The ECHR also considered the tort of negligence and its three elements, duty of care, breach of duty and damage. In the case of Caparo Industries v Dickman [1990] 2 AC 605 it was said that in order to show a duty of care, the Claimant had to satisfy a threefold test:-
- That the damage to the Claimant was foreseeable
- That the Claimant was in an appropriate relationship of proximity to the Defendant
- That it was fair, just and reasonable to impose liability on the Defendant.
X v Bedfordshire had decided that local authorities could not be sued for negligence or breach of statutory duty in respect of the discharge of their functions concerning the welfare of children. However there had been two further cases since that time:-
- W and Others v Essex County Council [1998] 3 All ER 111
- Barrett v London Borough of Enfield [1999] 3 WLR 79
W and Others concerned claims made by a mother and father who had agreed to act as foster parents. The Defendant local authority placed a foster child with them who was a known sexual abuser, and he went on to abuse their children. The court at first instance struck out the parents’ claims but not those of the children and the decision was upheld by the Court of Appeal. The Court of Appeal said that it was arguable that the giving of information to the parents fell outside the ambit of the local authority’s discretion. The Defendant had already conceded that the damage was foreseeable and there was sufficient proximity. However it was not just and reasonable to impose a duty of care on the local authority in relation to the parents.
However on appeal by the parents, the House of Lords held that it was impossible to say that the psychiatric injury allegedly suffered by the parents, was outside the range of psychiatric injury recognised by the law. Neither was it unarguable that the local authority had owed a duty of care to the parents.
In Barrett, the Claimant had been in care from the age of ten months to seventeen years and alleged that the local authority had failed to safeguard hi welfare. The House of Lords held that the decision in X v Bedfordshire did not prevent a claim in negligence being brought against the local authority where the Claimant was already in the care of that authority.
The ECHR also considered Order 18 Rule 19 of the Rules of the Supreme Court, which provided for a claim to be struck out if it disclosed no reasonable cause of action.
Here there was an alleged violation of Article 8 of the Convention:-
“1.Everyone has the right to respect for his….family life…”
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The ECHR considered each party’s submissions. It was not disputed that the measures by which KM had been taken into care disclosed an interference with her rights under Article 8. The question was whether this interference complied with the requirements of the second paragraph of Article 8. In this case it appeared that the removal of KM had been in accordance with the law, since it had been pursued under Section 28 of the Children and Young Persons Act 1969.
The removal of KM and the subsequent measures also were clearly aimed at protecting the health or morals as well as the rights and freedoms of others. In relation to whether the measures were necessary in a democratic society the ECHR had to consider whether, in the light of the case as a whole, the reasons adduced to justify them were relevant and sufficient. Domestic authorities enjoyed a wide margin of appreciation, in particular when assessing the necessity of taking a child into care. The decision making process had to be fair and afford due respect to the interests safeguarded by Article 8. In particular the parents had to be involved in the decision making process. The ECHR had previously found that failure to disclose relevant documents to parents during the care proceedings might mean a breach of Article 8.
The actual decision to take out a place of safety order was supported by relevant and sufficient reasons. The ECHR was not persuaded that the mistakes made by social workers in misinterpreting what KM was saying deprived that decision of legitimacy. KM was less than five at the time and could not speak in grammatical sentences. The process of questioning her was very sensitive indeed. Neither did the place of safety order pose any disproportionate obstacle to TP’s ability to challenge the removal of her daughter into care.
However the ECHR did consider that it was essential that a parent be placed in a position where he or she might obtain access to information which was relied upon by the authorities in taking measures of protective care, although that right was not absolute. It was not the sole responsibility of the parent to obtain that information.
Therefore there had been a breach of Article 8 of the Convention.
In relation to Article 6 this stated:-
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
The Applicants claimed that the decision of the House of Lords in X v Bedfordshire deprived them of access to the court as the exclusionary rule for claims against social services prevented their claims from being decided on the facts.
The ECHR said that the Applicants could not have been prevented from bringing their claims before a court given that they reached the House of Lords and were well able to bring their claims. Nor was the ECHR persuaded that the Applicants’ claims were rejected due to the application of an exclusionary rule. The House of Lords had applied ordinary principles of negligence law. Their decision did end the case without the factual matters being determined on the evidence, but if there was no basis for the claim, the hearing of evidence would have been very expensive. The Applicants’ claims were properly and fairly examined in light of the applicable domestic legal principles concerning the tort of negligence.
Therefore there was no violation of Article 6 of the Convention.
In relation to Article 13, this stated:-
“Everyone whose rights and freedoms as set forth in the Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The ECHR considered that, where an arguable breach of one or more of the rights under the Convention was in issue, there should be available to the victim a mechanism for establishing any liability of State officials or bodies for that breach. There had already been a finding of a violation of Article 8, in relation to the non-disclosure of the video interview of KM. In these circumstances, the exercise of the court’s powers to return KM almost a year after the first emergency place of safety order, was not an effective remedy. It did not provide redress for the psychological damage allegedly flowing from the separation over this period. The possibility of applying to the Local Government Ombudsman or exercising their rights under the statutory complaints procedure did not provide any enforceable right to compensation.
The ECHR found that in this case the Applicants did not have available to them an appropriate means for obtaining a determination of their allegations that the local authority breached their right to respect to family life and the possibility of obtaining an enforceable award of compensation.
Therefore there had been a violation of Article 13 of the Convention.
In relation to damages the sum of £10,000 would be awarded to each Applicant, together with £25,000 by way of costs.