Z V UNITED KINGDOM (2001) 34 EHRR 97
FACTS:-
The Applicants were four siblings:-
Z, a girl born in 1982
A, a boy born in 1984
B, a boy born in 1986
C, a girl born in 1988
The family was referred to social services in October 1984 due to concerns about the children, who were reported to be stealing food. Visits were made by social services, but the file was closed. In September 1988 a neighbour reported that the children were locked outside the house for most of the day. In April 1989, the police reported that the children’s bedrooms were filthy and their doors locked. The children’s head teacher expressed concerned in May 1989 and in June 1989, the NSPCC made a referral. In August 1989, there was a complaint by the maternal grandmother. In October 1989, social services decided that there was no need to take action. In the same month, the police again found the house in a filthy state and in December 1989 the health visitor requested that the four older children be placed on the at risk register. Two of the children had also alleged physical abuse to their head teacher. There was some improvement by March 1990 but two of the children were still stealing food. At a professionals’ meeting in July 1990, the head teacher reported a deterioration in the children. In September 1990, the children were reported to have bruising on their faces and the police reported their concerns about the state of the house. In October 1990 a social worker reported that the children were defecating in their bedrooms. Finally in December 1990 a case conference was organised for January 1991. The children’s headteacher again reported her concerns about the children. A social worker echoed those concerns. However social services decided not to place the children on the child protection register. In March 1991 B was found to have unusual bruises on his back and in April 1991, no change was found in the children’s living conditions. In July 1991, the children’s mother informed social services that the children would be better off living in care. In August 1991 another report was made by a neighbour in relation to the children. From the 19th to the 28th August 1991, the three elder children spent several weeks with foster parents who reported that they appeared traumatised. There was then a professionals meeting on the 18th September 1991 where again the social worker reported that conditions were deteriorating. In November to December 1991 C was found to have developed a squint but his mother did not keep appointments at the eye clinic. There was then a professionals’ meeting where the children’s mother had said that she could not control the children. In December 1991 a social worker was introduced to the children’s mother with a view to assisting her with shopping, budgeting and cooking. Z, A and B were accommodated voluntarily between January and March 1992. There still concerns about the children’s behaviour and weight. In April 1992, their parents divorced. In April 1992 it was decided that A and B should be placed for adoption, pursuant to their mother’s request. There were further concerns expressed by the headmistress and the social worker. In June 1992, the mother said that if the children were not placed in care, she would batter them, and so they were placed in emergency foster care and also on the Child Protection Register on the 22nd June 1992. On the 8th October 1992, the local authority sought care orders, which were made on an interim basis on the 7th December 1992. A guardian ad litem was appointed on the 18th January 1993 and a full care order was made on the 14th April 1993.
All the applicants were seen by Dr Dora Black, a consultant child psychiatrist. She said that the three older children were all showing signs of psychological disturbance. All the children had been deprived of affection and physical care, and in her opinion social services had leaned over backwards to avoid taking effective action. In June 1993, the Official Solicitor commenced proceedings against the local authority claiming damages for negligence and breach of statutory duty. That application was struck out at first instance for revealing no cause of action on the 12th November 1993. That decision was upheld by the Court of Appeal and again by the House of Lords, who said that no action lay against the local authority in negligence or breach of statutory authority concerning the discharge of their duties relating to the welfare of children under the Children Act 1989. That case was reported as X and Others v Bedfordshire County Council [1995] 3 All ER 353.
Z and C were adopted. A and B were initially in foster care. B’s subsequent adoptive placement broke down and he was placed in foster care and then in a therapeutic community. He was currently in a children’s home. Applications were made to the Criminal Injuries Compensation Board and awards were made as follows:-
Z - £1000
A - £3000
B - £3000
C - £2000
Following the House of Lords decision, there was an application (No. 29392/95) against the United Kingdom under Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms, by the applicants, Z, A, B, C and D on the 9th October 1995. The Applicants alleged that the local authority had failed to take adequate protective measures in respect of the severe neglect and abuse which they were known to be suffering due to their ill treatment by their parents and that they had no access to the court or effective remedy in respect of this. They invoked Articles 3, 6, 8 and 13 of the Convention.
The European Commission of Human Rights declared the application admissible in May 1998. In September 1999, D’s adoptive parents decided not to proceed with D’s case. The Commission decided in the same month that there had been a violation of Article 3, but not under Article 8. There had also been a violation of Article 6 but no separate issue arose under Article 13. The case then went before the Grand Chamber of the European Court of Human Rights on the 28th June 2008.
HELD:-
The European Court of Human Rights (“the Court”) considered the background to the case and in particular the local authorities’ duties of care under the Children Act 1989, in particular sections, 1,2 17, 20 and 47. There was also a complaints procedure under section 26 and the Secretary of State had powers to investigation the actions of the local authority in sections 81 and 84 of the Children Act 1989.
The Court considered the various different types of torts in England and Wales. There were three elements to the tort of negligence, a duty of care, breach of duty and damage. To show a duty of care, the Claimant must show that the situation comes within an existing established category of case where a duty of care has been held to exist. The Claimant had to establish a threefold test:-
The Court referred to the case of Caparo Industries v Dickman [1990] 2 AC 605, X v Bedfordshire, as well as the Court of Appeal case of W and Others v Essex County Council [1998] 3 All ER 111. This case concerned the claims by a mother and father, who had agreed to act as foster parents, that the Defendant local authority placed G, a 15 year old boy in their home although they knew that he was a suspect or known sexual abuser. Their children were abused and they brought an action against the local authority and the social worker involved, claiming damages for negligence and for negligent misstatement. At first instance, the parents’ claims were struck out but the children’s actions were allowed to proceed. This was upheld by the Court of Appeal but the House of Lord allowed the appeal on the 16th March 2000. They said that it was not unarguable that the local authority had owed a duty of care to the parents. The parents’ claim could not be said to so certainly or clearly bad that they should be barred from pursuing it to trial.
On the 17th June 1999 the House of Lords gave judgment in Barrett v London Borough of Enfield [1999] 3 WLR 79. That case concerned a Claimant who had been in the local authority’s care since the age of ten months. The House of Lords held that the case of X v Bedfordshire did not prevent a claim for negligence being brought against a local authority by a child formerly in its care.
The Court then considered English procedure. Order 18 Rule 19 of the Rules of the Supreme Court provided that a claim could be struck out if it disclosed no reasonable cause of action. That jurisdiction was described as being reserved for “plain and obvious cases” in which a claim was “obviously unsustainable”. The question for the courts was whether, assuming that the Claimant could substantiate all factual allegations at trial, the claim disclosed a reasonable cause of action. The striking out procedure was now contained in Part 3.4(2) of the Civil Procedure. By means of this procedure, it could be determined at an early stage, with minimal cost to the parties, whether the facts as pleaded revealed a claim existing in law.
The Law
The Court then considered Article 3 of the Convention, which provided:-
“No one shall be subject to torture or to inhuman or degrading treatment or punishment.”
The Commission had found a violation of Article 3 and this was not contested by the Government. There was no dispute in the present case that the neglect and abuse suffered by the four child applicants reached the threshold of inhuman and degrading treatment. This treatment was brought to the local authority’s attention, at the earliest in October 1987. States were required under the Convention to take measures designed to ensure that individuals within their jurisdiction were not subjected to torture or inhuman or degrading treatment, including ill-treatment administered by private individuals. The court acknowledged the difficult and sensitive decisions facing social services and the important countervailing principle of respect and preserving family life. The present case however left no doubt as to the failure of the system to protect these child applicants from serious, long-term neglect and abuse.
The Court then considered Article 8 of the Convention, which was alleged in the alternative. Article 8 was the principle of respect for private life, protected physical and moral integrity. The Court felt that there was no separate issue under Article 8.
There was then the issue of Article 6 of the Convention which stated:-
“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 relied on the case of Osman v United Kingdom (The Times, 5 November 1998). The right to sue in negligence was an established civil right in domestic law. The local authority had conceded that they could have foreseen damage to the applicants if they carried out their duties negligently and that their relationship to the applicants was sufficiently proximate. The applicants’ case was as follows; the exclusionary rule applied by the House of Lords permitted the applicants’ claims to be struck out without determining the facts and without a trial. That applied regardless of the merits or the seriousness of the harm suffered. This amounted in practical effect to an immunity and acted as a restriction on access to the court, regardless of the seriousness of the harm suffered, the nature and extent of the negligence involved or the fundamental rights that were at stake. Therefore this constituted a disproportionate restriction on their right of access to the court.
The UK Government submitted that Article 6 did not bear on the substantive question of whether a right to compensatory damages existed in any given situation. The dispute was subject to a fair and public hearing and the striking out procedure was an important way of securing the speedy and cost-effective determination of cases that were hopeless in law. The restriction on access to the court was in pursuit of a legitimate aim and proportionate.
The Court recalled its constant case law to the effect that Article 6 extended only to contestations or disputes over civil rights and obligations, which could be said to be recognised under domestic law. However it would also apply to disputes of a genuine and serious nature concerning the actual existence of the right as well as to the scope or manner in which it was exercised.
In this case the damages were claimed under negligence, a tort in English law. It was agreed by the parties that there was no previous court decision which indicated that liability existed in respect of damage caused negligently by a local authority in carrying out its child protection duties. The Court was satisfied that there was in this case a serious and genuine dispute about the existence of the right asserted by the applicants under the domestic law of negligence. Therefore there was at least, on arguable grounds, a claim under domestic law.
The procedural guarantees laid down in Article 6 would be meaningless if there was no protection of the pre-condition for enjoyment of those guarantees, namely access to a court. However the right was not absolute. It might be subject to legitimate restrictions, for example statutory limitation periods. Where the individual’s access was limited by operation of law or in fact, the Court would examine whether the limitation imposed impaired the essence of that right and in particular whether it pursued a legitimate aim and there was a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.
The applicants were not prevented in any practical manner from bringing their claims before the domestic courts. However the Court was not persuaded that the House of Lords’ decision that as a matter of law there was no duty of care in the applicants’ case that might be characterised as either an exclusionary rule or an immunity which deprived them access to the court. Lord Browne-Wilkinson had said in X v Bedfordshire that the House of Lords was concerned with the issue as to whether a novel category of negligence should be developed by the courts. The House of Lords had considered the competing policy considerations and decided not to extend liability in negligence into a new area.
The striking out procedure did not per se offend the principle of access to the court. Nor was the Court persuaded that the decision of the House of Lords disclosed an immunity in fact or practical effect due to its allegedly sweeping or blanket nature. Article 6 did not of itself guarantee any particular content for civil rights and obligations in national law, unless Article 8 (respect for family and private life), and the right to property (Article 1). The House of Lords had not come to its conclusion without a careful balancing of the policy reasons for and against the imposition of liability on the local authority in the circumstances of the applicants’ case. Furthermore there had been subsequent cases, Barrett v London Borough of Enfield and W and Others v Essex County Council where the courts had held that there would be liability. The Osman case had to be considered in the light of the clarifications subsequently made by the domestic courts and notably the House of Lords. The law of negligence included the fair, just and reasonable criterion as an intrinsic element of the duty of care.
However the interpretation of domestic law by the House of Lords resulted in the applicants’ case being struck out. This was a horrific case and the outcome was that they and any children with complaints such as these, could not sue the local authority however unreasonable the conduct of that authority. There was a gap in domestic law, but that gave rise to an issue under Article 13 not Article 6.1. Article 13 required an effective remedy in respect of violations of the Convention.
Alleged violation of Article 13 of the Convention
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 committee by persons acting in an official capacity.”
The Government pointed out that there were a number of remedies available to the applicants, which included the Criminal Injuries Compensation Board, the possibility of complaining to the Local Government Ombudsman and the complaints procedure under the Children Act 1989. However it was conceded that the CICB could not make awards for the consequences of neglect and that any recommendation made by the Ombudsman was not legally enforceable. The Government had also pointed that that from October 2000, when the Human Rights Act 1998, a victim would be able to bring proceedings in the courts against a public authority.
The Court had previously held that where a right as fundamentally important as the right to life or the prohibition against torture, inhuman and degrading treatment is at stake, Article 13 required, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible, including effective access for the complainant to the investigation procedure.
The Court found in this case that the applicants did not have available to them an appropriate means of obtaining a determination of their allegations that the local authority failed to protect them from inhuman and degrading treatment and the possibility of obtaining an enforceable award of compensation for the damage suffered thereby. Therefore there was a violation of Article 13 of the Convention.
Pecuniary damages
The Court then addressed the issue of pecuniary damages. The Claimants had submitted that they should be compensated for loss of future earnings and the costs of future medical expenses. Updated medical reports had been provided.
Z had recovered from a serious depressive illness suffered at the time of her removal into care, but she still had emotional, social and practical difficulties. Her problems were classified as those of moderate severity. She was likely to have difficulties on the open labour market, but she would be able to undertake further education and sustain her own mental health. She had also suffered from malnutrition.
A was suffering from long term psychiatric illness (post traumatic stress disorder) and had a poor prognosis for recovery. His future was extremely bleak and he was seriously handicapped on the labour market. There was evidence to suggest that his father had hit him with a poker and that he had been sexually abused.
B was still suffering from post traumatic stress disorder and a chronic generalised anxiety disorder. His prospects of future employment were not as bleak as those of A, but he was likely to have substantial interruption in his employment. There was also some evidence of his having been beaten with a poker and sexually abused.
C was described as happy in her adoptive home. However she had some remaining behavioural problems and was more liable than other children to anxiety and depression in adult life. She had a squint as a result of neglect.
According to one medical expert, Dr Dora Black, Z, A and B had suffered psychiatric damage falling at the upper end of the severe bracket. C had suffered damage in the moderately severe bracket.
The medical reports commented that earlier treatment would have benefited all the children.
The Court’s case law established that there should be a clear causal connection between the damage claimed and the violation of the Convention. The greater the lapse of time between the damage and the violation, the more uncertain that link became. The question to be decided in such cases is the level of just satisfaction, in respect of both past and future pecuniary loss, having regard to what is equitable. In that determination, the awards made in comparable domestic cases was a relevant but not decisive consideration.
All four children suffered psychological and physical damage resulting from the abuse and neglect of their parents over a period of more than four years. Whilst the Court noted the Government’s submission that there was no finding that the children should have been taken into care immediately, the severity of the damage was inextricably linked the long period of time over which the abuse persisted. Awards would be made as follows for medical treatment and loss of employment opportunities.
Non pecuniary damages
In making its assessment, the Court recalled that the rates applied in domestic cases, though relevant, were not decisive. It did not consider it appropriate or desirable to attempt to distinguish between the children in this context.
Each child would be awarded the sum of £32,000.
Costs and expenses
Costs of £52,781.28 were claimed inclusive of VAT by way of legal costs and expenses, which included fees for attendance at hearings before the Commission and the Court.
The Court recalled that only legal costs and expenses found to have been actually and necessarily incurred, and which were reasonable in quantum were recoverable under Article 41 of the Convention. As the complaint under Article 6, which was a significant part of the application, was disallowed, the costs and expenses should be reduced. The global sum of £39,000 all inclusive would be awarded.
Default interest
The statutory rate of interest applicable in the United Kingdom at the date of adoption of the present judgment was 7.5%.
FACTS:-
The Applicants were four siblings:-
Z, a girl born in 1982
A, a boy born in 1984
B, a boy born in 1986
C, a girl born in 1988
The family was referred to social services in October 1984 due to concerns about the children, who were reported to be stealing food. Visits were made by social services, but the file was closed. In September 1988 a neighbour reported that the children were locked outside the house for most of the day. In April 1989, the police reported that the children’s bedrooms were filthy and their doors locked. The children’s head teacher expressed concerned in May 1989 and in June 1989, the NSPCC made a referral. In August 1989, there was a complaint by the maternal grandmother. In October 1989, social services decided that there was no need to take action. In the same month, the police again found the house in a filthy state and in December 1989 the health visitor requested that the four older children be placed on the at risk register. Two of the children had also alleged physical abuse to their head teacher. There was some improvement by March 1990 but two of the children were still stealing food. At a professionals’ meeting in July 1990, the head teacher reported a deterioration in the children. In September 1990, the children were reported to have bruising on their faces and the police reported their concerns about the state of the house. In October 1990 a social worker reported that the children were defecating in their bedrooms. Finally in December 1990 a case conference was organised for January 1991. The children’s headteacher again reported her concerns about the children. A social worker echoed those concerns. However social services decided not to place the children on the child protection register. In March 1991 B was found to have unusual bruises on his back and in April 1991, no change was found in the children’s living conditions. In July 1991, the children’s mother informed social services that the children would be better off living in care. In August 1991 another report was made by a neighbour in relation to the children. From the 19th to the 28th August 1991, the three elder children spent several weeks with foster parents who reported that they appeared traumatised. There was then a professionals meeting on the 18th September 1991 where again the social worker reported that conditions were deteriorating. In November to December 1991 C was found to have developed a squint but his mother did not keep appointments at the eye clinic. There was then a professionals’ meeting where the children’s mother had said that she could not control the children. In December 1991 a social worker was introduced to the children’s mother with a view to assisting her with shopping, budgeting and cooking. Z, A and B were accommodated voluntarily between January and March 1992. There still concerns about the children’s behaviour and weight. In April 1992, their parents divorced. In April 1992 it was decided that A and B should be placed for adoption, pursuant to their mother’s request. There were further concerns expressed by the headmistress and the social worker. In June 1992, the mother said that if the children were not placed in care, she would batter them, and so they were placed in emergency foster care and also on the Child Protection Register on the 22nd June 1992. On the 8th October 1992, the local authority sought care orders, which were made on an interim basis on the 7th December 1992. A guardian ad litem was appointed on the 18th January 1993 and a full care order was made on the 14th April 1993.
All the applicants were seen by Dr Dora Black, a consultant child psychiatrist. She said that the three older children were all showing signs of psychological disturbance. All the children had been deprived of affection and physical care, and in her opinion social services had leaned over backwards to avoid taking effective action. In June 1993, the Official Solicitor commenced proceedings against the local authority claiming damages for negligence and breach of statutory duty. That application was struck out at first instance for revealing no cause of action on the 12th November 1993. That decision was upheld by the Court of Appeal and again by the House of Lords, who said that no action lay against the local authority in negligence or breach of statutory authority concerning the discharge of their duties relating to the welfare of children under the Children Act 1989. That case was reported as X and Others v Bedfordshire County Council [1995] 3 All ER 353.
Z and C were adopted. A and B were initially in foster care. B’s subsequent adoptive placement broke down and he was placed in foster care and then in a therapeutic community. He was currently in a children’s home. Applications were made to the Criminal Injuries Compensation Board and awards were made as follows:-
Z - £1000
A - £3000
B - £3000
C - £2000
Following the House of Lords decision, there was an application (No. 29392/95) against the United Kingdom under Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms, by the applicants, Z, A, B, C and D on the 9th October 1995. The Applicants alleged that the local authority had failed to take adequate protective measures in respect of the severe neglect and abuse which they were known to be suffering due to their ill treatment by their parents and that they had no access to the court or effective remedy in respect of this. They invoked Articles 3, 6, 8 and 13 of the Convention.
The European Commission of Human Rights declared the application admissible in May 1998. In September 1999, D’s adoptive parents decided not to proceed with D’s case. The Commission decided in the same month that there had been a violation of Article 3, but not under Article 8. There had also been a violation of Article 6 but no separate issue arose under Article 13. The case then went before the Grand Chamber of the European Court of Human Rights on the 28th June 2008.
HELD:-
The European Court of Human Rights (“the Court”) considered the background to the case and in particular the local authorities’ duties of care under the Children Act 1989, in particular sections, 1,2 17, 20 and 47. There was also a complaints procedure under section 26 and the Secretary of State had powers to investigation the actions of the local authority in sections 81 and 84 of the Children Act 1989.
The Court considered the various different types of torts in England and Wales. There were three elements to the tort of negligence, a duty of care, breach of duty and damage. To show a duty of care, the Claimant must show that the situation comes within an existing established category of case where a duty of care has been held to exist. The Claimant had to establish a threefold test:-
- Damage to the Claimant was foreseeable
- The Claimant was in an appropriate relationship of proximity to the Defendant
- It was just, fair and reasonable to impose liability on the Defendant
The Court referred to the case of Caparo Industries v Dickman [1990] 2 AC 605, X v Bedfordshire, as well as the Court of Appeal case of W and Others v Essex County Council [1998] 3 All ER 111. This case concerned the claims by a mother and father, who had agreed to act as foster parents, that the Defendant local authority placed G, a 15 year old boy in their home although they knew that he was a suspect or known sexual abuser. Their children were abused and they brought an action against the local authority and the social worker involved, claiming damages for negligence and for negligent misstatement. At first instance, the parents’ claims were struck out but the children’s actions were allowed to proceed. This was upheld by the Court of Appeal but the House of Lord allowed the appeal on the 16th March 2000. They said that it was not unarguable that the local authority had owed a duty of care to the parents. The parents’ claim could not be said to so certainly or clearly bad that they should be barred from pursuing it to trial.
On the 17th June 1999 the House of Lords gave judgment in Barrett v London Borough of Enfield [1999] 3 WLR 79. That case concerned a Claimant who had been in the local authority’s care since the age of ten months. The House of Lords held that the case of X v Bedfordshire did not prevent a claim for negligence being brought against a local authority by a child formerly in its care.
The Court then considered English procedure. Order 18 Rule 19 of the Rules of the Supreme Court provided that a claim could be struck out if it disclosed no reasonable cause of action. That jurisdiction was described as being reserved for “plain and obvious cases” in which a claim was “obviously unsustainable”. The question for the courts was whether, assuming that the Claimant could substantiate all factual allegations at trial, the claim disclosed a reasonable cause of action. The striking out procedure was now contained in Part 3.4(2) of the Civil Procedure. By means of this procedure, it could be determined at an early stage, with minimal cost to the parties, whether the facts as pleaded revealed a claim existing in law.
The Law
The Court then considered Article 3 of the Convention, which provided:-
“No one shall be subject to torture or to inhuman or degrading treatment or punishment.”
The Commission had found a violation of Article 3 and this was not contested by the Government. There was no dispute in the present case that the neglect and abuse suffered by the four child applicants reached the threshold of inhuman and degrading treatment. This treatment was brought to the local authority’s attention, at the earliest in October 1987. States were required under the Convention to take measures designed to ensure that individuals within their jurisdiction were not subjected to torture or inhuman or degrading treatment, including ill-treatment administered by private individuals. The court acknowledged the difficult and sensitive decisions facing social services and the important countervailing principle of respect and preserving family life. The present case however left no doubt as to the failure of the system to protect these child applicants from serious, long-term neglect and abuse.
The Court then considered Article 8 of the Convention, which was alleged in the alternative. Article 8 was the principle of respect for private life, protected physical and moral integrity. The Court felt that there was no separate issue under Article 8.
There was then the issue of Article 6 of the Convention which stated:-
“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 relied on the case of Osman v United Kingdom (The Times, 5 November 1998). The right to sue in negligence was an established civil right in domestic law. The local authority had conceded that they could have foreseen damage to the applicants if they carried out their duties negligently and that their relationship to the applicants was sufficiently proximate. The applicants’ case was as follows; the exclusionary rule applied by the House of Lords permitted the applicants’ claims to be struck out without determining the facts and without a trial. That applied regardless of the merits or the seriousness of the harm suffered. This amounted in practical effect to an immunity and acted as a restriction on access to the court, regardless of the seriousness of the harm suffered, the nature and extent of the negligence involved or the fundamental rights that were at stake. Therefore this constituted a disproportionate restriction on their right of access to the court.
The UK Government submitted that Article 6 did not bear on the substantive question of whether a right to compensatory damages existed in any given situation. The dispute was subject to a fair and public hearing and the striking out procedure was an important way of securing the speedy and cost-effective determination of cases that were hopeless in law. The restriction on access to the court was in pursuit of a legitimate aim and proportionate.
The Court recalled its constant case law to the effect that Article 6 extended only to contestations or disputes over civil rights and obligations, which could be said to be recognised under domestic law. However it would also apply to disputes of a genuine and serious nature concerning the actual existence of the right as well as to the scope or manner in which it was exercised.
In this case the damages were claimed under negligence, a tort in English law. It was agreed by the parties that there was no previous court decision which indicated that liability existed in respect of damage caused negligently by a local authority in carrying out its child protection duties. The Court was satisfied that there was in this case a serious and genuine dispute about the existence of the right asserted by the applicants under the domestic law of negligence. Therefore there was at least, on arguable grounds, a claim under domestic law.
The procedural guarantees laid down in Article 6 would be meaningless if there was no protection of the pre-condition for enjoyment of those guarantees, namely access to a court. However the right was not absolute. It might be subject to legitimate restrictions, for example statutory limitation periods. Where the individual’s access was limited by operation of law or in fact, the Court would examine whether the limitation imposed impaired the essence of that right and in particular whether it pursued a legitimate aim and there was a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.
The applicants were not prevented in any practical manner from bringing their claims before the domestic courts. However the Court was not persuaded that the House of Lords’ decision that as a matter of law there was no duty of care in the applicants’ case that might be characterised as either an exclusionary rule or an immunity which deprived them access to the court. Lord Browne-Wilkinson had said in X v Bedfordshire that the House of Lords was concerned with the issue as to whether a novel category of negligence should be developed by the courts. The House of Lords had considered the competing policy considerations and decided not to extend liability in negligence into a new area.
The striking out procedure did not per se offend the principle of access to the court. Nor was the Court persuaded that the decision of the House of Lords disclosed an immunity in fact or practical effect due to its allegedly sweeping or blanket nature. Article 6 did not of itself guarantee any particular content for civil rights and obligations in national law, unless Article 8 (respect for family and private life), and the right to property (Article 1). The House of Lords had not come to its conclusion without a careful balancing of the policy reasons for and against the imposition of liability on the local authority in the circumstances of the applicants’ case. Furthermore there had been subsequent cases, Barrett v London Borough of Enfield and W and Others v Essex County Council where the courts had held that there would be liability. The Osman case had to be considered in the light of the clarifications subsequently made by the domestic courts and notably the House of Lords. The law of negligence included the fair, just and reasonable criterion as an intrinsic element of the duty of care.
However the interpretation of domestic law by the House of Lords resulted in the applicants’ case being struck out. This was a horrific case and the outcome was that they and any children with complaints such as these, could not sue the local authority however unreasonable the conduct of that authority. There was a gap in domestic law, but that gave rise to an issue under Article 13 not Article 6.1. Article 13 required an effective remedy in respect of violations of the Convention.
Alleged violation of Article 13 of the Convention
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 committee by persons acting in an official capacity.”
The Government pointed out that there were a number of remedies available to the applicants, which included the Criminal Injuries Compensation Board, the possibility of complaining to the Local Government Ombudsman and the complaints procedure under the Children Act 1989. However it was conceded that the CICB could not make awards for the consequences of neglect and that any recommendation made by the Ombudsman was not legally enforceable. The Government had also pointed that that from October 2000, when the Human Rights Act 1998, a victim would be able to bring proceedings in the courts against a public authority.
The Court had previously held that where a right as fundamentally important as the right to life or the prohibition against torture, inhuman and degrading treatment is at stake, Article 13 required, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible, including effective access for the complainant to the investigation procedure.
The Court found in this case that the applicants did not have available to them an appropriate means of obtaining a determination of their allegations that the local authority failed to protect them from inhuman and degrading treatment and the possibility of obtaining an enforceable award of compensation for the damage suffered thereby. Therefore there was a violation of Article 13 of the Convention.
Pecuniary damages
The Court then addressed the issue of pecuniary damages. The Claimants had submitted that they should be compensated for loss of future earnings and the costs of future medical expenses. Updated medical reports had been provided.
Z had recovered from a serious depressive illness suffered at the time of her removal into care, but she still had emotional, social and practical difficulties. Her problems were classified as those of moderate severity. She was likely to have difficulties on the open labour market, but she would be able to undertake further education and sustain her own mental health. She had also suffered from malnutrition.
A was suffering from long term psychiatric illness (post traumatic stress disorder) and had a poor prognosis for recovery. His future was extremely bleak and he was seriously handicapped on the labour market. There was evidence to suggest that his father had hit him with a poker and that he had been sexually abused.
B was still suffering from post traumatic stress disorder and a chronic generalised anxiety disorder. His prospects of future employment were not as bleak as those of A, but he was likely to have substantial interruption in his employment. There was also some evidence of his having been beaten with a poker and sexually abused.
C was described as happy in her adoptive home. However she had some remaining behavioural problems and was more liable than other children to anxiety and depression in adult life. She had a squint as a result of neglect.
According to one medical expert, Dr Dora Black, Z, A and B had suffered psychiatric damage falling at the upper end of the severe bracket. C had suffered damage in the moderately severe bracket.
The medical reports commented that earlier treatment would have benefited all the children.
The Court’s case law established that there should be a clear causal connection between the damage claimed and the violation of the Convention. The greater the lapse of time between the damage and the violation, the more uncertain that link became. The question to be decided in such cases is the level of just satisfaction, in respect of both past and future pecuniary loss, having regard to what is equitable. In that determination, the awards made in comparable domestic cases was a relevant but not decisive consideration.
All four children suffered psychological and physical damage resulting from the abuse and neglect of their parents over a period of more than four years. Whilst the Court noted the Government’s submission that there was no finding that the children should have been taken into care immediately, the severity of the damage was inextricably linked the long period of time over which the abuse persisted. Awards would be made as follows for medical treatment and loss of employment opportunities.
- Z - £8,000 Medical costs
- A - £50,000 Medical costs and £50,000 loss of employment opportunities
- B - £50,000 Medical costs and £30,000 loss of employment opportunities
- C - £4,000 Medical costs
Non pecuniary damages
In making its assessment, the Court recalled that the rates applied in domestic cases, though relevant, were not decisive. It did not consider it appropriate or desirable to attempt to distinguish between the children in this context.
Each child would be awarded the sum of £32,000.
Costs and expenses
Costs of £52,781.28 were claimed inclusive of VAT by way of legal costs and expenses, which included fees for attendance at hearings before the Commission and the Court.
The Court recalled that only legal costs and expenses found to have been actually and necessarily incurred, and which were reasonable in quantum were recoverable under Article 41 of the Convention. As the complaint under Article 6, which was a significant part of the application, was disallowed, the costs and expenses should be reduced. The global sum of £39,000 all inclusive would be awarded.
Default interest
The statutory rate of interest applicable in the United Kingdom at the date of adoption of the present judgment was 7.5%.