DP & JC V UNITED KINGDOM [2002] ECHR 663
FACTS:-
The Claimants were a sister and brother born in 1964 and 1967 and living in London and Nottingham respectively. Nottingham County Council’s social services were involved with the family from 1967 concerning problems relating to severe financial difficulties. The Second Claimant and his twin were placed in care for seven months. In 1969 there were indications that the Claimants’ father was beating their mother, and later allegations emerged that the father had inflicted physical abuse on the children. In 1970, both parents were imprisoned for electricity meter offences. In 1971, the mother was given custody of the Claimants. In 1974 the parents were divorced, at which point the relationship between the mother and a boyfriend “NC” began. They were married that same year. Social services noted that standards were improving. However the Second Claimant was having problems with soiling and he was admitted twice to hospital as an in-patient in that connection in 1975 and 1976. In 1975 there were 46 visits from the relevant social worker. It was noted that the Second Claimant stopped soiling during a three month stay in hospital, but when he returned home, the soiling recommenced. In mid 1976, NC was convicted of arson and sentenced to nine months imprisonment. In 1977 NC and the mother had a daughter. The Second Claimant was still soiling himself and it was noted that he was being bathed by NC. In 1978 social services noted that one of the mother’s daughters by her previous marriage showed a high sexual awareness. In the same year, an allegation of physical abuse was made about NC by the children.
In 1980 the First Claimant was truanting frequently and she was placed in care at both her and her parents’ request but she returned after one month. In July 1980 she alleged physical abuse by her parents during a family row. She was again taken into foster care, but returned in September 1980. There was a further incident in November 1980. In December 1980 the mother and NC had a second child. There were then further incidents throughout 1981 and 1982, one of which resulted in the Second Claimant and a sibling in voluntary care. In January 1984 one of the children was placed in care on account of his truancy. In April 1984, NC was convicted of theft and sentenced to six months imprisonment. In June 1984 NC was release from prison, and in September 1984 the care order in relation to the Second Claimant was discharged.
During 1984 the First Claimant married and in 1986 the Second Claimant went to live with her.
During 1992 one of the Claimants’ siblings gave birth to a baby at the age of 14, and allegations were made that NC was the father. The sibling denied this.
The First Claimant initially refused to give a statement to the authorities, and in a Child Protection Case Conference in February 1993, she admitted sexual abuse by NC but did not wish to become involved. In the same month, NC was charged by the police with various sexual offences. The remaining siblings were placed on the Child Protection Register. In February 1994, the First Claimant made a statement to the police and in March 1994, NC admitted the allegations made by both Claimants and pleaded guilty to various charges of sexual assault.
The First Claimant had been abused from around 1972 on a regular basis by NC up until 1980. The Second Applicant was sexually abused by NC on a regular basis from around 1978. This continued until January 1981. Both Claimant suffered serious psychological problems as a result.
In 1994 the Second Claimant made an application to the Criminal Injuries Compensation Board, which awarded him £1500 which he accepted. The First Claimant was awarded £3,000 which she did not accept.
In June 1994, the Second Claimant wrote to social services asking for information about the files relating to him. In July 1994, the First Claimant made a similar request. In October 1994, the Claimant applied for public funding but this was refused, and an appeal against that refusal was dismissed.
In March 1995, the Second Claimant made a complaint to social services and asked to see his file. The local authority had appointed solicitors who refused to disclose any such records to either Claimant.
In February 1996, the Second Claimant obtained public funding and in August 1996 brought proceedings against the local authority. That claim was struck out following the cases of X v Bedfordshire [1995] 3 All ER 353 and H v Norfolk County Council [1997] 1 FLR 384 in which it was held that there was no cause of action in negligence or breach of statutory duty in these circumstances. Advice was given to both Claimants that they could not pursue proceedings in the domestic courts.
In September 1997, the local authority gave the Second Claimant sight of edited extracts from her social services files.
HELD:-
The European Court of Human Rights considered the provisions of the Child Care Act 1980 and the Children Act 1989, and the law of tort in England and Wales, particular the case of Caparo Industries v Dickman [1990] 2 AC 605.The court also considered the case of X v Bedfordshire. In that case, the House of Lords held that local authorities could not be sued for negligence or for breach of statutory duty in respect of the discharge of their functions concerning the welfare of children. Part of the judgement of Lord Browne-Wilkinson was quoted.
Article 3
Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) provided “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” The Claimants argued that the local authority was under a positive duty to protect the Claimants but had not done so. The records were incomplete and that suggested a lack of care.
The government accepted that the sexual assaults came within Article 3. However there was not, in the circumstances of this case any positive obligation to investigate sexual abuse or remove the applicants into care, since no risk of sexual abuse was apparent. In relation to the lost records, these could have been lost or destroyed during the last 25-30 years.
The court observed that there was no indication in the social services records that there was any suspicion of sexual abuse occurring in the Claimants’ family household and no complaint was made either. It had not been shown that the local authority knew about the abuse, and the court was not prepared to draw any inferences or assumptions from the state of the records. Some reports may have become lost.
The incidents that were recorded could not be regarded as revealing a clear pattern of victimisation or abuse. The court was not persuaded that there were any particular aspects of the turbulent and volatile family situation which should have led social services to suspect a deeper, more insidious problem in this family.
It could not be said that social services, due to the ongoing problems, were under any obligation, imposed by Article 3 of the Convention to remove the children into permanent care. The court had had previous occasion to acknowledge the difficult and sensitive decisions facing social services and the important and countervailing principle of respecting and preserving family life.
The court concluded that it had not been shown that the local authority should have been aware of the sexual abuse inflicted by NC on the Claimants. Therefore the authorities could not be regarded as having failed in any positive obligation to take effective steps to protect them from that abuse.
Article 8
Article 8 stated:-
“Everyone has the right to respect for his private and family life.”
The Article went on to say that a public authority could not interfere with this right save in particular circumstances.
The court said that it had already found in the context of Article 3 that the social services were unaware of the abuse. The records showed that they provided practical and financial assistance, were in frequent contact with the family and took steps to remove the children into temporary care when this appeared necessary. There was no breach of Article 8.
Article 6
This Article 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 court said that Article 6 only extended to “contestations” over civil rights and obligations, which could be said, at least on arguable grounds, to be recognised under domestic law. It did not of itself guarantee any particular content for civil rights and obligations in the substantive law of the contracting states. However the court was satisfied that at the outset of proceedings, there was a serious and genuine dispute about the existence of the right asserted by the Second Claimant under the domestic law of negligence. Therefore Article 6 was applicable and the court should now examine whether the requirements of that Article were complied with.
Article 6 did not confer an absolute right. Where an individual’s access was limited either by operation of law or in fact, the court would examine whether the limitation imposed impaired the essence of the 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 case of X v Bedfordshire had come to the European Court of Human Rights in Z v United Kingdom (2001) 34 EHRR 97. In that case, the court had not found any incompatibility with the requirements of Article 6 in the use of the striking out procedure to identify and dispose of cases which did not raise arguable causes of action at law. The Second Claimant had the opportunity to have his claims examined in court in light of the applicable domestic legal principles concerning the tort of negligence. The First Claimant would have had the same opportunity if she had chosen to pursue it. The striking out of the Second Claimant’s claim did not disclose any restriction on access to the court. The resulting lack of any possibility of obtaining redress in the court might however raise issued under Article 13 of the Convention, which required an effective remedy in respect of violations of the Convention.
Accordingly the court found no violation of Article 6 of the Convention.
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 court said that Article 13 guaranteed the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. Article 13 required, where the right to life or freedom from torture was concerns, 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.
In this case it was not disputed that the Claimants had suffered appalling abuse whilst they were under the supervision of the local authorities. What was missing was an effective domestic procedure of enquiry, which would have offered more prospect of establishing the facts and throwing light on the conduct reasonably to be expected from the social services, where the Claimants had demonstrated long term and serious problems that arguable have called for additional efforts by the authorities.
The Claimants did not have available to them an appropriate means of obtaining a determination of their allegations. Consequently they were not afforded an effective remedy in respect of their claims of a breach of Articles 3 or 8, and accordingly there had been a violation of Article 13 of the Convention.
Damages and costs (Article 41)
The Claimants claimed damages for past and future treatment, loss of advantage in the job market and non pecuniary damage. The court said that as there was no breach of Articles 3 or 8 of the Convention, there was no ground for making an award of pecuniary or non pecuniary damage. However an awarded would be made of Euro 5000 to each Claimant for the feelings of frustration and distress that must have arisen from their inability to pursue an effective remedy.
There was also a claim made for costs in the sum of £12,529.02. The sum of £12,500 would be awarded. Default interest would also be paid at the marginal lending rate of the European Central Bank plus three percentage points. Interest would run from the date on which the judgment of the court became final.
FACTS:-
The Claimants were a sister and brother born in 1964 and 1967 and living in London and Nottingham respectively. Nottingham County Council’s social services were involved with the family from 1967 concerning problems relating to severe financial difficulties. The Second Claimant and his twin were placed in care for seven months. In 1969 there were indications that the Claimants’ father was beating their mother, and later allegations emerged that the father had inflicted physical abuse on the children. In 1970, both parents were imprisoned for electricity meter offences. In 1971, the mother was given custody of the Claimants. In 1974 the parents were divorced, at which point the relationship between the mother and a boyfriend “NC” began. They were married that same year. Social services noted that standards were improving. However the Second Claimant was having problems with soiling and he was admitted twice to hospital as an in-patient in that connection in 1975 and 1976. In 1975 there were 46 visits from the relevant social worker. It was noted that the Second Claimant stopped soiling during a three month stay in hospital, but when he returned home, the soiling recommenced. In mid 1976, NC was convicted of arson and sentenced to nine months imprisonment. In 1977 NC and the mother had a daughter. The Second Claimant was still soiling himself and it was noted that he was being bathed by NC. In 1978 social services noted that one of the mother’s daughters by her previous marriage showed a high sexual awareness. In the same year, an allegation of physical abuse was made about NC by the children.
In 1980 the First Claimant was truanting frequently and she was placed in care at both her and her parents’ request but she returned after one month. In July 1980 she alleged physical abuse by her parents during a family row. She was again taken into foster care, but returned in September 1980. There was a further incident in November 1980. In December 1980 the mother and NC had a second child. There were then further incidents throughout 1981 and 1982, one of which resulted in the Second Claimant and a sibling in voluntary care. In January 1984 one of the children was placed in care on account of his truancy. In April 1984, NC was convicted of theft and sentenced to six months imprisonment. In June 1984 NC was release from prison, and in September 1984 the care order in relation to the Second Claimant was discharged.
During 1984 the First Claimant married and in 1986 the Second Claimant went to live with her.
During 1992 one of the Claimants’ siblings gave birth to a baby at the age of 14, and allegations were made that NC was the father. The sibling denied this.
The First Claimant initially refused to give a statement to the authorities, and in a Child Protection Case Conference in February 1993, she admitted sexual abuse by NC but did not wish to become involved. In the same month, NC was charged by the police with various sexual offences. The remaining siblings were placed on the Child Protection Register. In February 1994, the First Claimant made a statement to the police and in March 1994, NC admitted the allegations made by both Claimants and pleaded guilty to various charges of sexual assault.
The First Claimant had been abused from around 1972 on a regular basis by NC up until 1980. The Second Applicant was sexually abused by NC on a regular basis from around 1978. This continued until January 1981. Both Claimant suffered serious psychological problems as a result.
In 1994 the Second Claimant made an application to the Criminal Injuries Compensation Board, which awarded him £1500 which he accepted. The First Claimant was awarded £3,000 which she did not accept.
In June 1994, the Second Claimant wrote to social services asking for information about the files relating to him. In July 1994, the First Claimant made a similar request. In October 1994, the Claimant applied for public funding but this was refused, and an appeal against that refusal was dismissed.
In March 1995, the Second Claimant made a complaint to social services and asked to see his file. The local authority had appointed solicitors who refused to disclose any such records to either Claimant.
In February 1996, the Second Claimant obtained public funding and in August 1996 brought proceedings against the local authority. That claim was struck out following the cases of X v Bedfordshire [1995] 3 All ER 353 and H v Norfolk County Council [1997] 1 FLR 384 in which it was held that there was no cause of action in negligence or breach of statutory duty in these circumstances. Advice was given to both Claimants that they could not pursue proceedings in the domestic courts.
In September 1997, the local authority gave the Second Claimant sight of edited extracts from her social services files.
HELD:-
The European Court of Human Rights considered the provisions of the Child Care Act 1980 and the Children Act 1989, and the law of tort in England and Wales, particular the case of Caparo Industries v Dickman [1990] 2 AC 605.The court also considered the case of X v Bedfordshire. In that case, the House of Lords held that local authorities could not be sued for negligence or for breach of statutory duty in respect of the discharge of their functions concerning the welfare of children. Part of the judgement of Lord Browne-Wilkinson was quoted.
Article 3
Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) provided “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” The Claimants argued that the local authority was under a positive duty to protect the Claimants but had not done so. The records were incomplete and that suggested a lack of care.
The government accepted that the sexual assaults came within Article 3. However there was not, in the circumstances of this case any positive obligation to investigate sexual abuse or remove the applicants into care, since no risk of sexual abuse was apparent. In relation to the lost records, these could have been lost or destroyed during the last 25-30 years.
The court observed that there was no indication in the social services records that there was any suspicion of sexual abuse occurring in the Claimants’ family household and no complaint was made either. It had not been shown that the local authority knew about the abuse, and the court was not prepared to draw any inferences or assumptions from the state of the records. Some reports may have become lost.
The incidents that were recorded could not be regarded as revealing a clear pattern of victimisation or abuse. The court was not persuaded that there were any particular aspects of the turbulent and volatile family situation which should have led social services to suspect a deeper, more insidious problem in this family.
It could not be said that social services, due to the ongoing problems, were under any obligation, imposed by Article 3 of the Convention to remove the children into permanent care. The court had had previous occasion to acknowledge the difficult and sensitive decisions facing social services and the important and countervailing principle of respecting and preserving family life.
The court concluded that it had not been shown that the local authority should have been aware of the sexual abuse inflicted by NC on the Claimants. Therefore the authorities could not be regarded as having failed in any positive obligation to take effective steps to protect them from that abuse.
Article 8
Article 8 stated:-
“Everyone has the right to respect for his private and family life.”
The Article went on to say that a public authority could not interfere with this right save in particular circumstances.
The court said that it had already found in the context of Article 3 that the social services were unaware of the abuse. The records showed that they provided practical and financial assistance, were in frequent contact with the family and took steps to remove the children into temporary care when this appeared necessary. There was no breach of Article 8.
Article 6
This Article 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 court said that Article 6 only extended to “contestations” over civil rights and obligations, which could be said, at least on arguable grounds, to be recognised under domestic law. It did not of itself guarantee any particular content for civil rights and obligations in the substantive law of the contracting states. However the court was satisfied that at the outset of proceedings, there was a serious and genuine dispute about the existence of the right asserted by the Second Claimant under the domestic law of negligence. Therefore Article 6 was applicable and the court should now examine whether the requirements of that Article were complied with.
Article 6 did not confer an absolute right. Where an individual’s access was limited either by operation of law or in fact, the court would examine whether the limitation imposed impaired the essence of the 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 case of X v Bedfordshire had come to the European Court of Human Rights in Z v United Kingdom (2001) 34 EHRR 97. In that case, the court had not found any incompatibility with the requirements of Article 6 in the use of the striking out procedure to identify and dispose of cases which did not raise arguable causes of action at law. The Second Claimant had the opportunity to have his claims examined in court in light of the applicable domestic legal principles concerning the tort of negligence. The First Claimant would have had the same opportunity if she had chosen to pursue it. The striking out of the Second Claimant’s claim did not disclose any restriction on access to the court. The resulting lack of any possibility of obtaining redress in the court might however raise issued under Article 13 of the Convention, which required an effective remedy in respect of violations of the Convention.
Accordingly the court found no violation of Article 6 of the Convention.
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 court said that Article 13 guaranteed the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. Article 13 required, where the right to life or freedom from torture was concerns, 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.
In this case it was not disputed that the Claimants had suffered appalling abuse whilst they were under the supervision of the local authorities. What was missing was an effective domestic procedure of enquiry, which would have offered more prospect of establishing the facts and throwing light on the conduct reasonably to be expected from the social services, where the Claimants had demonstrated long term and serious problems that arguable have called for additional efforts by the authorities.
The Claimants did not have available to them an appropriate means of obtaining a determination of their allegations. Consequently they were not afforded an effective remedy in respect of their claims of a breach of Articles 3 or 8, and accordingly there had been a violation of Article 13 of the Convention.
Damages and costs (Article 41)
The Claimants claimed damages for past and future treatment, loss of advantage in the job market and non pecuniary damage. The court said that as there was no breach of Articles 3 or 8 of the Convention, there was no ground for making an award of pecuniary or non pecuniary damage. However an awarded would be made of Euro 5000 to each Claimant for the feelings of frustration and distress that must have arisen from their inability to pursue an effective remedy.
There was also a claim made for costs in the sum of £12,529.02. The sum of £12,500 would be awarded. Default interest would also be paid at the marginal lending rate of the European Central Bank plus three percentage points. Interest would run from the date on which the judgment of the court became final.