EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 29392/95

Z. and others

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 10 September 1999)

I. INTRODUCTION

(paras. 1-29) ......................................................... 1

A. The application

(paras. 2-4) ..................................................... 1

B. The proceedings

(paras. 5-24) .................................................... 1

C. The present Report

(paras. 25-29) .................................................. 3

II. ESTABLISHMENT OF THE FACTS

(paras. 30-84) ....................................................... 4

A. The particular circumstances of the case

(paras. 30-72) .................................................. 4

B. Relevant domestic law

(paras. 73-84) ................................................. 11

III. OPINION OF THE COMMISSION

(paras. 85-126) ..................................................... 16

A. Complaints declared admissible

(para. 85) ..................................................... 16

B. Points at issue

(para. 86) ..................................................... 16

C. As regards Article 3 of the Convention

(paras. 87-98) ................................................. 16

CONCLUSION

(para. 99) ..................................................... 19

D. As regards Article 8 of the Convention

(paras. 100-102) ............................................... 20

CONCLUSION

(para. 103) .................................................... 20

E. As regards Article 6 of the Convention

(paras. 104-116) ............................................... 20

CONCLUSION

(para. 117) .................................................... 23

F. As regards Article 13 of the Convention

(paras. 118-121) ............................................... 24

CONCLUSION

(para. 122) .................................................... 24

G. Recapitulation

(paras. 123-126) ................................................. 24

I. INTRODUCTION

1 . The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2 . The applicants are four full 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.

They are British citizens. A and B currently reside in residential or community homes while Z and C live with adoptive parents. They were represented before the Commission by Ms Penny Wood, a solicitor acting for the Official Solicitor and by Ms Nuala Mole of the Centre for Advice on Individual Rights in Europe.

3 . The application is directed against the United Kingdom.  The respondent Government were represented by their Agent, Ms Susan McCrory of the Foreign and Commonwealth Office, London.

4 . The case concerns the applicants’ allegations that the local authority 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 court or effective remedy in respect of this.  The applicants invoke Articles 3, 6, 8 and 13 of the Convention.

B. The proceedings

5 . The application was introduced on 9 October 1995 on behalf of Z, A, B and C and also on behalf of their sibling D, born in 1990. The application was registered on 28 November 1995.

6 . On 21 October 1996, the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.

7 . The Government's observations were submitted on 18 February 1997, after an extension of the time-limit fixed for this purpose.  The applicants replied on 16 June 1997 also after an extension of the time-limit.

8 . On 19 March 1997, the Commission granted the applicants legal aid for the representation of their case.

9 . On 1 December 1997, the Commission decided to hold a hearing of the parties to take place consecutively with a hearing in the case of TP and KM v. the United Kingdom (No. 28945/95). A question was communicated to the Government concerning issues arising under Article 6 of the Convention.

10 . On 6 March 1998, the Government submitted written observations on the issues arising under Article 6 of the Convention.

11 . On 24 April 1998, the Commission decided to join this application to No. 28945/95 for the purposes of the oral hearing only.

12 . On 12 May 1998, the Government submitted a written brief. On 18 and 22 May 1998, the applicants submitted further written information and documents.

13 . The hearing was held on 26 May 1998 in Strasbourg. The Government were represented by their Agent, Ms Susan McCrory, Baroness Scotland Q.C., and Mr David Anderson as Counsel, and Ms Sue Ryan, Ms Ann Gross and Ms Jenny Gray, as Advisers.  The applicants were represented by Mr Ben Emmerson and Ms Elizabeth Ann Gumbel, as Counsel, Ms Penelope Wood, Solicitor for the Official Solicitor and Ms Nuala Mole, legal adviser.

14 . On 26 May 1998, the Commission declared the application admissible.

15 . The text of the Commission's decision on admissibility was sent to the parties on 2 June 1998 and the Government were requested to provide further information. The parties were informed that the Commission had decided to adjourn further examination of the case pending the Court’s judgment in the Osman case (Mulkiye and Ahmed Osman v. the United Kingdom, No. 23452/94, Comm. Rep. 1.7.97).

16 . On 3 July 1998, the Government submitted a domestic case-law report. On 15 July 1998, the applicants provided a domestic judgment.

17 . On 22 July 1998, the Government provided, after an extension in the time-limit fixed for that purpose, the information and documents requested by the Commission.

18 . On 14 October 1998, the applicants’ representatives informed the Commission that the adoptive parents of D, the youngest child, had expressed the wish that her complaints to the Commission should be withdrawn.

19 . On 6 November 1998, the Commission invited the parties to make their final submissions in light of the Court’s judgment in the Osman case (Eur. Court HR, Osman v. the United Kingdom judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, p. 3124).

20 . Following an extension in the time-limit fixed for the purpose, the Government and the applicants submitted their final observations on 15 January 1999.

21 . On 26 March 1999, the Official Solicitor made submissions concerning the request of D’s adoptive parents that D be allowed to withdraw from the application.

22 . On 26 May 1999, the Government made comments concerning D’s application.

23 . On 6 September 1999, the Commission decided that D should cease to be an applicant for the purposes of the present application. In reaching that decision, it had regard to the expressed wishes of the adoptive parents who, in the normal course of events, would be the appropriate representatives of D and to the fact that the important Convention issues in the case would be examined in respect of the remaining applicants.

24 . After declaring the case admissible, the Commission, acting in accordance with former [1] Article 28 § 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.  In the light of the parties’ reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C. The present Report

25 . The present Report has been drawn up by the Commission in pursuance of former Article 31 of the Convention and after deliberations and votes, the following members being present:

MM S. TRECHSEL, President

A. WEITZEL

J.-C. SOYER

Mrs G.H. THUNE

Mrs J. LIDDY

MM L. LOUCAIDES

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

B. CONFORTI

Sir Nicolas BRATZA

MM D. ŠVÁBY

G. RESS

K. HERNDL

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

Mr A. ARABADJIEV

26 . The text of this Report was adopted on 10 September 1999 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with former Article 31 § 2 of the Convention.

27 . The purpose of the Report, pursuant to former Article 31 of the Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

28 . The Commission's decision on the admissibility of the application is annexed hereto.

29 . The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

30 . The applicants are four full siblings: Z, a girl, born in 1982; A, a boy, born in 1984; B, a boy, born in 1986; and C, a girl born in 1988.

31 . The applicants' parents were married in November 1981. The applicants' mother appeared to have had a difficult childhood during which she assumed a considerable amount of responsibility for two younger, disabled siblings.

32 . The family was first referred to social services in October 1987 by their health visitor because of concerns about the children and marital problems. Z was reported to be stealing food at night. Following the referral, a professionals' meeting, involving the relevant agencies, was held on 24 November 1987, at which it was decided that a social worker and health visitor should visit. The family were reviewed at a further meeting in March 1988 and as it appeared that concerns had diminished, the file was closed.

33 . In May 1988, a Homestart volunteer started working with the family at the request of the health visitor.

34 . In September 1988, a neighbour reported that the children were locked outside the house for most of the day.

35 . On 17 October 1988, C was born.

36 . In April 1989, the police reported that the children's bedrooms were filthy and a referral was also made by their General Practitioner that the children's bedrooms were filthy and that their doors were locked. The children's head teacher, Mrs Armstrong, expressed concern in May 1989 and requested a case conference. In June 1989, the NSPCC and the Emergency team made a referral after complaints by neighbours stating that the house was filthy and the children spent most of the day in their bedrooms, rarely being allowed out to play and crying frequently. In August 1989, the maternal grandmother complained to social services about the mother's care and discipline of the children.

37 . At a professionals' meeting on 4 October 1989, at which social services, the applicants' head teacher, general practitioner and health visitor attended, it was decided that no social worker would be allocated to the family. The school was to monitor the older children's weight and the health visitor was to continue to visit the family regularly. It was agreed that the problem was of limited and neglectful parenting rather than any risk of physical abuse and that the parents should be assisted to improve.

38 . In October 1989, whilst the applicants were on holiday their house was burgled. The police on entering found it in a filthy state. Used sanitary towels and dirty nappies were discarded in a cupboard and the children's mattresses were sodden with urine. The house was cleaned and new bed linen provided. At a professionals' meeting on 13 December 1989, the health visitor requested that the older four children be placed on the at risk register as she felt that their mother could not offer consistent care. This suggestion was rejected. However, a social work assistant, Ms M, was assigned to the family. It was not considered appropriate to convene a case conference at this stage. Prior to the meeting, Z and A had mentioned to the head teacher that A had been hit with a poker. It was decided that this statement would be investigated.

39 . At a professionals' meeting on 23 March 1990, an improvement was noted in respect of the cleanliness of the house, the children's bedding being clean save on two occasions. However, it was reported that Z and A were taking food from bins at the school. Ms M explained that the applicants' mother also expressed concern about A's aggressiveness and his bed-wetting and soiling. There was still considered to be cause for concern, especially since the birth of another child was expected.

40 . At a professionals' meeting on 11 July 1990, the applicants' headmistress reported a deterioration in the children's well-being; Z and A were still taking food from bins and A was soiling himself. Ms M was visiting weekly at this stage and said that she was checking the children's bedrooms. She had noted that the children ate at 16.00-16.30 hours and then did not eat again until the morning. The children were also sent to bed at 18.00 hours. A voluntary agency also planned to give the applicant's mother further assistance.

41 . In or about September 1990, A and B were both reported to have bruising on their faces. The police investigated after neighbours had reported screaming at the applicants' home but apparently found no signs of bruising. They made a referral to the social services stating that the conditions of the house were appalling and not fit for the children to live in.

42 . At a further professionals' meeting on 3 October 1990, the assistant social worker, Ms M, stated that she was concerned about the applicants' soiling and their mother's disinterest. There were concerns that the children were defecating in their bedroom and smearing excrement on their windows. The head teacher expressed concern, particularly concerning the boys A and B, and stated that the children had described blocks of wood being placed against their bedroom doors. It was decided to continue monitoring the children.

43 . A decision was made to arrange a case conference for January 1991 at a professionals' meeting on 5 December 1990 as a result of concern regarding the applicants' care and the state of their bedroom. Ms M considered that standards in the boys' bedroom had dramatically dropped. She found the room to be damp and smelly. A's bed was broken so it was sloping and had a metal bar sticking out. The bedding was damp and grubby with soil marks. The police had made a referral to Ms M. They had been called out by neighbours concerned for the children and though the children had no sign of bruising, the police stated that “the conditions of the house were appalling and not fit for children to live in”.

44 . In a report dated 24 January 1991, the headmistress stated that A was shabby, ill-kempt and often dirty and that he had been raiding the playground bins for apple cores. Z was pathetic, lacking in vitality and frequently and inexplicably tearful, becoming increasingly isolated from the other girls in her peer group with unfortunate incidents in which detrimental remarks were made about her appearance. B presented as withdrawn, pathetic and bedraggled. He regularly arrived cold, was frequently tearful and craved physical contact from adult helpers. He also appeared to crave for food.  She concluded that they were still concerned that the children’s needs were not being adequately met and that home conditions and family dynamics gave rise for concern.

45 . At the case conference held on 28 January 1991, Ms M stated that the boys’ bedroom had no light, carpet or toys and that their bedding was wet, smelly and soil-stained. Their mother did not change the beds. Their head teacher stated that Z was tearful and withdrawn, A had been raiding school bins and was often dirty and B was very withdrawn, craved attention and was ravenously hungry. The Chairman of the Conference concluded that despite the many concerns about the parenting of the applicants and the conditions in the home there was little evidence to support going to court. It was felt that the parents were not wilfully neglecting their children and, bearing in mind their own poor upbringing, it was considered that the applicants' parents were doing what they could and that continued support was required to try and improve the situation. It was decided not to place the children on the Child Protection Register.

46 . According to the later submissions made to the Criminal Injuries Compensation Board (see para. 72 below), on 5 March 1991 B was found to have “unusual” bruises on his back.

47 . At a later social services' meeting in April 1991, no change to the children's living conditions was noted. The head teacher stated that Z and A were still taking food from bins and that A was becoming more withdrawn. Ms M reported that the mother had stated that the children were taking food from the park bins on the way to school.

48 . In May 1991, the applicants' mother left home for a day leaving the children with her husband. In July 1991, she left home again and informed social services that the children would be better off living in care. On 12 August 1991, the social services received a phone call from a neighbour who stated that the children were frequently locked outside in a filthy back garden, that they constantly screamed and that they were kept for long periods in their bedrooms where they smeared faeces on their windows. The maternal grandparents later told the guardian ad litem that Z, who was treated by her mother as a little servant, was expected to clean the excrement from the windows.

49 . From 19 to 28 August 1991, the three older children spent several weeks with foster carers as respite care. The foster carers reported that A did not know how to wash, bathe or clean his teeth on arrival. He wet his bed every night and stole food from his brother. B was described as being “very frightened” ... He could not understand how he could play in the garden and the door was left open for him to come back in, he expected to be locked out”. He also had to be taught to use the toilet properly and to clean himself.

50 . At a professionals' meeting on 18 September 1991, Ms M stated that conditions in which the boys were sleeping was deteriorating. The mattresses in the boys' bedroom were ripped and the springs were coming through. The boys were stealing food, and C had also been seen to do this. Their mother stated that she could not control them. It was decided not to arrange a child protection meeting but to carry out a monthly weight check on the older three children at school and for the health visitor to check the weight of the youngest two children. It was also decided to arrange respite care for Z, A and B in the holidays and one weekend in four.

51 . In November-December 1991, C was found to have developed a squint. Their mother failed to keep appointments at the eye-clinic over the next months.

52 . At a professionals' meeting on 21 November 1991, it was reported that the applicants' mother had said that she could not control the applicants' behaviour which consisted of refusing to go to bed when asked and stealing food. It was considered that the home was in an acceptable condition, though the boys' room still needed attention. The children's weights were recorded. It was noted that Z had put on 2lbs in the previous two months whereas she had only put on 2½ lbs in the preceding two years. A had only put on 3lbs in a year. B had put on ½ lb in a year and was on 50% centile for height. C was on 25% for weight. There was a discussion about the three elder children being accommodated by the local authority to allow the mother "to get back on her feet". The social services considered a six week period whilst the general practitioner envisaged a period of 18 to 24 months.

53 . In December 1991, a social worker was introduced to the applicants’ mother with a view to assisting her with shopping, budgeting and cooking.

54 . Z, A and B were accommodated voluntarily between January and March 1992 when they gained weight. In March and again in April, their mother asked if A and B could be placed for adoption.

55 . On 14 January 1992, C. started to attend a nursery group at a family centre. She was noted to be unsocialised, lacking in confidence, unable to share and with poor speech.

56 . At a further professionals' meeting on 9 March 1992, it was decided that further respite care would be considered. The children’s' weights were noted, increases being seen for Z, A and B.

57 . The children’s parents divorced in April 1992.

58 . At another professionals' meeting on 30 April 1992, it was decided that applicants' mother's request that A and B be placed for adoption be followed up. The headmistress reported that A and B had not been stealing food. She also voiced concern over the fundamental pattern of the mother's care of the children, in particular in relation to Z's role in the home and the mothering role which she played.  Ms M reported that conditions were deteriorating for A and B.

59 . On 10 June 1992, the applicants' mother demanded that the children to be placed in care as she could not cope. She stated that if they were not removed from her care she would batter them. The applicants were placed in emergency foster care. The applicants were entered onto the Child Protection Register under the categories of neglect and emotional abuse after a Child Protection Meeting on 22 June 1992. No court proceedings were initiated.

60 . The applicants were all fostered separately. Initially, Z was noted to have dirty, ill-fitting clothes. She stated that she did not like living with her siblings as she did not like having to look after them all the time. A wet the bed every night, shunned physical contact and suffered nightmares. B did not know how to use the toilet or use toilet paper. C bonded very quickly with her foster parents.

61 . The applicants’ father was assessed as a potential carer whilst the children remained in foster care. The local authority decided to seek care orders in respect of the children on 8 October 1992. Interim care orders were made on 7 December 1992.

62 . A guardian ad litem was appointed on 18 January 1993 who recommended that all the applicants should be the subject of care orders in order to protect them from further harm. She stated that there was "an abundance of evidence that the children have been subjected to physical and mental ill-treatment." She noted that their health had also been neglected by their parents who frequently missed appointments with opticians and doctors.

63 . All the applicants were seen by Dr Dora Black, a consultant child psychiatrist in January 1993. Dr Black stated that the three older children were all showing signs of psychological disturbance. Z was exhibiting signs of serious depressive illness and had assumed responsibility for her family and for its breakdown. Her mother's behaviour towards her was described as cruel and emotionally abusive. A and B, who suffered from nightmares, were both identified as showing signs of post-traumatic stress disorder and A was also chronically under-attached. Dr Black noted that all children had been deprived of affection and physical care. She described their experiences as, “to put it bluntly, horrific” and added that the case was the worst case of neglect and emotional abuse that she had seen in her professional career. In her opinion, social services had “leaned over backwards to avoid putting these children on the Child Protection Register and had delayed too long, leaving at least three of the children with serious psychological disturbance as a result”.

64 . Full care orders were made in respect of the applicants on 14 April 1993 by Judge Tyrer sitting at Milton Keynes County Court.

65 . In June 1993, the Official Solicitor, acting as the applicants' Next Friend, commenced proceedings against the local authority claiming damages for negligence and/or breach of statutory duty arguing that the authority had failed to have regard to their welfare as was required by statute and should have acted more quickly and more effectively when apprised of their condition. It was argued that the local authority's failure to act had resulted in psychological damage. The application was struck out as revealing no cause of action by Mr Justice Turner on 12 November 1993.

66 . The applicants appealed to the Court of Appeal. On 28 February 1994 the Court of Appeal upheld the decision of Mr Justice Turner to strike out the action. However, the Master of the Rolls, Sir Thomas Bingham, dissented to the extent that he felt that no public policy issues arose to prevent the finding of a duty of care.

67 . The applicants appealed to the House of Lords. On 29 June 1995, the House of Lords decided on public policy grounds that local authorities enjoyed immunity from suit in respect of actions brought in negligence or breach of statutory duty concerning the discharge of their duties relating to the welfare of children under the Children Act 1989 in respect of child care. The case is reported as X and others v Bedfordshire County Council [1995] 3 AER 353.

68 . Lord Browne-Wilkinson gave the leading judgment. In respect of claims for breach of statutory duty he stated, inter alia , as follows :

“... My starting point is that the Acts in question are all concerned to establish an administrative system designed to promote the social welfare of the community. The welfare sector involved is one of peculiar sensitivity, involving very difficult decisions how to strike the balance between protecting the child from immediate feared harm and disrupting the relationship between the child and its parents. In my judgment in such a context it would require exceptionally clear statutory language to show a parliamentary intention that those responsible for carrying out these difficult functions should be liable in damages if, on subsequent investigation with the benefit of hindsight, it was shown that they had reached an erroneous conclusion and therefore failed to discharge their statutory duties. ...

When one turns to the actual words used in the primary legislation to create the duties relied upon in my judgment they are inconsistent with any intention to create a private law cause of action.”

69 . As regards the claims that the local authority owed a duty of care to the applicants pursuant to the tort of negligence, Lord Browne-Wilkinson stated, inter alia , as follows:

“I turn then to consider whether, in accordance with the ordinary principles laid down in Caparo [1990] 2 A.C. 605, the local authority ... owed a direct duty of care to the plaintiffs. The local authority accepts that they could foresee damage to the plaintiffs if they carried out their statutory duties negligently and that the relationship between the authority and the plaintiffs is sufficiently proximate. The third requirement laid down in Caparo is that it must be just and reasonable to impose a common law duty of care in all the circumstances ...

The Master of the Rolls took the view, with which I agree, that the public policy consideration that has first claim on the loyalty of the law is that wrongs should be remedied and that very potent counter considerations are required to override that policy (see [1994] 4 AER 602 at 619). However, in my judgment there are such considerations in this case.

First, in my judgment a common law duty of care would cut across the whole statutory system set up for the protection of children at risk. As a result of the ministerial directions contained in “Working Together” the protection of such children is not the exclusive territory of the local authority's social services. The system is inter-disciplinary, involving the participation of the police, educational bodies, doctors and others. At all stages the system involves joint discussions, joint recommendations and joint decisions. The key organisation is the Child Protection Conference, a multi-disciplinary body which decides whether to place the child on the Child Protection Register. This procedure by way of joint action takes place, not merely because it is good practice, but because it is required by guidance having statutory force binding on the local authority. The guidance is extremely detailed and extensive: the current edition of “Working Together” runs to 126 pages. To introduce into such a system a common law duty of care enforceable against only one of the participant bodies would be manifestly unfair. To impose such liability on all the participant bodies would lead to almost impossible problems of disentangling as between the respective bodies the liability, both primary and by way of contribution, of each for reaching a decision found to be negligent.

Second, the task of the local authority and its servants in dealing with children at risk is extraordinarily delicate. Legislation requires the local authority to have regard not only to the physical well-being of the child but also to the advantages of not disrupting the child's family environment. ... In one of the child abuse cases, the local authority is blamed for removing the child precipitately; in the other for failing to remove the children from their mother. As the Report of the Inquiry into Child Abuse in Cleveland 1987 (Cmnd. 412) (“Cleveland Report 1987”) said, at p. 244:

‘... It is a delicate and difficult line to tread between taking action too soon and not taking it soon enough. Social services whilst putting the needs of the child first must respect the rights of the parents; they also must work if possible with the parents for the benefit of the children. These parents themselves are often in need of help. Inevitably a degree of conflict develops between those objectives.’

Next, if liability in damages were to be imposed, it might well be that local authorities would adopt a more cautious and defensive approach to their duties. For example, as the Cleveland Report makes clear, on occasions the speedy decision to remove the child is sometimes vital. If the authority is to be made liable in damages for a negligent decision to remove a child (such negligence lying in the failure properly first to investigate the allegations) there would be a substantial temptation to postpone making such a decision until further inquiries have been made in the hope of getting more concrete facts. Not only would the child in fact being abused be prejudiced by such delay, the increased workload inherent in making such investigations would reduce the time available to deal with other cases and other children.

The relationship between the social worker and the child's parents is frequently one of conflict, the parent wishing to retain care of the child, the social worker having to consider whether to remove it. This is fertile ground in which to breed ill-feeling and litigation, often hopeless, the cost of which both in terms of money and human resources will be diverted from the performance of the social service for which they were provided. The spectre of vexatious and costly litigation is often urged as a reason for not imposing a legal duty. But the circumstances surrounding cases of child abuse make the risk a very high one which cannot be ignored.

If there were no other remedy for maladministration of the statutory system for the protection of children, it would provide substantial argument for imposing a duty of care. But the statutory complaints procedures contained in section 76 of the 1980 Act and the much fuller procedures now available under the 1989 Act provide a means to have grievances investigated though not to recover compensation. Further, it was submitted (and not controverted) that the local authorities Ombudsman would have power to investigate cases such as these.

Finally, your Lordships' decision in Caparo [1990] 2 A.C. 605 lays down that in deciding whether to develop novel categories of negligence the court should proceed incrementally and by analogy with decided categories. We were not referred to any category of case in which a duty of care has been held to exist which is in any way analogous to the present cases. Here, for the first time, the plaintiffs are seeking to erect a common law duty of care in relation to the administration of a statutory social welfare scheme. Such a scheme is designed to protect weaker members of society (children) from harm done to them by others. The scheme involves the administrators in exercising discretion and powers which could not exist in the private sector and which in many cases bring them into conflict with those who, under the general law, are responsible for the child's welfare. To my mind, the nearest analogies are the cases where a common law duty of care has been sought to be imposed upon the police (in seeking to protect vulnerable members of society from wrongs done to them by others) or statutory regulators of financial dealing who are seeking to protect investors from dishonesty. In neither of these cases has it been thought appropriate to superimpose on a statutory regime a common law duty of care giving rise to a claim in damages for failure to protect the weak against the wrongdoer. ... In my judgment, the courts should proceed with great care before holding liable in negligence those who have been charged by Parliament with the task of protecting society from the wrong doings of others.”

70 . Z and C, the two female applicants, have now been adopted. A and B were initially in foster care. Following the breakdown of the adoptive placement of B, he was placed in a therapeutic residential placement in July 1995. In January 1996, A was placed in a therapeutic community.

71 . In March 1996, applications were made to the Criminal Injuries Compensation Board (CICB) on behalf of all the children by the adoption society to whom the local authority had delegated certain responsibilities. It was claimed on behalf of Z that she had suffered severe neglect and chronic deprivation which rendered it likely that specialist care would be necessary during her adolescence where emotional repercussions of the abuse might become apparent; on behalf of A that he had suffered physical deprivation, emotional abuse, physical abuse [2] and possible sexual abuse [3] - he had suffered permanent physical scarring and was still receiving treatment from a child psychiatrist; on behalf of B. that he had suffered extreme physical and emotional deprivation and shown signs of sexual abuse [4] - he also had suffered permanent physical scarring and was receiving therapy; and on behalf of C that she had suffered extreme physical and emotional deprivation, and in addition that her need for eye treatment was not met by her parents.

72 . In February 1997, the CICB awarded Z GBP 1000, A GPB 3000 and B GPB 3000 for injuries suffered between 1987 and 1992; and C GPB 2000 for injuries suffered between 1988 and 1992.  In a letter dated 20 May 1998 from the CICB to the Official Solicitor, it was stated:

“The Board Member who assessed these cases recognised that the children were exposed to appalling neglect over an extended period but explained to their advisers that the Board could not make an award unless it was satisfied on the whole available evidence that an applicant had suffered an injury - physical or psychological - directly attributable to a crime of violence... He was nevertheless satisfied, that setting aside “neglect” the children had some physical and psychological injury inflicted upon them as enabled him to make an award to each child...”

B. Relevant domestic law

Local authority's duties in respect of child care

73 . Prior to the coming into force of the current legislation, the Children Act 1989, on 14 October 1991, the local authority's duty in respect of child care was governed by the Child Care Act 1980.

74 . Sections 1 and 2 of the Child Care Act 1980 provided that

“1. It shall be the duty of every local authority to make available such advice, guidance and assistance as may promote the welfare of children by diminishing the need to receive or keep them in care.

2(1) Where it appears to a local authority with respect to a child in their area appearing to them to be under the age of seventeen-

(a) that he has neither parent nor guardian or has been and remains abandoned by his parents or guardian or is lost;

(b) that his parents or guardian are, for the time being or permanently, prevented by reason of mental or bodily disease or infirmity or other incapacity or any other circumstances from providing for his proper accommodation, maintenance and upbringing; and

(c) in either case, that the intervention of the local authority under this section is necessary in the interests of the welfare of the child, it shall be the duty of the local authority to receive the child into their care under this section”.

75 . Section 17 of the Children Act 1989 provides, inter alia, that

“17. Provision of services for children in need, their families and others

(1) It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)-

(a) to safeguard and promote the welfare of children within their area who are in need; and

(b) so far as is consistent with that duty, to promote the upbringing of such children by their families, by providing a range and level of services appropriate to those children's needs.

(2) For the purpose principally of facilitating the discharge of their general duty under this section, every local authority shall have the specific duties and powers set out in Part 1 of Schedule 2 ...

(10) For the purposes of this Part a child shall be taken to be in need if-

(a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining a reasonable standard of health or development without the provision for him of services by a local authority under this Part;

(b) his health or development is likely to be significantly impaired or further impaired, without the provision for him of such services; or

(c) he is disabled ...

(11) ... in this Part

“development” means physical, intellectual, emotional, social or behavioural development; and

“health” means physical or mental health”.

76 . Part III of the Children Act 1989 deals with local authority support for children and families. The policy of the Act is made clear by paragraph 7 of Part i of Schedule 2, which requires local authorities to take reasonable steps designed to reduce the need to bring proceedings relating to children.

77 . Section 20 provides that

“20(1) Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of-

(a) there being no person who has parental responsibility for him;

(b) his being lost or having been abandoned; or

(c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.

(4) A local authority may provide accommodation for any child within their area (even though a person who has parental responsibility for him is able to provide him with accommodation) if they consider that to do so would safeguard or promote the child's welfare”.

78 . Part V of the Children Act 1989 deals with the protection of children. Section 47 provides as follows

“47(1) Where a local authority -...

(b) have reasonable cause to suspect that a child who lives or is found, in their area is suffering, or is likely to suffer, significant harm,

the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child's welfare ...

(8) Where, as a result of complying with this section, a local authority conclude that they should take action to safeguard or promote the child's welfare they shall take action (so far as it is within their power and reasonably practicable for them to do so)”.

The complaints procedures

79 . The complaints procedure is provided by section 26 of the Children Act 1989

“26 Review of cases and inquiries into representations ...

(3) Every local authority shall establish a procedure for considering any representations (including any complaint) made to them by -

(a) any child...who is not being looked after by them but is in need;

(b) a parent of his; ...

(e) such other person as the authority consider has a sufficient interest in the child's welfare to warrant his representations being considered by them,

about the discharge by the authority of any of their functions under this Part in relation to the child.

(4) The procedure shall ensure that at least one person who is not a member or officer of the authority takes part in-

(a) the consideration; and

(b) any discussions which are held by the local authority about the action (if any) to be taken in relation to the child in the light of this consideration ...

(7) Where any representation has been considered under the procedure established by the local authority under this section, the authority shall -

(a) have due regard to the findings of those considering the representation; and

(b) take such steps as are reasonably practicable to notify (in writing)-

(i) the person making the representation;

(ii) the child (if the authority consider that he has sufficient understanding) and

(iii) such other persons (if any) as appear to the authority to be likely to be affected,

of the authority's decision in the matter and their reasons for taking that decision and of any action which they have taken, or propose to take.

(8) Every local authority shall give such publicity to their procedure for considering representations under this section as they consider appropriate”.

80 . The powers of the Secretary of State to investigate the actions of the local authority are set out in sections 81 and 84 of the Children Act 1989.

“81(1) The Secretary of State may cause an inquiry to be held into any matter connected with -

(a) the function of the social services committee of a local authority, in so far as those functions relate to children; ...

84 Local authority failure to comply with statutory duty: default power of Secretary of State

(1) If the Secretary of State is satisfied that any local authority has failed, without reasonable excuse, to comply with any of the duties imposed on them by or under this Act he may make an order declaring that authority to be in default with respect to that duty ...

(3) Any order under subsection (1) may contain such directions for the purpose of ensuring that the duty is complied with, within such period as may be specified in the order, as appears to the Secretary of State to be necessary.

(4) Any such directions shall, on the application of the Secretary of State, be enforceable by mandamus.”

Domestic case-law

81 . The decision in X and others v Bedfordshire County Council 1995 3 AER 353 is the leading authority in the United Kingdom in this area. It holds that local authorities could not be sued for negligence or for breach of statutory authority in respect of the discharge of their duties concerning the welfare of children. The leading judgment is reported at length in the facts above.

82 . Since the X. and others case, there has been two further judgments regarding the extent of liability of local authorities in child care matters.

83 . The Court of Appeal gave judgment in the W. and Others v. Essex County Council (1998 3 All ER p. 111, judgment of 2 April 1998). This case concerned the claims by a mother and father (first and second plaintiffs), 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. During G’s stay in their home, the plaintiffs’ three children (fourth to sixth plaintiffs) were all sexually abused and suffered psychiatric illness. The plaintiffs brought an action against the local authority and the social worker involved, claiming damages for negligence and for negligent misstatement. On the defendants’ application to strike out the statement of claim as disclosing no reasonable cause of action, the judges struck out the parents’ claims but refused to strike out the claims of the children. The Court of Appeal upheld his decision. The headnote for the judgment summarised the Court of Appeal’s findings as follows:

“(1) Although no claim in damages lay in respect of decisions by a local authority in the exercise of a statutory discretion, if the decision complained of was so unreasonable that it fell outside the ambit of the discretion conferred, there was no a priori reason for excluding common law liability. In the instant case, the giving of information to the parents was part and parcel of the defendants’ performance of their statutory powers and duties, and it had been conceded that it was arguable that those decisions fell outside the ambit of their discretion. Accordingly, since it had also been conceded that the damage to the children was reasonably foreseeable and that there was sufficient proximity, the question for the court was whether it was just and reasonable to impose a duty of care on the council or the social worker. Having regard to the fact that common law duty of care would cut across the whole statutory set up for the protection of children at risk, that the task of the local authority and its servants in dealing with such children was extraordinarily difficult and delicate, that local authorities might adopt a more defensive approach to their duties if liability in damages were imposed, that the relationship between parents and social workers was frequently one of conflict and that the plaintiff children’s injuries were compensatable under the Criminal Injuries Compensation Scheme, it was not just and reasonable to do so.  It followed that no duty of care was owed to the plaintiff parents who in any event were secondary victims in respect of their claim for psychiatric illness ...

(2) (Stuart-Smith LJ dissenting) It was arguable that the policy considerations against imposing a common law duty of care on a local authority in relation to the performance of its statutory duties to protect children did not apply when the children whose safety was under consideration were those in respect of whom it was not performing any statutory duty. Accordingly, since in the instant case, the plaintiff children were not children for whom the council had carried out any immediate caring responsibilities under the child welfare system but were living at home with their parents, and express assurances had been given that a sexual abuser would not be placed in their home, their claim should proceed ...”

84 . The House of Lords gave judgment on 17 June 1999 in Barrett v. the London Borough of Enfield. That case concerned the claims of the plaintiff, who had been in care from the age of ten months to seventeen years, that the local authority had negligently failed to safeguard his welfare causing him deep-seated psychiatric problems. The local authority had applied to strike out the case as disclosing no cause of action. The House of Lords, upholding the plaintiff’s appeal, unanimously held, albeit for a variety of reasons, that the case of X. and Others v. Bedfordshire County Council did not in the circumstances of this case prevent a claim of negligence being brought against a local authority by a child formerly in its care.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

85 . The Commission declared admissible the applicants’ complaints:

- that the local authority failed to protect them from ill-treatment by their parents in circumstances where the social services were aware of the serious neglect and abuse which they suffered at home;

- that the local authority failed to protect their physical and moral integrity;

- that they had no access to court in respect of their complaints;

- that they were denied an effective remedy in respect of their complaints.

B. Points at issue

86 . The points at issue in the present case are as follows:

- whether there has been a violation of Article 3 of the Convention;

- whether there has been a violation of Article 8 of the Convention;

- whether there has been a violation of Article 6 of the Convention;

- whether there has been a violation of Article 13 of the Convention.

C. As regards Article 3 of the Convention

87 . Article 3 provides that:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

88. The applicants submit that over a five year period they were subject to gross neglect and maltreatment, with the result, inter alia , that they were never properly fed and lived in insanitary conditions and were also subjected to physical abuse. This had devastating effects on their physical and psychological health and clearly discloses that they suffered inhuman and degrading treatment contrary to Article 3. They contend that the existing statutory framework which imposed a duty on the local authority to protect them contained insufficient safeguards to ensure that adequate preventative steps were taken.  They submit that the local authority was aware that they were suffering inhuman and degrading treatment and failed to comply with their positive obligation under Article 3 to take adequate and appropriate measures within their power which, judged reasonably, might have been expected to bring the treatment to an end or to prevent such treatment from occurring. They rely mutatis mutandis on the Court’s reasoning in the Osman case (Eur. Court HR, Osman v. the United Kingdom judgment of 28 October 1998, Reports 1998-VIII, para. 116). They also refer to the Court’s judgment in the Assenov case, (Eur. Court HR, Assenov and others v. Bulgaria judgment of 28 October 1998, Reports 1998-VIII, p. 3264) in which the Court held that Article 3 required an effective official investigation into allegations of inhuman and degrading treatment for which the State is allegedly responsible.

89. The respondent Government submit that the evidence before the Commission, which has not been tested in court, is an insufficient and incomplete basis on which to reach the conclusion that the four applicants were subjected to inhuman and degrading treatment contrary to Article 3 of the Convention. The Government contend that, even if the children were so treated, any positive obligation owed by the local authority to protect the children was fulfilled since there were in existence sufficient procedural safeguards under the statutory child protection system and the local authority carried out careful monitoring of the family in accordance with their statutory duties. They emphasise that the State cannot guarantee that parents will not ill-treat their children and that in all cases the local authority, in light of their knowledge at the relevant time, have to strike a very careful balance in arriving at a judgment about whether to remove the children from their parents or to provide the family with support to enable them to offer an acceptable standard of care.

90. The Commission recalls that ill-treatment must be of a certain minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects, and where relevant, the sex, age and state of health of the victim (see eg. Eur. Court HR, the Costello-Roberts v. the United Kingdom judgment of 25 March 1993, Series A no. 247-C, p. 59, para. 30).

91. In the present case, the Commission observes that the four children were taken into care on the basis of applications made by the relevant public body under section 31 of the Children Act 1989, that the applicants had suffered or where likely to suffer significant harm if the orders were not made. While, as the Government states, the allegations of ill-treatment were not tested by cross-examination, the Commission finds that the Government have not sought to call into question the reports made from 1988 onwards that the children were showing signs of under-nutrition, were being locked in their rooms which were frequently in a soiled and unhygienic state and that they disclosed signs of emotional abuse and neglect nor are they contending that the care orders were not properly made. The Commission further notes the findings of the Criminal Injuries Compensation Board which referred to the children having suffered appalling neglect and in addition made awards of compensation on the basis that they had suffered physical and psychological injury. It in particular notes the lasting damage inflicted on the two boys, A and B, who are still undergoing therapeutic treatment and the likelihood that Z will be in need of psychological treatment due to emotional repercussions of the severe neglect which she suffered. In these circumstances, the Commission finds that the treatment suffered by the four children in this case reaches the level of severity prohibited by Article 3 of the Convention.

92. It remains to be determined whether the State should be held responsible, under Article 3, for the inhuman and degrading treatment inflicted on the applicants by their parents.

93. The Court has held that the obligation on High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including such ill-treatment administered by private individuals .(see Eur. Court HR, A. v. the United Kingdom judgment of 23 September 1998, Reports 1998-VI, p. 2692, para. 22). In the aforementioned case, A. v. the United Kingdom ( loc. cit ), it was held that children in particular were entitled to effective protection, in the form of effective deterrence, against such serious breaches of personal integrity. The Commission considers that the protection of children who by reason of their age and vulnerability are not capable of protecting themselves requires not merely that the criminal law provides protection against Article 3 treatment but that, additionally, this provision will in appropriate circumstances imply a positive obligation on the authorities to take preventive measures to protect a child who is at risk from another individual (see, mutatis mutandis , Osman v. the United Kingdom judgment, op. cit. , para. 15). The Commission notes in this regard the international recognition accorded to this principle in Article 19 of the United Nations Convention on the Rights of the Child, which enjoins States to take all appropriate measures “to protect the child from all forms of physical and mental violence, injury or abuse”.

94. It is not disputed in the present case that the local authority was under a duty to take measures to protect the welfare of the four children in this case and that they had a range of powers available to them, inter alia , to investigate any allegations of ill-treatment, to place in approved accommodation, to take into emergency care and to apply for care orders. In these circumstances, the Commission considers that they may be regarded as subject to the positive obligation to take those steps that could be reasonably expected of them to avoid a real and immediate risk of ill-treatment contrary to Article 3 of which they knew or ought to have had knowledge (see, mutatis mutandis , Osman v. the United Kingdom, op. cit ., para. 16). In assessing such a positive obligation, the requirement on local authorities to exercise their powers concerning children in a manner which respects the rights of parents and other family members guaranteed under Article 8 of the Convention is a relevant consideration.

95. The Commission recalls that the local authority were aware that concerns existed as to whether the applicants were being ill-treated from October 1987. Problems as concerned the children stealing food (Z and A), being under-nourished, behavioural disturbances and developmental delays and the insanitary conditions of their living conditions prevailed consistently over the four-years eight months that followed until they were taken into care in June 1992. There were from an early stage suspicions that there was physical abuse (that the two boys A and B had been beaten with a poker) and disturbing indications throughout that the children were suffering psychologically and developmentally. The Commission is accordingly satisfied that the local authority knew that the children were suffering, and were at risk of continuing, neglect and ill-treatment by their parents.

96. The Commission has therefore considered what measures the local authority took in respect of the known risk to the children. From October 1989, there were periodic meetings held by the local authority at which reports were made of the situation in the applicants’ home. The situation was being continuously monitored from that time. In December 1989, a social work assistant was assigned to the family, who thereafter reported to the local authority her contacts and visits to the home. A health visitor continued visiting, as well a homestart helper and a reference was made in July 1990 to a voluntary agency giving the mother assistance as well a social worker being made available to help with shopping and budgeting. However, by January 1991, the Chairman of the case conference concluded that despite the many concerns it was not felt that the parents were wilfully neglecting the children and that continued support was required to try and improve the situation. No step was taken at that stage therefore to place the children on the at risk register. Periods of respite care were given by way of support to the mother during the following year, the three older children going to foster carers in August 1991 and January to March 1992. The Commission observes that, while the children’s weight was being monitored by the school and some improvements were noted from time to time in the conditions in the house (March 1990 and November 1991), serious problems persisted throughout this period.

97. The Commission considers that while the local authority were initially justified in taking steps to maintain the family as a unit by giving support to the parents, in particular the mother, the gravity of the conditions and behavioural problems suffered by the applicants required that effective and practical steps be taken to safeguard their welfare when the situation at home failed to show a significant and reasonably timeous improvement. The approach adopted of monitoring the family with occasional periods of respite care over a period of more than four years appears to have overlooked the signs that the children were suffering physical and psychological damage which, with the lapse of time, would be likely to cause long-term, even permanent, problems. The failure to give this aspect any weight is reflected by the fact that the local authority did not convene a full case conference until January 1991, the decision not to place the children on the at risk register in January 1991 and the fact that this was not done until the mother insisted that the children were taken into care in June 1992, the fact that no senior social worker was assigned to the family (it was only an assistant who visited the family throughout this period), that no individual social work assistance was assigned to the older children, in particular the oldest child Z, that no steps were taken to obtain psychological assessment by a properly qualified professional of the problems exhibited by the children and the limited consideration given to the use of statutory powers to provide the children with alternative accommodation or carers on anything but a respite basis. The Commission would observe that the protection mechanisms operating in this case made no provision for representation of the interests of the children until care proceedings were instituted at the end of 1992, at which point a guardian ad litem was appointed. It is not apparent therefore that the position of the children was attended by any safeguards in the decision-making structure to ensure that the risk of damage to them was effectively taken into account.

98. The Commission is aware that social services face difficult and delicate decisions when intervening in family situations and that it would impose an impossible burden, incompatible with the rights of the parents, to require them to try to prevent all instances of abuse and neglect. It also recognises that neglect manifests itself in more insidious and invisible effects than some types of physical abuse and may have a cumulative effect the seriousness of which is not readily apparent. The Commission is nonetheless satisfied in the present case that the authorities were aware of the serious ill-treatment and neglect suffered by the applicants over a period of years at the hands of their parents and failed, despite the means reasonably available to them, to take any effective steps to bring it to an end. It finds therefore that the State has failed in its positive obligation under Article 3 of the Convention to provide the applicants with adequate protection against inhuman and degrading treatment.

CONCLUSION

99. The Commission concludes, unanimously, that in the present case there has been a violation of Article 3 of the Convention.

D. As regards Article 8 of the Convention

100. Article 8 provides as relevant:

“1. Everyone has the right to respect for his private 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.”

101. The applicants submit that the circumstances in which they suffered ill-treatment that caused them psychological and physical injury disclosed a serious infringement of their moral and physical integrity contrary to their right to respect for private life.

102. Having regard to its findings above under Article 3, the Commission finds no separate issue arising under Article 8 of the Convention.

CONCLUSION

103. The Commission concludes, unanimously, that no separate issue arises under Article 8 of the Convention.

E. As regards Article 6 of the Convention

104. Article 6 provides as relevant:

“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.”

105. The applicants submit that their claims alleging negligence and/or breach of statutory duty by the local authority were based on rights arguably existing in domestic law and that the decision of the House of Lords acted, effectively, to bestow an immunity on local authorities. The applicants rely on the Court’s judgment in the Osman case (Eur. Court HR, op. cit. , paras. 138-139) They argue that as in that case it was open to them to argue in the courts as to whether it would be fair, just and reasonable to impose a duty of care on a public authority so as to give rise to a potential cause of action in negligence. That other public policy considerations can come into play in favour of imposing a duty of care is indicated by the recent case of W. C. Essex County Council (1998 3 All ER p.111). Further, it was clear from the House of Lords judgment that the matter was arguable either way.  They emphasise that in their case the local authority conceded that they could foresee damage to the applicants if they carried out their duties negligently and that relationship was sufficiently proximate. The immunity bestowed on the local authority was in the circumstances disproportionate and inflexible and deprived the applicants of the essence of their right of access to court to argue the justice of their case. They refer in particular to the seriousness of the harm inflicted on them and the inability of the courts to distinguish between degrees of negligence or harm involved.

106. The Government submit that the applicants cannot claim any right under domestic law to sue the local authority for damages in negligence and/or breach of statutory duty and that the decisions of the courts, which applied wholly conventional principles of English substantive law, cannot be regarded as disclosing any denial of access to court contrary to Article 6 of the Convention. They emphasise that the applicants’ claims failed for substantial reasons, namely, on the basis that even if their allegations were true they disclosed no substantive cause of action, and not because of any procedural bar. While in the Osman case ( op. cit .), there had been a number of precedents for finding the police liable in negligence, in the present case the applicants’ claims were novel and entirely speculative, based on no analogous precedent. Further, even assuming that there had been a limitation on the right of access to court, they argue that it pursued, in a proportionate manner, the legitimate aim of safeguarding the effective exercise of the statutory duties imposed on local authorities. They refer to the extremely difficult balance which a local authority has to strike between protecting the child from harm and disrupting the child-parent relationship, the fact that the protection of children is not the exclusive territory of the local authority social services but a multidisciplinary system involving police, education officers, doctors etc, the likelihood that if liability in damages were imposed the local authorities might impose a more cautious defensive approach to their duties and the fact that the relationship between parents and social workers is frequently one of conflict, increasing the risk of costly litigation diverting money and resources from the social service concerned. They also point out that local authorities remain liable where they acted outside their statutory duties or in other specified circumstances and that applicants have available to them redress through the Criminal Injuries Compensation Scheme and the ombudsman. The approach of the domestic courts in this and other cases show that decisions are not taken on the basis of a “blanket immunity” but on a consideration of the relative weights of the particular policy factors relevant in the case.

107. The Commission has considered first of all whether Article 6 para. 1 is applicable to the present case. It recalls that this provision secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. As the Government has emphasised, this does not in itself guarantee any particular content for the “rights and obligations” in the substantive law of the Contracting States. However, it does extend to disputes (“contestations”) over rights and obligations which can be said, at least on arguable grounds, to be recognised under domestic law and in which the actual existence of a “civil right” may be at stake (see, amongst other authorities, Eur. Court HR, James v. the United Kingdom judgment of 21 February 1986, Series A no. 98, para. 81; Ashingdane v. the United Kingdom judgment of 28 May 1985,Series A no. 93, para. 55).

108. The Commission recalls that in the present case the applicants brought proceedings based on negligence and breach of statutory duty in respect of alleged damage suffered by them. This action was struck out as revealing no cause of action by a High Court judge, a decision upheld on appeal by two out of three Court of Appeal judges and unanimously by the House of Lords. In summary, the claim of breach of statutory duty was dismissed on the basis that, applying principles of statutory interpretation, there was no clear indication that the statute was intended to impose liability in damages and the claim of negligence on the basis that important public policy considerations were such that it could not be considered just or reasonable to impose a duty of care on local authorities in respect of the carrying out of their statutory duties of protection of children.

109. The Commission observes that the applicants’ arguments relate principally to the existence of a right in negligence and that they have not submitted that the House of Lords judgment has imposed an immunity from suit on the social services in respect of actions for breach of statutory duty. It notes that the reasoning of the courts concerning the claims of breach of statutory duty appears to apply general principles of statutory interpretation and it does not consider it necessary to examine this aspect further. As regards the applicants’ negligence claim, the Commission notes the similarity between the domestic law issues involved in this case and in the Osman case ( op. cit .). In the latter case, where domestic courts had laid down an exclusionary rule to protect the police from negligence actions concerning the investigation and prevention of crime, the Court found that the applicants must be taken to have had a right, derived from the law of negligence, to seek an adjudication on the admissibility and merits of an arguable claim that they were in a relationship of proximity to the police, that the harm caused was foreseeable and that in the circumstances it was fair, just and reasonable not to apply the exclusionary rule- the so-called constituent elements of the duty of care which is a precondition for liability in negligence.

110. The Commission sees no basis on which to reach a different conclusion in the present case. It observes that in his judgment in the House of Lords, Lord Browne-Wilkinson referred to the exclusionary rule applied to the police as furnishing one of the nearest analogies. Furthermore, until the present case, there was no precedent which established that the applicants could not make claims against the local authority for damage resulting from their negligence and the matter was considered sufficiently arguable in domestic law terms to warrant the provision of legal aid by the Legal Aid Board and for the Court of Appeal to grant leave to appeal to the House of Lords.

111. The Commission finds that the applicants’ claims against the local authority were arguably based on an existing right in domestic law. It has therefore examined whether they have been deprived of effective access to court in the determination of their civil rights by the application of an exclusionary rule protecting local authorities from negligence actions in relation to the performance of its statutory duties to protect children.

112. The case-law of the Convention organs establishes that the right of access secured by Article 6 para. 1 is not absolute but may be subject to limitations, since the right of access by its very nature calls for regulation by the State, which regulation may vary in time and place according to the needs and resources of the community and of individuals. In laying down regulations, the Contracting States enjoy a certain margin of appreciation, but the final decision as to the observance of the Convention’s requirements rests in Strasbourg.  The Convention organs must be satisfied that the limitations applied do not restrict the access of the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 para. 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (Eur. Court HR, Ashingdane v. the United Kingdom judgment, op. cit ., para. 57, Lithgow and others v. the United Kingdom judgment of 8 July 1986, Series A no. 102, para. 194).

113. The Commission recalls that the applicants’ claims did not proceed to trial or obtain a determination on the merits or the facts on which they were based. The House of Lords upheld the decisions of the lower courts applying an exclusionary rule to protect the social services from negligence actions in matters concerning the exercise of their child protection duties. While the Government have submitted that the principles applied by the domestic courts do not disclose a blanket immunity but a balancing exercise by which competing policy considerations can be assessed, the Commission finds that the House of Lords judgment unequivocally rejected the applicants’ claims on the basis that actions against the social services for decisions taken in relation to their child protection functions were to be excluded. The Commission is not persuaded that the other domestic cases referred to by the Government contradicts this position. They appear rather to identify other situations, not involving the child protection aspect of local authority responsibility, in which liability is not so excluded. The Commission finds therefore that the courts in the applicants’ case imposed a restriction on their access to court by the application of a bar to their claims operating to protect a particular defendant from negligence actions for damage caused in a particular sphere of their competence.

114. The Commission accepts that this restriction pursued a legitimate aim, namely, to preserve the efficiency of a vital sector of public service (see the Government’s arguments above and the factors referred to by Lord Browne-Wilkinson, para. 69 above). However, it is not satisfied that it was proportionate to that aim. It notes that the exclusionary rule gave no consideration to the seriousness or otherwise of the damage or the nature or degree of the negligence alleged or the fundamental rights of the applicants’ which were involved. As regards the multidisciplinary aspects of child protection work, this may provide a factual complexity to cases but cannot by itself provide a justification for excluding liability from a body found to have acted negligently. The risk that liability would open a floodgate of litigation from discontented parents or relatives is a speculative factor which is only of limited weight. The conflictual nature of child care work equally reflects the fact that it frequently concerns matters of fundamental individual importance. The Commission notes that the tests of foreseeability of damage and proximity serve already as limitations of the categories of plaintiffs who can legitimately claim against allegedly negligent local authorities and is not impressed by the argument that liability would render the social services more cautious in the exercise of their powers.

115. The Commission finds that the possibility of applying for criminal injuries compensation or for an investigation by the ombudsman does not provide the applicants with adequate, alternative means of obtaining redress in respect of their claims. The former does not concern their complaint that the local authority failed in their duty to protect them from foreseeable and preventable harm and the latter does not provide any enforceable right to compensation in respect of the damage suffered, the ombudsman having only recommendatory powers. As held in the Osman case ( op. cit . above, para. 153), the applicants were entitled to have the local authority account for its acts and omissions in adversarial proceedings.

116. The Commission concludes that the application of the exclusionary rule to the applicants’ claims constituted a disproportionate restriction on their right of access to court.

CONCLUSION

117. The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 of the Convention.

F. As regards Article 13 of the Convention

118. Article 13 provides:

“Everyone whose rights and freedoms as set forth in this 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.”

119. The applicants submit that they had no effective remedies in respect of their complaints, since, inter alia , the local authority ombudsman may only make recommendations and the awards for criminal injuries do not address the complaints concerning the failure of the local authority to protect them.

120. The Government submit that effective remedies were available to the applicants, including awards of compensation under the criminal injuries compensation scheme (which were made to each applicant) and the possibility of applying for an investigation by the local authority ombudsman.

121. Having regard to its finding above under Article 6 para. 1, the Commission finds that it is not necessary to make a separate examination of the applicants’ complaints under Article 13 of the Convention as “its requirements are less strict than, and are here absorbed by, those of Article 6 para. 1” (see, amongst other authorities, Eur. Court HR, R. v. the United Kingdom judgment of 8 July 1987, Series A no. 121, p. 126, para. 90).

CONCLUSION

122. The Commission concludes, unanimously, that no separate issue arises under Article 13 of the Convention.

G. Recapitulation

123. The Commission concludes, unanimously, that in the present case there has been a violation of Article 3 of the Convention (para. 99).

124. The Commission concludes, unanimously, that no separate issue arises under Article 8 of the Convention (para. 103).

125. The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 of the Convention (para. 117).

126. The Commission concludes, unanimously, that no separate issue arises under Article 13 of the Convention (para. 122).

M.-T. SCHOEPFER S. TRECHSEL

Secretary President

to the Commission of the Commission

[1] The term “former” refers to the text of the Convention before the entry into force of Protocol No. 11 on 1 November 1998.

[2] A reference was made to A. and B. being hit with a poker.

[3] A reference was made to B. having alleged in April 1995 that both A and B had been sexually abused at home. Though he later retracted this, the professional view expressed was that his play substantiated the allegation

[4] See note 3. above also.