EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 28945/95

TP and KM

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 10 September 1999)

I. INTRODUCTION

(paras. 1-22) ......................................................... 1

A. The application

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

B. The proceedings

(paras. 5-17) .................................................... 1

C. The present Report

(paras. 18-22) .................................................. 2

II. ESTABLISHMENT OF THE FACTS

(paras. 23-61) ....................................................... 4

A. The particular circumstances of the case

(paras. 23-47) .................................................. 4

B. Relevant domestic law

(paras. 48-61) ................................................. 11

III. OPINION OF THE COMMISSION

(paras. 62-110) ..................................................... 16

(para. 62) ..................................................... 16

B. Points at issue

(para. 63) ..................................................... 16

C. As regards Article 8 of the Convention

(paras. 64-77) ................................................. 16

CONCLUSION

(para. 78) ..................................................... 20

D. As regards Article 6 of the Convention

(paras. 79-93) ................................................. 20

CONCLUSIONS

(paras. 94-95) ................................................. 24

E. As regards Article 13 of the Convention

(paras. 96-103) ................................................ 24

CONCLUSIONS

(paras. 104-105) ............................................... 25

F. Recapitulation

(paras.106-110) ................................................ 25

PARTLY DISSENTING OPINION OF SIR NICOLAS BRATZA

JOINED BY MM A. WEITZEL, J.-C. SOYER, B. MARXER

B. CONFORTI AND K. HERNDL .......................................... 27

DISSENTING OPINION OF MR E.A. ALKEMA .............................. 29

JOINED BY MR M.P. PELLONPÄÄ ........................................ 30

APPENDIX : DECISION OF THE COMMISSION AS TO THE

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 first applicant, TP, is a British citizen born in 1965. She is the mother of the second applicant, KM, also a British citizen born in 1983. Both applicants live in Chelmsford, Essex. They were represented before the Commission by Clinton Davis and Co., solicitors of Clapton, London.

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’ complaints about the actions and procedures whereby the local authority removed the second applicant into care on the basis of careless assumptions of fact. They complain of a lack of procedural safeguards, of a lack of access to court and of a lack of effective remedies in respect of their complaints. They invoke Articles 6, 8 and 13 of the Convention.

B. The proceedings

5 . The application was introduced on 2 August 1995 and registered on 26 October 1995.

6 . On 19 January 1997, the Commission decided, pursuant to Rule 48 § 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 29 April 1997, after an extension of the time-limit fixed for this purpose.  The applicants replied on 24 September 1997 also after an extension of the time-limit.

8 . On 28 May 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 Z and others v. the United Kingdom (No. 29392/95).

10 . On 24 April 1998, the Commission decided to join this application to No. 29392/95 for the purposes of the oral hearing only.

11 . 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 Robert Sherman, as Counsel and Ms Nuala Mole, legal adviser.

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

13 . 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).

14 . On 24 July 1998, the Government submitted the information and documents requested by the Commission.

15 . 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).

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

17 . 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

18 . 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

19 . 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.

20 . 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.

21 . The Commission’s decision on the admissibility of the application is annexed hereto.

22 . 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

23 . Between 1984 and 1987, the local authority, the London Borough of Newham, suspected that  the second applicant was being been sexually abused, partly as a result of the second applicant having a persistent urinary tract infection, partly because of her behaviour, including a remark made to a member of staff at the children’s hospital where she was admitted for treatment. In or about March 1986, a surgery took place to re-implant her right ureter into her bladder. At a date unspecified, she also had surgery to remove a false second kidney. She continued to have urinary problems and associated infections. There were case conferences held by the local authority on 13 May 1986, 26 June 1986 and 8 October 1986.

24 . In June 1987, during a visit to their home, social workers obtained information regarding their living arrangements including the fact that “XY”, the first applicant’s boyfriend, lived with the applicants. Concern was expressed regarding the first applicant’s care of her daughter and a case conference was held on 2 July 1987 to which the first applicant was not invited. As a result of the conference the second applicant was placed on the Child Protection Register under the category of emotional abuse. It was also agreed at the conference that the social worker Mr. P would obtain the first applicant’s consent for the second applicant to have a disclosure interview at a child guidance clinic. A further medical examination of the second applicant at the children’s hospital discovered no medical cause for her recurrent urinary infection. The hospital considered it necessary that the second applicant should be admitted to hospital for further tests but agreed to await the outcome of the interview at the child guidance clinic.

25 . On 13 November 1987, at a child guidance clinic, the second applicant was interviewed by a consultant child psychiatrist, Dr V, employed by Newham health authority. The social worker, “Mr P”, was present during the interview whilst the first applicant waited in an adjoining room. The interview was recorded on videotape. The second applicant was aged four at this time.

26 . In the course of the interview the second applicant disclosed that she had been abused by someone named “X”. The social worker asked the first applicant for the names of her husband, father and boyfriend. The boyfriend, “XY”, shared the same first name, “X”, as the abuser. However, the second applicant indicated that “XY” was not the abuser and stated that “X” had been thrown out of the house.

27 . The first applicant was then interviewed, again on video, and informed that the second applicant had disclosed that she had been sexually abused by “XY”. She was told that the second applicant could not be returned home but would be taken to a local hospital for further examination. When the first applicant asked whether or not her daughter was being taken into care, she received no reply. Dr V also told the first applicant that she could see the recording of the interview with her daughter at some point.

28 . After the interview, the first applicant asked her daughter if she had been abused by “XY”. The first applicant stated  that the second applicant denied that she had been abused by “XY” and told this to Mr P. When the first applicant became agitated and angry, Dr V and Mr P both concluded that the first applicant would be unable to protect the second applicant from abuse and that she was attempting to persuade the second applicant to retract her allegation. Mr P and Dr V came to the conclusion that it would be necessary to remove the second applicant from the care of her mother immediately. In comments made to the first applicant in her interview, the possibility that in due course she could see the video of the disclosure interview was referred to by Dr V and Mr P.

29 . Later, on 13 November 1987, the local authority applied successfully to Newham magistrates court for a place of safety order. The local authority stated that the second applicant had been abused, had identified “XY” as the abuser and there was a risk of further direct abuse or that the first applicant would pressure the second applicant into retracting her allegation. The first applicant was not in court. A place of safety order was granted for 28 days.

30 . On 18 November 1987, the second applicant was examined by a doctor who found that there were signs consistent with anal interference but no significant vaginal findings.

31 . On 24 November 1987, the first applicant, having excluded all men from her home, applied for the second applicant to be made a ward of court. The local authority attended the application and argued that they should have care and control of the second applicant in order to protect her from the risk of abuse. The local authority was awarded care and control of the second applicant and the first applicant was granted limited access. The local authority did not volunteer the videos of the interviews with the child.

32 . Contact between the first and the second applicant was severely restricted between November 1987 and November 1988. The first applicant had only two hours of supervised contact with her daughter each week. The second applicant was also denied contact with her extended family, including her maternal grandmother who was terminally ill and died whilst the second applicant was in the care of the local authority.

33 . During this period the second applicant continued to have urinary problems, including incontinence. In April 1988, she underwent another operation, which improved her condition, though she remained subject to frequent infections.

34 . During 1988, the first applicant gave birth to a son, D, fathered by “XY”. D was made a ward of court but the local authority did not apply to remove D from the care of his mother and “XY”.

35 . In or about October 1988, Dr B, who had been instructed on behalf of the second applicant in order to assist her in reaching a conclusion regarding the allegations that the second applicant had been sexually abused, obtained the consent of Dr V to view the video recording of the second applicant’s disclosure interview. In his letter dated 17 October 1988 to the first applicant’s solicitor, he gave his firm opinion that the interview disclosed a high probability that the second applicant had been abused sexually and recommended that the first applicant be allowed to see the video. He referred to Dr V’s continual insistence that the court would not approve of the first applicant seeing the video and gave his own opinion that the best interests of the second applicant would be served by her mother having access to the fullest possible information. He noted generally that the mothers of abused children would often be in a position to clarify details, including the identity of the alleged abuser. He also understood that the video had already been shown by the police to “XY” in the course of their investigation into the allegations of abuse and considered that it would appear against natural justice to deny the first applicant similar opportunity.

36 . On 1 November 1988, during the wardship proceedings regarding D, Registrar Conn ordered that the video be disclosed within seven days. The health authority and Dr V  issued a summons proposing to intervene in the proceedings and applying for the video and transcript not to be made available to the first applicant. In her affidavit of 8 November 1988, Dr V expressed her opinion that medical confidentiality attached to the video and that it should only be disclosed if in the interests of the child, which the circumstances showed was not the case. She had no objection to the lawyers and medical experts seeing the tape and transcript. By reports dated 11 November 1988, Dr B and a social worker for the local health authority gave their opinions that it was good and desirable practice for parents to see the interviews involving their children.

37 . On an unspecified date at or about that time, the first applicant’s solicitors had sight of the transcript. The transcript showed that the second applicant had said that “XY” had not abused her and that she had identified her abuser as having been thrown out of the house by the first applicant. These matters were raised by the first applicant’s solicitors with the local authority on or about 11 November 1988, when the summons concerning the video was to be heard.

38 . On 21 November 1988, at a hearing in the High Court the local authority recommended that the second applicant be rehabilitated to the first applicant and “XY” for a trial period of four to six months at which point a final proposal would be made. In a report dated 18 November submitted for that hearing, a social worker for the local authority stated that the fact that the second applicant had been sexually abused had been acknowledged by all the psychiatrists in the case, that there was now doubt as to the identity of the abuser but that whoever it was, the second applicant had suffered a seriously damaging experience from which her mother had been unable to protect her. While there had been doubts as to the first applicant’s ability to be a “good enough parent”, it was noted that her situation had changed – she had “matured”, had had a second child and was in a stable relationship with the second child’s father. If over the trial period, any further abuse occurred, it was proposed that the second applicant be removed permanently with a view to adoption and that D’s future be assessed. Mr Justice Lincoln ordered by consent that the second applicant remain a ward of court and that interim care and control be committed to the local authority who had leave to place her with the first applicant. The matter was adjourned for a period of not more than six months.

39 . The second applicant remained with the first applicant from that time onwards. In about November 1989, the final hearing took place in the High Court. The local authority advised the judge that there was no longer any concern that required the second applicant to remain a ward of court. The wardship was discharged.

40 . Both applicants were seen by a psychiatrist who diagnosed that they were suffering from psychological disturbance known as anxiety neurosis.

41 . On 8 November 1990, the applicants issued proceedings making numerous allegations of negligence and breach of statutory duty against the local authority, the central allegation being that the social worker, Mr P and the psychiatrist, Dr V, failed to investigate the facts with proper care and thoroughness and failed to discuss their conclusions with the first applicant. The health authority and Dr V were also named as defendants. The applicants claimed that as a result of their enforced separation each of them had suffered a positive psychiatric disorder.

42 . On 19 November 1992, Master Topley struck out the application on as revealing no cause of action on the basis that Dr V enjoyed immunity in suit as a witness or potential witness in proceedings concerning the abuse of the second applicant and that this acted to bar the applicants’ claims. The applicants appeal to the High Court was dismissed on 17 March 1993 by Judge Phelan who held that no claim could arise from any alleged right to custody of a child which would give rise to a right to damages.

43 . In the Court of Appeal the High Court’s striking out decision was upheld on 23 February 1994. The majority found that no claim for breach of statutory duty in respect of sections 1 and 18 of the Child Care Act 1980 could arise, due to the general nature of the duty, the imprecise terms in which it is couched and the fact that the alleged breach of duty took place before the child was taken in care under the statutory duty in question. They held in respect of the claims that Mr P and Dr V were liable in damages as professional persons who caused personal injuries that the local authority arranged for the disclosure interview to enable to decide whether or not to intervene in the performance of its statutory functions. The psychiatrist Dr V was acting in order to advise the local authority and owed a duty of care to the local authority, not to the first or second applicant.  Nor could the local authority be held liable for the negligent mistake made by the social worker in carrying out the statutory function of the local authority to make enquiries. Reference was made to the policy considerations weighing against imposing liability in such matters. However, the Master of the Rolls, Sir Thomas Bingham, dissented and stated that he believed that it could be argued that a common law duty of care was owed to the second applicant by the psychiatrist and the local authority (reported as M v Newham LBC; X v Beds CC (CA) 2WLR 554). He held as regarded the child and the local authority:

“Those who engage professionally in social work bring to their task skill and expertise, the product partly of training and partly of experience which ordinary members of the public are bound to lack. I have no doubt that they should be regarded as members of a skilled profession. Their task is one of immense difficulty, and frequently they are exposed to unjust criticism: but both these things may, to a greater or lesser extent be said of other professions also.

In considering the legal relationship between the child and the local authority, much of what I have said above concerning the child’s relationship with the psychiatrist is in my view equally applicable. I will not repeat the conclusions already expressed about foreseeability, proximity, witness immunity, public policy, causation and damage, which mutatis mutandis apply in this context also. But a number of different points arise also.

It was argued that since, as I have accepted, Parliament has omitted to impose on local authorities a specific statutory duty breach of which will entitle an injured party to recover damages, the courts should not themselves step in to impose such a duty. If there were any indication that Parliament intended no such duty to be imposed, I would agree, But I find no such indication. Parliament’s omission is to my mind more readily explained by the extreme difficulty of adequately defining and circumscribing such a duty in a general provision; I can see no reason to suppose Parliament would have wished to deny the child a claim against the local authority on the detailed (if assumed) facts of this particular case. Had it wished to do so it could have adopted some such formula as is found in section 1(4) of the Banking Act 1987...

One argument on public policy was addressed to us which seemed to have more relevance to the local authority than to the health authority and the psychiatrist. If a duty of care were imposed on the local authority and claims such as the child’s were permitted to continue, the already overstretched resources of local authorities, human and financial, would be diverted from the valuable purpose of looking after children and wasted on the sterile processes of litigation. One must accept that this must to a greater or lesser extent be so, and a somewhat similar argument found favour in Hill v Chief Constable of West Yorkshire [1989] AC 53 p. 63. But this is an argument frequently (and not implausibly) advanced on behalf of doctors: it has not prevailed. Other professions resist liability on the ground that it will in the end increase the cost to the paying customer; that resistance has not on the whole been effective either. Save in clear cases, it is not for the courts to decide how public money is best spent nor to balance the risk that money will be wasted on litigation against the hope that the possibility of suit may contribute towards the maintenance of the highest standards.”

44 . On appeal to the House of Lords the decision of the majority of the Court of Appeal was upheld on 29 June 1995. Lord Browne-Wilkinson delivered the leading judgment concerning three cases, the Bedfordshire case, the Newham case (the applicants’ case) and the Dorset case (reported as X and others v. Bedfordshire County Council [1995] 3 AER 353).

45 . As regarded the claims for breach of statutory duty, he held:

“... 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.”

46 . In respect of the applicants’ claim that the local authority and the health authority were vicariously liable for the actions of the social worker, Mr P, and psychiatrist Dr V respectively, Lord Browne-Wilkinson said as follows:

“Like the majority in the Court of Appeal, I cannot accept these arguments. The social workers and the psychiatrists were retained by the local authority to advise the local authority, not the plaintiffs. The subject matter of the advice and activities of the professionals is the child ... the fact that the carrying out of the retainer involves contact and relationship with the child cannot alter the extent of the duty owed by the professionals under the retainer from the local authority ...

In my judgment in the present cases, the social workers and the psychiatrist did not, by accepting the instructions of the local authority assume any general professional duty of care to the plaintiff children ...

Even if contrary to my view the social workers and psychiatrist would otherwise have come under a duty of care to the plaintiffs, the same considerations which have led me to the view that there is no direct duty of care owed by the local authorities apply with at least equal force to the question whether it would be just and reasonable to impose such a duty of care on the individual social workers and the psychiatrist.”

47 . The applicants in this case had not alleged that the local authority had been under any direct duty of care towards them. However, in the Bedfordshire case, where the applicant children did so claim, Lord Browne-Wilkinson stated, insofar as relevant, 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 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.”

B. Relevant domestic law

Local authority’s duties in respect of child care

48 . 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.

49 . 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.”

50 . 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.”

51 . 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.

52 . 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.”

53 . 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

54 . 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.”

55 . 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.”

Wardship

56 . The power of the High Court to make a child a ward of court derives from its inherent jurisdiction. The effect is that the court assumes responsibility for the child and may make orders concerning any aspect of the child’s life. The child’s welfare must be the first consideration of the court.

57 . A child becomes a ward of court as soon as an originating summons is issued. Thus once the first applicant applied for the second applicant to be made a ward of court, custody of the child vested in the court. Thus, the local authority has only the powers given to it by the court in relation to the child.

Domestic case-law

58 . 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 are immune from suit for actions brought in negligence or 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.

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

60 . 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 ...”

61 . 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

62 . The Commission declared admissible the applicants’ complaints:

- that the local authority removed the second applicant into care on the basis of careless assumptions of fact;

- that the first applicant had no access to court in respect of her complaints;

- that the second applicant had no access to court in respect of her complaints;

- that the first applicant was denied an effective remedy in respect of her complaints;

- that the second applicant was denied an effective remedy in respect of her complaints.

B. Points at issue

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

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

- whether there has been a violation of Article 6 of the Convention in respect of the first applicant;

whether there has been a violation of Article 6 of the Convention in respect of the second applicant;

- whether there has been a violation of Article 13 of the Convention in respect of the first applicant;

- whether there has been a violation of Article 13 of the Convention in respect of the second applicant.

C. As regards Article 8 of the Convention

64 . 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.”

65 . The applicants submit that the measures removing the second applicant into care disclose a violation of their right to respect for their family life as guaranteed under Article 8 of the Convention. They submit that the removal was not necessary or supported by relevant and sufficient reasons. Further, the procedures adopted did not provide them with adequate and effective safeguards in respect of their interests; in particular, the evidence of the video was not disclosed to the first applicant earlier or brought immediately before a court and both mother and child were unrepresented at the time of the separation.

66 . The Government contend that any interference with the applicants’ right to respect for family life under Article 8 of the Convention was justified as being in accordance with law and necessary in a democratic society in pursuit of the aim of protecting the rights of the second applicant who had been subject to sexual abuse over a number of years. They submit that the first applicant was provided with the opportunity to participate effectively and fairly in the decision-making procedure, which involved an adjudication of the issues before a court in which the first applicant was legally represented. They point out that the first applicant took no steps for over a year to have the video and the transcript brought to the attention of the court.  They deny that the mere fact that Dr V and Mr P drew erroneous conclusions from the interview with the second applicant is sufficient to disclose a violation of the Convention

67 . The Commission recalls that, according to the Court’s well-established case-law, “the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life” and domestic measures hindering such enjoyment amount to interference with the right protected by Article 8 (see, amongst other authorities, Eur. Court HR, W. v. the United Kingdom judgment of 8 July 1987, Series A no. 121-A, p. 27, para. 59). The Commission finds that the measures by which the second applicant was removed into care by the local authority until she was returned home a year later disclose an interference with the applicants’ rights. It must therefore be examined whether this interference was “in accordance with the law” and “necessary in a democratic society” for one or more of the legitimate aims set out in the second paragraph of Article 8.

68 . The Commission observes that the applicants do not argue that the measures did not have the requisite basis in domestic law. Having regard also to the circumstances of the case, where the place of safety order was issued by a court and the subsequent proceedings dealt with under the High Court’s wardship jurisdiction, the removal of the second applicant may be regarded as being “in accordance with law”. It further finds that the removal pursued the legitimate aims of safeguarding the second applicant’s health and rights. The material before the Commission indicates that there was strong evidence that she had been sexually abused and that it was to protect her from this risk that the measures were implemented.

69 . As to whether the measures may be regarded as “necessary in a democratic society”, the case-law of the Commission and Court establishes that the notion of necessity implies that the interference corresponds to a pressing social need and that it is proportionate to the aim pursued. Further, in determining whether an interference is necessary the Commission and Court take into account that a margin of appreciation is left to the Contracting States, which are in principle in a better position to make an initial assessment of the necessity of a given interference. It is not the Commission’s task to take the place of the competent national authorities and make a fresh examination of all the facts and evidence in the case but rather to examine whether the reasons adduced to justify the interference are “relevant and sufficient” (see, inter alia , Eur. Court HR, Olsson v. Sweden judgment of 24 March 1988, Series A no. 130, p. 32, para. 68).

70 . Further, while there are no explicit procedural requirements contained in Article 8, the case-law establishes that where decisions may have a drastic effect on the relations between a parent and child and may become irreversible, there is a particular need for protection against arbitrary interferences. In a case where it was alleged that the local authority had not consulted the parents of its child in its care before taking crucial decisions as to its future, the Court held:

“In the Court’s view, what therefore has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as “necessary” within the meaning of Article 8.” (W. v. the United Kingdom judgment, op. cit., p. 29, para. 64).

71 . In the present case, the Commission finds that the local authority social services had had suspicions over some time that the second applicant was being sexually abused, based on her health problems and also comments and behaviour noticed by health and school professionals. At the interview conducted with her by Dr V and Mr P, the second applicant made statements which all the subsequent professionals agreed gave clear and strong indications that she had been sexually abused. Having regard to the fact that this abuse took place when she was in the care of the first applicant, the Commission considers that it would have been a legitimate concern whether the first applicant was able to protect the second applicant from further abuse. It would observe that the identification of the abuser as “XY” by Dr V and Mr P was not unfounded since the second applicant mentioned his forename clearly and it was known that he was living in the same house as she was. The mistake was therefore not unreasonable or absurd. On this basis, the decision to remove the second applicant immediately and to obtain a place of safety order could be justified as necessary given the perceived pressing need to protect the second applicant.

72 . The first applicant has submitted that the decision to remove was taken without properly consulting her or obtaining full information from her and on that basis was fundamentally flawed. However, the Commission observes that following the interview, for whatever reasons, the relations between herself and Dr V and Mr P were strained and tense, which was not conducive to the clear communication of information in either direction. It would note that on her own account the first applicant was shocked and angry by the accusations being made, particularly since she had difficulty in believing what was being asserted. In these circumstances, the Commission finds that at this initial stage the decision to remove the second applicant without taking any further steps to conduct further interviews or discussions fell within the margin of appreciation to be accorded to the authorities charged with the duty of protecting children.

73 . It remains to be considered however whether the procedures adopted pursuant to the second applicant’s removal were compatible with the requisite involvement of the first applicant, as her parent, and continued to be justified as necessary for her protection.

74 . The Commission observes that the local authority obtained on the same day as the second applicant’s removal a place of safety order from the court in the absence of the first applicant or any representative. It does not consider that this factor alone, having regard to the considerations above (para. 70), was incompatible with Article 8 of the Convention, given the emergency nature of the procedure. However, the order was for a period of 28 days. The Commission is not satisfied that the delay of a month before the first applicant’s interests could be represented in court and the matter reviewed in the light of fuller information can be regarded as respecting her rights as a parent. It notes that the Children Act 1989 replaced the place of safety order with an emergency protection order which could be challenged after 72 hours and could only be extended for a week.

75 . In the event, on 24 November 1987, the first applicant herself took the step of bringing the case before the High Court in its wardship jurisdiction, in order that she could seek the return of the second applicant to her care. Interim care and control were given to the local authority and she obtained limited access pending the hearing of the evidence in the case at a later time. It was not until November 1988 that the matter came before the High Court for further determination of the issues, at which point a year later the mistaken identification of the abuser finally came to light. Crucially, it was not until November 1988 that the applicants’ lawyers obtained sight of the video transcript and passed on their doubts as to the identification to the local authority, which led to the local authority revising its position and contributed significantly to its recommendation that the second applicant return home. The Government have argued that there was nothing to prevent the first applicant seeking access to the video and transcript at any earlier stage. The Commission would note that the health authority and Dr V took the position that the material was confidential and should not be passed on. It would have required a court order following contested proceedings before the first applicant could have succeeded in obtaining access. Additionally, as pointed out by the applicants, the first applicant was not in a position to know, or suspect that the video disclosed that Dr V and Mr P had made a mistake as to whom the second applicant had identified. They had told her unequivocally that the second applicant had identified her boyfriend “XY” as the abuser. Indeed, when Dr B saw the video on behalf of the first applicant, it was because he was instructed to assist her in coming to terms with whether or not her daughter had been abused rather than with the matter of the identification of the abuser.

76 . The Commission considers that it is of primary importance that parents faced with serious allegations relating to abuse or other ill-treatment of the children in their care are provided with full information as to their factual basis. The Court has previously found in the McMichael case (Eur. Court HR, McMichael v. the United Kingdom judgment of 24 February 1995, Series A no. 307-B, p. 57, para. 92) that the inability of the applicant parents in that case to have sight of the reports concerning their child in proceedings before the Children’s Hearings did not afford them the requisite protection of their interests. It recalls that Dr B and a social worker on behalf of the local authority submitted reports to the court emphasising that it was desirable in the interests of mother and child for the video to be viewed, both from the viewpoint of allowing the mother to view crucial disclosures so that she was fully informed of what the child has said and also to allow her to make clarifications and explanations of matters which might not be readily apparent to an outsider to the family. In these circumstances, and bearing in mind the importance of what is at stake, the Commission finds that it is not the parents’ responsibility to investigate the reliability of purported evidence relied on by a local authority or litigate to obtain such information but considers that the authorities should, from an early stage and as soon as practically possible, provide for the material to be viewed. In particular, where the material concerned is used to justify an emergency measure of removal, a delay of more than a year in such material being made available is unjustifiable.

77 . The Commission concludes that the first applicant was not provided with a proper, fair or adequate opportunity to participate in the decision-making procedures following the removal of the second applicant as an emergency measure. In the circumstances, the continuance of the measures after this initial stage discloses a lack of respect for the family life of both applicants.

CONCLUSION

78 . The Commission concludes, by 17 votes to 2, that there has been a violation of Article 8 of the Convention.

D. As regards Article 6 of the Convention

79 . 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.”

80 . 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) where it was found to be a disproportionate restriction on access to court to exclude liability of the police in negligence in the investigation and prevention of crime on policy grounds relating to the cost and effectiveness. 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. v. 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 argue that in their case the local authority could foresee damage to the applicants if they carried out their duties negligently and that the 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.

81 . 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. They also point out that the applicants’ claims before the House of Lords relied on vicarious liability of the local and health authorities for their professionals and that these claims were dismissed on the basis that no vicarious liability attached. This case can therefore be distinguished from that of the applicants in the Osman case (op. cit.) and the Z. and others case (No. 29392/95, dec. 26.5.98) where the House of Lords rejected claims that the local authority owed a direct duty of care to the children by referring to policy considerations.

82 . Further, even assuming that there had been a limitation on the right of access to court, the Government 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. 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. The applicants also had the possibility of applying to the local authority ombudsman as regarded their complaints about the social services.

83 . 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 have 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).

84 . 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. As concerns the first applicant, her claims were struck out as revealing no cause of action, a decision upheld unanimously on appeal by the Court of Appeal and the House of Lords, on the basis that she was owed no duty of care by the local or health authority or the professionals involved in the case. Similarly, the claims of breach of statutory duty by both applicants were dismissed on the basis that, applying principles of statutory interpretation, there was no indication that the statute was intended to impose liability in damages. The Commission finds that these aspects of their claims were rejected as disclosing no arguable basis in domestic law and that accordingly the applicants cannot claim in this regard that they were denied access to a court in the determination of any of their civil rights by the operation of an immunity.

85 . As regards the second applicant’s claims against the local authority in negligence, the Commission observes that in the House of Lords her case was argued on the basis of vicarious liability, namely, that the local authority was liable for negligence disclosed by their social worker Mr P during the disclosure interview and its immediate aftermath. On this basis, her claims were also dismissed since it was held that in such circumstances a social worker acting as a professional to advise a local authority in the exercise of its public functions owed a duty of care to the local authority but not to the child concerned. The relationship was in other words not sufficiently proximate to ground a duty of care. It was not argued on behalf of the second applicant that the local authority had been in breach of a direct duty of care towards her as was the case of the child applicants whose claims were also under consideration before the House of Lords (see Z and others v. the United Kingdom, op. cit., where the child applicants were similarly concerned in the House of Lords judgment of X. v. Bedfordshire County Council, paras. 67-69). Nonetheless, the scope of the second applicant’s complaints before the Commission encompass allegations that the local authority failed to prevent her suffering preventable and foreseeable damage as a result of a breach of their duty of care to her. It is evident that the House of Lords decision given in the X. v. Bedfordshire that any claims of negligence made by her directly against the local authority, as opposed to the individual social worker, would have been excluded 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. In these circumstances, the Commission considers that the second applicant may claim that her right of access to court was limited in that respect. The question remains whether that restriction concerned the determination of a “civil right”.

86 . In that context, 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 impose a duty of care- the so-called constituent elements of the duty of care which is a precondition for liability in negligence.

87 . 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 in the X. v. Bedfordshire County Council, 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.

88 . The Commission finds that the second applicant’s complaints against the local authority were arguably based on an existing right in domestic law. It has therefore examined whether she has been deprived of effective access to court in the determination of her 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.

89 . 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).

90 . The Commission recalls that in the X. v. Bedfordshire County Council case the claims concerning the direct duty of care owed by local authorities to the child applicants 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 children’s 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 contradict 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 imposed a restriction on access to court by the application of a bar operating to protect a particular defendant from negligence actions for damage caused in a particular sphere of their competence.

91 . 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. 47 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.

92 . The Commission finds that the possibility of applying for an investigation by the ombudsman does not provide the applicants with adequate, alternative means of obtaining redress in respect of their claims.  It 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.

93 . The Commission concludes that the exclusionary rule imposed by the House of Lords in the X. v. Bedfordshire County Council case constituted a disproportionate restriction on the second applicant’s right of access to court.

CONCLUSIONS

94 . The Commission concludes, by 18 votes to 1, that there has been no violation of Article 6 of the Convention in respect of the first applicant.

95 . The Commission concludes, by 10 votes to 9, that there has been a violation of Article 6 of the Convention in respect of the second applicant.

E. As regards Article 13 of the Convention

96 . 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.”

97 . 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.

98 . The Government submit that effective remedies were available to the applicants. They point out that they were able to invoke the High Court’s wardship jurisdiction and that the High Court remedied the situation by ordering that the second applicant return home. There was also the possibility of applying for an investigation by the local authority ombudsman, who was able to recommend monetary wards.

99 . The Commission recalls that Article 13 of the Convention guarantees 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. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although the Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law. The nature of the right which the authorities are alleged to have violated also has implications for the nature of the remedies which must be guaranteed. In cases dealing with allegations of unlawful deaths, torture and disappearances in custody, the Court has held that the notion of an effective remedy entails the payment of compensation where appropriate and a thorough and effective investigation into the allegations, which includes effective access of relatives to the investigatory procedure (see, amongst other authorities, Eur. Court HR, Aksoy v. Turkey judgment of 18 December 1996, Reports 1996-VI, p. 2286, para. 95, Ergi v. Turkey judgment of 28 July 1998, Reports 1998-IV, p. 1751, para. 96).

100 . As regards the first applicant, the Commission recalls that she was complaining of an unjustified interference in their family life, in particular the removal of her daughter for a period of about a year. She has alleged that as a result she suffered positive psychiatric illness, in respect of which she sought unsuccessfully for damages in the domestic courts.

101 . The Government have submitted that she had an effective remedy as an application to the High Court in the wardship jurisdiction could, and did, provide her with the means of access to the undisclosed video material and thus enable the return of her daughter to her care. The Commission recalls however that the first applicant was unaware of the significance of the video material and was not in a situation where she could reasonably be expected to take the initiative in seeking access to the video. It was this failure by the authorities to involve the first applicant in the procedures sufficiently in the early stages that disclosed a breach of the applicants’ right to respect for family life. In respect of that breach, the wardship powers of the High Court cannot in the circumstances of this case be regarded as affording a practically effective remedy. Nor can the return of her daughter after a year’s separation be regarded as total reparation where it is alleged that damage has been suffered during that period.

102 . Having regard to the nature of the breach in this case – an interference with the fundamental right of parent and child to enjoy each other’s company – the Commission finds that the first applicant should have been afforded the opportunity of applying for compensation for the alleged psychiatric illness that resulted. It notes that while the local authority ombudsman may make recommendations for monetary awards where there has been maladministration, those powers are recommendatory only.  It accordingly concludes that no effective remedy was available to the first applicant in respect of her complaints.

103 . As regards the second applicant, the Commission finds in light of its finding of a violation of Article 6 para. 1 that it is not necessary to make a separate examination of her 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, Osman v. the United Kingdom judgment, op. cit, para. 158).

CONCLUSIONS

104 . The Commission concludes, by 18 votes to 1, that there has been a violation of Article 13 of the Convention in respect of the first applicant.

105 . The Commission concludes, by 10 votes to 9, that no separate issue arises under Article 13 of the Convention in respect of the second applicant.

F. Recapitulation

106 . The Commission concludes, by 17 votes to 2, that there has been a violation of Article 8 of the Convention (para. 78).

107 . The Commission concludes, by 18 votes to 1, that there has been no violation of Article 6 of the Convention in respect of the first applicant (para. 94).

108 . The Commission concludes, by 10 votes to 9, that there has been a violation of Article 6 of the Convention in respect of the second applicant (para. 95).

109 . The Commission concludes, by 18 votes to 1, that there has been a violation of Article 13 of the Convention in respect of the first applicant (para. 104).

110 . The Commission concludes, by 10 votes to 9, that no separate issue arises under Article 13 of the Convention in respect of the second applicant (para. 105).

M.-T. SCHOEPFER S. TRECHSEL

Secretary President

to the Commission of the Commission

(Or. English)

PARTLY DISSENTING OPINION OF SIR NICOLAS BRATZA

JOINED BY MM A. WEITZEL, J.-C. SOYER, B. MARXER,

B. CONFORTI AND K. HERNDL

I share the view of the majority of the Commission that there was in the present case a violation of Article 8 of the Convention.  I also share the view of the majority that there was no violation of the rights of the first applicant under Article 6 as regards her claim in negligence against the local or health authority or the professionals involved in the case or of the rights of either applicant under that Article as regards their claims of breach of statutory duty.  As is pointed out in the Report the former claim was struck out on the basis that the first applicant was owed no duty of care in domestic law, while the latter claims were dismissed on the grounds that no liability in damages could be derived from the relevant statute, applying ordinary principles of statutory interpretation.

The Commission has based its findings of no violation of Article 6 in respect of these claims on the grounds that they were rejected as disclosing no arguable basis in domestic law and that accordingly the applicants cannot assert a “civil right” in this regard for the purposes of para. 1 of that Article.  I would prefer to view it from a slightly different perspective and to find that, even if the applicants’ claims may be said to have given rise to a dispute of “a genuine and serious nature” (see eg. Eur. Court H.R. Benthem case, judgment 23 October 1985, Series A no. 97, p. 15, para. 32), those claims were determined by the domestic courts, including the House of Lords, and there was accordingly no denial of access to court.

In my view similar reasoning applies to the second applicant’s claim against the local authority in negligence.  As is noted in the Report, this claim was framed as one of vicarious liability, it being alleged that the local authority was liable to the second applicant for acts of negligence on the part of one of its social workers, Mr P., during the disclosure interview and its immediate aftermath.  As is further noted, this claim was considered on its merits by the domestic courts and rejected on the grounds that a social worker, acting as a professional adviser to a local authority in the exercise of its public functions, owed a duty of care to the local authority itself but not to the child concerned: applying ordinary principles of negligence law there was, according to the decision of the House of Lords, no sufficient relationship of proximity to ground such a duty of care.  It was not argued, and the House of Lords was not therefore called on to address the question whether the local authority owed a direct duty of care towards the second applicant or whether the imposition of such duty would be just and reasonable in all the circumstances.  Since the second applicant’s claim as formulated was fully considered and determined in accordance with ordinary principles of domestic law, it cannot in my view be said that there was any denial of access to court.

In reaching the contrary conclusion, the majority of the Commission, while accepting that the second applicant’s claim as pleaded was determined by the courts on its merits, argue that it is evident that if the claim had been formulated differently as a direct claim of negligence against the local authority, it would have been rejected by the House of Lords by the application of the so-called exclusionary rule and that the application of such a rule would have amounted to a disproportionate restriction on her right of access to court.

In my view, this is not a correct approach.  The sole issue before the Commission is whether there existed a procedural bar which prevented the second applicant from having her claim determined.  Where, as here, there was clearly no such bar, it is I consider inappropriate to examine the question whether, if the claim had been differently formulated and argued, there would have been a disproportionate restriction on her right of access to court.

For these reasons I consider that there was no violation of Article 6 of the Convention in the case of either applicant.

In view of this conclusion I have, unlike the majority, found it necessary to consider the applicants’ complaint that there has been a violation of Article 13 of the Convention.

The applicants allege that, as a result of an unjustified interference with their family life, they both suffered positive psychiatric illness and that, in breach of Article 13, they have no effective remedy in respect of such interference and such damage.

The Government have submitted that the applicants had an effective remedy as an application to the High Court in the wardship jurisdiction could, and did, provide them the means of access to the undisclosed video material and thus enable the rehabilitation of the second applicant with the first applicant.  I note however that the applicants were unaware of the significance of the video material and were not in a situation where they could reasonably be expected to take the initiative in seeking access to the video.  It was this failure by the authorities to involve the first applicant in the procedures sufficiently in the early stages that disclosed a breach of their right to respect for family life.  In respect of that breach, the wardship powers of the High Court cannot in the circumstances of this case be regarded in my view as affording a practically effective remedy.  Nor can the return of the second applicant after a year’s separation be regarded as total reparation where it is alleged that damage has been suffered during that period.

Having regard to the nature of the breach in this case – an interference with the fundamental right of parent and child to enjoy each other’s company – I consider that the applicants should have been afforded the opportunity of applying for compensation for the alleged psychiatric illness that resulted.  No such opportunity was available to the applicants.  In this connection, I note that while the local authority ombudsman may make recommendations for monetary awards where there has been maladministration, those powers are recommendatory only.

For these reasons, there was in my view no effective remedy available to the applicants in respect of their complaints and there has accordingly been a violation of their rights under Article 13 of the Convention.

(Or. English)

DISSENTING OPINION OF MR E.A. ALKEMA

I share Sir Nicolas’ partly dissenting opinion where he based his finding that Article 6 had not been violated on a reasoning differing from the majority’s reasoning.

I also share Sir Nicolas’ opinion that Article 13 has been violated, but on different grounds.  Although the applicants’ rights under Article 8 in my opinion had not been violated, they did have an arguable claim.  However, for the reasons set out so ably in Sir Nicolas’ opinion the High Court cannot in the circumstances of the case be considered as an effective remedy.

(Or. English)

DISSENTING OPINION OF MR E.A. ALKEMA

JOINED BY MR M.P. PELLONPÄÄ

I have voted against finding a violation of Article 8 for the following reasons.

On 13 November 1987 at the application of the local authority the magistrates court granted a place of safety order with respect to the second applicant for 28 days.  Within that period the first applicant applied for the second applicant to be made a ward of court.

Of course there are differences in the position of a child being in a place of safety or being a ward of court.  Yet, it is clear that all involved were convinced that the second applicant had been a victim of sexual abuse and was in need of protection, which her mother could not afford.  In this respect there was no dispute either in the material sense or in the formal sense (as it is used for instance as requisite for applying Article 6).

There was no dispute either with regard to the duration (28 days) of the order granted at 13 November 1987.  In applying only to the High Court in the autumn of 1988 the first applicant implicitly did not challenge that order.

It was also late in 1988 that the authorities became aware of the mistaken identity of the person who had abused the second applicant.  The subsequent steps taken were speedy, adequate and again not disputed, not even by the first applicant.  The court ordered by consent that the second applicant remain a ward of court for a trial period after the local authority recommended rehabilitation for a trial period.  In deciding so the court sought to redress the apparent but not intentional omission of not showing the video of the interview to the first applicant.  In this context it must be noted that there is no indication that the first applicant ever formally requested to see the video recordings.

No doubt, the period between November 1987 and November 1988 must have been an agonizing and very emotional experience to both applicants.  Besides, the first applicant was pregnant and gave birth to a second child that year.  Yet, it is hard to attribute that course of events principally and with hindsight to the fact that the video had not been made available, as the first applicant did when she issued proceedings in 1990.  It is highly speculative to assume that the correct information about the identity of the person who abused the second applicant would have changed the latter’s plight and would also have removed the necessity of making her ward of court.  This is demonstrated by the fact that the High Court, even when it became aware of the mistaken identity of the person who had abused the second applicant, still found it necessary to apply a measure for the child’s protection to which the first applicant agreed.  Therefore, in spite of any possible flaws in the original judicial assessment of the case, it seems not tenable to conclude that the final decision reached was not provided for by law nor proportionate as required by Article 8.

Further it should be noted that the present case differs substantially from the McMichael judgment referred to in para. 74 of the present report.  In the latter case there had been from the outset a serious dispute between the authorities and the applicants about recovering custody of and access to the child.  In the present case, on the other hand, there was during the proceedings before the magistrates and High Court agreement between the parent and the authorities as to the need of special child care measures.

Finally, the relevant English legislation at the time might have been anything but perfect and has – for good reasons – been partly replaced since by the Children Act 1989.  However, as there is no proof that this legislation materially and considerably affected the applicants, it would be improper for the Commission to examine that legislation in abstracto .

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