T.P. AND K.M. v. THE UNITED KINGDOM
Doc ref: 28945/95 • ECHR ID: 001-4250
Document date: May 26, 1998
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AS TO THE ADMISSIBILITY OF
Application No. 28945/95
by TP and KM
against the United Kingdom
The European Commission of Human Rights sitting in private on
26 May 1998, the following members being present:
MM S. TRECHSEL, President
M.P. PELLONPÄÄ
A. WEITZEL
J.-C. SOYER
Mrs G.H. THUNE
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
M.A. NOWICKI
B. CONFORTI
N. BRATZA
D. SVÁBY
G. RESS
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs M. HION
Mr A. ARABADJIEV
Mr M. de SALVIA, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 2 August 1995 by
TP and KM against the United Kingdom and registered on 26 October 1995
under file No. 28945/95;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the Commission's decision of 19 January 1997 to communicate the
application
- the observations submitted by the respondent Government on
29 April 1997 and the observations in reply submitted by the
applicant on 24 September 1997;
- the written brief submitted by the applicants on 12 May 1998;
- the parties' oral submissions at the hearing on 26 May 1998;
Having deliberated;
Decides as follows:
THE FACTS
The first applicant, TP, is a British citizen born in 1965. She
is the mother of the second applicant, KM, also a British citizen, who
was born in 1983. Both applicants live in Chelmsford, Essex and are
represented before the Commission by Clinton Davis and Co, solicitors,
of Clapton, London E5.
The facts of the case, as submitted by the parties, can be
summarised as follows.
a. Particular circumstances of the case
Between 1984 and 1986, the local authority, the London Borough
of Newham, suspected that the second applicant was being sexually
abused, partly as a result of the second applicant having a persistent
urinary tract infection.
In 1987, the health visitor attended the applicants' home and
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 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.
The first applicant continued to try to find a cause for the
second applicant's urinary infection. However, none of the doctors who
saw the second applicant could identify a physical cause for the
infection. On 13 November 1987, the second applicant was interviewed
by a consultant child psychiatrist, Dr V, employed by Newham health
authority. A social worker, "Mr P", was present during the interview
whilst the first applicant waited in an adjoining room. The interview
was recorded on videotape.
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.
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 first applicant could
not be returned home but would be taken to a local hospital for further
examination. When the second 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.
After the interview, the first applicant asked her daughter if
she had been abused by "XY". The second applicant denied that she had
been abused by "XY" and the first applicant, believing her daughter,
told this to Mr P. Neither Mr P nor Dr V appear to have given any
consideration to what the second applicant told her mother. When the
first applicant became agitated and angry, Dr V and Mr P both
concluded, wrongly, 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.
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.
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 very limited access. The local authority did not volunteer the
videos of the interviews with the child.
Contact between the first and the second applicant was severely
restricted between November 1987 and November 1988. It appears that the
first applicant had only one hour 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.
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".
On 1 November 1988, during the wardship proceedings regarding D,
Registrar Conn ordered that the video be disclosed. Dr V and the health
authority attempted to prevent the disclosure of the video on the basis
that it was confidential. However, the first applicant by that stage
had already seen the transcript of the interview.
The transcript showed clearly that the second applicant had said
that "XY" had not abused her. An opinion was sought from a
psychiatrist, Dr Baker, who confirmed that the second applicant had
stated that "XY" was not the abuser. The local authority were informed
of Dr Baker's opinion. They agreed that there was no evidence to
support the assertion that "XY" had abused the second applicant.
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". Mr Justice Lincoln ordered this course of
action and rehabilitation commenced shortly afterwards. At the final
hearing on 17 November 1989 the local authority advised the court that
there was no longer any reason for the second applicant to remain a
ward of court. The wardship was therefore discharged.
Both applicants were seen by a psychiatrist who diagnosed that
they were suffering from psychological disturbance known as anxiety
neurosis.
On 8 November 1990, the applicants issued proceedings making
numerous allegations of negligence and breach of statutory against the
local authority, the central allegation being that the social worker
and psychiatrist failed to investigate the facts with proper care and
thoroughness and failed to discuss their conclusions with the first
applicant. The applicants claimed that as a result of their enforced
separation each of them had suffered a positive psychiatric disorder.
On 19 November 1992, Master Topley struck out the application on
as revealing no cause of action on the basis that Dr V and Mr P enjoyed
immunity in suit as a witness or potential witness in proceedings
concerning the abuse of the second applicant. The applicants appeal to
the High Court was dismissed on 17 March 1993 by Mr Justice 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.
In the Court of Appeal the High Court's striking out decision was
upheld on 23 February 1994. 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 entitled an
injured party to recover damages, the courts should not
themselves step into 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 an 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 p63. 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"
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).
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
judgement they are inconsistent with any intention to
create a private law cause of action."
In respect of the applicants' claim that the local authority and
the health authority were vicariously liable for the actions of the
social worker and psychiatrist 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"
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 and practice
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.
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 vests in the
court. Thus, the local authority has only the powers given to it by the
court in relation to the child.
The local authority's duties in respect of child welfare at the
relevant time were set out in the Child Care Act 1980.
Section 1 of the Child Care Act 1980 provided:
"1(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 children into or keep them in care under this Act
or to bring children before a juvenile court; and any
provisions made by a local authority under this subsection
may, if the local authority think fit, include provision
for giving assistance in kind or, in exceptional
circumstances, in cash"
Section 18 of the Child Care Act 1980 provided:
"18(1) In reaching any decision relating to a child in
care, a local authority shall give first consideration to
the need to safeguard and promote the welfare of the child
throughout his childhood; and shall so far as practicable
ascertain the wishes and feelings of the child regarding
the decision and give due consideration to them, having
regard to his age and understanding."
Section 76 of the Child Care Act 1980 provided:
"76(1) The Secretary of State may cause an inquiry to be
held into any matter relating to-
(a) the functions of the social services committee of a
local authority, in so far as those functions relate to
children
(3) Subsections (2) to (5) of section 250 of the Local
Government Act 1972 (powers in relation to local inquiries)
shall apply in relation to an inquiry under this section as
they apply in relation to a local inquiry"
Domestic case-law
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.
The leading judgment is reported at length in the facts above.
COMPLAINTS
1. The applicants argue that by virtue of the decision in X and
others v Bedfordshire County Council [1995] 3 AER 353 they have been
denied the right to a fair hearing pursuant to Article 6 para 1 of the
Convention.
2. The applicants invoke Article 8 of the Convention to argue that
the removal of the second applicant from her mother, the first
applicant and the restriction of access between mother and daughter was
an interference with their rights to respect for family life which was
not in accordance with the law, was unnecessary and did one of the
legitimate aims listed at Article 8 para. 2
3. The applicants invoke Article 13 of the Convention and claim that
the effect of the decision in X and others v Bedfordshire County
Council [1995] 3 AER 353 has been to deny them their only effective
remedy, that of suing the local authority in negligence and/or breach
of statutory duty. The applicants also argue that the decision in X and
others v Bedfordshire County Council (op. cit.) prevents the facts of
the case from being investigated.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 2 August 1995 and registered
on 26 October 1995.
On 19 January 1997 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on 29 April
1997, after an extension of the time-limit fixed for that purpose. The
applicants replied on 24 September 1997, also after an extension of the
time-limit.
On 28 May 1997, the Commission granted the applicant legal aid.
On 1 December 1997, the Commission decided to hold an oral
hearing at which the parties were invited to make submissions on the
admissibility and merits. It was decided to hold this hearing
consecutively with a hearing in the case KL and others v. the United
Kingdom, No. 29392/95.
On 24 April 1998, the Commission decided to join this application
to No. 29392/95 for the purposes of the oral hearing only.
On 12 May 1998, the applicants submitted a written brief.
At the hearing which was held on 26 May 1998 in Strasbourg, the
Government were represented by their Agent, Ms Susan McCrory, Baroness
Scotland QC 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 Catharine O'Hanlon, trainee
solicitor. The first applicant also attended.
THE LAW
The applicants complain of 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 (Art. 6, 8, 13) of the Convention.
The relevant provisions of the Convention provide:
Article 6 (Art. 6) of the Convention
"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...
Article 8 (Art. 8) of the Convention
"1. Everyone has the right to respect for his private and
family life...
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests
of national security, public safety or the economic well-being
of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others."
Article 13 (Art. 13) of the Convention
"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."
As regards Article 26 (Art. 26) of the Convention
The respondent Government submit, firstly, that insofar as the
applicants complain of a violation of their rights under Article 8
(Art. 8) of the Convention their complaints fail to comply with the six
month time-limit imposed by Article 26 (Art. 26) of the Convention.
They submit that the application should have been introduced within six
months of the conclusion of the wardship proceedings which ended in
November 1989.
The applicants submit that their application is not out of time,
since it would have been premature to introduce their complaints before
the termination of the proceedings in which they claimed damages from
the local authority for negligence.
Article 26 (Art. 26) provides as relevant:
"The Commission may only deal with the matter ... within a
period of six months from the date on which the final
decision was taken."
The Commission recalls, however, that Article 26 (Art. 26) cannot
be interpreted in a manner which would require an applicant to seize
the Commission of a complaint before her position in connection with
the matter has finally been settled at the domestic level (see eg. No.
9599/81, Dec. 11.3.85, DR 42, p. 33)
In the present case, the Commission observes that, following the
wardship proceedings, the applicants pursued claims for negligence and
breach of statutory duty which concerned their allegations, inter alia,
that the local authority was liable for the negligence of its social
worker, which caused the unjustifiable and harmful separation of mother
and child. Even though their claims were ultimately rejected, they were
found sufficiently arguable for the applicants to be granted leave to
appeal to the House of Lords. In these circumstances, the Commission
considers that the proceedings may be taken into account as concerning
the subject matter of their present application and as part of the
process of exhaustion of domestic remedies. Accordingly, since the
application was introduced within six months of the judgment of the
House of Lords on 29 June 1995, the Commission finds that the
Government's objection that the applicants' complaints under Article
8 (Art. 8) of the Convention are out of time must be rejected.
As to the substance of the application
The Government contend that any interference with the applicants'
right to respect for family life under Article 8 (Art. 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
The Government deny that there was any denial of access to court
for determination of the applicants' civil claims contrary to Article 6
(Art. 6) of the Convention. They point out that the applicants' claims
were examined thoroughly by the domestic courts and that the House of
Lords reached its decision rejecting their claim on an application of
the ordinary principles of substantive law relating to the imposition
of a duty of care. Further, the applicants had available to them an
effective remedy in respect of their complaints as required by Article
13 (Art. 13) of the Convention, namely, the wardship proceedings before
the High Court, pursuant to which the measures taken in respect of the
second applicant were swiftly ended.
The applicants contend 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 (Art. 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.
The applicants submit, in respect of Article 6 (Art. 6), that
their claims in negligence against the local authority had a basis in
domestic law and that the decision of the House of Lords acted,
effectively, to bestow an immunity on local authorities from actions.
This immunity is disproportionate and deprived the applicants of the
essence of their right of access to court. Under Article 13 (Art. 13),
they submit that they had no effective remedies in respect of their
complaints.
The Commission has conducted a preliminary examination of the
parties' arguments. It considers that the application raises complex
and serious issues of fact and law under the Convention, the
determination of which should depend upon an examination of the merits
of the application as a whole. Consequently, the application cannot
be declared manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention. No other grounds for declaring
it inadmissible have been established.
For these reasons, the Commission, unanimously,
DECLARES THIS APPLICATION ADMISSIBLE, without prejudging the
merits of the case.
M. DE SALVIA S. TRECHSEL
Secretary President
to the Commission to the Commission