FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42841/02 by Stephen ECCLESTON against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 18 May 2004 as a Chamber composed of:

Mr M. Pellonpää , President , Sir Nicolas Bratza , Mrs V. Strážnická , Mr S. Pavlovschi , Mr J. Borrego Borrego , Mr L. Garlicki , Mrs E. Fura-Sandström, judges , Mr M. O'Boyle , Section Registrar , Having regard to the above application lodged on 29 November 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Stephen Eccleston, is a United Kingdom national, who was born in 1965 and lives in Liverpool. He was represented before the Court by E. Rex Makin & Co., solicitors practising in Liverpool.

A. The circumstances of the case

The facts of the case, as submitted by the applicant , may be summarised as follows.

The applicant was placed in care with Liverpool City Council (“the Council”) from the age of two as his mother could not cope. From 1967 until 1979 he remained under the Council's care, with occasional periods with his mother. He was placed in various homes operated by the Council for the purposes of accommodating children in their care.

From 22 June 1970 until 27 November 1970, the applicant was placed at 31 Ternhall Road, Children's Home, Liverpool which was run by a Mrs Beesley with the assistance of her husband. During his residence there he was subjected to acts of cruelty which damaged his mental and physical health. Amongst other incidents, Mr and Mrs Beesely tied the applicant to chairs outside the premises at night, restrained the applicant by tying him down with a sheet so that on occasion he could not avoid urinating, subjected him to racial abuse, denied him proper quantities of food such that he became malnourished, neglected his physical condition such that he developed gangrene of the toes, allowed their own children to assault the applicant and subjected him to psychological and sexual abuse.

On 27 November 1970, the applicant was admitted to hospital where he was observed to be malnourished, dirty and with gangrene of the toes and to exhibit disturbed behaviour.

Since then the applicant continues to suffer from personality disorders, post traumatic stress disorder, panic attacks and depression and permanent physical injury to his foot.

In 1988, the applicant requested the Council to provide him with his social records as the only coherent record of his childhood and early development. His request was refused. In 1991, the applicant sought access to his records through his then solicitors. After a meeting with a social worker very limited information was provided and no copies provided.

On 14 November 1995, the applicant's present solicitors applied to the Council for the applicant's social services' records.

Following further approaches, the Council responded to a letter of 15 March 1996 by refusing the request.

On 17 July 1996, the applicant's solicitors issued an application for pre-action discovery to compel the Council to release the records. The application was opposed by the Council and adjourned pending the judgment of this Court in Stubbings and others v. the United Kingdom (judgment of 22 October 1996, Reports of Judgments and Decisions 1996-IV).

On 20 August 1996, the Council provided brief details from the applicant's file, setting out the periods and locations where he was in their care. Following the judgment in Stubbings (cited above), the Council maintained their opposition to discovery.

Between June 1997 and November 1998 the applicant's solicitors repeatedly sought disclosure of his records. In 1999 they sought an appointment with the Council's legal advisor which was refused.

On 15 December 1998, in correspondence with the applicant's solicitor, the Department of Health highlighted the Data Protection Act 1998 under which the applicant would have a right of access to his social service records.

On 22 April 1999 the Council stated that they were prepared to allow the applicant's solicitors access to the applicant's social services records. In May 1999 the Council commenced the procedure of disclosure which took some time to complete.

On 31 May 2000, the applicant issued proceedings in the High Court seeking damages from the Council for the psychological and physical injuries which he suffered at Ternhall Road Children's Home. During the course of these proceedings, further documentation relevant to the applicant's childhood and early development was disclosed.

On 12 November 2001, the applicant's personal property contained in his social service records was released to him, namely, two photographs, correspondence between him and his siblings and three swimming certificates.

On 31 May 2002, the High Court found that the applicant had suffered prolonged cruelty and neglect and acts of physical and sexual abuse from Mr and Mrs Beesely and that the Council had been in breach of its duty to protect his well-being. The judge awarded GBP 27,500 covering the applicant's psychological injuries and the injury to his toes and GBP 4,000 to cover need for private treatment and taking into account a discount to reflect the factors which were not attributable to the Council.

B. Relevant domestic law and practice

The Court of Appeal in Gaskin v. Liverpool Corporation (1980 1 WLR 1459) held that the High Court, in refusing access to the social services records, had correctly balanced the public interest in maintaining an efficient child-care system with the individual's interest in obtaining access to records, and that it was not necessary for the court to review the records in question in order to so decide.

In 1983 a binding circular, LAC(83)14, was issued setting out the principles to be applied by local authorities in permitting access to their care records. Access to records was, in principle, to be permitted subject to necessary exceptions (such as the preservation of third party confidences and the protection of sources).

The Access to Personal Files Act 1987 and the Access to Personal Files (Social Services) Regulations 1989 both entered into force on 1 April 1989. The Act and the Regulations gave subjects the statutory right to know what was recorded about them in manually maintained records held by the local authority for the performance of social service functions. A number of exceptions were retained for the preservation of third party confidences and the protection of sources, but there was a right of review (and, subsequently, of judicial review) of a refusal of access. The Act and Regulations did not, however, apply to records created before 1 April 1989.

Circular LAC(89)2 was issued to provide guidance to the local authorities on the implementation of the 1987 Act and the 1989 Regulations. The previous circular (LAC(83)14) was cancelled and Paragraph 7 of  Appendix 1 to the new circular pointed out that, while there was no obligation to furnish pre-April 1989 information, “there is likely to be significant advantage in authorities making available as much information as possible. This could lead to greater clarity and understanding of an individual's background.”

On 1 March 2000 the Data Protection Act 1998 (“the 1998 Act”) came into force and repealed the 1987 Act, the 1989 Regulations and circular LAC(89)2. It provided a statutory right of access for a “data subject” to information held about him in care records and other personal files (both manual and electronic) regardless of the date when the information was recorded, together with a right of appeal to the domestic courts or to the Data Protection Commissioner if access were refused, or where a contributor or a relevant third party had not consented.

COMPLAINTS

The applicant complains under Article 3 that the Council's refusal to disclose information about his mistreatment in their care subjected him to degrading treatment.

The applicant complains under Article 8 about the refusal to release to him his records which represented his principal source of information about his childhood and formative years. The Council opposed and obstructed the applicant's requests until shortly before measures were introduced in 2000 to meet the obligations imposed on the United Kingdom by the judgment in the Gaskin case ( Gaskin v. the United Kingdom , July 7, 1989, Series A, No. 160). He had no right of appeal against the refusal, there was no independent tribunal to bring the dispute before and no clear procedures for dealing with requests for disclosure.

He complains under Article 10 that he should have had a positive right to receive the information in his files and under Article 13 that he had no effective remedy, having to wait many years to obtain what should have been available to him in 1989.

Finally, he complains under Article 1 of Protocol No. 1 of being deprived of his personal possessions (items relating to his childhood contained in the social services files) until 12 November 2001.

THE LAW

1.  The applicant complains that the Council's delay in providing access to his social service files subjected him to degrading treatment contrary to Article 3 of the Convention which provides:

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

The Court recalls that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim (see, amongst other authorities, Tekin v. Turkey , judgment of 9 June 1998, Reports 1998-IV, § 52).

In the present case, the Court observes that the applicant was found by the High Court to have suffered prolonged cruelty and neglect at the hands of carers under the responsibility of the Council. His complaint, however, relates to the Council's delay in providing him with the information about his years in their care, which he considers was degrading.

A doubt arises in the present case as to compliance with the six month time-limit imposed by Article 35 § 1 of the Convention  in respect of that complaint. The applicant has not specified when he obtained, finally, all the information from the files but this appears to have occurred some time prior to the High Court judgment of 31 May 2002 during the process of discovery whereas the application was introduced on 29 November 2002.

However, assuming that the applicant complied with Article 35 § 1 in introducing his complaints within six months of the final relevant event, the Court is not persuaded that the delay of the Council in providing the information from his files, frustrating though it must have been for the applicant, discloses treatment which reaches the threshold of severity prohibited by Article 3 of the Convention.

It follows that this part of the application must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

2. The applicant complains that the refusal and obstruction in releasing his social service records infringed his rights under Article 8 of the Convention which 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.”

The Court recalls, as above, that it is not apparent that the applicant has complied with the requirements of Article 35 § 1 of the Convention in introducing his complaint about delay within six months of the final relevant event, which in this case, in the absence of any domestic remedy relating to this complaint, would be the date on which the Council provided the last of the information from the applicant's files.

Assuming compliance however, the Court notes that the applicant first requested access to social services files in 1988. He renewed his request at various intervals but it was not until May 1999 that the Council began the process of disclosure. The applicant alleges that it took some years for all documentation finally to be disclosed which did not occur until during his proceedings for negligence which culminated in May 2002. He submits that there was no justification for this dilatoriness and obstructiveness on the part of the Council which was well aware of the Gaskin judgment as the local authority involved in the facts of the case.

The Court does not consider however that the element of delay, for which there is no satisfactory explanation, can in the circumstances of this case disclose by itself an interference with the applicant's right to respect for his private life. It may be noted that the Council agreed to disclosure following the coming into force of the Data Protection Act 1998 which repealed the previous domestic rules governing access to such files and provided for the first time an independent procedure for settling disputes about access. As from 1 March 2000 (the date of entry into force of the Data Protection Act 1998) the applicant could have, but did not, appeal to an independent authority against any ongoing non-disclosure of certain records. It may be recalled that the judgment of this Court in Gaskin v. the United Kingdom (cited above) found a breach of Article 8 in the lack of appropriate procedures by which persons in the applicant's position could seek access to the records of their childhood and developmental years, not in the failure as such to make disclosure of records.

The Court concludes that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 § 1 of the Convention.

3. The applicant complains that he had no right to receive the information in his files, invoking Article 10 of the Convention which provides as relevant:

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority ...

The Court notes the right to receive information contained in Article 10 refers to information which others wish to communicate. It does not impose an obligation on others to provide information (see, mutandis mutatis , Guerra and others v. Italy , § 53).

It follows that this complaint must be rejected as incompatible ratione materiae with the provisions of the Convention pursuant to Article 35 §§ 3 and 4 of the Convention.

4. The applicant complains that he did not have an effective remedy for his lack of access to his files, contrary to Article 13 of the Convention which provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court recalls that Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom , judgment of 27 April 1988, Series A no. 131, § 52). It has found above that his complaints are, respectively, manifestly ill-founded or incompatible ratione materiae . Accordingly, the applicant does not have an arguable claim for the purposes of Article 13 and this part of the application must also be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

5. Finally, the applicant complains under Article 1 of Protocol No. 1 (prohibition of interference with peaceful enjoyment of possessions) that he was deprived of personal items of property relating to his childhood until 12 November 2001.

The Court notes, however, that this complaint was introduced on 29 November 2002 and that the proceedings before the High Court had no relation to any process of exhausting any domestic remedy in that regard. Assuming therefore that no remedy existed, this complaint has been introduced more than six months after the event concerned and must be rejected as out of time pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O'Boyle Matti Pellonpää Registrar President