THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33218/96 by E.R. and Others against the United Kingdom

The European Court of Human Rights, sitting on 23 October 2001 as a Chamber composed of

Mr J.-P. Costa , President , Mr W. Fuhrmann , Mr L. Loucaides , Mr P. KÅ«ris , Sir Nicolas Bratza , Mrs H.S. Greve , Mr K. Traja , judges , and Mr T .L. Early , Deputy Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 2 July 1996 and registered on 27 September 1996,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, E., H., L. and T. are United Kingdom nationals, who were born in 1960, 1961, 1963 and 1965 respectively and live in Scotland . E., L. and T. are sisters and H. is their brother. They were represented before the Court by Messrs John Henderson & Sons, lawyers practising in Dumfries.

A. The circumstances of the case

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

The applicants’ mother had six children by her husband. After the death of the applicants’ father in 1965, their mother cohabited with W.H. Two further children were born in that relationship.

The family, living in a local authority flat in Dumfries, were known to the social services of Dumfries and Galloway Regional Council (“the local authority”). The records provided by the Government show that they were principally concerned from 1970 in relation to the mother’s severe financial difficulties. The mother suffered from bad health and it was noted in 1973 that when she had a broken arm she always kept one of the children off from school (presumably to help in the home) and was likely to be summoned before the Education Sub-Committee. Problems with rent and electricity arrears were noted as recurring through 1975 and 1976, as well as continuing health difficulties suffered by the mother. An entry on August 1976 noted that the eight children were all happy though overcrowded and there were no behaviour problems. On 16 November 1976, it was recorded that E., the first applicant, who had been causing concerns as she had been staying out at night, was found semi-conscious at some nearby flat, having taken an overdose. It was noted that the mother was to take her to attend a psychiatric clinic. A social work report dated 25 November 1976 noted that the family consisted of six daughters and two sons living with their mother. W.H., the father of the two youngest children, was recorded as not cohabiting and the mother had stated that she would not marry him as she would be worse off financially. The state of the home was said to fluctuate according to the state of the mother’s health but was considered to be adequately furnished with a warm, friendly atmosphere. The mother had always demonstrated a great deal of concern for her children and had perhaps overindulged them at times. In spite of the fact that there was much juvenile delinquency in the area, this was noted as being the first time that any of her children had given cause for concern. The mother’s ambivalent attitude to school attendance was also commented on.

In December 1996, E. left school and the social services gave assistance in finding employment.

On 7 January 1977, L., the second applicant, then aged 13, ran away from home, following an incident in which she claimed that W.H. had attempted to rape her. She was referred as an emergency by the police to the social services. The police interviewed all the family.

On 7 January 1977, W.H. was arrested by the police and charged with indecently assaulting E. and L.

On 8 January 1977, W.H. entered a guilty plea concerning charges involving offences of indecent behaviour against E. and L. before Dumfries Sheriff Court. The pleas were accepted by the prosecution and the case proceeded on the basis that W.H. had committed one act of indecency against E. between 20 October 1972 and 31 August 1976 and two acts of indecency against L. between 1 January 1975 and 7 January 1977. The Sheriff requested the social services to prepare social enquiry and psychiatric reports. W.H. was not detained pending sentence. According to the applicants, he returned to live at the applicants’ home.

On 11 January 1977, the applicants state that the police submitted a report to the children’s social worker, S., expressing concern that the children should be protected from further abuse. The Government have found no trace of any such report in existence.

On 28 January 1977, W.H. appeared before the Sheriff for sentencing. The social enquiry report dated 18 January 1977 stated inter alia that the family lived in a four room local authority flat in an area where there was a high incidence of social problems. The home was adequately furnished and maintained to a reasonable standard. The mother was described as a caring woman who did not enjoy good health but who put her childrens’ interests first. The family was considered as appearing a happy well-adjusted group though they were well known to the social services as they had been given assistance from time to time. The children attended school regularly and appeared happily settled. W.H. was recorded as admitting the offence and as being more than ashamed of his conduct, though he could offer no explanation for these actions. It was noted that he did not appear to realise fully the serious nature of these charges. Since the alleged offence he had obtained accommodation outside the applicants’ home and it indicated an address in the same apartment block. It was further noted that the mother was not prepared to accept the charges relating to this man and stated that they had plans to marry in the Spring as they had had a close relationship for many years. It was concluded that, in view of the serious nature of the offences, it would be necessary for firm control to be exercised over the accused for a period of time.

The psychiatric report found that W.H. did not show any psychiatric abnormality. His criminal record showed one prior minor offence of dishonesty.

W.H. was sentenced by the Sheriff to two years’ probation. The applicants state that this was with a condition that he cease to reside at the applicants’ address. The Government have found no record of that condition attaching to the probation order and state that the probation file cannot now be found. They accept however that it was the social services’ responsibility to supervise W.H.’s probation. According to the recollection of M., who was the supervising officer for part of that period, he would have made it clear to W.H. that he was not permitted to live in the family home due to the nature of the offences. He recalled visiting W.H. at a separate address in Dumfries during this period and sending mail to that address. He believed that W.H. was living there and not at the applicants’ home.

The social worker, R., visited the home on 22 occasions between 24 January and the end of June 1977 and did not see W.H. However, his notes recorded in March 1977 a suspicion that the mother was still cohabiting with W.H. When M. took over the case, he noted that W.H. was not living there (social work case notes entry of 6 August 1977) and that W.H. was not contributing financially to his children. Entries indicated concerns about school attendance and that the mother had been repeatedly told that she should not keep the girls off school. In September 1977, it was noted that the school had expressed concerns about the welfare of T., the fourth applicant, which was attended to by a senior social worker. A school meeting concerning the childrens’ attendance was arranged but the mother and H., the second applicant, failed to attend. In November 1997, the social worker paid an unexpected visit to the home and found that W.H. was there. Both he and the mother denied that he was living there.

According to a social enquiry report of 1 June 1977 drawn up when E. was charged with criminal damage, she had left home in about February 1977. Social work case notes also recorded that by March 1977 she had left home. According to her claims lodged in later proceedings, E. finally left home on her 17 th birthday, in October 1977.

School attendancy was still recorded as a problem in December 1977 for the remaining girls at home. H., the second applicant, had now left school officially.

In January 1978, the mother was recorded as giving her various health problems as the reason for keeping L. and T. off school. It was noted that her speech was slurring, among other symptoms, but that she had shown reluctance in going to see her doctor or in allowing the social workers to approach her doctor. In February 1978, she was keeping one or both girls off school to help her at home or to run messages.

In March 1978, it was noted that the house was becoming even more disordered and the younger children and the mother were becoming more unkempt. The mother gave the impression of having given up. In June 1978, the mother was finally referred through her doctor for hospital tests, though she failed to attend the appointments set. In October 1978, it was noted that the house stank and that the carpet was matted. The mother informed the social worker that W.H., who lived in Derbyshire, had invited her to go and live with him there. She gave up that idea shortly afterwards.

H. left home in or about 1978.

L. appears to have left home in the summer of 1977. However, she had returned home by January 1978, at which point she was referred to a Children’s Hearing for failure to attend school. In April 1978, she was living temporarily in a social work establishment known as Closeburn Assessment Centre. On or about 15 January 1979, she left home after an argument with her mother about going out at night. She was taken into care by the social services until 20 February 1979. On 28 March 1979, she was transferred to a residential centre but left the following day to return home. At about the same time, the applicants’ mother changed address. L. lived with her there for about a week and then left to live with a friend. She took an overdose and was admitted to hospital. After being discharged from hospital on 9 April 1979, she went to live with a 50 year old man with whom she had a sexual relationship. On 17 April 1979, the police picked up L. who told them about the relationship. The mother agreed that L. was beyond her control and agreed that she be put in a place of safety. From 18 April 1979, she was made the subject of compulsory care measures by the local authority which brought her before the Children’s Hearing. She was detained in Closeburn Assessment Centre from 18 April to 18 June 1979. She remained there for most of the period until her 16 th birthday on 28 July 1979, at which date she ceased to be subject to the legislation governing the compulsory education of children. Efforts were made to find employment for her, but she left her job and committed an offence for which she was placed on probation for 18 months. Social work notes of 1 August 1979 concerning L. recorded that, when the social worker accompanied her to the mother’s home for a visit, a man described as L.’s stepfather was present in the living room.

Entries in the social work notes for the family during 1979 continued to emphasise financial difficulties. An entry in February 1979 referred to problems of school attendance of ten years’ standing and the mother’s frequent summoning before the school council.

On 7 April 1979, it was noted that the family had moved to a larger home, a self-contained house provided by the local authority.

Through 1979-1981, financial difficulties were noted as continuing, and the mother’s health and general state deteriorating to such an extent that she rarely got out of bed.

The applicants’ mother died in 1981. It appeared that she had been suffering, inter alia , from undiagnosed multiple sclerosis. The applicants’ elder sister (aged 22) took on the mothering role in the family home.

T. left home in November 1984, after she had become pregnant and had a child. By January 1988, she was living at an address with her 3 year old daughter and was in contact with the social services concerning her financial problems. In February 1988, she indicated to her social worker that she had been subject to sexual abuse in the past. In April 1988, she disclosed that this had involved her step-father W.H. as well as other men, one of whom had been convicted of rape. As at the time she was in regular contact with W.H., whom she considered had reformed, she was counselled concerning the risk to her own child.

Following counselling, E., L. and T. reported the history of abuse by W.H. to the police in or about November 1988. In her statement of 13 January 1989, L. stated that after W.H. had been arrested in 1977, various social workers used to come around and she and the others had had to tell them that W.H. was not living with them anymore. When they came to the house, W.H. used to hide and her mother used to keep the children out of their way if possible. She recalled wanting to tell a social worker what was happening but was so petrified of W.H. that she did not. W.H. continued to interfere with her and had sex with her a couple of times after the court case.

Charges were brought against W.H. of committing sexual offences against E., L. and T.

At his trial before the High Court on 20 July 1989, W.H. pleaded guilty to four charges and not guilty to two charges. The prosecution accepted his pleas. W.H. was duly convicted of serious acts of indecency against E. between 19 October 1967 and 18 October 1972 and of further such acts against her between 1 September 1976 and 18 October 1976; of serious acts of indecency against L. between 28 July 1968 and 31 December 1974; and of similar acts against T. between 28 August 1974 and 27 August 1978. Only part of the latter charge concerned the period after W.H.’s earlier conviction on 8 January 1977.

The trial was adjourned for sentencing reports to be obtained. On 20 July 1989, the High Court sentenced W.H. to a two year suspended sentence of imprisonment, having regard to the reports which indicated that he now lived in Yorkshire and that most of the offences predated his earlier conviction in 1977. However, it was only at this time that the applicants allege that they became aware that W.H. had been subject to criminal proceedings in 1977 and that he had been placed on probation on the condition that he did not reside in their home.

On 18 June 1992, the four applicants brought proceedings against the local authority seeking damages on the basis that the local authority had failed to carry out its statutory duties, in particular, that W.H. had breached his probation order by residing at the family home and that the social services had, or ought to have, known this and had failed to report the breach to the court or to take the children into care.

On 4 January 1996, following the decision of the House of Lords in X. and Others v. Bedfordshire County Council and in light of counsel’s advice that their case was indistinguishable, the applicants consented to an order that their action be dismissed.

In or about 1992 to 1993, the applicants applied for compensation to the Criminal Injuries Compensation Scheme in respect of the abuse suffered. In their applications, they alleged as follows:

E. stated that from about 1967 she suffered 10 years of abuse from W.H. The first incident which she recalled was when she was 6 or 7 when he struck her, sending her flying into the wall. Soon after, he began coming into her room at night and doing things to her, requiring her to masturbate him. If she cried, he would punch her in the face. From the age of 12, he used to make the girls have a bath together and would touch them all over their bodies, inserting his finger into them. Often he would keep her off school and  would abuse her sexually. He assaulted her often, coming up behind her to hit her on the back of the head. He also used to stand on her naked feet with his shoes on and twist, pinch her with his nails and punch her. This physical abuse happened on a daily basis. He would also get her and the others to strip to the waist and hit each other with dog chains. This conduct continued regularly until she left home on her 17 th birthday (19 October 1977). She recalled going to the social services when she was aged 14 and telling them that W.H. was living with them when he was not supposed to. Nothing happened as a result. While the social services were coming to the house, she did not remember them talking to her. She recalled that this period was before she was 14 or 15, before 1974 or 1975. When she was 15, she started running away from home. On one occasion she took pills. When she was visited by the police in hospital, she told them that W.H. was interfering with her. She also told this to a psychiatrist whom she saw soon after. However, W.H. continued interfering with her. W.H. was only arrested after L. had run away from home in January 1977. E. had suffered serious problems since that time, having made several suicide attempts and having developed a severe drink problem. A psychiatric report of 24 April 1992 concluded that her symptoms accorded with a diagnosis of severe post traumatic stress disorder.

H. stated that he suffered from physical abuse, assaults and threats of violence from W.H. from about 1967. From about the age of 6 or 7, W.H. used to punch him in the stomach and bash him against the wall. He also made him and the others strip to the waist and punch and hit each other with chains. These relentless assaults went on regularly until he left home during 1978. A psychiatric report of 9 June 1992 concluded that he had long term relationship problems, poor self confidence and long standing personality difficulties.

L. stated that she had suffered sexual and physical abuse from W.H. from 1969 until about 1989. W.H. had started interfering with her when she was about 5 or 6. The first thing she remembered was him bathing her with her sister E. and rubbing her private parts. Hardly a day went past when he did not do something of a sexual nature to her (e.g. touching her breasts or private parts) or batter her. When she was older, he made her touch him on his private parts and perform oral sex. He made her and the other children hit each other with chairs and whips and would sometimes join in. She was often left with bad bruises and a bleeding nose. From the age of 11 or 12, he had sexual intercourse with her several times. When she ran away in January 1977, she told the police and he was arrested. However, he returned home and started interfering with her again, having intercourse with her and punching or kicking her if she refused. She ran away again in Spring 1977 and was put into a home, first in Dumfries, then Annan and finally Closeburn, which she eventually left in 1979 when she was 16. At that point, she did not return home but went to stay with her sister and then embarked in a series of relationships. When she visited her mother on 1 January 1980, W.H. put his hands up her skirt but let her go when she threatened to tell her boyfriend. On another occasion in 1981, W.H. tried to fondle her but she got up and left. She had never been able to tell anyone about these things as she was scared of him and thought that he would severely assault her. A psychiatric report of 24 April 1992 concluded that her symptoms, including nightmares and sleep disturbance, accorded with a diagnosis of severe post traumatic stress disorder.

T. stated that she had suffered sexual and physical abuse from W.H. from about 1971 to 1989. Though she did not remember anything specifically before the age of 9, she slept in the same bed as L. and remembered him coming naked into the bed with them. From an early age, he used to stand on her naked feet in his shoes and twirl round, nip her and punch her in the stomach. She had black eyes occasionally. When she was 9, she remembered him making her touch him and masturbate him. She had to do that to him two or three times a week when he came home from work. He then started keeping her off school and would lie down on the bed naked, making her take her clothes off and masturbate him. This occurred two or three times a week. When she was 10 or 11, he began to touch her breasts and rub his penis over her until he ejaculated. When she was 14, he forced her to have sexual intercourse with him. He did not repeat that but continued touching her and making her masturbate him or have oral sex. This continued until 1984 when she was able to leave home - she deliberately got pregnant by having sex with someone she knew, so that the local authority would provide her with accommodation away from home. In 1987, W.H. started coming to her house and would try to touch and grab her. She became very depressed and suicidal. She then told the Family Centre about the abuse. A psychiatric report of 24 April 1992 concluded that her symptoms, including low self-esteem, fear, mistrust and depression, accorded with a diagnosis of severe post traumatic stress disorder.

Though the applicable provisions did not permit claims for injuries from violence arising before 1 October 1979 where the victim and assailant were in the same household, the Criminal Injuries Compensation Board (CICB), in an apparent oversight, made an assessment awarding 25,000 pounds sterling to E., L. and T. for general damages. They appealed against the failure to award damages for loss of earnings. As it was noted that in the proceedings for the fourth applicant that most of the injuries had arisen before 1979, the applicants withdrew their appeals to prevent their awards being reconsidered altogether. H. did not receive any award as his injuries had been wholly suffered before 1979.

On 30 January 1996, the applicants requested the Commissioner for Local Administration in Scotland to undertake an investigation into their allegations of negligence and maladministration by the local authority. By letter dated 8 February 1996, the Ombudsman stated that he had no jurisdiction pursuant to section 24(6)c of the Local Government (Scotland) Act 1975, and that even if he had jurisdiction he would not have undertaken an investigation due to the lapse in time since the events occurred. By letter of 22 February 1996, he declined to reconsider his decision.

B. Relevant domestic law and practice

Probation

Imprisonment is used in Scotland only where there is no alternative. One alternative is probation, which was at the relevant time imposed under section 384 of the Criminal Procedure (Scotland) Act 1975. When an offender is placed on probation he is allowed to retain his liberty during the period of probation but must comply with the requirements of the probation order. In all cases the order requires the offender to be of good behaviour, conform to the directions of the supervising officer and to inform the supervising officer if he changes residence or employment. Other requirements may be imposed, such as conditions as to the place of residence. If the offender fails to comply with requirements of the probation order, that failure may be reported to the sentencing court by the supervisory officer or other responsible officials of the Social Work Department. The supervising officer has a degree of discretion where there is an apparent breach of the order. He may warn the probationer about the conduct if he considers a warning is likely to alter the probationer’s behaviour. If he reports the matter to the court, the court then investigates the matter. If the failure is proved to its satisfaction, the court can impose a variety of penalties including sentencing the probationer to imprisonment for the offence for which he was placed on probation.

Child care provisions

The care and protection of children in Scotland was governed for most of the relevant period by the Social Work (Scotland) Act 1968 (the “1968 Act”).

There was a duty on local authorities under section 15(1) of the 1968 Act to receive a child under 17 into care when it appeared to an authority that his parent or guardian was unable, by reasons of illness, mental disorder or other circumstance or incapacity, from providing proper accommodation, maintenance and upbringing. The test was whether the intervention was necessary in the interests of the welfare of the child. Compulsory measures of care were also required under section 32 for children in need, including those who were suffering unnecessarily or were the victims of cruelty. Under section 37(1), anyone with reasonable cause to believe a child fell into this category could inform the Reporter to the Children’s Panel of the matter.

The Children’s Panel was a tribunal specifically designed to cope with cases involving children. The Reporter had investigative powers to establish the condition of the welfare of the child and had three options: to take no further action, to refer the case to the Social Work Department for them to give guidance or support, or to convene a Children’s Hearing. The Children’s Panel had the power to order the child to submit to a supervision requirement in accordance with such conditions as it saw fit or to reside in a special establishment.

After the entry into force of the Children Act 1975, the local authority had a duty to cause inquiries to be made, unless it did not deem them necessary.

Under section 37(2) of the 1968 Act, a police constable or other person authorised by a court or justice of the peace could take a child to “a place of safety”, e.g. if offences had been committed in relation to the child, including cruelty or infliction of unnecessary suffering.

Remedies available to victims of abuse

Civil actions

Physical or sexual abuse of a child will generally constitute a civil wrong (such as assault), as well as a criminal offence, and give rise to an action for damages by the perpetrator.

Actions in civil damages may also lie against the social work department (local authority) either in respect of alleged wrongdoing (e.g. negligence, or wilful abuse of power) for its own actions or vicariously for the actions of its staff.

Under Scots law, a body carrying out statutory functions will be liable in damages to a person affected by its performance or non-performance of those functions (in the absence of a wilful disregard of its duties) only if the statute expressly or impliedly provides for such a liability, or the relationship between the statutory body and the person in question is of such a nature as to create a common law duty of care, and the statutory body violated that duty (i.e. was negligent).

Negligence arises in specific categories of situations. These categories are capable of being extended. There are three elements to the tort of negligence: a duty of care, breach of the duty of care and damage. The duty of care may be described as the concept which defines the categories of relationships in which the law may impose liability on a defendant in damages if he or she is shown to have acted carelessly. To show a duty of care, the claimant must indicate that the situation comes within an existing established category of cases where a duty of care has been held to exist. In novel situations, in order to show a duty of care, the claimant must satisfy a threefold test, establishing:

– that damage to the claimant was foreseeable;

– that the claimant was in an appropriate relationship of proximity to the defendant; and

– that it is fair, just and reasonable to impose liability on the defendant.

The leading case is Caparo Industries v. Dickman ([1990] 2 AC 605).

If the courts decide that as a matter of law there is no duty of care owed in a particular situation, that decision will (subject to the doctrine of precedent) apply in future cases where the parties are in the same relationship.

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 House of Lords there held that local authorities could not be sued for negligence or for breach of statutory duty in respect of the discharge of their functions concerning the welfare of children. The children in that case had suffered severe neglect and abuse from their parents and had alleged that the local authority had failed to protect them, inter alia , by not exercising their power to take them into care at an earlier stage. As regards the claims that the local authority owed a duty of care to the applicants pursuant to the tort of negligence, Lord Browne-Wilkinson in his leading judgment found that no duty of care arose as it was not fair, just or reasonable to impose one on the local authority in their exercise of this aspect of their duties.

Criminal Injuries Compensation

The Criminal Injuries Compensation Authority (known at the relevant time as the Criminal Injuries Compensation Board – CICB) may make an award where it is satisfied on the balance of probabilities that an applicant is a victim of a criminal offence and suffered the harm alleged. Payments of some 210 million pounds sterling are paid out each year. However, under the rules in force until 1 October 1979, there was a complete bar on claims where the victim and the assailant were living together at the same time as members of the family.

Judicial review

The acts, omissions and decisions of social work agencies carrying out statutory functions in connection with the welfare of children in Scotland are subject to judicial review by the Court of Session. Decisions by the local authority, for example, concerning the place of residence of children or recording the name of an abuser on a register have been quashed.

Local Government Ombudsman

Persons aggrieved by the actions or omissions of social work agencies may complain to the Commissioner for Local Administration in Scotland whose functions include investigation of written complaints by persons who claim to have suffered from the maladministration of local authorities (Part II of the Local Government (Scotland) 1975 as amended). The Local Government Ombudsman may recommend an appropriate remedy, including the payment of compensation. Though the local authority is not legally obliged to pay the compensation recommended, it is the general practice to do so.

There are restrictions on the investigations which may be conducted. Section 24(4) of the 1975 Act above requires a person to bring a complaint within 12 months from the day on which the complainant had notice of the matters concerned, though there is a discretion to consider complaints outside this time-limit if the Ombudsman considers it reasonable to do so. He may not investigate any matter in which the person aggrieved has or had a remedy by way of proceedings in any court of law (section 24(6)c). If the Ombudsman wrongly decides that he has no power to investigate, his decision may be challenged by judicial review.

COMPLAINTS

The applicants complain under Article 3 of the Convention that the State failed to protect them from inhuman and degrading treatment, in particular in that the local authority failed to fulfil its statutory and common law duties to protect them from severe physical and sexual abuse over a prolonged period of time. This also disclosed a failure to protect their physical and moral integrity, contrary to Article 8 of the Convention.

The applicants further complain under Article 13 of the Convention that they had no effective remedy for the negligence of the local authority, referring inter alia to the House of Lords decision in X and Others v. Bedfordshire County Council (cited above) which prevented them from pursuing their claim for damages against the local authority.

THE LAW

The applicants invoke Articles 3, 8 and 13 of the Convention. These provide, insofar as relevant, as follows:

Article 3 of the Convention:

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

Article 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 ... 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 of the Convention:

“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 submissions of the Government

As regards whether the applicants suffered inhuman or degrading treatment contrary to Article 3 of the Convention, the Government pointed out that W.H. had only been convicted, or charged in relation to offences against the first, third and fourth applicants, and that these offences related to matters before 18 October 1976 for the first applicant, before 7 January 1977 for the third applicant, and after 27 August 1978 for the fourth applicant. He had been acquitted of offences against the third and fourth applicants at a later date. They submit that no reliable finding of fact can be made concerning alleged instances of abuse save where W.H. was convicted. Insofar therefore as the girl applicants suffered inhuman and degrading treatment, they consider that it has not been shown that the authorities failed in any positive obligation to protect them. There was a high level of monitoring of the family over a long period, providing considerable support and advice in their problems of finance, health and school attendance, and the social services proceeded in good faith and on the basis of observations made over many visits that, after the first set of criminal proceedings, W.H. was no longer living in the family home.

Similarly, as regards the complaints raised under Article 8 of the Convention, the Government argue that a State cannot be held liable for every threat to a person’s physical and moral integrity by another, and that their positive obligation is limited to providing an appropriate legal framework. They point out that W.H. was convicted on two occasions of criminal offences, indicating that the criminal law provided available sanctions against abuse. In the context of child sexual abuse, that is sufficient protection, the possibility of a civil action not necessarily being required.

The Government further submit that, assuming they had an arguable claim of a breach of any Convention right (which was denied for the reasons above), the applicants did have an effective remedy for their complaints, with regard to the cumulation of the following possible channels of redress: Criminal proceedings had been available against W.H., with the possibility of a compensation order; there was a system of criminal injuries compensation; a claim for civil damages lay against W.H. and a complaint could be made to the Local Government Ombudsman who could recommend compensation. They deny that a remedy in damages against the local authority in respect of decisions taken negligently but in good faith can be required in addition.

The submissions of the applicants

The applicants submitted that they had all been subjected to inhuman and degrading treatment. Insofar as there are no findings beyond those in the criminal proceedings, this was the result of being unable to pursue civil claims and the European Court of Human Rights should not be barred from reaching its own conclusions. Also they pointed out that the Criminal Injuries Compensation Board accepted the applicants’ allegations of abuse. The local authority had been under an obligation to protect them from this treatment and had failed in its duty to supervise the probation order imposed on W.H. on 28 January 1977, to cause enquiries to be made into the applicants’ cases or to give information to the Reporter to have their cases brought before a Children’s Hearing. The supervision carried out of W.H., which should have been firm, was in fact minimal. Though they were aware that W.H. was a risk to the children and that the mother did not accept that he was guilty and had expressed loyalty towards him, they failed to carry out effective monitoring. In particular, when social workers found W.H. present in the home, they did not make any further enquiries or react in an effective manner.

Under Article 8, they argued that there was inadequate protection given to their physical and moral integrity and that criminal sanctions were not sufficient in the circumstances. They consider that some civil remedy against the local authority should have been provided as part of the protective system and that their case was different from that of Stubbings and Others v. the United Kingdom (judgment of 22 October 1996, Reports of Judgments and Decisions, 1996-IV), where there was a civil remedy, albeit one limited by the operation of a prescription period.

The applicants submit that their inability to pursue the local authority for negligence and statutory duty deprived them of an effective remedy as required by Article 13. A judicial remedy was the only remedy capable of determining the substance of their complaints against the local authority.  They emphasise the importance of accountability of public officials. None of the remedies relied on by the Government met Article 13’s requirements, in particular since the awards made by the CICB were reduced to a minimum, and in the second applicant’s case no award was made at all, due to the bar on claims relating to matters before 1979 and, in any event, did not involve any findings about the local authority’s failures. Furthermore a civil action against W.H. was impractical as he had no assets, while the Ombudsman had only an advisory role.

The Court’s assessment

The Court has examined the applicants’ complaints and the submissions of the parties and finds that serious questions of fact and law arise, which are of such complexity that their determination should depend on an examination of the merits. The application cannot, therefore, be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

T.L. Early J.-P. Costa Deputy Registrar President