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)