Information Note on the Court’s case-law 47
November 2002
E. and Others v. the United Kingdom - 33218/96
Judgment 26.11.2002 [Section II]
Article 3
Positive obligations
Failure of social services to protect children from sexual and physical abuse by mother's partner: violation
Facts: The applicants are three sisters and their brother, born between 1960 and 1965. The family came to the attention of the social services in Scotland in the 1970's, primarily on account of the mother's financial difficulties. In 1977 the third applicant, then aged 13, ran away from home, claiming that her mother's cohabitee, W.H., had attempted to rape her. W.H. pleaded guilty to a charge of indecent assault and was sentenced to two years' probation. The applicants maintain that it was a condition of probation that W.H. cease to reside with them but that he breached that condition. Social workers subsequently expressed some suspicion that W.H. might still be living with the family. The situation in the home deteriorated and in 1978 the third applicant was referred to a Children's Hearing for failure to attend school. The background report which was prepared for the hearing made no mention of the history of sexual abuse. The mother died in 1981. In 1988 the three sisters told social workers that W.H. had subjected them to sexual and physical abuse on regular basis in the past and W.H. was subsequently convicted of a number of serious acts of indecency between 1967 and 1978. He was given a suspended sentence of two years' imprisonment, taking into account that most of the offences pre-dated his previous conviction. The applicants then brought proceedings against the local authority seeking damages for its failure to carry out its statutory duties, in particular with regard to W.H.'s breach of probation. However, following the judgment of the House of Lords in a similar English case, the applicants consented to an order that their action be dismissed. The three sisters were later awarded compensation by the Criminal Injuries Compensation Board but no award was made to their brother, who also claimed that he had been physically abused by W.H.
Law: Article 3 – There was no doubt that the treatment described by the applicants fell within the scope of this provision as inhuman and degrading. W.H. had been convicted of several assaults and the Government had not contested the allegations relating to other abuse. The Court was satisfied that it could make a finding on the materials before it that the applicants had suffered abuse as described, and did not consider that this could be construed as any determination of guilt of criminal offences on the part of W.H., criminal liability being distinct from international law responsibility. The question therefore arose whether the authorities should have been aware of the abuse as from 1977. There was no indication that any of the applicants had complained about assaults until 1988. However, the Government accepted that even if was not a formal condition of W.H.'s probation, it would have been understood that he was no longer permitted to reside in the applicants' home and there were a number of elements which should have alerted the social services to the fact that the situation in the family disclosed a history of abuse and that W.H. was continuing to have close contact with the family. Even if the social services were not aware that W.H. was inflicting abuse, they should have been aware that the children remained at risk and the fact that at the relevant time there was less awareness of the prevalence of sexual abuse was not significant in the present case, in which the social services knew there had been incidences of such abuse and were under an obligation to monitor the offender's conduct. The social services had failed to take steps which would have enabled them to discover the extent of the problem and potentially to prevent further abuse. The test under Article 3 did not require it to be shown that “but for” the failure of the authorities ill-treatment would not have occurred; a failure to take reasonably available measures which could have had a real prospect of altering the outcome or mitigating the harm was sufficient to engage the responsibility of the State. In the present case, the Court was satisfied that the pattern of lack of investigation, communication and cooperation between the relevant authorities had to be regarded as having had a significant influence on the course of events and that proper and effective management of their responsibilities might have been expected to avoid, or at least to minimise the risk or the damage suffered.
Conclusion: violation (unanimously).
Article 8 – In view of the foregoing conclusion, no separate issue arose under this provision.
Conclusion: no separate issue (unanimously).
Article 13 – The Criminal Injuries Compensation Board could not be regarded as providing a mechanism for determining the liability of the social services in respect of any negligence. It made no award to the brother and while it awarded compensation to three sisters, these awards did not take into account any pecuniary loss. Moreover, a complaint to the local authority ombudsman might have led to an investigation of certain aspects of the management of the case but could not provide a binding determination. Finally, the Court was not satisfied, in view of the House of Lords judgment, that at the relevant time the applicants could have successfully pursued a civil action based on a duty of care. Consequently, the applicants did not have an effective remedy at their disposal.
Conclusion: violation (unanimously).
Article 41 – The Court awarded the first three applicants 16,000 € each and the fourth applicant 32,000 € in respect of pecuniary and non-pecuniary damage. It also made an award in respect of costs and expenses.
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This summary by the Registry does not bind the Court.
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