AS TO THE ADMISSIBILITY OF
Application No. 29392/95
by K.L. and Others
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 9 October 1995 by
K.L. and Others against the United Kingdom and registered on
28 November 1995 under file No. 29392/95;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
18 February 1997 and the observations in reply submitted by the
applicant on 16 June 1997;
- the written observations submitted by the respondent Government
on 6 March 1998 on the issues arising under Article 6 of the
Convention;
- the written brief submitted by the respondent Goverment on
12 May 1998:
- the further information and documents submitted by the applicants
on 18 and 22 May 1998;
- the parties' oral submissions at the hearing on 26 May 1998;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are five full siblings: K, a girl, born in 1982;
D, a boy, born in 1984; T, a boy, born in 1986; Ki, a girl born in 1988
and J, a girl, born in 1990. All the applicants were placed in foster
care in 1992. The three girls have now been adopted. The applicants are
British citizens and are represented by Ms. Penny Wood, a solicitor of
Conway Wood and Co. acting for the Official Solicitor, and by
Ms. Nuala Mole at the Centre for Advice on Individual Rights in Europe
("the Aire centre").
The facts of the case, as submitted by the parties, may be
summarised as follows.
a. Particular circumstances of the case
The applicants' parents were married in November 1981. The
applicants' mother appeared to have had a difficult childhood during
which she assumed a considerable amount of responsibility for two
younger, disabled siblings.
The family was first referred to social services in October 1987
by their health visitor because of concerns about the children and
marital problems. K was reported to be stealing food at night.
Following the referral, a professionals' meeting, involving the
relevant agencies, was held on 24 November 1988, at which it was
decided that a social worker and health visitor should visit. The
family were reviewed at a further meeting in March 1988 and as it
appeared that concerns had diminished, the file was closed.
In September 1988, a neighbour reported that the children were
locked outside the house for the most of the day. In April 1989 the
police reported that the children's bedrooms were filthy and a referral
was also made by their General Practitioner that the children's
bedrooms were filthy and that their doors were locked. The children's
headteacher, Mrs Armstrong, expressed concern in May 1989 and requested
a case conference. In June 1989, the NSPCC and the Emergency team made
a referral after complaints by neighbours stating that the house was
filthy and the children spent most of the day in their bedrooms, rarely
being allowed out to play and crying frequently. In August 1989, the
maternal grandmother complained to social services about the mother's
care and discipline of the children.
At a professionals' meeting on 4 October 1989, at which social
services, the applicants' headteacher, general practitioner and health
visitor attended, it was decided that no social worker would be
allocated to the family. The school was to monitor the older childrens'
weight and the health visitor was to continue to visit the family
regularly.
In October 1989, whilst the applicants were on holiday their
house was burgled. The police found it in a filthy state. Used sanitary
towels and dirty nappies were discarded in a cupboard and the
children's mattresses were sodden with urine. The house was cleaned and
new bed linen provided. At a professionals' meeting on
13 December 1989, the health visitor requested that the older four
children be placed on the at risk register as she felt that their
mother could not offer consistent care. This suggestion was rejected.
However, a social work assistant, Ms Merry, was assigned to the family.
It was not considered appropriate to convene a case conference at this
stage. Prior to the meeting K had mentioned that her brothers had been
hit with a poker. It was decided that this statement would be
investigated.
At a professionals' meeting on 23 March 1990, an improvement was
noted in respect of the cleanliness of the house, the children's
bedding being clean save on two occasions. However, it was reported
that K and D were taking food from bins at the school. Ms Merry
explained that the applicants' mother also expressed concern about D's
aggressiveness and his bed-wetting and soiling. There was still
considered to be cause for concern, especially since the birth of the
fifth applicant, J, was expected.
At a professionals' meeting on 11 July 1990, the applicants'
headmistress reported a deterioration in the children's well-being; K
and D were still taking food from bins and D was soiling himself.
Ms Merry was visiting weekly at this stage and said that she was
checking the children's bedrooms. She had noted that the children ate
at 16.00-16.30 hours and then did not eat again until the morning. The
children were also sent to bed at 18.00 hours. A voluntary agency also
planned to give the applicant's mother further assistance.
In or about September 1990, D and T were both reported to have
bruising on their faces. The police investigated after neighbours had
reported screaming at the applicants' home but apparently found no
signs of bruising. They made a referral to the social services stating
that the conditions of the house were appalling and not fit for five
children to live in.
At a further professionals' meeting on 3 October 1990, the
assistant social worker, Ms Merry, stated that she was concerned about
the applicants' soiling and their mother's disinterest. There were
concerns that the children were defecating in their bedroom and
smearing excrement on their windows. The headteacher expressed concern,
particularly, concerning the boys, D and T and stated that the children
had described blocks of wood being placed against their bedroom doors.
It was decided to continue monitoring the children.
A decision was made to arrange a case conference for January 1991
at a professionals' meeting on 5 December 1990 as a result of concern
regarding the applicants' care and the state of their bedroom.
Ms. Merry considered that standards in the boys' bedroom had
dramatically dropped. She found the room to be damp and smelly. D's bed
was broken so it was sloping and had a metal bar sticking out. The
bedding was damp and grubby with soil marks.
In a report dated 24 January 1991, the headmistress stated that
D was shabby, ill kempt and often dirty and that he had been raiding
the playground bins for apple cores. K was pathetic, lacking in
vitality and frequently and inexplicably tearful, becoming increasingly
isolated from the other girls in her peer group with unfortunate
incidents in which detrimental remarks were made about her appearance.
T presented as withdrawn, pathetic and bedraggled. He regularly arrived
cold, was frequently tearful and craved physical contact from adult
helpers. He also appeared to crave for food. She concluded that they
were still concerned that the childrens' needs were not being
adequately met and that home conditions and family dynamics gave rise
for concern.
At the case conference held on 28 January 1991, Ms Merry stated
that the boys' bedroom had no light, carpet or toys and that their
bedding was wet, smelly and soil-stained. Their mother did not change
the beds. Their headteacher stated that K was tearful and withdrawn,
D had been raiding school bins and was often dirty and T was very
withdrawn, craved attention and was ravenously hungry. The Chairman of
the Conference concluded that despite the many concerns about the
parenting of the applicants and the conditions in the home there was
little evidence to support going to court. It was felt that the parents
were not wilfully neglecting their children and bearing in mind their
own poor upbringing, it was considered that the applicants' parents
were doing what they could and that continued support was required to
try and improve the situation. It was decided not to place the children
on the Child Protection Register.
At a later social services' meeting in April 1991, no change to
the children's living conditions was noted. The headteacher stated that
K and D were still taking food from bins and that D was becoming more
withdrawn.
In May 1991, the applicants' mother left home for a day leaving
the children with her husband. In July 1991, she left home again and
informed social services that the children would be better off living
in care. On 12 August 1991, the social services received a phone call
from a neighbour who stated that the children were frequently locked
outside in a filthy back garden, that they constantly screamed and that
they were kept for long periods in their bedrooms where they smeared
faeces on their windows. The maternal grandparents later told the
guardian ad litem that K, who was treated by her mother as a little
servant, was expected to clean the excrement from the windows.
From 19 to 28 August 1991, the three older children spent several
weeks with foster carers as respite care. The foster carers reported
that D did not know how to wash, bathe or clean his teeth on arrival.
He wet his bed every night and stole food from his brother. T was
described as being "very frightened .. He could not understand how he
could play in the garden and the door was left open for him to come
back in, he expected to be locked out." He also had to be taught to use
the toilet properly and to clean himself.
At a professionals' meeting on 18 September 1991, Ms Merry stated
that conditions in which the boys were sleeping was deteriorating. The
mattresses in the boys' bedroom were ripped and the springs were coming
through. The boys were stealing food, and Ki had also been seen to do
this. Their mother stated that she could not control them. It was
decided not to arrange a child protection meeting but to carry out a
monthly weight check on the older three children at school and for the
health visitor to check the weight of the youngest two children. It was
also decided to arrange respite care for K, D and T in the holidays and
one weekend in four.
At a professionals' meeting on 21 November 1991, it was reported
that the applicants' mother had said that she could not control the
applicants' behaviour which consisted of refusing to go to bed when
asked and stealing food. It was considered that the home was in an
acceptable condition, though the boys' room still needed attention. The
children's weights were recorded. It was noted that K had put on 2lbs
in the previous two months whereas she had only put on 21/2 lbs in the
preceding two years. D had only put on 3lbs in a year. T had put on 1/2lb
in a year and was on 50% centile for height. Ki was on 25% for weight
and J on 50% for her height and 73% for weight. There was a discussion
about the three elder children being accommodated by the local
authority to allow the mother "to get back on her feet". The social
services considered a six week period whilst the general practitioner
envisaged a period of 18 to 24 months.
K, D and T were accommodated voluntarily between January and
March 1992 when they gained weight. In March and again in April, their
mother asked if D and T could be placed for adoption.
At a further professionals' meeting on 9 March 1992, it was
decided that further respite care would be considered. The childrens'
weights were noted, increases being seen for K, D and T.
The parents divorced in April 1992.
At another professionals' meeting on 30 April 1992, it was
decided that applicants' mothers request that D and T be placed for
adoption be followed up. The headmistress reported that D and T had not
been stealing food. She also voiced concern over the fundamental
pattern of the mother's care of the children, in particular in relation
to K's role in the home and the mothering role which she played.
Ms Merry reported that conditions were deteriorating for D and T.
On 10 June 1992, the applicants' mother demanded that the
children to be placed in care as she could not cope. She stated that
if they were not removed from her care she would batter them. The
applicants were placed in emergency foster care. The applicants were
entered onto the Child Protection Register under the categories of
neglect and emotional abuse after a Child Protection Meeting on
29 June 1992. No court proceedings were initiated.
The applicants were all fostered separately. Initially, K was
noted to have dirty, ill-fitting clothes. She stated that she did not
like living with her siblings as she did not like having to look after
them all the time. D wet the bed every night, shunned physical contact
and suffered nightmares. T did not know how to use the toilet or use
toilet paper. Ki and J bonded very quickly with their foster parents.
The applicant's father was assessed as a potential carer whilst
the children remained in foster care. The local authority decided to
seek care orders in respect of the children on 8 October 1992. Interim
care orders were made on 7 December 1992.
A guardian ad litem was appointed on 18 January 1993 who
recommended that all the applicants should be the subject of care
orders in order to protect them from further harm. She stated that
there was "an abundance of evidence that the children have been
subjected to physical and mental ill-treatment." She noted that their
health had also been neglected by their parents who frequently missed
appointments with opticians and doctors.
All the applicants were seen by Dr Dora Black, a consultant child
psychiatrist in January 1993. Dr Black stated that the three older
children were all showing signs of psychological disturbance. K was
exhibiting signs of serious depressive illness and had assumed
responsibility for her family and for its breakdown; her mother's
behaviour towards her was described as cruel and emotionally abusive.
D and L, who suffered from nightmares, were both identified as showing
signs of post-traumatic stress disorder and D was also chronically
under-attached. Dr Black noted that all children had been deprived of
affection and physical care. She described their experiences as, "to
put it bluntly, horrific" and added that the case was the worst case
of neglect and emotional abuse that she had seen in her professional
career. In her opinion, social services had "leaned over backwards to
avoid putting these children on the Child Protection Register and had
delayed too long, leaving at least three of the children with serious
psychological disturbance as a result".
Full care orders were made in respect of the applicants on
14 April 1993 by Judge Tyrer sitting at Milton Keynes County Court.
In June 1993, the Official Solicitor, acting as the applicants'
next friend, commenced proceedings against the local authority claiming
damages for negligence and/or breach of statutory duty arguing that the
authority had failed to have regard to their welfare as was required
by statute and should have acted more quickly and more effectively when
apprised of their condition. It was argued that the local authority's
failure to act had resulted in psychological damage. The application
was struck out as revealing no cause of action by Mr Justice Turner on
12 November 1993.
The applicants appealed to the Court of Appeal. On
28 February 1994 the Court of Appeal upheld the decision of
Mr Justice Turner to strike out the action. However, the Master of the
Rolls, Sir Thomas Bingham, dissented to the extent that he felt that
no public policy issues arose to prevent the finding of a duty of care.
The applicants appealed to the House of Lords. On 29 June 1995
the House of Lords decided on public policy grounds that local
authorities enjoyed immunity from suit in respect of actions brought
in negligence or breach of statutory duty concerning the discharge of
their duties relating to the welfare of children under the Children Act
1989 in respect of child care. The case is reported as X and others v
Bedfordshire County Council [1995] 3 AER 353.
Lord Browne-Wilkinson gave the leading judgment in X and others
v Bedfordshire County Council [op.cit.]. In respect of claims for
breach of statutory duty he stated, insofar as relevant, as follows :
"... 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."
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 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."
K, Ki and J, the three female applicants, have now been adopted.
D and T remain in foster care.
In March 1996, applications were made to the Criminal Injuries
Compensation Board (CICB)on behalf of all the children by the adoption
society to whom the local authority had delegated certain
responsibilities.
In February 1997, the CICB awarded K. £1000, D £3000 and T 3000
for injuries suffered between 1987 and 1992; Ki £2000 for injuries
suffered between 1988 and 1992; and J £ 1000 for injuries suffered
between 1990 and 1992. In a letter dated 20 May 1998 from the CICB to
the Official Solicitor, it was stated:
"The Board Member who assessed these cases recognised that
the children were exposed to appalling neglect over an
extended period but explained to their advisers that the
Board could not make an award unless it was satisfied on
the whole available evidence that an applicant had suffered
an injury - physical or psychological - directly
attributable to a crime of violence... He was nevertheless
satisfied, that setting aside "neglect" the children had
some physical and psychological injury inflicted upon them
as enabled him to make an award to each child..."
b. Relevant domestic law and practice
Local authority's duties in respect of child care
Prior to the coming into force of the current legislation, the
Children Act 1989, on 14 October 1991, the local authority's duty in
respect of child care was governed by the Child Care Act 1980.
Section 1 of the Child Care Act 1980 provided that:
"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 or keep them in care.
2(1) Where it appears to a local authority with respect to
a child in their area appearing to them to be under the age
of seventeen-
(a) that he has neither parent nor guardian or has been
and remains abandoned by his parents or guardian or is
lost;
(b) that his parents or guardian are, for the time being
or permanently, prevented by reason of mental or bodily
disease or infirmity or other incapacity or any other
circumstances from providing for his proper accommodation,
maintenance and upbringing; and
(c) in either case, that the intervention of the local
authority under this section is necessary in the interests
of the welfare of the child,
it shall be the duty of the local authority to receive the
child into their care under this section".
Section 17 of the Children Act 1989 provides that:
"17. Provision of services for children in need, their
families and others
(1) It shall be the general duty of every local authority
(in addition to the other duties imposed on them by this
Part)-
(a) to safeguard and promote the welfare of children
within their area who are in need; and
(b) so far as is consistent with that duty, to promote the
upbringing of such children by their families,
by providing a range and level of services appropriate to
those children's needs.
(2) For the purpose principally of facilitating the
discharge of their general duty under this section, every
local authority shall have the specific duties and powers
set out in Part 1 of Schedule 2 ...
(10) For the purposes of this Part a child shall be taken
to be in need if-
(a) he is unlikely to achieve or maintain, or to have the
opportunity of achieving or maintaining a reasonable
standard of health or development without the provision for
him of services by a local authority under this Part;
(b) his health or development is likely to be
significantly impaired or further impaired, without the
provision for him of such services; or
(c) he is disabled...
(11) ... in this Part
"development" means physical, intellectual, emotional,
social or behavioural development; and
"health" means physical or mental health".
Part III of the Children Act 1989 deals with local authority
support for children and families. The policy of the Act is made clear
by paragraph 7 of Part i of Schedule 2, which requires local
authorities to take reasonable steps designed to reduce the need to
bring proceedings relating to children.
Section 20 provides that:
"20(1) Every local authority shall provide accommodation
for any child in need within their area who appears to them
to require accommodation as a result of-
(a) there being no person who has parental responsibility
for him;
(b) his being lost or having been abandoned; or
(c) the person who has been caring for him being prevented
(whether or not permanently, and for whatever reason) from
providing him with suitable accommodation or care.
(4) A local authority may provide accommodation for any
child within their area (even though a person who has
parental responsibility for him is able to provide him with
accommodation) if they consider that to do so would
safeguard or promoted the child's welfare".
Part V of the Children Act 1989 deals with the protection of
children. Section 47 provides as follows:
"47(1) Where a local authority -....
(b) have reasonable cause to suspect that a child who
lives or is found, in their area is suffering, or is likely
to suffer, significant harm,
the authority shall make, or cause to be made, such
enquiries as they consider necessary to enable them to
decide whether they should take any action to safeguard or
promote the child's welfare...
(8) Where, as a result of complying with this section, a
local authority conclude that they should take action to
safeguard or promote the child's welfare they shall take
action (so far as it is within their power and reasonably
practicable for them to do so)".
The complaints procedures
The complaints procedure is provided by section 26 of the
Children Act 1989:
"26. Review of cases and inquiries into representations....
(3) Every local authority shall establish a procedure for
considering any representations (including any complaint)
made to them by -
(a) any child...who is not being looked after by them but
is in need;
(b) a parent of his;...
(e) such other person as the authority consider has a
sufficient interest in the child's welfare to warrant his
representations being considered by them,
about the discharge by the authority of any of their
functions under this Part in relation to the child.
(4) The procedure shall ensure that at least one person
who is not a member or officer of the authority takes part
in-
(a) the consideration; and
(b) any discussions which are held by the local authority
about the action (if any) to be taken in relation to the
child in the light of this consideration...
(7) Where any representation has been considered under the
procedure established by the local authority under this
section, the authority shall -
(a) have due regard to the findings of those considering
the representation; and
(b) take such steps as are reasonably practicable to
notify (in writing)-
(i) the person making the representation;
(ii) the child (if the authority consider that he has
sufficient understanding) and
(iii) such other persons (if any) as appear to the
authority to be likely to be affected,
of the authority's decision in the matter and their reasons
for taking that decision and of any action which they have
taken, or propose to take.
(8) Every local authority shall give such publicity to
their procedure for considering representations under this
section as they consider appropriate".
The powers of the Secretary of State to investigate the actions
of the local authority are set out in sections 81 and 84 of the
Children Act 1989:
"81(1) The Secretary of State may cause an inquiry to be
held into any matter connected with -
(a) the function of the social services committee of a
local authority, in so far as those functions relate to
children;...
84. Local authority failure to comply with statutory duty:
default power of Secretary of State
(1) If the Secretary of State is satisfied that any local
authority has failed, without reasonable excuse, to comply
with any of the duties imposed on them by or under this Act
he may make an order declaring that authority to be in
default with respect to that duty....
(3) Any order under subsection (1) may contain such
directions for the purpose of ensuring that the duty is
complied with, within such period as may be specified in
the order, as appears to the Secretary of State to be
necessary.
(4) Any such directions shall, on the application of the
Secretary of State, be enforceable by mandamus."
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 complain that their rights under Article 3 of the
Convention have been violated. They argue that the failure by the local
authority to take appropriate steps to protect them from the abuse and
neglect which they suffered at the hands of their parents, having been
informed of the treatment on numerous occasions over the course of over
4 years, amounts to a failure by the State to take sufficient steps to
protect its most vulnerable citizens, children, from inhuman treatment
or degrading punishment.
2. The applicants invoke Article 13 of the Convention and claim that
the effect of the decision in X and others v Bedfordshire County
Council (op. cit) 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 prevents the facts of the case
from being investigated.
3. The applicants invoked Article 6 of the Convention in their
observations dated 16 June 1997 to argue that by virtue of the decision
in X and others v Bedfordshire County Council (op. cit.) they have been
denied the right to a fair hearing pursuant to Article 6 para 1 of the
Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 9 October 1995 and registered
on 28 November 1995.
On 21 October 1996, the Commission decided to communicate the
application concerning to the respondent Government.
The Government's written observations were submitted on
18 February 1997 after an extension of the time-limit fixed for that
purpose. The applicants replied on 16 June 1997 also after an extension
of the time-limit.
On 19 March 1997, the Commission granted the applicants 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 TP and KM v. the United
Kingdom, No. 28945/95. A question was also communicated to the
Government concerning issues arising under Article 6 of the Convention.
On 6 March 1998, the Government submitted written observations
on the issues arising under Article 6 of the Convention.
On 24 April 1998, the Commission decided to join this application
to No. 28945/95 for the purposes of the oral hearing only.
On 12 May 1998, the Government submitted a written brief.
On 18 and 22 May 1998, the applicants submitted further
information and documents.
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 Ben Emmerson and
Ms Elizabeth Ann Gumbel, as Counsel, Ms Penelope Wood, Solicitor for
the Official Solicitor and Ms. Nuala Mole, legal adviser.
THE LAW
The applicants complain that the local authority failed to
protect them from inhuman and degrading treatment in circumstances
where the social services were aware of the serious neglect and abuse
which they suffered at home. 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 3, 6,
8 and 13 (Art. 3, 6, 8, 13) of the Convention.
The relevant provisions of the Convention provide:
Article 3 (Art. 3) of the Convention
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
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."
The respondent Government submit that the evidence before the
Commission, which has not been tested in court, is an insufficient and
incomplete basis on which to reach the conclusion that the five
applicants were subjected to inhuman and degrading treatment contrary
to Article 3 (Art. 3) of the Convention. The Government contend that,
even if the children were so treated, any positive obligation owed by
the local authority to protect the children was fulfilled since there
were in existence sufficient procedural safeguards under the statutory
child protection system and the local authority carried out careful
monitoring of the family in accordance with their statutory duties.
They emphasise that the State cannot guarantee that parents will not
ill-treat their children and that in all cases the local authority, in
light of their knowledge at the relevant time, have to strike a very
careful balance in arriving at a judgment about whether to remove the
children from their parents or to provide the family with support to
enable them to offer an acceptable standard of care.
The Government submit that the applicants cannot claim any right
under domestic law to sue the local authority for damages in negligence
and/or breach of statutory duty and that the decisions of the courts,
which applied domestic law, cannot be regarded as disclosing any denial
of access to court contrary to Article 6 (Art. 6) of the Convention.
Even assuming that there had been a limitation on the right of access
to court, they argue that it pursued, in a proportionate manner, the
legitimate aim of safeguarding the effective exercise of the statutory
duties imposed on local authorities. In respect of the applicants'
complaints under Article 13 (Art. 13), they further submit that
effective remedies were available to the applicants, including awards
of compensation under the criminal injuries compensation scheme (which
were made to each applicant) and the possibility of applying for an
investigation by the local authority ombudsman.
The applicants submit that over a five year period they were
subject to gross neglect and maltreatment, with the result, inter alia,
that they were never properly fed and lived in insanitary conditions
and were also subjected to physical abuse. This had devastating effects
on their physical and psychological health and clearly discloses that
they suffered inhuman and degrading treatment contrary to Article 3
(Art. 3). They contend that the existing statutory framework which
imposed a duty on the local authority to protect them contained
insufficient safeguards to ensure that adequate preventative steps were
taken. They submit that the local authority was aware that they were
suffering inhuman and degrading treatment and failed to comply with
their positive obligation under Article 3 (Art. 3) to take adequate and
appropriate measures in response.
The applicants submit, in respect of Article 6 (Art. 6), that
their claims alleging negligence and/or breach of statutory duty by the
local authority were based on rights existing in domestic law and that
the decision of the House of Lords acted, effectively, to bestow an
immunity on local authorities. This immunity was 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, since, inter alia,
the local authority ombudsman may only make recommendations and the
awards for criminal injuries do not address the complaints concerning
the failure of the local authority to protect them.
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
Full & Egal Universal Law Academy