M.B. and G.B. v. THE UNITED KINGDOM

THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35724/97
by M.B. and G.B.
against the United Kingdom

The European Court of Human Rights, sitting on 23 October 2001 as a Chamber composed of[Note1]

MrJ.-P. Costa, President,
MrW. Fuhrmann,

MrL. Loucaides,

MrP. Kūris,
SirNicolas Bratza,
MrsH.S. Greve,
MrK. Traja,  judges,
and T.L. Early, Deputy Section Registrar,

Having regard to the above application lodged with the European Commission of Human Rights on 16 September 1996 and registered on 23 April 1997,

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 first applicant, M.B., and the second applicant, G.B., who are son and father, were born in 1980 and 1959 respectively. Their application was introduced before the Court by Sternberg, Reed, Taylor & Gill, solicitors practising in Barking, Essex.

A.  The circumstances of the case

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

On 7 June 1990, the local authority, the London Borough of Barking, received a report from a neighbour of the applicants that the first applicant had told the neighbour’s children that he was being buggered by his father, the second applicant. The neighbour also stated that the first applicant, aged nine, was regularly called in from play to have a sleep in the afternoon and that the second applicant had been seen at a bedroom window holding the first applicant whilst naked.

Social services and the police attended the applicants’ home at 4.45 p.m. on 8 June 1990, where they found that M.B. had been in bed together with both his parents immediately prior to their arrival. The first applicant’s grandmother arrived at the house and was noted by the social worker as expressing surprise and concern that the family were all in bed together in the afternoon. Both parents agreed that the first applicant should undergo a medical examination which was conducted by Dr H. at 6 p.m. on the same day. Dr H. was a general practitioner, who had been appointed forensic medical examiner in 1987 by the Metropolitan Police and had some 14 years’ experience in dealing with child sexual abuse cases.

Dr H.’s examination lasted from 6 p.m. until 6.10 p.m. He noted an “old scar at the 12 o’clock position of the anal margin 2mm by 3mm” which he stated “may be due to a past sexual interference”. The report concluded that “in my opinion from the examination it looks that there is evidence of sexual interference with the anal passage of this boy”. The first applicant was removed to a children’s home after the examination.

A place of safety order was obtained by the police on 9 June 1990.

A case conference was held by the local authority on 12 June 1990. The first applicant was interviewed on 13 June 1990 at the children’s home. He revealed no outward signs of having been abused and denied that he had been abused by his father.

Wardship proceedings were instituted by the local authority on 14 June 1990.

On 22 June 1990, the local authority held a planning meeting, attended by both parents, at which various options relating to the first applicant’s residence were discussed.  On or about 7 July 1990, the second applicant moved out of the family home so that the first applicant could return home.

The first applicant had no contact with the second applicant for a period of two weeks and thereafter had supervised contact. After the local authority obtained reports on the mother and maternal grandmother, the first applicant was returned home on 7 August 1990 with the second applicant undertaking not to have unsupervised contact with him. Leave was also granted by the High Court on 7 August 1990 for a further examination of the first applicant.

On 30 August 1990, a joint examination on the first applicant was carried out by two consultants, Dr S. for the local authority and Dr P. for the second applicant. The examination lasted from 3.31 until 4.40 p.m. and included a close examination of the anal and genital areas and a brief internal examination. The small scar noted by Dr H. on the anal verge was not observed and both consultants concluded that there was no evidence of anal penile penetration. However, the mother disclosed that the first applicant had told her that he had been anally penetrated by two local teenage boys. The first applicant confirmed that he had been abused by two pre-pubescent youths. Dr P. doubted that there had been penetration and Dr S. noted that the penis of a pre-pubescent would be unlikely to cause any detectable injury. Dr P. gave the opinion that Dr H. had been negligent in diagnosing sexual abuse.

The local authority’s involvement with the family ceased on 5 September 1990 when the wardship ended.

An application for damages was brought by the first and second applicants in 1993 alleging negligence by the local authority and Dr H. They were granted legal aid. The action was stayed in 1993 pending the decision in X and Others v Bedfordshire County Council. On 29 July 1995, the House of Lords held in that case that in negligence no duty of care was owed by local authorities in the exercise of their statutory duties relating to the taking into care of children (see further below in Relevant Domestic Law and Practice). Following this decision the applicants’ case was struck out as disclosing no reasonable cause of action on 22 March 1996. Neither the applicants nor their lawyers were present when the case was struck out as this was accepted as the inevitable consequence and no transcript of the proceedings has been provided.

B.  Relevant domestic law and practice

1.  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.

Sections 1 and 2 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”.

 2. Place of safety orders

Under section 28(1) of the Children and Young Persons’ Act 1969 any person, including a local authority, could apply to a magistrate for the authority to detain a child and take him/her to a place of safety. There was power to grant the application if the magistrate was satisfied that the applicant had reasonable cause to believe inter alia that the child’s proper development was being avoidably prevented or neglected or that he/she was being ill-treated or exposed to moral danger. The order could last a maximum of 28 days, with no possibility of extension. Before the expiry of the order, it was necessary for the local authority to institute care proceedings under section 1 of the 1969 Act or to make the child a ward of court if it wished either to intervene in the exercise of parental control.

3. Wardship

The power of the High Court to make a child a ward of court derives from its inherent jurisdiction. The effect is that the court assumes responsibility for the child and may make orders concerning any aspect of the child’s life. The child’s welfare must be the first consideration of the court.

As soon as the originating summons is issued, the custody of the child vests in the court. From that moment, the parties to the proceedings, including the local authority, only have such power and authority over the child as is conferred by the court.

4.  Actions against the local authority for damages

In England and Wales, there is no single tort which imposes liability to pay compensation for civil wrongs. Instead there are a series of separate torts, for example, trespass, conversion, conspiracy, negligence and defamation.

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 show 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.

These criteria apply to claims against private persons as well as claims against public bodies. 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. In giving judgment in the three cases heard together, 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 stated inter alia:

“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 and the plaintiffs 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.”

In respect of the applicants’ claim in one of the cases, known as the Newham case, that the local authority and the health authority were vicariously liable for the actions of the social worker, Mr P., and psychiatrist Dr V. respectively, Lord Browne-Wilkinson said as follows:

“In the Newham case the pleadings and Mr Munby’s submissions make it clear how the case is put. The social worker and the psychiatrist, as professionals, owed a personal duty to the first plaintiff, the child, and to the second plaintiff, the mother, to exercise reasonable professional skills in the conduct of the interview with the child and to make proper enquiries. The social worker and the psychiatrist were each personally in breach of this duty, for which breach their employers ... are vicariously liable. ...

Like the majority in the Court of Appeal, I cannot accept these arguments. The social workers and the psychiatrists were retained by the local authority to advise the local authority, not the plaintiffs. The subject matter of the advice and activities of the professionals is the child ... the fact that the carrying out of the retainer involves contact and relationship with the child cannot alter the extent of the duty owed by the professionals under the retainer from the local authority ...

In my judgment in the present cases, the social workers and the psychiatrist did not, by accepting the instructions of the local authority, assume any general professional duty of care to the plaintiff children ...

Even if contrary to my view the social workers and psychiatrist would otherwise have come under a duty of care to the plaintiffs, the same considerations which have led me to the view that there is no direct duty of care owed by the local authorities apply with at least equal force to the question whether it would be just and reasonable to impose such a duty of care on the individual social workers and the psychiatrist. ...”

The House of Lords later gave judgment on 17 June 1999 in Barrett v. the London Borough of Enfield ([1999] 3 WLR 79). That case concerned the claims of the plaintiff, who had been in care from the age of ten months to seventeen years, that the local authority had negligently failed to safeguard his welfare causing him deep-seated psychiatric problems. The local authority had applied to strike out the case as disclosing no cause of action. The House of Lords, upholding the plaintiff’s appeal, unanimously held that the case of X and Others v. Bedfordshire County Council did not in the circumstances of this case prevent a claim of negligence being brought against a local authority by a child formerly in its care.

Lord Browne-Wilkinson, in his judgment in that case, commented as follows on the operation of the duty of care:

“(1)  Although the word ‘immunity’ is sometimes incorrectly used, a holding that it is not fair, just and reasonable to hold liable a particular class of defendants whether generally or in relation to a particular type of activity is not to give immunity from a liability to which the rest of the world is subject. It is a prerequisite to there being any liability in negligence at all that as a matter of policy it is fair, just and reasonable in those circumstances to impose liability in negligence. (2)  In a wide range of cases public policy has led to the decision that the imposition of liability would not be fair and reasonable in the circumstances, e.g. some activities of financial regulators, building inspectors, ship surveyors, social workers dealing with sex abuse cases. In all these cases and many others the view has been taken that the proper performance of the defendant’s primary functions for the benefit of society as a whole will be inhibited if they are required to look over their shoulder to avoid liability in negligence. In English law the decision as to whether it is fair, just and reasonable to impose a liability in negligence on a particular class of would-be defendants depends on weighing in the balance the total detriment to the public interest in all cases from holding such class liable in negligence as against the total loss to all would-be plaintiffs if they are not to have a cause of action in respect of the loss they have individually suffered. (3)  In English law, questions of public policy and the question whether it is fair and reasonable to impose liability in negligence are decided as questions of law. Once the decision is taken that, say, company auditors though liable to shareholders for negligent auditing are not liable to those proposing to invest in the company (see Caparo Industries plc v Dickman [1990] 1 All ER 568, [1990] 2 AC 605), that decision will apply to all future cases of the same kind. The decision does not depend on weighing the balance between the extent of the damage to the plaintiff and the damage to the public in each particular case.”

5.  Striking out procedure

At the relevant time, Order 18 rule 19 of the Rules of the Supreme Court provided that a claim could be struck out if it disclosed no reasonable cause of action. This jurisdiction has been described as being reserved for “plain and obvious cases”, in which a claim was “obviously unsustainable”.

In applications to strike out, the courts proceeded on the basis that all the allegations set out in the claimant’s pleadings were true. The question for the courts was whether, assuming that the claimant could substantiate all factual allegations at trial, the claim disclosed a reasonable cause of action.

The striking out procedure, now contained in the Part 3.4(2) of the Civil Procedure Rules in force since 1999, is regarded as an important feature of English civil procedure, performing the function of securing speedy and effective justice, inter alia by allowing it to be decided promptly which issues need full investigation and trial and disposing summarily of the others. By means of this procedure, it can be determined at an early stage, with minimal cost to the parties, whether the facts as pleaded reveal a claim existing in law.

COMPLAINTS

The applicants complained under Article 8 of the Convention that the negligent actions of the local authority in not investigating the alleged abuse properly and of Dr H. in finding evidence of sexual abuse damaged their family life and caused them psychological damage.

The first applicant also complained under Article 3 of the Convention that he suffered degrading treatment  and under Article 5 of the Convention that he was denied his liberty.

Both applicants complained under Articles 6 and 13 that they were denied access to court or any other  effective remedy in respect of the local authority’s negligence as they were barred from pursuing their claims in negligence as a result of the decision in the case of X (Minors) and Others v. Bedfordshire County Council (cited above).

THE LAW

1. The applicants complain that their right to respect for family life was violated by the measures taking the first applicant into care.

Article 8 of the Convention, insofar as relevant, provides as follows:

“1.  Everyone has the right to respect for his … 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 protection of health or morals, or for the protection of the rights and freedoms of others.”

The parties’ submissions

The Government did not dispute that the separation of the applicants for three months and removal of the first applicant from his home interfered with their family life. However, they submit that such interference was in accordance with Article 8 § 2.  The actions of the police and local authority were entirely lawful in view of the seriousness of the allegations made and  clearly pursued the legitimate aim of protecting the first applicant’s health,  morals and rights. Having regard to the facts of the case as a whole, his removal was also “necessary” and fell within the wide margin of appreciation to be accorded to the local authority. In particular, the allegations of abuse made against the second applicant were extremely serious and the local authority’s suspicions were not allayed on their unannounced visit when it was discovered that the family were in bed together during the afternoon. The local authority reasonably considered that the first applicant was at real risk of abuse and the parents consented to a medical examination by an experienced doctor which supported the possibility of abuse. Any decision postponing removal pending a second opinion would only have prejudiced the first applicant if he were being abused. All subsequent decisions were taken under the authority of the court, and with the involvement of the parents, and he was allowed to go home within two months and to keep in contact with his family. The care measure ended promptly following the second medical examination.

The applicants emphasise that the first applicant had not in fact been sexually abused by the second applicant or anyone else. The allegation to that effect was false and no more than gossip, and without any evidence to support it. Both applicants had denied any abuse occurred to the local authority which ignored them. They dispute that any steps were taken properly to investigate the allegation or that there was any justification for emergency action, which was disproportionate in the circumstances and outside any margin of appreciation.  There was no necessity to remove him from home while the opinion of a consultant was obtained. The examination by the police doctor, Dr H., was cursory and he was only a general practitioner. His opinion ought to have been treated as inherently unreliable as he diagnosed abuse on the basis of one physical sign only (an apparent old scar) and there was in fact no injury or tenderness which would have entitled him to reach the conclusion that there was evidence of sexual interference. As a result of this negligent diagnosis, the first applicant was removed from his home to a children’s home with children who had disturbed or criminal backgrounds. There was no justification for limiting his contact with his father. The separation, from his mother for two months and his father for three months, caused distress and lasting psychological damage, and also involved stigma in the community.

The Court’s assessment

It is not disputed that the removal of the first applicant into care and the limitation on his subsequent contacts with his family interfered with the applicants’ right to respect for family life under Article 8 § 1 of the Convention. Nor is it disputed that, in considering whether this interference complied with the requirements of the second paragraph of Article 8, it was “in accordance with the law”, namely the statutory provisions governing child welfare and the wardship jurisdiction of the courts, and pursued the legitimate aims of safeguarding the first applicant’s health, morals and rights as a whole.

The principal issue in this case is whether the impugned measures were “necessary in a democratic society” in pursuit of the above aims. The Court has therefore considered whether, in the light of the case as a whole, the reasons adduced to justify them were relevant and sufficient for the purposes of paragraph 2 of Article 8 of the Convention. Undoubtedly, consideration of what lies in the best interest of the child is of crucial importance in every case of this kind. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned. It follows from these considerations that the Court’s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody and access issues, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their power of appreciation (see the Hokkanen v. Finland judgment of 23 September 1994, Series A no. 299-A, p. 20, § 55, and, mutatis mutandis, the Bronda v. Italy judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV, p. 1491, § 59).

The margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake. Thus, the Court recognises that the authorities enjoy a wide margin of appreciation, in particular when assessing the necessity of taking a child into care (see, amongst other authorities, the Johansen v. Norway judgment of 7 August 1996, Reports 1996-III, p. 1003, § 64, T.P. and K.M. v. the United Kingdom, no. 28945/95, [GC], ECHR 2001, § 71).  The Court further recalls that whilst Article 8 contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8:

“[W]hat has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as ‘necessary’ within the meaning of Article 8.” (see the W. v. the United Kingdom judgment of 8 July 1987, Series A no. 121-A, pp. 28-29, §§ 62 and 64).

The Court recalls that in this case the local authority took the first applicant into care on suspicion that he had been sexually abused by the second applicant. This suspicion was based on allegations made by a neighbour who claimed to have observed inappropriate behaviour and that the first applicant had made a disclosure of abuse to his own children. It appears that when the social services then visited the house in the afternoon their concern was deepened in finding the family in bed together, a reaction shared by the grandmother who also found this behaviour unusual. The decision to remove was however not taken until after the first applicant had been medically examined, with his parents’ consent. The doctor, who had considerable practical experience as a police forensic examiner, found a physical sign consistent with abuse and the local authority removed the first applicant from home under a place of safety order.

The applicants have argued that the measure was unfounded in fact, that the allegations had not been shown to be properly investigated by any other steps and that the doctor, who was not a consultant, reached false and unreliable findings after a cursory examination. The Court observes that any further investigations by the police or the seeking of an opinion by an expert consultant would inevitably have caused further delay and it was essential for the local authority to take a decision that day as to what steps were necessary to protect the first applicant’s welfare. While it was true that both applicants denied any abuse, this could not, in the circumstances, be regarded as conclusive of the matter. The local authority had no reason to consider that Dr H. was an unqualified person to carry out the examination or to question the reliability of his findings. In the circumstances, having regard to the wide margin of appreciation attaching to the application of emergency measures, the Court considers that the local authority acted reasonably in concluding that it was necessary to protect the first applicant by removing him from the home where they perceived that there was a real risk that he might suffer sexual abuse.

That said, the Court has further examined whether the measures lasted no longer than necessary for the protection of the first applicant’s rights and were proportionate. It recalls that the local authority acted promptly to have the first applicant brought under the wardship jurisdiction on 14 June 1990. He was allowed home on 7 August 1990 when the second applicant, following discussion with the local authority, moved out of the family home. Though the applicants had no contact for two weeks, supervised contact was allowed thereafter. Finally, following a second medical examination on 30 August 1990 by two consultants who found no medical support for abuse, the local authority ended the care measures on 5 September 1990 by bringing the wardship to an end.

In the circumstances, the Court finds that the local authority’s actions were proportionate, that they responded with reasonable promptness to events and that the procedures afforded requisite protection of the parents’ interests. For example, it was not unreasonable, while suspicions of abuse subsisted, to limit and supervise contact of the child with the suspected abuser. Contact with the mother and grandmother took place without these restrictions. The parents had legal representation in the wardship proceedings and were involved in the planning meeting of 22 June 1990, pursuant to which the first applicant was allowed home to live with his mother.

While the distress and anxiety caused to the applicants by the duration of the measure over a few months must be acknowledged as not negligible, the Court considers that the interference did not exceed what was “necessary in a democratic society” for protecting the first applicant’s health and rights.

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

2.The first applicant complains that he has suffered degrading treatment contrary to Article 3 of the Convention and deprived of his liberty contrary to Article 5 of the Convention, which provides as follows:

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

“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:   …

(d)  the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; …”

The first applicant has referred in this context to the medical examination by Dr. H. which he considers was unnecessary and humiliating and to his removal to a children’s home where he was detained against his will.

The Court recalls that Article 3 of the Convention prohibits treatment which reaches a certain minimum level of severity (see, amongst other authorities, Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p.65, § 162). While it is not excluded that medical procedures may fall within the concept of “degrading treatment” (see, for example, Herczegfalvy v. Austria judgment of 24 September 1992, Series A no. 244, p. 26, § 82), the Court notes that in this case the first applicant’s parents consented to the examination and that the applicants have not pointed to any element which would take it outside the normal procedure which might be expected to be adopted in such a case.

As regards Article 5, the Court notes that the first applicant was placed in a children’s home under a Place of Safety Order and that he remained there in the care of the local authority until 7 August 1990 under the wardship jurisdiction of the court. To the extent that this can be regarded as a deprivation of liberty, it was imposed by lawful order for the purpose of educational supervision within the meaning of Article 5 § 1(d) of the Convention. In the context of the detention of minors, the words “educational supervision” must not be equated rigidly with notions of classroom teaching. In particular, in the present context of a young person in local authority care, educational supervision must embrace many aspects of the exercise, by the local authority, of parental rights for the benefit and protection of the person concerned and thus may be regarded as covering the measure taken by the local authority in respect of the first applicant in placing him in a home (see Koniarska v. the United Kingdom, no. 33670/96, [Section 3] decision 12.10.2000).

The Court finds therefore that these complaints must also be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

3.The applicants complain that they were denied access to court contrary to Article 6 of the Convention, which provides as relevant in its first paragraph:

“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.”

The parties’ submissions

The Government submitted that Article 6 § 1 was not applicable since there was no arguable right in substantive law. The applicants’ proceedings were struck out on the basis that they disclosed no cause of action known to the law, namely that following the case of X. and Others v. Bedfordshire County Council (cited above) neither Dr H. nor the local authority owed a duty of care in negligence to the applicants, the former as there was no proximity in the relationship and the latter on the basis that it was not just or reasonable to impose a duty of care. Even if there had been proximity between the professionals and the children in the X and Others case, a duty of care would have been excluded on the same ground as the local authority. The conclusion of the House of Lords in that case was reached on well-established principles and as a matter of interpretation of the substantive law, without the creation of any immunity or the erection of any procedural bar. Even assuming however that there had been any interference with access to court, such would have been compatible with Article 6 in pursuing in a proportionate manner the legitimate aim of facilitating the difficult task of the social services in the sensitive area of child care.

The applicants considered that their case could be distinguished from those previously dealt with by the Court (T.P. and K.M. v. the United Kingdom, cited above, and Z. and Others v. the United Kingdom, no. 29392/95, [G.C.], to be published in ECHR 2001) since they assert that Dr. H. was protected by witness immunity. Their claim against him had a substantive basis in negligence but was excluded on policy grounds because, as someone expressing an opinion for the purpose of proceedings which might have been taken by the social services in relation to the applicants, he enjoyed immunity from litigation regardless of the merits of the claim or the type or gravity of the negligent mistake made by him. On that basis, there was an immunity which barred their access to court and the case fell within the principles established in the Osman v. the United Kingdom judgment (28 October 1998, Reports 1998-VIII) and there was no justification for depriving the applicants of the possibility of having their claims decided on the merits.

The Court’s assessment

The Court notes that the applicants now appear only to be pursuing their complaints under Article 6 as concerns the alleged inability to sue Dr H. for negligence. It has therefore not continued its examination of their complaints against the local authority.

The Court recalls its constant case-law to the effect that Article 6 § 1 extends only to contestations (disputes) over (civil) ‘rights and obligations’ which can be said, at least on arguable grounds, to be recognised under domestic law; it does not itself guarantee any particular content for (civil) ‘rights and obligations’ in the substantive law of the Contracting States (see the James and Others v. the United Kingdom judgment of 21 February 1986, Series A no. 98, p. 46, § 81; the Lithgow and Others v. the United Kingdom judgment of 8 July 1986, Series A no. 102, p. 70, § 192; the Holy Monasteries v. Greece judgment of 9 December 1994, Series A no. 301, p. 37, § 80). It will however apply to disputes of a “genuine and serious nature” concerning the actual existence of the right as well as to the scope or manner in which it is exercised (Benthem v. the Netherlands judgment of 23 October 1985, Series A no. 97, p. 15, § 32).

In the present case, the applicants were claiming damages on the basis of alleged negligence, a tort in English law which is largely developed through the case-law of the domestic courts.

The Court is satisfied that at the outset of the proceedings in 1993 there was a serious and genuine dispute about the existence of the right asserted by the applicants under the domestic law of negligence, as shown inter alia by the grant of legal aid to the applicants and the stay of the proceedings while similar issues were litigated in the Court of Appeal and House of Lords in the case of X. and Others v. Bedfordshire County Council (cited above). In such circumstances, the Court finds that the applicants had, on at least arguable grounds, a claim under domestic law. Article 6 was therefore applicable to the proceedings brought by these applicants alleging negligence by the local authority and Dr H.. The Court has therefore examined whether the requirements of Article 6 were complied with in those proceedings.

The Court recalls that  Article 6 § 1 “may ... be relied on by anyone who considers that an interference with the exercise of one of his (civil) rights is unlawful and complains that he has not had the possibility of submitting that claim to a tribunal meeting the requirements of Article 6 § 1” (see the Le Compte, Van Leuven and De Meyere v. Belgium judgment of 23 June 1981, Series A no. 43, § 44). The right of access to court is not however absolute. It may be subject to legitimate restrictions, for example, statutory time-limits or prescription periods, security for costs orders, regulations concerning minors and persons of unsound mind, etc. (see the Stubbings and Others v. the United Kingdom judgment of 22 October 1996, Reports 1996-IV, pp. 1502-3, §§ 51-52; the Tolstoy Miloslavsky v. the United Kingdom judgment of 13 July 1995, Series A no. 316-B, pp. 80-81, §§ 62-67; the Golder judgment, cited above, p. 19, § 39). Where the individual’s access is limited either by operation of law or in fact, the Court will examine whether the limitation imposed impaired the essence of the right and, in particular, whether it pursued a legitimate aim and there was a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (Ashingdane v. the United Kingdom judgment of 28 May 1985, Series A no. 93, pp. 24-25, § 57). If the restriction is compatible with these principles, no violation of Article 6 will arise.

It is claimed by the applicants in this case that the decision striking out their claims against Dr H. was based on the application of an immunity, namely, the immunity of a potential witness. However, no transcript of the decision of the court has been provided and, as the applicants were not present at the hearing, they are not in a position to state what reasons, if any, were given by the court in granting an unopposed strike out application by the local authority and Dr H.. The defence served by Dr H. did include a reference to a witness immunity but also asserted that he owed no duty of care to the applicants. The Court observes that in the case of X. and Others v. Bedfordshire the House of Lords considered the claims in negligence brought by the Newham applicants against a doctor and social worker for negligence in the conduct of a disclosure interview. Lord Browne-Wilkinson stated that in accepting the instructions of the local authority, in carrying out the interview with the children in that case, the two professionals did not take on any duty of care to the parent or children who might be affected, and thus applied in that context the principles of proximity, stating that in any event the third criteria of the duty of care (the fair, just and reasonable test) would also have not applied. The Court considers that in the circumstances, as the present case was stayed and then struck out following this test case before the House of Lords, it may be considered that the same principles of substantive law were applied. 

It finds therefore that the applicants were able to bring their claims before the domestic courts and to raise any arguments, which they thought appropriate, in pursuing it. No procedural rules or limitation periods were invoked against them. In striking out their claims as disclosing no reasonable cause of action, the court was concerned with the pre-trial determination of whether, assuming the facts of the applicants’ case as pleaded were true, there was a sustainable claim in law. The arguments before the courts were therefore concentrated on the legal issues. It is not shown that their claims were rejected due to the application of an exclusionary rule. The court must be regarded as following the decision of the House of Lords which applied the ordinary principles of negligence law to issues of liability of local authorities and those working for them.

The applicants may not claim therefore that they were deprived of any right to a determination on the merits of their negligence claims. Their claims were properly and fairly examined in the light of the applicable domestic legal principles concerning the tort of negligence. There was no denial of access to court and, accordingly, no appearance of a violation of Article 6 of the Convention.

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

4. Finally, the applicants complain that they had no effective remedy available to them as required by Article 13 of the Convention, which provides:

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

The Government denied that the applicants were deprived of an effective remedy. They submitted that the applicants had no arguable claim of a violation of the provisions of the Convention necessary to bring Article 13 into play and, even assuming they had, there was a range of possible avenues of redress available to them.

The applicants considered that they had a strong case of unjustified interference with their rights under the Convention and that there was no remedy available to them which would have held the local authority accountable in damages to them for the negligence which had caused them considerable suffering.

According to the Court’s case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see the Boyle and Rice v. the United Kingdom judgment of 27 April 1988, Series A no. 131, § 52). 

The Court has above found that the applicants’ complaints under Articles 3, 5 and 8 are manifestly ill-founded. For similar reasons, the applicants did not have an “arguable claim” and Article 13 is therefore inapplicable to their case. It follows that this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

     T.L. EarlyJ.-P. Costa
              Deputy RegistrarPresident

[Note1]Judges names are to be followed by a COMMA and a MANUAL LINE BREAK (Shift+Enter). When inserting names via Alt+S please REMOVE the substitute judge’s names, if necessary, and the extra paragraph return(s). (There is to be no extra space between the judges’ names and that of the Registrar.)

Full & Egal Universal Law Academy