T.P. AND K.M. v. THE UNITED KINGDOM



                      AS TO THE ADMISSIBILITY OF

                      Application No. 28945/95

                      by TP and KM

                      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 2 August 1995 by

TP and KM against the United Kingdom and registered on 26 October 1995

under file No. 28945/95;

     Having regard to :

-    the reports provided for in Rule 47 of the Rules of Procedure of

     the Commission;

-    the Commission's decision of 19 January 1997 to communicate the

     application

-    the observations submitted by the respondent Government on

     29 April 1997 and the observations in reply submitted by the

     applicant on 24 September 1997;

-    the written brief submitted by the applicants on 12 May 1998;

-    the parties' oral submissions at the hearing on 26 May 1998;

     Having deliberated;

     Decides as follows:

THE FACTS

     The first applicant, TP, is a British citizen born in 1965. She

is the mother of the second applicant, KM, also a British citizen, who

was born in 1983. Both applicants live in Chelmsford, Essex and are

represented before the Commission by Clinton Davis and Co, solicitors,

of Clapton, London E5.

     The facts of the case, as submitted by the parties, can be

summarised as follows.

a.   Particular circumstances of the case

     Between 1984 and 1986, the local authority, the London Borough

of Newham, suspected that the second applicant was being sexually

abused, partly as a result of the second applicant having a persistent

urinary tract infection.

     In 1987, the health visitor attended the applicants' home and

obtained information regarding their living arrangements including the

fact that "XY", the first applicant's boyfriend, lived with the

applicants. Concern was expressed regarding the first applicant's care

of her daughter and a case conference was held to which the first

applicant was not invited. As a result of the conference the second

applicant was placed on the Child Protection Register under the

category of emotional abuse.

     The first applicant continued to try to find a cause for the

second applicant's urinary infection. However, none of the doctors who

saw the second applicant could identify a physical cause for the

infection. On 13 November 1987, the second applicant was interviewed

by a consultant child psychiatrist, Dr V, employed by Newham health

authority. A social worker, "Mr P", was present during the interview

whilst the first applicant waited in an adjoining room. The interview

was recorded on videotape.

     In the course of the interview the second applicant disclosed

that she had been abused by someone named "X". The social worker asked

the first applicant for the names of her husband, father and boyfriend.

The boyfriend, "XY", shared the same first name, "X", as the abuser.

However, the second applicant indicated that "XY" was not the abuser

and stated that "X" had been thrown out of the house.

     The first applicant was then interviewed, again on video, and

informed that the second applicant had disclosed that she had been

sexually abused by "XY". She was told that the first applicant could

not be returned home but would be taken to a local hospital for further

examination. When the second applicant asked whether or not her

daughter was being taken into care, she received no reply. Dr V also

told the first applicant that she could see the recording of the

interview with her daughter at some point.

     After the interview, the first applicant asked her daughter if

she had been abused by "XY". The second applicant denied that she had

been abused by "XY" and the first applicant, believing her daughter,

told this to Mr P. Neither Mr P nor Dr V appear to have given any

consideration to what the second applicant told her mother. When the

first applicant became agitated and angry, Dr V and Mr P both

concluded, wrongly, that the first applicant would be unable to protect

the second applicant from abuse and that she was attempting to persuade

the second applicant to retract her allegation. Mr P and Dr V came to

the conclusion that it would be necessary to remove the second

applicant from the care of her mother immediately.

     Later, on 13 November 1987, the local authority applied

successfully to Newham magistrates court for a place of safety order.

The local authority stated that the second applicant had been abused,

had identified "XY" as the abuser and there was a risk of further

direct abuse or that the first applicant would pressure the second

applicant into retracting her allegation. The first applicant was not

in court. A place of safety order was granted for 28 days.

     On 24 November 1987, the first applicant, having excluded all men

from her home, applied for the second applicant to be made a ward of

court. The local authority attended the application and argued that

they should have care and control of the second applicant in order to

protect her from the risk of abuse. The local authority was awarded

care and control of the second applicant and the first applicant was

granted very limited access. The local authority did not volunteer the

videos of the interviews with the child.

     Contact between the first and the second applicant was severely

restricted between November 1987 and November 1988. It appears that the

first applicant had only one hour of supervised contact with her

daughter each week. The second applicant was also denied contact with

her extended family, including her maternal grandmother who was

terminally ill and died whilst the second applicant was in the care of

the local authority.

     During 1988, the first applicant gave birth to a son, D, fathered

by "XY". D was made a ward of court but the local authority did not

apply to remove D from the care of his mother and "XY".

     On 1 November 1988, during the wardship proceedings regarding D,

Registrar Conn ordered that the video be disclosed. Dr V and the health

authority attempted to prevent the disclosure of the video on the basis

that it was confidential. However, the first applicant by that stage

had already seen the transcript of the interview.

     The transcript showed clearly that the second applicant had said

that "XY" had not abused her. An opinion was sought from a

psychiatrist, Dr Baker, who confirmed that the second applicant had

stated that "XY" was not the abuser. The local authority were informed

of Dr Baker's opinion. They agreed that there was no evidence to

support the assertion that "XY" had abused the second applicant.

     On 21 November 1988 at a hearing in the High Court the local

authority recommended that the second applicant be rehabilitated to the

first applicant and "XY". Mr Justice Lincoln ordered this course of

action and rehabilitation commenced shortly afterwards. At the final

hearing on 17 November 1989 the local authority advised the court that

there was no longer any reason for the second applicant to remain a

ward of court. The wardship was therefore discharged.

     Both applicants were seen by a psychiatrist who diagnosed that

they were suffering from psychological disturbance known as anxiety

neurosis.

     On 8 November 1990, the applicants issued proceedings making

numerous allegations of negligence and breach of statutory against the

local authority, the central allegation being that the social worker

and psychiatrist failed to investigate the facts with proper care and

thoroughness and failed to discuss their conclusions with the first

applicant. The applicants claimed that as a result of their enforced

separation each of them had suffered a positive psychiatric disorder.

     On 19 November 1992, Master Topley struck out the application on

as revealing no cause of action on the basis that Dr V and Mr P enjoyed

immunity in suit as a witness or potential witness in proceedings

concerning the abuse of the second applicant. The applicants appeal to

the High Court was dismissed on 17 March 1993 by Mr Justice Phelan who

held that no claim could arise from any alleged right to custody of a

child which would give rise to a right to damages.

     In the Court of Appeal the High Court's striking out decision was

upheld on 23 February 1994. However, the Master of the Rolls,

Sir Thomas Bingham, dissented and stated that he believed that it could

be argued that a common law duty of care was owed to the second

applicant by the psychiatrist and the local authority (reported as M v

Newham LBC; X v Beds CC (CA) 2WLR 554). He held as regarded the child

and the local authority:

     "Those who engage professionally in social work bring to

     their task skill and expertise, the product partly of

     training and partly of experience which ordinary members of

     the public are bound to lack. I have no doubt that they

     should be regarded as members of a skilled profession.

     Their task is one of immense difficulty, and frequently

     they are exposed to unjust criticism: but both these things

     may, to a greater or lesser extent be said of other

     professions also.

           In considering the legal relationship between the

     child and the local authority, much of what I have said

     above concerning the child's relationship with the

     psychiatrist is in my view equally applicable. I will not

     repeat the conclusions already expressed about

     foreseeability, proximity, witness immunity, public policy,

     causation and damage, which mutatis mutandis apply in this

     context also. But a number of different points arise also.

           It was argued that since, as I have accepted,

     Parliament has omitted to impose on local authorities a

     specific statutory duty breach of which will entitled an

     injured party to recover damages, the courts should not

     themselves step into impose such a duty. If there were any

     indication that Parliament intended no such duty to be

     imposed, I would agree, But I find no such indication.

     Parliament's omission is to my mind more readily explained

     by the extreme difficulty of adequately defining and

     circumscribing such a duty in a general provision; I can

     see no reason to suppose Parliament would have wished to

     deny the child a claim against the local authority on the

     detailed (if assumed) facts of this particular case. Had it

     wished to do so it could have adopted some such formula as

     is found in section 1(4) of the Banking Act 1987.....

           One argument on public policy was addressed to us

     which seemed to have more relevance to the local authority

     than to the health authority and the psychiatrist. If a

     duty of care were imposed on the local authority and claims

     such as the child's were permitted to continue, the already

     overstretched resources of local authorities, human and

     financial, would be diverted from the valuable purpose of

     looking after children an wasted on the sterile processes

     of litigation. One must accept that this must to a greater

     or lesser extent be so, and a somewhat similar argument

     found favour in Hill v Chief Constable of West Yorkshire

     [1989] AC 53 p63. But this is an argument frequently (and

     not implausibly) advanced on behalf of doctors: it has not

     prevailed, Other professions resist liability on the ground

     that it will in the end increase the cost to the paying

     customer; that resistance has not on the whole been

     effective either. Save in clear cases, it is not for the

     courts to decide how public money is best spent nor to

     balance the risk  that money will be wasted on litigation

     against the hope that the possibility of suit may

     contribute towards the maintenance of the highest

     standards"

     On appeal to the House of Lords the decision of the majority of

the Court of Appeal was upheld on 29 June 1995. Lord Browne-Wilkinson

delivered the leading judgment concerning three cases, the Bedfordshire

case, the Newham case (the applicants' case) and the Dorset case

(reported as X and others v. Bedfordshire County Council [1995] 3 AER

353).

     As regarded the claims for breach of statutory duty, he held:

     "... 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."

     In respect of the applicants' claim that the local authority and

the health authority were vicariously liable for the actions of the

social worker and psychiatrist respectively, Lord Browne-Wilkinson said

as follows:

           "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 applicants in this case had not alleged that the local

authority had been under any direct duty of care towards them. However,

in the Bedfordshire case, where the applicant children did so claim,

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."

b.   Relevant domestic law and practice

     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.

     A child becomes a ward of court as soon as an originating summons

is issued. Thus once the first applicant applied for the second

applicant to be made a ward of court, custody of the child vests in the

court. Thus, the local authority has only the powers given to it by the

court in relation to the child.

     The local authority's duties in respect of child welfare at the

relevant time were set out in the Child Care Act 1980.

     Section 1 of the Child Care Act 1980 provided:

     "1(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 children into or keep them in care under this Act

     or to bring children before a juvenile court; and any

     provisions made by a local authority under this subsection

     may, if the local authority think fit, include provision

     for giving assistance in kind or, in exceptional

     circumstances, in cash"

     Section 18 of the Child Care Act 1980 provided:

     "18(1) In reaching any decision relating to a child in

     care, a local authority shall give first consideration to

     the need to safeguard and promote the welfare of the child

     throughout his childhood; and shall so far as practicable

     ascertain the wishes and feelings of the child regarding

     the decision and give due consideration to them, having

     regard to his age and understanding."

     Section 76 of the Child Care Act 1980 provided:

     "76(1) The Secretary of State may cause an inquiry to be

     held into any matter relating to-

     (a)   the functions of the social services committee of a

     local authority, in so far as those functions relate to

     children

     (3)   Subsections (2) to (5) of section 250 of the Local

     Government Act 1972 (powers in relation to local inquiries)

     shall apply in relation to an inquiry under this section as

     they apply in relation to a local inquiry"

     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 argue that by virtue of the decision in X and

others v Bedfordshire County Council [1995] 3 AER 353 they have been

denied the right to a fair hearing pursuant to Article 6 para 1 of the

Convention.

2.   The applicants invoke Article 8 of the Convention to argue that

the removal of the second applicant from her mother, the first

applicant and the restriction of access between mother and daughter was

an interference with their rights to respect for family life which was

not in accordance with the law, was unnecessary and did one of the

legitimate aims listed at Article 8 para. 2

3.   The applicants invoke Article 13 of the Convention and claim that

the effect of the decision in X and others v Bedfordshire County

Council [1995] 3 AER 353 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 (op. cit.) prevents the facts of

the case from being investigated.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 2 August 1995 and registered

on 26 October 1995.

     On 19 January 1997 the Commission decided to communicate the

application to the respondent Government.

     The Government's written observations were submitted on 29 April

1997, after an extension of the time-limit fixed for that purpose.  The

applicants replied on 24 September 1997, also after an extension of the

time-limit.

     On 28 May 1997, the Commission granted the applicant 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 KL and others v. the United

Kingdom, No. 29392/95.

     On 24 April 1998, the Commission decided to join this application

to No. 29392/95 for the purposes of the oral hearing only.

     On 12 May 1998, the applicants submitted a written brief.

     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 Robert Sherman, as Counsel and Ms Catharine O'Hanlon, trainee

solicitor. The first applicant also attended.

THE LAW

     The applicants complain of the actions and procedures whereby the

local authority removed the second applicant into care on the basis of

careless assumptions of fact. 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 6, 8 and

13 (Art. 6, 8, 13) of the Convention.

     The relevant provisions of the Convention provide:

                 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."

     As regards Article 26 (Art. 26) of the Convention

     The respondent Government submit, firstly, that insofar as the

applicants complain of a violation of their rights under Article 8

(Art. 8) of the Convention their complaints fail to comply with the six

month time-limit imposed by Article 26 (Art. 26) of the Convention.

They submit that the application should have been introduced within six

months of the conclusion of the wardship proceedings which ended in

November 1989.

     The applicants submit that their application is not out of time,

since it would have been premature to introduce their complaints before

the termination of the proceedings in which they claimed damages from

the local authority for negligence.

     Article 26 (Art. 26) provides as relevant:

     "The Commission may only deal with the matter ... within a

     period of six months from the date on which the final

     decision was taken."

     The Commission recalls, however, that Article 26 (Art. 26) cannot

be interpreted in a manner which would require an applicant to seize

the Commission of a complaint before her position in connection with

the matter has finally been settled at the domestic level (see eg. No.

9599/81, Dec. 11.3.85, DR 42, p. 33)

     In the present case, the Commission observes that, following the

wardship proceedings, the applicants pursued claims for negligence and

breach of statutory duty which concerned their allegations, inter alia,

that the local authority was liable for the negligence of its social

worker, which caused the unjustifiable and harmful separation of mother

and child. Even though their claims were ultimately rejected, they were

found sufficiently arguable for the applicants to be granted leave to

appeal to the House of Lords. In these circumstances, the Commission

considers that the proceedings may be taken into account as concerning

the subject matter of their present application and as part of the

process of exhaustion of domestic remedies. Accordingly, since the

application was introduced within six months of the judgment of the

House of Lords on 29 June 1995, the Commission finds that the

Government's objection that the applicants' complaints under Article

8 (Art. 8) of the Convention are out of time must be rejected.

     As to the substance of the application

     The Government contend that any interference with the applicants'

right to respect for family life under Article 8 (Art. 8) of the

Convention was justified as being in accordance with law and necessary

in a democratic society in pursuit of the aim of protecting the rights

of the second applicant who had been subject to sexual abuse over a

number of years. They submit that the first applicant was provided with

the opportunity to participate effectively and fairly in the decision-

making procedure, which involved an adjudication of the issues before

a court in which the first applicant was legally represented. They

point out that the first applicant took no steps for over a year to

have the video and the transcript brought to the attention of the

court.  They deny that the mere fact that Dr. V and Mr. P drew

erroneous conclusions from the interview with the second applicant is

sufficient to disclose a violation of the Convention

     The Government deny that there was any denial of access to court

for determination of the applicants' civil claims contrary to Article 6

(Art. 6) of the Convention. They point out that the applicants' claims

were examined thoroughly by the domestic courts and that the House of

Lords reached its decision rejecting their claim on an application of

the ordinary principles of substantive law relating to the imposition

of a duty of care. Further, the applicants had available to them an

effective remedy in respect of their complaints as required by Article

13 (Art. 13) of the Convention, namely, the wardship proceedings before

the High Court, pursuant to which the measures taken in respect of the

second applicant were swiftly ended.

     The applicants contend that the measures removing the second

applicant into care disclose a violation of their right to respect for

their family life as guaranteed under Article 8 (Art. 8) of the

Convention. They submit that the removal was not necessary or supported

by relevant and sufficient reasons. Further, the procedures adopted did

not provide them with adequate and effective safeguards in respect of

their interests; in particular, the evidence of the video was not

disclosed to the first applicant earlier or brought immediately before

a court and both mother and child were unrepresented at the time of the

separation.

     The applicants submit, in respect of Article 6 (Art. 6), that

their claims in negligence against the local authority had a basis in

domestic law and that the decision of the House of Lords acted,

effectively, to bestow an immunity on local authorities from actions.

This immunity is 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.

     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

 

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