Z.W. v. THE UNITED KINGDOM

SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 34962/97
by Z. W.
against the United Kingdom

The European Court of Human Rights (Second Section), sitting on 27 November 2001 as a Chamber composed of

MrJ.-P. Costa, President,
SirNicolas Bratza,
MrL. Loucaides,
MrC. Bîrsan,
MrK. Jungwiert,
MrV. Butkevych,
MrsW. Thomassen, judges,
and Mrs S. Dollé, Section Registrar,

Having regard to the above application lodged with the European Commission of Human Rights on 23 October 1996 and registered on 18 February 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 applicant is a United Kingdom national, who was born in 1972 and is currently detained in Rampton Hospital. She is represented before the Court by Mr Barratt, a solicitor practising in Gainsborough.

A.  The circumstances of the case

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

The applicant is the youngest of four siblings, the others being J. (a boy born in 1969), R. (a boy born in 1971) and L.W. (a girl born in 1971).

The children first came to the attention of the social services of Humberside County Council (“the local authority”) in June 1972, prior to the applicant’s birth, when her mother S. was described as being unable to look after her children. She was illiterate and had attended a special school for the educationally sub-normal. Her husband had left the home.

In November 1972, the applicant was treated in hospital for pneumonia. It appears that S. admitted to the social services that she had turned to prostitution to earn money and asked for the children to be taken into care.

In July 1973, after the children were reported to be living in highly unsatisfactory living conditions, (“an unwholesome mix of faeces, scattered food, urine and broken glass” and “children a pathetic sight – rarely fed and often naked in the disordered and filthy home occupied by an apparently caring but overwhelmed mother whose reaction to misbehaviour was to bite the offender on the chest or neck”), the children were admitted to foster care.

From July to September 1973, the applicant was reported as starting to make positive progress.

In September 1973, the foster mother stated that the children would not be loved and asked from them to be removed.

On 12 February 1974, the local authority acquired parental rights over the children.

On 7 May 1976, L.W. and the applicant were split up from their brothers and placed with new foster parents, Mr and Mrs D.

On 14 September 1976, a social worker, Mr T., reported that Mr and Mrs D. considered that contact with the grandparents was upsetting the girls. The applicant was withdrawn and soiling herself. Mr and Mrs D. considered that contact should stop.

On 10 October 1976, S., the girls’ mother, expressed concern to the social services about the care given by Mr and Mrs D.

On 17 May 1976, Mr and Mrs D. stated that they were unhappy with the girls having contact visits with their brothers, as L.W. had been upset following a visit on 13 May 1976.

No social work notes were apparently available until 2 May 1979, when Mrs D. told the social worker that she was unhappy about the mother having contact with the girls.

On 9 August 1979, it was noted that the applicant expressed the wish to leave the foster parents’ home.

On 27 November 1979, the records noted that both girls were still bedwetting and carpet wetting.

On 9 January 1980, it was noted that the relationship between the girls and Mr and Mrs D. was deteriorating and that the fosterparents were stating that unless they improved the girls would have to be removed.

On 22 February 1980, the social worker noted that matters could not get much worse in the placement.

On 26 June 1980, it was reported that there had been a rejection by the girls of the foster parents and vice versa and that the situation was worsening daily. Mr and Mrs D. agreed to keep the girls until the summer term finished. A senior social worker decided to visit.

On 29 July 1980, it was decided to remove the girls. However, at the last minute, the car was unpacked and Mr and Mrs D. stated that they would struggle on.

Records on 15 September 1980 and 4 February 1981 showed that the previous difficulties were recurring.

On 9 April 1981, a social services memorandum stated that the girls showed many signs of emotional disturbance.

On 9 December 1981, the NSPCC informed the social services that they had received a report that the girls had been left standing daily outside the house in all weathers, at lunchtime and after school.

On 6 January 1982, Mrs D. denied the allegations. The social services were apparently satisfied.

On 1 March 1982, Mrs D. reported that the girls had run away to see their brothers.

On or about 10 July 1983, the girls ran away and were missing for one and a half days.

On 18 June 1984, the social services paid a visit to Mr and Mrs D. and talked at length with them about their difficulties. It was noted that the applicant’s stealing had apparently stopped. Mrs D. said that L.W. was bullying children to have sex with her. When a social worker tried to take the girls out for an hour, this did not occur as Mrs D. said that they were reluctant.

On 25 July 1984, Mrs D. complained that L.W. was falsely claiming that bruises on her legs were caused at home when they had in fact been caused by fighting with the applicant. A social worker attempted to talk to both girls and noted that they both appeared very anxious. A file note was made that there were undercurrents which seemed to be inexplicable.

On 13 August 1984, a social worker made a request to see the girls for an hour and noted that that Mrs D. was uneasy at the prospect. On 14 August 1984, Mrs D. again resisted the girls going out with the social worker.

In January 1985, the social worker visited the home on four occasions and received no reply. In a visit in March 1985, the social worker was denied entry.

Notes in social work entries for May-July 1985 referred to problems of contact with the girls’ family.

On 27 July 1987, the girls’ school reported a suspected non-accidental injury to both girls. A subsequent investigation concluded that the injuries had occurred at school.

On 4 March 1988, Mrs D. telephoned the social services stating that she would kill L.W. if the girl was not moved.

On 8 April 1988, Mr and Mrs D. denied any problems with the applicant. However the social worker received the impression that she also wanted to leave.

In January-February 1989, L.W. and the applicant made allegations of prolonged sexual and physical abuse by their foster parents.

On 8 March 1989, L.W. telephoned the social services and withdrew her allegations. On 17 March 1989, the police interviewed Mr and Mrs D. who denied everything. No prosecution was brought.

On 16 June 1989, L.W. and the applicant made suicide attempts.

On 11 August 1989, the applicant went to stay with her mother.

The applicant has since been convicted of various offences, including criminal damage, burglary and assault. In 1991, she was sentenced to two years’ imprisonment for arson, part of which sentence she served in a psychiatric hospital. She had been admitted to psychiatric hospital on several occasions and, since 1993, she has been detained in Rampton psychiatric hospital under the dual classification of mental illness and psychopathic disorder.

On 16 September 1993, the applicant submitted an application to the Criminal Injuries Compensation Board claiming compensation in respect of the abuse which she had suffered from her foster parents, as well as for an assault inflicted on her by a fellow patient in hospital. Both cases were dealt with simultaneously at a hearing in June 1999. The applicant was awarded damages of GBP 50,000.

Meanwhile, in 1995, the applicant introduced proceedings against the local authority alleging negligence.

In a report dated 23 October 1995 by a consultant forensic psychiatrist, it was stated that the applicant recalled that she had suffered almost daily abuse from Mr and Mrs D. She had been too frightened to tell anyone. She and her sister were hit frequently and fed erratically, often going hungry so that she would steal money for food. Mrs D. had ducked her head under water and Mr D. had hit them on the head with his fist or a wooden spoon. Their bedroom door was locked at night. They were also treated like slaves and had to do all the housework. Although she had not been aware of any sexual abuse, both had been made to stand in their foster parents’ room with no clothes on with their hands on their heads. She believed that the social workers had known about the ill-treatment but did nothing. From the age of 14, the applicant had been mutilating herself and these incidents still continued. The report concluded that the applicant had had a very disturbed and traumatic upbringing virtually from birth and has presented escalating behavioural problems from her mid-teens, including self-wounding, aggression to others, substance abuse and anti-social behaviour, including firesetting. In addition she had difficulty in forming significant interpersonal relationships; there was some evidence of mood disorder and occurrence of possible psychotic episodes. Her adverse background was assessed as significantly contributing to the development of her current mental disorder.

In a statement submitted by her sister L.W. to support the claim for criminal injuries compensation, L.W recalled that Mrs. D., a spiritualist and president of the Psychic Church, used to threaten the applicant that the devil would get her and would make the applicant lie on the floor and touch herself intimately while L.W. was forced to watch. Mr and Mrs D. stopped them from seeing their grandparents and brothers, which upset them very much. Mr D. became more violent in Mrs D.’s absence and he used to pick them up by their hair and bang their heads together. On one occasion, he hit the applicant so hard that she cracked her head on a tile in the kitchen and blacked out. They were often locked in their rooms for long periods and refused access to the toilet. They had to urinate in plastic toys and pour the urine out the window. Once Mrs D. made the applicant eat dog excrement. They sometimes went for three to four days without food and would try to steal food. They were never allowed to see a social worker by themselves and were told by Mr and Mrs D. to tell lies to the social workers. When it was reported by the school that she had bruises, she was forced to lie to the social services as to how she and her sister had been hurt.

On 6 September 1996, the High Court struck her claim out as disclosing no reasonable cause of action.

B.  Relevant domestic law and practice

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, such as 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) 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.”

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.

COMPLAINTS

The applicant complains under Article 3 of the Convention that she has been subjected to inhuman and degrading treatment due, inter alia, to the failure of the local authority to monitor her foster placement and protect her from physical and sexual abuse by her foster-parents.

The applicant also complains under Article 13 that, pursuant to the House of Lords decision in X and Others v. Bedfordshire County Council ([1995] 3 AER 353), she has no redress for her complaints against the local authority.

THE LAW

The applicant complains that she has suffered inhuman and degrading treatment due to failures of the local authority to protect her welfare and that she had no remedy for this. She invokes Articles 3 and 13 of the Convention which provide:

Article 3 of the Convention:

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

Article 13 of the Convention:

“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.”

Concerning the applicant’s victim status

The Government submit that the applicant can no longer claim to be a victim of a violation of the Convention for the purposes of Article 34 of the Convention. Where an applicant accepts substantial sums by way of compensation, he or she can no longer claim to be a victim, notwithstanding the allegations of serious breaches of the Convention (see no. 24520/94, Caraher v. the United Kingdom, (Sect. 3), dec. 11 January 2000, and no. 41984/98, Hay v. the United Kingdom, (Sect. 3) dec. 17 October 2000). In this case where the ill-treatment suffered by the applicant was not inflicted directly by the authorities and she had been fully compensated in respect of those events, that principle must also apply.

The applicant points out that the Criminal Injuries Compensation Scheme is designed to compensate victims of criminal offences and her claim to the Criminal Injuries Compensation Board concerned the criminal offences committed against her by her foster-parents. In contrast, an award in the civil courts based on the duty of care owed by the local authority would have been substantially higher than GBP 50,000. The reason for the applicant’s detention in hospital for the last ten years of her life, and the foreseeable future, was the psychological damage caused by the abuse. The sum paid by the Board came nowhere near compensating her for the damage suffered.

The Court recalls that the possibility of obtaining compensation for ill-treatment will generally, and in normal circumstances, constitute an adequate and sufficient remedy for a complaint under Article 3 of the Convention (see, nos. 5577-5583/72, Donnelly and Others v. the United Kingdom, dec. 15.12.75, DR 4, p. 4, at p. 66). Where a victim of ill-treatment accepts a sum of compensation in settlement of civil claims and renounces further use of local remedies therefore, he or she will generally no longer be able to claim to be a victim in respect of those matters (see Donnelly, op. cit. at pp. 86-87, and mutatis mutandis, concerning allegations of breaches of Article 2 of the Convention, the above-mentioned Caraher and Hay decisions).

The Court observes that this case differs from those cited above in that the compensation accepted by the applicant was not in settlement of her civil claims and not part of the process of exhaustion of domestic remedies. Her claims in the civil court were struck out and the award of GBP 50,000 was made as compensation for criminal injuries. This statutory scheme was not concerned with any alleged failings by the local authority in their duty to protect the applicant, which is the essence of the complaint raised by her under Article 3 of the Convention, but rather with the injuries attributable to her as a victim of criminal offence committed by her foster parents. It would not have been required by the applicant under Article 35 § 1 of the Convention to exhaust this avenue of redress before lodging her complaints with the Court.

The Court therefore rejects the Government’s argument and finds that the applicant may still claim to be a victim of a violation of Article 3 of the Convention in respect of her complaints against the local authority.

The applicant’s substantive complaints

The Government have reserved their position as concerns the substance of the applicant’s complaints under Article 3 of the Convention and have made no submissions as regards Article 13 of the Convention.

The applicant submits under Article 3 of the Convention that the local authority failed to take any or any proper steps to remove the applicant from the care of her mother until 3 July 1987, that it failed to take sufficient steps to properly supervise and monitor the placement of the applicant with her foster carers, that it failed at any stage to speak to the applicant or her sister alone in order properly to assess her position, that it failed to take sufficient steps to protect the applicant from harm at the hands of her foster carers when they knew or ought to have known that harm was being caused to her and that it allowed the placement to continue for 13 years with no proper safeguards, thus causing the applicant to remain in danger. She further submits that she was denied a remedy for her complaints contrary to Article 13 of the Convention, as her application in the High Court was struck out on 6 September 1996.

The applicant has, in her recent observations on admissibility dated 24 October 2001, raised for the first time an allegation that the events complained of also denied her right to respect for family and private life. Noting that the applicant’s original complaints under Articles 3 and 13 of the Convention were introduced on 23 October 1996, within six months of the decision of the High Court as required by Article 35 § 1 of the Convention, the Court finds that the allegation under Article 8 of the Convention has been added out of time and cannot be entertained within the scope of the present application.

The Court has examined the applicant’s complaints under Articles 3 and 13 and the submissions of the parties and finds that serious questions of fact and law arise, which are of such complexity that their determination should depend on an examination of the merits. The application cannot, therefore, be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

S. DolléJ.-P. Costa
RegistrarPresident

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