E and others v United Kingdom

Human rights – Local authority – Child abuse – Children abused by stepfather – Local authority’s failure to protect – Availability of effective remedy – Availability of just satisfaction for pecuniary and non-pecuniary loss – Whether right not to suffer torture or inhuman or degrading treatment or punishment violated – Human Rights Act 1998, Sch 1, Pt I, arts 3, 13.

The applicants, E, H, L and T were born in 1960, 1961, 1963 and 1965 respectively. After the death of their father in 1965, their mother cohabited with WH. The family were known to social services, who were principally concerned from 1970 onwards in relation to the mother’s severe financial difficulties. The mother suffered from poor health and often kept the children home from school. Problems with rent and electricity arrears were noted and continuing health difficulties. It was noted in August 1976 that the children were all happy though overcrowded and that there were no behavioural problems. However, in November 1976, it was recorded that E had taken an overdose because she disliked WH who had hit her, shouted and upset her to the extent that she ran away with the intent to kill herself. In 1977, L claimed that WH had attempted to rape her. The police interviewed the family, however no steps were taken to refer them to the reporter of the children’s hearing. WH pleaded guilty to charges of indecent behaviour against E and L. He was sentenced to two years’ probation with a condition that he cease to reside at the applicants’ address. Mr M, the probation officer for E and the acting replacement family social worker, had suspicions that WH might still be living at the family home despite his probation but did not consider that there was sufficient evidence of WH breaching the conditions to justify taking the matter further. The social worker, Mr R, also noted a suspicion that the mother was still cohabiting with WH. In 1979 L ran away from home and was taken into care by social services for a short period. She returned home for a week but then left to live with a friend. She took an overdose and was admitted to hospital. A letter from the psychiatric registrar to L’s GP noted that she did not get on well with the ‘mother’s cohabitee’ and that their relationship seemed peculiar. She was made the subject of compulsory care measures by the local authority which brought her before the children’s hearing. In the background report drawn up for the hearing by the social worker Mr E no reference was made to the past sexual abuse. From 1979 to 1981, financial difficulties were noted as continuing, and the mother’s health and general state deteriorated to such an extent that she rarely got out of bed.

The mother died in 1981. T left home in 1984, and in 1988, indicated to her social worker that she had been subject to sexual abuse by WH and other men. Following counselling, E, L and T reported the history of abuse by WH to the police in November 1988. In July 1989, WH pleaded guilty to four charges of committing sexual offences and was sentenced to a two-year suspended sentence. In 1992, the four applicants brought proceedings against the local authority seeking damages on the basis that the local authority had failed to carry out its statutory duties: in particular, that WH had breached his probation order by residing at the family home and that the social services had, or ought to have, known this and had failed to report the breach to the court or to take the children into care. In 1996, following a decision in the House of Lords and in the light of counsel’s advice that their case was indistinguishable, the applicants consented to an order that their action be dismissed. The Criminal Injuries Compensation Board (CICB) made an assessment awarding £25,000 to E, L and T for general damages. They appealed against the failure to award damages for loss of earnings. The applicants approached the ombudsman to undertake an investigation into their allegations of negligence and maladministration by the local authority. He stated that he had no jurisdiction under statute, and even if he did, he would not have undertaken an investigation due to the lapse in time since the events occurred. He declined to reconsider his position. The applicants applied to the European Court of Human Rights submitting that their right not to suffer inhuman or degrading treatment under art 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 had been violated and that they had no effective remedy as required by art 13. They also claimed damages for pecuniary and non-pecuniary damage under art 41.

Held – (1) Contracting states were required to take measures designed to ensure that individuals within their jurisdiction were not subjected to torture or inhuman and degrading treatment, including such ill-treatment administered by private individuals. Those measures should provide effective protection, in particular, of children and other vulnerable persons, and included reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge. However, the test under art 3 did not require it to be shown that ‘but for’ the failing or omission of the public authority ill-treatment would not have occurred. A failure to take reasonably available measures which could have had a real prospect of altering the outcome or mitigating the harm was sufficient to engage the responsibility of the state. In the instant case the court was satisfied that the pattern of lack of investigation, communication and co-operation by the relevant authorities had to be regarded as having had a significant influence on the course of events and that proper and effective management of their responsibilities might, judged reasonably, have been expected to avoid, or at least minimise the risk or the damage suffered. Therefore, there had been a breach of art 3 in respect of the applicants; A v UK (1998) 5 BHRC 137 considered.

(2) The remedy required by art 13 had to be effective in practice as well as in law. A mechanism for establishing any liability of state officials or bodies for acts or omissions involving the breach of their rights under the Convention should be available to the victim or the victim’s family. Furthermore, in the case of a breach under art 2 or art 3 (the most fundamental provisions of the Convention) compensation for non-pecuniary damage flowing from the breach should in principle be available as part of the redress. In the instant case, the government had failed in their obligations under art 3. Therefore, the complaints were arguable for the purposes of art 13. Although awards were made by the CICB which might have been relevant to any subsequent question of just satisfaction, the CICB could not be regarded as providing a mechanism for determining the liability of the social services for any negligence towards the children. Similarly, while a complaint to the local authority ombudsman, at the appropriate time, might have led to an investigation of certain aspects of social services’ management of the case, it would not have provided a binding determination, the ombudsman only having the power to make recommendations. Furthermore, in response to the applicants’ complaints the ombudsman gave his view that he did not have jurisdiction since it appeared that they had the possibility of taking action in the courts. However, the applicants withdrew their claims for a civil action in negligence following counsel’s advice that they were doomed to failure in light of the common law. It followed that the applicants did not have at their disposal the means of obtaining a determination of their allegations that the local authority had failed to protect them from inhuman and degrading treatment. Therefore, there had been a breach of art 13 in respect of the applicants; X (minors) v Bedfordshire CC, M (a minor) v Newham London BC, E (a minor) v Dorest CC[1995] 3 FCR 337 considered.

(3) To satisfy a claim for pecuniary loss, there had to be a clear and causal connection between the damage claimed by the applicant and the violation of the Convention, and that this might, in the appropriate case, have included compensation in respect of loss of earnings. An award might still be made notwithstanding a large number of imponderables involved in the assessment of future losses, though the greater the lapse of time involved the more uncertain the link became between the breach and the damage. The question to be decided was the level of just satisfaction, in respect of both past and future pecuniary loss, which was necessary to award to each applicant, the matter to be determined by the court at its discretion, having regard to what was equitable. In the instant case, in the light of the uncertainties and the difficulties of attributing any specific degree of damage to the failings of the local authority, a global figure would be awarded for pecuniary and non-pecuniary damage together, taking into account the awards made in respect of non-pecuniary damage by the CICB. On an equitable basis therefore awards of 16,000 euros would be made to E, H and L and 32,000 euros to T; Barberà v Spain [1994] ECHR 10588/83, Cakc v Turkey [1999] ECHR 23657/94, Lustig-Prean v UK [2000] ECHR 31417/96 and Sunday Times v UK [1980] ECHR 6538/74 considered.

A v UK (1998) 5 BHRC 137, ECt HR.

Aksoy v Turkey (1996) 1 BHRC 625, ECt HR.

Avsar v Turkey [2001] ECHR 25657/94, ECt HR.

Aydin v Turkey (1997) 3 BHRC 300, ECt HR.

Barberà v Spain [1994] ECHR 10588/83, ECt HR.

Barrett v Enfield London BC[1999] 2 FCR 434, [1999] 3 All ER 193, [1999] 3 WLR 79, [1999] 2 FLR 426, HL.

Boyle and Rice v UK (1988) 10 EHRR 425, [1988] ECHR 9659/82, ECt HR.

Cakc v Turkey [1999] ECHR 23657/94, ECt HR.

Caparo Industries plc v Dickman [1990] 2 AC 605, [1990] 1 All ER 568, [1990] 2 WLR 358, HL.

Jordan v UK [2001] ECHR 24746/94, ECt HR.

Kaya v Turkey (1998) 28 EHRR...