Z and others v United Kingdom

Judgment Date11 October 2000

Human rights – Right to protection from inhuman or degrading treatment – Right to an effective remedy – Negligence – Breach of statutory duty by local authority – Applicant children suffering neglect and physical and psychological injury inflicted by parents over four year period – Local authority involvement throughout – Applicants claiming damages from local authority for failure to protect them from harm – Application struck out – Whether local authority had failed to protect children from inhuman and degrading treatment – Whether applicants denied effective remedy for damage suffered – European Convention on Human Rights arts 3, 13.

Human rights – Right to a fair hearing – House of Lords deciding that no action lying against local authority concerning discharge of duties under Children Act 1989 in respect of child care – Application struck out – Whether the Convention applied to disputes concerning the actual existence of a right – Whether applicants deprived of right to determination on merits of negligence claim – European Convention on Human Rights art 6.

The four applicants were siblings: Z born in 1982, A born in 1984, B born in 1986 and C born in 1988. The family was first referred to social services in October 1987 by a health visitor as a result of concerns about the children, the parents’ marital problems and allegations that Z was stealing food. Over the next four years numerous referrals were made by neighbours, a family member and professionals, including the family’s general practitioner, the children’s head teacher, a social worker and police officers. Complaints included reports that the children were locked out of the house, that the children and their rooms were filthy, that they scavenged in bins for food, that A soiled his pants, that they had difficulty socialising with others, that the mother’s care and discipline was inadequate, that their mattresses were sodden with urine, that their beds were broken, that A had been hit with a poker, that screaming had been heard, that the children were bruised, that the children defecated in their room and smeared excrement on the windows and that the children’s psychological well being was at risk. Between October 1987 and June 1992, when the mother demanded that the children be placed in care, there were a minimum of eleven professionals’ meetings, a social services meeting and a case conference concerning the children but no steps had been taken to remove the children from the care of the parents. Interim care orders were made on 7 December 1992 and the applicants were seen by a consultant child psychologist who stated that it was the worst case of neglect and emotional abuse that she had seen and that social services had

delayed too long, leaving at least the three elder children with serious psychological disturbances as a result. Full care orders were made on 14 April 1993 and in June 1993 the Official Solicitor, as next friend for the children, commenced proceedings against the local authority claiming damages for negligence and/or breach of statutory duty. The application was struck out on 12 November 1993, and on 28 February 1994 the Court of Appeal upheld that decision. The applicants appealed to the House of Lords and on 29 June 1995 the Lords rejected that appeal finding that no action lay against the local authority in negligence or breach of statutory duty concerning the discharge of their duties relating to the welfare of children under the Children Act 1989. On 9 October 1995 the applicants lodged a complaint with the European Court of Human Rights invoking arts 3, 6, 8 and 13 of the European Convention on Human Rights. The applicants argued that the local authority had failed to protect them from inhuman and degrading treatment contrary to art 3 of the Convention. In the alternative, the applicants argued that the circumstances in which they suffered ill treatment constituted a breach of their right to respect for private and family life under art 8. Further, the applicants argued that in breach of art 6 of the Convention they had been denied access to court to determine their claims against the local authority and that in violation of art 13 they had not been afforded any effective remedy for the damage they had suffered as a result of the local authority’s failure to protect them from harm.

Held - (1) Article 3 of the Convention, through its absolute prohibition against torture and inhuman or degrading treatment or punishment, enshrined one of the fundamental values of democratic society and imposed a positive duty on the state to provide adequate protection to everyone within its jurisdiction. In the present case it was not disputed that the neglect and abuse suffered by the four child applicants had reached the level prohibited by art 3. Further, the local authority had had the children’s situation brought to its attention in 1987 but despite the wide range of powers available to it to protect children, including removal from their home, the children were not taken into care until 1992 and then only at the mother’s insistence. Whilst social services faced difficult and sensitive decisions, in the present case the system had failed to protect the applicants from serious long-term neglect and abuse. Accordingly there was a violation of art 3 of the Convention as a consequence of which no separate issue arose under art 8.

(2) (By a majority) It was established by Convention case-law that in general art 6(1) applied only to disputes which were recognisable under domestic law on arguable grounds and did not in itself guarantee any particular content for civil rights and obligations in domestic law. However, it also applied to disputes that concerned the actual existence of a right where the dispute was of a genuine and serious nature. In the present case there was no precedent that established the existence of liability in respect of damage caused negligently by a local authority when carrying out its child protection duties and it was the applicants’ proceedings that had brought the matter before the domestic courts. As shown by the grant of legal aid to the applicants and the fact that the Court of Appeal granted leave to appeal to the House of Lords, there was a serious and genuine dispute about the

existence of the right. Accordingly, art 6 of the Convention was applicable and it was necessary to examine whether its requirements had been met within the applicants’ proceedings. The applicants had not been prevented from taking their matter to the courts and had in fact vigorously litigated up to the House of Lords, though the arguments were concentrated on legal issues. Moreover, the House of Lords’ decision could not be characterised as an exclusionary rule or an immunity which denied the applicants access to court but rather it ascertained whether a novel category of negligence should be developed by the courts. Further, that decision was based upon carefully balanced policy reasons for and against the imposition of liability on the local authority in the particular circumstances of the applicants’ case. The applicants’ inability to sue the local authority flowed from the principles governing the substantive right of action in domestic law rather than from an immunity and the applicants had not been deprived of their right to a determination on the merits of their negligence claim. Accordingly there was no violation of art 6 of the Convention.

(3) (By a majority) It was fundamental to the machinery of protection established by the Convention that domestic systems provided redress for breaches of its provisions. Those remedies were required to be effective in practice as well as in law. In the present case, the outcome of the domestic proceedings was that the applicants, and children with similar complaints, could not sue the local authority for damages in negligence despite the fact that they were victims of a violation of art 3 of the Convention. The remedies available to them through the Criminal Injuries Compensation Board, a complaint to the Ombudsman and/or the complaints procedure under the Children Act 1989 were conceded by the government to be insufficient to satisfy the requirements of art 13. Accordingly, as the applicants were not afforded an effective remedy in respect of the breach of art 3, there was a violation of art 13 of the Convention.

Osman v UK (1998) 5 BHRC 293, [1999] 1 FLR 193 reviewed in the light of clarifications subsequently made by the domestic courts and in particular the House of Lords.

Cases referred to in judgment

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

Ashingdane v UK (1985) 7 EHRR 528, [1985] ECHR 8225/78, ECt HR.

Aydin v Turkey (1997) 3 BHRC 300, 25 EHRR 251, ECt HR.

Barberà, Messegué and Jabardo v Spain [1988] 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.

Benthem v Netherlands (1985) 8 EHRR 1, [1985] ECHR 8848/80, ECt HR.

Bromiley v UK App No 33747/96 (23 November 1999, unreported), 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.

Fayed v UK (1994) 18 EHRR 393, [1994] ECHR 17101/90, ECt HR.

Golder v UK (1975) 1 EHRR 524, [1975] ECHR 4451/70, ECt HR.

Holy Monasteries v Greece (1994) 20 EHRR 1, [1994] ECHR 13029/87, ECt HR.

James v UK (1986) 8 EHRR 123, [1986] ECHR 8793/79, ECt HR.

Kaya v Turkey (1998) 28 EHRR 1, [1998] ECHR 22729/93, ECt HR.

Klass v Germany (1978) 2 EHRR 214, [1978] ECHR 5029/71, ECt HR.

Kudla v Poland [2000] ECHR 30210/96, ECt HR.

Le Calvez v France [1998] ECHR 25554/94, ECt HR.

Le Compte v Belgium (1981) 4 EHRR 1, [1981] ECHR 6878/75, [1982] ECHR 6878/75, ECt HR.

Lithgow v UK (1986) 8 EHRR 329, [1986] ECHR 9006/80, ECt HR.

Lustig-Prean v UK [2000] ECHR 31417/96, ECt HR.

Nikolova v Bulgaria (2001) 31 EHRR 64, [1999] ECHR 31195/96, ECt HR.

Osman v UK (1998) 5 BHRC 293, [1999] 1 FLR 193, ECt HR.

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