Z v UK

Local authority – Local authority failing to take children into care – Children suffering ill-treatment and impairment of health – Children’s claims for damages for negligence and breach of statutory duty against local authority struck out as disclosing no cause of action – House of Lords ruling local authority immune from suit on public policy grounds – Whether ill-treatment amounting to ‘inhuman or degrading treatment’ – Whether state complying with positive obligation to provide children with adequate protection against inhuman or degrading treatment – Whether House of Lords’ ruling constituting disproportionate restriction on children’s right of access to court – European Convention on Human Rights, arts 3 and 6.

Human rights – Inhuman or degrading treatment – Right to access to court – Local authority failing to take children into care – Children suffering ill-treatment and impairment of health – Children’s claims for damages for negligence and breach of statutory duty against local authority struck out – House of Lords ruling local authority immune from suit on public policy grounds – Whether ill-treatment amounting to inhuman or degrading treatment – Whether local authority complying with their positive obligation to take adequate and appropriate measures to end treatment – Whether House of Lords’ ruling constituting disproportionate restriction on children’s right of access to court – European Convention on Human Rights, arts 3 and 6.

In 1993 the applicant children commenced proceedings against the local authority claiming damages for negligence and/or breach of statutory duty. The applicants alleged that over a five-year-period, despite knowing that they were being neglected and ill-treated by their parents, the local authority had failed to take them into care, and as a result they had suffered, inter alia, impairment of health and psychological damage. The judge struck out the action on the basis it revealed no cause of action. That decision was upheld, by a majority, in the Court of Appeal. On 29 June 1995 the House of Lords held that local authorities enjoyed immunity from suit in respect of actions brought in negligence or breach of statutory duty concerning the discharge of their duties under the Children Act 1989 in respect of child care on public

policy grounds. On 26 May 1998 the European Commission of Human Rights ruled the applicants’ complaint against the United Kingdom admissible. The applicants submitted, inter alia, that the local authority were aware of their treatment and failed to protect them; that the treatment amounted to inhuman and degrading treatment contrary to art 3 of the Convention for the Protection of Fundamental Freedoms and Human Rights (the European Convention on Human Rights), as set out in Sch 1 to the Human Rights Act 1998; and that the local authority failed to comply with their positive obligation under art 3 to take adequate and appropriate measures to end, or prevent, such treatment occurring. The respondent Government submitted, inter alia, that the local authority had fulfilled any positive obligation to protect them by carrying out careful monitoring of the family in accordance with the procedural safeguards laid down in the statutory framework. They emphasised that the state could not guarantee that parents would not ill-treat their children, and that in all cases the local authority, in the light of their knowledge at the relevant time, had to strike a very careful balance in judging whether to remove the children from their parents or to provide the family with support to enable them to offer an acceptable standard of care. The applicants further submitted that their claims were based on rights arguably existing in domestic law and the House of Lords’ ruling had, effectively, bestowed an immunity on local authorities that in the circumstances was disproportionate and inflexible, and amounted to a denial of access to court contrary to art 6 of the Convention. The respondent Government submitted, inter alia, that the applicants could not claim any right under domestic law to sue the local authority and that the decisions of the courts, which applied wholly conventional principles of English substantive law, could not be regarded as disclosing any denial of access to court; and even if the right of access to court had been so limited, it pursued, in a proportionate manner, the legitimate aim of safeguarding the effective exercise of the statutory duties imposed on local authorities. On 10 September 1999 the Commission adopted the following report for the purposes of establishing the facts and stating an opinion as to whether they disclosed a breach of the state’s obligations under the Convention.

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a See X (minors) v Bedfordshire CC [1994] 2 FCR 1313, [1995] 2 AC 633

b See X (minors) v Bedfordshire CC [1995] 3 FCR 337, [1995] 2 AC 633

c The Commission’s decision as to the admissibility of the applicants’ complaints is set out in the Appendix to the Commission’s Report at p 274, post

d Article 3 of the European Convention on Human Rights, so far as material, is set out at p 264h–264h, post

e Article 6 of the European Convention on Human Rights, so far as material, is set out at p 269c–269d, post

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Held – (Unanimously) (1) The protection of children who by reason of their age and vulnerability were not capable of protecting themselves required not merely that the criminal law provided against art 3 treatment but that, additionally, the provision would in appropriate circumstances imply a positive obligation on authorities to take preventative measures to protect a child who was at risk from another individual. The circumstances of the present case disclosed that the treatment suffered by the applicants reached the

level of severity prohibited by art 3 of the Convention. As the local authority were under a statutory duty to take measures to protect the applicants’ welfare, and they had a range of powers available to them including the power to apply for care orders, they were subject to that positive obligation. Although the local authority were initially justified in taking steps to maintain the family as a unit by giving support to the parents, the gravity of the conditions and behavioural problems suffered by the applicants required that effective and practical steps be taken to safeguard their welfare when the situation at home failed to show a significant and reasonably timeous improvement. Whilst social services faced difficult and delicate decisions, and it would impose an impossible burden, incompatible with the rights of parents, to require them to try and prevent all instances of abuse and neglect, none the less the authorities in the present case were aware of the serious ill-treatment and neglect suffered by the applicants over a period of five years and had failed, despite the means reasonably available to them, to take any effective steps to bring it to an end. Accordingly the state had failed in its positive obligation under art 3 to provide the applicants with adequate protection against inhuman and degrading treatment, and there had been a violation of art 3.

(2) The applicants’ claims against the local authority were arguably based on an existing right in domestic law, and the House of Lords’ ruling unequivocally rejected their claims on the basis that actions against social services for decisions taken in relation to their child protection functions were to be excluded. As such the courts had imposed a restriction on their access to court by the application of a bar to their claims operating to protect a particular defendant from negligence actions for damage caused in a particular sphere of their competence. Whilst the restriction pursued a legitimate aim, namely to preserve the efficiency of a vital sector of public service, it was not proportionate as, inter alia, it gave no consideration to the seriousness or otherwise of the damage or the nature or degree of negligence alleged, or the fundamental rights of the applicants which were involved. Moreover, the multi-disciplinary aspects of child protection work could not of itself provide a justification for excluding liability from a body found to have acted negligently. The risk that liability would open a floodgate of litigation from discontented parents or relatives was a speculative factor of only limited weight. The conflictual nature of child care work equally reflected the fact that it frequently concerned matters of fundamental individual importance. Furthermore, the possibility of applying for criminal injuries compensation or for an investigation by the ombudsman did not provide the applicants with adequate, alternative means of obtaining a redress in respect of their claims. It followed that the application of the exclusionary rule to the applicants’ claims constituted a disproportionate restriction on their right of access to court, and there had been a violation of art 6 of the Convention.

Editor’s Note. The European Court of Human Rights will be hearing this case and giving judgment in due course.

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

Ashingdane v UK (1985) 7 EHRR 528, ECt HR.

Assenov v Bulgaria (1998) 28 EHRR 652, 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.

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

Costello-Roberts v UK (1993) 19 EHRR 112, ECt HR.

James v UK (1986) 8 EHRR 123, ECt HR.

Lithgow v UK (1986) 8 EHRR 329, ECt HR.

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

TP and KM v UK (app no 28945/95) (10 September 1999, unreported), ECom HR.

W v Essex CC [1998] 2 FCR 269, [1999] Fam 90, [1998] 3 All ER 111, [1999] 2 FLR 278, CA; rvsd in part [2000] 1 FCR 568, [2000] 2 All ER 237, [2000] 2 WLR 601, [2000] 1 FLR 657, HL.

Following the European Commission of Human...