Z and Others v United Kingdom (Application No 29392/95)
The Times Law Report May 31 2001
UK breach in failure to protect children
EUROPEAN COURT OF HUMAN RIGHTS
Before L. Wildhaber, President, and Judges E. Palm, C. Rozakis, J-P. Costa, L. Ferrari Bravo, L. Caflisch, P. Kuris, J. Casadevall, B. Zupancic, N. Vajic, J. Hedigan, W. Thomassen, M. Tsatsa-Nikolovska, E. Levits, K. Traja, A. Kovler and Lady Justice Arden, ad hoc judge, Deputy Registrar P. Mahoney
Judgment May 10, 2001
The failure by United Kingdom authorities to provide children with appropriate protection against serious, long-term neglect and abuse amounted to inhuman and degrading treatment in breach of article 3 of the European Convention on Human Rights. The European Court of Human Rights so held unanimously, in a case relating to child care proceedings.
The Court also held, by 15 votes to 2, that the applicants had not been afforded an effective remedy, as guaranteed by article 13 of the Convention, in respect of the breach of article 3 due to the lack of appropriate means to determine the local autority's responsibility for the damage suffered as well as the impossibility of obtaining an enforceable award of compensation resulting therefrom.
As to alleged violations of the right to a fair trial and the right to respect for family life, guaranteed respectively by articles 6 and 8 of the Convention, the Court found, by 12 votes to 5, that article 6 had not been breached, and, unanimously, that no separate issues arose under article 8.
The applicants, four siblings, Z, a girl born in 1982, A, a boy born in 1984, B, a boy born in 1986 and C, a girl born in 1988 were all British nationals.
In October 1987, the applicants' family was referred to the social services by its health visitor because of concerns about the children, including reports that Z was stealing food.
Over the next four-and-a-half years, the social services monitored the family and provided various forms of support to the parents. During that period, problems continued.
In October 1989, when investigating a burglary, the police found the children's rooms in a filthy state, the mattresses being soaked with urine.
In March 1990, it was reported that Z and A were stealing food from bins in the school. In September 1990, A and B were reported as having bruises on their faces.
On a number of occasions, it was reported that the children were locked in their rooms and were smearing excrement on the windows.
Finally, on June 10, 1992, the children were placed in emergency foster care on the demand of their mother who said that, if they were not removed from her care, she would batter them.
The consultant psychologist who examined the children found that the older three were showing signs of serious psychological disturbance and noted that it was the worst case of neglect and emotional abuse she had seen.
The Official Solicitor, acting for the applicants, commenced proceedings against the local authority claiming damages for negligence on the basis that the authority had failed to have proper regard for the children's welfare and to take effective steps to protect them.
Following proceedings which terminated in the House of Lords, the applicants' claims were struck out: see X and Others v Bedfordshire County Council ((1995) 2 AC 633).
Lord Browne-Wilkinson held, among other things, that public policy considerations were such that local authorities should not be held liable in negligence in respect of the exercise of their statutory duties safeguarding the welfare of children under the Children Act 1989.
In its judgment, the European Court of Human Rights held:
I Alleged violation of article 3
Article 3 enshrined one of the most fundamental values of a democratic society, prohibiting in absolute terms torture or inhuman or degrading treatment or punishment.
States which had ratified the European Convention on Human Rights were bound to ensure that individuals within their jurisdiction were not subjected to inhuman or degrading treatment, including such ill-treatment administered by private individuals: see A v UK (Case No 100/1997/884/1096) (The Times October 1, 1998; Reports of Judgments and Decisions 1998-VI, paragraph 22).
Those measures should provide effective protection, in particular, of children and other vulnerable people and included reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge: see, mutatis mutandis, Osman v UK (Case No 87/1997/871/1083) (The Times November 5, 1998; Reports 1998-VIII, paragraph 116).
There was no dispute that the neglect and abuse suffered by the four child applicants reached the threshold of inhuman and degrading treatment.
The Government did not contest the Commission finding that the treatment suffered by the four applicants reached the level of severity prohibited by article 3 and that the state failed in its positive obligation under article 3 to provide them with adequate protection against inhuman and degrading treatment.
That treatment was brought to the attention of the local authority, at the earliest in October 1987, which was under a statutory duty to protect the children and had a range of powers available to it, including removing them from their home. The children were however only taken into emergency care, at the insistence of their mother, on April 30, 1992.
Over the intervening period, they had been subjected in their home to what the child consultant psychiatrist who examined them referred to as horrific experiences.
The Criminal Injuries Compensation Board had also found that the children had been subject to appalling neglect over an extended period and suffered physical and psychological injury directly attributable to a crime of violence.
The Court acknowledged the difficult and sensitive decisions facing social services and the important countervailing principle of respecting and preserving family life.
The present case, however, left no doubt as to the failure of the system to protect the applicants from serious, long-term neglect and abuse. Accordingly, there had been a violation of article 3.
II Alleged violation of article 8
Having regard to its finding of a violation of article 3, the Court found, unanimously, that no separate issue arose under article 8.
III Alleged violation of article 6
Concerning applicability, the Court was satisfied that there was a serious and genuine dispute about the existence of the right asserted by the applicants under the domestic law of negligence and that the applicants had, on at least arguable grounds, a claim under domestic law. Article 6 was therefore applicable.
Concerning compliance, the Court found that the outcome of the domestic proceedings brought was that the applicants, and any children with complaints such as theirs, could not sue a local authority in negligence for compensation, however foreseeable, and severe the harm suffered and however unreasonable the conduct of the local authority in failing to take steps to prevent that harm.
However, that did not result from any procedural bar or from the operation of any immunity which restricted access to court. The striking-out of the applicants' claim resulted from the application by the domestic courts of substantive law principles and it was not for the European Court of Human Rights to rule on the appropriate content of domestic law.
None the less, the applicants were correct in their assertions that the gap they had identified in domestic law was one that gave rise to an issue under the Convention, but in the Court's view it was an issue under article 13, not article 6.1.
The applicants' complaints were essentially that that they had not been afforded a remedy in the courts for the failure to ensure them the level of protection against abuse to which they were entitled under article 3.
Considering that it was under article 13 that the applicants' right to a remedy should be examined, the Court found, with Judges Rozakis, Palm, Thomassen, Casdevall and Kovler dissenting, no violation of article 6.
IV Alleged violation of article 13
Where failure by the authorities to protect people from the acts of others was alleged, there should be available to the victim or the victim's family a mechanism for establishing any liability of state officials or bodies for acts or omissions involving the breach of their rights under the Convention.
Furthermore, in the case of a breach of articles 2 and 3, which ranked as the most fundamental provisions of the Convention, compensation for the non-pecuniary damage flowing from the breach should in principle be available as part of the range of redress.
The applicants had argued that, in their case, an effective remedy could only be provided by adversarial court proceedings against the public body responsible for the breach.
The Court noted that the UK Government had conceded that the range of remedies at the disposal of the applicants was insufficiently effective and that, in the future, under the Human Rights Act 1998, victims of human rights breaches would be able to bring proceedings in courts empowered to award damages.
The Court found that the applicants did not have available to them an appropriate means of obtaining a determination of their allegations that the local authority had failed to protect them from inhuman and degrading treatment or the possibility of obtaining an enforceable award of compensation for the damage suffered thereby. Consequently, they were not afforded an effective remedy in respect of the breach of article 3 and accordingly the Court found, Judges Rozakis and Palm dissenting, article 13 had been violated.
V Application of article 41
The Court awarded as pecuniary damage: £8,000 to Z, £100,000 to A, £80,000 to B, and £4,000 to C. The Court also awarded £32,000 to each applicant for non-pecuniary damage and a total of £39,000 for costs and expenses.