In the case of Z and Others v. the United Kingdom,
The European Court of Human Rights, sitting as a Grand Chamber composed of the following judges:
Mr L. Wildhaber, President,
Mrs E. Palm,
Mr C.L. Rozakis,
Mr J.-P. Costa,
Mr L. Ferrari Bravo,
Mr L. Caflisch,
Mr P. Kuris,
Mr J. Casadevall,
Mr B. Zupancic,
Mrs N. Vajic,
Mr J. Hedigan,
Mrs W. Thomassen,
Mrs M. Tsatsa-Nikolovska,
Mr E. Levits,
Mr K. Traja,
Mr A. Kovler,
Lady Justice Arden, ad hoc judge,
and also of Mr P.J. Mahoney, Deputy Registrar,
Having deliberated in private on 28 June and 11 October 2000 and on 4 April 2001,
Delivers the following judgment, which was adopted on the last-
There appeared before the Court:
(a) for the Government
Ms S. McGrory, Foreign and Commonwealth Office, Agent,
Mr D. Anderson QC, Foreign and Commonwealth Office,
Ms J. Stratford, Foreign and Commonwealth Office, Counsel,
Ms S. Ryan, Foreign and Commonwealth Office,
Ms J. Gray, Foreign and Commonwealth Office,
Mr M. Murmane, Foreign and Commonwealth Office, Advisers;
(b) for the applicants
Mr B. Emmerson QC, Counsel,
Ms P. Wood, Solicitor,
Mrs M. Maughan, Solicitor,
Ms E. Gumbel QC,
Ms N. Mole, of the AIRE Centre, Advisers.
The Court heard addresses by Mr Emmerson and Mr Anderson.
I. THE CIRCUMSTANCES OF THE CASE
– Z, a girl born in 1982;
– A, a boy born in 1984;
– B, a boy born in 1986;
– C, a girl born in 1988.
"... My starting point is that the Acts in question are all concerned to establish an administrative system designed to promote the social welfare of the community. The welfare sector involved is one of peculiar sensitivity, involving very difficult decisions how to strike the balance between protecting the child from immediate feared harm and disrupting the relationship between the child and its parents. In my judgment in such a context it would require exceptionally clear statutory language to show a parliamentary intention that those responsible for carrying out these difficult functions should be liable in damages if, on subsequent investigation with the benefit of hindsight, it was shown that they had reached an erroneous conclusion and therefore failed to discharge their statutory duties. ...
When one turns to the actual words used in the primary legislation to create the duties relied upon in my judgment they are inconsistent with any intention to create a private law cause of action."
"I turn then to consider whether, in accordance with the ordinary principles laid down in Caparo  2 AC 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  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  2 AC 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."
"The Board Member who assessed these cases recognised that the children were exposed to appalling neglect over an extended period but explained to their advisers that the Board could not make an award unless it was satisfied on the whole available evidence that an applicant had suffered an injury – physical or psychological – directly attributable to a crime of violence ... He was nevertheless satisfied, that setting aside 'neglect' the children had some physical and psychological injury inflicted upon them as enabled him to make an award to each child ..."
II. RELEVANT DOMESTIC LAW
A. Local authority's duties in respect of child care
Sections 1 and 2 of the Child Care Act 1980 provided that:
"1. It shall be the duty of every local authority to make available such advice, guidance and assistance as may promote the welfare of children by diminishing the need to receive or keep them in care.
- (1) Where it appears to a local authority with respect to a child in their area appearing to them to be under the age of seventeen -
(a) that he has neither parent nor guardian or has been and remains abandoned by his parents or guardian or is lost;
(b) that his parents or guardian are, for the time being or permanently, prevented by reason of mental or bodily disease or infirmity or other incapacity or any other circumstances from providing for his proper accommodation, maintenance and upbringing; and
(c) in either case, that the intervention of the local authority under this section is necessary in the interests of the welfare of the child, it shall be the duty of the local authority to receive the child into their care under this section."
"17. Provision of services for children in need, their families and others
(1) It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part) -
(a) to safeguard and promote the welfare of children within their area who are in need; and
(b) so far as is consistent with that duty, to promote the upbringing of such children by their families,
by providing a range and level of services appropriate to those children's needs.
(2) For the purpose principally of facilitating the discharge of their general duty under this section, every local authority shall have the specific duties and powers set out in Part I of Schedule 2.
(10) For the purposes of this Part a child shall be taken to be in need if -
(a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining a reasonable standard of health or development without the provision for him of services by a local authority under this Part;
(b) his health or development is likely to be significantly impaired or further impaired, without the provision for him of such services; or
(c) he is disabled ...
(11) ...; and in this Part
'development' means physical, intellectual, emotional, social or behavioural development; and
'health' means physical or mental health."
"20(1) Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of -
(a) there being no person who has parental responsibility for him;
(b) his being lost or having been abandoned; or
(c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.
(4) A local authority may provide accommodation for any child within their area (even though a person who has parental responsibility for him is able to provide him with accommodation) if they consider that to do so would safeguard or promote the child's welfare."
"47(1) Where a local authority -
(b) have reasonable cause to suspect that a child who lives or is found, in their area is suffering, or is likely to suffer, significant harm,
the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child's welfare.
(8) Where, as a result of complying with this section, a local authority conclude that they should take action to safeguard or promote the child's welfare they shall take action (so far as it is within their power and reasonably practicable for them to do so)."
B. Complaints procedure
"Review of cases and inquiries into representations
(3) Every local authority shall establish a procedure for considering any representations (including any complaint) made to them by -
(a) any child ... who is not being looked after by them but is in need;
(b) a parent of his;
(e) such other person as the authority consider has a sufficient interest in the child's welfare to warrant his representations being considered by them,
about the discharge by the authority of any of their functions under this Part in relation to the child.
(4) The procedure shall ensure that at least one person who is not a member or officer of the authority takes part in -
(a) the consideration; and
(b) any discussions which are held by the local authority about the action (if any) to be taken in relation to the child in the light of this consideration.
(7) Where any representation has been considered under the procedure established by the local authority under this section, the authority shall -
(a) have due regard to the findings of those considering the representation; and
(b) take such steps as are reasonably practicable to notify (in writing) -
(i) the person making the representation;
(ii) the child (if the authority consider that he has sufficient understanding); and
(iii) such other persons (if any) as appear to the authority to be likely to be affected,
of the authority's decision in the matter and their reasons for taking that decision and of any action which they have taken, or propose to take.
(8) Every local authority shall give such publicity to their procedure for considering representations under this section as they consider appropriate."
"81. (1) The Secretary of State may cause an inquiry to be held into any matter connected with -
(a) the function of the social services committee of a local authority, in so far as those functions relate to children;
(1) If the Secretary of State is satisfied that any local authority has failed, without reasonable excuse, to comply with any of the duties imposed on them by or under this Act he may make an order declaring that authority to be in default with respect to that duty.
(3) Any order under subsection (1) may contain such directions for the purpose of ensuring that the duty is complied with, within such period as may be specified in the order, as appears to the Secretary of State to be necessary.
(4) Any such directions shall, on the application of the Secretary of State, be enforceable by mandamus."
C. Actions for damages against the local authority
– 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 plc v. Dickman ( 2 Appeal Cases 605).
"(1) Although no claim in damages lay in respect of decisions by a local authority in the exercise of a statutory discretion, if the decision complained of was so unreasonable that it fell outside the ambit of the discretion conferred, there was no a priori reason for excluding common law liability. In the instant case, the giving of information to the parents was part and parcel of the defendants' performance of their statutory powers and duties, and it had been conceded that it was arguable that those decisions fell outside the ambit of their discretion. Accordingly, since it had also been conceded that the damage to the children was reasonably foreseeable and that there was sufficient proximity, the question for the court was whether it was just and reasonable to impose a duty of care on the council or the social worker. Having regard to the fact that common law duty of care would cut across the whole statutory set up for the protection of children at risk, that the task of the local authority and its servants in dealing with such children was extraordinarily difficult and delicate, that local authorities might adopt a more defensive approach to their duties if liability in damages were imposed, that the relationship between parents and social workers was frequently one of conflict and that the plaintiff children's injuries were compensatable under the Criminal Injuries Compensation Scheme, it was not just and reasonable to do so. It followed that no duty of care was owed to the plaintiff parents who in any event were secondary victims in respect of their claim for psychiatric illness ...
(2) (Stuart-Smith LJ dissenting) It was arguable that the policy considerations against imposing a common law duty of care on a local authority in relation to the performance of its statutory duties to protect children did not apply when the children whose safety was under consideration were those in respect of whom it was not performing any statutory duty. Accordingly, since in the instant case, the plaintiff children were not children for whom the council had carried out any immediate caring responsibilities under the child welfare system but were living at home with their parents, and express assurances had been given that a sexual abuser would not be placed in their home, their claim should proceed ..."
"(1) Although the word 'immunity' is sometimes incorrectly used, a holding that it is not fair, just and reasonable to hold liable a particular class of defendants whether generally or in relation to a particular type of activity is not to give immunity from a liability to which the rest of the world is subject. It is a prerequisite to there being any liability in negligence at all that as a matter of policy it is fair, just and reasonable in those circumstances to impose liability in negligence. (2) In a wide range of cases public policy has led to the decision that the imposition of liability would not be fair and reasonable in the circumstances, e.g. some activities of financial regulators, building inspectors, ship surveyors, social workers dealing with sex abuse cases. In all these cases and many others the view has been taken that the proper performance of the defendant's primary functions for the benefit of society as a whole will be inhibited if they are required to look over their shoulder to avoid liability in negligence. In English law the decision as to whether it is fair, just and reasonable to impose a liability in negligence on a particular class of would-be defendants depends on weighing in the balance the total detriment to the public interest in all cases from holding such class liable in negligence as against the total loss to all would-be plaintiffs if they are not to have a cause of action in respect of the loss they have individually suffered. (3) In English law, questions of public policy and the question whether it is fair and reasonable to impose liability in negligence are decided as questions of law. Once the decision is taken that, say, company auditors though liable to shareholders for negligent auditing are not liable to those proposing to invest in the company (see Caparo Industries plc v. Dickman  1 All ER 568,  2 AC 605), that decision will apply to all future cases of the same kind. The decision does not depend on weighing the balance between the extent of the damage to the plaintiff and the damage to the public in each particular case."
D. Striking-out procedure
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
A. Submissions of the parties
B. The Court's assessment
IV. ALLEGED VIOLATION OF 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."
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
"If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."
A. Pecuniary damage
(i) Z was described as having made a recovery from the serious depressive illness suffered at the time of her removal into care. While she was no longer suffering from any psychiatric illness, she had emotional, social and practical difficulties far beyond those normally affecting a girl of her age and was statistically vulnerable to anxiety and perhaps depressive illness in adult life. Her problems were classified as being of moderate severity. It was estimated that she would need psychotherapeutic treatment, outside the National Health Service, estimated at 60 to 100 sessions costing 70 to 90 pounds sterling (GBP) per session, to cope with her vulnerability, particularly at periods of transition. She was likely to remain vulnerable on the labour market, though it was anticipated that she would be able to take on further education, sustain her own mental health and enter the workforce. On her behalf, her representatives claimed GBP 9,000 for the cost of future psychiatric treatment, and GBP 40,000 to offset her handicap on the labour market, a total of GBP 49,000.
(ii) A had failed to appear for an interview with Dr Harris-Hendriks, who also commented on the lack of detailed information concerning periods spent by A in care. She had, however, interviewed him on behalf of the local authority in May 1993 and had some records concerning his past treatment and problems. On that basis, she concluded that he was suffering from long-term psychiatric illness and had a poor prognosis for recovery. His chances of fitting into the normal school system remained very poor. He was prone to aggressiveness and had difficulty with everyday tasks. He was currently suffering from a reactive attachment disorder, resulting directly from severe parental neglect and abuse. The prognosis for the future was extremely bleak and he was likely to require intermittent hospitalisation. He was seriously handicapped on the labour market and was unlikely ever to be able to hold down a job. Assuming that he might otherwise have been able to obtain low-paid manual employment earning GBP 15,000 per year, and a normal working life to age 65, and taking into account uncertainties and early settlement, he claimed GBP 150,000 in loss of future earnings. As he had a substantial and continuing need for psychiatric treatment outside the National Health Service (NHS), he claimed GBP 50,000 as a minimum estimate for future treatment. This made a total of GBP 200,000.
(iii) B was still suffering from untreated post-traumatic stress disorder and a chronic, generalised anxiety disorder. He had horrific nightmares and, if left untreated, was likely to continue in the same disturbed emotional state. He required open-ended psychiatric treatment into adult life, outside the limited provision of the NHS. This was estimated at a cost of
GBP 50,000 minimum. He is vulnerable in terms of both schooling and employment opportunities because of a chronic psychiatric disorder and limited social skills. His prospects of future employment were not as bleak as those of A, but he was likely to have substantial interruptions in his employment. On the assumption of six gaps of one year, on an average labourer's wage of GBP 15,000 per year, he claimed GBP 90,000. This made a total of GBP 140,000.
(iv) C was described as happy in her adoptive home, though carrying a substantial burden about her origins and reminders of them. She was recurrently angry and anxious about her natural mother. She had some remaining behavioural problems which were likely to be containable with good substitute parenting. She was, however, more liable than other children to anxiety and there was a statistical risk of depression in adult life. She did not currently require psychiatric treatment although provision should be made for treatment in adolescence and adulthood. At a recommended 30 to 50 sessions at GBP 70 to 90, a claim was made for GBP 4,500 for future psychiatric treatment. GBP 10,000 was claimed for loss of future earnings, making a total of GBP 14,500.
The reports commented that all the children would have benefited from compensation for their claims in 1994 as this would have allowed additional psychotherapeutic help, improving their prognosis. In A's case, his difficulties had been exacerbated by this lack of help while appropriate psychiatric, educational and environmental help might have substantially improved his prognosis. In B's case, more psychotherapeutic help could have reduced his current vulnerability and given a less gloomy prognosis. The reports also deplored that the psychotherapeutic referrals recommended for A and B in 1993 (for both) and 1998 (for B) had not been pursued by the local authority on their behalf, and noted that one of the social workers had been told that there was no time or money for this work to be done.
2. The Government
The report on A was in their view particularly unsatisfactory as it was issued without A having appeared for interview and without full information about his history. While he was not referred to a special clinic as suggested, he did receive therapeutic work in the community where he lived between 1996 and 1998. There was no or little basis for the assumption that his difficulties were exacerbated by the failure of his earlier compensation claim.
The report on B was similarly highly speculative and unsubstantiated, with regard to the alleged adverse impact of the lack of compensation. Its comments on his educational difficulties were inconsistent.
The report on C indicated that she was not psychiatrically ill and was coping well, rendering the conclusion that she had emotional and practical difficulties beyond the average girl of her age difficult to understand. The statements concerning likely future need and alleged impact of the failure of the compensation claim were unsupported by the evidence.
B. Non-pecuniary damage
According to the assessment of Dr Black, Z, A and B had suffered psychiatric damage falling at the upper end of the severe bracket. They exhibited "marked problems" in their ability to cope with life and in their relationships with family, friends and those with whom they came into contact. A and B in particular had a poor prognosis and there was a likelihood of future vulnerability. C had suffered damage in the "moderately severe" bracket. Although she presented significant problems in the areas above, she had a more favourable prognosis.
Having regard to the levels of awards in such cases in the domestic courts, the applicants considered that a reasonable sum would be GBP 35,000 for Z, GBP 45,000 for A, GBP 40,000 for B, and GBP 25,000 for C.
3. The Court's assessment
C. Costs and expenses
D. Default interest
FOR THESE REASONS, THE COURT
(a) that the respondent State is to pay the applicants, within three months, the following amounts:
(i) GBP 8,000 (eight thousand pounds sterling) to Z, GBP 100,000 (one hundred thousand pounds sterling) to A, GBP 80,000 (eighty thousand pounds sterling) to B, and GBP 4,000 (four thousand pounds sterling) to C in respect of pecuniary damage;
(ii) GBP 32,000 (thirty-two thousand pounds sterling) to each applicant for non-pecuniary damage;
(iii) GBP 39,000 (thirty-nine thousand pounds sterling) in respect of costs and expenses, inclusive of VAT;
(b) that simple interest at an annual rate of 7.5% shall be payable from the expiry of the above-mentioned three months until settlement;
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 10 May 2001.
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:
(a) concurring opinion of Lady Justice Arden as to Article 6;
(b) concurring opinion of Lady Justice Arden as to Article 41, joined by Mr Kovler;
(c) partly dissenting opinion of Mr Rozakis joined by Mrs Palm;
(d) partly dissenting opinion of Mrs Thomassen joined by Mr Casadevall and Mr Kovler.
CONCURRING OPINION OF LADY JUSTICE ARDEN
AS TO ARTICLE 6
I agree that Article 6 of the Convention is applicable in this case and that it is not violated for the reasons given by the majority. I attach particular importance to the majority's affirmation of the well-established principle of Convention case-law that Article 6 does not guarantee any particular content for civil rights and obligations (see paragraphs 87, 98, 100 and 101 of the judgment). In the present case the applicants failed to obtain any remedy under the domestic law because the domestic courts held that they had no cause of action in English law (X v. Bedfordshire County Council  2 Appeal Cases 633).
Founding themselves upon the erroneous proposition as a matter of domestic law that they had some general right to sue in negligence where the defendant's act had caused damage and there was sufficient proximity, the applicants sought to argue that the decision of the English courts amounted to a sweeping or blanket immunity. I agree with the conclusion, in paragraph 98 of the judgment, that the facts of this case do not support that argument. In my view, when the courts in England, proceeding incrementally under the common law system of judicial law-making, hold that a hitherto unconsidered category of harm does not, as a matter of law, fall within the scope of the tort of negligence, they cannot properly be described as creating an "immunity", whether blanket or limited (see the speech of Lord Browne-Wilkinson in Barrett v. the London Borough of Enfield  3 Weekly Law Reports 79, paragraph 65 of the judgment in the present case). What the decision of the House of Lords in the present case did was to determine a legal issue fixing the limits on the substantive content of a domestic "civil right". In any event the decision was fully and carefully reasoned. It could not be regarded as the product of arbitrariness and it applied only to closely defined circumstances (see paragraphs 98-99 of the judgment).
Paragraph 98 of the judgment refers to Fayed v. the United Kingdom
(judgment of 21 September 1994, Series A no. 294-B). In that case the Court contemplated the possibility that there might be a violation of the right of access to a court if, for example, a State could remove from the jurisdiction of the courts a whole range of civil claims, or confer immunities from civil liability on large groups or categories of persons (ibid., pp. 49-50, § 65). At the same time, however, the Court also stated that the Convention enforcement bodies could not create, by way of interpretation of Article 6, a substantive civil right which had no legal basis in the State concerned. Yet that is what the applicants are inviting the Court to do in the present case. Once the conclusion is reached that the right on which the applicants seek to rely has no legal basis in national law, the question of whether there was an "immunity" such as to rely on the principle referred to in Fayed strictly does not arise.
In Fayed the Court did not settle the question whether the operation of a defence to a claim in defamation conferred by English law on a public officer was such as to attract the application of the right of access to a court under Article 6 § 1 or, rather, the substantive right to respect for one's private life under Article 8. Instead, it chose to "proceed on the basis that Article 6 § 1 [was] applicable to the facts of the case" (ibid., pp. 50-51,
§ 67). It explained that it did so as a matter of procedural convenience because the same central issues of legitimate aim and proportionality would have been raised under Article 8, and because the parties' arguments had been directed solely to Article 6 § 1. The result in that case does not, therefore, set any precedent for the applicability of Article 6 § 1 or detract from the principle to which, as stated, I attach particular importance, namely that Article 6 does not guarantee any particular content for civil rights and obligations (see paragraphs 87, 98, 100 and 101 of the present judgment).
Article 41 of the Convention enables the Court in appropriate cases to "afford just satisfaction to the injured party". The judgment of the Court awards two sums to each applicant by way of just satisfaction: one sum in respect of pecuniary damage and the other sum in respect of non-pecuniary damage. In the case of pecuniary damage, each applicant is awarded a different sum. However, in respect of non-pecuniary damage, each applicant is awarded an identical amount. Thus, with regard to non-pecuniary damage, the applicants' cases are not assessed individually. The applicants are treated as having suffered equal distress. In addition, no distinction is drawn between the suffering of any one applicant as against that of any other applicant, despite the differences between the cases of the applicants.
I agree that the just satisfaction which the Court awards to the applicants for the violation of Article 13 should include a sum on account of non-pecuniary damage in addition to the sums awarded in respect of pecuniary damage. I have no doubt that such an award is justified. However, in my opinion, the Court should not award the same sum to each applicant but rather should make a separate award to each applicant, reflecting the suffering of that applicant.
As paragraph 128 of the judgment shows, the applicants themselves have sought different amounts: GBP 35,000 for Z, GBP 45,000 for A, GBP 40,000 for B, and GBP 25,000 for C.
All the applicants endured suffering before they were taken into care. After they were taken into care they were assessed by consultant child psychiatrists: in 1993 by Dr Black, and in 2000 by Dr Harris-Hendriks. The diagnosis of A indicates that his case is the most serious. In 1993 he was diagnosed as suffering from post-traumatic stress disorder, and in 2000 he was diagnosed as suffering from a personality disorder for which the prognosis was unfavourable. B was considered to have a post-traumatic stress disorder in both 1993 and 2000, as well as social difficulties, and in addition in 2000 a generalised anxiety disorder, but the prognosis for him was uncertain rather than unfavourable. On the other hand, the initial diagnosis in 1993 of Z as suffering from a severe depressive illness has not been borne out, though it is considered that she may suffer anxiety and perhaps depressive illness in later life. In 2000 C's difficulties were described as moderate; she was regarded as vulnerable to anxiety and likely to need psychotherapeutic help in the future, but she had not suffered any psychiatric disorder.
In the circumstances my preferred course would have been to have performed a separate assessment of the amount to be awarded for non-pecuniary damage to each applicant. Having considered the evidence on the Article 41 issue, I consider that an appropriate amount would have been GBP 25,000 for Z, GBP 40,000 for A, GBP 35,000 for B, and GBP 15,000 for C.
With great regret I am unable to follow the assessment and the conclusions of the majority of the Court that, in the instant case, there has been no violation of Article 6 § 1 of the Convention in so far as access of the applicants to a court of law is concerned. The reasons which have led me to depart from the majority's findings are as follows:
I am prepared to subscribe to this alternative approach, on which the majority has also embarked – without, however, making a clear distinction between the absence of access and the circumstances justifying a proportional denial of it. However, I am not prepared to accept that the facts of the case may lead us to the conclusion that the applicants were correctly and proportionately deprived of their right because the public-interest considerations prevailed over their legitimate expectation to have their claims examined on the merits.
First of all, it transpires clearly from the facts of the case that the right to sue in negligence was an established civil right in domestic law, that the public-care authorities accepted that they had been negligent in their behaviour, and that there was a proximate relationship in accordance with the criteria determined by national law. Further, the way that the judicial authorities dealt with the matter shows that the case presented serious issues that warranted serious examination: as the applicants pointed out, the judge who made the care orders specifically released the case papers to the Official Solicitor so that he could investigate and, if appropriate, pursue negligence claims; the Official Solicitor considered that there were arguable claims in negligence; the Legal Aid Board granted legal aid to pursue the claims to the House of Lords; and the Court of Appeal, which rejected the claims by a majority, granted leave to appeal to the House of Lords, the precondition for such leave being that the claim was arguable in domestic law; the Master of the Rolls in the Court of Appeal found that there was a duty of care, stating the contrary to be "an affront to common sense"; and, in previous cases, local authorities had settled negligence claims on the basis that they were potentially liable.
So, the only reason which eventually led to this case being struck out was an interpretation by the national courts, and particularly the House of Lords, based on an argument of expediency and as a matter of policy. Indeed, by applying the third test of the English law of torts on negligence – namely, whether it was fair, just and reasonable to impose liability on the public-care authorities in the circumstances of the case, the House of Lords found that it would be detrimental to the exercise of the duties of the public body in question to impose upon them the excessive burden of tortious liability for acts or omissions in the discharge of their duties. The position taken by the House of Lords in this matter was novel and tantamount to a refusal to extend tortious liability for civil wrongs arising out of a duty of care by local authorities for child care.
It is not the Court's task to enter into an examination of the social-policy considerations which led the national courts to interpret the third test in the way they did. Yet, it is its task to look at the circumstances surrounding the particular decisions taken and to assess their significance when applying its own test of proportionality; and it seems difficult for me to accept that in view of the importance attached to the facts of the case by the various judicial and other bodies, and the novel character of the House of Lords' ruling, the creation of new case-law barring the examination of the case on its merits was proportionate to the need for adequate protection of individuals (and society generally) against negligence by public authorities.
Secondly, and more importantly, this Court has found a violation of Article 3 of the Convention on the basis of a finding that "the neglect and abuse suffered by the four applicant children reached the threshold of inhuman and degrading treatment" (see paragraph 74 of the judgment). Again it is difficult for me to accept that serious matters of public concern – as are all matters involving a violation of Article 3 – may be left outside the protection of independent and impartial tribunals established by law, and providing all the guarantees required by Article 6 of the Convention. The majority, however, holds a different view since it accepts that, even in circumstances where there has been a violation of the substance of Article 3, the Contracting States "are afforded some discretion as to the manner in which they conform to their Convention obligations ..." provided that some effective remedy exists to deal with individual complaints concerning inhuman and degrading treatment. Hence, they conclude that, in the present situation, Article 13, but not Article 6, has been violated.
It seems to me that the present case may be considered as the locus classicus of the limits afforded to States by the Convention to determine the modalities of access to domestic courts. Our case-law has repeatedly underlined the fact that the right to a tribunal is not unlimited – and rightly so. Yet, the Court is free to determine in which instances a Contracting State oversteps its freedom of choice and becomes liable under Article 6; and one criterion which can readily assist the Court in drawing the line between instances where a State retains its discretion, and instances where a State is bound to offer judicial guarantees to those falling under its jurisdiction, is the severity of the complaint before the national authorities. If the complaint may involve a violation of core Convention rights – such as Articles 2 and 3 – the Court is bound, to my mind, to find that the States are obliged not simply to offer an effective remedy (as required by Article 13), but a judicial remedy covering all the requirements of Article 6.
"... The Court considers that its reasoning in Osman was based on an understanding of the law of negligence ... which has to be reviewed in the light of the clarifications subsequently made by the domestic courts and by notably the House of Lords. The Court is satisfied that the law of negligence as developed in the domestic courts since the case of Caparo Industries plc ... and as recently analysed in the case of Barrett ... includes the fair, just and reasonable criterion as an intrinsic element of the duty of care and that the ruling of law concerning that element in this case does not disclose the operation of an immunity. In the present case, the Court is led to the conclusion that the inability of the applicants to sue the local authority flowed not from an immunity but from the applicable principles governing the substantive right of action in domestic law. ..."
I do not think that in Osman the Court was very much concerned with this subtle issue raised by this judgment in the above-mentioned paragraph. The Court in Osman never said that the jurisdictional bar was an immunity to be distinguished from the applicable principles governing the substantive right of action in domestic law. It simply considered that "the application of the [exclusionary] rule in this manner without further enquiry into the existence of competing public interest considerations only serves to confer a blanket immunity on the police for their acts and omissions during the investigation and suppression of crime and amounts to an unjustifiable restriction on an applicant's right to have a determination on the merits of his or her claim against the police in deserving cases" (see Osman, cited above, p. 3170, § 151 – emphasis added). It went on to express the opinion that, in cases where the harm sustained by a complainant was of the most serious nature, examination of the merits could not be automatically excluded by the application of a rule which "amounts to the grant of an immunity to the police". In conclusion, the Court in Osman was mainly concerned with the fact that the applicants in a very serious case of possible substantive human-rights violations did not have the opportunity to air their grievances before a court of law; it was not concerned with whether the reason behind it being impossible to examine the case on the merits was or was not the result of an immunity provided for by national law acting as a procedural bar having such an effect. It simply found that the impossibility amounted to a grant of an immunity. Under these circumstances how can we distinguish between Osman and the present case?
For all the above reasons I believe that Article 6 (access to a court) has been violated and, hence, I consider that Article 13 does not raise a separate ground for violation, Article 6 being the lex specialis in this case.
I am unable to agree with the majority that there has been no violation of Article 6 of the Convention in this case.
The Court is unanimous that the authorities failed to protect the applicants, young children, from inhuman and degrading treatment and its majority observes that the applicants were denied "a determination of their allegations that the local authority failed to protect them from inhuman and degrading treatment and the possibility of obtaining an enforceable award of compensation for the damage suffered thereby" (see paragraph 111 of the judgment).
Despite the severe negligence by the authorities, which allowed the ill-treatment of the applicants to continue for so many years and caused the applicants physical and psychiatric injuries amounting to a violation of Article 3, the applicants could not hold the authorities accountable in domestic court proceedings. By reference to policy factors (for example, difficulties of attributing responsibility between different agencies, sensitivity of decisions, risk of inculcating in local authorities a cautious and defensive approach to exercise of their duties, risk of costly and vexatious litigation) the domestic courts decided that the local authority could not be held liable in negligence in the exercise of their statutory powers to protect children. De facto, the local authority was thus declared to be immune for claims because they had acted in the exercise of their statutory powers to protect children.
In my view the applicants' rights under Article 6 were thereby violated as they had no access to a court in order to have a decision on their claims, which were arguable under national law. The facts of this case and the way in which domestic law operated are very similar to those in Osman v. the United Kingdom (judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII) where the applicants' claims for negligence against the police were struck out for policy reasons relating to the perceived interests in preventing the efficiency of the police service being undermined by litigation. In Osman the Court found that the application of an exclusionary rule barring liability of the police for negligence in the exercise of their functions of investigating and preventing crime constituted a disproportionate restriction on access to a court for the applicants. The majority's reasons for not following the decisions in Osman (see paragraph 100 of the judgment) are not, to my mind, convincing. There seem to have been no striking or significant changes in the law of negligence since that case and all relevant matters concerning the content of domestic law had been brought to the attention of the Court by the parties in Osman. I am of the opinion that the conclusion under Article 6 in this case must be the same.
It is true that, as the majority observes in paragraph 95 of the judgment, the applicants were not prevented in any practical manner from bringing their claims before the domestic courts. The case was litigated up to the House of Lords, the applicants being provided with legal aid for that purpose. Nor is it the case that any procedural rules of limitation had been relied on. However, the notion of "access to a court" under Article 6 guarantees not only that the applicants have their claims brought before the courts, but implies also the right to have those claims examined on the basis of the facts before the courts and to have them decided on.
I agree with the majority saying in paragraph 98 that Article 6 does not in itself guarantee any particular content for civil rights and obligations in national law. But where there is an arguable claim under domestic tort law as in this case (see paragraph 89 of the judgment), requiring that the applicants obtain a decision by a court on the liability of those responsible for allowing their ill-treatment to continue for many years, cannot, in my opinion, be said to determine the content of domestic law.
I would observe that the Court's supervision of the activities of national courts in defining "access" or "liability" seems to take place on a wider basis. In Fayed v. the United Kingdom (judgment of 21 September 1994, Series A no. 294-B, pp. 49-50, § 65), the Court said:
"Certainly the Convention enforcement bodies may not create by way of interpretation of Article 6 § 1 a substantive civil right which has no legal basis in the State concerned. However, it would not be consistent with the rule of law in a democratic society or with the basic principle underlying Article 6 § 1 – namely that civil claims must be capable of being submitted to a judge for adjudication – if, for example, a State could, without restraint or control by the Convention enforcement bodies, remove from the jurisdiction of the courts a whole range of civil claims or confer immunities from civil liability on large groups or categories of persons ..."
To reach its conclusion that the decision by the House of Lords did not amount to the granting of an immunity, the Court's majority observes, in paragraph 99, that in cases concerning the liability of local authorities in child-care matters brought after the applicants' case, the domestic courts have held that a duty of care may arise. But this does not change the fact that an immunity was conferred on the authorities in the applicants' case. Apparently the immunity applied in the applicants' case was found no longer appropriate in subsequent cases, the national courts taking into account, amongst other factors, the Court's approach in Osman, cited above.
While it has been alleged by the Government that a finding of a violation in this case would undermine the striking-out procedure used to avoid pointless litigation of baseless claims, I consider that this argument has not been substantiated by the material placed before the Court. The domestic courts have continued to strike cases out after the Court's judgment in Osman. A finding of a violation in this case would mean only that these applicants' claims, which involved serious ill-treatment contrary to a fundamental human right, should not have been struck out on the basis of general policy arguments. This Court has found no denial of access to a court where judges have struck out cases where there has been no proximity or foreseeability (see, for example, Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000-V, and Bromiley v. the United Kingdom (dec.), no. 33747/96, 23 November 1999, unreported).
The majority of the Court finds that the applicants were not afforded an effective remedy in respect of the breach of Article 3 and they conclude that Article 13, not Article 6, was violated.
My conclusion would be that the "remedy" to which the applicants were entitled should have been access to a court in order to have their damages settled. Restrictions to access to a court in order to protect the interests of the local authority exercising their powers to protect children may be necessary and justified under Article 6. However, I would say that in this case, where it is agreed that the child applicants were victims of the failure of the system to protect them from serious, long-term neglect and abuse, the immunity conferred on the local authority because of policy reasons cannot be seen as proportionate.
Therefore, I believe that Article 6 was violated.
I voted for a violation of Article 13 because I agree with the majority that the applicants, whose rights under Article 3 of the Convention were violated, had no effective remedy before the national authorities.