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Law - ECHR - Tp and KM
(Application no. 28945/95)
JUDGMENT
STRASBOURG
10 May 2001
This judgment may be subject to editorial revision.
In the case of T.P. and K.M. 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 22 November 2000 and 4 April
2001,
Delivers the following judgment, which was adopted on the
last mentioned date:
1. The case was referred to the Court, in accordance with
the provisions applicable prior to the entry into force of
Protocol No. 11 to the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”),
by the European Commission of Human Rights (“the Commission”)
on 25 October 1999 (Article 5 § 4 of Protocol No. 11
and former Articles 47 and 48 of the Convention).
2. The case originated in an application (no. 28945/95) against
the United Kingdom of Great Britain and Northern Ireland lodged
with the Commission under former Article 25 of the Convention
by two British nationals, T.P. and K.M., on 2 August 1995.
3. The applicants allege that K.M. had been unjustifiably
taken into care and separated from her mother T.P. and that
they had had no access to court or effective remedy in respect
of that interference with their rights.
4. The Commission declared the application admissible on 26
May 1998. In its report of 10 September 1999 (former Article
31 of the Convention), it expressed the opinion by 17 votes
to 2 that there had been a violation of Article 8 of the Convention;
by 18 votes to 1 that there had been no violation of Article
6 in respect of the first applicant T.P.; by 10 votes to 9
that there had been no violation of Article 6 in respect of
the second applicant K.M.; by 18 votes to 1 that there had
been a violation of Article 13 in respect of the first applicant;
and by 10 votes to 9 that no separate issue arose under Article
13 in respect of the second applicant.
5. Before the Court the applicants, who had been granted legal
aid, were represented by Mr Robert Sherman, counsel practising
in London, and Ms Nuala Mole from the AIRE Centre, London.
The United Kingdom Government (“the Government”)
were represented by their Agent, Ms Susan McGrory of the Foreign
and Commonwealth Office. Having originally been designated
before the Commission by the initials T.P. and K.M., the President
of the Court acceded to the applicants’ request not
to have their names disclosed (Rule 47 § 3).
6. On 6 December 1999, the panel of the Grand Chamber determined
that the case should be decided by the Grand Chamber (Rule
100 § 1 of the Rules of Court). The composition of the
Grand Chamber was determined according to the provisions of
Article 27 §§ 2 and 3 of the Convention and Rule
24 of the Rules of Court. The President of the Court decided
that in the interests of the proper administration of justice,
the case should be assigned to the Grand Chamber that had
been constituted to hear the case of Z. and Others v. the
United Kingdom, application no. 29392/95 (Rules 24, 43 §
2, and 71). Sir Nicolas Bratza, the judge elected in respect
of the United Kingdom, who had taken part in the Commission’s
examination of the case, withdrew from sitting in the Grand
Chamber (Rule 28). The Government accordingly appointed Lady
Justice Arden to sit as an ad hoc judge (Article 27 §
2 of the Convention and Rule 29 § 1).
7. The applicants and the Government each filed a memorial.
Third-party comments were also received from Professor Geraldine
Van Beuren, Director of the Programme on International Rights
of the Child, University of London, who had been given leave
by the President to intervene in the written procedure (Article
36 § 2 of the Convention and Rule 61 § 3).
8. A hearing took place in public in the Human Rights Building,
Strasbourg, on 28 June 2000 (Rule 59 § 2).
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 R. SHERMAN QC, Counsel,
Ms N. MOLE, of the AIRE Centre,
Mr H. DERVISH, Solicitor, Advisers.
The Court heard addresses by Mr Anderson and
Mr Sherman.
9. T.P., the first applicant, gave birth to her daughter,
K.M., the second applicant, on 29 January 1983. T.P. was then
aged 17 years.
10. Between 1984 and 1987, the local authority, the London
Borough of Newham, suspected that the second applicant was
being sexually abused, partly as a result of the second applicant
having a persistent urinary tract infection, partly because
of her behaviour, including a remark made at the children’s
hospital where she was admitted for treatment. She had told
a social worker that B., the first applicant’s then
boyfriend, had “hurt my bum”. In or about March
1986, surgery took place to re-implant the second applicant’s
right ureter into her bladder. At a date unspecified, she
also had surgery to remove a false second kidney. She continued
to have urinary problems and associated infections.
11. There were case conferences held by the local authority
on 13 May 1986, 26 June 1986 and 8 October 1986. Concern was
expressed, inter alia, about the applicants’ home situation,
where there was “a steady stream of young men”
and about the first applicant’s ability to protect the
second applicant and general parenting skills. The social
worker Mr P. had mentioned the possibility of sexual abuse
with the first applicant. In a later affidavit, he stated
that she appeared angry that it was a concern and claimed
that she never left K.M. alone with anyone and that K.M. would
tell her if anyone hurt her.
12. In June 1987, during a visit to their home, social workers
obtained information regarding their living arrangements including
the fact that XY, the first applicant’s boyfriend, lived
with the applicants. Concern was expressed regarding the first
applicant’s care of her daughter and a case conference
was held on 2 July 1987 to which the first applicant was not
invited. As a result of the conference, the second applicant
was placed on the Child Protection Register under the category
of emotional abuse. It was also agreed at the conference that
the social worker Mr P would obtain the first applicant’s
consent for the second applicant to have a disclosure interview
at a child guidance clinic. A further medical examination
of the second applicant at the children’s hospital discovered
no medical cause for her recurrent urinary infection. The
hospital considered it necessary that the second applicant
should be admitted to hospital for further tests but agreed
to await the outcome of the interview at the child guidance
clinic.
13. On 13 November 1987, at a child guidance clinic, the second
applicant was interviewed by a consultant child psychiatrist,
Dr V., employed by Newham health authority. The social worker,
Mr P., was present during the interview whilst the first applicant
waited in an adjoining room. The interview was recorded on
videotape. The second applicant was aged four years and nine
months at this time.
14. In the course of the interview, the second applicant disclosed
that she had been abused by someone named X. The first applicant’s
boyfriend, XY, shared the same first name, X, as the abuser.
The transcript recorded inter alia:
“Dr V.: (referring to a drawing made by K.M.) Whose
face is that then?... Is that anyone, anybody special that
face or just any face?
K.M.: X’s.
Dr V.: X’s face OK. Then who’s X? Is X someone
you know?
K.M.: My mum’s X.
Dr V.: Oh your mum’s X. What is that mummy’s boyfriend.
Is it?
K.M. shakes her head.
...
Dr V.: ... Is X still living at home with you?
K.M.: shakes her head.
Dr V.: He’s not.
K.M.: Thrown him out my mum.
Dr V.: Your mum throwed him out did she.
...
K.M.: He’s coming in tomorrow.
Dr V.: He’s coming in no more.
K.M.: No he’s coming in tomorrow.
Dr V.: He’s coming in tomorrow. What X.
K.M. nods.”
15. The first applicant was then interviewed, again on video,
and informed that the second applicant had disclosed that
she had been sexually abused by XY. She was told that the
second applicant could not be returned home but would be taken
to a local hospital for further examination. When the first
applicant asked whether or not her daughter was being taken
into care, she received no reply. Dr V. also told the first
applicant that she could see the recording of the interview
with her daughter at some point.
16. After the interview, the first applicant asked her daughter
if she had been abused by XY. The first applicant stated that
the second applicant denied that she had been abused by XY
and told this to Mr P. When the first applicant became agitated
and angry, Dr V. and Mr P. both concluded that the first applicant
would be unable to protect the second applicant from abuse
and that she was attempting to persuade the second applicant
to retract her allegation. Mr P. and Dr V. came to the conclusion
that it would be necessary to remove the second applicant
from the care of her mother immediately. In comments made
to the first applicant in her interview, the possibility that
in due course she could see the video of the disclosure interview
was referred to by Dr V. and Mr P.
17. Later, on 13 November 1987, the local authority applied
successfully to Newham magistrates court for a place of safety
order. The local authority stated that the second applicant
had been abused, had identified XY as the abuser and there
was a risk of further direct abuse or that the first applicant
would pressure the second applicant into retracting her allegation.
The first applicant was not in court. A place of safety order
was granted for 28 days.
18. On 18 November 1987, the second applicant was examined
by a doctor who found that there were signs consistent with
anal interference but no significant vaginal findings.
19. On 24 November 1987, the first applicant, having excluded
all men from her home, applied to the High Court for the second
applicant to be made a ward of court. The local authority
attended the application and argued that they should have
care and control of the second applicant in order to protect
her from the risk of abuse. The local authority was awarded
care and control of the second applicant and the first applicant
was granted limited access. The local authority did not volunteer
the video of the interview with the child.
20. Contact between the first and the second applicant was
severely restricted between November 1987 and November 1988.
The first applicant was permitted initially two hours of supervised
contact with her daughter each week at the foster parent’s
home. Following concerns that the first applicant was trying
to induce her daughter to retract her evidence and was causing
her distress, that access was altered to no telephone calls
and one supervised access visit per week at the social services’
office. The second applicant had no contact with her extended
family, including her maternal grandmother who was terminally
ill and died whilst the second applicant was in the care of
the local authority.
21. During this period the second applicant continued to have
urinary problems, including incontinence. In April 1988, she
underwent another operation, which improved her condition,
though she remained subject to frequent infections.
22. During 1988, the first applicant gave birth to a son,
D., fathered by XY. D. was made a ward of court but the local
authority did not apply to remove D. from the care of his
mother and XY.
23. In or about October 1988, Dr B., who had been instructed
on behalf of the first applicant in order to assist her in
reaching a conclusion regarding the allegations that the second
applicant had been sexually abused, obtained the consent of
Dr V. to view the video recording of the second applicant’s
disclosure interview. In his letter dated 17 October 1988
to the first applicant’s solicitor, he gave his firm
opinion that the interview disclosed a high probability that
the second applicant had been abused sexually and that there
appeared to be little doubt that she was identifying the mother’s
boyfriend as the perpetrator. He recommended that the first
applicant be allowed to see the video. He referred to Dr V.’s
continual insistence that the court would not approve of the
first applicant seeing the video and gave his own opinion
that the best interests of the second applicant would be served
by her mother having access to the fullest possible information.
Dr V. informed Dr B. that she would not consent to the first
applicant having access to the video until after the full
hearing in the wardship trial.
24. On 1 November 1988, during the wardship proceedings regarding
D., Registrar Conn ordered that the video be disclosed within
seven days. The health authority and Dr V. issued a summons
proposing to intervene in the proceedings and applying for
the video and transcript not to be made available to the first
applicant.
25. In her affidavit of 8 November 1988, Dr V. expressed her
opinion that medical confidentiality be attached to the video
and that it should only be disclosed if in the interests of
the child, which the circumstances showed was not the case.
“It is my professional belief that for the parties to
see the video recording is not in the interests of children,
and in particular not in this case. The possible harm to children
arises from them being in the position whereby their words
or actions, given in confidence, may control events or decisions.
Anger, unforgiveness or victimisation may well be directed
at the child especially if the purpose of the viewing is to
enable a party to seek to establish his or her innocence of
alleged Child Sexual abuse or to confirm a party’s view
that no Child Sexual abuse has taken place and that the child
must be lying.”
She had no objection to the lawyers and medical experts seeing
the tape and transcript.
26. By reports dated 11 November 1988, Dr B. and a social
worker for the local health authority gave their opinions
that it was good and desirable practice for parents to see
the interviews involving their children. Dr B. noted generally
that the mothers of abused children would often be in a position
to clarify details, including the identity of the alleged
abuser. He also understood that the video had already been
shown by the police to XY in the course of their investigation
into the allegations of abuse and considered that it would
appear against natural justice to deny the first applicant
similar opportunity. He saw no risk of harm flowing to the
second applicant from such disclosure.
27. On an unspecified date at or about that time, the first
applicant’s solicitors had sight of the transcript.
The transcript showed that the second applicant had shaken
her head when asked whether the abuser was living at home
and that she had identified her abuser as having been thrown
out of the house by the first applicant. These matters, which
were inconsistent with the identification of XY as the abuser,
were raised by the first applicant’s solicitors with
the local authority on or about 11 November 1988, when the
summons concerning the video was to be heard.
28. On 21 November 1988, at a hearing in the High Court the
local authority recommended that the second applicant be rehabilitated
to the first applicant and XY for a trial period of four to
six months at which point a final proposal would be made.
In a report dated 18 November submitted for that hearing,
a social worker for the local authority stated that the fact
that the second applicant had been sexually abused had been
acknowledged by all the psychiatrists in the case, that there
was now doubt as to the identity of the abuser but that whoever
it was, the second applicant had suffered a seriously damaging
experience from which her mother had been unable to protect
her. While there had been doubts as to the first applicant’s
ability to be a “good enough parent”, it was noted
that her situation had changed – she had “matured”,
had had a second child and was in a stable relationship with
the second child’s father. If over the trial period,
any further abuse occurred, it was proposed that the second
applicant be removed permanently with a view to adoption and
that D.’s future be assessed. In her affidavit of 21
November 1998, the first applicant said that she had been
informed, and believed, that the video and transcript had
been reviewed by the local authority who had concluded that
her boyfriend XY was no longer a suspected abuser. Mr Justice
Lincoln ordered by consent that the second applicant remain
a ward of court and that interim care and control be committed
to the local authority who had leave to place her with the
first applicant. The matter was adjourned for a period of
not more than six months.
29. The second applicant remained with the first applicant
from that time onwards. In about November 1989, the final
hearing took place in the High Court. The local authority
advised the judge that there was no longer any concern that
required the second applicant to remain a ward of court. The
wardship was discharged.
30. On 8 November 1990, the applicants issued proceedings
making allegations of negligence and breach of statutory duty
against the local authority, the central allegation being
that the social worker, Mr P., and the psychiatrist, Dr V.,
failed to investigate the facts with proper care and thoroughness
and failed to discuss their conclusions with the first applicant.
The health authority and Dr V. were also named as defendants.
The applicants claimed that as a result of their enforced
separation each of them had suffered a psychiatric disorder.
31. Both applicants were seen by a psychiatrist who diagnosed
that they were suffering from psychological disturbance known
as anxiety neurosis. He issued two reports, one dated 21 February
1991 and the second undated, concerning the effects of the
separation and proceedings.
32. On 19 November 1992, Master Topley struck out the application
as revealing no cause of action on the basis that Dr V. enjoyed
immunity in suit as a witness or potential witness in proceedings
concerning the abuse of the second applicant and that this
acted to bar the applicants’ claims. The applicants’
appeal to the High Court was dismissed on 17 March 1993 by
Judge Phelan who held that no claim could arise from any alleged
right to custody of a child which would give rise to an award
of damages.
33. In the Court of Appeal, the High Court’s striking
out decision was upheld on 23 February 1994. The majority
found that no claim for breach of statutory duty in respect
of sections 1 and 18 of the Child Care Act 1980 could arise,
due to the general nature of the duty, the imprecise terms
in which it was couched and the fact that the alleged breach
of duty took place before the child was taken into care under
the statutory duty in question. They held in respect of the
claims that Mr P. and Dr V. were liable in damages as professional
persons who caused personal injuries that the local authority
arranged for the disclosure interview to enable to decide
whether or not to intervene in the performance of its statutory
functions. The psychiatrist Dr V. was acting in order to advise
the local authority and owed a duty of care to the local authority,
not to the first or second applicant. Nor could the local
authority be held liable for the negligent mistake made by
the social worker in carrying out the statutory function of
the local authority to make enquiries. Reference was made
to the policy considerations weighing against imposing liability
in such matters. However, the Master of the Rolls, Sir Thomas
Bingham, dissented and stated that he believed that it could
be argued that a common law duty of care was owed to the second
applicant by the psychiatrist and the local authority (reported
as M v. Newham LBC; X v. Bedfordshire CC (CA) 2WLR 554). Leave
was granted to appeal to the House of Lords.
34. On appeal to the House of Lords, the decision of the majority
of the Court of Appeal was upheld on 29 June 1995. Lord Browne-Wilkinson
delivered the leading judgment concerning three cases, the
Bedfordshire case, the Newham case (the applicants’
case) and the Dorset case (reported as X and Others v. Bedfordshire
County Council [1995] 3 AER 353).
35. As regarded the claims for breach of statutory duty made
in both the Newham and Bedfordshire cases, Lord Browne-Wilkinson
held:
“... 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.”
36. In respect of the applicants’ claim in the Newham
case that the local authority and the health authority were
vicariously liable for the actions of the social worker, Mr
P., and psychiatrist Dr V. respectively, Lord Browne-Wilkinson
said as follows:
“In the Newham case [the applicant’s case] the
pleadings and Mr Munby’s submissions make it clear how
the case is put. The social worker and the psychiatrist, as
professionals, owed a personal duty to the first plaintiff,
the child, and to the second plaintiff, the mother, to exercise
reasonable professional skills in the conduct of the interview
with the child and to make proper enquiries. The social worker
and the psychiatrist were each personally in breach of this
duty, for which breach their employers ... are vicariously
liable. ...”
Like the majority in the Court of Appeal, I cannot accept
these arguments. The social workers and the psychiatrists
were retained by the local authority to advise the local authority,
not the plaintiffs. The subject matter of the advice and activities
of the professionals is the child ... the fact that the carrying
out of the retainer involves contact and relationship with
the child cannot alter the extent of the duty owed by the
professionals under the retainer from the local authority
...
In my judgment in the present cases, the social workers and
the psychiatrist did not, by accepting the instructions of
the local authority assume any general professional duty of
care to the plaintiff children ...
Even if contrary to my view the social workers and psychiatrist
would otherwise have come under a duty of care to the plaintiffs,
the same considerations which have led me to the view that
there is no direct duty of care owed by the local authorities
apply with at least equal force to the question whether it
would be just and reasonable to impose such a duty of care
on the individual social workers and the psychiatrist. ...
In the Newham case [the applicant’s case] it is not
alleged that the borough council was under any direct duty
of care to the plaintiffs: the case is based solely on the
vicarious liability of the council and the health authority
for the negligence of their servants.”
37. In the Bedfordshire case, where the applicant children
had argued that the local authority owed them a direct duty
of care in the exercise of their child care functions, Lord
Browne-Wilkinson stated, insofar as relevant, as follows:
“I turn then to consider whether, in accordance with
the ordinary principles laid down in Caparo [1990] 2 A.C.
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 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 [1994] 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 [1990] 2
A.C. 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.”
A. Local authority’s duties in respect of child care
38. Prior to the coming into force of the current legislation,
the Children Act 1989, on 14 October 1991, the local authority’s
duty in respect of child care was governed by the Child Care
Act 1980.
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.
2(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.”
B. Place of safety orders
39. Under section 28(1) of the Children and Young Persons’
Act 1969 any person, including a local authority could apply
to a magistrate for the authority to detain a child and take
him/her to a place of safety. There was power to grant the
application if the magistrate was satisfied that the applicant
had reasonable cause to believe inter alia that the child’s
proper development was being avoidably prevented or neglected
or that he/she was being ill-treated or exposed to moral danger.
The order could last a maximum of 28 days, with no possibility
of extension. Before the expiry of the order, it was necessary
for the local authority to institute care proceedings under
section 1 of the 1969 Act or to make the child a ward of court
if it wished either to intervene in the exercise of parental
control.
40. The place of safety order was replaced with the emergency
protection order under section 44 of the Children Act 1989,
which came into force on 14 October 1991. This provided for
removal of a child on emergency grounds for a maximum period
of 72 hours.
C. Complaints procedures concerning local authorities
41. Section 76 of the Child Care Act 1980 permitted the Secretary
of State to cause an inquiry to be held into any matter relating,
inter alia:
“the functions of the social services committee of a
local authority, in so far as those functions relate to children.”
42. Pursuant to Part III of the Local Government Act 1974,
as amended, the Local Commissioner for Administration (the
Local Government Ombudsman) had the function, inter alia,
of investigating written complaints by persons who claim to
have sustained injustice “in consequence of maladministration
in connection with ... action taken in exercise of administrative
functions of local authorities”. On conclusion of an
investigation, Local Government Ombudsmen could recommend
an appropriate remedy, including the payment of compensation,
where maladministration was found.
D. Wardship
43. The power of the High Court to make a child a ward of
court derives from its inherent jurisdiction. The effect is
that the court assumes responsibility for the child and may
make orders concerning any aspect of the child’s life.
The child’s welfare must be the first consideration
of the court.
44. As soon as the originating summons was issued, the custody
of the child vested in the court. From that moment, the parties
to the proceedings, including the local authority, only had
such power and authority over the child as was conferred by
the court.
45. In England and Wales, there is no single tort which imposes
liability to pay compensation for civil wrongs. Instead there
are a series of separate torts, for example, trespass, conversion,
conspiracy, negligence, defamation etc.
46. Negligence arises in specific categories of situations.
These categories are capable of being extended. There are
three elements to the tort of negligence: a duty of care,
breach of the duty of care and damage. The duty of care may
be described as the concept which defines the categories of
relationships in which the law may impose liability on a defendant
in damages if he or she is shown to have acted carelessly.
To show a duty of care, the claimant must show that the situation
comes within an existing established category of cases where
a duty of care has been held to exist. In novel situations,
in order to show a duty of care, the claimant must satisfy
a threefold test, establishing:
– that damage to the claimant was foreseeable;
– that the claimant was in an appropriate relationship
of proximity to the defendant;
– 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 v. Dickman ([1990] 2 AC 605).
47. If the courts decide that as a matter of law there is
no duty of care owed in a particular situation, that decision
will (subject to the doctrine of precedent) apply in future
cases where the parties are in the same relationship.
48. The decision in X and Others v. Bedfordshire County Council
([1995] 3 AER 353) is the leading authority in the United
Kingdom in this area. It held that local authorities could
not be sued for negligence or for breach of statutory duty
in respect of the discharge of their functions concerning
the welfare of children. The leading judgment is reported
at length in the facts above (see paragraphs 45-46).
49. Since the X. and Others case, there has been two further
significant judgments regarding the extent of liability of
local authorities in child care matters.
50. The Court of Appeal gave judgment in the W and Others
v. Essex County Council ([1998] 3 All ER 111, judgment of
2 April 1998). This case concerned the claims by a mother
and father (first and second plaintiffs),
who had agreed to act as foster parents, that the defendant
local authority placed G, a 15 year old boy, in their home
although they knew that he was a suspect or known sexual abuser.
During G’s stay in their home, the plaintiffs’
three children (fourth to sixth plaintiffs) were all sexually
abused and suffered psychiatric illness. The plaintiffs brought
an action against the local authority and the social worker
involved, claiming damages for negligence and for negligent
misstatement. On the defendants’ application to strike
out the statement of claim as disclosing no reasonable cause
of action, the judges struck out the parents’ claims
but refused to strike out the claims of the children. The
Court of Appeal upheld his decision. The headnote for the
judgment summarised the Court of Appeal’s findings as
follows:
“(1) ... 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 the 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 ...
(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 ...”
51. On further appeal by the parents, the House of Lords on
16 March 2000 held that it was impossible to say that the
psychiatric injury allegedly suffered by the parents, flowing
from a feeling that they had brought the abuser and their
children together or from a feeling of responsibility for
not having detected the abuse earlier, was outside the range
of psychiatric injury recognised by the law, nor was it unarguable
that the local authority had owed a duty of care to the parents.
The parents’ claim could not be said to be so certainly
or clearly bad that they should be barred from pursuing it
to trial and their appeal was allowed.
52. The House of Lords gave judgment on 17 June 1999 in Barrett
v. the London Borough of Enfield ([1999] 3 WLR 79). That case
concerned the claims of the plaintiff, who had been in care
from the age of ten months to seventeen years, that the local
authority had negligently failed to safeguard his welfare
causing him deep-seated psychiatric problems. The local authority
had applied to strike out the case as disclosing no cause
of action. The House of Lords, upholding the plaintiff’s
appeal, unanimously held that the case of X and Others v.
Bedfordshire County Council did not in the circumstances of
this case prevent a claim of negligence being brought against
a local authority by a child formerly in its care.
53. Lord Browne-Wilkinson, in his judgment in that case, commented
as follows on the operation of the duty of care:
“(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 [1990] 1 All
ER 568, [1990] 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.”
F. Striking out procedure
54. At the relevant time, Order 18 rule 19 of the Rules of
the Supreme Court provided that a claim could be struck out
if it disclosed no reasonable cause of action. This jurisdiction
has been described as being reserved for “plain and
obvious cases”, in which a claim was “obviously
unsustainable”.
55. In applications to strike out, the courts proceeded on
the basis that all the allegations set out in the claimant’s
pleadings were true. The question for the courts was whether,
even assuming that the claimant could substantiate all factual
allegations at trial, the claim disclosed a reasonable cause
of action.
56. The striking out procedure, now contained in the Part
3.4(2) of the Civil Procedure Rules in force since 1999, is
regarded as an important feature of English civil procedure,
performing the function of securing speedy and effective justice,
inter alia by allowing it to be decided promptly which issued
need full investigation and trial and disposing summarily
of the others. By means of this procedure, it can be determined
at an early stage, with minimal cost to the parties, whether
the facts as pleaded reveal a claim existing in law.
57. The applicants complained that K.M. had been unjustifiably
removed from her mother, T.P.’s care in violation of
their right to respect for family life. Article 8 as relevant
provides:
“1. Everyone has the right to respect for his ... family
life...
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance
with the law and is necessary in a democratic society in the
interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder
or crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others.”
58. The Government disputed that there had been any failure
to comply with the requirements of Article 8 of the Convention,
while the Commission found by 17 votes to 2 that there had
been a violation of Article 8 in that the first applicant
was not provided with a proper, fair or adequate opportunity
to participate in the decision-making procedures following
the removal of the second applicant as an emergency measure.
59. The applicants submitted that the removal of the second
applicant was not necessary or supported by relevant and sufficient
reasons and that the procedures for removing the child completely
disregarded requirements in Article 8 that there must be inherent
procedural safeguards. They considered that the removal was
not in accordance with law as the decision of the court was
based on the local authority’s wrongful assertions that
the factual basis existed justifying an emergency order. Since
the abuser was not living in the house, there was no immediate
emergency and the matter should properly have been dealt with
at a hearing on notice, at which the first applicant could
appear and be represented. They submitted that the ex parte
place of safety order procedure was abused in practice, being
imposed for too long a period, without the grounds being sufficiently
focussed on emergencies.
60. The applicants submitted that the authorities’ reaction
to the disclosure interview was also incompatible with the
requirements of Article 8. Dr V. and Dr P. should have picked
up the second applicant’s references to X as not necessarily
referring to the first applicant’s boyfriend and taken
further investigative steps to establish who X was. It was
indicated in the interview that the abuse had stopped and
the abuser thrown out of the house. The first applicant’s
reaction of shock and anger to the interpretation placed on
the interview that her boyfriend was the abuser was natural
in the circumstances. The removal of the second applicant
was a manifest error which should not have occurred.
61. The applicants argued that the authorities failed to pay
proper attention to what the child told them and failed, for
almost a year, to give the first applicant the opportunity
to view the evidence on which they based their conclusions.
They adopted the Commission’s views that it was vital
for parents to be fully informed about serious allegations
relating to the abuse of their children and that the authorities
should have made the video material available to the first
applicant as soon as practically possible.
62. The Government submitted that the removal of the second
applicant was in accordance with law and pursued the legitimate
aim of protecting her welfare, as it was implemented to protect
her from the risk of sexual abuse the occurrence of which
evidence strongly supported. The emergency nature of the measure
had been justified by the clear and strong indications of
abuse given by the second applicant and the legitimate concern
by the local authority as to whether the first applicant was
able to protect her from further abuse.
63. The Government denied that the first applicant was not
provided with a proper, fair or adequate opportunity to participate
in the decision-making procedures following the removal of
the second applicant, as found by the Commission. Though the
place of safety order was made ex parte, it was for a maximum
of one month and the applicant could apply to the court at
any time to have the order revoked. She was also able, as
she did, to invoke the wardship jurisdiction of the High Court.
The first applicant could have applied to that court for,
inter alia, care and control of the second applicant to be
returned to her or for the second applicant to reside with
her. They submitted that it was open to the first applicant
to put such evidence as she considered appropriate before
the court with a view to supporting these applications.
64. The Government pointed out that the first applicant could
have applied to the court for disclosure of the video. She
was represented by lawyers throughout and she had not provided
any explanation for why this step was not taken. Securing
the video was the obvious starting point for any challenge
to the justification for the separation of mother and child.
They emphasised that all involved in the case were convinced
that the second applicant had been a victim of sexual abuse
and was in need of protection which her mother could not provide.
In that context the identity of the abuser was a secondary
issue. Furthermore, when the mistake concerning the identification
of the abuser came to light, the subsequent steps taken were
speedy, adequate and not disputed by the first applicant.
65. The Court notes that it is not disputed that the measures
by which the second applicant was removed into care by the
local authority until she was returned home a year later disclosed
an interference with the applicants’ right to respect
for their family life under Article 8 § 1 of the Convention.
It has therefore examined whether this interference complied
with the requirements of the second paragraph of Article 8,
namely, whether it was “in accordance with the law”,
pursued an aim or aims that are legitimate under paragraph
2 of this provision and can be regarded as “necessary
in a democratic society”.
1. “In accordance with the law”
66. The applicants disputed that the removal of the second
applicant was lawful as it was based on a wrongful assessment
of the need for an emergency measure derived from the mistaken
interpretation by Dr V. and Mr P. of the second applicant’s
disclosures as to the identity of the abuser.
67. The Court recalls that the place of safety order was issued
by the court under section 28 of the Children and Young Persons
Act 1969. The local authority had applied to the court, stating
that the second applicant had been abused, had identified
XY as the abuser and there was a risk of further direct abuse
or that the first applicant would pressure the second applicant
into retracting her allegation (see paragraph 17 above). The
court had jurisdiction to issue the order where the party
applying to the court had reasonable cause to believe inter
alia that the child’s proper development was being avoidably
prevented or neglected or that he/she was being ill-treated
(see paragraph 39 above). Since it is accepted that there
was strong evidence that the second applicant had been abused,
the Court is not persuaded that the factual error made by
the local authority as to the identity of the abuser is such
as to deprive the exercise of the court’s power to issue
the order of its basis in domestic law.
68. The removal, and the continuance of the care measure under
the wardship jurisdiction of the High Court, were consequently
“in accordance with the law”.
2. Legitimate aim
69. In the Court’s view, the removal and subsequent
measures were clearly aimed at protecting the “health
or morals” and the “rights and freedoms”
of the child. Accordingly they pursued legitimate aims within
the meaning of paragraph 2 of Article 8.
3. “Necessary in a democratic society”
(a) General principles
70. In determining whether the impugned measures were “necessary
in a democratic society”, the Court will consider whether,
in the light of the case as a whole, the reasons adduced to
justify them were relevant and sufficient for the purposes
of paragraph 2 of Article 8 of the Convention. Undoubtedly,
consideration of what lies in the best interest of the child
is of crucial importance in every case of this kind. Moreover,
it must be borne in mind that the national authorities have
the benefit of direct contact with all the persons concerned.
It follows from these considerations that the Court’s
task is not to substitute itself for the domestic authorities
in the exercise of their responsibilities regarding custody
and access issues, but rather to review, in the light of the
Convention, the decisions taken by those authorities in the
exercise of their power of appreciation (see the Hokkanen
v. Finland judgment of 23 September 1994, Series A no. 299-A,
p. 20, § 55, and, mutatis mutandis, the Bronda v. Italy
judgment of 9 June 1998, Reports of Judgments and Decisions
1998-IV, p. 1491, § 59).
71. The margin of appreciation to be accorded to the competent
national authorities will vary in accordance with the nature
of the issues and the importance of the interests at stake.
Thus, the Court recognises that the authorities enjoy a wide
margin of appreciation, in particular when assessing the necessity
of taking a child into care. However, a stricter scrutiny
is called for in respect of any further limitations, such
as restrictions placed by those authorities on parental rights
of access, and of any legal safeguards designed to secure
an effective protection of the right of parents and children
to respect for their family life. Such further limitations
entail the danger that the family relations between the parents
and a young child would be effectively curtailed (see, amongst
other authorities, the Johansen v. Norway judgment of 7 August
1996, Reports 1996-III, p. 1003, § 64).
72. The Court further recalls that whilst Article 8 contains
no explicit procedural requirements, the decision-making process
involved in measures of interference must be fair and such
as to afford due respect to the interests safeguarded by Article
8:
“[W]hat has to be determined is whether, having regard
to the particular circumstances of the case and notably the
serious nature of the decisions to be taken, the parents have
been involved in the decision-making process, seen as a whole,
to a degree sufficient to provide them with the requisite
protection of their interests. If they have not, there will
have been a failure to respect their family life and the interference
resulting from the decision will not be capable of being regarded
as ‘necessary’ within the meaning of Article 8.”
(see the W. v. the United Kingdom judgment of 8 July 1987,
Series A no. 121-A, pp. 28-29, §§ 62 and 64).
73. It has previously found that the failure to disclose relevant
documents to parents during the procedures instituted by the
authorities in placing and maintaining a child in care meant
that the decision-making process determining the custody and
access arrangements did not afford the requisite protection
of the parents’ interests as safeguarded by Article
8 (see the McMichael v. the United Kingdom judgment of 24
February 1995, Series A no. 307-B, p. 57, § 92).
(b) Application in the present case
74. As concerns the measure taken to remove the second applicant
into care, the Court considers that this was supported by
relevant and sufficient reasons, namely, the strong suspicions
that she had been abused and the doubts which existed as to
the first applicant’s ability to protect her (see paragraphs
10 to 16 above). In that latter context, it may be noted that
the abuse had taken place in the first applicant’s home
without her apparently being aware and that the first applicant’s
reaction, however natural in the circumstances, tended towards
a denial of the allegations. It also appears from the interview
that while at one point the second applicant had described
the abuser as having been thrown out of the house, at another
point she referred to X as coming to the house the next day
(see paragraph 14 above).
75. The Court is not persuaded however that the mistake made
by Dr V. and Mr P. in assuming that the second applicant was
referring to the first applicant’s boyfriend XY was
of such a nature as to deprive the decision to remove the
second applicant into care of a legitimate basis. The second
applicant was less than five years old at the time of the
interview and the process of questioning her was a sensitive
and delicate one, as was interpreting the sense of her responses,
verbally and with regard to her body language. The second
applicant frequently did not speak in grammatical sentences
and appeared to contradict herself on several occasions. The
fact that the second applicant shook her head would not necessarily
indicate an unequivocal denial of the question put. Dr B.,
the consultant psychiatrist instructed by the first applicant,
commented positively on the way in which Dr V. handled the
interview and agreed with her conclusions as to the existence
of the abuse and the identity of the abuser (see paragraph
23 above).
76. The Court finds therefore that the use of the emergency
procedure to take the second applicant into care may be regarded
as a proportionate measure and “necessary in a democratic
society” for protecting the second applicant’s
health and rights.
77. The second applicant remained in care until 21 November
1988, when the High Court ordered that she be returned home.
That decision was
taken shortly after the transcript of the video was disclosed
to the applicant’s solicitor. At that stage it became
apparent that the local authority had mistakenly identified
the abuser X as XY. In recommending that the second applicant
returned home, the local authority also referred to the evidence
that in the intervening period the first applicant had matured
and shown herself more capable of providing a stable and secure
environment for the second applicant. The second applicant
was then returned to the first applicant’s care for
a trial period subject to supervision and review in case of
renewed problems. It was one year before the High Court ended
its supervisory wardship role (see paragraphs 27 to 29 above).
78. The Court reiterates that the seriousness of measures
which separate parent and child requires that they should
not last any longer than necessary for the pursuit of the
child’s rights and that the State should take measures
to rehabilitate the child and parent, where possible (see
the Hokkanen v. Finland judgment, cited above, p. 20, §
55 and the authorities cited there). During the separation,
access between the applicants was severely restricted and
there was no contact with the second applicant’s wider
family. Her grandmother died during this period. Notwithstanding
therefore that the initial measure was justified, the Court
has examined whether the procedures which followed were compatible
with the requirements of Article 8 in ensuring that they protected
the interests of the first applicant and second applicant
in this respect.
79. The Court notes that the Commission criticised the place
of safety order as imposing a measure lasting 28 days. This
was however the maximum length of time possible and a parent
was able to apply to the court within that period to have
the measure lifted. In the present case, the first applicant
brought the matter before the High Court within eleven days.
The Court does not find therefore that the place of safety
order by itself disclosed any disproportionate obstacle to
the first applicant’s ability to challenge the removal
of her daughter into care.
80. The Court does however consider that it is essential that
a parent be placed in a position where he or she may obtain
access to information which is relied on by the authorities
in taking measures of protective care. A parent may claim
an interest in being informed of the nature and extent of
the allegations of abuse made by his or her child. This is
relevant not only to the parent’s ability to put forward
those matters militating in favour of his or her capability
in providing the child with proper care and protection but
also to enable the parent to understand and come to terms
with traumatic events effecting the family as a whole. There
may be instances where disclosure of a child’s statements
may place that child at risk. There can be no absolute right
by a parent to view, for example, the videos of interviews
conducted by medical professionals.
81. Nonetheless, the potential importance of the contents
of such interviews renders it necessary for careful consideration
to be given to whether they should be disclosed to the parents.
In this case the revelations of abuse by the second applicant
as recorded on the video and transcript were relied on by
the local authority in obtaining the emergency measure of
a place of safety order and in justifying the continuation
of care measures before the High Court. The local authority,
which is charged with the duty of protecting the child and
is a party in the court proceedings, may reasonably not be
regarded by a parent as being able to approach the issue with
objectivity. The question whether crucial material should
be disclosed should therefore not be decided by the local
authority, or the health authority responsible for the medical
professional who conducted the interview.
82. The Government have submitted that there was nothing to
stop the first applicant from applying to the High Court for
disclosure of the interview at any point. The applicant responded
that she had no reason to suspect that the interview disclosed
an error of identification by the professionals or that it
would make a difference to her position. The Court considers
that the power of the High Court in its wardship jurisdiction
to take decisions concerning the welfare of the child in local
authority care is an important safeguard of the interests
of parent and child. However, this is not an instance where
it should be the sole responsibility of the parent, or lie
at his or her initiative, to obtain the evidence on which
a decision to remove their child is based. The positive obligation
on the Contracting State to protect the interests of the family
requires that this material be made available to the parent
concerned, even in the absence of any request by the parent.
If there were doubts as to whether this posed a risk to the
welfare of the child, the matter should have been submitted
to the court by the local authority at the earliest stage
in the proceedings possible for it to resolve the issues involved.
83. The Court concludes that the question whether to disclose
the video of the interview and its transcript should have
been determined promptly to allow the first applicant an effective
opportunity to deal with the allegations that her daughter
could not be returned safely to her care. The local authority’s
failure to submit the issue to the court for determination
deprived her of an adequate involvement in the decision-making
process concerning the care of her daughter and thereby of
the requisite protection of their interests. There was in
this respect a failure to respect their family life and a
breach of Article 8 of the Convention.
84. The applicants complained that they had been denied access
to court in determination of their claims of negligence against
the local authority, invoking Article 6 which provides as
relevant in its first paragraph:
“1. 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.”
85. The Government denied that there was any civil right in
issue in the case or any restriction on access. The Commission
found by 10 votes to 9 that there had been a violation of
Article 6 in respect of the second applicant on the basis
that the House of Lords had applied an exclusionary rule concerning
the liability of local authorities in child care matters which
constituted in the circumstances a disproportionate restriction
on her access to court. It found by 18 votes to 1 that there
had been no breach of Article 6 in respect of the first applicant,
whose claims were found to have been dismissed without recourse
to any exclusionary rule.
A. The parties’ submissions
1. The applicants
86. The applicants submitted that their negligence claim was
plainly arguable as a matter of domestic law, relying inter
alia on the Osman case (Osman v. the United Kingdom judgment
of 28 October 1998, Reports 1998-VIII). Negligence was a tort
of general application and there was no prior authority excluding
the courts’ jurisdiction to hold a local authority liable
in the performance of its statutory powers to remove children
into care. There was a strong argument that public policy
considerations required that a duty of care be imposed and
there was no prior decision excluding liability. The applicants
also pointed to the fact that the Legal Aid Board granted
legal aid to pursue the claims to the House of Lords; that
the Court of Appeal granted leave to appeal to the House of
Lords, the precondition for such leave being that the claim
was arguable in domestic law; that the Master of the Rolls,
in the Court of Appeal, found that a duty of care could arguably
arise; and that in previous cases, local authorities had paid
settlements in negligence cases, on the basis that they were
potentially liable. There was a serious dispute in domestic
law therefore as to the existence of any exclusionary principle,
which has continued since and Article 6 was applicable. They
denied that their claims had been restricted to asserting
that the local authority and health authority were vicariously
liable for the negligence of their employees, Mr P. and Dr
V., referring to their written pleadings as covering wider
grounds of liability.
87. In the applicants’ view therefore, the exclusionary
rule applied by the House of Lords permitted the applicants’
claims to be struck out without determining the facts and
without a trial. This applied regardless of the merits or
the seriousness of the harm suffered. Designed to protect
local authorities’ from wasting resources on having
to defend an action at all, this amounted in practical effect
to immunity and acted as a restriction on access to court.
88. The application of a blanket rule which excluded the determination
of the applicants’ claims irrespective of the seriousness
of the harm suffered, the nature and extent of negligence
involved, or the fundamental rights which were at stake, constituted
a disproportionate restriction on their right of access to
court. They emphasised the severity of the damage suffered
by them against which the public policy arguments against
imposition of liability had little weight, namely, the alleged
risk of frivolous litigation, the increased cautiousness of
social services in fulfilling their functions or the difficulty
or the sensitivity of the issues. They referred to the Court’s
finding in the Osman case, that the domestic courts should
be able to distinguish between degrees of negligence or harm
and give consideration to the justice of a particular case
(cited above, § 151). An exclusionary rule on that basis
should be capable of yielding to competing human rights considerations
on the facts of a particular case.
89. The Government submitted that Article 6 guaranteed a fair
trial in the determination only of such civil rights and obligations
as are (at least arguably) recognised at national law. It
does not bear on the substantive question of whether a right
to compensatory damages exists in any given situation. The
proceedings brought by the applicants established that no
right existed. The decision to strike out their claim was
a decision as to the scope of the domestic law. By ruling
that a right of action did not exist in a particular set of
circumstances, the courts were applying substantive limits
to tort liability, as the legislature might do in statute
(see, for example, the Powell and Rayner v. the United Kingdom
judgment of 21 February 1990, Series A no. 172, p. 16, §
36). There was no established cause of action which was restricted.
Accordingly, Article 6 § 1 was not applicable.
90. The Government argued in the alternative that there was
no immunity applied which could be regarded as a restriction
on access to court. The applicants’ claims, relying
on the alleged vicarious liability of the local authority,
had been dismissed on grounds of lack of proximity. There
could in their view be no doubt that the dispute was subject
to a fair and public hearing in compliance with the guarantees
of Article 6. The striking out procedure was an important
way of securing the speedy and cost-effective determination
of cases that were hopeless in law. It achieved those aims
without inhibiting claimants’ rights to present any
arguments to a court in their favour. Thus, as factual matters
were assumed to be those pleaded, the claimants were not prejudiced
by the lack of hearing of evidence, while they could put forward
any arguments in their favour to persuade the court that their
claim was sustainable as a matter of law.
91. Assuming that their arguments on the above failed, the
Government argued that any restriction on access to court
was nonetheless in pursuit of a legitimate aim and proportionate.
It aimed to preserve the efficiency of a vital sector of public
service. The exclusion of liability was strictly limited in
scope to the category of cases to which it applied, actions
for misfeasance, vicarious liability for employees remaining
unaffected. The domestic courts had themselves weighed up
the public policy issues for and against liability in light
of the principles of English tort law and the social and political
philosophy underlying those principles. A very substantial
margin of appreciation would therefore be appropriate in any
international adjudication.
1. Applicability of Article 6 of the Convention
92. The Court recalls its constant case-law to the effect
that “Article 6 § 1 extends only to contestations
(disputes) over (civil) ‘rights and obligations’
which can be said, at least on arguable grounds, to be recognised
under domestic law; it does not itself guarantee any particular
content for (civil) ‘rights and obligations’ in
the substantive law of the Contracting States (see the James
and Others v. the United Kingdom judgment of 21 February 1986,
Series A no. 98, p. 46, § 81; the Lithgow and Others
v. the United Kingdom judgment of 8 July 1986, Series A no.
102, p. 70, § 192; the Holy Monasteries v. Greece judgment
of 9 December 1994, Series A no. 301, p. 37, § 80). It
will however apply to disputes of a “genuine and serious
nature” concerning the actual existence of the right
as well as to the scope or manner in which it is exercised
(Benthem v. the Netherlands judgment of 23 October 1985, Series
A no. 97, p. 15, § 32).
93. In the present case, the applicants were claiming damages
on the basis of alleged breach of statutory duty and negligence,
a tort in English law which is largely developed through the
case-law of the domestic courts.
94. The Court is satisfied that at the outset of the proceedings
there was a serious and genuine dispute about the existence
of the right asserted by the applicants under the domestic
law of negligence, as shown inter alia by the grant of legal
aid to the applicants and the decision of the Court of Appeal
that their claims merited leave to appeal to the House of
Lords. The Government’s submission that there was no
arguable (civil) ‘right’ for the purposes of Article
6 once the House of Lords had ruled that no duty of care arose
has relevance rather to any claims which were lodged or pursued
subsequently by other plaintiffs. The House of Lords’
decision did not remove, retrospectively, the arguability
of the applicants’ claims (see the Le Calvez v. France
judgment of 25 July 1998, Reports 1998-V, § 56). In such
circumstances, the Court finds that the applicants had, on
at least arguable grounds, a claim under domestic law.
95. Article 6 was therefore applicable to the proceedings
brought by these applicants alleging negligence by the local
authority. The Court must therefore examine whether the requirements
of Article 6 were complied with in those proceedings.
96. The Court, in the Golder case, held that the procedural
guarantees laid down in Article 6 concerning fairness, publicity
and expeditiousness, would be meaningless if there was not
protection of the pre-condition for enjoyment of those guarantees,
namely, access to court. It established this as an inherent
aspect of the safeguards enshrined in Article 6, referring
to the principles of the rule of law and the avoidance of
arbitrary power which underlie much of the Convention (see
the Golder v. the United Kingdom judgment of 21 February 1975,
Series A no. 18, pp. 13-18, §§ 28-36).
97. Article 6 § 1 “may ... be relied on by anyone
who considers that an interference with the exercise of one
of his (civil) rights is unlawful and complains that he has
not had the possibility of submitting that claim to a tribunal
meeting the requirements of Article 6 § 1” (see
the Le Compte, Van Leuven and De Meyere v. Belgium judgment
of 23 June 1981, Series A no. 43, § 44). Where there
is a serious and genuine dispute as to the lawfulness of such
an interference, going either to the very existence or the
scope of the asserted civil right, Article 6 § 1 entitles
the individual “to have this question of domestic law
determined by a tribunal” (see the Sporrong and Lönnroth
v. Sweden judgment of 23 September 1982, Series A no. 52,
§ 81; see also the Tre Traktörer AB v. Sweden judgment
of 7 July 1989, Series A no. 159, § 40).
98. The right is not however absolute. It may be subject to
legitimate restrictions, for example, statutory time-limits
or prescription periods, security for costs orders, regulations
concerning minors and persons of unsound mind (see, the Stubbings
and Others v. the United Kingdom judgment of 22 October 1996,
Reports 1996-IV, pp. 1502-3, §§ 51-52; the Tolstoy
Miloslavsky v. the United Kingdom judgment of 13 July 1995,
Series A no. 316-B, pp. 80-81, §§ 62-67; the Golder
judgment, cited above, p. 19, § 39). Where the individual’s
access is limited either by operation of law or in fact, the
Court will examine whether the limitation imposed impaired
the essence of the right and in particular whether it pursued
a legitimate aim and there was a reasonable relationship of
proportionality between the means employed and the aim sought
to be achieved (Ashingdane v. the United Kingdom judgment
of 28 May 1985, Series A no. 93, pp. 24-25, § 57). If
the restriction is compatible with these principles, no violation
of Article 6 will arise.
99. It is claimed by the applicants in this case that the
decision of the House of Lords, finding that the local authority
owed no duty of care, deprived them of access to court as
it was effectively an exclusionary rule, or immunity from
liability, which prevented their claims being decided on the
facts.
100. The Court observes, firstly, that the applicants were
not prevented in any practical manner from bringing their
claims before the domestic courts. Indeed, the case was litigated
with vigour 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 or limitation periods were invoked.
The domestic courts were concerned with the application brought
by the defendants to have the case struck out as disclosing
no reasonable cause of action. This involved the pre-trial
determination of whether, assuming the facts of the applicants’
case as pleaded were true, there was a sustainable claim in
law. The arguments before the courts were therefore concentrated
on the legal issues.
101. Nor is the Court persuaded that the applicants’
claims were rejected due to the application of an exclusionary
rule. The decision of the House of Lords found, applying ordinary
principles of negligence law, that the local authority could
not be held vicariously liable for any alleged negligence
of the doctor and social worker. Lord Browne-Wilkinson noted
that the applicants had not argued any direct duty of care
was owed to them by the local authority (see paragraph 36
above). It cannot therefore be maintained that the applicants’
claims were rejected on the basis that it was not fair, just
and reasonable to impose a duty of care on the local authority
in the exercise of its child care functions. The applicants
have submitted that this ground was included in their original
statement of claim and in the written pleadings on appeal.
Since however this ground was not in fact relied upon in the
proceedings conducted before the House of Lords, the Court
cannot speculate as to the basis on which the claims might
have been rejected if they had been so formulated and argued.
102. The decision of the House of Lords did end the case,
without the factual matters being determined on the evidence.
However, if as a matter of law, there was no basis for the
claim, the hearing of evidence would have been an expensive
and time-consuming process which would not have provided the
applicants with any remedy at its conclusion. There is no
reason to consider the striking out procedure which rules
on the existence of sustainable causes of action as per se
offending the principle of access to court. In such a procedure,
the plaintiff is generally able to submit to the court the
arguments supporting his or her claims on the law and the
court will rule on those issues at the conclusion of an adversarial
procedure (see paragraphs 54 to 56 above).
103. The applicants may not claim therefore that they were
deprived of any right to a determination on the merits of
their negligence claims. Their claims were properly and fairly
examined in light of the applicable domestic legal principles
concerning the tort of negligence. Once the House of Lords
had ruled on the arguable legal issues that brought into play
the applicability of Article 6 § 1 of the Convention
(see paragraphs 92 to 95 above), the applicants could no longer
claim any entitlement under Article 6 § 1 to obtain any
hearing concerning the facts. There was no denial of access
to court and, accordingly, no violation of Article 6 of the
Convention.
104. The applicants complained that they had not been afforded
any remedy for the damage which they had suffered as a result
of the interference by the local authority in their family
life, invoking Article 13 of the Convention which provides:
“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.”
105. The applicants submitted that the rejection of their
claims by the House of Lords deprived them of any effective
remedy within the national legal system for the violation
of Article 8 which they suffered. While the remedy required
by Article 13 need not always be judicial in character, in
their case a judicial determination was required. This was
because the tort of negligence was the only remedy in national
law capable of determining the substance of their complaint
and which (but for the alleged immunity) would closely match
the requirements of the Convention. Also the accountability
of public officials, central to both Articles 8 and 13, required
a right of access to court whereby the individual could hold
the responsible officials to account in adversarial proceedings
and obtain an enforceable order for compensation if the claim
was substantiated. The wording of Article 13 also prohibited
the creation of immunities for public officials and any such
immunity must be regarded as contrary to the object and purpose
of the Convention.
106. The Government which disputed that Article 8 had been
violated submitted that there was no arguable claim of a violation
for the purposes of engaging Article 13. If contrary to that
submission there was an arguable breach, they submitted that
Contracting States were afforded a measure of discretion as
to the manner in which they conformed with their obligation
to provide an effective remedy. They argued that the court
in the wardship proceedings was amply equipped to deal with
the substance of the Article 8 complaint which was the separation
of the first and second applicants, and did in fact deal with
the matter without delay when brought to its attention. In
their view, this was not a case where pecuniary compensation
was a necessary remedy. The harm suffered by the separation
of mother and child was by its nature likely to be irremediable
in terms of damages. There were in any event a number of remedies
available to the applicants which should be taken into account.
The applicants had the possibility of complaining to the Local
Government Ombudsman who had power to investigate alleged
maladministration and recommend an appropriate remedy, including
the payment of compensation. There was also a statutory complaints
procedure under the section 76 of the Child Care Act 1980,
by which the Secretary of State could hold an inquiry into
a local authority’s exercise of its child care functions.
107. As the Court has stated on many occasions, Article 13
of the Convention guarantees the availability at the national
level of a remedy to enforce the substance of the Convention
rights and freedoms in whatever form they might happen to
be secured in the domestic legal order. Article 13 thus requires
the provision of a domestic remedy to deal with the substance
of an “arguable complaint” under the Convention
and to grant appropriate relief, although the Contracting
States are afforded some discretion as to the manner in which
they conform to their Convention obligations under this provision.
The scope of the obligation under Article 13 also varies depending
on the nature of the applicant’s complaint under the
Convention. Nevertheless, the remedy required by Article 13
must be “effective” in practice as well as in
law. (see, amongst other authorities, the Aydin v. Turkey
judgment of 25 September 1997, Reports 1997-VI, pp. 1985-86,
§ 103).
The Court considers that, where an arguable breach of one
or more of the rights under the Convention is in issue, there
should be available to the victim a mechanism for establishing
any liability of State officials or bodies for that breach.
Furthermore, in appropriate cases, compensation for the pecuniary
and non-pecuniary damage flowing from the breach should in
principle be available as part of the range of redress.
108. The applicants have argued that in their case an effective
remedy could only be provided by adversarial court proceedings
against the public body responsible for the breach with the
possibility of obtaining damages. The Government have countered
with the argument that the High Court was able to provide
adequate redress for the essence of the applicants’
complaints by exercising its wardship jurisdiction to bring
their separation to an end and that pecuniary compensation
is not necessary. The Court recalls that it has found a breach
of Article 8 in respect of the procedures following the taking
into care of the second applicant. In particular, it found
that the issue of disclosure of the video of the interview,
and its transcript, should have been dealt with promptly to
allow the first applicant the effective opportunity of meeting
the allegations that her daughter could not be safely returned
to her care. In these circumstances, the exercise of the court’s
powers to return the child almost a year later was not an
effective remedy. It did not provide redress for the psychological
damage allegedly flowing from the separation over this period.
109. The Court considers that the applicants should have had
available to them a means of claiming that the local authority’s
handling of the procedures was responsible for the damage
which they suffered and obtaining compensation for that damage.
It does not agree with the Government that pecuniary compensation
would not provide redress. If, as is alleged, psychiatric
damage occurred, there may have been elements of medical costs
as well as significant pain and suffering to be addressed.
The Court does not consider it appropriate in this case to
make any findings as to whether only court proceedings could
have furnished effective redress, though judicial remedies
indeed furnish strong guarantees of independence, access to
the victim and family and enforceability of awards in compliance
with the requirements of Article 13 (see, mutatis mutandis,
the Klass and Others v. Germany judgment of 6 September 1978,
Series A no. 28, § 67). The possibility of applying to
the ombudsman and to the Secretary of State did not however
provide the applicants with any enforceable right to compensation.
110. The Court finds that in this case the applicants did
not have available to them an appropriate means for obtaining
a determination of their allegations that the local authority
breached their right to respect for family life and the possibility
of obtaining an enforceable award of compensation for the
damage suffered thereby. Consequently, they were not afforded
an effective remedy and there has, accordingly, been a violation
of Article 13 of the Convention.
111. Article 41 of the Convention provides:
“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. Damages
112. The applicants claimed a just and equitable sum in non-pecuniary
loss to reflect the damage caused by the removal of the second
applicant from the first applicant for a year. This had physical
and psychiatric consequences, including the trauma of separation
and the anxiety, insecurity and uncertainty suffered during
the separation. On her return home, the second applicant experienced
a transient emotional disturbance, consisting mainly of manifestations
of anxiety through a range of symptomatic behaviours. In a
report of 21 February 1991, Dr B commented that the second
applicant had settled back into domestic routine and that
though she was not manifesting any particular anxiety at that
time, she might yet undergo delayed emotional reactions to
this most disruptive period of her life both in relation to
the abuse and the unnecessary enforced separation. As regarded
the first applicant, he commented on the anxiety, depression
and despair which she suffered due to events, involving inability
to sleep, proneness to emotional breakdown, intense anxiety,
guilt loss of appetite and weight loss. Though she had become
more settled and confident after her daughter’s return,
she still carried a very bitter anger towards the local authority
and Dr V.
113. As they had been victims of an exceptionally serious
breach of Article 8, spanning a year, the applicants submitted
that a substantial award of compensation was appropriate.
It should also reflect the domestic damage scales which would
have been applicable to them if they had succeeded in their
negligence claims, namely, for the first applicant a sum of
15,000 pounds sterling (GBP) to 30,000 and for the second
applicant GBP 25,000 to 35,000. In addition they claimed a
sum of GBP 10,000 each in respect of the delay in obtaining
either access to court or an effective remedy for their grievances,
plus interest on those sums from 1990.
114. The Government disputed that there was any clear case
of negligence made out and considered that, as noted by the
domestic courts, there was the gravest doubt that the second
applicant’s claims against the Dr V could have been
established on the facts. They maintained that separation
had been, at least initially, justified by the abuse to which
the second applicant had been victim. The psychiatric reports
relied on by the applicants were over nine years old and there
was no indication that physical or psychiatric treatment was
required by either applicant. They disputed that national
scales of assessment should be taken into account and in any
event the applicants’ problems would have fallen into
a category of minor seriousness. In their submission, a finding
of a violation constituted in the circumstances of this case
just satisfaction.
115. The Court recalls that the applicants were re-united
after a year’s separation (see paragraph 29 above).
Though it cannot be asserted that they would have been reunited
earlier if the video had been available at the initial stage
of the procedure, it cannot be excluded either that it might
have reduced the duration of their separation. They thereby
suffered a loss of opportunity. In addition, the applicants
certainly suffered non-pecuniary damage through distress and
anxiety and in the case of the first applicant through feelings
of frustration and injustice.
116. The Court thus concludes that the applicants sustained
some non-pecuniary damage which is not sufficiently compensated
by the finding of a violation of the Convention (see, for
example, Elsholz v. Germany [GC], no. 25735/94, §§
70-71, ECHR 2000-VIII).
117. Making an assessment on an equitable basis, it awards
the sum of GBP 10,000 each to the applicants.
B. Costs and expenses
118. The applicants claimed a total of GBP 37,046.60, inclusive
of value-added tax (VAT). This included GBP 12,398.55 for
the applicants’ solicitors, GBP 16,520.55 for their
counsel and GBP 8,127.50 for Ms Nuala Mole, of the AIRE Centre
who assisted counsel. Claim was made for 68.7 hours work by
the solicitors, 134 hours for counsel and 59 hours for Ms
Mole, in addition to time spent travelling and attending the
hearings on admissibility before the Commission and on the
merits before the Court.
119. The Government disputed that three sets of lawyers should
have been involved. While they accepted the hourly rates claimed,
they considered the total number of hours claimed by these
lawyers to be excessive, particularly since they relied heavily
on the submissions made in the case of Z. and Others v. the
United Kingdom (no. 29392/95) heard by the Court at the same
time. In their view, a sum of GBP 20,000 would be reasonable
for costs and expenses.
120. The Court recalls that only legal costs and expenses
found to have been actually and necessarily incurred and which
are reasonable as to quantum are recoverable under Article
41 of the Convention (see, among other authorities, Nikolova
v. Bulgaria [GC], no. 31195/96, 25.3.99, § 79). The Court
observes that this case, and the case of Z. and Others v.
the United Kingdom were heard together, both before the Commission
and the Court. There was, as regarded the issues under Articles
6 and 13, a joint approach adopted and the observations were
co-ordinated. It finds the sums claimed in those circumstances
to be high and is not persuaded that they were necessarily
incurred or are reasonable as to quantum.
121. In light of these matters, the Court awards the sum of
GBP 25,000 for legal costs and expenses, inclusive of VAT.
C. Default interest
122. According to the information available to the Court,
the statutory rate of interest applicable in the United Kingdom
at the date of adoption of the present judgment is 7.5% per
annum.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 8 of the
Convention;
2. Holds that there has been no violation of
Article 6 of the Convention;
3. Holds that there has been a violation of
Article 13 of the Convention;
4. Holds
(a) that the respondent State is to pay the applicants each,
within three months, 10,000 (ten thousand) pounds sterling
in respect of non-pecuniary damage;
(b) 25,000 (twenty five thousand) pounds sterling in respect
of costs and expenses, inclusive of VAT;
(c) that simple interest at an annual rate of 7.5% shall be
payable from the expiry of the above-mentioned three months
until settlement;
5. Dismisses the remainder of the applicants’
claims for just satisfaction.
Done in English and in French, and delivered at a public hearing
in the Human Rights Building, Strasbourg, on 10 May 2001.
Luzius WILDHABER
President
Paul MAHONEY
Deputy Registrar
In accordance with Article 45 § 2 of the Convention and
Rule 74 § 2 of the Rules of Court, the concurring opinion
of Lady Justice Arden is annexed to this judgment.
L.W.
P.J.M.
I agree that a sum of money should be awarded to the applicants
as just satisfaction for the violations which the Court has
found of Articles 8 and 13. However, I would have preferred
to award to each applicant the sum of GBP 6,000, rather than
the sum of GBP 10,000, for the following reasons.
The applicants undoubtedly suffered some injury to their psychological
health in the period late 1987 to early 1991 as a result of
their separation. However that period is now over ten years
ago and there is no evidence of any ongoing or delayed injury.
Accordingly the actual psychiatric damage which they suffered
was minor in nature.
As the Court has said in its judgment today in Z v. the United
Kingdom, the awards made in comparable domestic cases are
a relevant, though not decisive, consideration. The current
range of figures published as guideline figures for cases
of comparable psychiatric damage in England and Wales is between
GBP 500 – GBP 2,250 (Guidelines for the Assessment of
General Damages in Personal Injury Cases, The Judicial Studies
Board, 4th edition, 1998). The Court of Appeal in England
has recently reviewed the levels of damages for non-pecuniary
loss. It increased the level of awards in some cases but concluded
that damages below the figure of GBP 10,000 did not require
any increase (Heil v. Rankin & Ors [2000] 2 WLR 1173).
In these circumstances, the guideline figures given above
can be taken to represent the appropriate level of awards
for minor psychiatric damage in England and Wales at the present
time. Moreover, in view of the recent review, the Court can,
with respect to the injury to health which the applicants
suffered, place greater reliance on the national rates of
assessment in this particular case than it might otherwise
have been able to do.
In assessing just satisfaction in this case there are, as
explained in the Court’s judgment, factors to be taken
into account apart from injury to health. They include the
loss of the opportunity of an earlier reunion and, in the
case of the first applicant, feelings of frustration and injustice.
Having weighed all the relevant factors, I would, as I have
said, have preferred to award the lesser sum of GBP 6,000
to each applicant on the grounds that this would have been
sufficient in the circumstances to give the applicants just
satisfaction under the Convention. I agree that, even though
the applicants have sought different sums as just satisfaction,
their cases are so similar that it is appropriate in this
case to award each of the applicants the same amount and to
draw no distinction between them. |
