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SECOND
SECTION
CASE OF E. AND OTHERS v.
THE UNITED KINGDOM
(Application no.
33218/96)
JUDGMENT
STRASBOURG
26
November 2002
This judgment will become final in the circumstances set out in
Article 44 § 2 of the Convention. It may be subject
to editorial
revision.
In the case of E. and others v. the United
Kingdom,
The European Court of Human Rights (Second Section), sitting as
a Chamber composed of:
Mr J.-P. COSTA, President,
Sir Nicolas
BRATZA,
Mr L. LOUCAIDES,
Mr C. BīRSAN,
Mr K.
JUNGWIERT,
Mr V. BUTKEVYCH,
Mrs W. THOMASSEN, judges,
and Mr
T.L. EARLY, Deputy Section Registrar,
Having deliberated in
private on 5 November 2002,
Delivers the following judgment, which was
adopted on the last-mentioned date:
PROCEDURE
1. The case originated in an application
(no. 33218/96) against the United Kingdom of Great Britain and Northern
Ireland
lodged with the Commission under former Article 25 of the Convention for
the Protection of Human Rights and Fundamental Freedoms
(“the
Convention”) by four United Kingdom nationals, E., H., L. and T.
(“the applicants”), on 2 July 1996.
It was transmitted to the Court
on 1 November 1999 in accordance with Article 5 § 3, second
sentence, of Protocol
No. 11 to the Convention, the Commission not having
completed its examination of the case by that date.
2. The
applicants, who had been granted legal aid, were represented by Messrs Henderson
& Sons, solicitors practising
in Dumfries. The United Kingdom Government
(“the Government”) were represented by their Agent, Mr C. Whomersley
of the
Foreign and Commonwealth Office, London. The President of the Chamber
acceded to the applicants’ request not to have their
names disclosed (Rule
47 § 3 of the Rules of Court).
3. The applicants alleged that
the local authority had failed to protect them from abuse by their stepfather
and that they
had no remedy in this respect. They invoke Articles 3, 8 and 13 of
the Convention.
4. The application was allocated to the Third
Section of the Court (Rule 52 § 1 of the Rules of Court).
Within
that Section, the Chamber that would consider the case (Article 27 § 1 of
the Convention) was constituted as provided
in Rule 26 § 1.
5. By a decision of 23 October 2001, the Court declared the
application admissible and deliberated on the merits.
6. The
applicants and the Government each filed observations on the merits (Rule 59
§ 1). The Chamber having decided,
after consulting the parties, that no
hearing on the merits was required (Rule 59 § 2 in fine), the
parties replied in writing to each other’s
observations.
7. On 1 November 2001 the Court changed the
composition of its Sections (Rule 25 § 1). This case was assigned to the
newly composed Second Section.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
8. The applicants,
E., H., L. and T. were born in 1960, 1961, 1963 and 1965 respectively and live
in Scotland. E., L. and
T. are sisters and H. is their brother.
A. The circumstances of the case
9. The
applicants’ mother had six children by her husband. After the death of the
applicants’ father in 1965,
their mother cohabited with W.H. Two further
children were born in that relationship.
10. The family, living in
a local authority flat in Dumfries, were known to the social services of
Dumfries and Galloway
Regional Council (“the local authority”). The
records provided by the Government show that they were principally concerned
from 1970 onwards in relation to the mother’s severe financial
difficulties. The mother suffered from bad health and it was
noted in 1973 that
when she had a broken arm she always kept one of the children off school
(presumably to help in the home) and
was likely to be summoned before the
Education Sub-Committee. Problems with rent and electricity arrears were noted
as recurring
through 1975 and 1976, as well as continuing health difficulties
suffered by the mother. An entry on August 1976 noted that the eight
children
were all happy though overcrowded and that there were no behavioural problems.
11. On 16 November 1976, it was recorded however that E., the
first applicant, who had been causing concern as she had
been staying out at
night, was found semi-conscious at a nearby flat, having taken an overdose. It
was noted that the mother was
to take her to attend a psychiatric clinic. The
medical notes recorded that E. complained that she disliked intensely her
mother’s
cohabitee W.H. who hit her, shouted and upset her so much that
she ran away with intent to kill herself.
12. A social work
report dated 25 November 1976 noted that the family consisted of six daughters
and two sons living with
their mother. W.H., the father of the two youngest
children, was recorded as not cohabiting and the mother had stated that she
would
not marry him as she would be worse off financially. The state of the home
was said to fluctuate according to the mother’s
health but was considered
to be adequately furnished with a warm, friendly atmosphere. The mother had
always demonstrated a great
deal of concern for her children and had perhaps
overindulged them at times. In spite of the fact that there was much juvenile
delinquency
in the area, this was noted as being the first time that any of her
children had given cause for concern. The mother’s ambivalent
attitude to
school attendance was commented on.
13. In December 1976, E. left
school and the social services gave assistance in finding employment.
14. On 7 January 1977, L., the third applicant, then aged 13, ran
away from home, following an incident in which she claimed
that W.H. had
attempted to rape her. She was referred as an emergency by the police to the
social services. The police interviewed
all the family. It is not apparent that
the family, in particular the children, were interviewed by social workers
concerning the
implications of L.’s disclosures. No steps were taken to
refer them to the Reporter of the Children’s Hearing.
15. On
7 January 1977, W.H. was arrested by the police and charged with indecently
assaulting E. and L.
16. On 8 January 1977, W.H. entered a guilty
plea concerning charges involving offences of indecent behaviour against E.
and
L. before Dumfries Sheriff Court. The pleas were accepted by the prosecution and
the case proceeded on the basis that W.H. had
committed one act of indecency
against E. between 20 October 1972 and 31 August 1976, and two acts of indecency
against L. between
1 January 1975 and 7 January 1977. The Sheriff requested the
social services to prepare social enquiry and psychiatric reports. W.H.
was not
detained pending sentence. According to the applicants, he returned to live at
the applicants’ home.
17. On 11 January 1977, the
applicants stated that the police submitted a report to the children’s
social worker,
S., expressing concern that the children should be protected from
further abuse. The Government have found no trace of any such report
in
existence.
18. On 28 January 1977, W.H. appeared before the
Sheriff for sentencing. The social enquiry report dated 18 January 1977
stated
inter alia that the family lived in a four room local authority flat in
an area where there was a high incidence of social problems. The home
was
adequately furnished and maintained to a reasonable standard. The mother was
described as a caring woman who did not enjoy good
health but who put her
childrens’ interests first. The family was considered as appearing a happy
well-adjusted group though
they were well known to the social services as they
had been given assistance from time to time. The children attended school
regularly
and appeared happily settled. W.H. was recorded as admitting the
offence and as being more than ashamed of his conduct, though he
could offer no
explanation for these actions. It was noted that he did not appear to realise
fully the serious nature of these charges.
Since the alleged offence he had
obtained accommodation outside the applicants’ home - it indicated an
address in the same
apartment block. It was further noted that the mother was
not prepared to accept the charges relating to this man and stated that
they had
plans to marry in the Spring as they had had a close relationship for many
years. It was concluded that, in view of the
serious nature of the offences, it
would be necessary for firm control to be exercised over the accused for a
period of time.
19. The psychiatric report found that W.H. did
not show any psychiatric abnormality. His criminal record showed one prior
minor
offence of dishonesty.
20. W.H. was sentenced by the Sheriff to
two years’ probation. The applicants state that this was with a condition
that he cease to reside at the applicants’ address. The Government have
found no record of that condition attaching to the
probation order and stated
that the probation file cannot now be found. They accepted however that it was
the social services’
responsibility to supervise W.H.’s probation.
According to the recollection of Mr M., who was the supervising officer for part
of that period (after June 1977), he would have made it clear to W.H. that he
was not permitted to live in the family home due to
the nature of the offences.
He recalled visiting W.H. at a separate address in Dumfries during this period
and sending mail to that
address. He believed that W.H. was living there and not
at the applicants’ home. In the precognition annexed to the
Government’s
observations, Mr M., who was also probation officer for E.
and acted as replacement for the family social worker, recalled however
that he
did have suspicions that W.H. might still be living at the family home and that
on visiting the family home two or three
times unexpectedly he found W.H.
“just leaving”. He did not consider that there was sufficient
evidence of W.H. breaching
the conditions attached to his probation order to
justify taking the matter further.
21. The social worker, Mr R.,
visited the home on 22 occasions between 24 January and the end of June 1977 and
did not
see W.H. However, his notes recorded in March 1977 a suspicion that the
mother was still cohabiting with W.H. When Mr M. took over
the case, he noted
that W.H. was not living there (social work case notes entry of 6 August 1977)
and that W.H. was not contributing
financially to his children. In his later
affidavit, he stated that this entry was based on information from the mother.
Entries
indicated concerns about school attendance and that the mother had been
repeatedly told that she should not keep the girls off school.
In September
1977, it was noted that the school had expressed concerns about the welfare of
T., the fourth applicant, which was attended
to by a senior social worker. A
school meeting concerning the children’s attendance was arranged but the
mother and H., the
second applicant, failed to attend. In November 1997, the
social worker paid an unexpected visit to the home and found that W.H.
was
there. Both he and the mother denied that he was living there.
22. According to a social enquiry report of 1 June 1977 drawn up
by Mr R. when E. was charged with criminal damage
before the Sheriff Court,
she had left home in about February 1977. No reference was made to the past
history of sexual abuse in
the home though it was stated that she had left home
after a scene with the man who was at that time co-habiting with her mother.
E.
was found guilty of malicious mischief on 15 June 1997 and sentenced to two
years’ probation. Social work case notes also
recorded that by March 1977
she had left home. According to her claims lodged in later proceedings, E.
finally left home on her 17th birthday, in October 1977.
23. School attendance was still recorded as a problem in December
1977 for the remaining girls at home. H., the second
applicant, had now left
school officially. In her later statements, L. recalled that during 1977 she was
on occasion taken into temporary
local authority care in connection with
problems of running away.
24. In January 1978, the mother was
recorded as giving her various health problems as the reason for keeping L. and
T.
off school. It was noted that her speech was slurring, among other symptoms,
but that she had shown reluctance in going to see her
doctor or in allowing the
social workers to approach her doctor. In February 1978, she was keeping one or
both girls off school to
help her at home or to run
messages.
25. In March 1978, it was noted that the house was
becoming even more disordered and the younger children and the mother
were
becoming more unkempt. The mother gave the impression of having given up. In
June 1978, the mother was finally referred through
her doctor for hospital
tests, though she failed to attend the appointments set. In October 1978, it was
noted that the house stank
and that the carpet was matted. The mother informed
the social worker that W.H., who lived in Derbyshire, had invited her to go and
live with him there. She gave up that idea shortly afterwards.
26. In
January 1978, L. was referred to a Children’s Hearing for failure to
attend school. In the background report
drawn up by Mr M. for the hearing,
explanation was given of the financial and health difficulties of the mother and
it was stated
that it was the mother who kept L. from school to help in the
home. There was no reference to the history of sexual abuse in the
home. In
April 1978, L. was living temporarily in a social work establishment known as
the Closeburn Assessment Centre. On 22 April
1978, she ran away from the home
and was returned. At a date unspecified, she went back to live at home.
27. H., aged 17, left the family home in or about
1978.
28. On or about 15 January 1979, L. left home after an
argument with her mother about going out at night and was brought
back by the
police who referred the matter to the social services. After discussion with the
mother, L. was taken into care by the
social services until 20 February 1979.
29. On 16 March 1979, the school attended by L. called a
multi-disciplinary meeting to discuss the problems of non-attendance
of a
number of the children of the family. Though a social worker was invited to
attend, none was present.
30. On 28 March 1979, L. was transferred
to a residential centre but left the following day to return home. At about the
same time, the applicants’ mother changed address. L. lived with her there
for about a week and then left to live with a friend.
She took an overdose and
was admitted to hospital. A letter dated 11 April 1979 from the psychiatric
registrar to L.’s G.P.
noted that “... she doesn’t get on well
with her mother’s cohabitee. The relationship with Mum’s cohabitee
seems a bit peculiar”.
31. After being discharged from
hospital on 9 April 1979, L. went to live with a 50 year old man with whom she
had a sexual
relationship. On 17 April 1979, the police picked up L. who
told them about the relationship. The mother agreed that L. was
beyond her
control and agreed that she be put in a place of safety. An order lasting one
month was made to that effect. From 18 April
1979, she was made the subject of
compulsory care measures by the local authority which brought her before the
Children’s Hearing.
In the background report drawn up by the social worker
Mr E. for the hearing, details were given of the mother’s financial
difficulties and ill-health and comment was made that, apart from truancy, the
family had not been in any trouble. No reference was
made to the past sexual
abuse. The hearing extended the place of safety order. L. was sent to Closeburn
Assessment Centre from 18
April to 18 June 1979. She appears to have remained
there for most of the period until her 16th birthday on 28 July 1979,
at which date she ceased to be subject to the legislation governing the
compulsory education of children.
Efforts were then made to find employment for
her. Social work notes of 1 August 1979 concerning L. recorded that, when the
social
worker accompanied her to the mother’s home for a visit, a man
described as L.’s stepfather was present in the living
room.
32. Entries in the social work notes for the family during
1979 continued to emphasise financial difficulties. An entry
in February 1979
referred to problems of school attendance of ten years’ standing and the
mother’s frequent summoning
before the school
council.
33. On 7 April 1979, it was noted that the family had
moved to a larger home, a self-contained house provided by the local
authority.
34. Through 1979-1981, financial difficulties were noted as
continuing, and the mother’s health and general state
deteriorating to
such an extent that she rarely got out of bed.
35. The
applicants’ mother died in 1981. It appeared that she had been suffering,
inter alia, from undiagnosed multiple sclerosis. The applicants’
elder sister (aged 22) took on the mothering role in the family
home.
36. T. left home in November 1984, after she had become
pregnant and had a child. By January 1988, she was living at an
address with her
3 year old daughter and was in contact with the social services concerning her
financial problems. In February 1988,
she indicated to her social worker that
she had been subject to sexual abuse in the past. In April 1988, she disclosed
that this
had involved her step-father W.H. as well as other men, one of whom
had been convicted of rape. As at the time she was in regular
contact with W.H.,
whom she considered had reformed, she was counselled concerning the risk to her
own child.
37. Following counselling, E., L. and T. reported the
history of abuse by W.H. to the police in or about November 1988.
In her
statement of 13 January 1989, L. stated that after W.H. had been arrested
in 1977, various social workers used to come
around and she and the others had
had to tell them that W.H. was not living with them anymore. When they came to
the house, W.H.
used to hide and her mother used to keep the children out of
their way if possible. She recalled wanting to tell a social worker
what was
happening but was so petrified of W.H. that she did not. W.H. continued to
interfere with her and had sex with her a couple
of times after the court
case.
38. Charges were brought against W.H. of committing sexual
offences against E., L. and T.
39. At his trial before the High
Court on 20 July 1989, W.H. pleaded guilty to four charges and not guilty to two
charges.
The prosecution accepted his pleas. W.H. was duly convicted of serious
acts of indecency against E. between 19 October 1967 and 18
October 1972 and of
further such acts against her between 1 September 1976 and 18 October 1976; of
serious acts of indecency against
L. between 28 July 1968 and 31 December 1974;
and of similar acts against T. between 28 August 1974 and 27 August 1978. Only
part
of the latter charge concerned the period after W.H.’s earlier
conviction on 8 January 1977.
40. The trial was adjourned for
sentencing reports to be obtained. On 20 July 1989, the High Court
sentenced W.H.
to a two year suspended sentence of imprisonment, having regard
to the reports which indicated that he now lived in Yorkshire and
that most of
the offences predated his earlier conviction in 1977. However, it was only at
this time that the applicants alleged
that they became aware that W.H. had been
subject to criminal proceedings in 1977 and that he had been placed on probation
on the
condition that he did not reside in their home.
41. On 18
June 1992, the four applicants brought proceedings against the local authority
seeking damages on the basis that
the local authority had failed to carry out
its statutory duties, in particular, that W.H. had breached his probation order
by residing
at the family home and that the social services had, or ought to
have, known this and had failed to report the breach to the court
or to take the
children into care.
42. On 4 January 1996, following the decision
of the House of Lords in X. and Others v. Bedfordshire County Council
([1995] 3AER 353) and in the light of counsel’s advice that their case was
indistinguishable, the applicants consented to an
order that their action be
dismissed.
43. In or about 1992 to 1993, the applicants applied
for compensation to the Criminal Injuries Compensation Scheme in respect
of the
abuse suffered. In their applications, they alleged as
follows:
(i) E. stated that from about 1967 she suffered 10 years
of abuse from W.H. The first incident which she recalled was when
she was 6 or 7
when he struck her, sending her flying into the wall. Soon after, he began
coming into her room at night and doing
things to her, requiring her to
masturbate him. If she cried, he would punch her in the face. From the age of
12, he used to make
the girls have a bath together and would touch them all over
their bodies, inserting his finger into them. Often he would keep her
off school
and would abuse her sexually. He assaulted her often, coming up behind her to
hit her on the back of the head. He also
used to stand on her naked feet with
his shoes on and twist, pinch her with his nails and punch her. This physical
abuse happened
on a daily basis. He would also get her and the others to strip
to the waist and hit each other with dog chains. This conduct continued
regularly until she left home on her 17th birthday (19 October
1977). She recalled going to the social services when she was aged 14 and
telling them that W.H. was living
with them when he was not supposed to. Nothing
happened as a result. While the social services were coming to the house, she
did
not remember them talking to her. She recalled that this period was before
she was 14 or 15, before 1974 or 1975. When she was 15,
she started running away
from home. On one occasion she took pills. When she was visited by the police in
hospital, she told them
that W.H. was interfering with her. She also told this
to a psychiatrist whom she saw soon after. However, W.H. continued interfering
with her. W.H. was only arrested after L. had run away from home in January
1977. E. had suffered serious problems since that time,
having made several
suicide attempts and having developed a severe drink problem. A psychiatric
report of 24 April 1992 concluded
that her symptoms accorded with a diagnosis of
severe post traumatic stress disorder.
(ii) H. stated that he
suffered from physical abuse, assaults and threats of violence from W.H. from
about 1967. From about
the age of 6 or 7, W.H. used to punch him in the stomach
and bash him against the wall. He also made him and the others strip to
the
waist and punch and hit each other with chains. These relentless assaults went
on regularly until he left home during 1978. A
psychiatric report of 9 June 1992
concluded that he had long term relationship problems, poor self confidence and
long standing personality
difficulties.
(iii) L. stated that she
had suffered sexual and physical abuse from W.H. from 1969 until she left home
in about 1979 and
on occasion after that. W.H. had started interfering with her
when she was about 5 or 6. The first thing she remembered was him bathing
her
with her sister E. and rubbing her private parts. Hardly a day went past when he
did not do something of a sexual nature to her
(e.g. touching her breasts or
private parts) or batter her. When she was older, he made her touch him on his
private parts and perform
oral sex. He made her and the other children hit each
other with chains and whips and would sometimes join in. She was often left
with
bad bruises and a bleeding nose. From the age of 11 or 12, he had sexual
intercourse with her several times. When she ran away
in January 1977, she told
the police and he was arrested. However, he returned home and started
interfering with her again, having
intercourse with her and punching or kicking
her if she refused. She ran away again in Spring 1977 and was put into a home,
first
in Dumfries, then Annan and finally Closeburn, which she eventually left
in 1979 when she was 16. At that point, she did not return
home but went to stay
with her sister and then embarked in a series of relationships. When she visited
her mother on 1 January 1980,
W.H. put his hands up her skirt but let her go
when she threatened to tell her boyfriend. On another occasion in 1981, W.H.
tried
to fondle her but she got up and left. She had never been able to tell
anyone about these things as she was scared of him and thought
that he would
severely assault her. A psychiatric report of 24 April 1992 concluded that her
symptoms, including nightmares and sleep
disturbance, accorded with a diagnosis
of severe post traumatic stress disorder.
(iv) T. stated that she
had suffered sexual and physical abuse from W.H. from about 1971 to 1989. Though
she did not remember
anything specifically before the age of 9, she slept in the
same bed as L. and remembered him coming naked into the bed with them.
From an
early age, he used to stand on her naked feet in his shoes and twirl round, nip
her and punch her in the stomach. She had
black eyes occasionally. When she was
9, she remembered him making her touch him and masturbate him. She had to do
that to him two
or three times a week when he came home from work. He then
started keeping her off school and would lie down on the bed naked, making
her
take her clothes off and masturbate him. This occurred two or three times a
week. When she was 10 or 11, he began to touch her
breasts and rub his penis
over her until he ejaculated. When she was 14, he forced her to have sexual
intercourse with him. He did
not repeat that but continued touching her and
making her masturbate him or have oral sex. This continued until 1984 when she
was
able to leave home – she deliberately got pregnant by having sex with
someone she knew, so that the local authority would provide
her with
accommodation away from home. In 1987, W.H. started coming to her house and
would try to touch and grab her. She became
very depressed and suicidal. She
then told the Family Centre about the abuse. A psychiatric report of 24 April
1992 concluded that
her symptoms, including low self-esteem, fear, mistrust and
depression, accorded with a diagnosis of severe post traumatic stress
disorder.
44. Though the applicable provisions did not permit
claims for injuries from violence arising before 1 October 1979 where
the victim
and assailant were in the same household, the Criminal Injuries Compensation
Board (“CICB”), in an apparent
oversight, made an assessment
awarding 25,000 pounds sterling (GBP) to E., L. and T. for general damages. They
appealed against the
failure to award damages for loss of earnings. As it was
noted that in the proceedings for the fourth applicant T. that most of her
injuries had arisen before 1979, the applicants E. and L. withdrew their appeals
to prevent their awards being reconsidered altogether.
In deciding T.’s
appeal, the Board decided that as she had sustained some damage post-October
1979 it would not disturb the
award but made no award for alleged loss of
earnings or damage to employment prospects. H. did not receive any award. A
letter dated
23 July 1992 from the CICB indicated that his application had been
rejected in that his claim had not been made within three years
of the incident
giving rise to the claim and the Chairman had decided not to waive the
requirement in his case.
45. On 30 January 1996, the applicants
requested the Commissioner for Local Administration in Scotland to undertake an
investigation into their allegations of negligence and maladministration by the
local authority. By letter dated 8 February 1996,
the Ombudsman stated that he
had no jurisdiction pursuant to section 24(6)c of the Local Government
(Scotland) Act 1975, which precluded
investigations where the complainants had a
remedy by way of proceedings in a court of law, and that, even if he had
jurisdiction,
he would not have undertaken an investigation due to the lapse in
time since the events occurred. By letter of 22 February 1996,
he declined to
reconsider his decision.
B. Social work expert reports submitted by the parties
Reports by Ms Ann Black submitted by the Government
46. The Government submitted two
reports by Ms Black, a social work consultant who has worked for more than 30
years in
the field of child care, principally in Scotland.
47. In
her first affidavit dated 26 March 2002, Ms Black stated that with the exception
of cases of incest there was in
the 1970s no real appreciation of the incidence
of, and consequences for victims of, child sexual abuse within families.
Circulars
referred to non-accidental injury without specific reference to sexual
abuse which was not recognised as a particular issue. It was
only in the 1980s
that literature began to arrive in the United Kingdom from the United States on
the subject of child sex abuse
and initially this was regarded as controversial.
The first real recognition of the problem in the United Kingdom was a CIBA
publication
“Child Sexual Abuse in the Family” published in 1984. A
Working Group on the topic was set up by the Social Work Services
Group of the
Scottish Office in which she was involved and which reported in
1985.
48. According to her experience, during the 1970s and
before, where a case of incest or sexual abuse had been identified,
the focus
would be on ensuring that the perpetrator was punished. Little or no attention
was given to the needs of the victim and
once the perpetrator was convicted that
would be seen as the end of the matter. There was no real appreciation of the
extent to which
abusers might continue to abuse their victims over many years or
of the skills of abusers in avoiding detection. Social workers were
not given
any specific training about child sex abuse. There was also the practice at the
time of local authorities keeping their
probation and child care functions
separate, with social workers working separately rather than as part of a team
and there was a
tendency for there to be relatively little interaction between
schools and social work departments.
49. In her view, after W.H.
had been convicted and sentenced to probation in January 1977, it would have
been generally
assumed that any continuing problem would have been resolved,
particularly if a condition in his probation was that he was not allowed
to live
in the family home. No work would have been envisaged with the victims unless
they were showing obvious distress or problems.
A mere suspicion that the W.H.
was in breach of the probation order, and his presence found in the house during
the day, would not
have been sufficient proof of breach. He was the father of
two of the mother’s youngest children, contact with the family was
not
prohibited and his presence in the house would have even been seen as positive.
Even if they had considered the possible breach
of probation further, they would
not have gone on to consider possible harm to the children. It would have been
standard practice
to make specific appointments to visit the home in order to
avoid wasted time and she would not have expected the social worker to
make spot
checks or call at unexpected times to check on W.H.. As was the practice, social
services provided support for the mother
who had considerable problems in
running the home, and would have had a tendency not to investigate the causes of
any running away
or of truancy, particularly where the child was close to school
leaving age. Nor would it have been expected at the time for the
social workers
to make a point of talking individually to the children, unless for the purpose
of a specific report.
50. In her additional comments of 20 May
2002, added in the light of the examination of further documents, Ms Black noted
that at the meeting convened by the school in March 1979 concerning L. the
social work department had not sent a participant though
invited to do so. The
school problems drawn to the attention of the social services did not appear to
have prompted the social worker
to suggest a meeting to try to draw together the
issues for the family and this meant that the full extent of the problems that
L.
and the others in the family faced were not discussed by the wider group of
professionals who knew the family. By this time, the
use of case conferences was
well established in social work practice.
51. She also noted that
following E.’s overdose of pills in November 1976, the social services did
not appear to
react to E.’s dislike of W.H. and her allegations of an
earlier sexual assault and his shouting and hitting. Nor was there
any social
work follow-up when L. ran away in January 1977, beyond a visit of the emergency
social worker, or any discussion with
E. and L. after W.H. had been sentenced.
Even if social workers at the time were not aware of the incidence of sexual
abuse, the
incidents with the two girls and the evident distress shown by them
should have usefully led to an attempt to discuss with them individually
how
things were at home, in particular to establish the severity of past incidents
and whether any other children in the house were
at risk of sexual or physical
abuse.
52. Further, in the light of Mr R’s report to the
court which commented on the need for firm control of W.H. and
the
mother’s refusal to accept that he had committed the offences, this made
the assurances given by W.H. and the mother that
W.H. was not living in the home
much less safe to rely on. Mr R. did not appear to have issued any warning to
them about the consequences
of breaching the probation order. When the report
was made on E. in June 1977 there was no reference to the sexual abuse or home
difficulties. Also the report to the Children’s Hearing on L. in January
1978 failed to give a full picture of her difficulties.
Throughout the case
there was an emerging pattern of different people not using the information
available to assess the safety of
the girls and W.H.’s adherence to the
probation conditions. After the report on E. in June, it could have been
expected that
the workers involved in the family would have increased their
scrutiny of the living arrangements in the family. The lack of detail
in the
reports on L. deprived the Children’s Hearing of vital information which
could have led them to place L. on supervision
and afforded more opportunity for
her to speak about the home situation.
53. Though by January 1977
E. was too old to be referred to the reporter of the Children’s Hearing,
grounds existed
for referring L. at that time. Given the abuse, her level of
truancy, the poor financial and material circumstances in the family
and the
offence of W.H., coupled with allegations by E. as to shouting and hitting in
the family home, she considered that a referral
of L. ought to have been made.
This would have given an opportunity for all the different agencies involved
with the family to contribute
to the discussion and for the Hearing to
appreciate the full extent of the problems. Though L. might not have been
removed in the
first instances, a supervision requirement would have allowed
closer contact and more individual work. The Reporter would also have
had the
opportunity to consider whether any other children in the household were in need
of compulsory measures of care.
54. She concluded that the
failure to share significant issues with the Children’s Hearing about L.,
the failure
to work collaboratively with the school, the lack of attention to
the assessed need for firm control of the situation after W.H.
was placed on
probation and the lack of attention to the significance that the mother did not
believe her daughters’ complaints
against W.H., all contributed to a
failure to help get the girls the support they were likely to need after the
conviction of W.H.
and disclosed a failure in the approach taken to the family
by the social work department.
Reports by Mr Richard Jack submitted by the applicants
55. The applicants provided three
reports dated 20 March, 13 May and 10 June 2002 by Mr Richard Jack, a consultant
in social
work with experience in social work practice over 28
years.
56. He stated that from 1975, when circular SW1/75 was
issued, a mult-disciplinary approach by professionals was promoted
in respect of
neglect and child protection, though sexual abuse was not explicitly referred
to. While public and professional acknowledgement
of a significant child abuse
problem did not emerge until the mid-1970’s, in this case E. and L. had
made disclosures which
were believed and not in doubt. Literature as to the
nature of the problem was available to practitioners, in particular with Kempe
and Kempe’s work published in 1978, inter alia, identifying clear
indicators as to the behaviour exhibited by abused children.
57. Despite long-term problems with the family and notes of
truanting dating back to 1973, there was minimal reference
to dialogue between
the social services and the education authority. There was no reference in the
social work records to the disclosures
made by E. to medical personnel or to a
visit to her in hospital by an emergency social worker, disclosing a significant
breakdown
in communication. The family social worker Mr E. appears to have had
no clear knowledge as to the situation, while Mr M., who later
supervised
probation of W.H., was not a qualified social worker and did not appear to have
proper knowledge of the seriousness and
persistence of the offences in issue.
58. Once disclosures had been made by E. and L. in 1977, it would
have been reasonable, given the ages of the children,
to discuss W.H. with them
outwith the presence of the mother. A serious discussion ought to have taken
place in the social services
as to the potential risks to the children in the
household and at the very minimum a report should have been prepared for the
Reporter
to the Children’s Hearing. In fact there was nothing to suggest
that the social services explored W.H.’s impact on the
children in the
family at all.
59. The social service records noted clear
suspicions that W.H. continued to live in the household. Though it was stated
in
the context of the probation order that firm control was needed, no steps were
taken such as further enquiries from neighbours
or the local police as to
W.H.’s actual place of residence. Breach of the probation order was a very
serious matter and should
have triggered a referral of his case back to the
court and of the children to the Reporter.
60. When L.’s
truancy was referred to the Children’s Hearing in 1978, there was no
reference to the background
of her running away in January 1977 or to the
history of neglect and turbulent dynamics in the family. It was negligent of the
social
services not to provide the panel with full information. Nor when there
was a case study meeting at the school in March 1979 did
any social worker
attend. There was never any multi-disciplinary case conference which reviewed in
a full, objective and accurate
manner the history and circumstances of the
family.
II. RELEVANT DOMESTIC LAW AND PRACTICE
Probation
61. Imprisonment is used in Scotland
only where there is no alternative. One alternative is probation, which was at
the
relevant time imposed under section 384 of the Criminal Procedure (Scotland)
Act 1975. When an offender is placed on probation he
is allowed to retain his
liberty during the period of probation but must comply with the requirements of
the probation order. In
all cases the order requires the offender to be of good
behaviour, conform to the directions of the supervising officer and to inform
the supervising officer if he changes residence or employment. Other
requirements may be imposed, such as conditions as to the place
of residence. If
the offender fails to comply with requirements of the probation order, that
failure may be reported to the sentencing
court by the supervisory officer or
other responsible officials of the Social Work Department. The supervising
officer has a degree
of discretion where there is an apparent breach of the
order. He may warn the probationer about the conduct if he considers a warning
is likely to alter the probationer’s behaviour. If he reports the matter
to the court, the court then investigates the matter.
If the failure is proved
to its satisfaction, the court can impose a variety of penalties including
sentencing the probationer to
imprisonment for the offence for which he was
placed on probation.
Child care provisions
62. The care and
protection of children in Scotland was governed for most of the relevant period
by the Social Work (Scotland)
Act 1968 (the “1968
Act”).
63. There was a duty on local authorities under
section 15(1) of the 1968 Act to receive a child under 17 into care when
it
appeared to an authority that his parent or guardian was unable, by reasons of
illness, mental disorder or other circumstance,
from providing proper
accommodation, maintenance and upbringing. The test was whether the intervention
was necessary in the interests
of the welfare of the child. Compulsory measures
of care were also required under section 32 for children in need, including
those
who were suffering unnecessarily or were the victims of cruelty. Under
section 37(1), anyone with reasonable cause to believe a child
fell into this
category could inform the Reporter to the Children’s Panel of the
matter.
64. The Children’s Panel was a tribunal specifically
designed to cope with cases involving children. The Reporter
had investigative
powers to establish the condition of the welfare of the child and had three
options: to take no further action,
to refer the case to the Social Work
Department for them to give guidance or support, or to convene a
Children’s Hearing. The
Children’s Panel had the power to order the
child to submit to a supervision requirement in accordance with such conditions
as it saw fit or to reside in a special establishment.
65. After
the entry into force of the Children Act 1975, the local authority had a duty to
cause inquiries to be made,
unless it did not deem them
necessary.
66. Under section 37(2) of the 1968 Act, a police
constable or other person authorised by a court or justice of the peace
could
take a child to “a place of safety”, e.g. if offences had been
committed in relation to the child, including cruelty
or the infliction of
unnecessary suffering.
Remedies available to victims of abuse
Civil
actions
67. Physical or sexual abuse of a child will generally
constitute a civil wrong (such as assault), as well as a criminal
offence, and
give rise to an action for damages by the perpetrator.
68. Actions
in civil damages may also lie against the social work department (local
authority) either in respect of alleged
wrongdoing (e.g. negligence, or wilful
abuse of power) for its own actions or vicariously for the actions of its staff.
69. Under Scots law, a body carrying out statutory functions will
be liable in damages to a person affected by its performance
or non-performance
of those functions (in the absence of a wilful disregard of its duties) only if
the statute expressly or impliedly
provides for such a liability, or the
relationship between the statutory body and the person in question is of such a
nature as to
create a common law duty of care, and the statutory body violated
that duty (i.e. was negligent).
70. As set out in Z. and Others
v. the United Kingdom [GC], (no. 29392/95, ECHR 2001-V), negligence
arises in specific categories of situations. These categories are capable of
being
extended. There are three elements to the tort (delict) 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 indicate 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; and
– that it is fair, just and reasonable to impose liability
on the defendant.
The leading case is Caparo Industries v. Dickman
([1990] 2 AC 605).
71. 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.
72. 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. The House of Lords there 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 children in that case had suffered severe neglect and abuse from
their parents and had alleged that the local authority
had failed to protect
them, inter alia, by not exercising their power to take them into care at
an earlier stage. As regards the claims that the local authority owed a
duty of
care to the applicants pursuant to the tort of negligence, Lord Browne-Wilkinson
in his leading judgment found that no duty
of care arose as it was not fair,
just or reasonable to impose one on the local authority in their exercise of
this aspect of their
duties.
73. More recently, in the case of
W. and Others v. Essex County Council ([1998] 3 AER 111) in a case
concerning the claims of a family, parents and children, that they had suffered
abuse and damage due
to the foster placement in their home by the local
authority of a 15 year old boy who was a suspected sexual abuser, the Court of
Appeal held that a duty of care lay towards the children of the family, while
the House of Lords on 16 March 2000 ([2000] 2 WLR 601)
held that the parents
could also arguably claim that they were owed a duty of care. The House of Lords
had also given 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.
Criminal Injuries Compensation
74. The Criminal Injuries
Compensation Authority (known at the relevant time as the Criminal Injuries
Compensation Board
– CICB) may make an award where it is satisfied on the
balance of probabilities that an applicant is a victim of a criminal
offence and
suffered the harm alleged. Payments of some 210 million GBP are paid out each
year. However, under the rules in force
until 1 October 1979, there was a
complete bar on claims where the victim and the assailant were living together
at the same time
as members of the family.
Judicial review
75. The acts, omissions and decisions of
social work agencies carrying out statutory functions in connection with the
welfare
of children in Scotland are subject to judicial review by the Court of
Session. Decisions by the local authority, for example, concerning
the place of
residence of children or recording the name of an abuser on a register have been
quashed. Damages may be awarded in
such proceedings.
Local Government Ombudsman
76. Persons aggrieved by the
actions or omissions of social work agencies may complain to the Commissioner
for Local Administration
in Scotland whose functions include investigation of
written complaints by persons who claim to have suffered from the
maladministration
of local authorities (Part II of the Local Government
(Scotland) 1975 as amended). The Local Government Ombudsman may recommend an
appropriate remedy, including the payment of compensation. Though the local
authority is not legally obliged to pay the compensation
recommended, it is the
general practice to do so.
77. There are restrictions on the
investigations which may be conducted. Section 24(4) of the 1975 Act above
requires a
person to bring a complaint within 12 months from the day on which
the complainant had notice of the matters concerned, though there
is a
discretion to consider complaints outside this time-limit if the Ombudsman
considers it reasonable to do so. He may not investigate
any matter in which the
person aggrieved has or had a remedy by way of proceedings in any court of law
(section 24(6)c).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
78. Article 3 of the Convention provides:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. The parties’ submissions
1. The applicants
79. The applicants
submitted that taken as a whole the evidence established that they were abused
by W.H., that the abuse
continued after January 1977, that there were material
faults in the handling of the situation by the social services and that they
sustained loss and damage as a result. They submitted that the local authority
was aware of proven sexual abuse in January 1977 in
relation to E. and L. and
that this had been ongoing for some time before January 1977. They therefore
knew of the risk of future
ill-treatment to the children and ought to have been
aware of the continuation of actual abuse.
80. The local
authority failed however to take the protective measures necessary and provided
for in the statutory framework.
Already in January 1977 there were grounds for
referral of the children to the Reporter to the Children’s Panel due to
the
serious concerns for their welfare (the mother was unable to cope, school
attendance was atrocious, E. had attempted suicide, and
E. and L. had been
sexually abused). A hearing would then have been held and the situation properly
investigated. The failure to
refer the children precluded further steps being
taken to protect their welfare.
81. There was also a failure
properly to supervise W.H.’s probation. It was noted that he had been
found in the home
and yet no further investigation into the situation occurred.
No consideration was given either to a referral to the Reporter on
the basis
that a convicted sexual offender had been in contact with the household. Nor did
L.’s known behaviour (running away,
truancy and offending) lead the social
services to hold a multidisciplinary conference to investigate the cause of her
behaviour
while information about the background of sexual abuse by W.H. was not
passed on by the social services to relevant agencies including
the
Children’s Panel when it dealt with L. concerning truancy in 1978 and care
measures in 1979.
82. The applicants submitted that the local
authority should have been aware of the risk of continued abuse, arguing that
there was recognition at the time that sexual abuse occurred in families, that
W.H. was found guilty of serious sexual offences of
abuse which had been going
on for some time and the recorded suspicion that he continued to cohabit in the
home. It should also have
been apparent to the local authority that there was a
possible connection between the disturbed behaviour of E. and L. and ongoing
sexual abuse. No steps were taken to talk individually to the children, social
work concerns seeming to concentrate on matters of
rent and finance. Visits by
social workers were also made at regular and pre-arranged times which allowed
W.H. to evade notice most
of the time.
2. The Government
83. The Government
did not consider that it would be appropriate for the Court in assessing to what
extent the applicants
has suffered ill-treatment to go beyond the conclusions of
the domestic courts, which had found W.H. guilty of specific offences
against
E., L. and T. in 1977 and 1989, as this would involve finding W.H. guilty of
serious criminal offences in proceedings to
which he was not a party. As the
second applicant H.’s allegations referred most vividly to ill-treatment
at an early age,
only mentioning in sweeping terms alleged continuation of abuse
after the first conviction in 1977, his statements in their view
did not provide
an adequate basis for making specific findings about ill-treatment after 7
January 1977. The Government also pointed
to the evidential difficulties arising
from the allegations which concerned events occurring more than 20 years ago and
the incomplete
evidence which was available. However, they accepted that the
conduct for which W.H. was convicted in respect of E., L. and T. amounted
to
inhuman or degrading treatment.
84. The Government understood that
the applicants were alleging that from January 1977, and not before, the social
services
were or should have been aware that there was a risk of sexual abuse
from W.H. continuing. They submitted that, following his conviction
in January
1977, the Social Work Department had no evidence that W.H. was continuing to
reside in the home. Although Mr R. had a
suspicion that the mother was still
cohabiting with W.H., he had visited the house very frequently without seeing
W.H. and, in the
view of the social work consultant Ms Anne Black, given the low
level of awareness about child sexual abuse at the time, she would
not have
expected him to pursue his suspicions further. None of the applicants, when seen
by the social workers or interviewed for
various purposes, gave any hint that
W.H. was still living in their home or continuing to abuse them. Though the
social worker Mr
M. recalled that he found W.H. leaving the home on two to three
occasions, the notes indicated that the mother and W.H. both denied
that he was
living there, and he took the view that W.H.’s visits during the day while
the children were at school was not
tantamount to living there and did not
constitute sufficient evidence of a breach of his probation to justify further
action.
85. There were no other features which would have led the
social workers to suspect that the applicants were still suffering
abuse. They
were concerned in the problems of school attendance and the difficulties arising
from the mother’s illness and
lack of money, and it was not unreasonable
for the social workers to believe that the children’s problems at the time
were
associated with general problems arising from their environment. They
submitted therefore that the social services did not have knowledge
of any
continuing abuse and, having regard to practice and understanding at the time,
they could not legitimately be criticised for
failing to appreciate that W.H.
was continuing to abuse the applicants.
86. The Government agreed
with the applicants that the social services’ actions were nonetheless
inadequate in certain
respects, particularly with regard to the support offered
to the applicants after W.H.’s conviction in 1977. The most serious
omission was the failure to make a reference to the Reporter of the
Children’s Hearing after that conviction. This would have
been likely to
have led to a supervision order in respect of L., leading to closer contact with
her and the family. Further, there
should have been greater vigilance in
supervising W.H. with less reliance on the assurances of W.H. and the mother
that he was not
living in the home, and the background report on E. prepared for
court in June 1977, and the social enquiry report on L. prepared
in January 1978
and in April 1979 should have referred to the previous circumstances surrounding
the disclosure of abuse and the
conviction of W.H.; there should have been
social work input at the case conference meeting held in relation to L. in March
1979;
and the visit by the police to L. in April 1979 should have led to
discussion about the situation at home.
87. However,
notwithstanding these failings, it could not be said that any different conduct
on the part of the authorities
would have necessarily led to discovery of any
further incidents of abuse by W.H. There had been ongoing contact between the
applicants
and the social services over this period without any disclosures
being made. Similarly, even if the possibility of a breach of probation
proceedings had been more seriously considered, the social services still had
had no concrete evidence that he was living in the
home. In the circumstances,
it could not be said that there was a violation of Article 3 in respect of the
applicants.
B. The Court’s assessment
1. General principles
88. Article 3 enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment. The obligation on High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including such ill-treatment administered by private individuals (see A. v. the United Kingdom judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VI, p. 2699, § 22). These measures should provide effective protection, in particular, of children and other vulnerable persons, and include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge (mutatis mutandis, Osman v. the United Kingdom, judgment of 28 October 1998, Reports 1998-VIII, § 116). Thus a failure, over four and a half years, to protect children from serious neglect and abuse of which the local authority were aware disclosed a breach of Article 3 of the Convention in the case of Z. and Others v. the United Kingdom ([GC] no. 29392/95, ECHR 2001-V, §§ 74-75).
2. Application in the present case
89. The Court recalls that the four
applicants allege that they suffered sexual and physical abuse from W.H. over a
long
period of time. There is no doubt that the treatment described (see
paragraph 43) falls within the scope of Article 3 of the Convention
as inhuman
and degrading treatment. Certain of the assaults on E., L. and T. were subject
to criminal proceedings and W.H. was convicted
in January 1977 and July 1989 in
respect of seven offences.
90. The Government have argued that no
findings of ill-treatment should be made beyond those of the criminal courts as
this would be tantamount to finding W.H. guilty of further criminal offences in
proceedings to which he is not a party. The Court
notes that the Government do
not contest the applicants’ allegations or argue that they are false or
erroneous or unsubstantiated.
The Criminal Injuries Compensation Board indeed
made substantial awards to E., L. and T., which would imply that the allegations
of long standing abuse were upheld. It is true that no award was made to the
second applicant, H., and that no charges concerning
him were ever brought
against W.H.. It does not appear that H. made any disclosure about physical
abuse until relatively late, in
the context of the civil proceedings brought in
1992. However, the statements of the other applicants, his sisters, support his
claims
concerning the violence and physical battering that occurred in the home
and the psychological reports submitted are consistent with
a history of abuse.
91. The Court is satisfied that it may make a finding on the
materials before it, which are uncontroverted, that the applicants
suffered
abuse as described. It does not consider that this may be construed as any
determination of guilt of criminal offences on
the part of W.H., any more than
the accepted findings of ill-treatment of the child applicants in the case of
Z. and Others v. the United Kingdom (cited above) disclosed any
attribution of criminal responsibility on the part of the children’s
parents. Criminal law liability
is distinct from international law
responsibility under the Convention, this Court not being concerned with
reaching any findings
as to guilt or innocence under domestic law (see, for
example, Avşar v. Turkey, no. 25657/94, ECHR 2001, § 284).
92. The question therefore arises whether the local authority
(acting through its Social Work Department) was, or ought
to have been, aware
that the applicants were suffering or at risk of abuse and, if so, whether they
took the steps reasonably available
to them to protect them from that
abuse.
93. The parties appear agreed that it is the period after
January 1977 which is in issue, no disclosures or evidence of
sexual or physical
abuse arising before E.’s overdose and L’. running away from home in
November 1976 and January 1977
respectively. Though in certain statements E. has
a recollection of making a complaint about W.H. in or about 1974, her memory is
uncertain on the details and the applicants do not rely on this as proving
knowledge of the abuse before 1977. The parties do disagree
whether the
authorities should have been aware of the abuse that continued
thereafter.
94. The Court recalls that until T. made disclosures
of sexual abuse to her social worker in 1988 there is no indication
that any of
the children in the house made any complaint about W.H.’s ongoing assaults
after January 1977. The Government take
the view that there was nothing to alert
the social workers that he continued to be a risk and that in the light of
knowledge and
practice at the time the fact that he had been found in the family
home after the conviction in January 1977 would not have been
regarded as any
significant cause for alarm or have provided sufficient ground for action
against him.
95. However, the Court notes that the Government
accept that even if it was not a formal condition of his probation it
would have
been understood that W.H. was no longer permitted to reside in the
applicant’s home. An examination of the materials
reveals the following
factors:
– W.H. had been charged with a series of serious
sexual offences against two children of the family indicating a
background of
repetitive offending;
– the disclosures made by E. in
hospital indicated that there was also an element of physical abuse present in
the
home;
– E. and L. both showed serious levels of distress
and disturbance arising out of the situation of known abuse in
the home, which
had contributed to E. taking an overdose of pills and L. running
away;
– the social enquiry report dated 28 January 1977
produced by the social worker Mr R. noted that W.H. did not appear
to accept the
serious nature of the charges and that the mother also did not accept the
charges against him and talked of marriage;
– that report
concluded that it would be necessary for firm control to be exercised over the
accused for a period
of time;
– the notes of Mr R. gave the
opinion in March 1977 that the mother was still
cohabiting;
– the affidavits of the social worker Mr M.
indicate that he regarded W.H. as dishonest and likely not to tell the
truth
when it suited him;
– Mr M. in the same affidavits recalled
meeting W.H. leaving the home two or three times when he called
unexpectedly;
– a social enquiry report dated 1 June 1977
drawn up in respect of E.’s appearance for criminal damage noted
that she
had left home after a scene with the man cohabiting with her mother, at a date
unspecified but which would appear to be
about March 1977 (see paragraph
22);
96. The Court is satisfied that from these elements that the
social services should have been aware that the situation
in the family
disclosed a history of past sexual and physical abuse from W.H. and that,
notwithstanding the probation order, he was
continuing to have close contact
with the family, including the children. Even if the social services were not
aware he was inflicting
abuse at this time, they should have been aware that the
children remained at potential risk. The fact that at the relevant time
there
was not the knowledge of the prevalence of, and persistence of, sexual offenders
victimising children within a family that
there exists now, is not significant
in this case where, as the applicants emphasise, the social services knew that
there had been
incidences of sexual abuse resulting in criminal offences and
were under an obligation to monitor the offender’s conduct in
the
aftermath of the conviction.
97. Yet the social services failed to
take steps which would have enabled them to discover the exact extent of the
problem
and, potentially, to prevent further abuse taking place. The Government
have accepted that after the initial disclosures the social
services should have
worked with both E. and L. who had shown significant distress at the situation
at home which could have led
to further understanding of family dynamics; and,
most importantly, that the social services should have referred L. to the
Reporter
of the Children’s Hearing, which could have led to a supervision
requirement over one or more of the children who had been
living with a known
and convicted offender.
98. In addition, the Government have
accepted that more should have been done to investigate the possible breach by
W.H.
of the probation order, that there was a consistent failure to place the
full and relevant details of the family situation before
the Sheriff’s
Court or Children’s Hearing when the applicant children were the subject
of a specific examination in the
context of offending and truancy (see
paragraphs 22, 26 and 31), and that there was no effective co-operation or
exchange of information
between the school authorities which were attempting to
deal with a persistent truancy problem and the social services who had access
to
the information about the wider family situation and history. It is also not
apparent that E.’s disclosures at the hospital
in December 1976 were
passed to the social services or that, if they were, they led to any
response.
99. The Court recalls that the Government argued that
notwithstanding any acknowledged shortcomings it has not been shown
that matters
would have turned out any differently, in other words, that fuller co-operation
and communication between the authorities
under the duty to protect the
applicants and closer monitoring and supervision of the family would not
necessarily have either uncovered
the abuse or prevented it. The test under
Article 3 however does not require it to be shown that “but for” the
failing
or omission of the public authority ill-treatment would not have
happened. A failure to take reasonably available measures which
could have had a
real prospect of altering the outcome or mitigating the harm is sufficient to
engage the responsibility of the State.
100. The Court is
satisfied that the pattern of lack of investigation, communication and
co-operation by the relevant authorities
disclosed in this case must be regarded
as having had a significant influence on the course of events and that proper
and effective
management of their responsibilities might, judged reasonably,
have been expected to avoid, or at least, minimise the risk or the
damage
suffered.
101. There has, accordingly, been a breach of Article 3
in respect of the applicants in this case.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION
102. Article 8 of the Convention provides as
relevant:
“1. Everyone has the right to respect for his private and 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.”
103. The applicants referred
to the ill-treatment and assaults to which they were victim and claimed that the
authorities
had failed in their positive obligation to protect them from damage
to their private life.
104. The Government submitted that the
deterrent sanctions against sexual and physical abuse and the statutory system
of
child protection fulfilled any positive obligation imposed by this provision
to protect the applicants from abuse by W.H.
105. Referring to its
finding of a violation of Article 3 above, the Court finds that no separate
issue arises under this
Convention provision.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE
CONVENTION
106. Article 13 of the Convention 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.”
A. The parties’ submissions
1. The applicants
107. The applicants submitted that Article 13 required that they have available to them a means for establishing the liability of State officials for acts or omissions involving a breach of their rights and the possibility of obtaining compensation for the wrong suffered. Advisory remedies such as complaints to the ombudsman were not effective, while the CICB could not attribute blame to the local authority or hold them to account. The compensation paid by the CICB to three applicants related to a separate wrong and not to the substance of their complaint before the Court. It also did not cover pecuniary damage for loss of earnings. The applicants were precluded from suing the local authority for damages in negligence due to the effect of the X. and Others v. Bedfordshire County Council case (cited above).
2. The Government
108. The Government submitted that the applicants did have at their disposal an effective remedy in respect of any alleged failure of the local authority to protect them from abuse. In their view, there was a margin of appreciation available to Contracting States as to how to satisfy the two main elements - a mechanism for establishing liability and the availability of compensation at least for the non-pecuniary damage suffered thereby. Where the damage was caused directly by a perpetrator of abuse and the liability of the local authority was subsidiary or derivative, the requirement for compensation could be met through remedies against the abuser himself or by the State providing awards under a compensation scheme such as the CICB. The applicants could also have obtained a determination of liability through judicial review proceedings, civil proceedings against the local authority (which they chose to withdraw) and the local authority ombudsman. It was not apparent that the applicants’ civil claims would have been rejected for lack of a cause of action as they arguably raised operational matters not affected by the ruling in the X. and Others case, though in the Government’s view it would have failed on the merits. In any event, such proceedings would have provided a procedure by which the applicants’ claims could have been tested in a judicial procedure. As the applicants E., L. and T. had in this case received GBP 25,000, they had already received an effective compensatory remedy.
B. The Court’s assessment
109. 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. The effect of Article 13 is thus to require the
provision of a domestic remedy to deal with the substance
of an “arguable
complaint” under the Convention and to grant appropriate relief, although
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 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. In particular its exercise must not be unjustifiably
hindered by the acts
or omissions of the authorities of the respondent State (see Aksoy v. Turkey,
judgment of 18 December 1996,
Reports 1996-VI, p. 2286, § 95;
Aydın v. Turkey, judgment of 25 September 1997, Reports
1997-VI, pp. 1895-96, § 103; Kaya v. Turkey, judgment of 19 February 1998,
Reports 1998-I, pp. 329-30, § 106).
110. Where alleged
failure by the authorities to protect persons from the acts of others is
concerned, Article 13 may not
always require that the authorities undertake the
responsibility for investigating the allegations. There should however be
available
to the victim or the victim’s family a mechanism for
establishing any liability of State officials or bodies for acts or omissions
involving the breach of their rights under the Convention. Furthermore, in the
case of a breach of Articles 2 and 3 of the Convention,
which rank as the most
fundamental provisions of the Convention, compensation for the non-pecuniary
damage flowing from the breach
should in principle be available as part of the
range of redress (see Z. and Others v. the United Kingdom [GC], no.
29392/95, ECHR 2001-V, § 109; Keenan v. the United Kingdom, no.
27229/95, (Sect. 3), ECHR 2001-III, § 129).
111. In the
present case, the Court has found that the Government failed in their
obligations under Article 3 of the Convention
to take reasonable steps to
protect the applicants from inhuman and degrading treatment. The
applicants’ complaints in this
regard are therefore “arguable”
for the purposes of Article 13 (see Boyle and Rice v. the United Kingdom,
judgment of
27 April 1988, Series A no. 131, p. 23, § 52; the Kaya
judgment, cited above, § 107, and Yaşa v. Turkey, judgment
of
2 September 1998, Reports 1998-VI, p. 2442, §
113).
112. Though awards were made to three applicants by the CICB
and the applicants accept that this may be relevant to any
subsequent question
of just satisfaction, the Board cannot be regarded as providing a mechanism for
determining the liability of
the social services for any negligence towards the
children. In any event, while it provided some compensation to E., L. and T.,
no
award at all was made to H. and the awards that were made did not take into
consideration any pecuniary loss flowing from the
abuse suffered. Similarly,
while a complaint to the local authority ombudsman, at the appropriate time,
might have led to an investigation
of certain aspects of social services
management of the case, it would not have provided a binding determination, the
ombudsman only
having the power to make recommendations. Furthermore, it would
appear that, time considerations aside, the ombudsman in response
to the
applicants’ complaints gave his view that he did not have jurisdiction
since it appeared that they had the possibility
of taking action in the
courts.
113. The Court recalls that, in general, actions in the
domestic courts for damages may provide an effective remedy in
cases of alleged
unlawfulness or negligence by public authorities (see, for example, Hugh
Jordan v. the United Kingdom, no. 24746/94, (Sect. 3), judgment of 4 May
2001, §§ 162-163, extracts published in an annex to McKerr v. the
United Kingdom, ECHR 2001-III). In the present case, the applicants did
lodge a civil action in negligence in the Scottish courts but withdrew their
claims on 4 January 1996 pursuant to counsel’s advice that they were
doomed to failure in the light of the X. and Others case decided by the
House of Lords on 29 June 1995. This decision, which was the subject of
consideration by the Grand Chamber in
the above-mentioned Z. and Others v.
the United Kingdom case, had held that no duty of care existed in respect of
the child applicants’ claims that the local authority in that case
had
been negligent in failing to remove them from their home where they were victims
of abuse and neglect.
114. The Government submitted that it was
not correct to assert that this House of Lords decision prevented all claims
in
negligence against local authorities in the exercise of their child protection
duties, and argued that it could not be regarded
as beyond doubt that these
applicants would have failed as, in the case of these applicants, the social
services arguably were negligent
in the way they approached operational, as
well, as policy matters.
115. It is true that since the case of
X. and Others v. Bedfordshire County Council there have been further
cases in the English courts which indicate that a duty of care may arise where,
for example, the social services
have failed to prevent foreseeable damage to
children either already in their care or affected in other ways by their
exercise of
their duties (see paragraph 73). However, these developments
took place some years after the X. and Others case, which at the time
gave the impression that the highest judicial authority had ruled out the
possibility of suing local authorities
in the exercise of their child protection
functions on grounds of public policy. If taking action at the present time, the
applicants
might, at least on arguable grounds, have a claim to a duty of care
under domestic law, reinforced by the ability under the Human
Rights Act to rely
directly on the provisions of the Convention. The Court is not satisfied that
this was the case at the relevant
time in 1996. While the Government have also
made reference to the possibility of judicial review proceedings, these would
only have
been available to challenge the social services’ actions at the
time that they occurred. The applicant children were not in
a position where
they could make use of such redress.
116. The Court accordingly
finds that the applicants did not have at their disposal the means of obtaining
a determination
of their allegations that the local authority failed to protect
them from inhuman and degrading treatment. There has been in that
respect a
violation of Article 13 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE
CONVENTION
117. 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. Damage
1. The parties’ submissions
118. The applicants submitted that
they were entitled to awards for pecuniary and non-pecuniary damage. While they
accepted
that the CICB awards could be taken into account in assessing loss,
these did not provide full compensation for the severe abuse
which took place
over many years. They claimed in respect of the failure to protect them from
abuse and for anxiety and frustration
an additional GBP 20,000 for E., GBP
37,000 for L. and GBP 5,000 for T., while H. who had not previously obtained any
compensation
claimed GBP 20,000. The applicants claimed for pecuniary damage
sums for loss of earnings because of the effect that the abuse had
had on their
wage earning potential due to their resulting educational and psychological
difficulties – GBP 25,927.55 for E.,
who has only been able to obtain
occasional poorly paid seasonal work, GBP 20,000 for H., who has only been able
to obtain poorly
paid and physically demanding work, GBP 78,548.15 for L. who
has only been able to work on a part time basis and GBP 68,760.64 for
T., who
has been unable to work for long periods. The calculations submitted by the
applicants were stated as taking into account,
inter alia, the length of
time over which the local authority were at fault and the earnings in fact
obtained by the applicants.
119. The Government submitted that
any finding of a violation would in itself constitute just satisfaction. They
did not
consider that any clear causal connection could be shown in respect of
any alleged pecuniary damage and submitted that the applicants’
calculations were artificial and hypothetical. As regards any non-pecuniary
damage it would be necessary to identify precisely the
damage suffered by the
applicants which would not have occurred but for the alleged violation, which
was in the circumstances of
this case difficult bearing in mind the background
of abuse and deprivation already suffered by the applicants prior to January
1977.
Furthermore, the compensation paid by the CICB should be deducted from any
award.
2. The Court’s assessment
120. As regards the applicants’
claims for pecuniary loss, the Court’s case-law establishes that there
must
be a clear causal connection between the damage claimed by the applicant
and the violation of the Convention and that this may, in
the appropriate case,
include compensation in respect of loss of earnings (see, amongst other
authorities, Barberą, Messegué
and Jabardo v. Spain, judgment of
13 June 1994 (Article 50), Series A no. 285-C, pp. 57-58, §§
16-20; Cakıcı
v. Turkey, judgment of 8 July 1999, Reports
1999-IV, § 127).
121. A precise calculation of the sums
necessary to make complete reparation (restitutio in integrum) in respect
of the pecuniary losses suffered by applicants may be prevented by the
inherently uncertain character of the damage flowing
from the violation (Young,
James and Webster v. the United Kingdom (former Article 50), judgment of 18
October 1982, Series A
no. 55, p. 7, § 11). An award may still be made
notwithstanding the large number of imponderables involved in the assessment
of
future losses, though the greater the lapse of time involved the more uncertain
the link becomes between the breach and the damage.
The question to be decided
in such cases is the level of just satisfaction, in respect of both past and
future pecuniary loss, which
it is necessary to award to each applicant, the
matter to be determined by the Court at its discretion, having regard to what is
equitable (Sunday Times v. the United Kingdom (former Article 50) judgment of 6
November 1989, Series A no. 38, p. 9, § 15;
Lustig-Prean and Beckett v.
the United Kingdom (Article 41), judgment of 25 July 2000, §§
22-23).
122. In the present case, the applicants have submitted
reports and assessments arguing that their wage-earning capacity,
even for those
of them who are currently in employment, has been seriously damaged by the past
abuse which they suffered. The Court
observes however that its finding of a
violation relates to the period after January 1977, when the local authority
should have been
aware that they were at risk of abuse. The applicants had
already suffered long periods of violence and assault - E. and H. from
1967, L.
from about 1969 and T. from 1971. As E. left home in or about March 1977, H. in
or about 1978, L. in 1979 and T. in 1984.
The period of abuse suffered by the
oldest three applicants therefore after January 1977 was relatively short
compared with the prior
period.
123. While the reports submitted
by the applicants attempt to attribute pecuniary loss to the local authority by
taking
into account this time element, the Court considers that the
psychological injury and the ongoing impact on their ability to lead
normal
lives would almost certainly have existed even if no abuse had occurred after
1977. It appears to this Court impossible to
assess what additional damage was
caused after that date. The Court also considers that it must have regard to the
fact that, though
the local authority did fail to take reasonable steps to avoid
the risk, this is not a case where those failings can be regarded
as being
causally connected with the totality of any damage suffered during that period.
If the local authority had acted with more
care in monitoring and supervising
the family, though this would have increased the likelihood of uncovering the
ongoing abuse, it
can only be speculative as to at what stage this would have
occurred and how effective the measures taken would have
been.
124. In the light of these uncertainties and the
difficulties of attributing any specific degree of damage to the failings
of the
local authority, the Court has decided to award a global figure, for pecuniary
and non-pecuniary damage together, taking into
account as conceded by the
applicants the awards made in respect of the non-pecuniary damage by the
CICB.
On an equitable basis therefore, it awards the sum of 16,000 euros
(EUR) each to E., H. and L. and the sum of EUR 32,000 to T.
B. Costs and expenses
125. The applicants
claimed a total of GBP 52,146.65 (inclusive of VAT), including GBP 29,554.74 for
solicitors’
fees, covering their work on behalf of the applicants from
1994 (applications to the CICB, the Legal Aid Board, local authority ombudsman
and the European Commission and Court of Human Rights), GBP 21,150 for
counsels’ fees, GBP 4,022.91 fees to the social work
consultant for his
reports and GBP 1,350 for medical reports on the
applicants.
126. The Government submitted that the sums claimed
were excessive and that if an award was made it should not be more
than GBP
20,000.
127. Having regard to the complexity of the case and the
amounts awarded in other cases, and making an assessment on an
equitable basis,
the Court awards EUR 64,000, inclusive of VAT.
C. Default interest
128. The Court considers
it appropriate that the default interest should be based on the marginal lending
rate of the European
Central Bank to which should be added three percentage
points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 3 of the Convention;
2. Holds that no separate issue arises under Article 8 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, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts to be converted into pounds sterling at the date of settlement:
(i) EUR 16,000 (sixteen thousand euros) each to E., H. and L. and EUR 32,000 (thirty two thousand euros) to T. in respect of damage;
(ii) EUR 64,000 (sixty four thousand euros) in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 26 November 2002, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. EARLY J.-P. COSTA
Deputy Registrar President
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