Family lawBy David Burrows, David Burrows, Bristol

Human Rights Act 1998 and the local authority's treatment of childrenTwo recent cases in the European Court of Human Rights have looked at claims where local authorities are said to have failed in their duties towards children.

The first examines the consequences where an authority fails to keep an eye on children where their problems are already known.

The second demonstrates a local authority's failure to disclose important evidence to a parent and to the court.

Both cases had been considered by the House of Lords (X (Minors) v Bedfordshire County Council and related cases [1995] 2 FLR 276); but the effect of the European court's decisions may be to create a tort of which all child care specialist lawyers should be aware (alongside claims for the provision of services under section 17 of the Children Act 1989), where parents or children have been neglected by a local authority.Failure to protect children: breach of the European Convention on Human Rights Z and ors v United Kingdom (Application No 29392/95) (2001) The Times, 31 May, ECHRIn Z and ors v United Kingdom, four children suffered serious psychological disturbance and physical neglect at the hands of their parents.

The House of Lords struck out their claims in negligence against the local authority (see X v Bedfordshire (above)).

On their application to the European Court of Human Rights, the court held unanimously that the UK had failed to protect the children from serious, long-term neglect and abuse; and this was a breach of their fundamental right not to be 'subjected to....inhuman or degrading treatment' contrary to article 3 of the convention.

These rights extended to protection from ill-treatment at the hands of private individuals, including their parents.

From the time that it was first aware of the treatment being suffered by the children - October 1987 - the local authority had a duty to protect them; though the children were not taken into care until April 1992.

Since it had found a breach under article 3, the court held that there was no need for it to consider the application under article 8 (right to respect for family life).On the question of whether the children should have had a right to sue their local authority in negligence, the court found (on a majority of 12 to 5) that there had been no breach of article 6(1) (right to a fair trial) when the applicant's claim in tort was struck out by the House of Lords (but see Osman v United Kingdom (Case No 100/1997/884/1996) [1999] 1 FLR 193 on the limits on a court's ability to strike out a claim).

However, the fact that a person, especially a child, in the position of these applicants, was unable to pursue a remedy in damages against the local authority put the UK in breach of article 13.

The applicants were not afforded an effective means of seeking redress for their treatment by the council.

In application of article 41 the court awarded damages and costs and expenses to the application.Local authority's duty to disclose TP and KM v United Kingdom (Application No 28945/95) (2001) The Times, 31 May, ECHRIn TP and KM v United Kingdom as a result of a local authority's failure to disclose the full facts, known to the authority, about a child's allegations as to sexual abuse, KM was taken into care where she remained for some three years before being returned to her mother TP once the full facts became known to the court.The applicants claimed that they had suffered psychiatric disorder as a result of the local authority's actions in failing to disclose all the information they held.

That claim was struck out as disclosing no cause of action (X v Bedfordshire (above)).The council should have disclosed the video to TP promptly to enable her to deal with the case against her.

Failure to disclose meant that TP was not properly involved in the decision-making process concerning her daughter; and thus there was a failure to respect the applicant's family life contrary to article 8.

There was no breach of article 6(1) (right to a fair trial) said the court.

The mother was not prevented from applying in the family courts.

The negligence claim was considered fully under the law as it then stood; and, after that full consideration, the House of Lords had held that the claim should be struck out.

Thus there was no denial to the mother of access to the courts.

As with Z v United Kingdom and ors (above) the court held that the means of seeking compensation for the applicants was inadequate in breach of article 13; and accordingly damages and a payment for costs were awarded to the applicants.Damages for victims under Human Rights Act 1998 - a new tort?Neither of these decisions directly effects the decision in X v Bedfordshire, nor Lord Browne-Wilkinson's assessment of the basis for dismissal of a claim in tort against a local authority.

However, in the Z case the government did assure the court that in future claims under the Human Rights Act 1998 would be able to be pursued by victims in such civil courts as can award damages (see section 8 of the Human Rights Act 1998 which provides for judicial remedies under the Act).

Has a tort or breach of article 13 been created to enable claims to be made against public authorities? Barrett v Enfield LBC [1999] 3 WLR 79, HL narrowed the basis for striking out claims against a local authority.

These two decisions narrow the scope for striking out still further.Costs: success on only part of a caseStocznia Gdanska SA v Latvian Shipping Co and ors (2001) The Times, 25 MayIn Stocznia Gdanska SA v Latvian Shipping Co and ors, Mr Justice Thomas explained that Civil Procedure Rules 1998, rule 44.3(b) (which enables the court to consider whether or not a party has succeeded on the whole of his claim) enabled the court to make an order for less than the full amount of the costs where a party abandons or fails on two out of three distinct parts of his claim.

This confirms the approach taken by the Court of Appeal on costs in Re Elgindata (No 2) [1992] 1 WLR 1207, CA, an approach subsequently approved by Mr Justice Thorpe (as he then was) in Dart v Dart [1996] 2 FLR 286, CA.Thus a party may be successful on one or the main issue in an application, but still find costs reduced or even awarded against him (as happened in Elgindata) where a distinct issue or part of the case has been decided against him.

And the court has power to offset any earlier orders for costs against later successful orders (Civil Procedure Rules 1998 rule 44.3(9)(a)).