When children have the right to protection

Liberty and the Public Law Project have established a specialist telephone advice services for practitioners on human rights and public law.

In our regular series, their group of experts answers some frequently asked questionsQ I act for a child who suffered dreadful abuse at the hands of his stepparent.

Despite frequent attempts by his teachers and the police to involve social services, little was done to prevent the abuse or to remove the child.

He eventually was admitted to hospital suffering serious injuries.

Does he have an action in negligence against social services? If no such action is possible because of domestic law, does this amount to a violation of article 6?

A This scenario was considered by the European Court of Human Rights (ECHR) in the case of Z and others v UK (application no.

29392/95, 10 May 2001).

This application followed the decision in X v Bedfordshire County Council [1995] 2 AC 633, in which the House of Lords held that no action lay against the local authority in negligence in the discharge of its duties under the Children Act 1989 in respect of child care for reasons of public policy.The law of negligence with respect to actions against the police was similar in Hill v Chief Constable of West Yorkshire [1989] AC 53.

The House of Lords rejected the claimant's claim that the police owed a duty of care to members of the public in the investigation and suppression of crime, on public policy grounds.In Osman v Ferguson [1993] 4 All ER 344 the Court of Appeal, following Hill, had struck out the applicants' claim against the police that alleged negligence in their failure to prevent the killing and wounding of members of the family by a named individual who the police had been warned was a danger to them.

It held that it would not be fair, just and reasonable to impose a duty of care on the police.

However, in the case of Osman v UK (2000) 29 EHRR 245 the ECHR found that this rule breached article 6 of the convention.

It held that the rule, conferring on the police blanket immunity from negligence claims, was a disproportionate restriction on the right of access to a court, a fundamental aspect of the right to a fair trial.This was a controversial decision.

The ECHR was said to have exceeded its role as an international overseer of human rights and had used the right to a fair trial to create rights that did not exist in domestic law, which article 6 does not allow.In Z and Others v UK, the ECHR found that the failure of the system to protect the applicants from neglect and abuse was a violation of the article 3 prohibition on inhuman and degrading treatment.

Furthermore, it found that there had been a breach of article 13 in that there was no effective domestic remedy to deal with the substance of an arguable complaint under the convention and to grant relief.

Damages were awarded.However, the ECHR rejected the applicants' complaint that the exclusionary rule applied by the House of Lords amounted to a violation of article 6, thus departing from its decision in Osman.

It noted that the applicants had not been prevented from making the claim and were able to take the case all the way to the House of Lords, with legal aid.The decision that it was not fair, just or reasonable to impose a duty of care in such cases, where to do so would create a new category of negligence, was not such as to create an exclusionary rule or an immunity.

Strike out procedures, in which a ruling on the existence of causes of action is made, do not per se offend the principle of access to a court.The ECHR reiterated the principle that article 6 does not guarantee any particular content for civil rights in national law.

It considered that the reasoning in Osman was based on an understanding of the law of negligence which had to be reviewed in the light of clarifications subsequently made by the domestic courts, particularly by the House of Lords, referring to Barrett v Enfield London Borough Council [1999] 3 WLR 79.

The gap that the applicants identified in domestic law in not having a remedy for the violation of article 3 gave rise to an issue under the convention but was an issue under article 13, not article 6.

Where does this leave your client? In Z and others v UK the ECHR had no hesitation in finding that the horrific treatment suffered by the applicants reached the level of severity prohibited by article 3 and that the state had failed in its positive obligation to protect the children against inhuman and degrading treatment.

In TP and KM v UK (application no.

28945/95, 10 May 2001), a violation of article 8 was found from a decision to remove a child from her mother.

In both cases a violation of article 13 had occurred because there was no domestic remedy available.

The Human Rights Act 1998 will now provide a remedy in such cases where the failure to protect or the interference with respect for family life amounts to a breach of human rights, where it occurs after 2 October 2000, and a free-standing application under that act should be made.

In cases where the violation occurred before that date, application should be made to the ECHR.l The human rights and public law line is free to all practitioners with a civil or criminal contract with the Legal Services Commission.

It is open Monday and Wednesdays 2pm to 5pm and Tuesday and Thursday 10am to 1pm, tel: 0808 808 4546.