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Press release issued by the Registrar The European Court of Human Rights has today delivered a Grand Chamber judgment in the case of T.P. and K.M. v. the United Kingdom (application no. 28945/95 ). The Court held unanimously that there had been: a violation of
Article 8 (right to respect for family life) of the European Convention
on Human Rights; Under Article 41 (just satisfaction) of the Convention, the Court awarded 10,000 pounds sterling (GBP) to each applicant for non-pecuniary damage and GBP 25,000 for costs and expenses. 1. Principal facts This case concerns an application brought by a mother, T.P., and daughter, K.M., both British nationals, born in 1965 and 1983 respectively and resident in Chelmsford. Between 1984 and 1987, the local authority, the London Borough of Newham, suspected that K.M. was being sexually abused. Following a case conference on 2 July 1987, K.M. was placed on the Child Protection Register under the category of emotional abuse. On 13 November 1987, K.M., then aged four, was interviewed by a consultant child psychiatrist, Dr V. A social worker, Mr P. was present during the interview, which was videoed. In the course of the interview, K.M. disclosed that she had been abused by someone named "X". T.P.’s boyfriend, "XY", who lived with the applicants, shared the same first name, "X", as the abuser. However, K.M. indicated that "XY" was not the abuser and stated that "X" had been thrown out of the house. T.P. was informed that K.M. had disclosed that she had been sexually abused by "XY". When she became agitated and angry, Dr V. and Mr P. concluded that T.P. would be unable to protect the second applicant from abuse and that she was attempting to persuade K.M. to retract her allegation. They removed K.M. from the care of her mother immediately. On 13 November 1987, the local authority applied successfully to Newham magistrates court for a place of safety order of 28 days. On 24 November 1987, T.P., having excluded all men from her home, applied for the second applicant to be made a ward of court. The local authority was awarded care and control of the K.M. and T.P. was granted limited access. In or about October 1988, T.P.’s representatives applied for access to the video of the disclosure interview. The health authority and Dr V. lodged an objection to disclosure of the video to the first applicant. On an unspecified date at or about that time, T.P.’s solicitors had sight of the transcript. The transcript showed that K.M. had said that "XY" had not abused her and that she had identified her abuser as having been thrown out of the house by T.P. These matters were raised by the first applicant’s solicitors with the local authority. On 21 November 1988, after a hearing in the High Court where the local authority recommended that the second applicant be rehabilitated to the first applicant, it was ordered by consent that K.M. remain a ward of court and that interim care and control be committed to the local authority who had leave to place her with T.P. K.M. remained with T.P. from that time onwards. On 8 November 1990, the applicants issued proceedings making numerous allegations of negligence and breach of statutory duty against the local authority, the central allegation being that the social worker, Mr P. and the psychiatrist, Dr V. failed to investigate the facts with proper care and thoroughness. The applicants claimed that as a result of their enforced separation each of them had suffered a positive psychiatric disorder. Following proceedings which terminated in the House of Lords, the applicants’ claims were struck out. In the judgment given on 29 June 1995, which concerned three cases, Lord Browne-Wilkinson held, among other things, that public policy considerations were such that local authorities should not be held liable in negligence in respect of the exercise of their statutory duties safeguarding the welfare of children. 2. Procedure The case was lodged with the European Commission of Human Rights on 2 August 1995 and declared admissible on 26 May 1998. In its report (available on HUDOC on the Court’s Internet site: www.echr.coe.int) the Commission expressed the opinion: by 17 votes to 2, that there had been a violation of Article 8; by 18 votes to 1, that there had been no violation of Article 6 in respect of the first applicant T.P.; by 10 votes to 9 that there had been a violation of Article 6 in respect of the second applicant K.M.; by 18 votes to 1 that there had been a violation of Article 13 in respect of the first applicant; and by 10 votes to 9 that no separate issue arose under Article 13 in respect of the second applicant. The case was referred to the Court by the Commission on 25 October 1999 and a public hearing was held on 28 June 2000. 3. Composition of the Court Judgment was given by the Grand Chamber of 17 judges, composed
as follows: Luzius Wildhaber (Swiss), President, 4. Complaints The applicants alleged that K.M. had been unjustifiably taken into care and separated from her mother T.P. and that they had had no access to court or effective remedy in respect of that interference with their rights. They relied on Articles 8, 6 § 1 and 13 of the Convention. 5. Decision of the Court Article 8 The Court concluded that the question whether to disclose the video of the interview and its transcript should have been determined promptly to allow T.P. an effective opportunity to deal with the allegations that her daughter K.M. could not be returned safely to her care. Noting that the local authority’s failure to submit the issue to the court for determination meant T.P. was not adequately involved in the decision-making process concerning the care of her daughter, K.M., the Court found a failure to respect the applicants’ family life and a breach of Article 8. Article 6 Concerning the applicability of Article 6, the Court was satisfied that at the outset of the proceedings there was a serious and genuine dispute about the existence of the right asserted by the applicants under the domestic law of negligence. In such circumstances, the Court found that the applicants had, on at least arguable grounds, a claim under domestic law and that Article 6 was therefore applicable to the proceedings brought by these applicants alleging negligence by the local authority. Concerning compliance with Article 6, the Court observed, firstly, that the applicants were not prevented in any practical manner from bringing their claims before the domestic courts. Indeed, the case was litigated with vigour up to the House of Lords, the applicants being provided with legal aid for that purpose. Nor was it the case that any procedural rules or limitation periods were invoked. The domestic courts were concerned with the application brought by the defendants to have the case struck out as disclosing no reasonable cause of action. This involved the pre-trial determination of whether, assuming the facts of the applicants’ case as pleaded were true, there was a sustainable claim in law. Nor was the Court persuaded that the applicants’ claims were rejected due to the application of an exclusionary rule. The decision of the House of Lords found, applying ordinary principles of negligence law, that the local authority could not be held vicariously liable for any alleged negligence of the doctor and social worker. Lord Browne-Wilkinson noted that the applicants had not argued any direct duty of care was owed to them by the local authority. It could not therefore be maintained that the applicants’ claims were rejected on the basis that it was not fair, just and reasonable to impose a duty of care on the local authority in the exercise of its child care functions. The applicants had submitted that this ground was included in their original statement of claim and in the written pleadings on appeal. Since however this ground was not in fact relied upon in the proceedings conducted before the House of Lords, the Court cannot speculate as to the basis on which the claims might have been rejected if they had been so formulated and argued. The decision of the House of Lords did end the case, without the factual matters being determined on the evidence. However, if as a matter of law, there was no basis for the claim, the hearing of evidence would have been an expensive and time-consuming process which would not have provided the applicants with any remedy at its conclusion. There was no reason to consider the striking out procedure which rules on the existence of sustainable causes of action as per se offending the principle of access to court. The applicants might not claim therefore that they were deprived of any right to a determination on the merits of their negligence claims. Their claims were properly and fairly examined in light of the applicable domestic legal principles concerning the tort of negligence. Once the House of Lords had ruled on the arguable legal issues that brought into play the applicability of Article 6 § 1, the applicants could no longer claim any entitlement under Article 6 § 1 to obtain any hearing concerning the facts. There was no denial of access to court and, accordingly, no violation of Article 6. Article 13 The Court considered that the applicants should have had available to them a means of claiming that the local authority’s handling of the procedures was responsible for the damage which they suffered and obtaining compensation for that damage. It did not agree with the Government that pecuniary compensation would not provide redress. If, as was alleged, psychiatric damage occurred, there might have been elements of medical costs as well as significant pain and suffering to be addressed. The possibility of applying to the ombudsman and to the Secretary of State did not provide the applicants with any enforceable right to compensation. The Court found that the applicants did not have available to them an appropriate means for obtaining a determination of their allegations that the local authority breached their right to respect for family life and the possibility of obtaining an enforceable award of compensation for the damage suffered thereby. Consequently, they were not afforded an effective remedy and there has, accordingly, been a violation of Article 13. Lady Justice Arden expressed a concurring opinion which is annexed to the judgment. *** The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int). Registry of the European Court of Human Rights The European Court of Human Rights was set up in Strasbourg in
1959 to deal with alleged violations of the 1950 European Convention
on Human Rights. On 1 November 1998 a full-time Court was established,
replacing the original two-tier system of a part-time Commission
and Court.
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