Z and Others v United Kingdom, ECtHR, 10 May 2001

TP and KM v United Kingdom, ECtHR, 10 May 2001

Prepared by Roderick Bagshaw,

Mansfield College, Oxford University,

on 11 May 2001

v UK

Z and Others v United Kingdom:

Applicants: Four children who the local authority failed for a considerable time to protect against neglect and abuse at home. [See X v Bedfordshire CC [1995] 3 All ER 353]

The European Court of Human Rights found that the United Kingdom had breached Article 3 of the Convention (protection against torture, inhuman or degrading treatment and punishment) and Article 13 (effective remedy before a national authority).

By 12 votes to 5 the European Court of Human Rights concluded that the United Kingdom had not breached Article 6 (1) of the Convention.

The first issue was whether there was ever a sufficient dispute about the applicants' "civil rights" at all. If there was not a genuine dispute then there would be no need for the applicants to be granted access to court to resolve it. On this point the European Court of Human Rights found that "at the outset of the proceedings [for negligence] there was a serious and genuine dispute about the existence of the right asserted by the applicants under the domestic law of negligence. … Article 6 was therefore applicable." (paras. 89, 90)

Consequently, the second issue was whether there had been a denial of access to court to resolve the dispute. [If there had been a denial of access to court the third question would have been whether this denial was proportionate to a legitimate aim.] On the second issue the majority of the European Court of Human Rights concluded, "The applicants may not … claim that they were deprived of any right to a determination on the merits of their negligence claims. Their claims were properly and fairly examined in light of the applicable domestic legal principles concerning the tort of negligence. Once the House of Lords had ruled on the arguable legal issues that brought into play the applicability of Article 6 (1) of the Convention … [i.e. issue one above]… the applicants could no longer claim any entitlement under Article 6 (1) to obtain any hearing concerning the facts. … [S]uch a hearing would have served no purpose, unless a duty of care in negligence had been held to exist in their case. It is not for this Court to find that this should have been the outcome of the striking out proceedings since this would effectively involve substituting its own views as to the proper interpretation and content of domestic law." (para. 101).

Two important steps in reaching this conclusion on the second issue were:

(1) The European Court of Human Rights stated, "the Court is not persuaded that the House of Lords' decision that as a matter of law there was no duty of care in the applicants' case may be characterised as either an exclusionary rule or an immunity which deprived them of access to court." (para. 96). Instead the Court characterised the House of Lords decision as a decision not to extend the tort of negligence into a particular novel area. The Court also stressed that the decision concerned only a narrow range of local authority powers and involved a careful balancing of policy reasons. The Court made the important statement that, "It is not enough to bring Article 6 (1) into play that the non-existence of a cause of action under domestic law may be described as having the same effect as an immunity, in the sense of not enabling the applicant to sue for a given category of harm." (para. 98).

(2) The majority of the European Court of Human Rights thought that the decision in Osman v UK had been "based on an understanding of the law of negligence … which has to be reviewed in the light of the clarifications subsequently made by the domestic courts and notably the House of Lords." The majority does not expressly state that Osman v UK was wrongly decided, but that seems to be the implication. The dissenting minority (5 judges) thought that Osman was indistinguishable. Judge Thomassen (dissenting, and with the agreement of two others) stated "The majority's reasons for not following the Osman case … are not, to my mind, convincing. There seem to have been no striking or significant changes in the law of negligence since that case and all relevant matters concerning the content of domestic law had been brought to the attention of the Court by the parties in the Osman case. I'm of the opinion that the conclusion under Article 6 in this case must be the same."

*General comments follow the summary of TP and KM

v UK

Applicants: Mother and daughter. Daughter removed from mother's care after erroneous conclusion as to who was responsible for child abuse. Not returned to mother's care until a year later. Delay in disclosing to the mother the evidence leading to the initial conclusion reduced the prospect of an earlier return.

Decision: The European Court of Human Rights found that the United Kingdom had breached Article 8 of the Convention (respect for family life) and Article 13 (effective remedy before a national authority).

The European Court of Human Rights concluded that the United Kingdom had not breached Article 6 (1) of the Convention.

The European Court of Human Rights reasoning follows the same pattern as in the Z v UK case.

Thus the Court concluded that the applicants did have a sufficiently arguable claim in negligence to be able to invoke Article 6 (1), (para. 94), but that there was denial of access to court. As in Z v UK the European Court of Human Rights stated that it was not "persuaded that the applicants' claims were rejected due to the application of an exclusionary rule" (para. 101).

An interesting point relating to compensation: It may be worth noting that in this case the European Court of Human Rights thought that a larger award of damages was appropriate for the violations of Articles 8 and 13 than an English court would have awarded if it had been found that a tort had been committed. Arden LJ, who sat as the UK judge for this case, suggested that the guideline figures for comparable psychiatric injuries in England would be between 500 and 2,250 pounds. The European Court of Human Rights awarded each applicant 10,000 pounds. The main reason for the difference seems to have been that the European Court of Human Rights thought that non-pecuniary damage included distress, anxiety, and feelings of frustration and injustice.

General Comments

General Comments on Both Cases

It is hard to avoid the conclusion that the European Court of Human Rights has backed away from its decision in Osman v UK on Article 6(1). The majority seems to have accepted that a judicial refusal to extend the scope of the tort of negligence beyond previously recognised categories is not necessarily a denial of access to a court. Moreover, it seems to have accepted that such a decision can be made (a) at the stage of striking out - i.e. before any detailed fact-finding, and (b) without taking into account individual case factors such as the severity of the fault proved against the particular defendant and the severity of the harm suffered by the particular claimant. Thus, in future it seems likely that litigants in cases such as these will concentrate on trying to prove that public officials and bodies has violated other substantive Articles (such as Articles 2, 3 and 8) so that damages can be claimed under the Human Rights Act 1998.

There are, however, a couple of reasons for remaining cautious about the future.

First, five judges in the Z v UK case re-asserted the reasoning behind the Osman decision. Thus it is clear that not everyone is convinced that the English approach to duty of care in negligence is compatible with good human rights standards. This ought to be a matter of concern for English tort lawyers even if their current approaches are no longer at risk from immediate overturn from Strasbourg.

Second, the majority's reasons for concluding that the decisions in X v Bedfordshire CC and M v Newham LBC did not amount to 'exclusionary rules' or 'immunities' are not particularly easy to follow. The Court contrasts what occurred in those cases with "arbitrary removal of the courts' jurisdiction to determine a whole range of civil claims". It seems likely that the fact that the English courts did not treat the earlier decisions as preventing them from dealing with similar but distinguishable claims in Barret v Enfield LBC and W v Essex CC was an influential factor in determining which side of the contrast the earlier decisions fell. Consequently, it may be important in the future for English courts to continue to deal with policy concerns in the fine-tuned and context-sensitive manner that has been more evident after Osman than before it.

END