Z v UK (2001)

Applicants,
four siblings, subjected to extreme ill-treatment by their parents.
Despite
clear evidence, social services did not take children into care til 5 years had
passed.
Applicants
claimed damages from local auth.
Failed
in Court of Appeal and House of Lords [where case known as X v Beds]
House
of Lords held:
Claim
for breach of statutory duty failed on ground that relevant legislation
disclosed no intention to create private law cause of action.
Claim
in negligence failed on third limb of Caparo
test (ie should be fair, just and reasonable to impose duty of care).
Applicants
then went to ECtHR, alleging violations of Articles 3,6,8 and 13.
ECtHR
held:
Ill-treatment
suffered by applicants was enough to amount to ‘inhuman and degrading
treatment’ under Article 3, and local authority’s failure to protect from this
harm amounted to violation of Article.
Hence
unnecessary for court to consider apps’ claim that their physical and moral
integrity had been infringed in breach of Article 8.
Then
asked:
Was
House of Lords decision to allow action to be struck out a violation of right
of access to court under Article 6?
Applicants
relied here on Osman.
In
present case however ECtHR took different view to that in Osman.
Found
House of Lords’s decision that local authority owed no duty of care to the
applicants did not amount to giving the authority an immunity.
Accepted
that, as matter of domestic law, the ‘fair, just and reasonable’ criterion was intrinsic
element of duty of care which had to be satisfied before negligence could be
established.
Moreover,
criterion had not been applied as an immunity in practice:
House
of Lords had given detailed consideration in this case to relevant policy
factors, and there were other cases in which the courts had found that local
authorities might be under a duty of care in respect of certain aspects of
child protection, such as W v Essex CC and
Barrett v Enfield LBC.
Also
acknowledged that the strike-out procedure did permit applicants to put their
legal arguments before a court and could not therefore be said to amount to a
denial of access.
Then
asked whether apps’ inability to recover compensation for violation of their
rights was breach of Article 13, which entitles Vs of rights violations to ‘an
effective remedy before a national authority’.
Decided
there was breach.
Noted
that in future HRA 1998 would enable Vs to obtain compensation in English
courts.
Then
awarded applicants compensation for pecuniary and non-pec losses under Article
41.
[So
ECtHR retreated from Osman.
Now
widely accepted that Osman involved
fundamental errors both as to ECtHR’s proper role in an Article 6 case, and as
to the structure of the tort of negligence in English law.
Although
ECtHR recognised in Z that the ‘fair,
just and reasonable’ test was not an immunity in law, courts will still have to
examine claimants’ policy arguments ‘properly and fairly’ if they are not to
fall foul of Article 6].