four siblings, subjected to extreme ill-treatment by their parents.
clear evidence, social services did not take children into care til 5 years had
claimed damages from local auth.
in Court of Appeal and House of Lords [where case known as X v Beds]
of Lords held:
for breach of statutory duty failed on ground that relevant legislation
disclosed no intention to create private law cause of action.
in negligence failed on third limb of Caparo
test (ie should be fair, just and reasonable to impose duty of care).
then went to ECtHR, alleging violations of Articles 3,6,8 and 13.
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.
unnecessary for court to consider apps’ claim that their physical and moral
integrity had been infringed in breach of Article 8.
House of Lords decision to allow action to be struck out a violation of right
of access to court under Article 6?
relied here on Osman.
present case however ECtHR took different view to that in Osman.
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.
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
criterion had not been applied as an immunity in practice:
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.
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.
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’.
there was breach.
that in future HRA 1998 would enable Vs to obtain compensation in English
awarded applicants compensation for pecuniary and non-pec losses under Article
ECtHR retreated from Osman.
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.
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].