Domestic violence / abuse
II. RELEVANT DOMESTIC LAW AND PRACTICE Probation 61. Imprisonment is used in Scotland only where there is no alternative. One alternative is probation, which was at the relevant time imposed under section 384 of the Criminal Procedure ( Scotland ) Act 1975. When an offender is placed on probation he is allowed to retain his liberty during the period of probation but must comply with the requirements of the probation order. In all cases the order requires the offender to be of good behaviour, conform to the directions of the supervising officer and to inform the supervising officer if he changes residence or employment. Other requirements may be imposed, such as conditions as to the place of residence. If the offender fails to comply with requirements of the probation order, that failure may be reported to the sentencing court by the supervisory officer or other responsible officials of the Social Work Department. The supervising officer has a degree of discretion where there is an apparent breach of the order. He may warn the probationer about the conduct if he considers a warning is likely to alter the probationer’s behaviour. If he reports the matter to the court, the court then investigates the matter. If the failure is proved to its satisfaction, the court can impose a variety of penalties including sentencing the probationer to imprisonment for the offence for which he was placed on probation. Child care provisions 62. The care and protection of children in Scotland was governed for most of the relevant period by the Social Work ( Scotland ) Act 1968 (the “1968 Act”). 63. There was a duty on local authorities under section 15(1) of the 1968 Act to receive a child under 17 into care when it appeared to an authority that his parent or guardian was unable, by reasons of illness, mental disorder or other circumstance, from providing proper accommodation, maintenance and upbringing. The test was whether the intervention was necessary in the interests of the welfare of the child. Compulsory measures of care were also required under section 32 for children in need, including those who were suffering unnecessarily or were the victims of cruelty. Under section 37(1), anyone with reasonable cause to believe a child fell into this category could inform the Reporter to the Children’s Panel of the matter. 64. The Children’s Panel was a tribunal specifically designed to cope with cases involving children. The Reporter had investigative powers to establish the condition of the welfare of the child and had three options: to take no further action, to refer the case to the Social Work Department for them to give guidance or support, or to convene a Children’s Hearing. The Children’s Panel had the power to order the child to submit to a supervision requirement in accordance with such conditions as it saw fit or to reside in a special establishment. 65. After the entry into force of the Children Act 1975, the local authority had a duty to cause inquiries to be made, unless it did not deem them necessary. 66. Under section 37(2) of the 1968 Act, a police constable or other person authorised by a court or justice of the peace could take a child to “a place of safety”, e.g. if offences had been committed in relation to the child, including cruelty or the infliction of unnecessary suffering. Remedies available to victims of abuse Civil actions 67. Physical or sexual abuse of a child will generally constitute a civil wrong (such as assault), as well as a criminal offence, and give rise to an action for damages by the perpetrator. 68. Actions in civil damages may also lie against the social work department (local authority) either in respect of alleged wrongdoing (e.g. negligence, or wilful abuse of power) for its own actions or vicariously for the actions of its staff. 69. Under Scots law, a body carrying out statutory functions will be liable in damages to a person affected by its performance or non-performance of those functions (in the absence of a wilful disregard of its duties) only if the statute expressly or impliedly provides for such a liability, or the relationship between the statutory body and the person in question is of such a nature as to create a common law duty of care, and the statutory body violated that duty (i.e. was negligent). 70. As set out in Z. and Others v. the United Kingdom [GC], (no. 29392/95, ECHR 2001-V), negligence arises in specific categories of situations. These categories are capable of being extended. There are three elements to the tort ( delict ) of negligence: a duty of care, breach of the duty of care and damage. The duty of care may be described as the concept which defines the categories of relationships in which the law may impose liability on a defendant in damages if he or she is shown to have acted carelessly. To show a duty of care, the claimant must indicate that the situation comes within an existing established category of cases where a duty of care has been held to exist. In novel situations, in order to show a duty of care, the claimant must satisfy a threefold test, establishing: – that damage to the claimant was foreseeable; – that the claimant was in an appropriate relationship of proximity to the defendant; and – that it is fair, just and reasonable to impose liability on the defendant. The leading case is Caparo Industries v. Dickman ([1990] 2 AC 605). 71. If the courts decide that as a matter of law there is no duty of care owed in a particular situation, that decision will (subject to the doctrine of precedent) apply in future cases where the parties are in the same relationship. 72. The decision in X and Others v. Bedfordshire County Council ([1995] 3 AER 353) is the leading authority in the United Kingdom in this area. The House of Lords there held that local authorities could not be sued for negligence or for breach of statutory duty in respect of the discharge of their functions concerning the welfare of children. The children in that case had suffered severe neglect and abuse from their parents and had alleged that the local authority had failed to protect them, inter alia, by not exercising their power to take them into care at an earlier stage. As regards the claims that the local authority owed a duty of care to the applicants pursuant to the tort of negligence, Lord Browne-Wilkinson in his leading judgment found that no duty of care arose as it was not fair, just or reasonable to impose one on the local authority in their exercise of this aspect of their duties. 73. More recently, in the case of W. and Others v. Essex County Council ([1998] 3 AER 111) in a case concerning the claims of a family, parents and children, that they had suffered abuse and damage due to the foster placement in their home by the local authority of a 15 year old boy who was a suspected sexual abuser, the Court of Appeal held that a duty of care lay towards the children of the family, while the House of Lords on 16 March 2000 ([2000] 2 WLR 601) held that the parents could also arguably claim that they were owed a duty of care. The House of Lords had also given judgment on 17 June 1999 in Barrett v. the London Borough of Enfield ([1999] 3 WLR 79). That case concerned the claims of the plaintiff, who had been in care from the age of ten months to seventeen years, that the local authority had negligently failed to safeguard his welfare causing him deep-seated psychiatric problems. The local authority had applied to strike out the case as disclosing no cause of action. The House of Lords, upholding the plaintiff’s appeal, unanimously held that the case of X and Others v. Bedfordshire County Council did not in the circumstances of this case prevent a claim of negligence being brought against a local authority by a child formerly in its care. Criminal Injuries Compensation 74. The Criminal Injuries Compensation Authority (known at the relevant time as the Criminal Injuries Compensation Board – CICB) may make an award where it is satisfied on the balance of probabilities that an applicant is a victim of a criminal offence and suffered the harm alleged. Payments of some 210 million GBP are paid out each year. However, under the rules in force until 1 October 1979, there was a complete bar on claims where the victim and the assailant were living together at the same time as members of the family. Judicial review 75. The acts, omissions and decisions of social work agencies carrying out statutory functions in connection with the welfare of children in Scotland are subject to judicial review by the Court of Session. Decisions by the local authority, for example, concerning the place of residence of children or recording the name of an abuser on a register have been quashed. Damages may be awarded in such proceedings. Local Government Ombudsman 76. Persons aggrieved by the actions or omissions of social work agencies may complain to the Commissioner for Local Administration in Scotland whose functions include investigation of written complaints by persons who claim to have suffered from the maladministration of local authorities (Part II of the Local Government (Scotland) 1975 as amended). The Local Government Ombudsman may recommend an appropriate remedy, including the payment of compensation. Though the local authority is not legally obliged to pay the compensation recommended, it is the general practice to do so. 77. There are restrictions on the investigations which may be conducted. Section 24(4) of the 1975 Act above requires a person to bring a complaint within 12 months from the day on which the complainant had notice of the matters concerned, though there is a discretion to consider complaints outside this time-limit if the Ombudsman considers it reasonable to do so. He may not investigate any matter in which the person aggrieved has or had a remedy by way of proceedings in any court of law (section 24(6)c). THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 78. Article 3 of the Convention provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties’ submissions 1. The applicants 79. The applicants submitted that taken as a whole the evidence established that they were abused by W.H., that the abuse continued after January 1977, that there were material faults in the handling of the situation by the social services and that they sustained loss and damage as a result. They submitted that the local authority was aware of proven sexual abuse in January 1977 in relation to E. and L. and that this had been ongoing for some time before January 1977. They therefore knew of the risk of future ill-treatment to the children and ought to have been aware of the continuation of actual abuse. 80. The local authority failed however to take the protective measures necessary and provided for in the statutory framework. Already in January 1977 there were grounds for referral of the children to the Reporter to the Children’s Panel due to the serious concerns for their welfare (the mother was unable to cope, school attendance was atrocious, E. had attempted suicide, and E. and L. had been sexually abused). A hearing would then have been held and the situation properly investigated. The failure to refer the children precluded further steps being taken to protect their welfare. 81. There was also a failure properly to supervise W.H.’s probation. It was noted that he had been found in the home and yet no further investigation into the situation occurred. No consideration was given either to a referral to the Reporter on the basis that a convicted sexual offender had been in contact with the household. Nor did L.’s known behaviour (running away, truancy and offending) lead the social services to hold a multidisciplinary conference to investigate the cause of her behaviour while information about the background of sexual abuse by W.H. was not passed on by the social services to relevant agencies including the Children’s Panel when it dealt with L. concerning truancy in 1978 and care measures in 1979. 82. The applicants submitted that the local authority should have been aware of the risk of continued abuse, arguing that there was recognition at the time that sexual abuse occurred in families, that W.H. was found guilty of serious sexual offences of abuse which had been going on for some time and the recorded suspicion that he continued to cohabit in the home. It should also have been apparent to the local authority that there was a possible connection between the disturbed behaviour of E. and L. and ongoing sexual abuse. No steps were taken to talk individually to the children, social work concerns seeming to concentrate on matters of rent and finance. Visits by social workers were also made at regular and pre-arranged times which allowed W.H. to evade notice most of the time. 2. The Government 83. The Government did not consider that it would be appropriate for the Court in assessing to what extent the applicants has suffered ill-treatment to go beyond the conclusions of the domestic courts, which had found W.H. guilty of specific offences against E., L. and T. in 1977 and 1989, as this would involve finding W.H. guilty of serious criminal offences in proceedings to which he was not a party. As the second applicant H.’s allegations referred most vividly to ill-treatment at an early age, only mentioning in sweeping terms alleged continuation of abuse after the first conviction in 1977, his statements in their view did not provide an adequate basis for making specific findings about ill-treatment after 7 January 1977. The Government also pointed to the evidential difficulties arising from the allegations which concerned events occurring more than 20 years ago and the incomplete evidence which was available. However, they accepted that the conduct for which W.H. was convicted in respect of E., L. and T. amounted to inhuman or degrading treatment. 84. The Government understood that the applicants were alleging that from January 1977, and not before, the social services were or should have been aware that there was a risk of sexual abuse from W.H. continuing. They submitted that, following his conviction in January 1977, the Social Work Department had no evidence that W.H. was continuing to reside in the home. Although Mr R. had a suspicion that the mother was still cohabiting with W.H., he had visited the house very frequently without seeing W.H. and, in the view of the social work consultant Ms Anne Black, given the low level of awareness about child sexual abuse at the time, she would not have expected him to pursue his suspicions further. None of the applicants, when seen by the social workers or interviewed for various purposes, gave any hint that W.H. was still living in their home or continuing to abuse them. Though the social worker Mr M. recalled that he found W.H. leaving the home on two to three occasions, the notes indicated that the mother and W.H. both denied that he was living there, and he took the view that W.H.’s visits during the day while the children were at school was not tantamount to living there and did not constitute sufficient evidence of a breach of his probation to justify further action. 85. There were no other features which would have led the social workers to suspect that the applicants were still suffering abuse. They were concerned in the problems of school attendance and the difficulties arising from the mother’s illness and lack of money, and it was not unreasonable for the social workers to believe that the children’s problems at the time were associated with general problems arising from their environment. They submitted therefore that the social services did not have knowledge of any continuing abuse and, having regard to practice and understanding at the time, they could not legitimately be criticised for failing to appreciate that W.H. was continuing to abuse the applicants. 86. The Government agreed with the applicants that the social services’ actions were nonetheless inadequate in certain respects, particularly with regard to the support offered to the applicants after W.H.’s conviction in 1977. The most serious omission was the failure to make a reference to the Reporter of the Children’s Hearing after that conviction. This would have been likely to have led to a supervision order in respect of L., leading to closer contact with her and the family. Further, there should have been greater vigilance in supervising W.H. with less reliance on the assurances of W.H. and the mother that he was not living in the home, and the background report on E. prepared for court in June 1977, and the social enquiry report on L. prepared in January 1978 and in April 1979 should have referred to the previous circumstances surrounding the disclosure of abuse and the conviction of W.H.; there should have been social work input at the case conference meeting held in relation to L. in March 1979; and the visit by the police to L. in April 1979 should have led to discussion about the situation at home. 87. However, notwithstanding these failings, it could not be said that any different conduct on the part of the authorities would have necessarily led to discovery of any further incidents of abuse by W.H. There had been ongoing contact between the applicants and the social services over this period without any disclosures being made. Similarly, even if the possibility of a breach of probation proceedings had been more seriously considered, the social services still had had no concrete evidence that he was living in the home. In the circumstances, it could not be said that there was a violation of Article 3 in respect of the applicants. B. The Court’s assessment 1. General principles 88. Article 3 enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment. The obligation on High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including such ill-treatment administered by private individuals (see A. v. the United Kingdom judgment of 23 September 1998, Reports of Judgments and Decisions 1998 ‑ VI, p. 2699, § 22). These measures should provide effective protection, in particular, of children and other vulnerable persons, and include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge ( mutatis mutandis, Osman v. the United Kingdom, judgment of 28 October 1998, Reports 1998-VIII, § 116). Thus a failure, over four and a half years, to protect children from serious neglect and abuse of which the local authority were aware disclosed a breach of Article 3 of the Convention in the case of Z. and Others v. the United Kingdom ([GC] no. 29392/95, ECHR 2001-V, §§ 74-75). 2. Application in the present case 89. The Court recalls that the four applicants allege that they suffered sexual and physical abuse from W.H. over a long period of time. There is no doubt that the treatment described (see paragraph 43) falls within the scope of Article 3 of the Convention as inhuman and degrading treatment. Certain of the assaults on E., L. and T. were subject to criminal proceedings and W.H. was convicted in January 1977 and July 1989 in respect of seven offences. 90. The Government have argued that no findings of ill-treatment should be made beyond those of the criminal courts as this would be tantamount to finding W.H. guilty of further criminal offences in proceedings to which he is not a party. The Court notes that the Government do not contest the applicants’ allegations or argue that they are false or erroneous or unsubstantiated. The Criminal Injuries Compensation Board indeed made substantial awards to E., L. and T., which would imply that the allegations of long standing abuse were upheld. It is true that no award was made to the second applicant, H., and that no charges concerning him were ever brought against W.H.. It does not appear that H. made any disclosure about physical abuse until relatively late, in the context of the civil proceedings brought in 1992. However, the statements of the other applicants, his sisters, support his claims concerning the violence and physical battering that occurred in the home and the psychological reports submitted are consistent with a history of abuse. 91. The Court is satisfied that it may make a finding on the materials before it, which are uncontroverted, that the applicants suffered abuse as described. It does not consider that this may be construed as any determination of guilt of criminal offences on the part of W.H., any more than the accepted findings of ill-treatment of the child applicants in the case of Z. and Others v. the United Kingdom (cited above) disclosed any attribution of criminal responsibility on the part of the children’s parents. Criminal law liability is distinct from international law responsibility under the Convention, this Court not being concerned with reaching any findings as to guilt or innocence under domestic law (see, for example, Avşar v. Turkey, no. 25657/94, ECHR 2001, § 284). 92. The question therefore arises whether the local authority (acting through its Social Work Department) was, or ought to have been, aware that the applicants were suffering or at risk of abuse and, if so, whether they took the steps reasonably available to them to protect them from that abuse. 93. The parties appear agreed that it is the period after January 1977 which is in issue, no disclosures or evidence of sexual or physical abuse arising before E.’s overdose and L’. running away from home in November 1976 and January 1977 respectively. Though in certain statements E. has a recollection of making a complaint about W.H. in or about 1974, her memory is uncertain on the details and the applicants do not rely on this as proving knowledge of the abuse before 1977. The parties do disagree whether the authorities should have been aware of the abuse that continued thereafter. 94. The Court recalls that until T. made disclosures of sexual abuse to her social worker in 1988 there is no indication that any of the children in the house made any complaint about W.H.’s ongoing assaults after January 1977. The Government take the view that there was nothing to alert the social workers that he continued to be a risk and that in the light of knowledge and practice at the time the fact that he had been found in the family home after the conviction in January 1977 would not have been regarded as any significant cause for alarm or have provided sufficient ground for action against him. 95. However, the Court notes that the Government accept that even if it was not a formal condition of his probation it would have been understood that W.H. was no longer permitted to reside in the applicant’s home. An examination of the materials reveals the following factors: – W.H. had been charged with a series of serious sexual offences against two children of the family indicating a background of repetitive offending; – the disclosures made by E. in hospital indicated that there was also an element of physical abuse present in the home; – E. and L. both showed serious levels of distress and disturbance arising out of the situation of known abuse in the home, which had contributed to E. taking an overdose of pills and L. running away; – the social enquiry report dated 28 January 1977 produced by the social worker Mr R. noted that W.H. did not appear to accept the serious nature of the charges and that the mother also did not accept the charges against him and talked of marriage; – that report concluded that it would be necessary for firm control to be exercised over the accused for a period of time; – the notes of Mr R. gave the opinion in March 1977 that the mother was still cohabiting; – the affidavits of the social worker Mr M. indicate that he regarded W.H. as dishonest and likely not to tell the truth when it suited him; – Mr M. in the same affidavits recalled meeting W.H. leaving the home two or three times when he called unexpectedly; – a social enquiry report dated 1 June 1977 drawn up in respect of E.’s appearance for criminal damage noted that she had left home after a scene with the man cohabiting with her mother, at a date unspecified but which would appear to be about March 1977 (see paragraph 22); 96. The Court is satisfied that from these elements that the social services should have been aware that the situation in the family disclosed a history of past sexual and physical abuse from W.H. and that, notwithstanding the probation order, he was continuing to have close contact with the family, including the children. Even if the social services were not aware he was inflicting abuse at this time, they should have been aware that the children remained at potential risk. The fact that at the relevant time there was not the knowledge of the prevalence of, and persistence of, sexual offenders victimising children within a family that there exists now, is not significant in this case where, as the applicants emphasise, the social services knew that there had been incidences of sexual abuse resulting in criminal offences and were under an obligation to monitor the offender’s conduct in the aftermath of the conviction. 97. Yet the social services failed to take steps which would have enabled them to discover the exact extent of the problem and, potentially, to prevent further abuse taking place. The Government have accepted that after the initial disclosures the social services should have worked with both E. and L. who had shown significant distress at the situation at home which could have led to further understanding of family dynamics; and, most importantly, that the social services should have referred L. to the Reporter of the Children’s Hearing, which could have led to a supervision requirement over one or more of the children who had been living with a known and convicted offender. 98. In addition, the Government have accepted that more should have been done to investigate the possible breach by W.H. of the probation order, that there was a consistent failure to place the full and relevant details of the family situation before the Sheriff’s Court or Children’s Hearing when the applicant children were the subject of a specific examination in the context of offending and truancy (see paragraphs 22, 26 and 31), and that there was no effective co-operation or exchange of information between the school authorities which were attempting to deal with a persistent truancy problem and the social services who had access to the information about the wider family situation and history. It is also not apparent that E.’s disclosures at the hospital in December 1976 were passed to the social services or that, if they were, they led to any response. 99. The Court recalls that the Government argued that notwithstanding any acknowledged shortcomings it has not been shown that matters would have turned out any differently, in other words, that fuller co-operation and communication between the authorities under the duty to protect the applicants and closer monitoring and supervision of the family would not necessarily have either uncovered the abuse or prevented it. The test under Article 3 however does not require it to be shown that “but for” the failing or omission of the public authority ill-treatment would not have happened. A failure to take reasonably available measures which could have had a real prospect of altering the outcome or mitigating the harm is sufficient to engage the responsibility of the State. 100. The Court is satisfied that the pattern of lack of investigation, communication and co-operation by the relevant authorities disclosed in this case must be regarded as having had a significant influence on the course of events and that proper and effective management of their responsibilities might, judged reasonably, have been expected to avoid, or at least, minimise the risk or the damage suffered. 101. There has, accordingly, been a breach of Article 3 in respect of the applicants in this case. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 102. Article 8 of the Convention provides as relevant: “1. Everyone has the right to respect for his private and family life, ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 103. The applicants referred to the ill-treatment and assaults to which they were victim and claimed that the authorities had failed in their positive obligation to protect them from damage to their private life. 104. The Government submitted that the deterrent sanctions against sexual and physical abuse and the statutory system of child protection fulfilled any positive obligation imposed by this provision to protect the applicants from abuse by W.H. 105. Referring to its finding of a violation of Article 3 above, the Court finds that no separate issue arises under this Convention provision. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 106. Article 13 of the Convention provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. The parties’ submissions 1. The applicants 107. The applicants submitted that Article 13 required that they have available to them a means for establishing the liability of State officials for acts or omissions involving a breach of their rights and the possibility of obtaining compensation for the wrong suffered. Advisory remedies such as complaints to the ombudsman were not effective, while the CICB could not attribute blame to the local authority or hold them to account. The compensation paid by the CICB to three applicants related to a separate wrong and not to the substance of their complaint before the Court. It also did not cover pecuniary damage for loss of earnings. The applicants were precluded from suing the local authority for damages in negligence due to the effect of the X. and Others v. Bedfordshire County Council case (cited above). 2. The Government 108. The Government submitted that the applicants did have at their disposal an effective remedy in respect of any alleged failure of the local authority to protect them from abuse. In their view, there was a margin of appreciation available to Contracting States as to how to satisfy the two main elements - a mechanism for establishing liability and the availability of compensation at least for the non-pecuniary damage suffered thereby. Where the damage was caused directly by a perpetrator of abuse and the liability of the local authority was subsidiary or derivative, the requirement for compensation could be met through remedies against the abuser himself or by the State providing awards under a compensation scheme such as the CICB. The applicants could also have obtained a determination of liability through judicial review proceedings, civil proceedings against the local authority (which they chose to withdraw) and the local authority ombudsman. It was not apparent that the applicants’ civil claims would have been rejected for lack of a cause of action as they arguably raised operational matters not affected by the ruling in the X. and Others case, though in the Government’s view it would have failed on the merits. In any event, such proceedings would have provided a procedure by which the applicants’ claims could have been tested in a judicial procedure. As the applicants E., L. and T. had in this case received GBP 25,000, they had already received an effective compensatory remedy. B. The Court’s assessment 109. As the Court has stated on many occasions, Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law. In particular its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see Aksoy v. Turkey, judgment of 18 December 1996, Reports 1996-VI, p. 2286, § 95; Aydın v. Turkey, judgment of 25 September 1997, Reports 1997-VI, pp. 1895-96, § 103; Kaya v. Turkey, judgment of 19 February 1998, Reports 1998-I, pp. 329-30, § 106). 110. Where alleged failure by the authorities to protect persons from the acts of others is concerned, Article 13 may not always require that the authorities undertake the responsibility for investigating the allegations. There should however be available to the victim or the victim’s family a mechanism for establishing any liability of State officials or bodies for acts or omissions involving the breach of their rights under the Convention. Furthermore, in the case of a breach of Articles 2 and 3 of the Convention, which rank as the most fundamental provisions of the Convention, compensation for the non-pecuniary damage flowing from the breach should in principle be available as part of the range of redress (see Z. and Others v. the United Kingdom [GC], no. 29392/95, ECHR 2001-V, § 109; Keenan v. the United Kingdom, no. 27229/95, (Sect. 3), ECHR 2001-III, § 129). 111. In the present case, the Court has found that the Government failed in their obligations under Article 3 of the Convention to take reasonable steps to protect the applicants from inhuman and degrading treatment. The applicants’ complaints in this regard are therefore “arguable” for the purposes of Article 13 (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, p. 23, § 52; the Kaya judgment, cited above, § 107, and Yaşa v. Turkey, judgment of 2 September 1998, Reports 1998-VI, p. 2442, § 113). 112. Though awards were made to three applicants by the CICB and the applicants accept that this may be relevant to any subsequent question of just satisfaction, the Board cannot be regarded as providing a mechanism for determining the liability of the social services for any negligence towards the children. In any event, while it provided some compensation to E., L. and T., no award at all was made to H. and the awards that were made did not take into consideration any pecuniary loss flowing from the abuse suffered. Similarly, while a complaint to the local authority ombudsman, at the appropriate time, might have led to an investigation of certain aspects of social services management of the case, it would not have provided a binding determination, the ombudsman only having the power to make recommendations. Furthermore, it would appear that, time considerations aside, the ombudsman in response to the applicants’ complaints gave his view that he did not have jurisdiction since it appeared that they had the possibility of taking action in the courts. 113. The Court recalls that, in general, actions in the domestic courts for damages may provide an effective remedy in cases of alleged unlawfulness or negligence by public authorities (see, for example, Hugh Jordan v. the United Kingdom, no. 24746/94, (Sect. 3), judgment of 4 May 2001, §§ 162-163, extracts published in an annex to McKerr v. the United Kingdom, ECHR 2001-III). In the present case, the applicants did lodge a civil action in negligence in the Scottish courts but withdrew their claims on 4 January 1996 pursuant to counsel’s advice that they were doomed to failure in the light of the X. and Others case decided by the House of Lords on 29 June 1995. This decision, which was the subject of consideration by the Grand Chamber in the above-mentioned Z. and Others v. the United Kingdom case, had held that no duty of care existed in respect of the child applicants’ claims that the local authority in that case had been negligent in failing to remove them from their home where they were victims of abuse and neglect. 114. The Government submitted that it was not correct to assert that this House of Lords decision prevented all claims in negligence against local authorities in the exercise of their child protection duties, and argued that it could not be regarded as beyond doubt that these applicants would have failed as, in the case of these applicants, the social services arguably were negligent in the way they approached operational, as well, as policy matters. 115. It is true that since the case of X. and Others v. Bedfordshire County Council there have been further cases in the English courts which indicate that a duty of care may arise where, for example, the social services have failed to prevent foreseeable damage to children either already in their care or affected in other ways by their exercise of their duties (see paragraph 73). However, these developments took place some years after the X. and Others case, which at the time gave the impression that the highest judicial authority had ruled out the possibility of suing local authorities in the exercise of their child protection functions on grounds of public policy. If taking action at the present time, the applicants might, at least on arguable grounds, have a claim to a duty of care under domestic law, reinforced by the ability under the Human Rights Act to rely directly on the provisions of the Convention. The Court is not satisfied that this was the case at the relevant time in 1996. While the Government have also made reference to the possibility of judicial review proceedings, these would only have been available to challenge the social services’ actions at the time that they occurred. The applicant children were not in a position where they could make use of such redress. 116. The Court accordingly finds that the applicants did not have at their disposal the means of obtaining a determination of their allegations that the local authority failed to protect them from inhuman and degrading treatment. There has been in that respect a violation of Article 13 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 117. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 1. The parties’ submissions 118. The applicants submitted that they were entitled to awards for pecuniary and non-pecuniary damage. While they accepted that the CICB awards could be taken into account in assessing loss, these did not provide full compensation for the severe abuse which took place over many years. They claimed in respect of the failure to protect them from abuse and for anxiety and frustration an additional GBP 20,000 for E., GBP 37,000 for L. and GBP 5,000 for T., while H. who had not previously obtained any compensation claimed GBP 20,000. The applicants claimed for pecuniary damage sums for loss of earnings because of the effect that the abuse had had on their wage earning potential due to their resulting educational and psychological difficulties – GBP 25,927.55 for E., who has only been able to obtain occasional poorly paid seasonal work, GBP 20,000 for H., who has only been able to obtain poorly paid and physically demanding work, GBP 78,548.15 for L. who has only been able to work on a part time basis and GBP 68,760.64 for T., who has been unable to work for long periods. The calculations submitted by the applicants were stated as taking into account, inter alia, the length of time over which the local authority were at fault and the earnings in fact obtained by the applicants. 119. The Government submitted that any finding of a violation would in itself constitute just satisfaction. They did not consider that any clear causal connection could be shown in respect of any alleged pecuniary damage and submitted that the applicants’ calculations were artificial and hypothetical. As regards any non-pecuniary damage it would be necessary to identify precisely the damage suffered by the applicants which would not have occurred but for the alleged violation, which was in the circumstances of this case difficult bearing in mind the background of abuse and deprivation already suffered by the applicants prior to January 1977. Furthermore, the compensation paid by the CICB should be deducted from any award. 2. The Court’s assessment 120. As regards the applicants’ claims for pecuniary loss, the Court’s case-law establishes that there must be a clear causal connection between the damage claimed by the applicant and the violation of the Convention and that this may, in the appropriate case, include compensation in respect of loss of earnings (see, amongst other authorities, Barberà, Messegué and Jabardo v. Spain, judgment of 13 June 1994 (Article 50), Series A no. 285 ‑ C, pp. 57-58, §§ 16-20; Cakıcı v. Turkey, judgment of 8 July 1999, Reports 1999-IV, § 127). 121. A precise calculation of the sums necessary to make complete reparation (restitutio in integrum ) in respect of the pecuniary losses suffered by applicants may be prevented by the inherently uncertain character of the damage flowing from the violation (Young, James and Webster v. the United Kingdom (former Article 50), judgment of 18 October 1982, Series A no. 55, p. 7, § 11). An award may still be made notwithstanding the large number of imponderables involved in the assessment of future losses, though the greater the lapse of time involved the more uncertain the link becomes between the breach and the damage. The question to be decided in such cases is the level of just satisfaction, in respect of both past and future pecuniary loss, which it is necessary to award to each applicant, the matter to be determined by the Court at its discretion, having regard to what is equitable (Sunday Times v. the United Kingdom (former Article 50) judgment of 6 November 1989, Series A no. 38, p. 9, § 15; Lustig-Prean and Beckett v. the United Kingdom (Article 41), judgment of 25 July 2000, §§ 22-23). 122. In the present case, the applicants have submitted reports and assessments arguing that their wage-earning capacity, even for those of them who are currently in employment, has been seriously damaged by the past abuse which they suffered. The Court observes however that its finding of a violation relates to the period after January 1977, when the local authority should have been aware that they were at risk of abuse. The applicants had already suffered long periods of violence and assault - E. and H. from 1967, L. from about 1969 and T. from 1971. As E. left home in or about March 1977, H. in or about 1978, L. in 1979 and T. in 1984. The period of abuse suffered by the oldest three applicants therefore after January 1977 was relatively short compared with the prior period. 123. While the reports submitted by the applicants attempt to attribute pecuniary loss to the local authority by taking into account this time element, the Court considers that the psychological injury and the ongoing impact on their ability to lead normal lives would almost certainly have existed even if no abuse had occurred after 1977. It appears to this Court impossible to assess what additional damage was caused after that date. The Court also considers that it must have regard to the fact that, though the local authority did fail to take reasonable steps to avoid the risk, this is not a case where those failings can be regarded as being causally connected with the totality of any damage suffered during that period. If the local authority had acted with more care in monitoring and supervising the family, though this would have increased the likelihood of uncovering the ongoing abuse, it can only be speculative as to at what stage this would have occurred and how effective the measures taken would have been. 124. In the light of these uncertainties and the difficulties of attributing any specific degree of damage to the failings of the local authority, the Court has decided to award a global figure, for pecuniary and non-pecuniary damage together, taking into account as conceded by the applicants the awards made in respect of the non-pecuniary damage by the CICB. On an equitable basis therefore, it awards the sum of 16,000 euros (EUR) each to E., H. and L. and the sum of EUR 32,000 to T. B. Costs and expenses 125. The applicants claimed a total of GBP 52,146.65 (inclusive of VAT), including GBP 29,554.74 for solicitors’ fees, covering their work on behalf of the applicants from 1994 (applications to the CICB, the Legal Aid Board, local authority ombudsman and the European Commission and Court of Human Rights), GBP 21,150 for counsels’ fees, GBP 4,022.91 fees to the social work consultant for his reports and GBP 1,350 for medical reports on the applicants. 126. The Government submitted that the sums claimed were excessive and that if an award was made it should not be more than GBP 20,000. 127. Having regard to the complexity of the case and the amounts awarded in other cases, and making an assessment on an equitable basis, the Court awards EUR 64,000, inclusive of VAT. C. Default interest 128. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank to which should be added three percentage points.
The Court found that social services had failed to protect the children, in violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention, and that there had been no effective remedy, in violation of Article 13 (right to an effective remedy) of the Convention.