Ruling could put child protection on defensive

Fear of litigation following a European Court of Human Rights
ruling that a council was legally responsible for failing to
intervene in a child abuse case could encourage defensive child
protection practice, the sector has warned.

The landmark judgement by the Strasbourg court last week awarded
four siblings damages totalling £359,000 for abuse of their
human rights by Bedfordshire Council. Despite numerous reports of
neglect, the local authority failed to intervene for five years
between 1987 and 1992.

The ruling in effect removed social services departments’
immunity from legal action if they fail to discharge their
statutory duties.

Chairperson of the Association of Directors of Social Services
children and families committee Rob Hutchinson said: “The
implications could be, in the context of incidents that happened
many years ago when legislation and practice were very different,
increasing litigation and soaring legal costs. Most worrying of all
[would be] an overtly cautious approach to practice which could
lead to more children coming into care.”

Chief executive of children’s charity the NSPCC Mary Marsh
welcomed the decision to make councils which fail to discharge
their duties to protect children from abuse liable to pay
compensation. But she warned against a move towards more defensive
practice: “Decisions should be made on the basis of the 1989
Children Act rather than the potential insurance claims.”

The official solicitor acting on the children’s behalf took the
government to the ECHR because it was the only remedy open to them
at the time they decided to take legal action. Since then, the
Human Rights Act 1998 has come into force in the UK.

In the Bedfordshire case, the judges unanimously agreed that
article 3 of the Human Rights Act – the prohibition of inhuman or
degrading treatment – had been violated. They decided by 15 votes
to two that article 13 – the right to effective legal remedy – had
also been violated as the children had been unable to sue the local
authority.

Bedfordshire’s director of social services Lyn Burns said: “We
regret the suffering of the children prior to our intervention.
Equally it was a long time ago and it is important to state that we
have reviewed our procedures since then.”

In a second child protection case also heard at the ECHR last
week, a ruling that Newham Council breached the human rights of a
child who was wrongly taken into care will act as a reminder to
councils of the dangers of defensive practice.

Meanwhile, a ruling in the House of Lords that the owners of a
boarding school were “vicariously liable” for the sexual abuse
committed by a warden against pupils could also have implications
for local authorities in relation to their general duty of care of
vulnerable children.