Putting a price on the failure to act

Landmark legal decisions by the European Court of Human Rights
threaten to remove local authority immunity from prosecution where
they fail to act to protect children. Sarah Wellard examines what
effect it is likely to have on social work practice and gauges what
the chances are of an avalanche of new court cases.

Two rulings earlier this month by the European Court of Human
Rights in Strasbourg are causing alarm in social service
departments across the country. Both are child care cases and
involve damages being awarded against the government for failing to
protect the rights of vulnerable children.

The first case concerns four children from Bedfordshire who were
severely emotionally and physically abused by their parents.
Despite numerous reports of neglect, Bedfordshire Council failed to
intervene for five years until the children were finally taken into
care in June 1992.

The court ruled unanimously that there had been a violation of
Article 3 of the European Convention on Human Rights, which
prohibits inhuman or degrading treatment. It also held by 15 votes
to 2 that there had a violation of Article 13, the right to an
effective remedy.

Allan Levy QC is a leading child care lawyer who started the
legal proceedings on behalf of the four children. He believes the
judgement may strip social services of their immunity to
prosecution for failing to protect children from abuse.

“The position was that the House of Lords said local authorities
were immune from prosecution. But the European Court found there
was no effective remedy under Article 13.”

“That’s vital,” he adds. “Where there’s a wrong there must be a
remedy.”

Barbara Esam, public policy lawyer at the NSPCC, agrees the case
is a landmark. She believes it offers hope for other children whose
lives have been blighted because of failings by social services
departments. She says: “Of course they should be able to sue. We’re
talking about absolutely basic human rights. It’s an appalling
situation if we are failing to protect children and not giving them
any redress when things go wrong.”

No amount of money can undo the harm suffered by the children.
But compensation is, undoubtedly, a form of public recognition that
what happened was wrong and should not have happened. The Criminal
Injuries Compensation Board offered the children between
£1,000 and £3,000 – an insult in a society where people
can receive hundreds of thousands of pounds compensation for damage
to their reputation.

Levy believes a surge of cases against local authorities is
unlikely, partly because of the three year limitation period which
makes it hard to bring old cases to court. Cases brought
successfully under Article 3 – prohibition of degrading and inhuman
treatment – are relatively unusual because the cases involve quite
extreme behaviour. But he adds: “It would be a horrible commentary
on social welfare practice if there were many more cases.”

The Bedfordshire case is exceptional because of the severity of
the abuse suffered by the children, and the council’s repeated
failure to take action, despite being aware of what was happening.
Levy says: “The message is that so long as they have met reasonable
standards there is nothing to fear. Doctors, nurses and lawyers
have been liable to be sued for many years. I think it improves
practice. The mature view is that it will act as a guide as opposed
to being the sword of Damocles hanging over them.”

But Rob Hutchinson, chairperson of the Association of Directors
of Social Services children and families committee, is less
sanguine. He says: “Taking risks based on what information we can
gather is the core of our business. If social workers and their
managers are additionally considering the risk of litigation, the
fear is that a defensive or overcautious culture will develop.
That’s not good for children who should be supported with their
families.”

Esam agrees there is a risk of local authorities feeling under
pressure to cover their backs but points out: “This particular case
is so extreme. It would be wrong to assume it would lead to
defensive practice.”

The Human Rights Act 1998 came into force last year, enabling
people to bring cases under the European Convention on Human Rights
before UK courts for the first time. Public authorities have been
watching its progress closely, and preparing themselves for
increased litigation. However, what has taken social services
managers aback about the Strasbourg ruling is that it is past
practice which is under scrutiny.

The second case decided earlier this month, known as T.P. and
K.M. v. the United Kingdom, perhaps gives greater grounds for
social services to be worried about past cases of malpractice being
resurrected. This case was brought by a mother, T.P. and her
daughter, K.M.

In 1987 K.M. was taken into care because the magistrate
concluded the mother was unable or unwilling to protect her
daughter from sexual abuse. The care proceedings hinged on video
evidence obtained by a social worker from the London Borough of
Newham and a consultant child psychiatrist where the child
disclosed the abuse.

It was not until 11 months later that the mother and her
solicitors had sight of the video evidence, and were able to
challenge the interpretation that she would be unable to protect
her child.

The case was taken back to court and the child was returned to
her mother. In 1990 K.M. and T.P. began proceedings for negligence
and breach of statutory duty against the local authority and the
psychiatrist. In 1995 the case reached the House of Lords and was
thrown out on the grounds that local authorities should not be held
liable for negligence in respect of the duties for safeguarding the
welfare of children.

The European Court held that there had been a violation of
Article 8, the right to respect for family life, because
withholding the video evidence from the mother meant she was not
able to be adequately involved in the decision-making process about
the care of her daughter.

The court also held there had been a violation of article 13,
the right to an effective remedy. The mother and daughter were each
awarded £10,000 as well as costs and expenses.

“It seems unfair to be tested against a culture which operated
some time ago,” Hutchinson says. These were clearly very serious
cases. But I am worried about the grey areas. I think there’s a
potential for the floodgates to be opened.”

But experience on the continent suggests that this may not be
so. In France and Germany anyone who is harmed through a public
body’s failure to do its job properly is entitled to claim
compensation. Yet the cost of claims in Germany is estimated to be
only 0.015 per cent of the public services budget.

Esam at the NSPCC says: “There’s potential for diverting
resources into court cases which would otherwise be spent on
services for children. But the argument should not be that we don’t
have enough money to go round and so we shouldn’t be held
responsible if things go wrong. Instead, there needs to be a
reconsideration of whether resources for social services are
sufficient given the difficult job they have to do.”

And we all know that if high political priority is given to a
problem, the money can be found. Children whose lives have been
blighted by a public authority’s failure to protect them should not
be bottom of the list.