This is a post by Sarah Phillimore
No one shall be subjected to torture or inhuman or degrading treatment or punishment.
A number of commenters on the CPR site were recently discussing how Article 3 could or should apply to care proceedings. Family practitioners generally focus on Articles 6 and 8 of the ECHR – right to a fair trial and right to respect to family and private life. To a lesser extent Article 5 (right to liberty) may come into play when discussing for e.g. secure accommodation.
One reader commented:
Are Social Workers sub-human? Does the System treat Children worse than Animals?
It says above that the most relevant articles of the Human Rights Act relating to child-protection are 6 and 8. Parents may believe the main causes for complaint would be under Article 3. I certainly do!
Local Authority actions are inhumane and in contravention of Article 3 of the ECHR convention relating to torture and inhuman or degrading treatment of both children and families as a whole. The Local Authority is effectively causing inestimable, permanent, emotional and physical harm the full effects of which it is impossible to predict to the children and adults by mental torture, anguish and degradation.
– See more at: https://childprotectionresource.online/human-rights-act-1998/#comments
Are we lawyers missing a rather important trick in not looking more closely at what Article 3 demands and whether or not it applies to care proceedings?
Article 3 of the ECHR reads very simply
No one shall be subjected to torture or inhuman or degrading treatment or punishment.
There is no exception or qualification to this right. It is absolute.
But what does ‘torture’ or ‘inhuman or degrading treatment’ mean?
Article 3 is directed primarily to protect the physical integrity of a person but it has been found to apply to acts that cause severe mental suffering. Article 3 is ‘absolute’ so it applies regardless of either the conduct or circumstances of the victim or the threat he poses to the security of the State – so for e.g. Article 3 forbids torturing terrorists.
Article 1 of the 1984 UN Convention against Torture provides this definition of torture:
For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
I hope very much that it is vanishingly unlikely that ‘torture’ as so defined will ever play a role in care proceedings. So we need to focus on ‘inhuman or degrading treatment’. This ill treatment must meet a certain level of seriousness before Article 3 is engaged. See further the Manual for Lawyers produced by Interights, (an international legal human rights NGO which was established in 1982 but sadly closed down in 2014 due to lack of funding).
Ireland v United Kingdom (1978) found that ill-treatment must attain a minimum level of severity. The assessment of this minimum will depend on the circumstances of the particular case, such as how long the ill treatment lasted, what physical/mental effects did it have, the sex, age, and state of health of the victim of the ill treatment.
So what kinds of ill treatment meet the minimum standard?
Given all the relevant factors that need to be considered, it is not going to be easy to set out clear criteria to say if X or Y happens, then the necessary minimum standards will be met to show Article 3 is engaged.
Some cases will be very clear. For example, in Aydin v Turkey (1997), the applicant was a seventeen year old girl who was raped repeatedly by State officials. This was found to be a particularly abhorrent form of ill treatment.
Others will be less clear cut. For example, in Costello-Roberts v the UK (1993), minimum standards of ill treatment were not met by hitting a 7 year old three times on the buttocks with a gym shoe. But In Toteva v Bulgaria (2004), the applicant was 67 years old when she was detained and injured by police. Given her age, the court thought the injuries were serious enough to meet the required threshold for ‘ill treatment’ under Article 3.
As Interrights comment:
The Court is clear that the individual circumstances of the case, and especially factors pertaining to the victim, and sometimes his or her near relatives, must be taken into account. The question as to how much weight to attribute to such factors appears to depend on the nature of the allegations and other surrounding circumstances. Thus, a domestic court is bound to take all relevant factors into account, and engage in a delicate balancing act, in considering whether a person has been subjected to torture or one of the other prohibited forms of ill-treatment.
Children suffering inhuman and degrading treatment
There is no doubt that children have been able to successfully rely on Article 3 when complaining about LA action or inaction.
See Z and Others v the UK (2001). This case involved children who sued a LA for not removing them from their parents quickly enough, and this illustrates just how serious the ill treament must be to come within Article 3. At para 40 of their judgment the Court described the children’s circumstances thus:
All the applicants were seen by Dr Dora Black, a consultant child psychiatrist, in January 1993. Dr Black stated that the three older children were all showing signs of psychological disturbance. Z was exhibiting signs of serious depressive illness and had assumed responsibility for her family and for its breakdown. Her mother’s behaviour towards her was described as cruel and emotionally abusive. A and B, who suffered from nightmares, were both identified as showing signs of post-traumatic stress disorder and A was also chronically under-attached. Dr Black noted that all children had been deprived of affection and physical care. She described their experiences as “to put it bluntly, horrific”, and added that the case was the worst case of neglect and emotional abuse that she had seen in her professional career. In her opinion, social services had “leaned over backwards to avoid putting these children on the Child Protection Register and had delayed too long, leaving at least three of the children with serious psychological disturbance as a result”.
The Court were able to conclude at para 73 of their judgment, without hesitation, that the children’s Article 3 rights had been breached:
73. The Court reiterates that Article 3 enshrines one of the most fundamental values of 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 in conjunction 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 (see, mutatis mutandis, Osman v. the United Kingdom, judgment of 28 October 1998, Reports 1998-VIII,
pp. 3159-60, § 116).
74. There is no dispute in the present case that the neglect and abuse suffered by the four applicant children reached the threshold of inhuman and degrading treatment (as recounted in paragraphs 11-36 above). This treatment was brought to the local authority’s attention, at the earliest in October 1987. It was under a statutory duty to protect the children and had a range of powers available to them, including the removal of the children from their home. These were, however, only taken into emergency care, at the insistence of the mother, on 30 April 1992. Over the intervening period of four and a half years, they had been subjected in their home to what the consultant child psychiatrist who examined them referred as horrific experiences (see paragraph 40 above). The Criminal Injuries Compensation Board had also found that the children had been subject to appalling neglect over an extended period and suffered physical and psychological injury directly attributable to a crime of violence (see paragraph 49 above). The Court acknowledges the difficult and sensitive decisions facing social services and the important countervailing principle of respecting and preserving family life. The present case, however, leaves no doubt as to the failure of the system to protect these applicant children from serious, long-term neglect and abuse.
EDIT – I am grateful to Suesspiciousminds for reminding me of the case of A & S (Children) v Lancashire County Council  and for his confirmation that he isn’t aware of any case where Article 3 has been relied on with respect to parents.
In this case, the court found breaches of Articles 6, 8 and 3 by the LA and the IRO in the following 10 respects:
(1) Failed to provide A and S with a proper opportunity of securing a permanent adoptive placement and a settled and secure home life. (Art. 8)
(2) Failed to seek revocation of the orders freeing A and S for adoption, made on the 19 March 2001 pursuant to Section 18(1) Adoption Act 1976, which effectively deprived them of:
(a) The protection afforded to children under the Children Act 1989;
(b) Contact with their mother and/or other members of their family;
(c) Access to the Court and the procedural protection of a Guardian.
(Arts. 6 & 8)
(3) Permitted A and S to be subjected to degrading treatment and physical assault and failed adequately to protect their physical and sexual safety and their psychological health (Arts. 3 and 8).
(4) Failed to provide accurate information concerning A and S’s legal status to the Independent Reviewing Officers. (Art. 8)
(5) Failed to ensure that there were sufficient procedures in place to give effect to the recommendations of the Looked After Child Reviews. (Art 8.)
(6) Failed to promote the rights of A and S to independent legal advice. (Art. 6)
(7) Specifically, failed to act as the ‘responsible body’ to enable A and S to pursue any potential claims for criminal injuries compensation, tortious liability and/or breach of Human Rights arising from their treatment by their mother, or by the Hs or by Mrs B. (Art. 6)
(8) Failed to identify that A and S’s Human Rights had been and were being infringed. (Arts. 6 & 8)
(9) Failed to take effective action to ensure that LCC acted upon the recommendations of Looked After Child Reviews. (Art. 8)
(10) Failed to refer the circumstances of A and S to CAFCASS Legal. (Art. 8)
But what of parents in care proceedings?
I am not aware of Article 3 being relied upon by parents in any action against a LA for initiating or botching care proceedings, and would be very interested to hear if anyone knows differently.
The anguish and misery felt by many parents when their children are removed have been described eloquently and painfully on this blog and on others. If that anguish and misery is compounded for parents, not only by the loss of their child, but by indifference, rudeness or even worse from the professionals involved in that process, can we argue that Article 3 is engaged?
I suspect the difficulty here will be the surrounding circumstances which have lead to the parents feeling such anguish. LAs are under a legal obligation to protect children in their area. Their investigations and any subsequent removal of children sanctioned by the court are likely to be very distressing to parents but these are lawful acts carried out to achieve an aim of general public good; to protect children.
For example, in Kudla v Poland (2000) the applicant was detained in custody before his trial. He was found to be suffering from mental illness and transferred to a prison hospital. The Court examined the circumstances of his detention and held that to find a violation of Article 3, the suffering and humiliation involved must go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment.
But what if an LA is acting outside the law?
An interesting consideration arises if the actions of an LA bring about separation of a parent and child and the LA had in fact no lawful basis to intervene. Worrying examples of this can be seen in how section 20 has been misused over the years. The State could therefore not rely on any argument that the parents’ distress was simply the unfortunate by product of legitimate state action.
The courts have certainly seemed more keen recently to recognise and condemn LA for acting in breach of parents’ Article 6 and 8 rights and award them damages under the Human Rights Act 1998.
Is it possible that the State could be found to breach Article 3 if a parent suffers serious mental anguish as a result of care proceedings that should never have been started or were conducted improperly? I can’t think of any logical reason why not, but I would assume that the level of distress suffered would have to be very high and the failures of the State agents particularly egregious.
I find it frustrating when parent campaigners speak in terms of social workers being ‘Nazis’ or ‘like Stalin’ as it is difficult to see where any sensible discussion can go once it is hijacked by such unhelpful hyperbole. There can be no useful comparison between a system of child protection in a functioning democratic state and a totalitarian regime that led to the deaths of millions. I don’t want to waste my time going down that particular rabbit hole.
BUT. The one thing I never really thought about or engaged with much before becoming involved with the Child Protection Resource was the pain and misery of the parents. And it is real. And it provokes some legitimate questions about how the State should be operating to protect the most vulnerable members of society – and this group must be wider than just the children, but must include their parents too.
So I am not convinced that Article 3 is applicable to the vast majority of care proceedings, but I think there is certainly an argument to be made that it might be. And that is not something I would have even considered a year ago.
So I must give thanks to the commentators on this site for opening my eyes – we may not always agree with one another but hopefully if we can continue a constructive dialogue, we can continue to help each other develop insight and understanding into such a profoundly important process.