IVISON v. THE UNITED KINGDOM
Inadmissible
Gaukur Jörundsson;Nicolas Bratza
The application was originally introduced by Irene Ivison, a United Kingdom national, born in 1946 and living in Sheffield. Following her death in or about October 2000, her daughter Rebecca Ivison has expressed her intention of continuing the application. She is represented before the Court by Mrs Mary Cunneen, legal director of Liberty, London. The facts of the case, as submitted by the parties, may be summarised as follows. Fiona Ivison, the sister of the applicant, was born in 1976 and killed in 1993. In 1990, Fiona started associating with two older men, Mr B and Mr T. She had sex with them and smoked cannabis. On 8 November 1990, she took an overdose of paracetamol tablets following an argument with her mother. She was seen by an adolescent psychiatrist who found no ascertained evidence of mental illness and attributed her conduct to “rebellion in the context of a liberal household”. On 12 December 1990, Fiona was referred to the social services. The applicant’s mother sought the help of the South Yorkshire Police and the Sheffield Social Services repeatedly in relation in particular to her concerns about Fiona’s contacts with B and T. Though she told the police after each occasion that she was aware that Fiona had passed the night at the men’s flats, she stated that she was told that they could do nothing as Fiona refused to complain. On 18 November 1991, a case conference was convened by Fiona’s social worker using child protection law. It was attended by four social workers, two police officers from the sexual offences and child abuse unit and the applicant. It was decided that, first, the police officer would liase with the South Yorkshire Police Drug Squad about Fiona’s exposure to drugs and talk to T to reinforce concern about his relationship with Fiona and, secondly, the social worker would continue working with Fiona in the hope that the latter would begin to recognise the risks to which she was exposed because of her relationship with T. In March 1992 the applicant’s mother wrote to the police and received a reply to the effect that “her comments had been passed on to the officers in the case”. The applicant’s mother was not aware of any action being taken. In April 1992 Fiona, now aged 16, left home to live with T. However, in spring 1993 she returned home. In late November 1993 however Fiona began working as a prostitute (unbeknown to her mother) on B’s instructions. On Friday, 17 December 1993, Fiona left home in the evening telling her mother that she would not return that night. When she had not returned by Sunday evening, 19 December, her mother reported her missing to the police. On 20 December, she was taken to the mortuary where she identified the body of a girl found on 18 December 1993 as being Fiona. Fiona had been killed by a client, D, who hit her head repeatedly on the floor. D was arrested on 23 December 1993. An inquest into Fiona’s death was opened on 6 January 1994 at the Coroner’s Court in Doncaster. Since the Coroner had been informed that D had been charged with murder, the inquest was adjourned. On 7 January 1994, a death certificate was issued to the effect that Fiona had died of head injuries. The inquest was not resumed in the light of the criminal proceedings. In February 1995 D pleaded guilty to murder and was sentenced to life imprisonment. On 1 September 1995, the applicant’s mother wrote to the Chief Constable of the South Yorkshire Police raising various questions about the lack of police action before Fiona’s death, including a specific question as to why the Child Abduction Act had not been used. On 13 November 1995 she received a reply in which a representative of the police referred to the difficulties of applying various provisions of the criminal law in this case, but acknowledged “with the benefit of hindsight that more could have been done to prevent <Fiona> from being drawn into the maelstrom of drugs and vice.” On 16 December 1996, the applicant’s mother issued a writ in the High Court against the South Yorkshire Police and the Sheffield Social Services claiming damages for negligence. She applied for legal aid, submitting a statement of case in which she alleged that the police and social services had been aware of her daughter’s connection with two men with criminal records and had been warned that she was being led into underage sex and drugs. It was argued that there was no absolute immunity against suing the police, this depending on sufficient proximity existing between the parties, and that in this case the police and social services should have taken decisive action to protect Fiona from these men and prevented her from drifting into prostitution with its inevitable consequences. On the form where it was required to estimate prospects of success of the action, the solicitor indicated that it was not possible to say. On 17 December 1996, the Legal Aid Board area office refused the applicant’s mother legal aid for these proceedings, stating that “on the information submitted it is considered that you are unlikely to succeed in establishing negligence either in relation to your daughter’s death or in relation to your own post-traumatic stress”. On 29 January 1997, after a hearing at which the applicant’s mother and her legal representative had attended to make representations as to why legal aid should be granted, the Legal Aid Board area committee rejected her appeal on the ground that it had no reasonable prospects of success. On 20 February 1997, the applicant’s mother was advised by counsel that the common law position was such as to preclude her from pursuing a claim for damages in the domestic courts. The applicant’s mother made requests to various authorities for information about the background to and circumstances of Fiona’s death. By letter dated 12 August 1998, Sheffield Social Service informed her that Fiona’s file would have been destroyed in December 1996, pursuant to a three year rule applying to persons who were not on a child protection register or otherwise in the care of the social services. By letter dated 5 February 1999, the applicant’s mother was informed by the South Yorkshire Police that records existed holding details of the enquiry into Fiona’s murder, but that they were not in a position to give any information additional to the extensive material provided during the police investigation by the Senior Investigating Officer. By letter dated 8 December 1999, the solicitors for the Chief Constable of South Yorkshire Police disputed that they were under an obligation to provide any further information or documents, and stated that the Chief Constable would however do so if ordered by a court. Following further requests to the social services, documents from the Child Protection Team, including the case conference minutes, were given to the applicant’s mother on 13 December 1999. In England and Wales, there is no single tort which imposes liability to pay compensation for civil wrongs. Instead there are a series of separate torts, for example, trespass, conversion, conspiracy, negligence and defamation. Negligence arises in specific categories of situations. These categories are capable of being extended. There are three elements to the tort 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 show 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. These criteria apply to claims against private persons as well as claims against public bodies. The leading case is Caparo Industries v. Dickman ([1990] 2 AC 605). 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. In Hill v. Chief Constable of West Yorkshire (1989 A.C. 53), the mother of a victim of the Yorkshire Ripper instituted proceedings against the police alleging that they had failed properly to exercise their duty to exercise all reasonable care and skill to apprehend the perpetrator of various murders and to protect members of the public who might be his victims. Lord Keith in the House of Lords found that there was no sufficient foreseeability of harm to this victim, there being no general duty of care to protect all young females from a risk at large and that the imposition of liability was also excluded by strong policy reasons relating to the operational efficiency of the police. Exceptions to this approach arose in later cases (e.g. Swinney and another v. the Chief Constable of Northumbria [1997] Q.B. 464). In X and Others v. Bedfordshire County Council ([1995] 3 AER 353), the House of Lords 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. In subsequent cases, it was not excluded that in certain circumstances a duty of care might arise (see e.g. Barrett v. the London Borough of Enfield [1999] 3 WLR 79).