7. The European Court of Human Rights has taken particular note of the vulnerability of children in its judgments on the obligations of the state to protect people from inhuman or degrading treatment. It is noteworthy that the landmark rulings in which the state has been found responsible for failing to protect victims from serious ill-treatment meted out by private individuals have concerned children. A v United Kingdom (1998) 27 EHRR 611 was decided shortly before the leading case of Osman v United Kingdom (2000) 29 EHRR 245. A v United Kingdom established the principle that the state was obliged to take measures designed to ensure that people were not subjected to ill-treatment by private individuals. Vulnerable people were entitled to be protected by effective deterrent measures. The existence of the defence of reasonable chastisement failed to afford children such protection. Osman took the matter further by establishing a duty to take more pro-active protective measures to guard against real and immediate risk of which the authorities knew or ought to have known. There was no breach in Osman itself; but breaches were found in both Z v United Kingdom (2001) 34 EHRR 97 and E v United Kingdom (2002) 36 EHRR 519. In Z, the authorities had failed to protect children from prolonged abuse and neglect which they knew all about. In E, they had failed to monitor the situation after a stepfather had been convicted of sexual abuse, and so it was held that they should have found out that he was abusing the children and done something to protect them. The court said, at para 99:
‘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.’
8. These and later cases show that the special vulnerability of children is relevant in two ways. First, it is a factor in assessing whether the treatment to which they have been subjected reaches the ‘minimum level of severity’– that is, the high level of severity–needed to attract the protection of Article 3. As the court recently reiterated in the instructive case of Mubilanzila Mayeka and Kaniki Mitunga v Belgium (2006) 46 EHRR 449, para 48:
‘In order to fall within the scope of Article 3, the ill-treatment must attain a minimum level of severity, the assessment of which depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim.’
Detaining a Congolese child of five, who had been separated from her family, for two months in an immigration detention facility designed for adults met that high threshold even though the staff had done their best to be kind to her.
9. The special vulnerability of children is also relevant to the scope of the obligations of the state to protect them from such treatment. Again, in Mubilanzila Mayeka and Kaniki Mitunga v Belgium, at para 53, the court reiterated, citing Z, A and Osman, that:
‘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. Steps should be taken to enable effective protection to be provided, particularly to children and other vulnerable members of society, and should include reasonable measures to prevent ill-treatment of which the authorities have or ought to have knowledge.’ (Emphasis supplied.)
Despite the fact that the state had detained the little girl, the court treated the case, not as a breach of its negative obligation, but as a breach of its positive obligation to look after her properly. She:
‘indisputably came within the class of highly vulnerable members of society to whom the Belgian State owed a duty to take adequate measures to provide care and protection as part of its positive obligations under Article 3 of the Convention’: para 55.
This they had failed to do: para 58. The court also found a breach of the state’s obligations towards the child’s mother, because of the distress she must have suffered at her daughter’s treatment, even though it could be said that she had to some extent brought it on herself by arranging for the child to travel through Belgium without a visa: para 62.
10. That case demonstrates the wisdom of what was said by my noble and learned friend, Lord Brown of Eaton-under-Heywood, in R (Limbuela) v Secretary of State for the Home Department [2006] 1 AC 396, para 92:
‘it seems to me generally unhelpful to attempt to analyse obligations arising under Article 3 as negative or positive, and the state’s conduct as active or passive. Time and again these are shown to be false dichotomies. The real issue in all these cases is whether the state is properly to be regarded as responsible for the harm inflicted (or threatened) upon the victim.’
Nevertheless, there must be some distinction between the scope of the state’s duty not to take life or ill-treat people in a way which falls foul of Article 3 and its duty to protect people from the harm which others may do to them. In the one case, there is an absolute duty not to do it. In the other, there is a duty to do what is reasonable in all the circumstances to protect people from a real and immediate risk of harm. Both duties may be described as absolute but their content is different. So once again it may be a false dichotomy between the absolute negative duty and a qualified positive one. In another recent case about children, Kontrová v Slovakia (Application no 7510/04) (unreported) given 31 May 2007, the court, at para 50, reiterated the well known passage from Osman, para 116:
‘Bearing in mind the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the scope of the positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities.’
In Kontrová, the state admitted violating the positive obligation to protect life in Article 2. Despite having received allegations of repeated and serious violence against them by the children’s father, and that he had a shotgun and threatened to use it to kill himself and the children, they had failed to act upon these allegations, with the direct result that he carried out his threats and the children were killed.