X, Y & Z v the United Kingdom – 32666/10 [2011] ECHR 1199

The long and sorry story of X & Y v Hounslow appears to have reached an end. As you will recall, this was the case that resulted from the horrendous abuse of two highly vulnerable Hounslow tenants in their home by youths. Hounslow had been aware of the danger to X & Y in the period leading up to the abuse but had failed to make any provision to transfer them to alternative, safer, accommodation. At first instance, the High Court found for X & Y on a claim based on negligence (our report), then the Court of Appeal overturned that decision, finding there was no duty of care (our report). X & Y, together with Z (X’s mother), applied to the ECtHR claiming a breach of Art 3 (failure to protect from harm) Art 6 (refusal of the domestic courts to considert he claim for damages), Art 8 and Art 13 (absence of duty of care meaning no remedy for breaches of Art 3 and 8)(our report).

That application has now been struck out, following a ‘friendly settlement agreement’. The UK is to pay X and Y 25,000 Euros each, Z 7,000 Euros and costs of 12,500 Euros.

While it is certainly a good thing that X and Y have received some damages (and I hope that some agreement was reached in respect of the costs in the domestic courts, or the legal aid statutory charge is going to be horrendous), it is, from a broader perspective, a pity that the application did not go on to full hearing. As we noted at the time of the first instance decision, the blanket absence of a duty of care in housing provision is a regrettable position, particularly where, as here, the social services and housing departments of a unitary authority are involved. Whether and to what extent an Art 3 and Art 8 duty might have been found by the ECtHR will remain an unanswered question, but if one was found, it would have had the effect of overruling the common law precedents on negligence that doomed the domestic claim (Hussain, Mowan et al).

While X and Y obviously have their own personal situation to deal with – we hope strongly that the settlement is of some aid to them – and can’t be expected to go on for the years it might have taken for an ECtHR decision, it is the unfortunate position that someone else will also have to suffer terrible circumstances, then the years of domestic court hearings and potentially further years of an ECtHR application before there is a change in the law. X & Y did not get permission to go to the House of Lords, presumably because the Lords had just decided in Glasgow CC v Mitchell. We can only hope that a future case might get a consideration by the Supreme Court, and that this settlement might be born in mind.