European Court of Human Rights

FOURTH SECTION

Application no. 40146/06
by R.K.
against the United Kingdom
lodged on 28 September 2006

STATEMENT OF FACTS

THE FACTS

The applicant, R.K., is a British national who was born in 1989 and lives in Yorkshire. She is represented before the Court by Levi Solicitors, a firm practising in Leeds.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant was born on 6 March 1989.

On 9 September 1997, her father took the applicant to see their general practitioner because of "bruises" on her legs for which she had no recollection of their cause. He took blood for a clotting screen but this showed no abnormality.

On 25 February 1998, the applicant's father took her to their doctor again as her swimming teacher had expressed concern about the marks on her legs. He asked for a referral to hospital and an appointment was made for 17 March 1998.

On 15 March 1998, the applicant hurt herself in the genital area while riding her bike. She informed her mother of this but no-one else.

Around 17 March 1998, the applicant's father took her to the appointment at the hospital. After examination, Dr W., the consultant paediatrician, apparently forming the view that the marks on the applicant's legs were symptomatic of abuse, said that the bruising did not appear to be a skin disease and that the applicant would have to be admitted to hospital. The applicant's father had to go to work at this point. He told Dr W. that his wife would come to the hospital and meanwhile there should be no further examination or tests until she came and gave any necessary consent.

When the mother arrived one hour later, she found that blood had been taken for testing and photographs had been taken, contrary to section 8(1) of the Family Reform Act 1969. The local authority had been notified and a social worker told the mother that Dr W. thought that the applicant had been abused. The mother gave consent for a further examination. Dr W. and a police surgeon examined the applicant in several intimate and distressing examinations. She was not given any explanation or questioned about the allegations of abuse. Dr W. informed the mother that the applicant had been sexually abused. The mother was told to request the applicant's father and their eldest son to move out of the house until further investigations had taken place. After some discussion it was decided that the father and son could remain at home but the mother had to sleep in the same room with her daughters.

Later that evening, when the father and mother attempted to visit the applicant on the ward a nurse stated, in front of others, that there were orders that the father should not be allowed to go near her. This had been ordered by the social services duty manager, without legal authority.

On 18 March 1998, two social workers visited the home and stated that there was no reason to seek any second opinion. Subsequently, the mother spoke to Dr W. and told him about the bicycle incident. He dismissed the claim without investigation.

On 21 March 1998, the mother pointed out to the medical staff at the hospital that the applicant now had marks on her hands and asked how they explained this. An appointment was made for the applicant to see a dermatologist.

On 24 March 1998, the dermatologist reported that the marks on the applicant's legs were caused by vasculitis.

On 27 March 1998, Dr W. stated at a meeting with the father and mother that there had been a misjudgment. The lesions on the applicant's legs were thought to have been caused by a rare condition of the capillaries called Schamberg's disease. She wrote a letter to that effect stating that there was insufficient evidence to say that the applicant had been sexually abused and that the father should no longer be considered as implicated in sexual or physical abuse of his daughter.

The parents were unhappy with what had happened and made a formal complaint to the NHS Trust, which set up an Independent Review Panel with two Assessors (consultant paediatricians experienced in child abuse cases).

The Panel report stated that Dr W. had been right to admit the applicant but had acted too quickly in carrying out examinations. Criticism was made that examinations and photographs had been taken while no parent was present, that while Dr W. was not to blame for misdiagnosing the bruises, she should have monitored them and obtained a dermatologist's opinion as a matter of urgency, that the applicant should have been properly consulted and interviewed; and that Dr W. had attached far too much importance to the bruising, neglecting other relevant information available from the applicant, the family doctor and concerning the bicycle incident. They noted also that Dr W. had, without convincing explanation, failed to write to the father with an explanation and an apology.

On 9 March 2001, the applicant and her father brought proceedings in negligence against the local authority and hospital trust claiming compensation for personal injury and financial loss. Both were legally aided.

On 22 November 2002, the County Court judge struck out the claims, finding that no duty of care arose as regarded the father and that the hospital but not the local authority had owed a duty of care to the applicant. The applicant and her father appealed.

On 31 July 2003, the Court of Appeal granted the applicant's appeal allowing her claim to proceed against the local authority as well as the hospital, recognising that children must have a right to sue local authorities and hospitals in negligence.

However, the Legal Services Commission withdrew the applicant's legal aid certificate on the basis that "it was no longer reasonable for <her> to receive legal aid because the likely costs are disproportionate to the value of the claim."

On 4 April 2006, her appeal against the refusal was rejected as "the costs of pursuing the claim considerably outweigh any likely award of damages."

COMPLAINTS

The applicant complained under Article 8 that her father was not allowed to visit her in hospital for ten days; that the examinations by Dr W. and the taking of blood samples and photographs were an unjustified and disproportionate interference with her moral and physical integrity, and in the latter case, taken without parental consent as required by law and practice.

The applicant complained under Article 6 § 1 that the withdrawal of legal aid deprived her of effective access to court. The basis for the withdrawal had been the escalation of costs which had been entirely attributable to the agents of the State erroneously relying on case-law which had been held by the Court to be contrary to Article 13 of the Convention. As a minor she could not have conducted her own case; and the case required costly medical reports and complex and novel legal argument that would have been far beyond her knowledge or her mother if acting as her litigation friend.

Finally, the applicant complained that the withdrawal of legal aid deprived her of any effective remedy within the national legal system contrary to Article 13.

QUESTIONS TO THE PARTIES

Do the applicant's complaints as set out in her application disclose any violations of Articles 6, 8 and/or 13 of the Convention?