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RK and AK v. THE UNITED KINGDOM - 38000/05 [2008] ECHR 950 (30 September 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/950.html
Cite as:
[2008] ECHR 950
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FOURTH
SECTION
CASE OF
R.K. and A.K. v. THE UNITED KINGDOM
(Application
no. 38000(1)/05)
JUDGMENT
STRASBOURG
30
September 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of R.K. and A.K. v. the United Kingdom,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Lech
Garlicki,
President,
Nicolas
Bratza,
Giovanni
Bonello,
Ljiljana
Mijović,
David
Thór Björgvinsson,
Päivi
Hirvelä,
Ledi
Bianku, judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 12 February and 9 September 2008,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
The
case originated in an application (no. 38000/05) against the United
Kingdom of Great Britain and Northern Ireland lodged with the Court
under Article 34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by British
nationals, R.K and A.K., on 18 October 2005
The
applicants, who had been granted legal aid, were represented by
Pannone Solicitors, Manchester, and the AIRE Centre, London. The
United Kingdom Government (“the Government”) were
represented by their Agent, Mr J. Grainger of the Foreign and
Commonwealth Office, London.
The
applicants alleged that their daughter had been unjustifiably subject
to care proceedings and that they had no remedy in that respect,
invoking Articles 8 and 13 of the Convention.
By
a decision of 12 February 2008, the Court declared the application
partly admissible.
The
applicants provided just satisfaction claims to which the Government
responded in writing (Rule 60 of the Rules of Court). The Chamber
decided, after consulting the parties, that no hearing on the merits
was required (Rule 59 § 3 in fine).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicants, United Kingdom nationals and husband and
wife, were born in 1972 and 1976 respectively, and live in Oldham.
The
applicants had a daughter M. born on 24 July 1998.
On
26 September 1998, M. screamed with pain when picked up by the
maternal grandmother. The parents and grandmother took M. to the
hospital. The triage nurse made a note of information given by the
family. That note stated that the mother, rather than the
grandmother, had “yanked” M.
An
X-ray showed a displaced slightly-comminuted fracture of the midshaft
of the femur. While it was noted that there was no history of
metabolic bone disease in the family, it was not noted that the
parents were first cousins, an incident relevant to a possible
genetic condition. Neither the mother nor grandmother spoke much
English; no Pushtu interpreter was provided. A consultant
paediatrician, Dr Blumenthal, interviewed the parents and grandmother
early in the morning the next day, again without an interpreter. He
noted that none of them appeared to know how the injury had occurred.
He concluded that it was an inflicted injury and told the parents
this.
The
police were informed. The parents were interviewed on 27 September
1998 by a social worker. He was unable to communicate with the mother
due to language difficulties.
On
28 September 1998 the health visitor for the family was interviewed
and stated that she had had no concerns about the family.
On
29 September 1998 the police interviewed the parents with an
interpreter present.
On
30 September 1998, a social worker interviewed the family again and
indicated that medical opinion was clear that M. could not have been
injured by being picked up in the manner described by the
grandmother. She warned that without a convincing explanation for the
injury a child protection conference would have to be called.
On
14 October 1998, in light of the doctor's conclusion of
non-accidental injury (NAI), the Child Protection Conference decided
to seek a second opinion but that meanwhile an interim care order
should be obtained. Such care order was issued and parental
responsibility given to the local authority on 16 October 1998.
On
23 October 1998, M. was discharged from hospital into the care of her
aunt. The parents were allowed supervised contact.
The
parents obtained legal advice and jointly instructed an expert, with
M.'s guardian, inter alia, to clarify whether tests had been
carried out to exclude brittle bone disease. However no further tests
were carried out at this stage.
On
23 December 1998, the County Court judge found that the mother and
grandmother were liars and knew more about the injury than they were
prepared to reveal (they had given evidence through an interpreter
which they allege was suspect) and that as the father was convinced
of the innocence of his wife, he was disqualified as a person capable
of protecting M. He ordered M. to be placed in care. M. remained with
her aunt who lived a few hundred yards from the family home.
On
29 March 1999, M. sustained a second injury in her aunt's care.
Bilateral femoral fractures were found and following further tests
she was diagnosed with osteogenesis imperfecta (“OI”,
commonly known as brittle bone disease). Professor Carty and Dr
Paterson were consulted at this time by Dr Blumenthal and inter
alia did not find any ground for reaching a diagnosis of OI in
preference to a non-accidental injury at the time of the first
injury.
After
discharge from hospital, M. returned home in April 1999.
On
17 June 1999, the care order was discharged and M. returned to her
parents. In her report to the court dated 14 June 1999, M.'s guardian
ad litem noted, inter alia, that this had been a particularly
perplexing case, in which a diagnosis of non-accidental injury in
respect of the first injury had appeared to be the most likely
explanation while not fitting with the other information, essentially
positive, which had emerged about the family. She also noted that all
the experts agreed that medical evidence available to the court at
the time of the interim care order was as complete as it could be at
that time and that a diagnosis of bone disorder could not have been
made at the time of the first injury.
The
entire local community were aware that the family had been suspected
of harming M. and the family had been extremely shocked and shamed.
Rumours had spread to Pakistan that the mother had been put in
prison. The parents' relationship with M. and with the grandmother
were severely affected and disrupted as a result of events.
On
24 September 2001 the parents brought claims for negligence and
breach of their Article 8 rights against the hospital trust and the
consultant paediatrician.
On
4 December 2002, the High Court found no duty of care was owed to the
parents and that the Human Rights Act 1998 (“HRA 1998”)
did not apply to events before it came into force on 2 October 2000.
The parents appealed.
Leave
to appeal to the Court of Appeal was granted. Two other cases raising
similar issues were considered at the same time.
On
31 July 2003, concerning the parents' claims in the three cases, the
Court of Appeal held as regards allegations under Article 6 that no
violation of this provision was involved, referring to Strasbourg
judgments (Z. and Others v. the United Kingdom ([GC],
no. 29392/95, ECHR 2001 V and T.P. and K.M. v. the United
Kingdom ([GC], no. 28945/95, ECHR 2001 V). It found that
while domestic law now recognised that there was a duty of care in
relation to children, whose best interests were always paramount,
there was a potential conflict of interest between the child and the
parents, as it would always be in the parents' best interests for the
child not to be removed. Where consideration was being given to
whether child abuse justified measures, a duty of care could be owed
to the child but not to the parents. It upheld the rulings of the
various County Court judges as a result.
After
a hearing on 31 January and 1 and 2 February 2005, the House of Lords
gave judgment on 21 April 2005. They affirmed the orders made by the
first-instance judges and Court of Appeal. Lord Nicholls, in his
judgment with which the majority agreed, found inter alia:
"70. There are two cardinal features in these
cases. One feature is that a parent was suspected of having
deliberately harmed his or her own child or having fabricated the
child's medical condition. The other feature, which is to be assumed,
is that the ensuing investigation by the doctors was conducted
negligently. In consequence, the suspected parent's life was
disrupted, to a greater or lesser extent, and the suspected parent
suffered psychiatric injury.
71. It is the combination of these features which
creates the difficult problem now before the House. In the ordinary
course the interests of parent and child are congruent. This is not
so where a parent wilfully harms his child. Then the parent is
knowingly acting directly contrary to his parental responsibilities
and to the best interests of his child. So the liability of doctors
and social workers in these cases calls into consideration two
countervailing interests, each of high social importance: the need to
safeguard children from abuse by their own parents, and the need to
protect parents from unnecessary interference with their family life.
72. The first of these interests involves protection of
children as the victims of crime. Child abuse is criminal conduct of
a particularly reprehensible character: children are highly
vulnerable members of society. Child abuse is also a form of criminal
conduct peculiarly hard to combat, because its existence is difficult
to discover. Babies and young children are unable to complain, older
children too frightened. If the source of the abuse is the parent,
the child is at risk from his primary and natural protector within
the privacy of his home. This both increases the risk of abuse and
means that investigation necessitates intrusion into highly sensitive
areas of family life, with the added complication that the parent who
is responsible for the abuse will give a false account of the child's
history.
73. The other, countervailing interest is the deep
interest of the parent in his or her family life. ... Interference
with family life requires cogent justification, for the sake of
children and parents alike. So public authorities, should, so far as
possible, cooperate with the parents when making decisions about
their children. Public authorities should disclose matters relied
upon by them as justifying interference with family life. Parents
should be involved in the decision-making process to whatever extent
is appropriate to protect their interests adequately.
74. The question raised by these appeals is how these
countervailing interests are best balanced when a parent is wrongly
suspected of having abused his child. Public confidence in the child
protection system can only be maintained if a proper balance is
struck, avoiding unnecessary intrusion in families while protecting
children at risk of significant harm... Clearly health professionals
must act in good faith. They must not act recklessly, that is without
caring whether an allegation of abuse is well-founded or not. Acting
recklessly is not acting in good faith. But are health professionals
liable to the suspected parents if they fall short of the standard of
skill and care expected of any reasonable professional in the
circumstances? Are they exposed to claims by the parents for
professional negligence? ...
75. In considering these questions the starting point is
to note that in each of these three cases... the doctors acted
properly in considering whether the claimant parents had deliberately
inflicted injury on the child in question. The doctors were entitled,
indeed bound to consider this possibility. Further, having become
suspicious, the doctors rightly communicated their suspicions to the
statutory services responsible for child protection. That is the
essential next step in child protection...
76. In each case the suspected parent was eventually
cleared of suspicion. In one case this was after ten days, in the
other cases after much longer periods. The second point to note is
that, essentially, the parents' complaints related to the periods for
which they remained under suspicion. In each case the parent's
complaint concerns the conduct of the clinical investigation during
these periods; the investigation, it is said, was unnecessarily
protracted. The doctors failed to carry out the necessary tests with
appropriate expedition. Had due care and skill been realised from the
outset, the doctors' suspicions would have been allayed at once or
much more speedily than occurred, and, in consequence, the parents
would have been spared the trauma to which they were subjected. Thus
the essence of the claims is that the health professionals
responsible for protecting a suspected child victim owe a person
suspected of having committed a crime against the child a duty to
investigate their suspicions, a duty sounding in damages if they act
in good faith but carelessly.
77. Stated in this broad form, this is a surprising
proposition. In this area of the law, concerned with the reporting
and investigation of suspected crime, the balancing point between the
public interest and the interest of a suspected individual has long
been the presence or absence of good faith...
78. This background accords ill with the submission that
those responsible for the protection of a child against criminal
conduct owe suspected perpetrators the duty suggested. The existence
of such a duty would fundamentally alter the balance in this area of
the law. It would mean that if a parent suspected that a babysitter
or a teacher at a nursery or school might have been responsible for
abusing her child, the doctor would owe a duty of care to the
suspect...
79... <Counsel> did not contend for such a broad
proposition... His submission was more restricted.... That the health
professionals' duty to exercise due professional skill and care is
owed only to the child's primary carers, usually the parents, as well
as the child himself. ...
80. My initial difficulty... is that the distinction
between primary carers, to whom the duty would be owed, and other
suspects to whom it would not, is not altogether convincing. It is
difficult to see why, if a health professional owes no duty to a
childminder or teacher suspected of abuse, he should nonetheless owe
such a duty to a parent suspected of abuse. An erroneous suspicion
that a childminder or school teacher had been abusing a child in his
or her care can be very damaging to him or her. ...
81. There is, however, one major difference between
parents and childminders or school teachers,. In the case of a parent
suspicion may disrupt the parent's family life. ... So the crucial
question ... is whether this potential disruption of family life
tilts the balance in favour of imposing liability in negligence where
abuse by a parent is erroneously suspected...
...
85. In my view the Court of Appeal reached the right
conclusion on the issue... Ultimately the factor which persuaded me
that, at common law, interference with family life does not justify
according a suspected parent a higher level of protection than other
suspected perpetrators is the factor conveniently labelled 'conflict
of interest'. A doctor is obliged to act in the best interests of his
patient. In these cases the child is his patient. The doctor is
charged with the protection of the child, not with the protection of
the parent. The best interests of a child and his parent normally
march hand-in-hand. But when considering whether something does not
feel 'quite right', a doctor must be able to act single-mindedly in
the interests of the child. He ought not have to have at the back of
his mind an awareness that if his doubts about intentional injury or
sexual abuse prove unfounded he may be exposed to claims by a
distressed parent.
86. ... the seriousness of child abuse as a social
problem demands that health professionals, acting in good faith in
what they believe are the best interests of the child, should not be
subject to potentially conflicting duties when deciding whether a
child may have been abused, or when deciding whether their doubts
should be communicated to others, or when deciding what further
investigatory or protective steps should be taken. The duty to the
child in making these decisions should not be clouded by imposing a
conflicting duty in favour of parents or others suspected of having
abused the child. ..."
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicants complained that their right to respect for family
life had been violated by their separation from their child,
that their right to moral and physical integrity under the
private life aspect had been violated, that their right to reputation
had been violated, affecting their right to establish and develop
relationships with other human beings and that they had been deprived
of the right to have inherent procedural safeguards in place and
observed to ensure the protection of the above rights. Article 8 of
the Convention provides as relevant:
“1. Everyone has the right to respect
for his private and family life, ....
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
A. The parties' observations
1. The applicants
The
applicants submitted that they had had no choice but to consent to
the interim care order. They argued that it was not a matter of a
mere error of medical judgment but a concatenation of events which
led to inappropriate social and legal consequences flowing from an
erroneous diagnosis, without any appropriate safeguards to prevent
it. Once Dr Blumenthal formed the view that M. had suffered a NAI, he
discounted all other possibilities and his care was deemed
substandard by their expert in the domestic negligence proceedings,
Dr Conway. Further the applicants were excluded from all discourse in
the matter; A.K. was provided with no translator during her
conversations with nursing staff and Dr Blumenthal, and she was given
no opportunity to correct mistaken factual assumptions. No weight was
given to the fact that they had no prior history with social services
or that the health visitor had had no concerns with M.'s care, her
view not even being sought initially and later being discounted. They
pointed out that the failure to order other tests to exclude OI
highlighted a complete reluctance to consider other possible causes
of the fracture and the possibility of a skin biopsy was never raised
at all, excluding them from the decision-making process. They were
never given an effective opportunity to deal with allegations,
referring to the case of T.P. and K.M. v. the United Kingdom
([GC], no. 28945/95, ECHR 2001 V). They drew attention to
the fact that Dr Paterson had become a totally discredited expert in
OI, receiving adverse comments from judges in child care proceedings
and being struck off in 2004 for professional misconduct. Finally,
the notes of the triage nurse contributed to highly negative
assumptions being made about A.K. in particular and about the way in
which the fracture occurred, influencing not only Dr Blumenthal's
diagnosis but also Professor Carty's. Dr Conway was never asked about
OI but about Dr Blumenthal's standard of professional care in which
his own credentials were impeccable.
The
applicants emphasised that, while M. was returned home in April 1999,
the public care was not revoked until June 1999, so that their rights
were affected for nine months and suspicions, anxieties and
restrictions lingered on. They emphasised that their much-loved
three-month-old first-born baby had been taken away from them and
they had been accused of deliberately injuring her. A.K. could no
longer be with her 24 hours a day, or throughout the night, as would
have happened if she had not been removed and the parents had to
endure a daily wrench of separation.
Furthermore,
the applicants argued that if the interferences did not reach the
threshold of severity under Article 3, they disclosed serious
interferences with their moral and physical integrity and damage to
their reputation, for which no justification has been put forward by
the Government, thus constituting a breach of Article 8 in its
private life aspect.
2. The Government
The
Government accepted that the removal of M. from home interfered with
family life but submitted that the interference was justified as
being fully in accordance with domestic law and necessary to protect
M. They pointed out that the separation was less than nine months
(only from October 1998 to April 1999), that she lived with her aunt
not far from her parents' home and saw her parents almost as much as
when she was at home due to supervised, but unlimited, access. They
considered that the social services had acted reasonably and in M.'s
best interests in responding to concerns of medical professionals.
The possibility of OI was considered from the outset but there was no
medical evidence at that stage to support such a diagnosis, an
independent expert also finding no bone abnormalities or radiological
or clinical evidence of OI. When the second fractures occurred, there
was prompt reconsideration of the diagnosis and a third opinion
sought which also indicated that no-one could have made a diagnosis
of OI in the first instance, the child having a confused history,
with lots of discrepancies and an essentially-normal skeletal survey.
That expert also cautioned against the utility of urine and other
biochemical tests in arriving at a confirmed OI diagnosis. The
Government emphasised the extreme difficulty in diagnosing mild OI in
a very young infant such as M., requiring a trajectory and
progression of the condition over a period of time. They drew
attention to the view of the guardian ad litem of M. who
stressed that a diagnosis of OI or any other bone disorder could not
have been made at the time of the first injury. They argued that the
errors in the notes made by the triage nurse at the outset were not
determinative or influential. While the applicants placed reliance on
their expert in the domestic proceedings, the Government pointed out
that he was a consultant paediatrician without any expertise in
childhood bone diseases, in particular OI. They rejected as without
substance other allegations of breaches of Article 8 concerning
physical and moral integrity and damage to reputation and private
life.
The Court's assessment
1. Concerning family life
It
is not disputed in the present case that the proceedings instituted
as regarded M., and the interim care order which resulted in M. being
placed away from the applicants, constituted an interference with the
applicants' right to respect for their family life within the meaning
of the first paragraph of Article 8. It must therefore be determined
whether this interference was justified under the second paragraph,
namely whether it was “in accordance with the law”,
pursued an aim or aims that are legitimate under paragraph 2 of this
provision and can be regarded as “necessary in a democratic
society”.
The
Court finds no reason to doubt that the interference complied with
the first two criteria, as conforming with domestic law requirements
and pursuing the legitimate aim of protecting the rights of others,
namely the child who had suffered injury.
As
to whether the interference was "necessary in a democratic
society”, the Court's case-law interprets this phrase as
requiring consideration in particular of whether, in the light of the
case as a whole, the reasons adduced to justify the measures were
“relevant and sufficient”, and whether the
decision-making process involved in measures of interference were
fair and afforded due respect to the interests safeguarded by Article
8. Account must also be given to the fact that the national
authorities have the benefit of direct contact with all the persons
concerned. It is not the Court's task to substitute itself for the
domestic authorities in the exercise of their responsibilities
regarding custody and access issues. While the authorities enjoy a
wide margin of appreciation, in particular when assessing the
necessity of taking a child into care, a stricter scrutiny is called
for in respect of any further limitations, such as restrictions
placed by those authorities on parental rights of access (see,
amongst many authorities, T.P. and K.M., cited above, §§
71-72).
In
the present case, the Court notes that the applicants have made
various complaints about the conduct of various professionals
involved in the case, essentially referring to an accumulation of
errors and alleging a lack of safeguards in place to prevent the
erroneous diagnosis that the injuries were caused non-accidentally
(see paragraph 28 above).
The
Court would re-iterate that mistaken judgments or assessments by
professionals do not per se render child-care measures
incompatible with the requirements of Article 8. The authorities,
medical and social, have duties to protect children and cannot be
held liable every time genuine and reasonably-held concerns about the
safety of children vis-à-vis members of their families
are proved, retrospectively, to have been misguided. In the present
case, it is incontrovertible that M., a baby of only a few months,
suffered a serious and unexplained fracture. It is not disputed that
OI is a very rare condition and also difficult to diagnose in very
small infants. The Court does not consider that the social or medical
authorities can be faulted for not reaching an immediate diagnosis of
OI or, in the absence of such a diagnosis, acting on the basis that
the injury could have been caused by the parents. No doubt it would
have been better if the triage nurse had taken more accurate notes as
to the family's account of what had happened and trouble had been
taken to obtain interpretation in medical staff's conversations with
A.K. who did not understand English. However, it is not apparent that
this would have dissipated concerns at this early stage since there
would still not have been any clear indication of how the fracture
had occurred. Furthermore, it may be noted that, even when official
interpretation was available, in court, the testimony of A.K. was not
found to be convincing.
The
applicants' complaints very much amount to criticising the way in
which the professionals, medical and legal, were prepared to suspect
the worst on the information available to them and failed immediately
to perceive their innocence or give them the benefit of any doubt.
Nonetheless, it must also be noted that, while an interim care order
was issued with a view to protecting M., steps were also taken to
place the baby within her extended family and in close proximity to
the applicants' own home so that they could easily and frequently
visit. And crucially, as soon as a further fracture occurred outwith
the applicants' care, further tests were quickly pursued and within
weeks M. was returned home.
The
Court further notes that M. was removed from the applicants' care for
a period of some seven months. It is not impressed by the applicants'
complaint that the care order was not removed for some further two
months. This was largely a formality, the further lapse of time not
imposing any identifiable concrete prejudice. As to the time which
elapsed before the correct diagnosis was made, the Government
referred to the medical opinions of two doctors obtained at the time
of diagnosis of OI which considered that there was no fault in not
reaching this conclusion at the time of the first injury. The
applicants emphasised that one of these doctors was later totally
discredited. However, the Court is not called upon to adjudicate,
retrospectively, as to the best medical practice or the most reliable
expert opinion. It is satisfied that there were relevant and
sufficient reasons for the authorities to take protective measures,
such measures being proportionate in the circumstances to the aim of
protecting M. and which gave due account and procedural protection to
the applicants' interests, and without any lack of the appropriate
expedition.
There
has, accordingly, been no violation of Article 8 of the Convention in
this regard.
2. Concerning other aspects of Article 8
The
applicants also claimed that the events complained of above invaded
their physical and moral integrity and damaged their reputation in
violation of Article 8 of the Convention.
Having
regard to its conclusions above as to the lawfulness and necessity of
the measures, the Court considers that in the circumstances no
separate issue arises.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicants complained that they had no effective remedy for their
above complaints, invoking Article 13 of the Convention which
provides:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. The parties' submissions
The
applicants argued that Article 13 was applicable and that none of the
remedies referred to by the Government would have satisfied that
provision. As regarded the HRA 1998, it was expressly because the
events took place before it came into force that they could not avail
themselves of that legislation. It was difficult for them to
understand why recognising a duty of care in relation to events
before 2 October 2000 would have had such unacceptable consequences
for child protection since it was available afterwards. They
maintained their view that in tort public policy concerns have meant
that a wide de facto immunity from suit was allowed to public
bodies. At the time the tort of negligence was the only remedy in
national law capable of determining the substance of their Convention
complaints but the House of Lords chose not to recognise that they
fell within its ambit.
The
Government accepted that there was an arguable claim and
notwithstanding the variety of remedies available (local authority
social service and NHS complaints procedures, the local authority and
NHS ombudsmen, judicial review of the relevant authorities and
appeals against any court orders) they acknowledged that they were
arguably obliged under Article 13 to ensure an enforceable right to
compensation was available for such damage as could have been proved
to have resulted from any violation of Article 8. They submitted that
as from 2 October 2000 such a remedy was provided by the HRA 1998
(sections 7 and 8) although this did not apply to the acts in issue
in these proceedings. They pointed out though that there was no prior
obligation to incorporate the Convention in domestic law or to
incorporate it with retrospective effect as the applicants appeared
to contend. They also refuted assertions concerning alleged
exclusionary rules applied to protect public authorities from suit.
B. The Court's assessment
The
effect of Article 13 is to require the provision of a remedy at
national level allowing the competent domestic authority both to deal
with the substance of the relevant Convention complaint and to grant
appropriate relief, although Contracting States are afforded some
discretion as to the manner in which they conform to their
obligations under this provision. However, such a remedy is only
required in respect of grievances which can be regarded as arguable
in terms of the Convention (see Halford v. the United Kingdom,
judgment of 25 June 1997, Reports of Judgments and Decisions
1997-III, p. 1020, § 64; and Camenzind v. Switzerland,
judgment of 16 December 1997, Reports 1997-VIII, pp. 2896 97,
§ 53).
It
is common ground in this case that the applicants' complaints about
the interference with their family life through the care measures
were arguable. The Court considers that the applicants should have
had available to them a means of claiming that the local authority's
handling of the procedures was responsible for any damage which they
suffered and obtaining compensation for that damage (T.P. and
K.M., cited above, §§ 108-109). Such redress was
not available at the relevant time. Consequently, there has been a
violation of Article 13 of the Convention in this regard.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicants claimed 15,000 pounds sterling (GBP) each for
non-pecuniary damages as regarded their complaints under Article 8 to
reflect the separation of nine months from the child, the public
suspicion and criticism suffered by AK, the mental distress at the
continuing fear of separation from their child, the concern that
their innocence has never publicly been vindicated and that details
of the unfounded allegations may remain in local authority files.
They also claimed GBP 4,214 each for the violation of Article 13
referring to the lack of any effective remedy for their concerns
which required them to spend three and a half years in domestic
proceedings and then to bring their case here.
The
Government claimed that these claims were excessive pointing out that
only GBP 10,000 was awarded in TP and KM v. the United Kingdom
(cited above), where there had been separation of a year, whereas
there had been a shorter period of separation and the child in the
present case had in fact been placed in the care of an aunt who lived
nearby. An award of GBP 10,000 jointly to the applicants was
sufficient for any violation of Article 8 and no further award
necessary for any breach of Article 13.
The
Court recalls that it has only found a violation under Article 13 of
the Convention. Not doubting that the applicants did in that regard
suffer frustration, stress and uncertainty which would not be
redressed by a finding of a violation alone, and having regard to
awards in similar cases, the Court, making its assessment on an
equitable basis, awards the applicants 10,000 EUR jointly.
B. Costs and expenses
The
applicants claimed legal costs and expenses as regarded their
representation by counsel and solicitor in the amount of GBP
32,803.43, which sum took into account the award of legal aid from
the Council of Europe and included value-added tax. They also claimed
GBP 11,230 for advice and work done by the AIRE Centre.
The
Government considered that the number of hours claimed (130 by the
solicitors and 117 by AIRE Centre) were clearly excessive and
contained an significant element of duplication. They considered an
award of some GBP 10,000, inclusive of VAT should be awarded.
The
Court recalls that the procedure was in writing, that no further
submissions on the merits were put in after admissibility and that
the applicants were only successful on one complaint. It also concurs
with the Government that considerable duplication is disclosed by the
claims put in for work by solicitor, counsel and experts from the
AIRE Centre. Having regard also to the finding of only one violation,
it awards EUR 18,000 for legal costs plus any tax that may be payable
by the applicants.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been no violation of
Article 8 of the Convention;
2. Holds that there has been a violation of Article 13
of the Convention;
Holds
(a) that
the respondent State is to pay the applicants jointly, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
the following amounts, to be converted into pounds sterling at the
rate applicable at the date of settlement:
(i) EUR
10,000 (ten thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
18,000 (eighteen thousand euros), plus any tax that may be chargeable
to the applicants, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 30 September 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Lech Garlicki
Registrar President
