17 December 2009
against the United Kingdom
lodged on 10 June 2008
STATEMENT OF FACTS
The applicant, BP, is a British national who was born in 1956 and lives in Berkshire. He is represented before the Court by Nuala Mole and Anita Amendra of the AIRE Centre, lawyers practising in London.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 1984 the applicant entered into a relationship with SJ. They moved in together in 1985 and in February 1987 SJ gave birth to their daughter (“L”). The applicant and SJ separated in 1988. The applicant initially continued to have regular weekly contact with L, but as his relationship with SJ began to deteriorate, contact became intermittent. Following an argument in March 1989, SJ ended all contact between the applicant and L. Contact resumed in June 1989.
On 28 September 1988 SJ had taken L to her General Practitioner (“GP”), claiming that she had been sexually abused by a female babysitter. The GP found no evidence of sexual abuse. On 31 January 1990 SJ again took L to the GP. On this occasion she alleged that the applicant had sexually abused L. In particular, she stated that L had recently had a contact visit with the applicant and was complaining of vulval soreness. The GP examined L but found no evidence of sexual abuse. He noted that there was some soreness, common among girls of L’s age, which did not in itself indicate sexual abuse. He referred L to a health visitor, who visited SJ’s home on 2 February 1990. SJ informed the health visitor that on 30 January 1990 L had woken in the night and said that the applicant had touched her.
On a second visit on 5 April 1990 SJ informed the health visitor that L had become upset on 25 March 1990 after she had seen the applicant and had alleged that he had “touched her and made her bleed” It was agreed that Berkshire County Council Social Services should be informed.
On 10 April 1990 L was interviewed by a police officer and a social worker. The police officer and social worker both noted that L had said that her daddy helped her to go to the toilet and that she played a “dog and bone” game with him. They considered that these statements had been made in an “aroused” manner which therefore implied that sexual activity had taken place. The following day L was interviewed again by the same police officer and social worker. She expressly denied that the game she had played with the applicant had been “naughty” and she said that she played the same game with her mother. It also emerged that L also called SJ’s new boyfriend “Daddy”.
L was medically examined on 12 April 1990 by a police surgeon. He found no sign of trauma, bruises, bites or abrasions in the genital area and no physical evidence of sexual abuse.
On 14 April 1990 SJ made a further statement to the police. On 19 April 1990 the applicant was arrested on suspicion of having sexually abused L. He agreed to be interviewed without a solicitor. In the course of the interview a police officer told him that they had medical evidence that L had been sexually abused. The applicant strongly denied all the allegations. As there was no evidence against him he was released without charge.
On 25 April 1990 a child protection case conference was held. The applicant was not invited to attend. The local authority continued to assert that there was evidence that the applicant had sexually abused L. Following the case conference L was immediately placed on the “At Risk” register as a child who had suffered sexual abuse. Consequently, the applicant’s contact with L was terminated. He had no further contact with L until 1993.
On 20 June 1990 SJ made further allegations against the applicant. L was interviewed again and in October 1990 she was referred to a Consultant Child Psychiatrist. In November 1990 L underwent a full physical examination which disclosed no evidence of sexual abuse. In January 1991 L commenced play therapy which continued for a year.
In May 1991 the applicant lost his job as a direct result of the accusations of sexual abuse.
On 20 May 1991 the applicant applied to the County Court for access to L under the Guardianship of Minors Act 1971.
A number of hearings took place in which the presiding judge expressed concerns about the lack of evidence of sexual abuse and urged the social workers to take a fresh look at the case. The Child Protection Committee, however, maintained that there was evidence that L had been sexually abused by the applicant.
In May 1993 a guardian ad litem was appointed. L told the guardian of her sadness at not seeing her paternal grandparents and stated that she did not remember any harm that the applicant or her paternal grandparents had ever caused her.
A fourteen-day hearing was held in October 1993. In an interim judgment the County Court judge stated that:
“my provisional view, indeed, having studied all the available evidence with considerable care, is that [BP] did not sexually abuse [L] and if she has been subject to any sexual experience or abuse, it cannot realistically be attributed to him.”
In respect of the interviews conducted with L by the social worker and police officer on 10 and 11 April 1990, the judge said:
“I am appalled that two professional persons engaged in child protection work would have been so unscrupulous in seeking to prove that sexual abuse had occurred, rather than to establish the facts. It shows a degree of prurience and an appetite for the witch-hunt that are really shocking”
made an interim supervision order in favour of the local authority
for eight weeks and an interim contact order in favour of the
paternal grandparents. He adjourned the case on the understanding
that SJ would
co-operate with therapy designed to rehabilitate L to the applicant.
The Child Protection Committee met on 3 November 1993. It recommended that L’s name should remain on the “At Risk” register as a victim of sexual abuse. As a consequence, the local authority decided not to facilitate contact with L’s paternal family until after the final hearing. The applicant was not invited to attend the Committee meeting.
The final hearing took place in July 1995. The County Court judge found that there was no evidence that the applicant had sexually abused L and he ordered that L should have contact both with the applicant and her paternal grandparents. He further stated that the applicant was “a victim of a serious injustice, which has not only clouded his life and that of his parents for over five years, but has resulted in serious harm to L too.” In particular, he noted that the interviews conducted with L on 10 and 11 April 1990 were conducted improperly and incompetently and “elicited nothing that could be described as evidence of sexual abuse or improper conduct...despite the most outrageous and oppressive questioning”. Finally, the judge observed that the unfounded allegations against the applicant were not a sufficient reason for cutting him off from contact with his daughter.
Following the hearing in 1995 the applicant was allowed supervised contact with L. SJ did not cooperate and the visits were often cancelled or abbreviated. The local authority subsequently became concerned about SJ’s parenting ability. In October 1995 an interim care order was made and L was placed with foster carers.
In October 1996 a final care order was made which included parental responsibility in respect of the applicant and a residence order in respect of the applicant and his partner. The court further ordered that contact with SJ, the maternal grandmother and SJ’s extended family was to be at the discretion of the local authority. At the end of the month L went to live with the applicant. On 16 February 2005, on L’s eighteenth birthday, the care order was automatically discharged.
As a consequence of the allegation of sexual abuse, the applicant lost his job and was subjected to harassment in his neighbourhood. He started drinking heavily, accumulated debts and defaulted on his mortgage payments. He developed clinical depression and was diagnosed with a major depressive episode of moderate severity.
On 14 May 1998 the applicant had issued proceedings in tort against Berkshire County Council and the Chief Constable of Thames Valley Police, claiming damages for negligence, negligent misstatement, misfeasance in public office and conspiracy to injure.
In March 2000 the applicant’s claim against the police was struck out. On appeal, the Court of Appeal held that the police could not rely on any immunity and the applicant could pursue his claim through the courts.
On 21 April 2005 the House of Lords held in the case of JD v East Berkshire Community Health NHS Trust and Others that there was no duty of care owed by Local Authorities to parents in child protection proceedings On 13 December 2006 the applicant’s claim in negligence against the local authority was struck out as the local authority could not be held to be vicariously liable for the actions of its social workers.
The applicant was refused permission to appeal. He was granted permission to amend his claim to allege that the local authority owed him a direct duty of care which required proper assessments, supervision, and training and ensured the participation of parents in the process. The judge held that it was arguable that such a duty was owed:
“It is in the interests of the parents just as much as the children that investigations are carried out competently by staff who are properly managed and supervised, that such staff are aware of the relevant local and national guidelines relating to the investigation of such allegations and are properly trained in their application, and that proper records are kept and maintained of such investigations and of the management, supervision and training of staff who carry them out.”
The local authority appealed against this decision and on 11 December 2007 the Court of Appeal ruled in their favour, stating that a conflict of interest could arise equally in cases of alleged direct or vicarious negligence and to impose a duty towards suspected parents would not be fair, just and reasonable so as to establish a tort. It also refused permission to appeal to the House of Lords.
On 20 December 2007 counsel advised the applicant that in light of the House of Lords decision in JD, there was no prospect of petitioning the House of Lords for leave to appeal.
B. Relevant domestic law and practice
JD v East Berkshire Community Health NHS Trust and Ors  2 AC 373
The question before the House of Lords in JD was whether the parent of a minor child falsely and negligently said to have abused or harmed the child could recover common law damages for negligence against a doctor or social worker who, discharging professional functions, made the false and negligent statement, if the suffering of psychiatric injury by the parent was a foreseeable result of making it and such injury had in fact been suffered by the parent. The House of Lords concluded (Lord Bingham of Cornhill dissenting) that there were cogent reasons of public policy for holding that no common law duty of care should be owed to the parents and it would not be just or reasonable to impose such a duty. The relevant events in JD occurred before the Human Rights Act 1998 came into force, and the House of Lords reserved its opinion on whether, in similar cases arising after the Act came into force, it would be appropriate to modify the common law of negligence rather than found an action on the provisions of the Act.
The applicant complains under Article 8 of the Convention that his right to respect for his family life was violated by the prevention of contact between him and his child for five years, and the failure to have in place and observe the procedural standards inherent in Article 8. He further complains under the same Article that his right to respect for his private life was violated as the damage to his reputation which resulted from the unfounded allegations interfered with his right to establish and develop relationships. Finally, he complains that his right to respect for his moral and physical integrity was violated by the prolonged distress he suffered as a result of the unfounded allegations.
The applicant complains under Article 6 that the proceedings were unreasonably long, at both the administrative and judicial stages.
The applicant complains under Article 13 that he did not receive an effective remedy in the domestic courts as the events started before the enactment of the Human Rights Act.
QUESTIONS TO THE PARTIES