24 April 2009
by Emma Louise LEADBETTER
against the United Kingdom
lodged on 11 August 2006
STATEMENT OF FACTS
The applicant, EL, is a British national who was born in 1983 and lives in Ormskirk. She is represented before the Court by Ms Emma Holt of Pannone LLP, a lawyer practising in London.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant’s daughter, LL, was born on 11 June 2003 by planned caesarean section. During the applicant’s ante-natal screening LL was diagnosed as having single X chromosome which was indicative of a female with Turner’s syndrome. Turner’s syndrome is a genetic defect in women which causes infertility. Classic symptoms include short stature, webbed neck, eye and heart disorders and early development of osteoporosis.
LL’s birth was reported as normal although it was noted that she had the features of Turner’s syndrome. No other abnormalities were recorded.
Immediately after the caesarean section the applicant was bedridden. She was groggy as a result of the morphine that she had been given and LL was taken away by the midwives for feeding and changing. On 12 June 2003 the midwifery notes record that the applicant was “not handling baby much as yet”. At 10.00am and 11.15am on 13 June 2003 the notes record that “[the applicant] assisted with [LL’s] cares by special care nurses”.
On 13 June 2003 photographs were taken of the applicant and LL by an independent child portrait photographer. The applicant’s family also filmed LL in hospital prior to discharge. Both the photographs and the video appear to show a swelling on the left side of LL’s head. None of the healthcare professionals who examined LL during her stay in hospital mentioned any swelling and there is no record of it in the midwifery notes.
The applicant and LL were discharged from hospital on 16 June 2003. On 17 June 2003 the applicant noticed that LL was not urinating. She took her to Ormskirk Hospital Accident and Emergency Department. The doctor noted that there was a swelling on the left parieto-temporal area but a skull x-ray showed no visible fracture. LL was admitted to the ward. On 18 June 2003 an ultrasound scan was performed on the swelling. The applicant took LL home although the hospital notes record that she was advised to stay overnight. When the ultrasound report was returned it showed a fracture of the underlying skull without significant displacement. Fluid was visible between the scalp and the skull. On 19 June 2003 the applicant was asked to return to the hospital.
Upon arrival at the hospital, LL was examined by an Accident and Emergency Doctor. He performed a detailed examination but did not identify any abnormality.
On 19 June 2003 a referral was made from the Child Protection Nurse at Ormskirk Hospital to social services because of a queried non-accidental injury.
A CT scan was performed on 20 June 2003. It showed a defect in the bone which had the appearance of a fracture. A large number of bony abnormalities were also seen within the skulll vault, including variable thickness of the skull, multiple wormian bones and patchy lucencies within the vault. The report noted that while there was widespread abnormality within the cranial vault which was developmental in nature, the different character of the defect in the left parietal region and focal presence of overlying fluid was suspicious in nature. No haematoma was seen.
A report on the scans was commissioned by Professor Carty, a Consultant Paediatric Radiologist, and the applicant agreed that LL would remain in hospital until the report was received. The report was completed on 24 June 2003. In the report Professor Carty stated that in her opinion the skull x-ray showed evidence of scaphocephaly with a developing sagittal suture stenosis, and LL would require surgery to correct the skull deformity. It was Professor Carty’s opinion that there had been some associated intracerebral injury, which most commonly occurs through shaking but can also be caused by direct impact.
A note in LL’s medical records indicated that on 25 June 2003 the applicant’s aunt raised the issue of the home video taken while LL was in hospital. The records noted that this was discussed with social services but it was not within their remit to view the video. It was suggested that the matter could be discussed with the medical team or with the police if necessary. On 25 June 2003 Dr McBride reviewed the video but noted that he could not say if there was a swelling without having examined LL at the time.
On 27 June 2003 LL was discharged and placed with foster carers outside the family. She was referred to Dr May, a Paediatric Neurosurgeon, for management of the sagittal suture stenosis.
The applicant was arrested by the police on suspicion of assault and interviewed at Skelmersdale police station on 9 July 2003. No charges were made and she was released on police bail.
On 14 July 2003 a child protection review took place. It was decided that LL should be placed on the child protection register under the category of physical abuse. LL was to reside with her maternal great-aunt, MS. The applicant was requested to undergo a parenting assessment and a psychological assessment. She was allowed three two-hour contact sessions, seven days a week.
Social services contacted the applicant’s general practitioner (“GP”) for further information on her medical and psychological history. The GP erroneously advised social services that the applicant had Turner’s Syndrome and that she suffered significant depression requiring medication. It was his view that this would affect her ability to care for a young child.
On 17 July 2003 social services asked Professor Carty to look at the video recording and photographs of LL taken shortly after her birth.
LL was placed with MS on 21 July 2003, by which time she had spent twenty-four days with foster carers outside the family.
A core group meeting took place on 28 August 2003. The group discussed the possibility of placing the applicant and LL in a mother and baby unit. At the time the applicant’s level of contact with LL was three hours a day as she had returned to work.
On 9 September 2003 social services decided to issue proceedings. On 12 September 2003 it was agreed that they would seek an interim care order. The same day social services dismissed the idea of placing the applicant and LL in a mother and baby unit because “it did not manage the risk re monitoring”.
At a child protection review on 16 September 2003 it was decided that LL’s name should remain on the child protection register. The local authority would apply for an interim care order and the applicant would only have contact with LL which was supervised by social services and MS.
On 27 October 2003 Professor Carty provided a statement after having reviewed the police interview, the video and the photographs. She concluded first, that there was a fracture to LL’s skull; secondly, that there was an absence of medical identification of the swelling on the left parieto-temporal area; thirdly, that if it was due to a birth lesion, it had taken a very long time for the swelling to persist over such a minor fracture; fourthly, that the fracture was found in association with intercerebral bleeding; fifthly, that the photographs taken before LL was discharged from hospital apparently showed a swelling at the same site as the fracture; sixthly, that LL also had a congenital malformation of the skull vault, which was not a feature of Turner’s syndrome. Professor Carty concluded that as the presence of a deformity at birth seemed to be genuine there was some doubt about the cause of the fracture and it was inappropriate to classify LL’s injury as non-accidental.
A meeting between social workers and doctors took place on 14 November 2003 to discuss Professor Carty’s report. The meeting concluded that an abnormality could be seen on the skull but no further conclusions as to its causation could be drawn.
An interim care order was granted on 9 December 2003.
On 17 December 2003 a social workers’ planning meeting concluded that the cause of the injury had not been determined. Consequently, the risk to LL was not resolved. It was envisaged that LL could be removed from the child protection register at the next child protection review meeting on 12 February 2004.
A review meeting took place on 14 January 2004. As LL was scheduled to undergo cranial surgery in March 2004, it was decided that she should remain with MS until after this date. In view of LL’s susceptibility to colds and chest infections, the applicant’s contact was reduced to five days a week.
An assessment of the applicant’s parenting skills revealed no concerns. She displayed an excellent knowledge of how to meet her child’s basic needs, she was attentive to LL, ensured her safety and provided her with emotional warmth.
On 11 February 2004 a police report confirmed that the criminal investigation had been concluded and no evidence had come to light which explained how LL had sustained a fractured skull.
On 12 February 2004 LL’s name was removed from the child protection register.
LL underwent cranial surgery on 1 March 2004.
Around this time the consultant Paediatrician who examined LL after her birth prepared a report. She could not say whether there had been nothing noticeably abnormal when she examined LL’s head or whether there was a mild abnormality which did not strike her as being of sufficient importance to record.
On 19 April 2004 the applicant and LL were moved to Maryvale Mother and Baby Unit. They were discharged from the unit earlier than anticipated on 11 June 2004. The applicant’s parenting skills were assessed as being excellent.
The applicant sought to bring a claim under the Human Rights Act 1998. She accepted that she could not bring an action in tort following the House of Lords decision in JD v East Berkshire Community Health NHS Trust and Ors  2 AC 373, which held that no duty of care was owed to parents by either local or health authorities in respect of their negligence in relation to misdiagnosis and the wrongful taking of children into care. Instead, she applied to the Legal Services Commission (“LSC”) for public funding to investigate her claims that the events set out above had violated her rights under the Convention. The application was refused on 22 November 2005 as the applicant’s claim was not considered to be strong enough, in terms of prospects of success and cost benefit, to satisfy the relevant criteria for full representation.
The applicant applied for a review of this decision. She submitted that criterion 5.6.3 of the LSC Funding Code (“the Code”), which provided that investigative help should be refused where damages were not likely to exceed GBP 5,000, did not apply to claims against public authorities. Moreover, the case involved significant human rights issues which, pursuant to section 6 of the Code, had to be given weight in the cost benefit test. Finally, the applicant submitted that the refusal of LSC funding could constitute a breach of Article 13 of the Convention as she was precluded from bring an action in tort or under the Human Rights Act 1998.
The appeal was listed for hearing on 13 February 2006. The Funding Review Committee confirmed the earlier decision as it did not consider that the prospects of success were sufficient to justify funding. In particular, the Committee thought it was unlikely that the decision in JD would be altered significantly by arguments raised under the Human Rights Act 1998. Taking into consideration the likely costs and the level of damages likely to be awarded, the Committee also considered that the cost-benefit test was unlikely to be satisfied. Moreover, the Committee considered that the case did not raise a significant human rights issue.
Advice was sought from Queen’s Counsel, who indicated orally that a judicial review of the LSC decision would have no prospect of success. As the applicant was on state benefits she could not afford to pay for legal representation to bring the case before the domestic courts.
B. Relevant domestic law and practice
I. 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 applicants in JD subsequently brought separate applications to the Court. In September 2008, the Court gave judgment in the first of these cases: R.K. and A.K. v. the United Kingdom, no. 38000/05, 30 September 2008. Before the Court the Government accepted that there was an arguable claim that they were obliged under Article 13 to ensure an enforceable right to compensation was available for such damage as could be proved to have resulted from a violation of Article 8. They submitted, however, that from 2 October 2000 such a remedy was provided by the Human Rights Act 1998. The Court held that as the relevant events took place before 2 October 2000, and because the Human Rights Act 1998 did not have retrospective effect, the applicants did not have a means of claiming damages and there was therefore a violation of Article 13.
II. LSC Funding Code
The Funding Code is the set of rules that the LSC uses to decide which cases will be funded through civil legal aid.
Criterion 5.6 governs the availability of civil legal aid for investigative help. It provides as follows:
“5.6 Criteria for Investigative Help
5.6.2 The Need for Investigation
Investigative Help may only be granted where the prospects of success of the claim are uncertain and substantial investigative work is required before those prospects can be determined. Guidance may indicate what constitutes substantial investigative work for this purpose.
If the client’s claim is primarily a claim for damages and has no significant wider public interest, Investigative Help will be refused unless the damages are likely to exceed £5,000.
5.6.4 Prospects after Investigation
Investigative Help may only be granted if there are reasonable grounds for believing that when the investigative work has been carried out the claim will be strong enough, in terms of prospects of success and cost benefit, to satisfy the relevant criteria for Full Representation. “
Criterion 8 specifically deals with claims against public authorities. The relevant paragraphs provide as follows:
“Section 8 Claims Against Public Authorities
This section applies to applications for Legal Representation in relation to proceedings or proposed proceedings against public authorities concerning serious wrong-doing, abuse of position or power or significant breach of human rights, other than cases falling within the scope of section 7 (Judicial Review) or section 10 (Housing).
8.2 Criteria for Investigative Help
Criterion 5.6.3 (minimum damages level) does not apply to applications for Investigative Help under this section.
8.3 Criteria for Full Representation .
8.3.2 Prospects of Success
Full Representation will be refused if:
(i) Prospects of success are unclear;
(ii) Prospects of success are borderline and the case does not appear to have a significant wider public interest, to be of overwhelming importance to the client or to raise significant human rights issues;
(iii) Prospects of success are poor.
8.3.3 Cost Benefit
Legal Representation may be refused unless the likely costs are proportionate to the likely benefits of the proceedings, having regard to the prospects of success and all other circumstances.”
Claims under the Humans Rights Act 1998 are considered in section 6 of the Decision Making Guidance. Section 6 provides that:
“6. The Human Rights Convention
6.3 Implications for the Community Legal Service and the Funding Code
1. The ECHR and the HRA 1998 impact upon the CLS at a number of levels:
(a) Article 6 is directly relevant to decision making under the Funding Code. Indeed it is an aim of the Access to Justice Act 1999, and the rules of the Funding Code in particular, to ensure that individuals have the opportunity of a fair hearing in the determination of their civil rights. The Funding Code Criteria seek to achieve this for cases which have sufficient merit to justify public funding. To this extent the Funding Code already takes Article 6 fully into account. The Funding Code Criteria must be applied in every case, but where the Commission has a discretion, for example whether funding should be requested for a case under section 6(8)(b) of the 1999 Act, the Commission will take into account the Article 6 implications for the individual client. It is therefore material to consider when exercising any discretion whether, without public funding, the individual would be deprived of a fair hearing. This is particularly relevant to decisions to discharge a certificate at a late stage in proceedings – see Alliss v. LSC, CO/3348/02, 25 September 2002 and Section 13.5 of this guidance.
(b) Cases against public authorities which raise significant human rights issues are a priority area under the Code. The Lord Chancellor’s directions (at paragraph 3.3.4 of this guidance) ensure that such cases are within the scope of the Act. Significant human rights issues are expressly recognised in the Criteria for claims against public authorities, whether in the form of judicial review (section 7 of the Code) or claims for damages (section 8). In such categories, cases against public authorities may be funded even if prospects of success are only borderline. The same approach applies to immigration cases under section 13 of the Code.
(c) In applying cost benefit Criteria in the Code, whether in the form of the private client test or a general cost benefit test, weight will be given to significant human rights issues raised in the case.
(d) Human rights issues are highly material to decisions as to whether funding is justified under the affordability criterion for high cost cases funded out of the central budget. (See section 15.4 of this Guidance).
6.4 Meaning and effect of “Significant Human Rights Issues”
1. For the purpose of the Lord Chancellor’s directions on scope and the Criteria in the Funding Code, human rights issues must be “significant”. This test in the Code does not mean that some breaches of human rights should be regarded as insignificant, in fact all breaches of human rights are significant. Instead, the approach in the Code is to consider whether the allegations of breach of human rights are significant to the particular case under consideration. The following approach should be adopted in deciding whether a case raises significant human rights issues:
(a) to be significant, the ECHR issues must be material to the case. This means the human rights issues must be an important part of the case, which are likely to make a difference to its outcome. It is not necessary to show that, without the human rights arguments, the case would fail. Indeed for many cases incorporation of ECHR will simply reinforce existing rights rather than create entirely new ones. For example, unlawful detention cases often raise significant human rights issues even though the right to claim damages for false imprisonment was well established in law prior to the Human Rights Act. However, a case will not be regarded as raising significant human rights issues if those issues appear to have been included in the case as an afterthought to bolster the claim or are unlikely to carry weight with the court;
(b) a case does not raise significant human rights issues if the argument that there has been a breach of human rights has poor prospects of success. This is a separate question from determining the prospects of success of the proceedings as a whole. There must be a reasonable case that human rights have been breached, which in the terms of the Code equates to the human rights allegation having prospects of success at least in the borderline category;
(c) significant human rights issues must flow from the case itself, not from the funding decision. A case cannot be said to raise significant human rights issues for the purposes of the Funding Code merely on the grounds that if public funding were not provided for the case there might be some arguable breach of Article 6. Such arguments would be relevant only in the context of a judicial review of the funding decision.
2. A case which raises significant human rights issues may still be refused under cost benefit Criteria. The Criteria in sections 7 and 8 of the Code require the benefits of the proceedings to justify the likely costs. Although human rights issues are always important, the mere fact that a case raises human rights issues does not mean that there is no limit on the amount of public funding which can be provided. A common sense test must be applied. The issue is whether the benefits flowing from the proceedings are sufficiently worthwhile that they justify the expenditure of public funds.
3. The nature and consequences of the right allegedly infringed must be taken into account. Although the private client test, as such, is not directly relevant to cases under sections 7 and 8 of the Code, it is appropriate to consider whether the significance of the issues at stake to the particular client, viewed objectively, justify the likely costs of the case. For example, it is far more likely that a challenge under Article 8 concerning prolonged unlawful telephone tapping would satisfy the cost benefit Criterion than, say, a challenge under Article 5 alleging unlawful detention by a police officer if the detention was only for a very short period.”
The applicant complains under Article 3 of the Convention that she suffered prolonged psychological distress amounting to degrading treatment as a result of the accusations of abuse and her eleven month separation from her newborn child. The applicant complains under Article 8 of the Convention that the accusations of abuse and the separation from her child constituted a disproportionate interference with her right to respect for her family and private life, her physical and moral integrity and her right to reputation. The applicant further complains that her rights under both the criminal and civil limbs of Article 6 of the Convention have been violated. In particular, she alleges that the conduct of the criminal investigation violated her right to the presumption of innocence because there was no opportunity for public exoneration. In relation to the civil limb of Article 6, she alleges that she was not sufficiently involved in the decision-making process to safeguard her rights and the refusal of legal aid to pursue a domestic claim under the Human Rights Act 1998 obstructed her access to a court. Finally, the applicant complains under Article 13 of the Convention that the refusal of legal aid to pursue the domestic claim deprived her of an effective remedy.
QUESTIONS TO THE PARTIES
Did the applicant have contact with LL between 27 June 2003 and 21 July 2003? If not, did this period of separation violate the applicant’s rights under Article 8 of the Convention?
Did the delay in returning LL to the applicant’s care violate the applicant’s rights under Article 8 of the Convention?
Did the decision by the LSC to refuse legal aid violate the applicant’s rights under Article 6 § 1 of the Convention?
Did the applicant have at her disposal an effective domestic remedy for her Convention complaints as required by Article 13 of the Convention?