AD & OD V UNITED KINGDOM [2010] ECHR 340
FACTS:-
The Applicants were mother and child. In each case the Applicants claimed damages arising out of alleged negligence by the local authority in the context of care proceedings. OD was born on the 8th August 1996. His mother AD was concerned about his weight and asked for a referral to a paediatrician. In January 1997, a consultant radiologist informed the paediatrician, Dr S that he had found four rib fractures. He was placed on the child protection register and care proceedings followed on the 1st May 1997. The family court made an interim care order and OD and his parents resided at a family resource centre in Bristol, so that a risk assessment could be carried out. However the risk assessment was not carried out. There was then a further contested hearing before the family court, which lasted four days. On the 12th August 1997, as a result of that hearing, OD was placed with foster parents and separated from his mother for a period of four months. On the 6th December 1997 the local authority received advice from the NSPCC that it had carried out a risk assessment, and the child should be rehabilitated with his parents. OH suffered from a rare condition known as osteogenesis imperfecta or brittle bone disease. The care order was finally discharged in July 1998.
AD claimed that she had suffered psychological shock and upset. She relived the experience regularly and had been referred for psychological counselling. She had separated from OD’s father in June 1998 due to the distress of the events.
Initially in August 1998, AD complained to the local authority, who appointed an independent person to investigate the complaint. She found some failings on the part of the local authority, but generally supported their stance throughout. She did not recommend any compensation be paid. An apology was issued by the local authority.
AD then instituted proceedings against the local authority on behalf of herself and OD claiming damages for negligence and personal injury. In 2003 the judge at first instance held that the local authority owed no duty of care to a parent in the context of proceedings based on allegations of abuse. In relation to the child, OD, it had not been shown that he had suffered any recognisable psychiatric damage. Proceedings were stayed pending the decision in D v East Berkshire Community Health NHS Trust and others [2005] AC 373. In that case the House of Lords held that no duty was owed by medical or social work professionals to parents in the exercise of their duties, in the best interests of the children, when deciding whether there had been any abuse and what measures were necessary.
The Court of Appeal then dismissed the Applicant’s appeal in AD & OH v Bury Metropolitan Council [2006] EWCA Civ 1. Leave to appeal to the House of Lords was refused.
The Applicants alleged violation of Article 8 of the European Convention on Human Rights.
HELD:-
The European Court of Human Rights considered Section 23(6) of the Children Act 1989 which provided as follows:-
“Subject to any regulations made by the Secretary of State for the purposes of this subsection, any local authority looking after a child shall make arrangements to enable him to live with –
unless that would not be reasonably practicable or consistent with his welfare.”
A person falling within sub section (4) would include a parent of the child.
Article 8 of the Convention stated:-
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
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 o f 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.”
The Court considered the arguments of the Applicants and the UK government. It was accepted by the Applicants (after RK and AK v United Kingdom [2008] All ER (D) 143 (Oct)) that mistaken judgements or assessment by professionals did not of themselves render childcare measures incompatible with Article 8 of the Convention. However this case was different from RK insofar as the mistakes made by the authorities were far more stark.
The list of mistakes was as follows:-
The Court said that without question, the challenged measures taken by the authorities conformed to the requirements of domestic law and pursued the legitimate aim of protecting the rights of others, namely those of OD, the child. There needed to be a consideration of whether the reasons adduced to justify the measures were “relevant and sufficient” and whether the decision making process was fair and afforded due respect to the Applicants’ rights under Article 8.
It was not the Court’s task to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody and access issues. The authorities enjoyed a wide margin of appreciation when assessing the necessity of taking a child into care. A stricter scrutiny was called for, in respect of any further limitations, such as restrictions placed by those authorities on parental rights of access (TP and KM v the United Kingdom ECHR 2001 V).
The Court considered the various diagnoses made by the medical experts. That medical evidence did not seem to be inadequate, confused or inconclusive. Therefore the reasons adduced to justify the decision to investigate OD’s injuries were relevant and sufficient.
On the other hand, the Court found that there was a very real chance that had a proper risk assessment been carried out whilst the Applicants were at the centre in Bristol, OD might never have been placed in foster care. Furthermore the Court was not persuaded that less intrusive measures were not available, such as conducting the assessment whilst the whole family stayed at an assessment centre or placing OD with relatives. The local authority had dismissed this option too quickly without giving it proper consideration. Finally the time taken to return OD to his parents’ care was not reasonable in the circumstances.
Therefore whilst there were relevant and sufficient reasons for the authorities to take protective measures in May 1997, the subsequent failing of the local authority both extended and exacerbated the interference with the Applicants’ right to respect for their family and were not proportionate to the legitimate aim of protecting OD from harm.
Consequently there was a violation of Article 8 in respect of the interference with the Applicants’ right to respect for their family life.
Article 13 stated:-
“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.”
The Court said that the purpose of Article 13 was 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. Such a remedy however could only be regarded as arguable in terms of the Convention.
There was no doubt that the Applicants’ complaints about the interference with their right to respect for their family life were arguable. In the case of RK and AK the Court held that the Applicants should have had available to them a means of claiming that the local authority’s handling of the procedure was responsible for any damages that they suffered and obtaining compensation for that damage. As such redress was not available at the relevant time (1998), the Court had held that there had been a violation of Article 13 of the Convention.
As the First Applicant, AD was in an analogous position to the Applicants in RK and AK the Court considered that there had been a violation of her rights under Article 13 of the Convention.
The Second Applicant, OD was in a different position. There was a duty of care between the local authority and the Second Applicant and he was entitled to bring a claim in negligence. However it was quite reasonable for the domestic court to reject his claim on the grounds that he could not show any damage. That was a finding of fact, and it was not normally within the province of the European Court to substitute its own assessment of the facts for that of the domestic courts. Therefore there was no violation of the Second Applicant’s rights under Article 13 of the Convention.
Damages under Article 41
The Court found that the cases of TP and KM and RK and AK were useful comparators. It would therefore award Euro 15,000 jointly to the Applicants in relation to the violation of Article 8 of the Convention. There would be no separate award in relation to Article 13.
Costs would be awarded in the sum of Euro 10,000.
There would also be an award for default interest based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. Interest would run three months from the date on which judgment became final.
FACTS:-
The Applicants were mother and child. In each case the Applicants claimed damages arising out of alleged negligence by the local authority in the context of care proceedings. OD was born on the 8th August 1996. His mother AD was concerned about his weight and asked for a referral to a paediatrician. In January 1997, a consultant radiologist informed the paediatrician, Dr S that he had found four rib fractures. He was placed on the child protection register and care proceedings followed on the 1st May 1997. The family court made an interim care order and OD and his parents resided at a family resource centre in Bristol, so that a risk assessment could be carried out. However the risk assessment was not carried out. There was then a further contested hearing before the family court, which lasted four days. On the 12th August 1997, as a result of that hearing, OD was placed with foster parents and separated from his mother for a period of four months. On the 6th December 1997 the local authority received advice from the NSPCC that it had carried out a risk assessment, and the child should be rehabilitated with his parents. OH suffered from a rare condition known as osteogenesis imperfecta or brittle bone disease. The care order was finally discharged in July 1998.
AD claimed that she had suffered psychological shock and upset. She relived the experience regularly and had been referred for psychological counselling. She had separated from OD’s father in June 1998 due to the distress of the events.
Initially in August 1998, AD complained to the local authority, who appointed an independent person to investigate the complaint. She found some failings on the part of the local authority, but generally supported their stance throughout. She did not recommend any compensation be paid. An apology was issued by the local authority.
AD then instituted proceedings against the local authority on behalf of herself and OD claiming damages for negligence and personal injury. In 2003 the judge at first instance held that the local authority owed no duty of care to a parent in the context of proceedings based on allegations of abuse. In relation to the child, OD, it had not been shown that he had suffered any recognisable psychiatric damage. Proceedings were stayed pending the decision in D v East Berkshire Community Health NHS Trust and others [2005] AC 373. In that case the House of Lords held that no duty was owed by medical or social work professionals to parents in the exercise of their duties, in the best interests of the children, when deciding whether there had been any abuse and what measures were necessary.
The Court of Appeal then dismissed the Applicant’s appeal in AD & OH v Bury Metropolitan Council [2006] EWCA Civ 1. Leave to appeal to the House of Lords was refused.
The Applicants alleged violation of Article 8 of the European Convention on Human Rights.
HELD:-
The European Court of Human Rights considered Section 23(6) of the Children Act 1989 which provided as follows:-
“Subject to any regulations made by the Secretary of State for the purposes of this subsection, any local authority looking after a child shall make arrangements to enable him to live with –
- a person falling within subsection (4); or
- a relative, friend or other person connected with him,
unless that would not be reasonably practicable or consistent with his welfare.”
A person falling within sub section (4) would include a parent of the child.
Article 8 of the Convention stated:-
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
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 o f 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.”
The Court considered the arguments of the Applicants and the UK government. It was accepted by the Applicants (after RK and AK v United Kingdom [2008] All ER (D) 143 (Oct)) that mistaken judgements or assessment by professionals did not of themselves render childcare measures incompatible with Article 8 of the Convention. However this case was different from RK insofar as the mistakes made by the authorities were far more stark.
The list of mistakes was as follows:-
- OD had eight of the ten indicators for Osteogenesis Imperfecta, and his mother had typical features of being a carrier of the defective gene
- OD should have been referred to a specialist at an earlier stage
- The local authority did not obtain the requisite risk assessment after the family stayed at the centre in Bristol
- OD should not have been removed from his parents’ care in August 1997
- The local authority should have considered placing the child with a relative as an alternative to foster care
- There was an unreasonable delay in returning OD to his parents.
The Court said that without question, the challenged measures taken by the authorities conformed to the requirements of domestic law and pursued the legitimate aim of protecting the rights of others, namely those of OD, the child. There needed to be a consideration of whether the reasons adduced to justify the measures were “relevant and sufficient” and whether the decision making process was fair and afforded due respect to the Applicants’ rights under Article 8.
It was not the Court’s task to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody and access issues. The authorities enjoyed a wide margin of appreciation when assessing the necessity of taking a child into care. A stricter scrutiny was called for, in respect of any further limitations, such as restrictions placed by those authorities on parental rights of access (TP and KM v the United Kingdom ECHR 2001 V).
The Court considered the various diagnoses made by the medical experts. That medical evidence did not seem to be inadequate, confused or inconclusive. Therefore the reasons adduced to justify the decision to investigate OD’s injuries were relevant and sufficient.
On the other hand, the Court found that there was a very real chance that had a proper risk assessment been carried out whilst the Applicants were at the centre in Bristol, OD might never have been placed in foster care. Furthermore the Court was not persuaded that less intrusive measures were not available, such as conducting the assessment whilst the whole family stayed at an assessment centre or placing OD with relatives. The local authority had dismissed this option too quickly without giving it proper consideration. Finally the time taken to return OD to his parents’ care was not reasonable in the circumstances.
Therefore whilst there were relevant and sufficient reasons for the authorities to take protective measures in May 1997, the subsequent failing of the local authority both extended and exacerbated the interference with the Applicants’ right to respect for their family and were not proportionate to the legitimate aim of protecting OD from harm.
Consequently there was a violation of Article 8 in respect of the interference with the Applicants’ right to respect for their family life.
Article 13 stated:-
“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.”
The Court said that the purpose of Article 13 was 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. Such a remedy however could only be regarded as arguable in terms of the Convention.
There was no doubt that the Applicants’ complaints about the interference with their right to respect for their family life were arguable. In the case of RK and AK the Court held that the Applicants should have had available to them a means of claiming that the local authority’s handling of the procedure was responsible for any damages that they suffered and obtaining compensation for that damage. As such redress was not available at the relevant time (1998), the Court had held that there had been a violation of Article 13 of the Convention.
As the First Applicant, AD was in an analogous position to the Applicants in RK and AK the Court considered that there had been a violation of her rights under Article 13 of the Convention.
The Second Applicant, OD was in a different position. There was a duty of care between the local authority and the Second Applicant and he was entitled to bring a claim in negligence. However it was quite reasonable for the domestic court to reject his claim on the grounds that he could not show any damage. That was a finding of fact, and it was not normally within the province of the European Court to substitute its own assessment of the facts for that of the domestic courts. Therefore there was no violation of the Second Applicant’s rights under Article 13 of the Convention.
Damages under Article 41
The Court found that the cases of TP and KM and RK and AK were useful comparators. It would therefore award Euro 15,000 jointly to the Applicants in relation to the violation of Article 8 of the Convention. There would be no separate award in relation to Article 13.
Costs would be awarded in the sum of Euro 10,000.
There would also be an award for default interest based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. Interest would run three months from the date on which judgment became final.