MAK & RK V UNITED KINGDOM 45901/05 [2010] ECHR 363 (23 March 2010)
FACTS:-
These were two linked cases. In the first case, a father took his daughter to a GP because of bruising on her legs. There were further visits to the GP which culminated in a referral to a hospital. There, the daughter’s legs and genitalia were examined and a doctor informed the father’s wife that her daughter had been sexually abused. The wife recalled that earlier her daughter had told her that she had hurt herself whilst riding a bicycle. She informed social workers of this but restrictions were placed on the father visiting her, and the parents were threatened with having their children taken into care. Eventually the daughter was diagnosed with Schamberg's disease, a rare condition of the capillaries which is manifested by the eruption of purple patches on the skin. She was discharged from hospital and the parents made a complaint to the NHS Trust. The father and the daughter then brought a claim against both the local authority and the NHS Trust alleging negligence. At first instance their claims were struck out and they appealed. The Court of Appeal allowed the daughter’s claim to proceed against the local authority as well as the NHS Trust. However, her claim failed because the Legal Services Commission would not support her claim, on the grounds that costs were disproportionately high. The father’s appeal to the Court of Appeal was dismissed and on appeal to the House of Lords in JD v East Berkshire Community Health NHS Trust and Ors [2005] 2 AC 373), the Lords concluded 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.
Both father and daughter appealed to the European Court of Human Rights.
JUDGEMENT:-
The ECHR considered the relevant domestic, law and practice as well as the provisions of the Legal Aid Act 1988. It also considered the law of consent. The father complained that he was subjected to grossly humiliating and distressing treatment contrary to Article 3 of the European Convention on Human Rights. The ECHR said that the court’s case law established that Article 3, which prohibited torture and inhuman or degrading treatment or punishment, could not be relied on where distress and anguish, however deep, flowed, inevitably, from measures which were otherwise compatible with the Convention, unless there was a special element which caused the suffering to go beyond that inherent in their implementation Whilst the ECHR did not doubt the father’s distress at events, and in particular the fact that he was mistakenly suspected of abuse, this could not be regarded as constituting a special element in the sense identified above. As for the daughter, it was not disputed that the measures pursued, in good faith, the aim of safeguarding her health and physical security. It followed that the Article 3 complaint had to be rejected as manifestly ill-founded and rejected.
However, the daughter complained that the withdrawal of legal aid deprived her of effective access to court and thus violated her rights under Article 6, which provided, as relevant :-
“1. In the determination of his civil rights and obligations ... ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
The ECHR reiterated the importance of the right of access to a court, having regard to the prominent place held in a democratic society by the right to a fair trial. That was not, however, absolute and it could be subject to limitations but these limitations could not restrict or reduce access in such a way or to such an extent that the very essence of the right was impaired. The rights guaranteed under the Convention had to be practical and effective and not theoretical and illusory. Furthermore, a limitation would not be compatible with Article 6 if it did not pursue a legitimate aim and if there was not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. Although there was no obligation under Article 6 of the Convention to make legal aid available for all disputes in civil proceedings, where those proceedings involved complicated points of law, and the applicant could not afford legal representation, the denial of legal aid could amount to a restriction on his or her access to court. The principle question for the ECHR was whether the restriction was legitimate and proportionate. A legal aid system could only operate if machinery was in place to enable a selection to be made of those cases qualifying for it. In the present case the Court noted that the reason relied on by the Legal Aid Board and the Independent Funding Review Committee for refusing the daughter’s application for legal aid – namely that the cost of funding the case would outweigh any likely award for damages – was expressly contemplated in the Legal Aid Act 1988 and was undoubtedly intended to meet the legitimate concern that, in the absence of any point of public interest, public money should only be made available to applicants whose claims were likely to result in an award of damages that was greater than the cost of funding the case.
The Court further observed that the legal aid system in the United Kingdom offered individuals substantial guarantees to protect them from arbitrariness. Applicants who were refused legal aid or whose certificates were discharged or withdrawn could appeal to an Independent Funding Review Committee. If they were not satisfied with the Committee's decision, they could apply to have it quashed by way of judicial review.
In the light of the foregoing, the ECHR found that even if the withdrawal of legal aid constituted a restriction on the daughter’s right of access to court, it was both legitimate and proportionate. Therefore, the complaint under Article 6 of the Convention was rejected.
The ECHR now considered Article 8 of the Convention. Article 8 provided that:
“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 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.”
The UK Government had accepted that the applicants' complaints under Article 8 of the Convention were admissible. The Court agreed that this complaint was not manifestly ill-founded. Now, the ECHR considered the merits of the case.
The Government relied on the ECHR’s judgment in R.K. and A.K. v. the United Kingdom, no. 38000/05, § 36, 30 September 2008, in which the Court held 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.”
It was not disputed that the initial decision to prevent the father from visiting his daughter in hospital constituted an interference with both applicants' right to respect for their family life. It therefore remained to be determined whether the interference was justified under the second paragraph of Article 8 of the Convention: namely, whether it was in accordance with the law, whether it had a legitimate aim and whether it could be regarded as necessary in a democratic society.
Without question, the challenged measure pursued the legitimate aim of protecting the rights of others, namely those of the daughter. However, the UK Government, accepted that there was no legal basis for the measure and the ECHR therefore found that the decision to prevent the daughter from visiting the father on the night of her admission to hospital violated both applicants' rights under Article 8 of the Convention.
However, that interference with the applicants' right to respect for their family life continued until the daughter was released from hospital and the doctors and social workers concluded that there was insufficient evidence of abuse. The ECHR was therefore satisfied that while there were relevant and sufficient reasons for the authorities to suspect abuse at the time the daughter was admitted to hospital, the delay in consulting a dermatologist extended the interference with the applicants' right to respect for their family life and was not proportionate to the legitimate aim of protecting the daughter from harm.
Consequently, the ECHR found that there was a violation of both applicants' right to respect for their family life under Article 8 of the Convention.
The ECHR then considered the issue of the blood tests and photography conducted on the daughter without parental consent. The ECHR considered that the decision to take a blood test and photograph the daughter against her parents' express instructions gave rise to an interference with her right to respect for her private life and, in particular, her right to physical integrity. Domestic law and practice clearly required the consent of either the patient or, if they were incapable of giving consent, a person with appropriate authorisation before any medical intervention could take place. Where the patient was a minor, the person with appropriate authorisation was the person with parental responsibility. The ECHR did not accept the UK Government's submission that there was a pressing social need to treat the daughter’s symptoms. There was no evidence to suggest that her condition was critical, or that her situation was either deteriorating or was likely to deteriorate. Moreover, it had not been suggested that she was in any pain or discomfort. The ECHR would therefore find that the interference with the daughter’s right to respect for her private life was not in accordance with the domestic law and therefore violated her rights under Article 8 of the Convention.
The ECHR now considered Article 13 of the Convention. The father complained under Article 13 that the domestic court's finding that the local authority did not owe him a duty of care deprived him of an effective remedy for his complaints under Articles 3 and 8 of the Convention. The daughter complained under Article 13 that the withdrawal of legal aid deprived her of an effective remedy within the national legal system for her complaint under Article 8 of the Convention.
Article 13 provided as follows:
“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 Government had accepted that the father’s complaint under Article 13 of the Convention, insofar as it related to the complaint under Article 8 of the Convention, was admissible. The Court agreed that it was not manifestly ill-founded. However, the father’s complaint under Article 13 read together with Article 3 of the Convention was manifestly ill-founded, as it had already held that the father’s rights under Article 3 were not engaged.
In relation to the daughter’s complaint, the ECHR found that her complaint under Article 13 read together with Article 8 of the Convention was manifestly ill-founded. Unlike her father, she was able to bring an action for damages against the local authority, but she did not pursue this action following the withdrawal of legal aid. The ECHR had already held that her complaint under Article 6 of the Convention was manifestly ill founded as the withdrawal of legal aid pursued a legitimate aim and was proportionate to that aim. For the same reasons, the Court would find that the daughter’s complaint under Article 13 was also manifestly ill-founded.
In relation to damages, the ECHR would make no award in respect of pecuniary damage as the father had failed to establish the existence of a causal link between the violation of his rights under Articles 8 and 13 of the Convention and the sums that he claimed.
It would award the father EUR 2,000 in respect of non-pecuniary damage as a result of the violation of Article 8.
Taking full account of her age, and the intimate nature of the photographs which were taken while she was alone in hospital, together with the associated interference with her right to respect for her family life, the ECHR would award the daughter Euro 4,500 in respect of non-pecuniary damage.
Euro 15,000 was awarded for legal costs.
FACTS:-
These were two linked cases. In the first case, a father took his daughter to a GP because of bruising on her legs. There were further visits to the GP which culminated in a referral to a hospital. There, the daughter’s legs and genitalia were examined and a doctor informed the father’s wife that her daughter had been sexually abused. The wife recalled that earlier her daughter had told her that she had hurt herself whilst riding a bicycle. She informed social workers of this but restrictions were placed on the father visiting her, and the parents were threatened with having their children taken into care. Eventually the daughter was diagnosed with Schamberg's disease, a rare condition of the capillaries which is manifested by the eruption of purple patches on the skin. She was discharged from hospital and the parents made a complaint to the NHS Trust. The father and the daughter then brought a claim against both the local authority and the NHS Trust alleging negligence. At first instance their claims were struck out and they appealed. The Court of Appeal allowed the daughter’s claim to proceed against the local authority as well as the NHS Trust. However, her claim failed because the Legal Services Commission would not support her claim, on the grounds that costs were disproportionately high. The father’s appeal to the Court of Appeal was dismissed and on appeal to the House of Lords in JD v East Berkshire Community Health NHS Trust and Ors [2005] 2 AC 373), the Lords concluded 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.
Both father and daughter appealed to the European Court of Human Rights.
JUDGEMENT:-
The ECHR considered the relevant domestic, law and practice as well as the provisions of the Legal Aid Act 1988. It also considered the law of consent. The father complained that he was subjected to grossly humiliating and distressing treatment contrary to Article 3 of the European Convention on Human Rights. The ECHR said that the court’s case law established that Article 3, which prohibited torture and inhuman or degrading treatment or punishment, could not be relied on where distress and anguish, however deep, flowed, inevitably, from measures which were otherwise compatible with the Convention, unless there was a special element which caused the suffering to go beyond that inherent in their implementation Whilst the ECHR did not doubt the father’s distress at events, and in particular the fact that he was mistakenly suspected of abuse, this could not be regarded as constituting a special element in the sense identified above. As for the daughter, it was not disputed that the measures pursued, in good faith, the aim of safeguarding her health and physical security. It followed that the Article 3 complaint had to be rejected as manifestly ill-founded and rejected.
However, the daughter complained that the withdrawal of legal aid deprived her of effective access to court and thus violated her rights under Article 6, which provided, as relevant :-
“1. In the determination of his civil rights and obligations ... ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
The ECHR reiterated the importance of the right of access to a court, having regard to the prominent place held in a democratic society by the right to a fair trial. That was not, however, absolute and it could be subject to limitations but these limitations could not restrict or reduce access in such a way or to such an extent that the very essence of the right was impaired. The rights guaranteed under the Convention had to be practical and effective and not theoretical and illusory. Furthermore, a limitation would not be compatible with Article 6 if it did not pursue a legitimate aim and if there was not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. Although there was no obligation under Article 6 of the Convention to make legal aid available for all disputes in civil proceedings, where those proceedings involved complicated points of law, and the applicant could not afford legal representation, the denial of legal aid could amount to a restriction on his or her access to court. The principle question for the ECHR was whether the restriction was legitimate and proportionate. A legal aid system could only operate if machinery was in place to enable a selection to be made of those cases qualifying for it. In the present case the Court noted that the reason relied on by the Legal Aid Board and the Independent Funding Review Committee for refusing the daughter’s application for legal aid – namely that the cost of funding the case would outweigh any likely award for damages – was expressly contemplated in the Legal Aid Act 1988 and was undoubtedly intended to meet the legitimate concern that, in the absence of any point of public interest, public money should only be made available to applicants whose claims were likely to result in an award of damages that was greater than the cost of funding the case.
The Court further observed that the legal aid system in the United Kingdom offered individuals substantial guarantees to protect them from arbitrariness. Applicants who were refused legal aid or whose certificates were discharged or withdrawn could appeal to an Independent Funding Review Committee. If they were not satisfied with the Committee's decision, they could apply to have it quashed by way of judicial review.
In the light of the foregoing, the ECHR found that even if the withdrawal of legal aid constituted a restriction on the daughter’s right of access to court, it was both legitimate and proportionate. Therefore, the complaint under Article 6 of the Convention was rejected.
The ECHR now considered Article 8 of the Convention. Article 8 provided that:
“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 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.”
The UK Government had accepted that the applicants' complaints under Article 8 of the Convention were admissible. The Court agreed that this complaint was not manifestly ill-founded. Now, the ECHR considered the merits of the case.
The Government relied on the ECHR’s judgment in R.K. and A.K. v. the United Kingdom, no. 38000/05, § 36, 30 September 2008, in which the Court held 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.”
It was not disputed that the initial decision to prevent the father from visiting his daughter in hospital constituted an interference with both applicants' right to respect for their family life. It therefore remained to be determined whether the interference was justified under the second paragraph of Article 8 of the Convention: namely, whether it was in accordance with the law, whether it had a legitimate aim and whether it could be regarded as necessary in a democratic society.
Without question, the challenged measure pursued the legitimate aim of protecting the rights of others, namely those of the daughter. However, the UK Government, accepted that there was no legal basis for the measure and the ECHR therefore found that the decision to prevent the daughter from visiting the father on the night of her admission to hospital violated both applicants' rights under Article 8 of the Convention.
However, that interference with the applicants' right to respect for their family life continued until the daughter was released from hospital and the doctors and social workers concluded that there was insufficient evidence of abuse. The ECHR was therefore satisfied that while there were relevant and sufficient reasons for the authorities to suspect abuse at the time the daughter was admitted to hospital, the delay in consulting a dermatologist extended the interference with the applicants' right to respect for their family life and was not proportionate to the legitimate aim of protecting the daughter from harm.
Consequently, the ECHR found that there was a violation of both applicants' right to respect for their family life under Article 8 of the Convention.
The ECHR then considered the issue of the blood tests and photography conducted on the daughter without parental consent. The ECHR considered that the decision to take a blood test and photograph the daughter against her parents' express instructions gave rise to an interference with her right to respect for her private life and, in particular, her right to physical integrity. Domestic law and practice clearly required the consent of either the patient or, if they were incapable of giving consent, a person with appropriate authorisation before any medical intervention could take place. Where the patient was a minor, the person with appropriate authorisation was the person with parental responsibility. The ECHR did not accept the UK Government's submission that there was a pressing social need to treat the daughter’s symptoms. There was no evidence to suggest that her condition was critical, or that her situation was either deteriorating or was likely to deteriorate. Moreover, it had not been suggested that she was in any pain or discomfort. The ECHR would therefore find that the interference with the daughter’s right to respect for her private life was not in accordance with the domestic law and therefore violated her rights under Article 8 of the Convention.
The ECHR now considered Article 13 of the Convention. The father complained under Article 13 that the domestic court's finding that the local authority did not owe him a duty of care deprived him of an effective remedy for his complaints under Articles 3 and 8 of the Convention. The daughter complained under Article 13 that the withdrawal of legal aid deprived her of an effective remedy within the national legal system for her complaint under Article 8 of the Convention.
Article 13 provided as follows:
“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 Government had accepted that the father’s complaint under Article 13 of the Convention, insofar as it related to the complaint under Article 8 of the Convention, was admissible. The Court agreed that it was not manifestly ill-founded. However, the father’s complaint under Article 13 read together with Article 3 of the Convention was manifestly ill-founded, as it had already held that the father’s rights under Article 3 were not engaged.
In relation to the daughter’s complaint, the ECHR found that her complaint under Article 13 read together with Article 8 of the Convention was manifestly ill-founded. Unlike her father, she was able to bring an action for damages against the local authority, but she did not pursue this action following the withdrawal of legal aid. The ECHR had already held that her complaint under Article 6 of the Convention was manifestly ill founded as the withdrawal of legal aid pursued a legitimate aim and was proportionate to that aim. For the same reasons, the Court would find that the daughter’s complaint under Article 13 was also manifestly ill-founded.
In relation to damages, the ECHR would make no award in respect of pecuniary damage as the father had failed to establish the existence of a causal link between the violation of his rights under Articles 8 and 13 of the Convention and the sums that he claimed.
It would award the father EUR 2,000 in respect of non-pecuniary damage as a result of the violation of Article 8.
Taking full account of her age, and the intimate nature of the photographs which were taken while she was alone in hospital, together with the associated interference with her right to respect for her family life, the ECHR would award the daughter Euro 4,500 in respect of non-pecuniary damage.
Euro 15,000 was awarded for legal costs.