RK AND ANOTHER V UNITED KINGDOM [2008] All ER (D) 143 (Oct)
FACTS:-
The Applicants were United Kingdom nationals, who had a daughter, M, born on the 24th July 1998. In September 1998, following a fracture of her femur, a diagnosis of non-accidental injury was made. She was taken into care. Eventually she was diagnosed with brittle bone disease. The parents brought claims for negligence and breach of their rights under Article 8 of the European Convention on Human Rights against the hospital trust and the consultant paediatrician. The High Court found that no duty of care was owed to the Applicants and the Human Rights Act 1998 did not apply. This was affirmed by the House of Lords in JD v East Berkshire Community Health NHS Trust And Others and Two Other Actions [2005] UKHL 23.
The Applicants lodged a complaint with the European Court of Human Rights.
HELD:-
The European Court said that there were two cardinal features in this case. The first interest was the need to protect the child, and the second interest was that of the parent for his or her family life. Public confidence in the child protection system could only be maintained if a proper balance was struck.
The starting point was that the doctors had referred the case to the proper statutory authorities. That was entirely correct. However the doctors had failed o carry out the necessary tests with appropriate expedition.
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 had long been the presence or absence of good faith.
Counsel for the Applicants had submitted that the health professionals’ duty to exercise due professional skill and care was owed only to the child’s primary carers, usually the parents, as well as the child. The duty was not owed to a childminder or teacher. There was one major difference between parents, childminders or school teachers. In the case of a parent, suspicion might disrupt the parent’s family life.
In the view of the European Court, the English Court of Appeal had reached the right conclusion on the issue. Interference with family life did not justify according a suspected parent a higher level of protection than other suspected perpetrators and the deciding factor was “conflict of interest”. The doctor was charged with the protection of the child not the protection of the parent.
Alleged violation of Article 8
The Applicants had complained that their right to respect for family life had been violated by their separation from their child. Article 8 provided:-
“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 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 European Court was satisfied that there were relevant and sufficient reasons for the authorities to take protective measures, such measure being proportionate in the circumstances as to the aim of protecting the child, and which gave due account and procedural protection to the Applicants’ interests. There was accordingly no violation of Article 8.
Alleged violation of Article 13
This Article 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 European Court said that such a remedy under this Article was only required in respect of grievances which could be regarded as arguable in terms of the Convention. It was common ground between the parties that the Applicants’ complaints about the interference with their family life through the care measures were arguable. The Court considered 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 damage which they suffered and obtaining compensation for that damage. Such redress was not available to them at the relevant time, because at that time, the tort of negligence was the only remedy in national law capable of determining the substance of the Convention complaints. However the House of Lords chose not to recognise that they fell within its ambit.
The Applicants would be awarded the sum of Euro 10,000 jointly, and Euro 18,000 for legal costs plus any tax that might be payable by the Applicants. Interest on both of the above amounts would accrue on the expiry of three months from the judgment becoming final. This interest would be payable at the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FACTS:-
The Applicants were United Kingdom nationals, who had a daughter, M, born on the 24th July 1998. In September 1998, following a fracture of her femur, a diagnosis of non-accidental injury was made. She was taken into care. Eventually she was diagnosed with brittle bone disease. The parents brought claims for negligence and breach of their rights under Article 8 of the European Convention on Human Rights against the hospital trust and the consultant paediatrician. The High Court found that no duty of care was owed to the Applicants and the Human Rights Act 1998 did not apply. This was affirmed by the House of Lords in JD v East Berkshire Community Health NHS Trust And Others and Two Other Actions [2005] UKHL 23.
The Applicants lodged a complaint with the European Court of Human Rights.
HELD:-
The European Court said that there were two cardinal features in this case. The first interest was the need to protect the child, and the second interest was that of the parent for his or her family life. Public confidence in the child protection system could only be maintained if a proper balance was struck.
The starting point was that the doctors had referred the case to the proper statutory authorities. That was entirely correct. However the doctors had failed o carry out the necessary tests with appropriate expedition.
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 had long been the presence or absence of good faith.
Counsel for the Applicants had submitted that the health professionals’ duty to exercise due professional skill and care was owed only to the child’s primary carers, usually the parents, as well as the child. The duty was not owed to a childminder or teacher. There was one major difference between parents, childminders or school teachers. In the case of a parent, suspicion might disrupt the parent’s family life.
In the view of the European Court, the English Court of Appeal had reached the right conclusion on the issue. Interference with family life did not justify according a suspected parent a higher level of protection than other suspected perpetrators and the deciding factor was “conflict of interest”. The doctor was charged with the protection of the child not the protection of the parent.
Alleged violation of Article 8
The Applicants had complained that their right to respect for family life had been violated by their separation from their child. Article 8 provided:-
“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 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 European Court was satisfied that there were relevant and sufficient reasons for the authorities to take protective measures, such measure being proportionate in the circumstances as to the aim of protecting the child, and which gave due account and procedural protection to the Applicants’ interests. There was accordingly no violation of Article 8.
Alleged violation of Article 13
This Article 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 European Court said that such a remedy under this Article was only required in respect of grievances which could be regarded as arguable in terms of the Convention. It was common ground between the parties that the Applicants’ complaints about the interference with their family life through the care measures were arguable. The Court considered 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 damage which they suffered and obtaining compensation for that damage. Such redress was not available to them at the relevant time, because at that time, the tort of negligence was the only remedy in national law capable of determining the substance of the Convention complaints. However the House of Lords chose not to recognise that they fell within its ambit.
The Applicants would be awarded the sum of Euro 10,000 jointly, and Euro 18,000 for legal costs plus any tax that might be payable by the Applicants. Interest on both of the above amounts would accrue on the expiry of three months from the judgment becoming final. This interest would be payable at the marginal lending rate of the European Central Bank, to which should be added three percentage points.