Taking of children into care
THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 27. The applicants complained that their right to respect for family life had been violated by their separation from their child, that their right to moral and physical integrity under the private life aspect had been violated, that their right to reputation had been violated, affecting their right to establish and develop relationships with other human beings and that they had been deprived of the right to have inherent procedural safeguards in place and observed to ensure the protection of the above rights. Article 8 of the Convention provides as relevant: “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 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.” A. The parties ’ observations 1. The applicants 28. The applicants submitted that they had had no choice but to consent to the interim care order. They argued that it was not a matter of a mere error of medical judgment but a concatenation of events which led to inappropriate social and legal consequences flowing from an erroneous diagnosis, without any appropriate safeguards to prevent it. Once Dr Blumenthal formed the view that M. had suffered a NAI, he discounted all other possibilities and his care was deemed substandard by their expert in the domestic negligence proceedings, Dr Conway. Further the applicants were excluded from all discourse in the matter; A. K. was provided with no translator during her conversations with nursing staff and Dr Blumenthal, and she was given no opportunity to correct mistaken factual assumptions. No weight was given to the fact that they had no prior history with social services or that the health visitor had had no concerns with M. ’ s care, her view not even being sought initially and later being discounted. They pointed out that the failure to order other tests to exclude OI highlighted a complete reluctance to consider other possible causes of the fracture and the possibility of a skin biopsy was never raised at all, excluding them from the decision-making process. They were never given an effective opportunity to deal with allegations, referring to the case of T.P. and K.M. v. the United Kingdom ([GC], no. 28945/95, ECHR 2001 ‑ V). They drew attention to the fact that Dr Paterson had become a totally discredited expert in OI, receiving adverse comments from judges in child care proceedings and being struck off in 2004 for professional misconduct. Finally, the notes of the triage nurse contributed to highly negative assumptions being made about A. K. in particular and about the way in which the fracture occurred, influencing not only Dr Blumenthal ’ s diagnosis but also Professor Carty ’ s. Dr Conway was never asked about OI but about Dr Blumenthal ’ s standard of professional care in which his own credentials were impeccable. 29. The applicants emphasised that, while M. was returned home in April 1999, the public care was not revoked until June 1999, so that their rights were affected for nine months and suspicions, anxieties and restrictions lingered on. They emphasised that their much-loved three-month-old first-born baby had been taken away from them and they had been accused of deliberately injuring her. A. K. could no longer be with her 24 hours a day, or throughout the night, as would have happened if she had not been removed and the parents had to endure a daily wrench of separation. 30. Furthermore, the applicants argued that if the interferences did not reach the threshold of severity under Article 3, they disclosed serious interferences with their moral and physical integrity and damage to their reputation, for which no justification has been put forward by the Government, thus constituting a breach of Article 8 in its private life aspect. 2. The Government 31. The Government accepted that the removal of M. from home interfered with family life but submitted that the interference was justified as being fully in accordance with domestic law and necessary to protect M. They pointed out that the separation was less than nine months (only from October 1998 to April 1999), that she lived with her aunt not far from her parents ’ home and saw her parents almost as much as when she was at home due to supervised, but unlimited, access. They considered that the social services had acted reasonably and in M. ’ s best interests in responding to concerns of medical professionals. The possibility of OI was considered from the outset but there was no medical evidence at that stage to support such a diagnosis, an independent expert also finding no bone abnormalities or radiological or clinical evidence of OI. When the second fractures occurred, there was prompt reconsideration of the diagnosis and a third opinion sought which also indicated that no-one could have made a diagnosis of OI in the first instance, the child having a confused history, with lots of discrepancies and an essentially-normal skeletal survey. That expert also cautioned against the utility of urine and other biochemical tests in arriving at a confirmed OI diagnosis. The Government emphasised the extreme difficulty in diagnosing mild OI in a very young infant such as M., requiring a trajectory and progression of the condition over a period of time. They drew attention to the view of the guardian ad litem of M. who stressed that a diagnosis of OI or any other bone disorder could not have been made at the time of the first injury. They argued that the errors in the notes made by the triage nurse at the outset were not determinative or influential. While the applicants placed reliance on their expert in the domestic proceedings, the Government pointed out that he was a consultant paediatrician without any expertise in childhood bone diseases, in particular OI. They rejected as without substance other allegations of breaches of Article 8 concerning physical and moral integrity and damage to reputation and private life. The Court ’ s assessment 1. Concerning family life 32. It is not disputed in the present case that the proceedings instituted as regarded M., and the interim care order which resulted in M. being placed away from the applicants, constituted an interference with the applicants ’ right to respect for their family life within the meaning of the first paragraph of Article 8. It must therefore be determined whether this interference was justified under the second paragraph, namely whether it was “in accordance with the law”, pursued an aim or aims that are legitimate under paragraph 2 of this provision and can be regarded as “necessary in a democratic society”. 33. The Court finds no reason to doubt that the interference complied with the first two criteria, as conforming with domestic law requirements and pursuing the legitimate aim of protecting the rights of others, namely the child who had suffered injury. 34. As to whether the interference was "necessary in a democratic society”, the Court ’ s case-law interprets this phrase as requiring consideration in particular of whether, in the light of the case as a whole, the reasons adduced to justify the measures were “relevant and sufficient”, and whether the decision-making process involved in measures of interference were fair and afforded due respect to the interests safeguarded by Article 8. Account must also be given to the fact that the national authorities have the benefit of direct contact with all the persons concerned. It is not the Court ’ s task to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody and access issues. While the authorities enjoy a wide margin of appreciation, in particular when assessing the necessity of taking a child into care, a stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by those authorities on parental rights of access (see, amongst many authorities, T.P. and K.M. , cited above, § § 71-72 ). 35. In the present case, the Court notes that the applicants have made various complaints about the conduct of various professionals involved in the case, essentially referring to an accumulation of errors and alleging a lack of safeguards in place to prevent the erroneous diagnosis that the injuries were caused non-accidentally (see paragraph 28 above). 36. The Court would re-iterate 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. In the present case, it is incontrovertible that M., a baby of only a few months, suffered a serious and unexplained fracture. It is not disputed that OI is a very rare condition and also difficult to diagnose in very small infants. The Court does not consider that the social or medical authorities can be faulted for not reaching an immediate diagnosis of OI or, in the absence of such a diagnosis, acting on the basis that the injury could have been caused by the parents. No doubt it would have been better if the triage nurse had taken more accurate notes as to the family ’ s account of what had happened and trouble had been taken to obtain interpretation in medical staff ’ s conversations with A. K. who did not understand English. However, it is not apparent that this would have dissipated concerns at this early stage since there would still not have been any clear indication of how the fracture had occurred. Furthermore, it may be noted that, even when official interpretation was available, in court, the testimony of A. K. was not found to be convincing. 37. The applicants ’ complaints very much amount to criticising the way in which the professionals, medical and legal, were prepared to suspect the worst on the information available to them and failed immediately to perceive their innocence or give them the benefit of any doubt. Nonetheless, it must also be noted that, while an interim care order was issued with a view to protecting M., steps were also taken to place the baby within her extended family and in close proximity to the applicants ’ own home so that they could easily and frequently visit. And crucially, as soon as a further fracture occurred outwith the applicants ’ care, further tests were quickly pursued and within weeks M. was returned home. 38. The Court further notes that M. was removed from the applicants ’ care for a period of some seven months. It is not impressed by the applicants ’ complaint that the care order was not removed for some further two months. This was largely a formality, the further lapse of time not imposing any identifiable concrete prejudice. As to the time which elapsed before the correct diagnosis was made, the Government referred to the medical opinions of two doctors obtained at the time of diagnosis of OI which considered that there was no fault in not reaching this conclusion at the time of the first injury. The applicants emphasised that one of these doctors was later totally discredited. However, the Court is not called upon to adjudicate, retrospectively, as to the best medical practice or the most reliable expert opinion. It is satisfied that there were relevant and sufficient reasons for the authorities to take protective measures, such measures being proportionate in the circumstances to the aim of protecting M. and which gave due account and procedural protection to the applicants ’ interests, and without any lack of the appropriate expedition. 39. There has, accordingly, been no violation of Article 8 of the Convention in this regard. 2. Concerning other aspects of Article 8 40. The applicants also claimed that the events complained of above invaded their physical and moral integrity and damaged their reputation in violation of Article 8 of the Convention. Having regard to its conclusions above as to the lawfulness and necessity of the measures, the Court considers that in the circumstances no separate issue arises. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 41. The applicants complained that they had no effective remedy for their above complaints, invoking Article 13 of the Convention which provides: “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.” A. The parties ’ submissions 42. The applicants argued that Article 13 was applicable and that none of the remedies referred to by the Government would have satisfied that provision. As regarded the HRA 1998, it was expressly because the events took place before it came into force that they could not avail themselves of that legislation. It was difficult for them to understand why recognising a duty of care in relation to events before 2 October 2000 would have had such unacceptable consequences for child protection since it was available afterwards. They maintained their view that in tort public policy concerns have meant that a wide de facto immunity from suit was allowed to public bodies. At the time the tort of negligence was the only remedy in national law capable of determining the substance of their Convention complaints but the House of Lords chose not to recognise that they fell within its ambit. 43. The Government accepted that there was an arguable claim and notwithstanding the variety of remedies available (local authority social service and NHS complaints procedures, the local authority and NHS ombudsmen, judicial review of the relevant authorities and appeals against any court orders) they acknowledged that they were arguably obliged under Article 13 to ensure an enforceable right to compensation was available for such damage as could have been proved to have resulted from any violation of Article 8. They submitted that as from 2 October 2000 such a remedy was provided by the HRA 1998 (sections 7 and 8) although this did not apply to the acts in issue in these proceedings. They pointed out though that there was no prior obligation to incorporate the Convention in domestic law or to incorporate it with retrospective effect as the applicants appeared to contend. They also refuted assertions concerning alleged exclusionary rules applied to protect public authorities from suit. B. The Court ’ s assessment 44. The effect of Article 13 is 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, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision. However, such a remedy is only required in respect of grievances which can be regarded as arguable in terms of the Convention (see Halford v. the United Kingdom, judgment of 25 June 1997, Reports of Judgments and Decisions 1997-III, p. 1020, § 64; and Camenzind v. Switzerland, judgment of 16 December 1997, Reports 1997-VIII, pp. 2896 ‑ 97, § 53 ). 45. It is common ground in this case that the applicants ’ complaints about the interference with their family life through the care measures were arguable. The Court considers that the applicants should have had available to them a means of claiming that the local authority ’ s handling of the procedures was responsible for any damage which they suffered and obtaining compensation for that damage ( T.P. and K.M ., cited above, §§ 108 -109 ). Such redress was not available at the relevant time. Consequently, there has been a violation of Article 13 of the Convention in this regard. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 46. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 47. The applicants claimed 15,000 pounds sterling (GBP) each for non-pecuniary damages as regarded their complaints under Article 8 to reflect the separation of nine months from the child, the public suspicion and criticism suffered by AK, the mental distress at the continuing fear of separation from their child, the concern that their innocence has never publicly been vindicated and that details of the unfounded allegations may remain in local authority files. They also claimed GBP 4,214 each for the violation of Article 13 referring to the lack of any effective remedy for their concerns which required them to spend three and a half years in domestic proceedings and then to bring their case here. 48. The Government claimed that these claims were excessive pointing out that only GBP 10,000 was awarded in TP and KM v. the United Kingdom ( cited above ), where there had been separation of a year, whereas there had been a shorter period of separation and the child in the present case had in fact been placed in the care of an aunt who lived nearby. An award of GBP 10,000 jointly to the applicants was sufficient for any violation of Article 8 and no further award necessary for any breach of Article 13. 49. The Court recalls that it has only found a violation under Article 13 of the Convention. Not doubting that the applicants did in that regard suffer frustration, stress and uncertainty which would not be redressed by a finding of a violation alone, and having regard to awards in similar cases, the Court, making its assessment on an equitable basis, awards the applicants 1 0 ,000 EUR jointly. B. Costs and expenses 50. The applicants claimed legal costs and expenses as regarded their representation by counsel and solicitor in the amount of GBP 32,803.43, which sum took into account the award of legal aid from the Council of Europe and included value-added tax. They also claimed GBP 11,230 for advice and work done by the AIRE Centre. 51. The Government considered that the number of hours claimed (130 by the solicitors and 117 by AIRE Centre) were clearly excessive and contained an significant element of duplication. They considered an award of some GBP 10,000, inclusive of VAT should be awarded. 52. The Court recalls that the procedure was in writing, that no further submissions on the merits were put in after admissibility and that the applicants were only successful on one complaint. It also concurs with the Government that considerable duplication is disclosed by the claims put in for work by solicitor, counsel and experts from the AIRE Centre. Having regard also to the finding of only one violation, it awards EUR 18 ,000 for legal costs plus any tax that may be payable by the applicants. C. Default interest 53. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention, finding that the domestic authorities had had relevant and sufficient reasons to take protective measures which in the circumstances had been proportionate to the aim of protecting the child. The Court further held that there had been a violation of Article 13 (right to an effective remedy) of the Convention, considering that the applicants should have had available to them a means to claim that the local authority’s handling of procedures had been responsible for any damage they had suffered and to claim compensation, a redress that had not been available at the relevant time.