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FOURTH
SECTION
CASE OF A.D. & O.D. v. THE UNITED KINGDOM
(Application
no. 28680/06)
JUDGMENT
STRASBOURG
16 March 2010
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of A.D. & O.D. v.
the United Kingdom,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Lech
Garlicki,
President,
Nicolas
Bratza,
Giovanni
Bonello,
Ljiljana
Mijović,
Ján
Šikuta,
Mihai
Poalelungi,
Nebojša
Vučinić,
judges,
and Lawrence
Early, Section
Registrar,
Having
deliberated in private on 23 February 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 28680/06) against the United
Kingdom of Great Britain and Northern Ireland lodged with the Court
under Article 34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by two
British nationals, Ms A.D. and Mr O.D. (“the applicants”),
on 12 July 2006. The President of the Chamber acceded to the
applicants' request not to have their names disclosed (Rule 47 §
3 of the Rules of Court).
- The
applicants were represented by Ms N. Mole of the Aire Centre, a
lawyer practising in London. The United Kingdom Government (“the
Government”) were represented by their Agent, Mr J. Grainger of
the Foreign and Commonwealth Office.
- The
applicants complained that the decision to take the second applicant
into local authority care violated their rights under Article 8 of
the Convention. The first applicant also complained that the decision
violated her rights under Article 3 of the Convention. Finally, both
applicants complained of a violation of Article 13, alleging that
they had no access to an effective domestic remedy.
- On
9 July 2007 the President of the Chamber of the Fourth Section
decided to communicate the complaints to the Government.
- On
21 October 2008 the Court declared the application partly admissible
in respect of the complaints under Articles 8 and 13 of the
Convention.
THE FACTS
- The
first applicant, A.D., is a female British national who was born in
1966 and lives in Whitefield, Manchester. The second applicant, O.D.,
is the first applicant's son. He is a British national who was born
in 1996 and currently resides with the first applicant.
A. The circumstances of the case
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
1. O.D.'s first months
- On
8 August 1996 O.D. was delivered by caesarian section at 36 weeks
because of his failure to grow in the womb. He weighed 1.9 kg. He was
not diagnosed with any particular condition. He was initially fed via
feeding tube.
- The
first applicant was concerned about O.D.'s small size and his failure
to pick up weight. On 24 October 1996 she asked her general
practitioner to refer him to a paediatrician. She was referred to Dr
S., the paediatrician who had seen O.D. after his birth. Following a
consultation in November 1996 the first applicant was told that the
situation would be reviewed on 2 January 1997. As O.D.'s weight and
length had fallen below the third centile chart, tests were carried
out on 16 January 1997.
- On
21 January 1997 the consultant radiologist informed Dr S. that X-rays
revealed evidence of three, possibly four, healing fractures to the
right ribs. The first applicant and her partner were informed the
same day.
- On
23 January 1997 O.D. was admitted to hospital as a patient and a full
skeletal survey was carried out, which confirmed four fractures. The
local authority were informed.
- The
first applicant took legal advice and also undertook some research,
herself noting that O.D. had eight of the ten indicators for the
condition of Osteogenesis Imperfecta (brittle bone disease),
including the genetic factor of her own joint laxity or
double-jointedness. She states that she raised this possibility with
Dr S. who dismissed it without giving any reasons.
- On
24 January 1997 a report by Dr S. concluded that the injuries were
sustained “non-accidentally” in view of the nature of the
fractures and the lack of any other explanation for them. He noted,
however, that O.D.'s parents had appeared very caring and concerned
for his welfare at their three meetings.
- On
30 January 1997 the local authority held a case conference and placed
O.D. on the “At Risk Register”. At the meeting Dr S.
mentioned that she had looked at O.D.'s bones to see if they appeared
thin but considered that they were normal.
- Ms
M., the social worker assigned to the case, conducted six sessions
with the family. When the first applicant raised the possibility of
Osteogenesis Imperfecta with her, she was told that she was in denial
over the injuries to her son. The first applicant and her partner
were very distraught over O.D.'s feeding problems and injuries and by
the accusations of child abuse.
- The
first applicant attended assessment meetings held at the Upland
Centre, the purpose of which she was told was to assess the risk she
and her partner posed to O.D. She and her partner fully co-operated
and attended all meetings.
- On
13 March 1997 O.D. was admitted to hospital following further weight
loss and a nasogastric tube was inserted.
- On
24 March 1997 the first applicant and her partner removed O.D. from
the ward, against medical advice, as he had contracted a viral
infection which caused vomiting and diarrhoea and was negating any
advantages of feeding by tube. They took him to see a consultant
paediatric gastroenterologist concerning his slow weight gain, but
did not attend all appointments and cancelled a stomach biopsy as
they felt he was well and gaining weight.
- On
30 April 1997 the local authority received a report from Professor
C., a professor of paediatric radiology, which confirmed the
fractures to the ribs. She considered that the fractures had been
inflicted on two separate occasions. She also concurred with Dr S.
that “the rib fractures have occurred from squeezing”
and that “rib fractures in children are extraordinarily rare
except in non-accidental injury...”. She found that O.D.'s
bone texture was normal and there was nothing to indicate any
underlying bone disease. She stated that there was no other medical
test that would help to identify anything further about the rib
fractures. Finally, she noted that the ultrasound of O.D.'s head
revealed a bright area in the brain cortex. A small bleed could not
be excluded, which caused her some concern as to shaking, but on
balance she thought the results were normal.
2. Institution of care proceedings
- On
1 May 1997 the local authority applied to the County Court for an
interim care order. At the same time a guardian ad litem was
appointed on behalf of O.D., who was of the opinion that the family
should stay together.
- On
6 May 1997, at the statutory review meeting, it was noted that Dr S.
had undertaken a test due to concerns about bone disease and that the
result was used by Professor C. The local authority was
informed that a police investigation was not considered appropriate
as there was nothing to suggest that the injuries flowed from a
criminal assault. It was hoped that the family would be placed in a
protective unit where O.D. could be monitored by professionals. The
first applicant and her partner were present at this meeting. The
applicants disputed, however, that Dr S. had in fact carried out a
test for Osteogenesis Imperfecta.
3. First interim care order
- On
7 May 1997 the County Court granted an interim care order. It was
proposed in court that the family relocate to the St John's Family
Resource Centre in Bristol, some 150 miles away. The first applicant
claimed that neither she nor her partner had been consulted or even
warned about this possibility. They had to go directly to the Centre
from the court room, leaving their own comfortable well-equipped home
and their network of extended family and friends. The first applicant
consented to the care order but submitted that she had no real
choice, because if she had resisted the measure O.D. could have been
placed in foster care straight away. She had been advised that if she
did not oppose the assessment procedure, it would be less likely that
they would be separated. While her solicitors had obtained an expert
report by Dr P. suggesting that O.D. suffered from Osteogenesis
Imperfecta, she had been advised not to rely on it in the proceedings
because Dr P. had been discredited as a medical expert acceptable to
the courts due to violations of professional ethics in the course of
previous legal proceedings.
- The
first applicant stated that she was horrified by the conditions at
the Centre, which was located in a crime-ridden, rough area of
Bristol. The family had to live in one room with a small kitchenette
and were not allowed to cook any meals after 7.00 p.m. The house was
dirty and occupied by problem families (crime, drugs and alcohol).
Initially they were only allowed to leave the Centre for two hours
per day. The latter restriction was lifted on 4 June 1997 against the
wishes of Ms M. and the local authority. During their stay, the first
applicant and her partner had to claim benefits which they had not
done previously. The family was not permitted to leave the Centre for
two nights to attend the wedding of the first applicant's sister;
they were only allowed to attend the actual ceremony and not the
reception. According to the Government, however, the first
applicant's evidence in the domestic care proceedings was at odds
with this description: she stated on 15 July 1997 that the physical
surroundings were better than they had feared and that the other
residents were friendly and helpful. There had also been no
restriction on the first applicant leaving the centre alone; the only
requirement had been that if she left with O.D. they had to be
accompanied by a member of staff. From 16 May she was allowed to
take O.D. out unaccompanied for two hours a day, and after 4 June all
restrictions were lifted. They also had overnight stays away from the
hostel and a day long visit to Manchester.
- The
family remained at the Centre for twelve weeks. The first applicant
was under the impression, as had been stated in court, that the
assessment to be made was of the risk posed to O.D. by her and her
partner. The keyworker at the Centre understood that a parenting
assessment was to be carried out. When the letter of instruction was
at last sent to the Centre, it asked, somewhat ambiguously, for their
opinion on the standard of care provided to O.D. and the first
applicant and her partner's ability to care for him.
- The
Centre's report compiled by Miss C.H. on 30 July 1997 stated that its
aims were to assess the future risk posed to O.D. by his parents, to
assess their handling and interaction with the child and to assess
their parenting skills. The report noted that the couple presented as
being very capable of caring for O.D. and that both appeared to be
committed, with a willingness to accept the advice of professionals,
although their level of anxiety had been high. Concerns remained,
however, about O.D.'s feeding difficulties and limited weight gain,
as he remained substantially below the third centile weight for a
child of his age. In a further report on 2 August 1997, Miss C.H.
confirmed that until there was clarity about the cause of the
injuries the risk remained high.
- While
in Bristol O.D. had been seen by a consultant clinical geneticist who
reported that Osteogenesis Imperfecta or some other collagen
abnormality was no more than one possible explanation for O.D.'s
medical history; in particular as it was rare to have this degree of
growth retardation in the absence of multiple long fractures, other
causes for the failure to thrive should be sought. He also commented
that continuing emotional stress in the family should be seriously
considered as a possible aggravating factor. He noted that further
investigation might include a skin biopsy to assess collagen profiles
but that it would be inappropriate to pursue these in Bristol. In any
case, he indicated that the diagnostic value of the test had been
previously shown to have a detection rate of only 87%.
- On
return to Manchester, after a twelve week stay in Bristol, the family
had to live in a Family Assessment Centre for another week while the
local authority applied to renew the interim care order.
- The
first applicant's solicitor instructed an expert radiologist, Dr L.,
to report on O.D.'s injuries, asking him specifically to comment on
whether the injuries were more likely to have been caused by
non-accidental means or a form of Osteogenesis Imperfecta. As an
acknowledged expert in bone disease, Dr L. stated in the report that
there was no evidence of abnormal bone morphology or density to
suggest bone fragility. In the absence of abnormal bone fragility, he
considered that non-accidental injury was the likely cause of the
fractures. He was sceptical about taking a skin biopsy, considering
the test to be equivocal. He also confirmed that the previous
suggestion of a brain injury on the initial scan was unfounded as the
scan merely showed reflective echoes.
4. Decision to apply for further measures
- At
a statutory review on 4 August 1997, the local authority concluded
that O.D. could not safely be placed with his parents and proposed to
place him with foster carers, with daily parental contact, while a
psychological assessment of the first applicant and her partner was
undertaken and a risk assessment was carried out by the National
Society for the Prevention of Cruelty to Children (NSPCC). The
question of placing O.D. with a relative had been discussed with the
maternal grandparents. Ms M. and another social worker paid them
a visit on 7 July 1997. The matter was not pursued as it was noted
that the maternal grandparents considered that not enough
consideration had been given to Osteogenesis Imperfecta and that
decisions were being taken by persons who did not know the parents.
In a statement of evidence submitted on 6 August, the applicant's
partner listed family members who would either stay with the
applicants or have the applicants stay with them; he did not specify
that any relative was prepared to look after O.D. by themselves.
5. Second interim care order
- The
interim care proceedings began on 7 August 1997. At the hearing, Dr
R., the consultant paediatrician who had overseen O.D.'s care at
Bristol stated her opposition to the care plan; she considered that
O.D. had a close relationship with his family and removal would cause
emotional trauma equivalent to bereavement. The social worker
supervisor also opposed the care plan, as O.D. had suffered no
further injuries and she believed it to be highly likely to
exacerbate his eating problems. While she gave evidence for the
applicants, Dr R. had nonetheless stated in her report of 5 August
1997 that the rib fractures were unexplained and characteristic of
non-accidental injury; that there was no definitive test for
Osteogenesis Imperfecta; and that she felt it unlikely that O.D. had
this condition, referring to the further opinion of an orthopaedic
surgeon, Dr G, who had been unable to confirm a diagnosis of
Osteogenesis Imperfecta.
- The
interim care order was granted. In a judgment handed down on
12 August 1997, the judge considered that the consultant
paediatrician and supervisor seemed to deal with a much more
permanent separation than was envisaged. He stated that it was
unfortunate that proper communications had not existed permitting the
risk assessment to be carried out at Bristol but that it still
remained to be discovered how O.D. had sustained his injuries. With
regard to the proposal to place O.D. outside the family, the judge
noted that there had been no proper assessment of any other family
member but considered that the local authority could not be blamed
for this: "Clearly there had been discussions, considerable
discussions and disagreement about the care plan. ... as things stand
at the moment I am not satisfied that any family member would accept
the sort of risk that I think at present exists."
- He
went on to say: “So far as the capability of the parents is
concerned, this will probably be of little comfort to them but
nevertheless ... I have no doubt that they are very capable, that
they are splendid parents in every possible way except with regard to
these two matters, this most important fact that the injury has still
not been sorted out and there is also the possible problems with
feeding.”
- He
concluded that he had to make an order to provide O.D. with the
protection that he required.
- O.D.
was placed with local authority approved foster parents. The first
applicant was allowed contact for a period of four hours a day for
five days during the week.
- The
first applicant was concerned as to the care which O.D. was receiving
in the foster home. New clothes which she had given him were not
being used; she found a plastic pellet in his play pen; on one
occasion he was crawling on the floor near to broken glass; and when
the first applicant noticed a bruise on O.D.'s face, the foster
mother showed no concern and it was the link worker who had to
recommend that he saw a doctor. The Government stated that the foster
parents, selected for expertise with feeding problems, reported to,
and were visited by, the local authority regularly, who found their
care to be satisfactory.
- On
7 or 9 October 1997, O.D. was admitted to hospital due to feeding
problems. The first applicant claimed that she was not informed and
only found out on arrival for a contact session. She was not allowed
to stay with him in hospital overnight. The Government stated that
the first applicant had been aware in advance, due to a previous
visit to a doctor, that O.D. might be admitted to hospital and that
she was informed when this happened as soon as was possible. Her
normal contact continued with him during his ten-day stay.
37.
On 27 October the NSPCC informed the
local authority that O.D. should be returned without delay to his
parents.
- On
31 October 1997 Dr Si., a consultant paediatrician instructed by the
guardian ad litem, noted that the lack of further injury
despite increased mobility was further evidence against Osteogenesis
Imperfecta. He emphasised that the feeding and growth problem was not
a child protection matter per se but that the impact of these
problems on the parents needed to be taken into account.
- On
12 November 1997, while still in foster care, O.D. fell and was taken
to hospital. The radiologist diagnosed a possible fracture of the
shinbone. The X-rays were analysed as showing the bones to be thin
and osteopenic.
- On
20 November 1997 the NSPCC submitted their risk assessment. They
recommended that O.D. be returned quickly to his parents' care, with
a short period of prior increased contact. The applicants submitted
that the report was issued two months later than estimated; the
Government submitted that the judge had in fact indicated that only
the initial report should be available at the end of September.
- On
8 December 1997 the local authority, at a statutory review meeting,
agreed that O.D. should return home the same day.
- On
19 January 1998 O.D. was examined by Dr B., a senior clinical
research associate and honorary consultant paediatrician at the
University of Cambridge. He reported in his final report of 25 March
1998 that there had been insufficient radiological evidence to
substantiate the diagnosis of Osteogenesis Imperfecta or other bone
disease in January 1997 but that the taking of additional X-ray views
of particular bones might have provided further clarifications. Tests
now indicated that O.D. had type IV Osteogenesis Imperfecta, with a
significant growth retardant component, a condition which had been
active from the time of the tests. The force necessary to fracture
his ribs might well have fallen within the range of normal handling.
He recommended regular follow-up in a specialist paediatric clinic.
- The
X-rays and draft report of Dr B. were submitted to Professor C., who
in her report of 18 February 1998 found the special bone density
tests inconclusive, although she noted that she was not an expert.
She agreed that the X-rays now showed abnormalities but did not find
this conclusive of Osteogenesis Imperfecta. She stated that in her
experience if children with Osteogenesis Imperfecta had sustained rib
fractures such as these from normal handling then they went on to
sustain fractures in other areas; she was therefore surprised that
O.D. had not had further fractures other than the one sustained in
foster care if he in fact had had Osteogenesis Imperfecta.
- Dr
B., Professor C, Dr L. and Dr Si. held a meeting on 29 June 1998 and
issued a joint report, in which they concurred that there was no
evidence at the time of the first fractures to indicate Osteogenesis
Imperfecta or the desirability of any further investigations and that
O.D. had suffered from birth from Osteogenesis Imperfecta Type IV.
They also agreed that in the absence of an account of trauma in a
baby, rib fractures such as those observed would be highly suggestive
of non-accidental injury inflicted by a forceful squeezing. However,
while the latter three doctors considered that the degree of force
required to cause these fractures fell outwith the normal handling of
a small baby although not within the category of abusive handling, Dr
B. took the view that it might not be completely outside the normal
range of handling (for example, catching a child who was slipping).
The cause of the serious growth retardation was not known.
- In
light of that report, the local authority made an urgent application
for an abridged procedure to withdraw care proceedings, which were
scheduled for further hearing in December 1998.
- The
interim care order was discharged in July 1998.
6. Subsequent complaint procedures and negligence procedures
- The
first applicant submitted that the care proceedings had a devastating
effect on her relationship with her partner and they have since
separated. O.D., meanwhile, was suffering from sleeping and
behavioural problems, was reluctant to leave the first applicant,
would not play with other children and screamed and threw food at
strangers.
- In
August 1998 the first applicant complained to the local authority
which appointed an independent person, Mrs B., to investigate the
complaint. After interviewing the key people involved, she found
various defects in the handling of the case. She held that the local
authority had failed to consider fostering O.D. with family members
as required by statute, noted the confusion in communication with the
Bristol Centre concerning the risk assessment and stated that once it
had been decided to accept the NSPCC recommendation the
rehabilitation should have taken days, not weeks; she also stated
that there had been a steady deterioration in relations between the
first applicant and the assigned social worker and that a more
productive working relationship with the family might have been
achieved by changing the caseworker as requested by the family. She
did not uphold other specific complaints, finding, inter alia,
that it had been necessary for the family to travel to the Bristol
Centre on the same day as the hearing, that the local authority was
justified in imposing restrictive travel arrangements on the family
while at the Centre, that the stance of the judge and local authority
when considering whether O.D. should be taken into care was
understandable in light of the potential risks, that there was no
reason to consider that the care received by O.D. from his foster
carers was not entirely appropriate, that the parents were invited to
review meetings and to give their views, and that the case involved
the considered opinions of several eminent experts, who discounted
bone disease and confirmed a diagnosis of non-accidental injury. She
stated, inter alia, that with the weight of the medical
evidence so firmly establishing non-accidental injury the local
authority had no option but to apply for care proceedings. She made
no recommendation for monetary compensation.
- On
29 November 1999 the local authority's complaints officer wrote to
the first applicant and recommended that she receive a full apology
and that certain aspects of the local authority's systems be reviewed
and revised.
- On
7 December 1999, in light of the above negative findings, the Head of
Children's Services sent the first applicant a letter of apology in
respect of the criticised practices.
- The
first applicant instituted proceedings against the local authority on
behalf of herself and O.D., claiming damages for negligence and
personal injury.
- On
9 September 2003 his Honour Judge Knopf held that the local authority
owed no duty of care to a parent in the context of care proceedings
based on allegations of abuse.
- On
11 September 2003 the judge rejected the claims of O.D. on the ground
that he had not been shown to have suffered any recognisable
psychiatric damage, or alternatively, that any injury was transient
and not compensatable by damages.
- Both
applicants were granted permission to appeal but the proceedings were
stayed pending the outcome of D. v. East Berkshire Community
Health NHS Trust and others [2005] AC 373 (see description of
domestic proceedings in R.K. and A.K. v. the United Kingdom,
38000/05, judgment of 30 September 2008, §§ 23-26). These
cases concluded in the House of Lords, which 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.
- After
the hearing of the applicants' appeals on 3 and 4 November 2005, the
Court of Appeal on 17 January 2006 dismissed the first applicant's
appeal as at no stage was she owed a duty of care by the local
authority. The court also rejected O.D.'s appeal on the ground that
there was no evidence that he had suffered harm other than transient
distress. In the alternative, the court held that any harm suffered
by O.D. did not amount to a recognised psychiatric disorder and was
therefore not of the kind giving rise to an action for damages
(“non-justiciable harm”). The Human Rights Act 1998 and
the European Convention on Human Rights were irrelevant as the case
concerned events prior to the Act's implementation.
- Leave
to appeal to the House of Lords was refused.
B. Domestic Law
- Section
23 (6) of the Children Act 1989 provides 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) a
person falling within subsection (4); or
(b) 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 subsection 4 is a parent of the child; a person
who is not a parent of the child but who has parental responsibility
for him; or a person in whose favour a residence order was made.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicants complained of a violation of their right to respect for
their family and private life as provided in Article 8 of the
Convention, which reads as follows:
“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
Government contested that argument.
The parties' observations
1. The Government
- The
Government accepted that removing O.D. from the first applicant's
care prima facie interfered with her right to respect for her
family life. The interference was justified, however, as it pursued
the legitimate aim of protecting O.D., who had suffered a serious,
unexplained injury. The measures taken were also in accordance with
the law.
- As
to the necessity of the measures, in a situation where a small baby
had suffered injuries which the parents could not explain, it was
reasonable and responsible for the local authority to take the view
that it could not leave the child in their care unsupervised. The
first interim care order was endorsed by a judge and consented to by
the first applicant, who had legal representation. The worrying
medical circumstances justified the various restrictions on the
family when in the Bristol Centre and the placement had to start
immediately as the authority had parental responsibility from the
moment that the interim care order had been granted.
- Insofar
as the applicants alleged that O.D. would not have had to be placed
in foster care if the local authority had properly requested a risk
assessment from the Bristol Centre, the Government accepted that the
lack of this comprehensive assessment was one factor, amongst many,
in the decision taken by the local authority to place him with foster
parents; they accepted that the local authority had not specified in
its instructions the type of assessment required nor enquired as to
the progress of the risk assessment at the monthly reviews conducted
while the family were at the Centre. The fact that the authority
might have erred, however, did not deprive the decision of a
legitimate basis; the placement at the Centre had to be arranged
quickly, the case had been complex and the instructions to the Centre
had to cover many issues. Also the Centre's final report did not omit
the issue of risk altogether as Ms C.H. understood that she was
supposed to cover the future risk posed to O.D. by his parents and
make an assessment on the point. Given all the concerns, it was
difficult to conceive of a risk assessment report that would have
resulted at that time in an immediate and unsupervised return to
parental care. The Government submitted that by the end of the
family's stay at the Centre, the local authority was not in a
position to conclude that the second applicant would not be in danger
were he to be returned home and, consequently, they could not
responsibly have consented to his being returned to his parent's
care. The matter was considered by a judge at an unusually full
hearing and, following careful consideration, the judge endorsed the
decision of the local authority.
- Insofar
as possible placement with a relative was concerned, the question of
where to place O.D. had to be taken quickly given the risk factors
(in reality, the local authority had less than a week to reach a
decision on a care plan and find suitable carers); it was therefore
simply not practicable to place O.D. with a family member. There were
also concerns that such a placement would not have been in his best
interests, as the relatives to whom the local authority had spoken
did not accept that he was at risk from his parents and his growth
and feeding problems necessitated proper feeding management by
appropriate carers. The judge did not fault the local authority in
this respect and the Government pointed out that section 23(6) of the
Children Act 1989 did not require time and resources to be spent
assessing a family placement when such a placement would obviously
have been impracticable or unsuitable.
- Furthermore,
there was no harmful period of delay in either obtaining the NSPCC
report or in returning O.D. to his parents within three weeks of
receipt of the final report. This period was entirely proportionate.
It was used to inform the relevant agencies and professionals of the
latest information about the family, to consider that information and
prepare for a statutory review meeting.
- Moreover,
it was clear that the medical professionals, even those relied on by
the applicants, involved in the case had given due consideration to
the possibility of Osteogenesis Imperfecta but had discounted it on
the basis of the evidence. The medical experts agreed that there had
been nothing in January 1997 to suggest a diagnosis of Osteogenesis
Imperfecta or that further investigations would have been desirable.
It had to be borne in mind that Osteogenesis Imperfecta was
notoriously difficult to diagnose in infants (and is much rarer than
non-accidental injury) and in this case there was the complication of
growth and feeding problems. The first applicant had been involved in
the proceedings throughout.
- The
Government considered that for the same reasons any interference with
the second applicant's Article 8 rights was justified.
2. The applicants
- While
the applicants fully agreed with the Court's view expressed in R.K.
and A.K. v. the United Kingdom, no. 38000/05, § 36, 30
September 2008, namely that mistaken judgments or assessments by
professionals did not per se render childcare measures
incompatible with Article 8 of the Convention, they submitted that
the present case could be distinguished from R.K. and A.K. in
a number of important respects.
- In
particular, the applicants submitted that in the present case the
measures taken were not necessary and were disproportionate
throughout, with fundamental and incomprehensible mistakes having
been made. Although the bone damage, like the feeding problems, was
unexplained, the authorities, without any additional evidence, jumped
to the assumption that there had been injury inflicted, that the
injury was non-accidental and that the parents should be suspected,
even though the family presented none of the indicators of personal
or social dysfunction which normally accompanied non-accidental
injury. Moreover, unlike the applicant in R.K. and A.K., the
second applicant clearly presented eight of the ten known indicators
of Osteogenesis Imperfecta and the first applicant displayed typical
features of carriers of the defective gene, such as hyperflexibility.
The applicants disputed that Dr S. had properly considered
Osteogenesis Imperfecta and argued that she should have referred O.D.
to a specialist at an early stage, while Professor C. could have
conducted a DXA scan (bone densitometry machine) as Dr B. had later
on.
- The
applicants pointed out that unlike the child in R.K. and A.K.,
O.D. had serious health concerns from before birth which were
unrelated to any child protection concerns. He therefore showed
symptoms other than the unexplained fractures, such as an inability
to gain weight. The Government's attempt to justify the interference
with their right to respect for their family life by reference to
these pre-existing medical conditions was inappropriate.
- The
first applicant and her partner co-operated at all times with the
health care professionals. No concerns had been recorded by
professionals involved with the family prior to the bone fractures,
and in fact it was the first applicant who had initiated the relevant
medical examinations. Nevertheless, the authorities opted for care
proceedings, sending the family without proper notice to a Centre far
from their home where they had to live for three months in
substandard and distressing conditions in an area plagued by drug and
gang activity. This failure of notice or prior discussion excluded
the family from the decision-making process and no convincing
explanation was given for the haste. Moreover, the stay at the Centre
proved to be a profoundly disturbing move for all concerned. The
first applicant's partner had to give up his employment to
participate in the assessment and conditions in the Centre were poor.
If the first applicant did not make negative statements about the
conditions at the time, it was so as not to influence negatively the
report which the Centre was producing. Valuable time was lost in any
event because for the first five weeks of the assessment the Centre
was not given any instructions as to what was to be assessed. When
instructions were eventually given, it was unclear whether the Centre
was being asked to conduct a risk assessment or a parenting
assessment. As a consequence the Centre was not asked to conduct a
formal risk assessment and the local authority had to request for
this to be done later by the NSPCC.
- The
applicants submitted that had the assessment been carried out as it
should have been during the stay in the Centre, there was no reason
to suppose that the findings would have been any different from the
NSPCC's finding of no risk in October of the same year. There would
therefore have been no question of removing the second applicant from
his parents' care in August. The applicants stated that the local
authority received only one written report from the Centre which was
very favourable to the family: the only outstanding concern was the
repeated assumption of a non-accidental injury having been suffered.
- The
applicants submitted that even if the possibility of an accurate
diagnosis being reached from further tests was not certain, as their
family had been assessed as a loving and caring unit which was at
risk of being split up, it would have been reasonable and necessary
to undertake the tests. They pointed out that O.D. had suffered no
further injury in the care of the first applicant and her partner and
the only concern was that the professionals had not yet discovered
the medical causes of O.D.'s injuries.
- In
view of the favourable report from the Centre, the applicants argued
that the postponed risk assessment could have been undertaken at the
Family Assessment Centre in Sale, where the second applicant lived
with his parents after leaving the Centre in Bristol. No reason was
given explaining why it was considered necessary to separate the
child and his parents for this assessment to take place.
- The
applicants submitted that unlike the applicant in R.K. and A.K.,
O.D. was placed in foster care with strangers, without proper
consideration being given to the extended family as potential carers
as the law required; such a placement was not proportionate in this
case, given the failure to properly explore alternatives. This was
despite the fact that one of O.D.'s uncles was a registered child
minder and his wife a registered foster carer. There had been no
evidence that the family would have been unable to protect O.D., and
a list had been provided by the applicants a day before the hearing.
- The
standard of the foster care had been problematic. The separation of
mother and child had not been necessary or proportionate in the
circumstances. The applicants noted the delay in the submission of
the NSPCC report, which even if only one month later than expected,
still prolonged the separation. Although the final report was not
produced until 20 November, on 27 October the NSPCC informed the
local authority that O.D. should be returned without delay to his
parents. O.D. was not returned to his parents until 12 December,
which was six weeks after the NSPCC first recommended return. The
further delay in rehabilitation and return was not necessary as found
by the local authority investigator.
- The
final joint medical report did not address the fact that the second
applicant had many of the indicators for Osteogenesis Imperfecta or
the first applicant's own genetic features. In any event all the
medical experts were agreed that O.D. had suffered Osteogenesis
Imperfecta from birth. Thus the medical evidence relied on to support
the view of non-accidental injury had been inadequate, confused and
inconclusive throughout.
- Furthermore,
there had been unjustifiable delays in returning O.D. to his family
and in removing him from the child protection register.
-
Finally, and in light of the above considerations, the applicants
submitted that the interferences with their right to respect for
their family and private life were much more serious than those which
occurred in R.K. and A.K and a higher level of justification
was therefore required in order for the measures to be considered
proportionate. In the present case any such justification was
noticeably absent.
B. The Court's assessment
- It
is not disputed that the removal of the second applicant from the
first applicant's care constituted an interference with the
applicants' right to respect for their family life within the meaning
of the first paragraph of Article 8. It therefore remains 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 measures conformed to the requirements of
domestic law and pursued the legitimate aim of protecting the rights
of others, namely those of the second applicant.
- The
Court reiterates that the question whether an interference was
“necessary in a democratic society” requires
consideration 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 was fair
and afforded due respect to the applicants' rights under Article 8 of
the Convention.
- In
considering the reasons adduced to justify the measures, and in
assessing the decision-making process, the Court will give due
account to the fact that the national authorities had the benefit of
direct contact with all of 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. The Court reiterates that the authorities enjoy a wide margin
of appreciation when assessing the necessity of taking a child into
care. A stricter scrutiny is called for, however, in respect of any
further limitations, such as restrictions placed by those authorities
on parental rights of access (see, for example, T.P. and K.M. v.
the United Kingdom [GC], no. 28945/95, §§ 71 - 72,
ECHR 2001 V (extracts)).
- The
Court further reiterates that mistaken judgments or assessments by
professionals do not per se render childcare measures
incompatible with the requirements of Article 8 of the Convention.
The authorities, both 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 family are proved, retrospectively, to have been
misguided (R.K. and A.K., cited above, § 36).
- In
the present case the applicants have alleged that the local authority
made a number of fundamental errors which rendered the interference
with their right to respect for their family life disproportionate
and in violation of their rights under Article 8 of the Convention.
In particular, they have submitted first, that the local authority
overlooked warning signs, such as the fact that O.D. had eight of the
ten indicators for Osteogenesis Imperfecta and the fact that the
first applicant displayed typical features of the carriers of the
defective gene; secondly, that in view of the “warning signs”,
O.D. should have been referred to a specialist at an early stage;
thirdly, that the local authority failed to obtain the requisite risk
assessment during the family's stay at the Centre in Bristol;
fourthly, that O.D. should not have been removed from his parents'
care in August 1997; fifthly, that even if there had been no
alternative to foster care in August 1997, the local authority should
have further explored the possibility of placing O.D. with a
relative; sixthly, that there was an unreasonable delay in returning
O.D. to his parents' care following receipt of the NSPCC risk
assessment.
- It
is not disputed that Osteogenesis Imperfecta is a very rare condition
which is difficult to diagnose in small infants. In the present case,
the Court observes that O.D. was not diagnosed with any medical
condition at birth. In January 1997, when O.D. was five months old,
he was examined by a Dr S., a paediatrician. The first applicant
raised the possibility of Osteogenesis Imperfecta. As a consequence,
Dr S. looked at O.D.'s bones but considered that they were normal. On
30 April 1997 Dr C., a professor of paediatric radiology, also
examined O.D. but noted that his bone texture was normal and there
was nothing to indicate Osteogenesis Imperfecta. While at the Centre
in Bristol O.D. was seen by a consultant clinical geneticist, who
reported that Osteogenesis Imperfecta or some other collagen
abnormality was no more than one possible explanation for O.D.'s
medical history. He also commented that it would be rare to have
O.D.'s degree of growth retardation in the absence of multiple long
fractures. He noted that further tests could be conducted, such as a
skin biopsy, but that the diagnostic value of the test had a
detection rate of only 87%. On the family's return from Bristol, Dr
L., a radiologist and acknowledged expert in bone disease instructed
by O.D.'s parents, reported that there was no evidence of abnormal
bone morphology or density to suggest bone fragility and, as a
consequence, non-accidental injury was the likely cause of the
fractures. He was sceptical about taking a skin biopsy as the test
was equivocal. At the hearing in August 1997 Dr R., a consultant
paediatrician, and Dr. G., an orthopaedic surgeon, both indicated
that in their opinions it was unlikely that O.D. had Osteogenesis
Imperfecta. Finally, as late at 31 October 1997, Dr Si., a
consultant paediatrician instructed by the guardian ad litem,
noted that the lack of further injury in spite of O.D.'s increased
mobility was further evidence against Osteogenesis Imperfecta.
- Although
the medical experts were later to agree that O.D. had suffered
Osteogenesis Imperfecta from birth, it does not follow that the
medical evidence previously relied on was inadequate, confused or
inconclusive. Clearly, a considerable number of medical experts were
consulted by the parties in the course of the investigation into
O.D.'s injuries, and in their opinion there was no evidence to
suggest Osteogenesis Imperfecta or to indicate that further
investigations were desirable. In view of this evidence, the Court
does not consider that the social or medical authorities can be
faulted for not reaching an earlier diagnosis of Osteogenesis
Imperfecta or, in the absence of a diagnosis, acting on the basis
that the injury could have been caused by O.D.'s parents. Moreover,
in view of the medical evidence, the Court does not consider that the
social or medical authorities can be faulted for not conducting
further investigations, such as the skin biopsy referred to in the
report of the clinical geneticist. In any case, even if a skin biopsy
had been conducted, there was a good chance that the results would
have been inconclusive as one expert indicated that the test was only
87% accurate and even the first applicant's expert was sceptical
about its benefits.
- The
Court therefore considers that the reasons adduced to justify the
decision to investigate O.D.'s injuries and to assess the risk posed
to him by his parents were relevant and sufficient. The Court would
note, however, that it has not been explained to its satisfaction why
it was necessary to relocate the family far from their home for the
purposes of the risk assessment with all the disruption that
entailed. That being said, it will focus on what it perceives to be a
number of fundamental errors made by the local authority in
conducting those investigations and assessments, including at the
Family Assessment Centre. First, the local authority clearly was
to blame for the wrong assessment being conducted at the Family
Assessment Centre. The Court observes that the applicants remained at
the Centre for twelve weeks, at considerable inconvenience to
themselves, and during this time they co-operated fully with the
assessment. Following their stay at the Centre, however, the local
authority concluded that O.D. could not safely be placed with his
parents until they had undergone a psychological assessment and a
proper risk assessment had taken place. Consequently, O.D. was
removed from his parents' care and spent the next four months with
foster carers. It is therefore clear, and the Government have
accepted, that the failure to conduct a risk assessment during the
twelve-week stay in the Centre was a relevant factor in the decision
to place O.D. in foster care in August 1997. It is significant that
the Risk Assessment report, when finally produced, recommended the
speedy return of O.D. to his parents. While the final report was not
made public until 20 November 1997, the NSPCC had informed the local
authority as early as 27 October 1997 that O.D. should be returned
without delay to his parents. While it is impossible to say with
certainty, the Court finds that there is a very real chance that had
the proper assessment been conducted while the applicants were at the
Centre, O.D. may never have been placed in foster care.
-
Secondly, with regard to the conduct of the risk assessment, the
Court is not persuaded that less intrusive measures were not
available, such as conducting the assessment while the whole family
stayed at an assessment centre or placing O.D. with relatives. The
Court appreciates that the local authority had to make a difficult
decision under considerable time pressures. It recalls, however, that
the local authority was required by law to give proper consideration
to placing O.D. within the family, and could only exclude this option
if it was not reasonably practicable or in the interests of O.D.'s
welfare. While it is clear that the local authority had some
understandable concerns about a family placement, the Court finds
that it dismissed this option too quickly without giving it proper
consideration.
- Finally,
the Court finds that the period of time which elapsed between the
final assessment of the NSPCC on 20 November 1997 and the return of
O.D. to his parents' care was not reasonable in the circumstances. In
particular, the Court observes that local authority was informed of
the NSPCC's conclusion that O.D. should quickly be returned to his
parents on 27 October 1997, and yet O.D. was not returned to their
care until 12 December 1997, more than six weeks later.
- The
Court is therefore satisfied that while there were relevant and
sufficient reasons for the authorities to take protective measures in
May 1997, the subsequent failings of the local authority both
extended and exacerbated the interference with the applicants' right
to respect for their family life and were not proportionate to the
legitimate aim of protecting O.D. from harm.
- The
foregoing considerations are sufficient to enable the Court to
conclude that there has been a violation of Article 8 in respect of
the interference with the applicants' right to respect for their
family life.
- The
first applicant also complained that the actions of the authorities
damaged her reputation and her relationship with her partner, and
constituted a grave interference with her moral and physical
integrity. Having regard to its conclusions as the lawfulness and the
necessity of the measures taken by the local authority, the Court
considers that these complaints raise no separate issue under Article
8.
- There
has accordingly been a violation of Article 8 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicants complained of a violation of Article 13 of the Convention
read together with Article 8. Article 13 reads 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 contested that argument.
The parties' observations
1. The Government's submissions
- The
Government considered that the applicants' complaints were not
arguable, and hence outside the scope of Article 13, save for the
complaints under Article 8 concerning the interference with family
life. They submitted that the first applicant was able to avail
herself of the local authority's complaints procedure. A thorough
investigation had been conducted by an independent person, resulting
in the first applicant receiving an apology. While she did not
receive compensation, she did not ask that such a recommendation
should be made. She had also had the opportunity to oppose any
interim care orders, or to appeal. The Government, however, accepted
that it was arguably obliged to ensure that an enforceable right to
compensation was made available for such damage as could have been
proved to have been suffered as a result of any violation of Article
8 and that this complaint should be declared admissible. As the
applicants acknowledged, there was now an effective remedy provided
under the Human Rights Act 1998.
- As
regarded the second applicant, to whom a duty of care was owed at the
time, his claim failed because he could not show that he had suffered
more than transient and non-justiciable damage, or indeed any damage
at all. This did not, however, show that he was prevented from
bringing a claim in negligence; a favourable result in those
proceedings was not guaranteed, nor a right to damages. In short,
there was a national procedure capable of providing a remedy and that
procedure was used, but, in the circumstances, no remedy was
appropriate.
2. The applicants' submissions
- The
applicants submitted that they had no effective remedy for their
above-mentioned complaints. The local authority complaints' mechanism
and local government ombudsman had already been found by the Court
not to be effective remedies in these circumstances (T.P. and
K.M. v. the United Kingdom [GC], no. 28945/95, ECHR 2001 V
(extracts)). They saw no reason why the courts should not have
recognised a duty of care as existing before the Human Rights Act
1998 came into force and submitted that their approach violated the
applicants' Convention rights. They also pointed out that, even
following the Human Rights Act, its provisions could not help parents
who had to rely on the law of negligence as opposed to section 7 to
vindicate their Convention rights. As regards the second applicant,
it was not necessary to show damage in order to be a victim;
therefore, in order for Article 8 to have been violated, it was not
necessary to show the very specific kind of clinically diagnosed
psychiatric damage required in English law. He had been entitled to a
determination that the local authority had breached his right to
respect for family life and also the possibility of obtaining an
enforceable award for compensation, yet because he could not
demonstrate a recognised psychiatric disorder, he was unable even to
obtain a determination that his rights had been violated. This
deprived him of access to an effective remedy.
The Court's assessment
- The
Court reiterates that the purpose 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. Such a
remedy, however, is only required in respect of grievances which can
be regarded as arguable in terms of the Convention (see Halford v.
the United Kingdom, 25 June 1997, § 64, Reports of
Judgments and Decisions 1997 III; Camenzind v.
Switzerland, 16 December 1997, § 53, Reports of
Judgments and Decisions 1997 VIII).
- There
is no doubt that the applicants' complaints about the interference
with their right to respect for their family life were arguable.
Moreover, in the case of R.K. and A.K., the Court held 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. As such redress was not available at the relevant time,
the Court held that there had been a violation of Article 13 of the
Convention (see § 45).
- As
the first applicant is in an analogous position to the applicants in
R.K. and A.K., the Court considers that there has also been a
violation of her rights under Article 13 of the Convention.
- The
second applicant, however, is in a different position. A duty of care
did exist between the local authority and the second applicant, and
he was entitled to bring, and, indeed, did bring, a claim in
negligence. The Court considers that the right to bring a claim in
negligence, and to appeal against an unfavourable decision, would
normally constitute an effective domestic remedy, even if it does not
always produce the outcome that the applicant hopes for. In the
present case the second applicant's claim was not successful because
there was no evidence to suggest that he suffered from a recognised
psychiatric disorder which had been caused by the period of
separation from his parents and he could not, therefore, show that he
had suffered justiciable damage. By definition, the domestic courts
are not in a position to assess non-justiciable damage and the Court
considers that it is reasonable for claims to be rejected on that
ground.
- Moreover,
the finding that any damage sustained by the second applicant was
non-justiciable is a finding of fact by the domestic courts. The
Court reiterates that it is not normally within
its province to substitute its own assessment of the facts for that
of the domestic courts because, as a general rule, it is for the
domestic courts to assess the evidence before them (see, inter
alia, Edwards
v. the United Kingdom, 16 December
1992, Series A no. 247-B, p. 12, § 34 and Vidal
v. Belgium, 22 April 1992, Series A
no. 235-B, pp. 32-33, §§ 33-34).
- The
Court therefore finds that there has been no violation of the second
applicant's rights under Article 13 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- In
respect of non-pecuniary damage, the applicants each claimed GBP
10,000 (EUR 11,260.10) in relation to
the complaint under Article 8, and GBP 10,000 in relation to the
complaint under Article 13 read together with Article 8.
- The
Government submitted that this sum was excessive.
- The
Court recalls the judgment in T.P. and K.M. v. the United
Kingdom [GC], no. 28945/95, ECHR 2001 V (extracts),
in which the Grand Chamber found a
violation of Articles 8 and 13 and awarded each applicant GBP 10,000
in respect of a separation which lasted a year. The Court further
recalls its recent judgment in R.K.
and A.K. v. the
United Kingdom, in which it found a
violation of Article 13 read together with Article 8 and the
applicants were jointly awarded EUR 10,000 in respect of a separation
which lasted for seven months.
- The
Court finds that these cases are appropriate comparators. It
therefore jointly awards the applicants EUR 15,000 in respect of the
complaint under Article 8 of the Convention. It makes no separate
award under Article 13 of the Convention.
B. Costs and expenses
- The
applicants each claimed GBP 10,000.00 (EUR 11,456.60)
for the costs and expenses incurred before the Court.
- The
Government submitted that this was clearly excessive. In particular,
they submitted that a separate award should not be made to each
applicant as their interests in this case were very similar.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the applicants the sum of EUR 10,000
for the proceedings before the Court.
C. Default interest
- 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.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that there has been a violation of Article
8 of the Convention;
- Holds that there has been a violation of Article
13 of the Convention read together with Article 8 of the Convention
in relation to the first applicant;
- Holds that there has been no violation of
Article 13 of the Convention in relation to the second applicant;
- Holds
(a) that
the respondent State is to pay the applicants jointly, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
the following amounts, to be converted into pounds sterling at the
rate applicable at the date of settlement:
(i) EUR
15,000 (fifteen thousand euros), plus any tax that may be chargeable,
in respect of non-pecuniary damage;
(ii) EUR
10,000 (ten thousand euros), plus any tax that may be chargeable, in
respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 16 March 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Lech Garlicki
Registrar President
