D. & Ors v United Kingdom 38000/05 [2008] ECHR 200 (12 February 2008)

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The European Court of Human Rights (Fourth Section), sitting on 12 February 2008 as a Chamber composed of:

Lech Garlicki, President,
Nicolas Bratza,
Giovanni Bonello,
Ljiljana Mijović,
Ján Šikuta,
Päivi Hirvelä,
Ledi Bianku, judges,
and Lawrence Early, Registrar,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

The facts of the cases, as submitted by the applicants, may be summarised as follows.

The applicant gave birth to her son M. on 18 November 1988. From birth he suffered from severe allergy problems, including an allergic reaction to bottled milk within a few hours of birth.

In August 1989 M. was seen by a consultant paediatrician who diagnosed him as suffering from allergies.

At five months and nine months M. reacted to his first and second immunisations.

In early 1990, M. was seen by Professor Strobel at Great Ormond Street Hospital. It was noted that he had severe allergic reactions including urticaria, severe reactions after vaccinations and anphylactic reaction to cow’s milk.

On 6 June 1990 Professor Strobel reviewed M., confirming the diagnosis of atopy and food allergic disease.

On 16 July 1990, M. was admitted as an emergency to hospital having had a convulsion and suffering from pyrexia.

On 29 October 1990, he was admitted to Great Ormond Street for introduction of foods on an inpatient basis. He was noted to have urticarial reactions and episodes where his behaviour became uncontrollable for half an hour or so after eating.

Further admissions to hospital took place on 23 November 1990 (problems in tolerating wheat), on 1 September 1991 (anaphylactic attack after eating chocolate), April 1991 (for treatment for eczema), 26 February 1992 (multi-allergy syndrome and asthma), 3 August 1993 (for his third immunisations, developing urticaria, oedema and itching) and 12 December 1994 (concerns about hypothermia). M. was described by one doctor as the most allergic patient he had had ever known.

On 15 December 1994, while M. was still in hospital, he was seen by Professor Southall who made the diagnosis that D. was fabricating M.’s illness. D. was not told this or invited to discuss the possibility.

Although M. was discharged from hospital, the social services were contacted and concerns expressed that D. could be exhibiting FII (fabricated or induced illness). It was requested that D. not be told of this.

On 6 March 1995 the social services held a strategy meeting attended by Professor Southall, the police, representatives of the hospital and social services. Following the meeting, Professor Southall referred M. to Professor Warner for blood samples and testing, stating that in his view factitious illness was being imposed on top of real illness. Professor Strobel wrote to Professor Southall considering that the wording was too strong and that there was no doubt that M. was atopic and food allergic in general.

In June 1995 Professor Southall proposed that M. be admitted to the Burlesdon Unit, going home only on the weekends. D. was given no explanation as to the reasons why this was being suggested and was concerned that M. would be unable to cope. She refused to agree to the admission. Professor Southall contacted the social services suggesting that a child protection conference be convened.

On 4 September 1995, with D.’s agreement, M. was admitted to Great Ormond Street on the suggestion of Professor Strobel for food challenges to be undertaken and for treatment of eczema.

On 24 October 1995 a meeting was held at the hospital attended by various professionals but not D. Concerns about possible exaggerated reporting by the mother were raised.

D. found out about the meeting later and was noted to be upset, believing that she was no longer believed or trusted.

Further admissions followed during 1996, following reactions to various foodstuffs. A social work summary dated 3 June 1996 indicated that there were no incidents of fabrication of symptoms but that there were concerns about the mother’s exaggerated or dramatic reporting of symptoms.

On 10 December 1996, Dr Whiting took over as community paediatrician for the NHS Trust and she concluded after one meeting with D. and M. that M. had only minor allergies and was at risk from the mother. She contacted Professor Southall, who had not seen M. for two years; they agreed that a professionals’ meeting should be called.

On 6 March 1997, a professionals’ meeting took place in hospital, without the parents. There was a conflict of view as to whether the parents should be informed of concerns. A meeting took place on 13 March 1997 with the parents at which concerns were expressed about the degree of M.’s allergies and the need for independent assessment. M.’s parents considered that he was doing well at the moment. While they would not agree to admission to Professor Warner’s unit, D. accepted that he be admitted to Great Ormond Street and that she leave him during the day. Shortly afterwards, on reading a letter in M.’s medical records, D. became aware that she was suspected of FII.

On 21 March 1997, D. visited the Burlesdon unit but continued to refuse to agree to M.’ s admission as in her view it did not have facilities to cope with a full anaphylactic reaction and she was concerned for his safety.

In April the parents were warned that a care order was being considered. D. at her request was referred to a psychiatrist. This psychiatrist found no indication of any personality disorder but considered that important questions arose, including the extent to which D. misrepresented or colluded in symptoms.

A child protection conference was held on 2 June 1997, after which M. was placed on the at risk register under the category of emotional abuse. D. and M.’s father were present at the meeting.

On 17 June 1997 D. visited Professor Warner and agreed to medical assessment on an acute ward.

Following M.’s admission to hospital, Professor Warner gave his opinion on 16 September 1997 that M. suffered from extensive and severe allergies, including episodes of acute angio oedema urticaria and anaphylaxis. M. was removed from the at risk register on 29 September 1997.

On 2 December 1997, Professor Warner confirmed the diagnosis of extreme acute allergies and that the mother had not been fabricating his condition.

According to a medical report dated, 28 June 2000, D. had experienced a lengthy period of extreme anxiety and stress concerning her son because of his chronic ill health and life threatening condition, and that in addition she had been subject to the stress of accusations and investigations concerning the causes of his condition. It was noted that D. had been depressed, with loss of weight, sleep disturbance, tearfulness, withdrawal, loss of energy brief suicidal thoughts. Recommendations were made that she be helped by supportive counselling.

The applicant claimed that she had also been unable to return to her nursing career due to destroyed confidence and fear that accusations would resurface if anything went wrong. She depended on income support as a result.

On 16 March 2000, the applicant issued proceedings in negligence alleging a breach of duty by the various NHS trusts involved in the case and claiming compensation for personal injury and financial loss.

On 24 July 2002, the judge struck out the claim finding that public policy militated against any duty of care to D. The applicant appealed to the Court of Appeal.

On 26 September 1998, M. screamed with pain when picked up by the maternal grandmother. The parents and grandmother took M. to the hospital. The triage nurse made a note of information given by the family. That note stated that the mother, rather than the grandmother, had “yanked” M.

An x-ray showed a displaced slightly-comminuted fracture of the midshaft of the femur. While it was noted that there was no history of metabolic bone disease in the family, it was not noted that the parents were first cousins, an incident relevant to a possible genetic condition. Neither the mother nor grandmother spoke much English; no Pushtu interpreter was provided. A consultant paediatrician, Dr Blumenthal interviewed the parents and grandmother early in the morning the next day, again without an interpreter. He noted that none of them appeared to know how the injury had occurred. He concluded that it was an inflicted injury and told the parents this.

The police were informed. The parents were interviewed on 27 September 1998 by a social worker. He was unable to communicate with the mother due to language difficulties.

On 28 September 1998 the health visitor for the family was interviewed and stated that she had had no concerns with the family.

On 29 September 1998 the police interviewed the parents with an interpreter present.

On 30 September 1998, a social worker interviewed the family again and indicated that medical opinion was clear that M. could not have been injured by being picked up in the manner described by the grandmother. She warned that without a convincing explanation for the injury a child protection conference would have to be called.

On 14 October 1998, in light of the doctor’s conclusion of non-accidental injury (NAI), the Child Protection Conference decided to seek a second opinion but that meanwhile an interim care order should be obtained. Such care order was issued and parental responsibility given to the local authority on 16 October 1998.

On 23 October 1998, M. was discharged from hospital into the care of her aunt. The parents were allowed supervised contact.

The parents obtained legal advice and jointly instructed an expert, with M.’s guardian, inter alia, to clarify whether tests had been carried out to exclude brittle bone disease. However no further tests were carried out at this stage.

On 23 December 1998, the County Court judge found that the mother and grandmother were liars and knew more about the injury than they were prepared to reveal (they had given evidence through an interpreter which they allege was suspect) and that as the father was convinced of the innocence of his wife, he was disqualified as a person capable of protecting M. He ordered M. to be placed in care. M. remained with her aunt who lived a few hundred yards from the family home.

On 29 March 1999, M. sustained a second injury in her aunt’s care. Bilateral femoral fractures were found and following further tests she was diagnosed with osteogenesis imperfecta (“OI”, commonly known as brittle bone disease). Professor Carty and Dr Paterson were consulted at this time by Dr Blumenthal and inter alia did not find any ground for reaching a diagnosis of OI in preference to a non-accidental injury at the time of the first injury.

The entire local community were aware that the family had been suspected of harming M. and the family had been extremely shocked and shamed. Rumours spread to Pakistan that the mother had been put in prison. The parents’ relationship with M. and with the grandmother have been severely affected and disrupted as a result of events.

On 24 September 2001 the parents brought claims for negligence and breach of their Article 8 rights against the hospital trust and the consultant paediatrician.

On 4 December 2002, the High Court found no duty of care was owed to the parents and that the Human Rights Act 1998 (“HRA 1998”) did not apply to events before it came into force on 2 October 2000. The parents appealed.

On 31 July 2003, concerning the parents’ claims, the Court of Appeal held as regards allegations under Article 6 that no violation of this provision was involved, referring to Strasbourg judgments (Z. and Others v. the United Kingdom ([GC], no. 29392/95, ECHR 2001 V and T.P. and K.M. v. the United Kingdom ([GC], no. 28945/95, ECHR 2001 V). It found that while domestic law now recognised that there was a duty of care in relation to children, whose best interests were always paramount, there was a potential conflict of interest between the child and the parents, as it would always be in the parents’ best interests for the child not to be removed. Where consideration was being given to whether child abuse justified measures, a duty of care could be owed to the child but not to the parents. It upheld the rulings of the various County Court judges as a result.

After a hearing on 31 January and 1 and 2 February 2005, the House of Lords gave judgment on 21 April 2005. They affirmed the orders made by the first instance judges and Court of Appeal. Lord Nicholls, in his judgment with which the majority agreed, found inter alia:

"70. There are two cardinal features in these cases. One feature is that a parent was suspected of having deliberately harmed his or her own child or having fabricated the child’s medical condition. The other feature, which is to be assumed, is that the ensuing investigation by the doctors was conducted negligently. In consequence, the suspected parent’s life was disrupted, to a greater or lesser extent, and the suspected parent suffered psychiatric injury.

71. It is the combination of these features which creates the difficult problem now before the House. In the ordinary course the interest of parent and child are congruent. This is not so where a parent wilfully harms his child. Then the parent is knowingly acting directly contrary to his parental responsibilities and to the best interests of his child. So the liability of doctors and social workers in these cases calls into consideration two countervailing interests, each of high social importance: the need to safeguard children from abuse by their own parents, and the need to protect parents from unnecessary interference with their family life.

72. The first of these interests involves protection of children as the victims of crime. Child abuse is criminal conduct of a particularly reprehensible character: children are highly vulnerable members of society. Child abuse is also a form of criminal conduct peculiarly hard to combat, because its existence is difficult to discover. Babies and young children are unable to complain, older children too frightened. If the source of the abuse is the parent, the child is at risk from his primary and natural protector within the privacy of his home. This both increases the risk of abuse and means that investigation necessitates intrusion into highly sensitive areas of family life, with the added complication that the parent who is responsible for the abuse will give a false account of the child’s history.

73. The other, countervailing interest is the deep interest of the parent in his or her family life. ... Interference with family life requires cogent justification, for the sake of children and parents alike. So public authorities, should, so far as possible, cooperate with the parents when making decisions about their children. Public authorities should disclose matters relied upon by them as justifying interference with family life. Parents should be involved in the decision-making process to whatever extent is appropriate to protect their interests adequately.

74. The question raised by these appeals is how these countervailing interests are best balanced when a parent is wrongly suspected of having abused his child. Public confidence in the child protection system can only be maintained if a proper balance is struck, avoiding unnecessary intrusion in families while protecting children at risk of significant harm... Clearly health professionals must act in good faith. They must not act recklessly, that is without caring whether an allegation of abuse is well-founded or not. Acting recklessly is not acting in good faith. But are health professionals liable to the suspected parents if they fall short of the standard of skill and care expected of any reasonable professional in the circumstances? Are they exposed to claims by the parents for professional negligence? ...

75. In considering these questions the starting point is to note that in each of these three cases... the doctors acted properly in considering whether the claimant parents had deliberately inflicted injury on the child in question. The doctors were entitled, indeed bound to consider this possibility. Further, having become suspicious, the doctors rightly communicated their suspicions to the statutory services responsible for child protection. That is the essential next step in child protection...

76. In each case the suspected parent was eventually cleared of suspicion. In one case this was after ten days, in the other cases after much longer periods. The second point to note is that, essentially, the parents’ complaints related to the periods for which they remained under suspicion. In each case the parent’s complaint concerns the conduct of the clinical investigation during these periods; the investigation, it is said, was unnecessarily protracted. The doctors failed to carry out the necessary tests with appropriate expedition. Had due care and skill been realised from the outset, the doctors’ suspicions would have been allayed at once or much more speedily than occurred, and, in consequence, the parents would have been spared the trauma to which they were subjected. Thus the essence of the claims is that the health professionals responsible for protecting a suspected child victim owe a person suspected of having committed a crime against the child a duty to investigate their suspicions, a duty sounding in damages if they act in good faith but carelessly.

77. Stated in this broad form, this is a surprising proposition. 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 has long been the presence or absence of good faith...

78. This background accords ill with the submission that those responsible for the protection of a child against criminal conduct owe suspected perpetrators the duty suggested. The existence of such a duty would fundamentally alter the balance in this area of the law. It would mean that if a parent suspected that a babysitter or a teacher at a nursery or school might have been responsible for abusing her child, the doctor would owe a duty of care to the suspect...

79... <Counsel> did not contend for such a broad proposition... His submission was more restricted.... That the health professionals’ duty to exercise due professional skill and care is owed only to the child’s primary carers, usually the parents, as well as the child himself. ...

80. My initial difficulty... is that the distinction between primary carers, to whom the duty would be owed, and other suspects to whom it would not, is not altogether convincing. It is difficult to see why, if a health professional owes no duty to a childminder or teacher suspected of abuse, he should nonetheless owe such a duty to a parent suspected of abuse. An erroneous suspicion that a childminder or school teacher had been abusing a child in his or her care can be very damaging to him or her. ...

81. There is, however, one major difference between parents and childminders or school teachers,. In the case of a parent suspicion may disrupt the parent’s family life. ... So the crucial question ... is whether this potential disruption of family life tilts the balance in favour of imposing liability in negligence where abuse by a parent is erroneously suspected...

85. In my view the Court of Appeal reached the right conclusion on the issue... Ultimately the factor which persuaded me that, at common law, interference with family life does not justify according a suspected parent a higher level of protection than other suspected perpetrators is the factor conveniently labelled ‘conflict of interest’. A doctor is obliged to act in the best interests of his patient. In these cases the child is his patient. The doctor is charged with the protection of the child, not with the protection of the parent. The best interests of a child and his parent normally march hand-in-hand. But when considering whether something does not feel ‘quite right’, a doctor must be able to act single-mindedly in the interests of the child. He ought not have to have at the back of his mind an awareness that if his doubts about intentional injury or sexual abuse prove unfounded he may be exposed to claims by a distressed parent.

86. ... the seriousness of child abuse as a social problem demands that health professionals, acting in good faith in what they believe are the best interests of the child, should not be subject to potentially conflicting duties when deciding whether a child may have been abused, or when deciding whether their doubts should be communicated to others, or when deciding what further investigatory or protective steps should be taken. The duty to the child in making these decisions should not be clouded by imposing a conflicting duty in favour of parents or others suspected of having abused the child. ..."

The applicants, RK and AK, complained under Article 3 of the Convention that they were treated in a degrading manner. They did not submit that the forming of erroneous suspicions that they had abused or harmed their child violated their rights and accepted that measures involving the protection of children may cause distress to families but submit that there were special elements bringing their cases beyond the effect that such measures can be expected to entail. They pointed to the fact that it was not their conduct which rendered the measures necessary or which had contributed to the negligent assumption that they were child abusers and emphasised the authorities’ rigid intransigence in refusing to review this position. The applicants submitted that the negligent actions of the authorities aroused feelings of fear, anguish and inferiority and also grossly humiliated them in their own eyes and in the eyes of others. They relied in particular on the following: AK was a young wife recently arrived in the United Kingdom, with little knowledge of the language and dealing with the difficulties of a mother with her first child born by caesarean; both parents were wrongly and negligently accused of deliberately inflicting an injury on their tiny baby; they were interviewed by the police in that regard and coerced, against their will and conscience, into accepting an interim care order to avoid something worse; AK was humiliated by being found to be a liar; and both had to endure the pain and distress, humiliation in their community and separation from the baby for nine months.

The applicants, RK and AK, complain under Article 6 that they were suspected of committing a criminal offence but notwithstanding the police decision not to prosecute they remained at risk of formal criminal charges being brought against them as long as they remained identified as child abusers. However even if it was the civil aspect of Article 6 which was in play, the equivalent guarantees were applicable. In particular, they complained that the manner in which allegations of non-accidental injury were made violated the presumption of innocence as there has been no opportunity for the applicants to disperse the aspersions and lingering prejudice; they complained under Article 6 § 3 (a) and (e) that AK, who had poor knowledge of English, was not officially provided in a language she understood with an official and detailed notification of what it was she was supposed to have done, nor were any of the reports translated for her.

All the applicants also complain under Article 6, in its civil aspect, that they were insufficiently involved in the decision-making processes to safeguard their rights.

The applicants claimed that in the case of RK and AK their separation from their child was an unjustified interference with their family life and in the case of D that placing her child on the at risk register placed her parental rights under threat as she was constantly concerned that the authorities might attempt to remove the child and was in that respect a potential victim;

The applicants, RK and AK, referred to their complaints under Article 3. D. also complained that her case involved an unjustified interference with her right to moral and physical integrity.

The applicants complain that the actions of the authorities had so damaged their reputations that it prevented them from continuing to develop relationships with others. D. complains that she is affected adversely in obtaining medical treatment for her son and even herself due to difficulty in developing relationships with medical staff;

a. in the case of D. the deliberate decision not to inform her of a diagnosis of FII between December 1994 and March 1997 failed to include her in the decision-making process regarding her son’s medical condition, that she was never formally evaluated nor was any request made for such evaluation; she was not told the real reason why Professor Southall wanted to have her son referred to Professor Warner and why steps were taken to separate her from her son in hospital for certain periods for the ostensible purpose of running tests; that she was not informed of a meeting of professionals on 6 March 1997 which concerned her son; that the psychiatrist who saw her after the diagnosis became known demonstrated a prejudiced attitude and was confused as to whether it was her or her son who was his patient; that she was concerned that Professor Southall kept a special file on her son, which information has not been included in his medical file and which might have been relevant to her defending her position; that even after the FII diagnosis became known, accidentally, there was no attempt to share information with her; and that while she was allowed to see Professor Southall’s letter dated 24 April 1997, he did not permit her to have a copy or take notes of it;

b. in the case of RK and AK that their baby was wrongly and negligently diagnosed as suffering non-accidental injury at their hands and separated from them for nine months; that the triage nurse made errors in her notes which they did not see until the actual care proceedings; that they were never given an opportunity to effectively address allegations of abuse as critical information was withheld from them prior to the care proceedings;

The applicants, RK and AK, complained under Article 3 of the Convention (prohibition of inhuman and degrading treatment) that they were treated in a degrading and humiliating manner; all the applicants complained of various breaches of Article 8 (right to respect for family and private life), concerning interference with their family life, insufficient involvement in the decision-making process, damage to reputation and private life as well as to physical and moral integrity. The applicants also invoked Article 13 (right to an effective remedy for arguable claims of Convention breaches).

The Government submitted that these applicants had not relied on Article 3 of the Convention in the domestic courts, invoking Articles 6, 8 and 13 alone and therefore arguably have failed to exhaust their domestic remedies. In any event, their approach disclosed a view that these complaints were not sufficiently strong to be pursued. While no doubt suffering distress, the circumstances did not come close to ill-treatment of a severity engaging Article 3.

The applicants, RK and AK, submitted that they had raised the substance of their complaint in the domestic proceedings by setting out expressly the distress, humiliation and degradation that they had felt. As the HRA 1998 did not apply to the proceedings, they cannot have been required to raise Article 3 expressly. Further the circumstances justified finding a breach due to the depth of humiliation and unnecessary distress felt by RK and AK. In particular, RK and AK were humiliated by the accusation that AK had injured their child and her subsequent arrest and questioning, by AK’s treatment at the hospital and the manner of her interview with Dr Blumenthal while AK was shamed by being called a liar by the judge during the care proceedings and RK by being told that he was not capable of protecting his own child. They emphasised that they were members of close-knit Muslim communities and the accusations humiliated them in the eyes of others and resounded in both the United Kingdom and their family communities in Pakistan, Canada and India respectively. All the applicants had suffered adverse mental affects; RK and AK referred to "a horrifying and bewildering experience" with "prolonged periods of pathological levels of depressive anxiety” and feelings of threat and persecution.

The Government submitted that the placing of M. on the at risk register for a period of less than four months did not interfere with D.’s private and family life. It did not limit or interfere with her contact with M. and he remained in her care. It only gave an appropriate focus and structure to the resolution of issues surrounding M.’s health, providing information to child protection staff and agencies, requiring a protection plan to be drawn up, including allocation of a social worker to the child and to ensure that plans are formally reviewed every six months. Placing M. on the register indeed achieved a rapid resolution of concerns.

The Government denied that there was any interference with D.’s moral and physical integrity or her right to reputation, as the placing of M. on the at risk register in no way restricted her right to work as a nurse. As concerned the alleged lack of procedural protection in the decision-making process, they submitted that D. was involved to an appropriate extent and fully consulted prior to the decision to place M. on the register, attending the child protection conference on 2 June 1997 at the end of which the decision had been taken. They pointed out that in cases of suspected FII there was a substantial body of professional opinion that suspicions should not be discussed in the first instance with the parents as this may cause them to change their behaviour in a way detrimental to the child (instead efforts should be made to rule out or to confirm FII by other means): thus the actions of the professionals in M.’s case were consistent with best practice.

Alternatively, if Article 8 was engaged, the Government argued that any interference was in accordance with the law and justified to protect the rights of M. There were relevant and sufficient reasons to place M. on the register. M and his family received support from three social services departments, which responded appropriately to the concerns raised by medical consultants and were as open and communicative with the family as was possible in the circumstances. The degree and nature of D.’s concerns about M.’s allergies were highly unorthodox e.g. her concern that he suffered from electrical allergies, a telephone call in which she stated that he was going into anaphylactic shock on a daily basis and some evidence D. might be exaggerating some symptoms as when she had shouted that M. was having "an attack" but a former nursing colleague could see nothing wrong with M. It was undoubtedly a difficult case which perplexed a number of professionals and for that reason no precipitate action was taken. They noted the applicant’s resistance to attempts to arrange for M. to be assessed by the allergy expert Professor Warner and considered that it was appropriate for the professionals to seek to persuade her to allow admission on a voluntary basis.

While the applicant much criticised Dr Whiting, the Government submitted that the documents disclosed a careful consideration of the history and a moderate and reasonable approach to what she acknowledged to be a very complicated case, following her duty to draw attention to inconsistencies and concerns voiced by other professionals and putting the interests of the child first. 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 applicant submitted that placing M. on the at risk register rendered her a potential victim of a violation of her family life rights, since it was often a first step in care proceedings and there was a real risk that M. would be taken away from her at any moment. She disputed the Government’s assertion that all the professionals were concerned with M.’s health or that placing him on the register led to a speedy resolution of concerns, pointing out that they kept her in the dark for two years as to the authorities’ views of FII. It was not the placing of M. on the register which put her under a cloud of suspicion damaging her reputation but the negligent diagnosis of FII.

The applicant denied that she had been properly involved in the proceedings, asserting that there was a failure to observe and to have in place the procedural safeguards inherent in Article 8. Her presence at one meeting did not constitute proper involvement. The issue of FII was never discussed at any length and it was merely raised finally and left hanging in the air. She pointed out that the failure to inform could not be regarded as following Department of Health Guidelines as these were issued in 2002 after the events. Even if it was best practice not to inform the parent in the first instance, in D.’s case she was left in ignorance for over a year, a protracted period. She rejected the Government contention that she had claimed that her son was going into anaphylactic shock every day and denied that her concerns were highly unorthodox, noting the statement of Professor Warner that many allergic children were accompanied by understandable parental anxiety. The Government’s claim that she resisted an assessment by Professor Warner was also misleading since although it was raised in March 1995 it was not mentioned again until 1997. She was always committed to finding the cause of her son’s difficulties and would have agreed to an assessment if she had been made aware of the FII problem. As regarded Dr Whiting, she only saw D. and her son once before reaching her conclusion and thus her recommendations were made without affording D. the chance to respond.

Furthermore, the applicant argued that the interference disclosed serious interference with her moral and physical integrity, for which no justification has been put forward by the Government, thus constituting a breach of Article 8 in its private life aspect.

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 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 the opinion 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 of 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 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; AK 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 highlights 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 AK 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.

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. AK 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.

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.

The Government did not consider that Article 13 of the Convention was engaged at all as regarded D.’s complaints under Article 8 but accepted that there was an arguable claim as regarded the other case.

Where there was an arguable claim, the Government accepted admissibility 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 Human Rights Act 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 with retrospective effect as the applicants appeared to contend. They also refuted assertions concerning alleged exclusionary rules applied to protect public authorities from suit.

The applicants argued that Article 8 was clearly engaged in the case of D and thus Article 13 was equally applicable in her case. They submitted that none of the remedies referred to would have satisfied Article 13 or been effective remedies for the purposes of Article 35 § 1. 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.

The Court notes that the Government argued that the complaints raised by D. did not fall within the scope of either Article 8 or Article 13 of the Convention. The applicant contended that the placement of M. on the risk register was a first step towards formal care proceedings and rendered her a potential victim of a violation of her family life rights. The Court recalls, however, that the applicant was never separated, formally or legally, from her son. Nor was any step taken as regarded his medical care or treatment without her consent. While in retrospect the applicant became aware that various professionals had harboured suspicions against her as possibly exaggerating or fabricating illness, the Court is not persuaded that this had any direct effect on her enjoyment of her right to respect for family or private life. The fact that her son’s name was placed on a register was an administrative step which alerted the authorities to the need to address concerns as a matter of some urgency. Even if it was a possible forerunner of care measures, these did not transpire as the suspicions of abuse were, in the event, defused by Professor Warner’s assessment in which the applicant had voluntarily participated.

Even assuming, therefore, that the applicant could claim to be a victim of an interference with her rights under Article 8, the Court considers that such interference may be considered as justified in terms of paragraph 2 as necessary in a democratic society for the protection of the rights of others, namely, her son. It emphasises in that regard that mistaken judgments or assessments by medical personnel do not per se reveal procedural shortcomings, that the applicant’s son’s health gave considerable cause for concern, that a number of professionals received negative impressions from the applicant’s conduct and that, after the applicant had agreed to her son’s assessment by Professor Warner, the suspicion of FII was dispelled and her son’s name removed from the at risk register immediately, after inclusion for a period of just under four months. In those circumstances, Article 13 also falls way, for lack of any arguable claim of a violation of Convention rights. Insofar as this applicant invokes Article 6 of the Convention in its civil head, there is no basis for finding that any of the alleged procedural defects in the handling of the case impinged on the determination of any existing civil right within the meaning of paragraph one of that provision.

This part of the application must therefore be rejected as manifestly ill-founded as a whole pursuant to Article 35 §§ 3 and 4 of the Convention.

The Court recalls that the Government have argued that this complaint falls to be dismissed for non-exhaustion of domestic remedies pursuant to Article 35 § 1 of the Convention since the applicants did not rely on this provision in the domestic proceedings. It does not rule on this issue since this part of the application must be rejected for the following reasons.

The Court’s case-law establishes that Article 3, which prohibits torture and inhuman or degrading treatment or punishment cannot be relied on where distress and anguish, however deep, flow, inevitably, from measures which are otherwise compatible with the Convention, unless there is a special element which causes the suffering to go beyond that inherent in the their implementation (see, mutatis mutandis, Tyrer v. the United Kingdom judgment of 25 April 1978, Series A no. 26, p. 15, § 30; Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, p. 39, § 100; V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999-IX). Child protection measures will, generally, cause parents distress and on occasion humiliation, if they are suspected of failing, in some way, in their parental responsibilities. However, given the responsibility of the authorities under Article 3 to protect children from severe abuse, whether mental or physical, it would be somewhat contradictory to the effective protection of children’s rights to hold that authorities were automatically liable to parents under this provision whenever they erred, reasonably or otherwise, in their execution of their duties. As mentioned above, there must be a factor apart from the normal implementation of those duties which brings the matter within the scope of Article 3.

In the present case, where it is not disputed that their child suffered an injury which could not initially be accounted for, while the Court does not doubt the applicants’ distress at events, the fact that they were mistakenly suspected of abuse, and their account of events considered to be unsatisfactory or false, cannot be regarded as constituting special elements in the sense identified above. It follows that this complaint must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

The Court notes that Government accepted that the removal of their child from their care disclosed an interference with the right to respect for family life of RK and AK. Having regard to the facts of the case and the submissions of the parties, the Court considers that serious issues arise requiring examination on the merits. Insofar as these applicants complain of invasion of their moral and physical integrity and damage to their reputation contrary to respect for their private life, the Court considers that these complaints are closely connected on the facts with the complaints raised under the family life limb.

It follows that this part of the application cannot be rejected as manifestly ill-founded pursuant to Article 35 § 3 of the Convention, nor on any other ground of inadmissibility. It must therefore be declared admissible.

The applicants, RK and AK, complain under Article 6 §§ 1 and 3 that they were accused of criminal offences without receiving the protection of the requisite guarantees.

The Court is not so persuaded. Even if the police were brought in and RK was interviewed, no charge was ever brought and no decision was taken to prosecute. Even if this position could have been reconsidered by the police at a later stage, this is not sufficient to disclose the determination of any "criminal charge" for the purposes of Article 6 § 1 of the Convention. This complaint must therefore be rejected as incompatible ratione materiae pursuant to Article 35 §§ 3 and 4 of the Convention. Insofar as the applicants invoke Article 6 § 1 in its civil aspect, the Court notes that the applicants essentially repeat their complaints under Article 8 that they were insufficiently involved in the decision-making process to the degree necessary to protect their interests. It is not the case however that Article 6 applies to internal child protection procedures as such. Nor is there any indication that any aspects of those procedures impinged on the fairness of any proceedings before the courts in respect of RK and AK. This aspect of the applicants’ complaints must therefore be rejected as manifestly ill-founded as a whole pursuant to Article 35 §§ 3 and 4 of the Convention.

Having regard to the submissions of the parties, and noting in particular that the Government have conceded that the complaint by RK and AK about the separation from their child disclosed an arguable claim under Article 8 of the Convention, the Court considers that this aspect of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

Declares admissible, without prejudging the merits, the complaints by the applicants, RK and AK, about the interference with their right to respect for family and private life and lack of effective remedies;

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You are here: BAILII >> Databases >> European Court of Human Rights >> D. & Ors v United Kingdom 38000/05 [2008] ECHR 200 (12 February 2008) URL: http://www.bailii.org/eu/cases/ECHR/2008/200.html Cite as: [2008] ECHR 200