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FOURTH SECTION
CASE OF M.A.K. AND R.K. v. THE UNITED KINGDOM
(Applications nos. 45901/05 and 40146/06)
JUDGMENT
STRASBOURG
23 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 M.A.K. and R.K. 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
Fatoş Aracı,
Deputy Section
Registrar,
Having deliberated in private on 2 March 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in two applications (nos. 45901/05
and 40146/06) 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, Mr
M.A.K. and Ms R.K. (“the applicants”), on 18 October 2005
and on 28 September 2006 respectively. 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, who had been granted legal aid, were
represented by J. Sykes of Levi Solicitors LLP and Ms N. Mole of
the AIRE Centre. The United Kingdom Government (“the
Government”) were represented by their Agent, Mr J. Grainger of
the Foreign and Commonwealth Office.
- The applicants and the Government each filed
observations on the admissibility and merits of the case (Rule 59 §
1).
- The Chamber decided to join the proceedings in the
applications (Rule 42 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The first applicant's daughter,
who is the second applicant, was born on 6 March 1989.
- On 9 September 1997 the first
applicant took the second applicant to see their general practitioner
because he and his wife were concerned about what appeared to be
bruising on her legs. A clotting test was carried out but it showed
no abnormality.
- On 25 February 1998 the first
applicant took the second applicant back to the general practitioner
because her swimming teacher had expressed concern about the marks on
her legs. The first applicant asked for a referral to hospital and an
appointment was made for 17 March 1998 with Dr W., a consultant
paediatrician.
- On 15 March 1998 the second
applicant hurt herself in the genital area while riding her bike. She
complained to her mother of hurting between her legs. Her mother did
not examine her and she did not tell the first applicant of the
incident.
- On 17 March 1998 the first
applicant took the second applicant to the appointment with Dr W. Dr
W. said that the bruising did not appear to be a skin disease and
admitted the second applicant to hospital for further examination.
The first applicant had to go to work but before leaving the hospital
he told Dr W. that his wife would arrive soon and there should be no
further examination or tests until she came and gave any necessary
consent.
- When the first applicant's wife
arrived one hour later, she found that a sample of the second
applicant's blood had been taken for testing, photographs had been
taken of her legs and the local authority had been notified. A social
worker informed her that Dr W. thought the second applicant had been
abused. The first applicant's wife then gave consent for a further
examination. Dr W. and a police surgeon examined the second
applicant's legs and genitalia. The second applicant was given no
explanation for the examinations and she was not questioned about the
allegations of abuse. Following the examination, Dr W. informed the
first applicant's wife that the second applicant had been sexually
abused and that it had probably been going on for eight months on
account of the bruising. The social worker interviewed the second
applicant generally, but asked no direct questions about sexual
abuse. No record was made of the interview. During the interview the
social workers told the first applicant's wife to ask the first
applicant and their eldest son to move out of the family home until
further investigations had taken place. At this point she recalled
that the second applicant had “hurt between her legs”
while on her bicycle. She informed the social worker, who said that
she would pass the information on to the doctor.
- At 17.30 that evening, when the
first applicant and his wife attempted to visit the second applicant
on the ward, a nurse told them that there were orders that the first
applicant should not be allowed to see her. This exchange was
witnessed by other people on the ward. News was passed through the
community and reached acquaintances in India. The following day,
hospital staff were correctly informed that there could be no
restrictions on visitors. The first applicant was thereafter
permitted to visit the second applicant in hospital, although all
visits were supervised on account of the suspicion that she had been
sexually abused.
- On 18 March 1998 the first
applicant's wife informed Dr W. that the second applicant had “hurt
between her legs” on her bicycle. Dr W. told her that there was
no doubt the second applicant had been sexually abused and advised
her that if she did not accept it, there was a risk that her other
children would be taken into care.
- On the same day two social
workers visited the applicants' home. The applicant's wife asked for
a second opinion on the cause of the bruising but the social workers
told her that they saw no point in obtaining a second opinion. They
did not, however, insist that the first applicant should leave the
family home; instead it was arranged that the first applicant's wife
should sleep in the room with her daughters.
- On 21 March 1998 the first applicant's wife noticed
that the second applicant had marks on her hands. An appointment was
made for the second applicant to see a dermatologist.
- On 24 March 1998 the dermatologist reported that the
marks on the second applicant's legs were caused by vasculitis.
- On 27 March 1998 the second applicant was diagnosed
with Schamberg's disease, a rare condition of the capillaries which
is manifested by the eruption of purple patches on the skin. She was
discharged from hospital. Dr W. wrote a letter to the first applicant
and his wife which stated that there was insufficient evidence to say
that the second applicant had been sexually abused and that the first
applicant should no longer be considered to be implicated in the
sexual or physical abuse of his daughter.
- The first applicant and his wife were unhappy with
what had happened and made a formal complaint to the NHS Trust. The
Trust set up an Independent Review Panel with two Assessors who were
consultant paediatricians experienced in child abuse cases. The Panel
report concluded that Dr W. had been right to admit the second
applicant to hospital but found that she had acted too quickly in
carrying out examinations. The report further noted that examinations
and photographs should not have been taken while no parent was
present; that while Dr W. was not to blame for misdiagnosing the
bruises, she should have monitored them and obtained a
dermatologist's opinion as a matter of urgency; that the first
applicant should have been properly consulted and interviewed; and
that Dr W. had attached far too much importance to the bruising,
neglecting other relevant information available from the first
applicant, his wife and the family doctor. Finally, the report noted
that Dr W. had, without convincing explanation, failed to write to
the first applicant with an explanation and an apology.
- On 9 March 2001 the applicants brought proceedings in
negligence against the local authority and hospital trust claiming
compensation for personal injury and financial loss. Both were
legally aided.
- On 22 November 2002 the County Court judge struck out
the claims, finding that no duty of care arose between the local
authority and the first applicant and that the hospital but not the
local authority had owed a duty of care to the second applicant. The
applicants appealed. Their appeals were joined to those of a number
of other appellants.
- On 31 July 2003 the Court of Appeal granted the second
applicant's appeal and allowed her claim to proceed against the local
authority as well as the hospital. The Legal Services
Commission, however, withdrew the second applicant's legal aid
certificate on the basis that it was no longer reasonable for her to
receive legal aid because the likely costs were disproportionate to
the value of the claim. On 4 April 2006 the second applicant's appeal
against the withdrawal was dismissed by an independent Funding Review
Committee, which agreed that the costs of pursuing the claim
considerably outweighed any likely award of damages.
- On 31 July 2003 the Court of Appeal dismissed the
first applicant's appeal together with the appeals of the other
appellants. The first applicant and the other appellants were granted
leave to appeal to the House of Lords.
- The House of Lords gave judgment in 2005 (see JD v
East Berkshire Community Health NHS Trust and Ors [2005] 2 AC 373). The question before the House of Lords in JD was whether
the parent of a minor child falsely and negligently said to have
abused or harmed the child could recover common law damages for
negligence against a doctor or social worker who, discharging
professional functions, made the false and negligent statement, if
the suffering of psychiatric injury by the parent was a foreseeable
result of making it and such injury had in fact been suffered by the
parent. The House of Lords concluded (Lord Bingham of Cornhill
dissenting) that there were cogent reasons of public policy for
holding that no common law duty of care should be owed to the parents
and it would not be just or reasonable to impose such a duty.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Section 8 of the Family Reform Act 1969
23. Section 8 of the
Family Reform Act 1969 provides as follows:
“Consent by persons over 16 to
surgical, medical and dental treatment
(1) The consent of a minor who has attained the age of
sixteen years to any surgical, medical or dental treatment which, in
the absence of consent, would constitute a trespass to his person,
shall be as effective as it would be if he were of full age; and
where a minor has by virtue of this section given an effective
consent to any treatment it shall not be necessary to obtain any
consent for it from his parent or guardian.
(2) In this section “surgical, medical or dental
treatment” includes any procedure undertaken for the purposes
of diagnosis, and this section applies to any procedure (including,
in particular, the administration of an anaesthetic) which is
ancillary to any treatment as it applies to that treatment.
(3) Nothing in this section shall be construed as making
ineffective any consent which would have been effective if this
section had not been enacted.”
24. In
relation to children under the age of sixteen, the House of Lords has
held that such minors have the right to consent on their own behalf
to a variety of medical procedures, as long as they fully understand
what is involved. Until the child achieves the capacity to consent,
however, the parental right to make the decision continues save only
in exceptional circumstances (see Gillick
v West Norfolk and Wisbech Area Health Authority
[1986] AC 112).
25. The
General Medical Council (“GMC”) guidelines for doctors in
relation to obtaining consent for the treatment of children provide
as follows:
“23.
You must assess a child's capacity to decide whether to consent to or
refuse proposed investigation or treatment before you provide it. In
general, a competent child will be able to understand the nature,
purpose and possible consequences of the proposed investigation or
treatment, as well as the consequences of non-treatment. Your
assessment must take account of the relevant laws or legal precedents
in this area. You should bear in mind that:
At age 16 a
young person can be treated as an adult and can be presumed to have
capacity to decide;
Under age
16 children may have capacity to decide, depending on their ability
to understand what is involved;
Where a
competent child refuses treatment, a person with parental
responsibility may authorise investigation or treatment which is in
the child's best interests. The position is different in Scotland,
where those with parental responsibility cannot authorise procedures
a competent child has refused. Legal advice maybe helpful on how to
deal with such cases.
Where a
child under 16 years old is not competent to give or withhold their
informed consent, a person with parental responsibility may authorise
investigations or treatment which are in the child's best interests.
This person may also refuse any intervention, where they consider
that refusal to be in the child's best interests, but you are not
bound by such a refusal and may seek a ruling from the court. In an
emergency where you consider that it is in the child's best interests
to proceed, you may treat the child, provided it is limited to that
treatment which is reasonably required in that emergency.
B. Legal
Aid Act 1988
26. The
statutory framework for civil legal aid is contained within Parts IV
and I of the 1988 Act.
27. A
civil Legal Aid Certificate can only be issued where the case has
sufficient merit to justify public funding. With limited exceptions,
every application for civil legal aid is subject to two statutory
tests: first, section 15(2) of the 1988 Act requires that the
applicant have reasonable grounds for taking, defending or being a
party to the proceedings (“the legal merits test”);
secondly, section 15(3)(a) of the 1988 Act provides that civil legal
aid might be refused if is unreasonable that the applicant should be
granted legal aid (“the reasonableness test”).
28. Factors
relevant to determining the reasonableness of a grant of legal aid
include, inter
alia,
a cost benefit analysis, the importance of the case to the applicant,
and whether the case is in the public interest.
29. Once
an applicant is granted legal aid, the merits are kept under review
throughout the case. Under the Civil Legal Aid (General) Regulations
1989, the Legal Aid Board has the power to discharge or revoke a
Legal Aid Certificate.
30. If a
certificate is discharged or revoked, the assisted person may appeal
to the Area Committee. If they remain dissatisfied with the decision,
they may seek to have the Area Committee's decision quashed by the
High Court by way of judicial review. It is possible to appeal
against a decision of the High Court on judicial review to the Court
of Appeal and (with leave) to the House of Lords.
III. RELEVANT INTERNATIONAL MATERIAL
- The Council of Europe's Convention for the Protection
of Human Rights and Dignity of the Human Being with regard to the
Application of Biology and Medicine: Convention on Human Rights and
Biomedicine (opened to signature at Oviedo on 4 April 1997) contains
the following principles regarding consent:
“Chapter II – Consent
Article 5 – General rule
An intervention in the health field may only be carried
out after the person concerned has given free and informed consent to
it.
This person shall beforehand be given appropriate
information as to the purpose and nature of the intervention as well
as on its consequences and risks.
The person concerned may freely withdraw consent at any
time.
Article 6 – Protection of persons not able to
consent
1. Subject to Articles 17 and 20 below, an
intervention may only be carried out on a person who does not have
the capacity to consent, for his or her direct benefit.
2. Where, according to law, a minor does not
have the capacity to consent to an intervention, the intervention may
only be carried out with the authorisation of his or her
representative or an authority or a person or body provided for by
law.
The opinion of the minor shall be taken into
consideration as an increasingly determining factor in proportion to
his or her age and degree of maturity.
3. Where, according to law, an adult does not
have the capacity to consent to an intervention because of a mental
disability, a disease or for similar reasons, the intervention may
only be carried out with the authorisation of his or her
representative or an authority or a person or body provided for by
law.
The individual concerned shall as far as possible take
part in the authorisation procedure.
4. The representative, the authority, the
person or the body mentioned in paragraphs 2 and 3 above shall be
given, under the same conditions, the information referred to in
Article 5.
5. The authorisation referred to in
paragraphs 2 and 3 above may be withdrawn at any time in the best
interests of the person concerned.
Article 8 – Emergency situation
When because of an emergency situation the appropriate
consent cannot be obtained, any medically necessary intervention may
be carried out immediately for the benefit of the health of the
individual concerned.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The first applicant complained that he was subjected
to grossly humiliating and distressing treatment contrary to Article
3 of the Convention, which provides as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
33. The Government
submitted that as the first applicant did not seek to rely on Article
3 before the domestic courts, he had failed to exhaust domestic
remedies. In the alternative, while the Government did
not doubt that the first applicant had suffered distress due to the
circumstances in which he found himself, they submitted that the
circumstances in issue did not come close to constituting
ill-treatment of the severity necessary to engage Article 3 of the
Convention. The Government therefore submitted that the Court should
reject as manifestly ill-founded the contention that any of the
matters at issue disclosed a violation of Article 3.
- The first applicant contended that the Convention only
required that he raise the substance of his complaint in the domestic
proceedings (Gasus Dosier- und Fördertechnik GmbH v. the
Netherlands, 23 February 1995, Series A no. 306 B). He
therefore submitted that as he had expressly set out in the domestic
proceedings the distress that he had felt and the degradation that he
had suffered in his community, he had exhausted domestic remedies.
The first applicant further submitted that in the present case,
“special elements” existed which brought his distress and
humiliation within the definition of degrading treatment for the
purposes of Article 3. In particular, he submitted that he was a
member of a close-knit Muslim community and his humiliation resounded
both through his community in the United Kingdom and overseas.
- 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, flows,
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 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 serious 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 (see
R.K. and A.K. v. the United Kingdom, no. 38000/05,
30 September 2008).
- In the present case, while the
Court does not doubt the first applicant's distress at events, and in
particular the fact that he was mistakenly suspected of abuse, this
cannot be regarded as constituting a special element in the sense
identified above. The second applicant had clearly suffered an injury
which could not be accounted for and it is not disputed that the
measures pursued, in good faith, the aim of safeguarding her health
and physical security.
- It follows that this complaint
must be rejected as manifestly ill founded and rejected pursuant
to Article 35 §§ 3 and 4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
- The second applicant complained that the withdrawal of
legal aid deprived her of effective access to court and thus violated
her rights under Article 6 § 1 of the Convention, which
provides, as relevant:
“1. In the determination of his civil rights
and obligations ... ... everyone is entitled to a fair and public
hearing within a reasonable time by an independent and impartial
tribunal established by law.”
39. The Government
submitted that the second applicant had failed to exhaust domestic
remedies as required by Article 35 § 1 of the Convention because
she did not seek to challenge the decision to discharge her Legal Aid
Certificate by way of judicial review. It was well established that a
final decision to revoke a legal aid certificate could be challenged
by judicial review (see R
(Martin) v Legal Services Commission
[2007] EWHC 1786 (Admin), in which the claimant challenged the
discharge of a legal aid certificate in educational negligence
proceedings). In principle, therefore, judicial review offered an
effective route of challenge in meritorious cases. Without commenting
on the merits of such an application, the Government submitted that
the second applicant could have challenged the decision of the Legal
Services Commission on the ground that it failed to take into account
the novelty of her claim. If a judicial review application had been
unsuccessful, it would have been possible for the second applicant to
appeal to the Court of Appeal and (with leave) to the House of Lords.
40. The second applicant
submitted that she had exhausted domestic remedies because, according
to the Court's case law, she was only required to exhaust those
domestic remedies which had a reasonable prospect of success. Her
representatives had advised her that a judicial review application
would be bound to fail because judicial review only permitted her to
challenge the procedural propriety of an impugned decision and the
withdrawal decision had been taken following the proper application
of the standard cost-benefit analysis.
41. The second applicant
further submitted that as her legal aid certificate had been
withdrawn, the legal aid which she would have needed to fund an
application for leave to move for judicial review would not have been
forthcoming either. The Government did not accept that submission.
They contended that there was no evidence that legal aid would not
have been forthcoming and, as far as they were aware, no application
for legal aid was ever made.
42. The Court reiterates
the importance of the right of access to a court, having regard to
the prominent place held in a democratic society by the right to a
fair trial (Airey
v. Ireland,
judgment of 9 October 1979, Series A no. 32, p. 12-13,
§ 24). The right is not, however, absolute and it may be
subject to limitations (Edificaciones
March Gallego S.A. v. Spain,
judgment of 19 February 1998, 1998-I, § 34 and Garcia
Manibardo v. Spain,
no. 38695/97, § 36), but these limitations must not
restrict or reduce access in such a way or to such an extent that the
very essence of the right is impaired. In this regard the Court
recalls that the rights guaranteed under the Convention must be
practical and effective and not theoretical and illusory (Airey
v. Ireland,
cited above, at § 24; McVicar v. the United
Kingdom, no. 46311/99, § 47, ECHR 2002 III).
Furthermore, a limitation will not be compatible with Article 6 §
1 if it does not pursue a legitimate aim and if there is not a
reasonable relationship of proportionality between the means employed
and the aim sought to be achieved (Ashingdane
v the United Kingdom,
judgment of 28 May 1985, Series A no. 93, p. 24, §
57; Prince Hans-Adam
II of Liechtenstein v. Germany
[GC], no. 42527/98, § 44, ECHR 2001 – VIII,
mutatis mutandis).
43. Although there is
no obligation under Article 6 § 1 of the Convention to make
legal aid available for all disputes in civil proceedings, where
those proceedings involve complicated points of law, and the
applicant cannot afford legal representation, the denial of legal aid
could amount to a restriction on his or her access to court (Airey
v. Ireland,
cited above, at § 24). Where it results in a
restriction on the right of access to court, the refusal or
withdrawal of legal aid will only be compatible with Article 6 §
1 if it is both pursuant to a legitimate aim and proportionate to
that aim.
- The principle question for the Court is whether the
restriction was legitimate and proportionate. The Court recognises
that a legal aid system can only operate if machinery is in place to
enable a selection to be made of those cases qualifying for it (see,
among other authorities, the Commission's decisions of 10 July 1980
in X v. the United Kingdom, no. 8158/78, Decisions and Reports
21, p. 95, and Garcia v. France, no. 14119/88). In the
present case the Court notes that the reason relied on by the Legal
Aid Board and the Independent Funding Review Committee for refusing
the second applicant's application for legal aid – namely that
the cost of funding the case would outweigh any likely award for
damages – is expressly contemplated in the Legal Aid Act 1988
and was undoubtedly intended to meet the legitimate concern that, in
the absence of any point of public interest, public money should only
be made available to applicants whose claims were likely to result in
an award of damages that was greater than the cost of funding the
case.
- The Court further observes that the legal aid system
in the United Kingdom offers individuals substantial guarantees to
protect them from arbitrariness (Del Sol v. France, no.
46800/99, § 26, ECHR 2002 II). In particular, the Court has
regard to the fact that applicants who are refused legal aid or whose
certificates are discharged or withdrawn can appeal to an Independent
Funding Review Committee. If they are not satisfied with the
Committee's decision, they can apply to have it quashed by way of
judicial review.
- In the light of the foregoing, the Court finds that
even if the withdrawal of legal aid constituted a restriction on the
second applicant's right of access to court, it was both legitimate
and proportionate.
47. The Court therefore
finds that the second applicant's complaint under Article 6 § 1
of the Convention is manifestly ill-founded.
It follows that this complaint must be rejected pursuant to Articles
35 § 3 and 4 of the Convention.
- Consequently, it is not
necessary for the Court to consider whether the second applicant had
exhausted domestic remedies.
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The applicants complained that their separation during
the ten days that the second applicant was in hospital violated their
right to respect for their private and family life under Article 8 of
the Convention. The second applicant further complained that the
decision to take a blood sample and photographs without consent
constituted an unjustified and disproportionate interference with her
physical and moral integrity.
- Article 8 provides that:
“1. Everyone has the right to respect for his
private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
A. Admissibility
- The Government have accepted that the applicants'
complaints under Article 8 of the Convention are admissible.
The Court agrees that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further agrees that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
1. The parties' submissions
a. The Government
- While the Government accepted that there was no legal
basis on 17 March 1998 for the hospital staff to prevent the
first applicant from visiting the second applicant, they submitted
that the following day, on 18 March 1998, hospital staff were
correctly informed that there could be no restriction on visitors.
Thereafter, the first applicant was permitted to visit the second
applicant in hospital. During her stay in hospital the second
applicant was visited by both her parents and by other relatives.
- The Government further submitted that only nine days
elapsed before the erroneous diagnosis was corrected, and during this
short period the second applicant remained in hospital, at least in
part at her mother's request.
- Following the correct diagnosis, extensive
investigations were carried out by the NHS Trust and by social
services into the events that had occurred.
- With regard to the alleged interference with the
second applicant's physical and moral integrity, the Government
submitted that the medical tests and treatment pursued the legitimate
aim of seeking to establish with appropriate urgency what had caused
her alarming symptoms. Furthermore, they corresponded to the pressing
social need of seeking to treat a child with alarming symptoms, and
were pressing to that end.
- The Government did not accept that the medical
procedures and treatment were contrary to section 8 (1) of the Family
Law Reform Act, which only applied to children who had reached the
age of sixteen. Rather, the correct question to be asked by medical
practitioners, under the general law and under the guidance of bodies
such as the GMC, was whether there was informed consent and, in the
absence of informed consent, whether treatment was justified by the
urgency of the situation.
- The Government submitted that any suggestion that the
medical procedures would not have had to be carried out had the
second applicant been interviewed fully was pure speculation.
Moreover, they submitted that some guidelines, such as those of the
Standing Medical Advisory Committee for the Secretaries of State for
Social Services and Wales, indicated that in situations of suspected
abuse at initial contact it was preferable to keep contact to a
minimum.
- Finally, the Government relied on the Court's recent
judgment in R.K. and A.K. v. the United Kingdom, no. 38000/05,
§ 36, 30 September 2008, in which the Court held that
“mistaken judgments or assessments by
professionals do not per se render child-care measures incompatible
with the requirements of Article 8. The authorities, medical and
social, have duties to protect children and cannot be held liable
every time genuine and reasonably-held concerns about the safety of
children vis-à-vis members of their families are proved,
retrospectively, to have been misguided.”
b. The applicants
- The applicants submitted that a great deal of damage
was done during the nine day period when the second applicant was in
hospital. First, the first applicant was accused of sexually abusing
the second applicant; secondly, the first applicant was initially
asked to leave the family home, although this did not prove necessary
in the end; thirdly, on the day the second applicant was admitted to
hospital, the first applicant was publicly barred from visiting her;
finally, the accusations of sexual abuse led to derogatory
assumptions about the first applicant which damaged his reputation.
- In particular, while the applicants accepted that the
first applicant was eventually permitted to visit the second
applicant in hospital, they submitted that all subsequent visits were
monitored and the monitoring compounded his humiliation.
- Moreover, the applicants complained that the
recommendations of the Independent Review Panel were not all
followed. In particular, they complained that Dr W. did not issue
them with a written apology.
- The second applicant further complained that
photographs and a blood test were taken against her parents' express
wishes during the one hour period in which neither parent was present
at the hospital, which constituted an unjustified interference with
her moral and physical integrity, protected under the private life
rubric of Article 8 of the Convention. The photographs included
intimate photographs of her upper thighs. The second applicant
submitted that this was completely contrary to section 8(1) of the
Family Law Reform Act 1969 and the guidelines of the General Medical
Council. Moreover, the hospital did not seek to justify the
procedures on the grounds of urgency and in any case the Independent
Review Panel clearly stated that the case did not meet the criteria
for urgent examination as set out by the Local Area Child Protection
Committee.
- The second applicant also complained that if the
correct procedures had been followed, she would have been interviewed
and this would have avoided the need for any forensic investigation.
She also pointed to the fact that relevant information concerning her
injuries had been ignored. If the doctors had accepted the account of
the bicycle incident, there would have been nothing to indicate
sexual abuse.
2. The Court's assessment
a. Hospital visiting restrictions
64. It is not disputed that the
initial decision to prevent the first applicant from visiting the
second applicant in hospital constituted an interference with both
applicants' right to respect for their family life. 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
measure pursued the legitimate aim of protecting the rights of
others, namely those of the second applicant. The Government have,
however, accepted that there was no legal basis for the measure and
the Court therefore finds that the decision to prevent the first
applicant from visiting the second applicant on the night of her
admission to hospital violated both applicants' rights under Article
8 of the Convention.
- The Court observes, however,
that the following day the first applicant was permitted to visit the
second applicant, albeit under supervision. This arrangement
continued for the duration of her stay in hospital.
- The Court therefore accepts that
the interference with the applicants' right to respect for their
family life continued until 27 March 1998, when the second applicant
was released from hospital and the doctors and social workers
concluded that there was insufficient evidence of abuse. It notes
that it was common ground between the parties that the continued
interference was in accordance with the law and pursuant to a
legitimate aim, namely the protection of the rights of the second
applicant. The only remaining question is therefore whether the
interference was necessary in a democratic society.
- The Court reiterates that the
question of whether an interference is “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 are “relevant and sufficient”. In considering
the reasons adduced to justify the measures, 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.
- 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. v. the United Kingdom, no.
38000/05, § 36, 30 September 2008).
- In the present case, the second
applicant had presented at hospital with an unexplained injury which
could have been the result of physical abuse. On further examination,
there also appeared to be evidence of sexual abuse. The Court
therefore finds that in view of the available evidence, it was
reasonable for Dr W. to suspect abuse and consequently to contact
social services. This view would appear to have been supported by the
Independent Review Panel, which found that Dr W. could not be blamed
for initially misdiagnosing the bruising. Moreover, while it must
have been frustrating for the first applicant and his wife when the
information about the bicycle accident was apparently ignored, the
Court finds that the continued suspicions of the local authority were
justified in the circumstances. First, as the parents were themselves
under suspicion, any explanation that they provided understandably
had to be treated with caution. Secondly, the bicycle accident only
accounted for one of the second applicant's apparent injuries. Even
if Dr W. had accepted the mother's account, the bruising remained
unexplained and abuse could therefore not be ruled out.
- The Court is, however, concerned
about two of the Independent Review Panel's other findings. First, it
notes that the Panel were critical of the decision not to consult the
second applicant about the allegations of abuse. The Government, on
the other hand, have submitted that some guidelines indicate that
contact with suspected victims of child abuse should be kept to a
minimum. It is not for the Court to state which approach doctors and
social workers should employ when dealing with such cases and, in the
circumstances of this case, it is not necessary for it to do so. In
the absence of a medical diagnosis for the bruising, it is unlikely
that any denial by the second applicant would have been, or indeed
could have been, taken at face value. It is therefore unlikely that
interviewing the second applicant would have allowed the doctors and
social workers to rule out abuse as a possible cause of her injuries
at an earlier stage.
72. Of greater concern is the Panel's
finding that Dr W. should have obtained a dermatologist's opinion as
a matter of urgency. A dermatologist was only consulted on 21 March
1998, four days after admission, when the second applicant's mother
noticed that she also had marks on her hands. On 24 March 1998 the
dermatologist noted that the marks were caused by vasculitis, and on
27 March 1998 Schamberg's disease was diagnosed. It would therefore
appear that if the dermatologist had been consulted immediately as
recommended by the Panel, the second applicant's condition could have
been diagnosed some days earlier.
- The Government have not
submitted any evidence which would indicate either that there was no
reason for Dr W. to consult a dermatologist earlier than she did, or
that even if she had, Schamberg's disease could not have been
diagnosed any earlier. The Court is therefore satisfied that
while there were relevant and sufficient reasons for the authorities
to suspect abuse at the time the second applicant was admitted to
hospital, the delay in consulting a dermatologist extended the
interference with the applicants' right to respect for their family
life and was not proportionate to the legitimate aim of protecting
the second applicant from harm.
- Consequently, the Court finds that there has been a
violation of the applicants' right to respect for their family life
under Article 8 of the Convention.
b. Tests conducted on the second applicant without
parental consent
- The Court considers that the
decision to take a blood test and photograph the second applicant
against her parents' express instructions gave rise to an
interference with her right to respect for her private life and, in
particular, her right to physical integrity (see X and Y v.
the Netherlands, 26 March 1985, § 22, Series A no. 91;
Pretty v. the United Kingdom, no. 2346/02, §§
61 and 63, ECHR 2002 III; Y.F. v. Turkey, no.
24209/94, § 33, ECHR 2003 IX; and Glass v. the
United Kingdom, no. 61827/00, § 70, ECHR 2004 II).
- The Court would add that it has not been contested
that the hospital was a public institution and that the acts and
omissions of its medical staff were capable of engaging the
responsibility of the respondent State under the Convention.
- Domestic law and practice clearly requires the consent
of either the patient or, if they are incapable of giving consent, a
person with appropriate authorisation before any medical intervention
can take place. Where the patient is a minor, the person with
appropriate authorisation is the person with parental responsibility.
This fully accords with the Council of Europe's Convention on Human
Rights and Biomedicine (see Glass v United Kingdom, cited
above, § 75).
- In the present case the patient was nine years' old.
It has not been suggested that she had the capacity to consent to any
medical intervention. The consent of either the first applicant or
his wife was therefore required before any medical intervention could
take place. On leaving the hospital on 17 March 1998, the first
applicant informed the medical staff that no further tests should be
carried out until his wife arrived in approximately one hour's time.
These instructions were confirmed by his wife in a telephone call to
the hospital.
- In view of her parent's express instructions, the only
possible justification for the decision to proceed with the blood
test and photographs was that they were required as a matter of
urgency. In this regard, the Court does not accept the Government's
submission that there was a pressing social need to treat the second
applicant's symptoms. There is no evidence to suggest that the second
applicant's condition was critical, or that her situation was either
deteriorating or was likely to deteriorate before her mother arrived.
Moreover, it has not been suggested that she was in any pain or
discomfort. Finally, there was no reason to believe that her mother
would withhold consent, and even if she had, the hospital could have
applied to the court for an order requiring the tests to be
conducted. In the circumstances, the Court can find no justification
for the decision to take a blood test and intimate photographs of a
nine-year old girl, against the express wishes of both her parents,
while she was alone in the hospital.
- The Court therefore finds that the interference with
the second applicant's right to respect for her private life was not
in accordance with the domestic law and therefore violated her rights
under Article 8 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The first applicant complained under Article 13 that
the domestic court's finding that the local authority did not owe him
a duty of care deprived him of an effective remedy for his complaints
under Articles 3 and 8 of the Convention. The second applicant
complained under Article 13 that the withdrawal of legal aid deprived
her of an effective remedy within the national legal system for her
complaint under Article 8 of the Convention.
82. Article 13 provides 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.”
A. Admissibility
- The Government have accepted that the first
applicant's complaint under Article 13 of the Convention,
insofar as it relates to the complaint under Article 8 of the
Convention, is admissible. The Court agrees that it is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further agrees that it is not inadmissible on any
other grounds. It must therefore be declared admissible. The Court
finds, however, that the first applicant's complaint under Article 13
read together with Article 3 of the Convention is manifestly
ill-founded, as it has already held that the first applicant's rights
under Article 3 are not engaged.
- The Court also finds that the
second applicant's complaint under Article 13 read together with
Article 8 of
the Convention is manifestly ill-founded. Unlike the first applicant,
the second applicant was able to bring an action for damages against
the local authority, but she did not pursue this action following the
withdrawal of legal aid. The Court has already held that her
complaint under Article 6 § 1 of the Convention was manifestly
ill founded as the withdrawal of legal aid pursued a legitimate
aim and was proportionate to that aim. For the same reasons, the
Court finds that the second applicant's complaint under Article 13 is
also manifestly ill-founded.
B. Merits
1. The parties' submissions
a. The Government
- In the particular circumstances of this case, the
Government 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 of the Convention. Although they submitted
that such a remedy has since been provided by sections 7 and 8 of the
Human Rights Act 1998, the Government accepted that the Human Rights
Act only applied in respect of acts occurring after 2 October 2000.
b. The first applicant
- The first applicant re-iterated that he could not
avail himself of the Human Rights Act 1998 because the events in
question took place before 2 October 2000. He therefore had no
enforceable right to compensation, which constituted a violation of
his rights under Article 13 of the Convention read together with
Article 8.
2. 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 first
applicant's complaint about the interference with his right to
respect for his family life was 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 his rights under Article 13 of the
Convention.
V. 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 relation to the
complaints under Articles 8 and 13, the first applicant claimed GBP
10,000 (EUR 11,101) in respect of non-pecuniary damage. He claimed a
further GBP 32,182.95 (EUR
35,722.43) in
respect of pecuniary loss, including loss of earnings, a visit to his
mother in Canada, a visit to his father in India, twenty-five
counselling sessions and Legal Aid Contributions.
- The
Government submitted that these sums were excessive. With regard to
the claim for non-pecuniary damage, they relied on the case of T.P.
and K.M. v. the United Kingdom [GC], no. 28945/95, ECHR 2001 V
(extracts), in which the applicants were each awarded GBP 10,000 in
respect of a separation which lasted a year. In the present case the
allegations concerned a period of only nine days, and for the
majority of this period the first applicant was permitted to visit
his daughter under supervision. With regard to the claim for
pecuniary damage, the Government submitted that no payment should be
made to the first applicant as he has failed to demonstrate a causal
link between the violation and the alleged loss. In any case they
submitted that counselling would have been available without cost
through the National Health Service.
- The Court recalls the judgment in T.P. and K.M. v.
the United Kingdom, 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. In
the present case the Court has found that the violation of the first
applicant's rights under Article 8 lasted only a matter of days, and
for most of this period he continued to have contact with his
daughter, albeit under supervision. The Court
therefore awards the first applicant EUR 2,000 in respect of
non pecuniary damage as a result of the violation of Article 8.
In doing so, it takes into account the humiliation experienced by the
first applicant after he was publicly barred from the second
applicant's ward without any legal basis.
- The Court makes no award in
respect of pecuniary damage as the first applicant has failed to
establish the existence of a causal link between the violation of his
rights under Articles 8 and 13 of the Convention and the sums
claimed.
- The second applicant claimed GBP
5,000 in respect of non-pecuniary damage arising from the violation
of Article 8 of the Convention. As this was the sum she believed she
would have received in damages before the domestic courts, she
claimed a further GBP 2,153.20 to include interest (at 2% per annum)
from the date of injury to the date of judgment and interest (at 8%
per annum) from the date of the unpaid judgment to the date of the
just satisfaction claim. In awarding damages, she submitted that the
Court should take into consideration the humiliation that the
allegations of child abuse had caused her and her family. She further
submitted that she had suffered mental distress as a result of the
events of 1998, and in particular had experienced anxiety and
depression. The experience had also impacted on her relationship with
her father, as she blamed herself for his clinical depression.
Finally, she submitted that her marriage prospects may have been
greatly reduced on account of the allegations of abuse.
- The second applicant claimed a
further GBP 1,300 in respect of pecuniary damage. This figure was to
cover the cost of ten future rehabilitative counselling sessions.
- The Government again submitted
that in view of the Grand Chamber's judgment in T.P. and
K.M. v. the United Kingdom, the sum claimed for non-pecuniary
damage was excessive. They further submitted that the sum claimed for
counselling was speculative and should not be allowed.
- With regard to the violation of the second applicant's
physical integrity, the Court recalls its judgment in Y.F. v.
Turkey, no. 24209/94, ECHR 2003 IX, in which the
applicant was awarded EUR 4,000 after she was forced to undergo a
gynaecological examination. The Court further recalls its judgment in
Glass v. United Kingdom, in which the applicant was awarded
EUR 5,000 after he was administered diamorphine contrary to his
mother's express wishes. It is noted, however, that the applicant in
Glass was gravely ill and there were other aggravating
factors. Without underestimating the distress that the nine-year old
second applicant undoubtedly experienced, the Court observes that the
intervention in the present case was not as invasive as the
interventions in Y.F. and Glass. Taking full account of
her age, and the intimate nature of the photographs which were taken
while she was alone in hospital, together with the associated
interference with her right to respect for her family life, the Court
awards the second applicant EUR 4,500 in respect of
non-pecuniary damage.
- The Court makes no further award to the second
applicant in respect of pecuniary damage as the claim for counselling
is speculative.
B. Costs and expenses
- With regard to the first applicant's complaint, Levi
Solicitors claimed GBP 12,460.42 in respect of costs and expenses,
while the AIRE Centre claimed GBP 10, 520.
- In relation to the second applicant's complaint, Levi
Solicitors claimed GBP 4,400 in respect of costs and expenses, while
the AIRE Centre claimed GBP 10, 816.
- The Government submitted
that the number of hours claimed (215 for the first applicant
and 155 for the second applicant) were clearly excessive. In
particular, they submitted that it was unreasonable for both
applicants' claims to have been dealt with separately as this had led
to very considerable increased expense.
- 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, the Court finds that the involvement of two
lawyers and the decision to deal with the two applications separately
has led to considerable duplication. Consequently, regard being had
to the information in its possession and the above criteria, the
Court considers it reasonable to award the applicants jointly the sum
of EUR 15,000 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
Joins the
applications;
Declares
the first applicant's complaint under Article 3 of the Convention
and the second applicant's complaint under Article 6 § 1 of the
Convention inadmissible and the remainder of the application
admissible;
Holds that
there has been a violation of the first and second applicant's
rights under Article 8 of the Convention;
Holds that
there has been a violation of the first applicant's rights under
Article 13 of the Convention;
5. Holds
(a) that the respondent State is to
pay, within three months of 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 on the date of settlement:
(i) EUR 2,000 (two thousand euros),
plus any tax that may be chargeable, to the first applicant in
respect of non-pecuniary damage;
(ii) EUR 4,500 (four thousand five
hundred euros), plus any tax that may be chargeable, to the second
applicant in respect of non-pecuniary damage;
(iii) EUR 15,000 (fifteen thousand
euros), plus any tax that may be chargeable, to the applicants
jointly 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;
6. Dismisses
the remainder of the applicants' claim for just satisfaction.
Done in English, and notified in writing on 23 March 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş
Aracı Lech Garlicki
Deputy Registrar President
