Information Note on the Court’s case-law No. 128
March 2010
A.D. and O.D. v. the United Kingdom - 28680/06
Judgment 16.3.2010 [Section IV]
Article 8
Article 8-1
Respect for family life
Failings of local authority in conducting risk assessment of child with brittle bone disease: violation
Facts – The first applicant is the second applicant’s mother. During medical examinations a few months after the second applicant’s birth, physicians noticed fractures to his ribs, which a paediatrician concluded had been sustained “non-accidentally” while dismissing the possibility, raised by the mother, that the child might have Osteogenesis Imperfecta (brittle bone disease). The local authority placed the child on the “at risk” register and, on receipt of a report from a professor of paediatric radiology concurring with the paediatrician’s conclusions, applied to a county court for an interim care order, which was granted in May 1997. The mother, her partner and the child were required to relocate to a family resource centre some 150 miles (240 kilometres) away so that a risk assessment could be made. They remained there for twelve weeks. Owing to ambiguities in the instructions it received, the centre conducted a parenting assessment instead of a risk assessment. In the absence of a risk assessment, the local authority concluded that the child could not safely be placed with his parents and in August 1997 obtained a second interim care order. The child was placed with foster parents while a risk assessment was carried out by the National Society for the Prevention of Cruelty to Children (NSPCC). The mother and her partner were allowed contact five days a week. On 27 October the NSPCC informed the local authority that the child should be returned to his parents without delay. On 12 November, while still in foster care, the child fell and was taken to hospital where X‑rays showed his bones to be thin and osteopenic. On 20 November the NSPCC submitted their risk assessment, which recommended that the child be returned quickly to his parents’ care. The child was returned on 8 December 1997. Following a joint medical report, the interim care order was discharged in July 1998. The mother subsequently complained to the local authority about the handling of the case and, following an investigation which found some of the authority’s practices to have been deficient, brought an action for damages against the authority on behalf of herself and the child. The claims were rejected and the applicants’ appeal against that decision was dismissed. The Court of Appeal held that the mother had not been owed a duty of care by the local authority and that there was no evidence that the child had suffered harm other than transient distress.
Law – Article 8: The removal of the child from the first applicant’s care constituted interference with the applicants’ right to respect for their family life that was in accordance with the law and pursued the legitimate aim of protecting the rights of the child.
As to whether that interference had been necessary in a democratic society, the Court reiterated that mistaken judgements or assessments by professionals did not per se render childcare measures incompatible with the requirements of Article 8. The authorities had duties to protect children and could not be held liable every time genuine and reasonably held concerns about the safety of children vis-à-vis members of their family were proved, retrospectively, to have been misguided. Osteogenesis Imperfecta was a very rare condition that was difficult to diagnose in small infants. A considerable number of medical experts had been consulted in the course of the investigation into the child’s injuries, and in their opinion there was no evidence to suggest the disease or to indicate that further investigations were desirable. Although the experts had later agreed that the child had suffered from the disease from birth, it did not follow that the medical evidence previously relied on had been inadequate, confused or inconclusive. The Court therefore considered that the authorities could not be faulted for not reaching an earlier diagnosis of the disease or, in the absence of such a diagnosis, acting on the assumption that the injury could have been caused by the child’s parents.
The Court was not satisfied, however, that it had been necessary to relocate the family far from their home for the purpose of conducting a risk assessment. Moreover, it noted that there had been a number of fundamental errors by the local authority in the handling of the case. It was evident that the failure to conduct a risk assessment during the applicants’ stay in the Family Assessment Centre had been a relevant factor in the decision to place the child in foster care. When finally produced, the risk assessment report had recommended a speedy return of the child to his parents. There had therefore been a real chance that, had the proper assessment been conducted earlier, the child might never have been placed in foster care. Furthermore, the Court was not satisfied that less intrusive measures had not been available for conducting the risk assessment, such as placement with relatives, and it found that the local authority had dismissed these possibilities too quickly. Finally, the six-week delay in returning the child to his parents after the NSPCC’s recommendation had not been reasonable. Accordingly, while there had been relevant and sufficient reasons for the authorities to take initial protective measures, the subsequent failings of the local authority had both extended and exacerbated the interference with the applicants’ right to respect for their family life and were not proportionate to the legitimate aim of protecting the child from harm.
Conclusion: violation (unanimously).
Article 13: The Court found a violation in respect of the first applicant, as no means had been open to her of bringing an action for compensation against the local authority at the time. The second applicant had, however, been able to bring a claim in negligence. That claim had failed because there was no evidence to suggest that he suffered from a recognised psychiatric disorder as a result of the period of separation from his parents and he could not, therefore, show that he had suffered any justiciable damage. Even if it did not always produce the outcome the applicant hoped for, the right to bring a claim in negligence and to appeal against an unfavourable decision would normally constitute an effective domestic remedy.
Conclusion: violation in respect of first applicant (unanimously); no violation in respect of second applicant (unanimously).
Article 41: EUR 15,000 jointly in respect of non-pecuniary damage.
(See also R.K. and A.K. v. the United Kingdom, no. 38000/05, 30 September 2008, Information Note no. 111)
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This summary by the Registry does not bind the Court.
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