A.D. AND O.D. v. THE UNITED KINGDOM

FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 28680/06
by AD & OD
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 21 October 2008 as a Chamber composed of:

Lech Garlicki, President,
Nicolas Bratza,
Giovanni Bonello,
Ljiljana Mijović,
Ján Šikuta,
Mihai Poalelungi,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,

Having regard to the above application lodged on 12 July 2006,

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

Having deliberated, decides as follows:

THE FACTS

The first applicant, A.D, is a British national who was born in 1966 and lives in Whitefield, Manchester. The second applicant, her son, O.D., is a British national born in 1966, resident with his mother. They are represented before the Court by Ms N. Mole, a lawyer working for the AIRE Centre, London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr J. Grainger of the Foreign and Commonwealth Office, London.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1. O.D.'s first months

On 8 August 1996, O.D. was delivered by caesarian section at 36 weeks because of his failure to grow in the womb. He weighed 1.9 kg. He was not diagnosed with any particular condition. He was initially fed via feeding tube.

The first applicant was concerned about O.D.'s small size and his failure to pick up weight. On 24 October 1996, she asked her general practitioner to refer him to a paediatrician. She was referred to Dr S, the paediatrician who had seen O.D. after his birth. Following a consultation in November 1996, the first applicant was told that the situation would be reviewed in six weeks. On 2 January 1997, as O.D.'s weight and length had fallen below the third centile chart, tests were carried out on 16 January 1997.

On 21 January 1997, the consultant radiologist informed Dr S. that X-rays revealed evidence of three, possibly four, healing fractures to the right ribs. The first applicant and her partner were informed the same day.

On 23 January 1997, O.D. was admitted to hospital as a patient and a full skeletal survey carried out, which confirmed four fractures. The local authority were informed.

The first applicant took legal advice and also undertook some research, herself noting that O.D. had eight of the ten indicators for the condition of Ostengesis Imperfecta ("OI" or brittle bone disease), including the genetic factor of her own joint laxity or double-jointedness. She states that she raised this possibility with Dr S. who dismissed it without giving any reason.

On 24 January 1997, a report by Dr S. concluded that the injuries were sustained "non-accidentally" due to the lack of explanation and the nature of the fractures, although it noted that O.D.'s parents had appeared very caring and concerned for his welfare at their three meetings.

On 30 January 1997, the local authority held a case conference and placed O.D on the "At Risk Register". At the meeting Dr S. mentioned that she had looked at O.D.'s bones to see if they appeared thin but considered that they were normal.

The social worker, Ms M., assigned to the case, conducted six sessions with the family. When the first applicant raised the possibility of OI with her, she was told that she was in denial over the injuries to her son. The first applicant and her partner were very distraught over O.D.'s feeding problems and injuries at the same time as being accused of child abuse.

The first applicant attended assessment meetings held at the Upland Centre, the purpose of which she was told was to assess the risk she and her partner posed to O.D. She and her partner fully co-operated and attended all meetings.

On 13 March 1997, O.D. was admitted to hospital following further weight loss and a nasogastric tube was inserted.

On 24 March 1997, the first applicant and her partner removed O.D. from the ward, against medical advice, as he had contracted a viral infection rampant on the ward, which caused vomiting and diarrhoea which was negating any advantages of feeding by tube. They took him to see a consultant paediatric gastroenterologist concerning his slow weight gain, but did not attend all appointments and cancelled a stomach biopsy as they felt he was well and gaining weight.

On 30 April 1997, the local authority received a report dated 24 April 1997 from Professor C., a professor of paediatric radiology, which confirmed the fractures to the ribs, which she considered had been inflicted on two separate occasions and she concurred with Dr S. that "the rib fractures have occurred from squeezing" and that "rib fractures in children are extraordinarily rare except in non-accidental injury...". She found that his bone texture was normal and there was nothing to indicate any underlying bone disease. She stated that there was no other medical test that would help to identify anything further about the rib fractures. She also noted that the head ultrasound revealed a bright area in the brain cortex, in relation to which a small bleed could not be excluded which caused her some concern as to shaking but on balance she thought the results normal.

2. Institution of care proceedings

On 1 May 1997, the local authority applied to the County Court for an interim care order. At the same time a guardian ad litem was appointed on behalf of O.D. She expressed the opinion that the family should stay together.

On 6 May 1997, at the statutory review meeting, it was noted that Dr S. had undertaken a test due to concerns about bone disease and that the result was used by Professor C. The local authority were informed that a police investigation was not felt appropriate as there was nothing to suggest that the injuries flowed from a criminal assault. The hope that the family would be placed in a protective unit where OI could be monitored by professionals was put forward. The first applicant and her partner were present at this meeting. The applicants disputed that Dr S. had in fact carried out a test for OI, such event not being proved by the belief of one or more of the professionals at the meeting that such test had been carried out.

3. First interim care order

On 7 May 1997, the County Court granted an interim care order. It was proposed in court that the family relocate to the St John's Family Resource Centre in Bristol, some 150 miles away. The first applicant claimed that neither she nor her partner had either been consulted about this possibility or warned. They had to go directly to the Centre from the court room, leaving their own comfortable well-equipped home and their network of extended family and friends. The first applicant consented to the care order but submitted that she had had no real choice, since if she had resisted the measure, O.D. might have been placed in foster care straight away; she had received advice that if she did not oppose the assessment procedure, it would be less likely that they would be separated. While her solicitors had obtained an expert report by Dr P. suggesting that O.D. suffered from OI, she had been advised not to rely on it in the proceedings, since Dr P. meanwhile had been discredited as a medical expert acceptable in the courts due to violations of professional ethics in the course of previous legal proceedings.

The first applicant stated that she was horrified by the conditions at the Centre, which was located in a crime-ridden, rough area of Bristol. The family had to live in one room with a small kitchenette and were not allowed to cook any meals after 7.00 p.m. The house was dirty and occupied by problem families (crime, drugs and alcohol). Initially they were only allowed to leave the Centre for two hours per day. The latter restriction was lifted on 4 June 1997 against the wishes of Ms M. and the local authority. During their stay, the first applicant and her partner had to claim benefits which they had not done previously. During their stay, permission was refused to allow the family to leave the Centre for two nights to attend the wedding of the first applicant's sister; they were only allowed to attend the actual ceremony and not the reception itself. According to the Government however, the first applicant's evidence in the domestic care proceedings was at odds with this description: she stated on 15 July 1997 that the physical surroundings were better than they had feared and that the other residents were friendly and helpful. There had also been no restriction on the first applicant leaving the centre alone; the only requirement had been that if she left with O.D. that they were accompanied by a member of staff. From 16 May she was allowed to take him out unaccompanied for two hours a day, and after 4 June all restrictions were lifted. They also had overnight stays away from the hostel and a day long visit to Manchester.

The family remained at the centre for twelve weeks. The first applicant was under the impression, as had been stated in court, that the assessment to be made was of the risk posed to O.D. by her and her partner. The keyworker at the Centre understood that a parenting assessment was to be carried out. When the letter of instruction was at last sent to the Centre, it asked for their opinion on the standard of care provided to O.D. and their ability to care for him.

In the Centre's report of 30 July 1997 compiled by Miss C.H. on the placement, in which aims were stated as being to assess the future risk posed to O.D. by his parents, to assess their handling and interaction with the child and to assess their parenting skills, it was stated that the couple presented as being very capable of caring for O.D. and that both appeared to be committed, with a willingness to accept the advice of professionals although their level of anxiety had been high. Concerns remained however about his feeding difficulties and limited weight gain, as O.D. remained substantially below the third centile weight for a child of his age. In a further report on 2 August 1997, Miss C.H. confirmed that until there was clarity about the cause of the injuries the risk remained high.

While in Bristol, O.D. had been seen by a consultant clinical geneticist who reported that OI or some other collagen abnormality was no more than one possible explanation for O.D.'s medical history; in particular as it was rare to have this degree of growth retardation in the absence of multiple long fractures, other causes for the failure to thrive should be sought. He also commented that continuing emotional stress in the family should be seriously considered as a possible aggravating factor. He noted that further investigation might include a skin biopsy to assess collagen profiles but that it would be inappropriate to pursue these in Bristol and that the diagnostic value of the test had been previously shown to have a detection rate of only 87%.

On return to Manchester, after a twelve week stay in Bristol, the family had to live in a Family Assessment Centre for another week while the local authority applied to renew the interim care order.

The first applicant's solicitor instructed an expert radiologist, Dr L. to report on O.D.'s injuries, asking specifically for comment on whether the injuries were more likely to have been caused by non-accidental means or a form of OI. An acknowledged expert in bone disease, Dr L. stated in the report that there was no evidence of abnormal bone morphology or density to suggest bone fragility. In the absence of abnormal bone fragility, he considered that non-accidental injury was the likely cause of the fractures. He was sceptical about taking a skin biopsy, considering the test was equivocal. He also confirmed that the previous suggestion of a brain injury on the initial scan was unfounded, the scan merely showing reflective echoes.

4. Decision to apply for further measures

At a statutory review on 4 August 1997, the local authority concluded that O.D. could not be safely placed with his parents and proposed to place him with foster carers, with daily parental contact, while a psychological assessment of the applicant and her partner be undertaken and a risk assessment be carried out by the National Society for the Prevention of Cruelty to Children (NSPCC). The question of placing O.D. with a relative had been discussed with the maternal grandparents. Ms M. and another social worker paid them a visit on 7 July 1997. The matter was not pursued, it being noted that the maternal grandparents considered that not enough consideration had been given to OI and that decisions were being taken by persons who did not know the parents. In a statement of evidence submitted on 6 August, the applicant's partner listed family members who would either stay with them or have the family stay with them; he did not specify that any relative was prepared to look after O.D. by themselves.

5. Second interim care order

The interim care proceedings began on 7 August 1997. At the hearing, Dr R, the consultant paediatrician who had overseen O.D.'s care at Bristol gave evidence, stating her opposition to the care plan; she considered that O.D. had a close relationship with his family and removal would cause emotional trauma equivalent to bereavement. The social worker supervisor also opposed the care plan, in particular as it was highly likely to exacerbate O.D.'s eating problems and there had been no re-injury. Dr R., while she gave evidence for the applicants, had nonetheless stated in her report of 5 August 1997 that the rib fractures were unexplained and characteristic of non-accidental injury; that there was no definitive test for OI; and that she felt it unlikely that O.D. had this condition, referring to the further opinion of an orthopaedic surgeon, Dr G, who had been unable to confirm a diagnosis of OI.

The interim care order was granted. In his judgment handed down on 12 August 1997, the judge considered that the consultant paediatrician and supervisor seemed to deal with a much more permanent separation than was envisaged. He stated that it was unfortunate that proper communications had not existed permitting the risk assessment to be carried out at Bristol but that it still remained to be discovered how O.D. had sustained his injuries. As concerned the proposal to place O.D. outside the family, the judge noted that there had been no proper assessment of any other family member but considered that the local authority could not be blamed for this: "Clearly there had been discussions, considerable discussions and disagreement about the care plan. ... as things stand at the moment I am not satisfied that any family member would accept the sort of risk that I think at present exists."

He went on to say: “So far as the capability of the parents is concerned, this will probably be of little comfort to them but nevertheless...I have no doubt that they are very capable, that they are splendid parents in every possible way except with regard to these two matters, this most important that fact the injury has still not been sorted out and there is also the possible problems with feeding. Any comments about tensions between parents and social workers...”

He concluded that he had to make an order to provide O.D. with the protection that he required.

O.D. was placed with local authority approved foster parents. The first applicant was allowed contact for a period of four hours a day for five days during the week.

The first applicant was concerned as to the care which O.D. was receiving in the foster home. Brand new clothes which she had given him were not being used; she found a plastic pellet in his play pen; on one occasion he was crawling on the floor near to broken glass; and when the first applicant noticed a bruise on O.D.'s face, the foster mother showed no concern and it was the link worker who had to recommend that he saw a doctor. The Government stated that the foster parents, selected for expertise with feeding problems, reported to, and were visited by, the local authority regularly, who found their care to be satisfactory.

On 7 or 9 October 1997, O.D. was admitted to hospital due to feeding problems. The first applicant claimed that she was not informed and only found out on arrival for a contact session. She was not allowed to stay with him in hospital overnight. The Government stated that the first applicant had been aware in advance, due to a previous visit to a doctor, that O.D. might be admitted to hospital and that she was informed when this happened as soon as was possible. Her normal contact continued with him during his ten-day stay.

On 31 October 1997, a consultant paediatrician, Dr Si. instructed by the guardian ad litem noted that the lack of further injury despite increased mobility was further evidence against OI. He emphasised that the feeding and growth problem was not a child protection matter per se but the impact of these problems on the parents needed to be taken into account.

On 12 November 1997, while still in foster care, O.D. fell and was taken to hospital. The radiologist diagnosed a possible fracture of the shinbone. The X-rays were analysed as showing the bones to be thin and osteopenic.

On 20 November 1997, the NSPCC submitted their risk assessment. They recommended that OD be returned quickly to his parents' care, with a short period of prior increased contact. The applicants submitted that the report was issued two months later than estimated; the Government submitted that the judge had in fact indicated that only the initial report should be available at the end of September.

On 8 December 1997, the local authority, at a statutory review meeting, agreed that O.D. should return home the same day.

On 19 January 1998, O.D. was examined by Dr B. a senior clinical research associate and honorary consultant paediatrician at the University of Cambridge. He reported in his final report of 25 March 1998 that there had been insufficient radiological evidence to substantiate the diagnosis of OI or other bone disease in January 1997 but that the taking of additional X-ray views of particular bones might have provided further clarifications. Tests now indicated that O.D. had type IV OI, with a significant growth retardant component, which condition had been active from the time of the tests. The force necessary to fracture his ribs might well have fallen within the range of normal handling. He recommended regular follow-up in a specialist paediatric clinic.

The X-rays and draft report of Dr B. were submitted to Professor C., who in her report of 18 February 1998 found the special bone density tests inconclusive although she noted that she was not an expert. She agreed that the X-rays now showed abnormalities but did not find this conclusive of OI. She stated that from her experience if children with OI had sustained rib fractures such as these from normal handling then they went onto sustain fractures in other areas; she was therefore surprised that O.D. had not had still further fractures apart from the fracture in foster care which was a typical soft bone fracture, if he in fact had had OI.

Dr B., Professor C, Dr L. and Dr Si. held a meeting on 29 June 1998 and issued a joint report, concurring that there was no evidence at the time of the first fractures to indicate OI or the desirability of any further investigations and that OD had suffered from birth from OI Type IV. They also agreed that in the absence of an account of trauma in a baby, rib fractures such as those observed would be highly suggestive of non-accidental injury inflicted by a forceful squeezing. However, while the latter three doctors considered that the degree of force required to cause these fractures fell outwith the normal handling of a small baby although not within the category of abusive handling, Dr B. took the view that it might not be completely outside the normal range of handling (for example, catching a child who was slipping). The cause of the serious growth retardation was not known.

In light of that report, the local authority made an urgent application for an abridged procedure to withdraw care proceedings, which were scheduled for further hearing in December 1998.

The interim care order was discharged in July 1998.

6. Subsequent complaint procedures and negligence procedures

The first applicant submitted that the care proceedings had a devastating effect on the first applicant's relationship with her partner. They split up. O.D. meanwhile was suffering from sleeping and behavioural problems, was reluctant to leave the first applicant, would not play with other children and screamed and threw food at strangers.

In August 1998, the first applicant complained to the local authority which appointed an independent person, Mrs B. After interviewing the key people involved, she found various defects in the handling of the case. She held that the local authority had failed to consider fostering O.D. with family members as required by statute, noted the confusion in communication with the Bristol Centre concerning the risk assessment and stated that once it had been decided to accept the NSPCC recommendation the rehabilitation should have taken days, not weeks, failing to understand why the family was left in limbo for almost one month; she also stated that there had been a steady deterioration in relations between the first applicant and the assigned social worker and that a more productive working relationship with the family might have been achieved by changing the caseworker as requested by the family. She did not uphold other specific complaints, finding inter alia that it had been necessary for the family to travel to the Bristol Centre on the same day as the hearing, that the local authority was justified in imposing restrictive travel arrangements on the family while at the Centre, that the stance of the judge and local authority when considering whether O.D. should be taken into care was understandable in light of the potential risks, that there was no reason to consider the care received by O.D. from his foster carers was not entirely appropriate, that the parents were invited to review meetings and to give their views and that the case involved the considered opinions of several eminent experts, who discounted bone disease and confirmed a diagnosis of non-accidental injury. She stated, inter alia, that with the weight of the medical evidence so firmly establishing non-accidental injury the local authority had had no option but to apply for care proceedings. She made no recommendation for monetary compensation.

On 29 November 1999, the local authority's complaints officer wrote to the first applicant and recommended that she receive a full apology and that certain aspects of the local authority's systems be reviewed and revised.

On 7 December 1999, in light of the above negative findings, the Head of Children's Services sent the first applicant a letter of apology in respect of the criticised practices.

The first applicant instituted proceedings against the local authority on behalf of herself and O.D. claiming damages for negligence and personal injury.

On 9 September 2003, his Honour Judge Knopf held that the local authority owed no duty of care to a parent in the context of care proceedings based on allegations of abuse.

On 11 September 2003, the judge rejected the claims of O.D., accepting the argument of the local authority that he had not been shown to have suffered any recognisable psychiatric damage, or alternatively, that any injury was transient and not compensatable by damages.

Both applicants were granted permission to appeal but the proceedings were stayed pending the outcome of D. v. East Berkshire Community Health NHS Trust and others [2005] AC 373 (see description of domestic proceedings in R.K. and A.K. v. the United Kingdom, 3800/05, recent judgment of 30 September 2008, §§ 23-26). These cases concluded in the House of Lords which held that no duty was owed by medical or social work professionals to parents in the exercise of their duties, in the best interests of the children, when deciding whether there had been any abuse and what measures were necessary.

After the hearing of the applicants' appeals on 3 and 4 November 2005, the Court of Appeal on 17 January 2006 dismissed the first applicant's appeal as at no stage was she owed a duty of care by the local authority. The court also rejected O.D.'s appeal on the basis that it was impossible to identify any psychological harm of the kind giving rise to an action for damages by his removal from the care of his parents for four months. Wall LJ endorsed the finding that any damage suffered by O.D. was transient and added that the judge would have been entitled to hold that it had not been established that O.D. had suffered any damage at all as a result of the separation. The Human Rights Act 1998 and European Convention of Human Rights were irrelevant as the case concerned events prior to the Act's implementation.

Leave to appeal to the House of Lords was refused.

COMPLAINTS

The first applicant

The first applicant complained under Article 3 of the Convention that the treatment which she received at the hands of the local authority inflicted on her degrading treatment, causing her acute distress and anguish at being inter alia accused of harming her son and being separated from him, the care measures implemented being disproportionate in the circumstances.

She complained under Article 8 of the Convention that she was separated from her son for four months, missing the milestones of his first step and his first words; that there was a failure to observe and to have in place procedural safeguards: inter alia, she was denied the opportunity to have the possibility of OI explored at the very beginning, she was not consulted or warned about the necessity to go to the Centre in Bristol, the local authority failed to query why a risk assessment was not being carried out in Bristol and there were unacceptable delays in facilitating O.D.'s return home. She also complained of a lack of expedition, e.g. in obtaining the NSPCC report (two months' delay) and that the local authority rejected offers from other family members to have him placed with them, without carrying out the necessary assessment required by section 23 of the Children Act 1989.

She also complained under Article 8 that the actions of the authorities damaged her reputation and her relationship with her partner; and that the matters complained of under Article 3 above disclosed a grave interference with her moral and physical integrity.

Finally, she complained under Article 13 of the Convention that the lack of any duty of care deprived her of an effective remedy.

The second applicant

Under Article 8 of the Convention, it is complained, on behalf of O.D., that there was an unwarranted separation from his parents during a crucial phase of development; that the placement with strangers constituted an unjustifiable interference with his moral and physical integrity, as did the conditions of the Centre in Bristol, where he was required to stay for twelve weeks although he was a child with chronic medical problems.

Under Article 13 of the Convention, it is argued that although there was a duty of care in O.D.'s case, the distress and consequent effects which he suffered were not adjudged as actionable damage and he was thus prevented from bringing a claim in negligence.

THE LAW

1. The first applicant claimed that the accusation of harming her son and various aspects of the measures adopted by the local authority infringed Article 3 of the Convention, which provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. Parties' submissions

The Government noted that the first applicant had not raised any complaint of Article 3 treatment in the domestic proceedings. In any event, they submitted that while the applicant no doubt suffered distress, viewed dispassionately and divested of emotive language, the circumstances did not come close to disclosing ill-treatment of a severity necessary to engage Article 3. They emphasised that the actions of the local authority were a necessary response to the fact that O.D. had sustained serious and unexplained injuries and that even during the four month period when O.D. was in foster care, she was able to see him almost every day, for periods that increased as time went on to six hours per day.

The applicant submitted that the substance of this complaint had been clearly raised in the domestic proceedings. She asserted that the alleged violations directly resulted in her suffering psychological damage, reports indicating a chronic adjustment disorder with mixed anxiety and depressed mood. She relied on Erdogan Yagiz v. Turkey (no. 27472/02, 6 March 2007. Further, the Government had not shown the measures had been necessary or proportionate, the ordeal lasted from January to December 1997, with serious consequences for the applicants' relationship and bonding, and emotional trauma equivalent to bereavement.

B. Court's assessment

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 the 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 D. and Others v. the United Kingdom, no. 38000(1)/05, (dec). 12.2.08).

In the present case, where it is not disputed that the second applicant suffered an injury which could not initially be accounted for, while the Court does not doubt the first applicant's distress at events, in particular the fact that she was mistakenly suspected of abuse, this cannot be regarded as constituting a special element in the sense identified above. It is not disputed that the measures pursued, in good faith, with due input from qualified professionals and the supervision of the courts, the aim of safeguarding O.D.'s 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.

2. The first applicant claimed that the care measures interfered with her right to respect for family life, interfered with her physical and moral integrity, damaged her relationship with her partner and her ability to establish and develop relationships and her reputation, as well as infringing the second applicant's family life and injuring his physical and moral integrity. They invoked Article 8 of the Convention which provides as relevant:

“1. Everyone has the right to respect for his private and family life...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

A. Concerning family life

1. The Government's submissions

The Government accepted that removing O.D. from the first applicant's care prima facie interfered with her family life. However the interference was justified as pursuing the legitimate aim of protecting O.D. who had suffered serious, unexplained injury. The measures taken were also in accordance with the law.

As to the necessity of the measures, in a situation where a small baby had suffered injuries which the parents could not explain, the local authority's view that it could not leave O.D. in their care unsupervised were both reasonable and responsible. The first interim care order was endorsed by a judge and consented to by the first applicant, who had legal representation. The worrying medical circumstances justified the various restrictions on the family when in the Bristol Centre and the placement had to start immediately as the authority had parental responsibility from the moment that the interim care order had been granted. Insofar as the applicants alleged that O.D. would not have had to be placed in foster care if the local authority had properly requested a risk assessment from the Bristol Centre, the Government accepted that the lack of this comprehensive assessment was one factor, amongst many, in the decision taken by the local authority to place him with foster parents; they accepted that the local authority had not specified in its instructions the type of assessment required nor enquired as to the progress of the risk assessment at the monthly reviews conducted while the family were at the Centre. However, the fact that the authority might have erred did not deprive the decision of a legitimate basis; the placement at the Centre had to be arranged quickly, the case had been complex and the instructions to the Centre had to cover many issues. Also the Centre's final report did not omit the issue of risk altogether, Ms C.H. still understanding that she was supposed to cover the future risk posed to O.D. by his parents and making an assessment on the point. Given all the concerns, it was difficult to conceive of a risk assessment report that would have resulted at that time in an immediate and unsupervised return to parental care.

Insofar as possible placement with a relative was concerned, the question of where to place O.D. had to be taken quickly given the risk factors; it was therefore simply not practicable to place O.D. with a family member. There were also concerns that such a placement would not have been in his best interests, as the relatives to whom the local authority had spoken did not accept that he was at risk from his parents and his growth and feeding problems necessitated proper feeding management by appropriate carers. The judge did not fault the local authority in this respect and the Government pointed out that section 23(6) did not require time and resources to be spent assessing a family placement when such a placement would obviously have been impracticable or unsuitable.

Furthermore, there was no harmful period of delay in either obtaining the NSPCC report or in returning O.D. to his parents within three weeks of receipt of the report. It was clear that the medical professionals, even those relied on by the applicants, involved in the case had given due consideration to the possibility of OI but had discounted it on the basis of the evidence. The medical experts agreed that there had been nothing in January 1997 to suggest a diagnosis of OI or that further investigations would have been desirable. It had to be borne in mind that OI was notoriously difficult to diagnose in infants (and is much rarer than non-accidental injury) and in this case there was the complication of growth and feeding problems. The first applicant had been involved in the proceedings throughout.

The Government considered that for the same reasons any interference with the second applicant's family life rights was justified.

2. The applicants' submissions

The applicants submitted that measures taken were not necessary and were disproportionate throughout, with fundamental and incomprehensible mistakes having been made. Although the bone damage was unexplained, the authorities jumped without any additional evidence to the assumption that there had been injury inflicted, that the injury was non-accidental and that the parents should be suspected, although the family presented none of the indicators of personal or social dysfunction which normally accompanied non-accidental injury and ignoring any indications of genetic predisposition to bone disease such as the first applicant's own hyperflexibility. They disputed that Dr S. had properly considered OI and considered that she should have referred O.D. to a specialist at an early stage, while Professor C. could have conducted a DXA scan (bone densitometry machine) as Dr B. had later on.

The applicants pointed out that O.D. had had serious health concerns from before birth which were unassociated with child protection concerns. The Government's references to the applicant's pre-existing medical condition which had led to a failure to grow as an additional reason to justify the interference were inappropriate.

The applicant and her partner co-operated at all times with the health care professionals, and no concerns had been recorded by professionals involved with the family prior to the bone fractures, in which respect it had even been the first applicant who had initiated the relevant medical examinations. Nonetheless, the authorities opted for care proceedings, sending the family without proper notice to a Centre far from home in Bristol where they had to live for three months in substandard and distressing conditions in an area plagued by drug and gang activity. This failure of notice or prior discussion excluded the family from the decision-making process and no convincing explanation had been given for the haste. If the first applicant did not make negative statements about conditions at the time, it was not to influence negatively the report which the Centre was producing. Valuable time was lost in any event since the Centre was not asked to conduct a formal risk assessment and the local authority had to request for this to be done later by the NSPCC. Contrary to the Government's submissions, the applicants stated that the Centre assessed them as posing a low risk to O.D.'s physical and emotional development: the only outstanding concern was the repeated assumption of a non-accidental injury having been suffered.

The applicants submitted that even if the possibility of an accurate diagnosis being reached from further tests was not certain, in the context of their family which had been assessed as a loving and caring unit and which was at risk of being split up, it would have been reasonable, and necessary to undertake the tests. They pointed out that O.D. had suffered no further injury in their care and the only ground of risk was that the professionals had not yet discovered the medical causes of O.D.'s condition.

The applicants submitted that O.D. was placed in fostercare with strangers, without proper consideration being given to the extended family as potential carers as the law required; nor was such a placement proportionate in this case, given the failure to properly explore alternatives. This was despite the fact that one of O.D.'s uncles was a registered child minder and his wife a registered foster carer. There had been no evidence that the family would have been unable to protect O.D., and a list had only been provided by the applicants a day before the hearing due to the local authority's failure to act.

The standard of the foster care had been problematic. The separation of mother and child had not been necessary or proportionate in the circumstances. The applicants noted the delay in the submission of the NSPCC report, which if only one month later than expected, still prolonged the separation. The further delay in rehabilitation and return were not necessary as found by the local authority investigator.

The final joint medical report did not address the fact that the second applicant had many of the indicators for OI or the first applicant's own genetic features. In any event all were agreed that O.D. had suffered OI from birth. Thus the medical evidence relied on to support the view of non-accidental injury had been inadequate, confused and inconclusive throughout.

Furthermore there had been unjustifiable delays in returning O.D. to his family and in removing him from the child protection register.

B. Article 13 of the Convention

Article 13 of the Convention provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

1. The Government's submissions

The Government considered that the applicants' complaints were not arguable, and hence outside the scope of Article 13, save for the complaints under Article 8 concerning the interference with family life. They submitted that the first applicant was able to avail herself of the local authority's complaints procedure. A thorough investigation had been conducted by an independent person, resulting in the first applicant receiving an apology. While she did not receive compensation, she did not ask that such a recommendation should be made. She had also had the opportunity to oppose any interim care orders, or to appeal. However, 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 and that this complaint should be declared admissible. As the applicants acknowledged, there was now an effective remedy provided under the Human Rights Act 1998.

As regarded the second applicant, to whom a duty of care was owed at the time, his claim failed because he could not show that he had suffered more than transient and non-justiciable damage, or indeed any damage at all. This did not however show that he was prevented from bringing a claim in negligence; a favourable result of those proceedings is not guaranteed, nor a right to damages. In short, there was a national procedure capable of providing a remedy and that procedure was used, but, in the circumstances, no remedy was appropriate. This complaint was accordingly manifestly ill-founded in their view.

2. The applicants' submissions

The applicants submitted that they had no effective remedy for their complaints above. The local authority complaints mechanism and local government ombudsman had already been found by the Court not to be effective remedies in these circumstances (T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, ECHR 2001‑V (extracts)). They saw no reason why the courts should not have recognised a duty of care as existing before the Human Rights Act 1998 came into force and submitted that their approach violated the applicants' Convention rights. They also pointed out that even following the Human Rights Act, its provisions cannot help parents who must rely on the law of negligence as opposed to section 7, to vindicate their Convention rights. As regarded the second applicant, it was not necessary to show damage in order to be a victim; therefore for Article 8 to have been violated, it was not necessary to show the very specific kind of clinically diagnosed psychiatric damage required in English law. He had been entitled to a determination that the local authority had breached his right to respect for family life and also the possibility of obtaining an enforceable award for compensation, yet because he could not demonstrate a recognised psychiatric disorder, he was unable even to obtain a determination that his rights had been violated. This deprived him of access to an effective remedy.

C. The Court's assessment

The Court notes that Government accepted that the removal of the second applicant from the first applicant's care disclosed an interference with the right to respect for family life and that there is an arguable claim of a breach of Article 8. 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 interference with their moral and physical integrity and damage to their reputation contrary to their right to respect for their private life, the Court considers that these complaints are closely connected on the merits 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 is any other ground of inadmissibility made out.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicants' complaints concerning Article 8 alone and in conjunction with Article 13 of the Convention;

Declares inadmissible the remainder of the application.

Lawrence EarlyLech Garlicki
RegistrarPresident

 

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