Information Note on the Court’s case-law 241
June 2020
Association Innocence en Danger and Association Enfance et Partage v. France - 15343/15 and 16806/15
Judgment 4.6.2020 [Section V]
Article 3
Positive obligations
Lack of necessary and appropriate measures by State to protect child from fatal ill-treatment by parents: violation
Article 13
Effective remedy
Requirement, not unreasonable, to establish serious negligence to engage the State’s responsibility for shortcomings in the justice system: no violation
Facts – A child of eight years old, M., suffered ill-treatment at the hands of her parents which led to her death in August 2009. The authorities had been notified from June 2008 after a report by the head teacher of the child’s school.
The applicants, two child protection associations, complained that the French authorities should have fulfilled their positive obligations to protect the child from ill-treatment by her parents which had led to her death. In addition, one of the applicant associations raised the question of the right to an effective remedy in order to engage the French State’s responsibility on account of shortcomings in the public justice system.
Law
Article 3 (substantive limb): The “report of suspected ill-treatment” notified by the head teacher in June 2008 had triggered a positive obligation of the State to carry out an investigation in order to assess the possibility of ill-treatment and, if necessary, to determine the perpetrator, in order to protect the child from being ill-treated in the future.
The public prosecutor had responded diligently, as he had forwarded the report on the same day to the gendarmerie. Thus, in the context of the investigation, useful and pertinent measures had been taken, such as a filmed interview of the child and her forensic medical examination. However, a number of negative factors detracted from those findings.
First, in response to the immediate forwarding of the complaint by the public prosecutor, a police officer was not entrusted with an investigation until thirteen days later and the recommendations as to real-time decisions by the prosecutor had ultimately not been implemented.
Secondly, M.’s teachers had informed the authorities in writing that they had noticed numerous marks on the child’s body, in the context of the report of June 2008. However, it would also have been useful to interview them, in order to take evidence as to the context and about M.’s reaction when the injuries were discovered. That was all the more important as the forensic medical examiner had not been able to rule out acts of violence or ill-treatment and the child welfare service had informed the prosecutor that new bruising had been seen after the initial report. In that connection, in the presence of signs of ill-treatment of a child, the teachers had a key role to play in preventing violence.
It would also have been useful to carry out acts of investigation in order to shed light on M.’s family environment because, as the authorities had been aware, the family had moved a number of times.
M.’s mother had been interviewed by the detective in charge of the investigation, briefly and at her home rather than at the gendarmerie. In addition, the statement given by the father as the child’s legal representative before an expert doctor was not tantamount to a real interview in the context of an investigation at which targeted questions would be put.
In addition, M. had not pointed to any facts when she was interviewed. However, the interview had been conducted without a psychologist being present. Even though this was not obligatory, such presence could have been appropriate in order to rule out any doubt in relation to the original report and the forensic assessment.
In the light of the many suspicious injuries noted by the forensic medical examiner, together with a fresh removal of the family at the time the investigation was closed, the authorities should have taken certain precautions when the decision to discontinue the case had been taken and not to regard it quite simply as the end of the matter. Thus, if the public prosecutor’s office had informed the child welfare service of its decision whilst drawing its attention to the need for a social investigation or at least monitoring of the child, it would have increased the chances of an appropriate reaction on the part of the social services after the discontinuance decision.
In addition, the combination of the mere discontinuance and the lack of any mechanism centralising the information had significantly reduced the chances of any special monitoring of the child or any useful exchange of information between the judicial authorities and social services.
The social services had certainly taken steps later on. However, faced with the combined factors of the worrying report of April 2009 from the head teacher of M.’s new school after the family had moved yet again and M’s hospitalisation for wounds on her feet around the same time, they should have been much more vigilant in assessing the child’s situation. It was evident, by contrast that, in the wake of the decision to discontinue the investigation, they had not taken the meaningful action which would have enabled them to identify the child’s actual condition.
Thus the system had failed to protect M. from the serious abuse that had been inflicted on her by her parents and which had tragically led to her death.
Conclusion: violation (unanimously).
Article 13 in the light of Article 3: In view of the finding of a violation of Article 3, the association’s complaint was arguable for the purposes of Article 13, which was thus applicable.
The conditions for engaging State responsibility had become less stringent with the evolution of French jurisprudence in such matters. Thus the interpretation of the concept of “faute lourde” (serious negligence) made it possible to regard a series of more minor acts of negligence, in particular where such acts entailed shortcomings in the justice system, as establishing in the aggregate that serious negligence had been committed by the State.
The States enjoyed a certain margin of appreciation as to the manner in which they complied with their obligations under this provision. It did not appear unreasonable in the present case for a framework to have been laid down by the French legislature to govern the possibility of establishing the State’s civil liability in this particular context of ensuring the protection of judicial independence in the light of its organisational complexity and the specificity of the judicial function, including investigative and police activities. However, the choice of such a framework had to secure an effective remedy in practice as in law.
The applicant association had been able to take its case before a court of law in order to have its complaints examined as to the failings which it attributed to the police and the prosecution. The court had jurisdiction to rule on these complaints and proceeded to examine them, without confining itself to a separate examination of the serious negligence alone, in the context of proceedings during which the application association was able to submit all its arguments. The mere fact that the applicant association’s claims had been dismissed was not in itself sufficient for a conclusion as to whether or not the remedy in question was effective. Thus the effectiveness of a remedy did not depend on the certainty or otherwise of a favourable outcome for the applicant.
In conclusion, the fact that the applicant association had not satisfied all the statutory conditions did not suffice to conclude that the remedy, taken as a whole, was incompatible with Article 13.
Conclusion: no violation (unanimously).
Article 41: token amount of 1 euro for non-pecuniary damage.
(See also, concerning Article 3, C.A.S. and C.S. v. Romania, 26692/05, 20 March 2012, Information Note 150; M. and M. v. Croatia, 10161/13, 3 September 2015, Information Note 188; and concerning Article 13, Kontrová v. Slovakia, 7510/04, 31 May 2007, Information Note 97; De Souza Ribeiro v. France [GC], 22689/07, 13 December 2012, Information Note 158)
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