Resolution CM/ResDH(2008)84[1]
Execution of the judgment of the European Court of Human Rights
T.P. and K.M. against the United Kingdom
(Application No. 28945/95, judgment of 10/05/2001, Grand Chamber)
The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);
Having regard to the judgment transmitted by the Court once it had become final;
Recalling that the violations of the Convention found by the Court in this case concern a breach of the applicants’ right to respect for family life following the lack of adequate involvement of the first applicant in the decision-making process concerning the care of her child (the second applicant) due to the local authority’s omissions (violation of Article 8) and the lack of appropriate means of claiming that the local authority’s handling of procedures was responsible for the damage suffered by the applicants and obtaining compensation for that damage (violation of Article 13) (see details in Appendix);
Having invited the government of the respondent state to inform the Committee of the measures taken to comply with the United Kingdom’s obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;
Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;
Having satisfied itself that, within the time-limit set, the respondent state paid the applicants the just satisfaction provided in the judgment (see details in Appendix),
Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:
- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and
- of general measures, preventing similar violations;
DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and
DECIDES to close the examination of this case.
Appendix to Resolution CM/ResDH(2008)84
Information about the measures taken to comply with the judgment in the case of
T.P. and K.M. against the United Kingdom
Introductory case summary
This case concerns a breach of the applicants’ right to respect for family life, in that the first applicant was deprived of adequate involvement in the decision-making process concerning the care of her daughter (the second applicant), as a result of the local authority’s failure to submit a video document to the competent national court in order to determine whether to disclose it to the first applicant. This interference was considered by the European Court as “not necessary in a democratic society” (violation of Article 8).
The case also concerns the fact that the applicants did not have available to them an appropriate means for obtaining a determination of their allegations that the local authority breached their right to respect for family life and the possibility of obtaining an enforceable award of compensation for the consequent damage (violation of Article 13).
I.Payment of just satisfaction and individual measures
a) Details of just satisfaction
Pecuniary damage
Non-pecuniary damage
Costs and expenses
Total
-
20 000 GBP
25 000 GBP
45 000 GBP
Paid on 01/08/2001
b) Individual measures
The second applicant was returned to the first applicant in November 1988 and one year later, the High Court ruled that she was no longer a ward of the court.
II.General measures
1) Violation of Article 8:
As regards disclosure of evidence to parents in the context of care proceedings, since the facts in the present case, the Family Proceedings Rules 1991 have come into force. Rule 4.23(1) provides for the disclosure of documents to parties to the proceedings. Further, Rule 17 of the Family Proceedings Court (Children Act 1989) Rules 1991 requires parties to serve in advance on other parties copies of any documents, including experts’ reports, on which they intend to rely.
Furthermore, the courts recognised the importance of adequate involvement of parents in the decision-making process in care proceedings: see, inter alia, the case of Re G (Care : Challenge to Local Authority’s Decision) [2003] EWHC 551 (Fam).
2) Violation of Article 13:
If a similar case were to re-occur, the local authority would be obliged, under Section 6 of the Human Rights Act (HRA), to act in a manner compatible with the Convention. If they were not to do so, their acts would be unlawful and the injured party could bring proceedings under Section 7 of the HRA. By virtue of Section 8 of the HRA, a court can grant whatever remedies it considers just and appropriate, including damages, but only where it has the power to award damages. In short, criminal courts are excluded, but civil courts are competent to award damages for acts which are unlawful in terms of Section 6 of the HRA. Thus the HRA provides an effective remedy.
Moreover, Section 8 (4) of the HRA states that, in determining whether to make an award and, in the affirmative its amount, domestic courts must take into account the principles applied by the European Court of Human Rights under Article 41 of the Convention.
In view of the fact that the Human Rights Act did not incorporate Article 13 of the Convention in domestic law, examples of relevant case-law on this point were provided: see Re M (Challenging Decisions by Local Authority) [2001] 2 FLR 1300 (approved by the House of Lords in Re S (Minors) (Care Order: Implementation of a Care Plan) [2002] UKHL 10, [2002] 1 FLR 815), quashing a decision of a local authority in which the parents had not been sufficiently involved to protect their interests; C v. Bury Metropolitan Council [2002] EWHC 1438 (Fam), [2002] 2 FLR 868, establishing that it is the Family Division of the High Court that should usually hear allegations concerning a breach of Convention rights by a local authority in the context of care proceedings, and Re G (Care: Challenge to Local Authority’s Decision) [2003] EWHC 551 (Fam), in which the High Court found that the failure of local authority to inform parents of proposed changes to a care plan, and to provide parents and their representatives with an opportunity to respond to allegations being made against them, constituted a violation of Article 8.
3) Publication
The European Court's judgment in this case was published at (2002) 34 EHRR 2 and [2001] 2 FLR 549.
III.Conclusions of the respondent state
The government considers that the measures taken have fully remedied the consequences for the applicant of the violations of the Convention found by the European Court in this case, that these measures will prevent new, similar violations and that the United Kingdom has thus complied with its obligations under Article 46, paragraph 1, of the Convention.
[1] Adopted by the Committee of Ministers on 8 October 2008 at the 1035th meeting of the Ministers’ Deputies
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