Information Note on the Court’s case-law No. 111
August-September 2008
R.K. and A.K. v. the United Kingdom - 38000/05
Judgment 30.9.2008 [Section IV]
Article 8
Article 8-1
Respect for family life
Temporary placement of a child under public care due to fears of ill-treatment by the parents: no violation
Facts: The applicants, husband and wife, have a daughter M., who was born in July 1998. Two months after her birth, M. was admitted to hospital with a fracture of the midshaft of the femur. A consultant paediatrician interviewed the applicants and M.’s grandmother about the origin of the injury, but they did not speak much English and had no interpreter. Since there had been no family history of metabolic bone disease, the doctor concluded that M. had suffered a non-accidental injury. The police were informed of the incident and the applicants were again interviewed on several occasions by police officers and social workers, who proposed to call a child protection conference. Since their account of the facts had not been convincing even in the presence of an interpreter, the court issued a care order and M. was placed under the care of her aunt, who lived a few hundred yards from the applicants’ house. Three months later, while in her aunt’s care, M. sustained a second injury in the form of bilateral femoral fractures. Further tests showed that M. was suffering from brittle bone disease (osteogenesis imperfecta). In April 1999 M. was discharged from hospital and returned to live with the applicants. Two months later, the courts discharged the care order after finding that at the time of the first injury it had not been possible to make the diagnosis of a bone disease. The parents subsequently brought claims for negligence and breach of their Article 8 rights against the hospital and the paediatrician, but their claims were dismissed.
Law: Article 8 – The applicants’ daughter suffered from osteoporosis imperfecta, a very rare condition difficult to diagnose in very small infants. Pursuant to the medical opinion given at the time of the diagnosis, no fault could have been imputed to the doctors for not reaching that conclusion at the time of the first injury. Consequently, the Court held that mistaken judgments or assessments by professionals did not per se render child-care measures incompatible with the requirements of Article 8. Medical and social authorities had a general duty to protect children and could not be held liable every time a genuine and reasonably-held concern about the safety of children proved wrong. Accordingly, in the present case, the authorities could not be criticised either for proceeding on the basis that M’s first injury might have been inflicted by her parents. While it was true that there had been problems of communication with the applicants, even when they had been provided an interpreter, they had not been able to convincingly explain the origin of M.’s first injury. Furthermore, M. had been removed from the applicants’ care for a period of some seven months, during which she was placed within her extended family and in close proximity to the applicants’ home facilitating their regular visits. In sum, the Court was not called upon to retrospectively adjudicate the best medical practice or the most reliable expert opinion. It was satisfied that there had been relevant and sufficient reasons for the authorities to take protective measures which in the circumstances were proportionate to the aim of protecting M.
Conclusion: no violation (unanimously).
The Court further found a violation of Article 13 (absence of an effective remedy).
Article 41 – EUR 10,000 in respect of non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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