Removal of child following faulty diagnosis of injury breached Article 8

2 April 2010 by Rosalind English

AD and OD v United Kingdom (Application No 28680/06), 2 April 2010

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The European Court of Human Rights (ECtHR) has ruled unanimously that a local authority’s failure to conduct a risk assessment, which resulted in a child being placed with foster parents, breached the right to respect for family life under Article 8 of the Convention.  It also concluded that the mother should have had available to her a means of claiming that the local authority’s handling of the procedures was responsible for any damage which she suffered and obtaining compensation for that damage. As such redress was not available to her, the Court held that she had suffered a violation of Article 13.

Summary

Medical examinations of OD, AD’s son, that were carried out a few months of his birth, revealed multiple fractures to his ribs that raised suspicions among the medical community. The mother advanced the possibility that the injuries could have been caused by “brittle bone disease”, osteogenesis imperfecta, but this was dismissed. As a result the local authority placed the child on the “at risk” register, and applied to the county court for an interim court order which was duly granted. AD, her partner and the child were required to relocate to a family resource centre so that an assessment could be made of any risk posed to OD. A parenting assessment was conducted rather than a risk assessment and in the absence of a risk assessment the local authority believed that OD could not safely be placed with his parents. OD was ultimately placed in foster care. Whilst he was there he had a fall,  was taken to hospital, and an X ray revealed that his bones were thin and osteopenic. An expert subsequently took the view that the child did indeed have brittle bone disease. Following a report on this, the interim care order was discharged.

The mother, AD, complained to the local authority about the way they had handled the case and brought an action for damages. The claim was rejected on the grounds that the local authority did not owe her or her child a duty of care. She complained to the ECtHR that she and OD had suffered a violation of their rights under Article 8, and that she had been deprived of a remedy before the local courts contrary to Article 13.

Held:

There had been a failure to respect the applicants’ family life under Article 8. The initial failure by the medical authorities to diagnose brittle bone disease did not in itself amount to an interference, nor did their subsequent actions on the assumption that the injury could have been caused by the parents. Mistaken judgments or assessments by professionals did not per se render childcare measures incompatible with Article 8 of the Convention: R.K. and A.K. v. the United Kingdom, 38000/05, § 36, 30 September 2008.  However the failure to conduct a risk assessment during the applicants’ stay in the family resource centre had led to the unneccessary foster care order and the Court was not satisfied that that the family should have been relocated far from their home when the risk assessment was eventually carried out. Less intrusive measures would have been available for conducting a risk assessment, such as placement with relatives. The Court found that the local authority had dismissed those possibilities too quickly.

With regard to the complaints under Article 13 the Court noted that AD was in a comparable position to the applicants in RK and AK v United Kingdom in which the Court had held that prior to the introduction of the Human Rights Act 1998 there had been no effective means of claiming damages for negligence by the local authority and that had amounted to a violation of Article 13. There were no reasons to depart from those findings in the present case and therefore the Court unanimously found that there had been a violation of AD’s rights under Article 13. There had however been no breach of Article 13 in the child’s case as the local authority did owe him a duty of care and he would therefore have been entitled to bring a claim in negligence against the authority.

The applicants were awarded 15,000 under Article 41 in respect of non-pecuniary damage.

Comment (April 2010)

This judgment is another in a long line of Strasbourg rulings – starting with the controversial Osman v UK – which whittle away at the wide protection enjoyed by public authorities in English tort law as a result of X(Minors) [1995] 2 AC 633. The case of Z v United Kingdom [2001] FLR 621 (X(Minors) in Strasbourg) involved similar facts to the instant case:  some of the applicants were parents of children who claimed that the authorities had acted negligently in exercising the power to remove the children from them, causing psychiatric harm to the children and parents alike. But the arguments turned on the right of access to court under Article 6, and the Court – rowing back radically from its position in Osman – ruled that Article 6 is not concerned with the definition of substantive rights; it operates only on procedural bars against the enforcement of rights that are already recognised in domestic law. So when a claim for duty of care cannot be made out in the domestic courts because one of its elements is missing, such as proximity, Article 6 does not bite.

However, the applicants did persuade the Court that the government had breached the requirement under Article 13 for a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order.  The application of Article 6 in having been thus restricted by Z, Article 13 has become the only reliable basis on which to base a complaint in these circumstances in Strasbourg.

In the instant case the domestic proceedings brought by the claimant were stayed pending the outcome of D. v. East Berkshire Community Health NHS Trust and others [2005] AC 373, where the House of Lords 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.

In the UK proceedings (D v Bury MBC [2006]) 1 WLR 917 the Court of Appeal ruled that a local authority did not owe a duty of care to the parents of a child who was the subject of a child abuse investigation and in relation to whom an interim care order was in force giving the authority parental responsibility. Following the CA in D, and predicting the outcome of that case in the Lords, the Court based their ruling on the rationale that care professionals had to be free to carry out their functions without the possibility of an action for negligence against them by distressed parents, and that freedom lasted throughout the investigatory process.

For the moment anyway, D has preserved the immunity in respect of claims by parents wrongly accused of physically abusing their children. Lord Browne Wilkinson said, in X (Minors), that it was not permissible for a court to impose a common law duty of care where this would be “inconsistent with, or have a tendency to discourage, the due performance by the local authority of its statutory duties”(op cit, oara 739).  But the X(Minors) immunity now applies in such limited circumstances that it may not be long before this famous dictum is featured in textbooks as being of historical interest only.