HUMAN RIGHTS/TORT. Investigation of abuse, the right to family life and article 8 of the European Convention on Human Rights

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1 HUMAN RIGHTS/TORT Investigation of abuse, the right to family life and article 8 of the European Convention on Human Rights MAK and RK v United Kingdom (2010) 51 EHRR 14 European Court of Human Rights Introduction Dr Steve Foster and Angela Stanhope * The investigation of suspected child abuse in the home gives rise to complex moral and legal dilemmas and social or medical authorities investigating such allegations have to ensure that the interests of the parents, the child and family life are not unduly interfered with. Although such authorities should be provided with a reasonably wide area of discretion in such cases, the consequences of a negligent investigation on the civil and human rights of those involved is clear. In appropriate cases the law needs to provide appropriate compensation for those who suffer physically or otherwise as a result of any negligence, yet such actions can be often limited by the imposition of legal immunities granted to public bodies by the domestic courts. 1 Such immunities are not necessarily contrary to the basic right of a fair trial under article 6 of the Convention, which safeguards the procedural right of access to the courts. 2 However, to comply with its obligations under the Convention the UK must provide an effective remedy for any breach of a person s Convention rights. 3 In the post-human Rights Act 1998 era this can be achieved by the courts developing the law of negligence in such a way as to recognise human rights claims. Alternatively, actions for breach of Convention rights may be brought directly against a public authority under the Human Rights Act. In addition there are other cases which have been decided by the European Court of Human Rights concerning acts of public authorities committed before the Act came into force. Many of these cases were struck out by the domestic courts applying the above immunities and limitations, 4 and as a consequence applications were made under the Convention machinery, claiming a breach of one or more Convention rights and a breach of article 13, which guarantees an effective remedy in domestic law for breach of such rights. One recent case, below, illustrates the approach taken by the European Court in this area, and this approach will inform the domestic courts when they have to determine liability for the unlawful or negligent actions of state authorities that have impacted on the rights of parents and children. * Respectively, Principal Lecturer in Law and Lecturer in Law, Coventry Law School 1 X v Bedfordshire CC [1995] 3 All ER Z v United Kingdom (2002) 34 EHRR 3. 3 Article 13 European Convention on Human Rights (1950). 4 X v Bedfordshire CC, note 1 above; and JD v East Berkshire Community Health NHS Trust [2005] 2 All ER 443.

2 The facts in MAK and RK v United Kingdom The facts in this case are long and complicated and illustrate the complexity of the circumstances surrounding an allegation of domestic child abuse. In September 1997 a father took his daughter to see their general practitioner because he and his wife were concerned about what appeared to be bruising on her legs. A clotting test was carried out but it showed no abnormality, but in February 1998 the father took his daughter back to the general practitioner after her swimming teacher had expressed concern about the marks on her legs. The father asked for a referral to hospital and an appointment was made for 17 March 1998 with a consultant paediatrician. On 15 March 1998 the daughter hurt herself in the genital area while riding her bike and complained to her mother of hurting between her legs. Her mother did not examine her and she did not tell her father of the incident. On 17 March 1998 the father took his daughter to the appointment with the consultant who said that the bruising did not appear to be a skin disease and admitted the daughter to hospital for further examination. The father had to go to work, but before leaving the hospital he told the consultant that her mother would arrive soon and there should be no further examination or tests until she came and gave any necessary consent. However, when the mother arrived one hour later, she found that a sample of the second applicant's blood had been taken for testing, and that photographs had been taken of her legs and the local authority had been notified. A social worker informed the mother that the consultant thought the second applicant had been abused and the mother then gave consent for a further examination. The consultant and a police surgeon then examined the daughter s legs and genitalia; the daughter being given no explanation for the examinations and she was not questioned about the allegations of abuse. Following the examination, the consultant informed the mother that her daughter had been sexually abused and that it had probably been going on for eight months on account of the bruising. The social worker interviewed the daughter generally, but asked no direct questions about sexual abuse and no record was made of the interview. During the interview the social workers told the mother to ask her husband and their eldest son to move out of the family home until further investigations had taken place, and at this point she recalled that the daughter had hurt between her legs while on her bicycle. The mother informed the social worker of this, who agreed to pass the information on to the doctor. That evening, the father and mother attempted to visit the daughter on the ward, but were told by a nurse that there were orders that the father should not be allowed to see her. The following day hospital staff were correctly informed that there could be no restrictions on visitors and the father was allowed to visit his daughter, although all visits were supervised on account of the suspicion of sexually abuse. On 18 March 1998 the mother informed the consultant that the daughter had hurt between her legs on her bicycle, but the consultant told her that there was no doubt her daughter had been sexually abused and advised her that if she did not accept it, there was a risk that her other children would be taken into care. On the same day two social workers visited the applicants' home and the mother asked for a second opinion on the cause of the bruising but was told by the social workers that they saw no point

3 in obtaining one. The social workers did not, however, insist that the father leave the family home, and it was arranged that the mother should sleep in the room with her daughters. On 21 March 1998 the mother noticed that the daughter had marks on her hands and an appointment was made for her to see a dermatologist. On 24 March 1998 the dermatologist reported that the marks on the second applicant's legs were caused by vasculitis. Thereafter, on 27 March 1998 the daughter was diagnosed with Schamberg's disease, a rare condition of the capillaries which is manifested by the eruption of purple patches on the skin. She was discharged from hospital and the consultant wrote a letter to the father and mother, which stated that there was insufficient evidence to say that the daughter had been sexually abused and that the father should no longer be considered to be implicated in the sexual or physical abuse of his daughter. The father and mother made a formal complaint to the NHS Trust, which set up an Independent Review Panel with two Assessors who were consultant paediatricians experienced in child abuse cases. The Panel report concluded that the consultant had been right to admit the daughter to hospital but found that she had acted too quickly in carrying out examinations. The report further noted that examinations and photographs should not have been taken without the parent s presence; that while the consultant was not to blame for misdiagnosing the bruises, she should have monitored them and obtained a dermatologist's opinion as a matter of urgency; that the father should have been properly consulted and interviewed; and that the consultant had attached far too much importance to the bruising, neglecting other relevant information available from the father, the mother and the family doctor. Finally, the report noted that the consultant had failed to write to the father with an explanation and an apology. In March 2001 the applicants brought proceedings in negligence against the local authority and the hospital trust claiming compensation for personal injury and financial loss. In November 2002 the county court judge struck out the claims, finding that no duty of care arose between the local authority and the father and that the hospital, but not the local authority, had owed a duty of care to the daughter. The applicants appealed and in July 2003 the Court of Appeal allowed the daughter's claim to proceed against the local authority as well as the hospital. However, the Court of Appeal dismissed the father's appeal (together with the appeals of the other conjoined appellants). 5 On appeal to the House of Lords - JD v East Berkshire Community Health NHS Trust and Others 6 - with Lord Bingham dissenting, the House of Lords held that there were cogent reasons of public policy for holding that no common law duty of care should be owed to the parents and, accordingly, it would not be just or reasonable to impose such a duty. 7 In their Lordships view, professional investigators did not owe a person suspected of having committed abuse a duty for liability in damages if they carried out that investigation in good faith but carelessly. An alleged interference with family life did not justify according a suspected parent a higher level of protection than any other suspected perpetrators and 5 MAK and RK v East Berkshire Community Health NHT Trust and others [2003] EWCA Civ [2005] 2 AC Applying Caparo Industries v Dickman [1990] 2 WLR 558.

4 such people were adequately protected by the requirement that the investigators act in good faith. The decision of the European Court Before the European Court the applicants now claimed that the investigations and the resulting dismissal of their claims constitute a violation of article 3 (prohibition of inhuman and degrading treatment), article 6 (the right to a fair trial), article 8 (the right to private and family life) and article 13 (the right to an effective remedy in domestic law). The claim under article 3 was dismissed because the Court felt that any anguish and distress that had been suffered by the father flowed, inevitably, from measures which were otherwise compatible with the Convention, there being no special element suffered by him that went beyond that inherent loss. The Court noted that 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, it would be 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 the execution of their duties. Given that finding, the facts that the father lived in a closeknit Muslim community and that an allegation of abuse would cause shame locally and abroad did not constitute a special element of suffering. The Court did, however, find a violation of article 8 of the Convention. It first noted that medical and social authorities had duties to protect children and could not be held liable every time genuine and reasonably held concerns about the safety of children vis-à-vis members of their family were proved, retrospectively, to have been misguided. Applying that principle, the Court held that in view of the available evidence in the present case, it had been reasonable for the consultant paediatrician to suspect abuse and consequently to contact social services. Further, although the information about the bicycle accident had been apparently ignored, the continued suspicions of the local authority had, in the circumstances, been justified as the parents themselves were under suspicion, and any explanation that they had provided understandably had to be treated with caution. Also, the bicycle accident had only accounted for one of the daughter s apparent injuries: even if the paediatrician had accepted the mother s account, the bruising had remained unexplained and abuse could not be ruled out. With respect to the need to interview the girl, the Court found that not to have been indispensable, as even in the case of denial by the girl of any abuse, it had been unlikely that abuse could have been excluded as a possible cause of the marks. However, the Court noted that a dermatologist had been consulted four days after the girl s admission into hospital, when the mother had noticed that her daughter also had marks on the hands. Had the dermatologist been consulted immediately, as recommended by the Independent Panel, the daughter s condition could have been diagnosed some days earlier. Accordingly, the Court found that while it had been justified for the authorities to suspect abuse at the time of the daughter s admission in hospital, the delay in consulting a dermatologist had undermined their efforts to

5 protect her from harm. Further, domestic law and practice clearly required the consent of parents before any medical intervention could take place. There was no evidence to suggest that her condition had been critical, that she had been in any pain or discomfort, or that her situation had been either deteriorating or likely to deteriorate before her mother s arrival. Nor was there any reason to believe that her mother would have withheld consent; even if she had, the hospital could have applied to the court for an order requiring the tests to be conducted. In the circumstances, therefore, the Court found no justification for the decision to take a blood test and intimate photographs, against the express wishes of both her parents. Accordingly, the Court found that there had been a violation of the applicants right to respect for their family life under article 8 and a violation of article 13, as the father should have had available to him at least a means of claiming that the local authority had been responsible for any damage which he had suffered and of obtaining compensation for that damage. Commentary Whether public authorities are accountable for their negligent acts impacts on a number of European Convention rights, which are now contained in and directly enforceable under the Human Rights Act Firstly, article 6 guarantees the right to a fair trial and in Osman v United Kingdom 8 it was held that if an authority is immune from action in the law of negligence this may deny the victim the right of access to the courts and to a legal remedy, and thus breach article 6. However, in Z v United Kingdom, 9 the European Court restricted the effect of Osman and declared that the limits to suing public authorities allowed by substantive domestic law are not in breach of article 6. In Z the Court held that Osman had been based on a misunderstanding of the law of negligence cases were not automatically excluded but were struck out on their merits after applying policy factors which were part of the substantive law of negligence. Article 6 thus did not give protection from the substantive law but provided a procedural right to bring actions. As a consequence, some of the immunities granted to public bodies have survived the passing of the Human Rights Act 1998 and remain valid legal obstacles to negligence actions as far as article 6 is concerned. 10 However, with respect to child abuse cases, the domestic courts have taken a flexible and fluid approach with some immunities remaining and others being modified. Thus, in JD v East Berkshire Community Health NHS Trust, 11 the House of Lords modified its decision in X v Bedfordshire CC with respect to children, but maintained the rule that no duty of care was owed towards parents in such cases. In that case their Lordships accepted that there were strong policy grounds for striking out most cases brought by parents alleging that the authorities had caused them harm in negligently carrying out their duty to investigate abuse. Such a claim would conflict with the authorities main duty to investigate child abuse and to protect the child and it would not be fair and reasonable to impose a duty in those cases. 8 (2000) 29 EHRR (2002) 34 EHRR 3 10 See, for example, Brooks v Commissioner of Police of the Metropolis [2005] UKHL [2005] 2 All ER 443

6 In contrast, in Barrett v Enfield Borough Council, 12 the House of Lords refused to strike out a claim against a local authority where the claimant who had been in care for 17 years alleged that the local authority had failed to take reasonable care in protecting him from physical abuse. The House of Lords held that cases should only be struck out for policy reasons when the action was certain to fail and the policy should not be used where the law was uncertain and developing. Here the boy was actually in care as opposed to being taken into care and there were no sound policy reasons for exempting claims in such circumstances. 13 Whatever approach is taken with respect to article 6, article 13 of the European Convention guarantees the right to an effective remedy in domestic law with respect to breaches of Convention rights. Although article 6 does not preclude the granting of immunities, article 13 would preclude them in respect of claims under other Convention rights. Thus in DP and another v United Kingdom, 14 the European Court held that although on the facts there was no liability under articles 3 or 8 when social services had failed to identify child abuse, there was still a breach of article 13. This was because the applicants did not have available to them an effective domestic procedure of inquiry for establishing the facts and shedding light on the conduct expected of the social services department. So too, in MAK and RK, the Court found a violation of article 13 as the Convention rights of the parent applicants were not sufficiently accommodated at the time of the initial domestic proceedings. At the very least, therefore, the domestic courts must provide an appropriate forum for claimants to raise Convention rights and arguments, together with an appropriate, real and effective remedy if the action is successful. Thus, the remedy may come from the development of the common law action in tort or via a direct action under the Human Rights Act 1998, or indeed both. In any case the claimant s Convention claims must be accommodated and the case law of the European Court taken into account. Further, there have been a number of successful applications under article 8 where the actions of the authorities have found to be in violation of the substantive and procedural obligations under that article. For example, in TP and KM v United Kingdom 15 it was held that failure to allow a parent the right of representation and to refute allegations of abuse before her children were taken into care constituted a violation of article 8. Conclusion The case of MAK and RK adds to the case law in this area, the Court identifying a number of substantive and procedural errors made by various state agencies that led ultimately to a violation of article 8. Such alleged errors would now, of course, be the basis of similar claims in the law of negligence, where allowed, but in the Human Rights Act era such claims are bolstered by the claimants Convention rights. Thus, if claimants are able to break down the previous tortious immunities, they will rely on article 8 in addition to their civil claims in the law of negligence. Alternatively where 12 [1999] 3 All ER See also W v Essex CC [2002] 2 All ER (2003) 36 EHRR (2002) 34 EHRR 2

7 the immunities survive, or at the choice of the claimant, a direct action under the Human Rights Act can be brought against the public authority.