AD and OD v United Kingdom  ECHR 340 (16 March 2010)
The European Court of Human Rights has held that the United Kingdom breached its obligation to respect private and family life under art 8 of the European Convention on Human Rights because of errors made by a local child protection authority.
The errors lead to the removal of a child from his family for a period that was unnecessarily prolonged and in a manner that was overly disruptive way. The Court also held that there had been a breach of art 13 of the Convention because, at the time of the incident, no domestic redress was available for the child’s mother.
The first applicant was the mother of the second applicant, who was born in 1996. When the second applicant was a baby, he suffered a number of fractured ribs which were investigated by authorities. The first applicant raised the possibility that the fractures could be the result of brittle bone disease, but this was dismissed by the doctor and subsequent experts. It was concluded that the fractures were sustained ‘non-accidentally’ and, on the application of the local authority, an interim care order was issued. The family was required to live in a resource centre 150 miles away from their home town while assessments were carried out. This took 12 weeks, although the required risk assessment was not done because of a communication error. On the family’s return to their home town, the risk assessment was done and the second applicant was placed in foster care outside of the extended family. Whilst in foster care, the second applicant suffered another fracture and subsequent tests revealed evidence of brittle bone disease that was not evident when earlier tests were done. It was recommended in October 1997 that the second applicant be placed back with his family, but this was only done by the local authority six weeks afterwards.
The first applicant complained to the local authority, which undertook an investigation. Unsatisfied with the outcome, she undertook domestic legal proceedings alleging negligence against both her and her son. Their case was dismissed as it was held that the local authority did not owe her a duty of care, and her son had not suffered any recognisable harm.
The applicants alleged to the Court that their treatment violated art 8 (right to private and family life) of the Convention. They also alleged a breach of art 13 (right to effective domestic remedy) following their unsuccessful domestic legal action.
The Court unanimously held that art 8 was breached for both applicants. It was not disputed that the applicants’ family life was interfered within the meaning of art 8. It was therefore for the Court to determine whether this interference was justified; ie, whether the interference was in accordance with the law, whether it had a legitimate aim, and whether it could be regarded as necessary in a democratic society. It was ‘without question’ that the intervention by the local authorities conformed to UK law and was done with the legitimate aim of protecting the second applicant. The Court therefore considered the third requirement in detail, which included assessing whether the reasons adduced to justify the measures were ‘relevant and sufficient’.
The Court reiterated that ‘authorities enjoy a wide margin of appreciation when assessing the necessity of taking a child into care’, and that ‘mistaken judgments or assessments by professionals do not per se render childcare measures incompatible’ with art 8. This is because authorities ‘cannot be held liable every time genuine and reasonably held concerns’ about a child’s safety are later proven to be misguided. With this in mind, the Court considered the local authority’s actions in two parts: the initial decision to take action based on the perceived risk to the second applicant; and the subsequent handling of the case.
Regarding the initial decision to investigate, the Court held that the local authority could not be faulted on relying on the medical evidence at the time, given that this evidence was not ‘inadequate, confused or inconclusive’. Therefore, the reasons to justify the decision to investigate were ‘relevant and sufficient’. However, a number of subsequent actions amounted to failings that ‘both extended and exacerbated the interference with the applicants’ right to respect for their family life’. These failings included: the relocation of the family far from their home; the failure to ensure the correct risk assessment was done in the first place; dismissing without proper consideration the possibility of foster care with a relative; and the unreasonable length of time it took for the local authority to return the second applicant to the family after it was advised to do so. As a result, the Court held that the actions of the intervention were not necessary, and hence there was a breach of art 8.
Concerning art 13, the Court unanimously held that the first applicant’s right to a domestic remedy was breached, given that she could not mount a claim for damages because the local authority did not owe her a duty of care, and the relevant section of the Human Rights Act 1998 (UK) that would have allowed her to pursue her claim was not yet in force. However, the second applicant’s right was not breached, as a duty of care to him did exist. This meant that he did have a means of domestic legal redress, even if the domestic courts found that any damage he suffered was non-justiciable.
Relevance to the Victorian Charter
This case suggests that a court might consider the human rights implications of actions taken by Victorian child-protection authorities as two separate issues: first, the initial investigation; and second, subsequent actions that might adversely affect a family in question.
Although such authorities could be granted a wide discretion to investigate without fear of prosecution for making a genuine error, they would need to ensure that any subsequent disruptions to privacy and family life are no more than what is necessary in the circumstances. Otherwise, there could be a potential breach of ss 13 (right to privacy and reputation) and/or 17 (protection of families and children) of the Victorian Charter.
The decision is available at http://www.bailii.org/eu/cases/ECHR/2010/340.html.
Michael Dunstan, Secondee Solicitor, Human Rights Law Resource Centre