RK and AK v United Kingdom  ECHR 38000(1)/05 (30 September 2008)
The European Court of Human Rights has held that a UK decision of a public authority to remove a child from its family, on the basis of an incorrect diagnosis, was not a breach of art 8 of the European Convention of Human Rights which provides for the right to respect for private and family life. Rather, the Court held that there was a breach of art 13, the right to an effective remedy, in that there was no adequate remedy at the national level for an incorrect diagnosis.
In 2001, the parents of a two month old baby, M, brought a claim against a hospital and paediatrician regarding a wrong diagnosis in 1999 that led to their baby being put into care. The paediatrician had concluded that baby M had sustained a non-accidental injury (ie, an inflicted injury) after she was brought into hospital by her parents with a fractured bone. The paediatrician came to this conclusion based on interviews with the parents, however the mother could not speak much English, and an interpreter was not provided at the interviews. M was not tested for brittle bone disease. Further interviews were held by the police and social workers, and a child protection conference was held. It was decided that the baby be placed under an interim care order until a second medical opinion could be obtained.
A few months later, whilst in care, M sustained another injury. Further tests were undertaken and she was diagnosed with brittle bone disease. She was released from care.
In 2001 the parents bought a claim for breach of their art 8 right to respect family life in that M was unjustifiably subject to care proceedings. They also claimed a breach of their art 13 right to a remedy, because no remedy was available in the UK for a violation of their rights.
The Court first considered whether there was a breach of art 8, which provides that:
- Everyone has the right to respect for his private and family life, ...
- There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of rights and freedoms of others.
Both parties agreed that the interim care order interfered with the applicants’ right to respect for their family life. The question was whether that interference was justified within the exceptions listed in part 2 of art 8. The Court found that the hospital had acted in accordance with the law for the protection of rights and freedoms of M.
The Court held that public authorities cannot be held liable for a mistaken medical and/or social welfare assessment that led to child protection measures, where there was a genuine and reasonable concern for the safety of the child in the circumstances. As brittle bone disease is extremely difficult to diagnose in small children, and the (later) testimony of the mother was not convincing even with an interpreter, the Court found that the authorities had acted reasonably in the circumstances. The Court held that there was no breach of art 8, as there were valid reasons for the authorities to take measures to protect M, and these measures were proportionate to the aim of protecting M.
The Applicants also claimed that there had been a breach of art 13 of the Convention, which provides that:
Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.
The Court held that an avenue must be available at the national level for applicants who have an arguable claim that their rights under the Convention had been violated. The Court determined that there was an arguable case, and that as there was no avenue available at the national level to claim a violation of the rights under the Convention, there had been a breach of art 13.
Relevance to the Victorian Charter
Section 17 of the Charter provides that families should be protected by society and the State and that children have the right to protection in their best interest.
This case indicates that where public authorities, as defined by the Victorian Charter and working in health, give meaningful consideration to the rights engaged by their decisions and where those decisions are proportionate to their legitimate and evidenced-based concerns, the decision will be lawful. This case also indicates the importance of human rights-based decision making procedures to ensure that where decisions are made which infringe a right, that decision is justified and proportionate.
Sarah Mount is a lawyer with Minter Ellison