Information Note on the Court’s case-law 105

February 2008

D. and R.K. and A.K. v. the United Kingdom (dec.) - 38000/05

Decision 12.2.2008 [Section IV]

Article 8

Article 8-1

Respect for family life

Respect for private life

Measures taken by the authorities to protect children wrongly suspected of being victims of child abuse: (a) registration on at-risk register: inadmissible (b) care order: admissible

Article 3

Degrading treatment

Decision to place child in care because of suspected abuse after failure to diagnose brittle-bone disease: inadmissible

The applications in D . and Others concern two separate cases in which measures were taken by the authorities to pr otect young children who were wrongly suspected by doctors to have been victims of abuse.

In the first case ( D .), the applicant was wrongly diagnosed by a hospital doctor of exaggerating or fabricating the severe allergy problems her then six-year-old son had been suffering from since birth. The applicant was not informed of the diagnosis and only became aware of it some two years later (in March 1997) on a chance reading of her son’s medical records. In June 1997 the child was placed on the at-risk register in the emotional-abuse category. However, following an assessment of his condition carried out with the appl icant’s agreement on an acute ward, his symptoms were found to be genuine and his name removed from the register.

The case of RK and AK concerned an immigrant family with a poor command of English. Their two-month old baby suffered a fracture of the femur after being picked up by the maternal grandmother. The mother and grandmother were interviewed without an interpreter by a consultant p aediatrician who, in view of their apparent inability to explain the injury, concluded that it had been inflicted. The possibility of a genetic condition stemming from the fact that the parents were first cousins was not examined. The police and social ser vices were informed and the child placed in the interim care of an aunt after its discharge from hospital. A full care order was made three months after the initial incident and the mother and grandmother were branded liars by the county court judge. Howev er, after sustaining a second injury while in the aunt’s care, the child was found to be suffering from brittle bone disease. The care order was dismissed and the child returned to the applicants some nine months after the first injury. By this time the en tire local community and relatives and acquaintances overseas had become aware that the family was suspected of harming the child.

The applicants in both cases brought an action in damages against the hospital authorities. Their claims were dismissed at fi rst instance, inter alia , on the grounds that, as parents, they were not owed a duty of care. Those decisions were upheld by the Court of Appeal and the House of Lords, with the latter explaining that the seriousness of child abuse as a social problem dema nded that health professionals, acting in good faith in what they believed were the best interests of the child, should not be subject to potentially conflicting duties when deciding whether a child may have been abused by its parents. Accordingly, there c ould be no claim for professional negligence and an action would only lie in the absence of good faith.

(a) Case of D .: Inadmissible under Articles 6, 8 and 13 – The applicant was never separated, formally or legally, from her son. Nor was any step taken regarding the son’s medical care or treatment without her consent. While in retrospect the applicant had become aware that various professionals harboured suspicions that she may have been exaggerating or fabricating her son’s illness, the Court was not pe rsuaded that this had had any direct effect on her enjoyment of her right to respect for her family or private life. The fact that her son’s name was placed on a register was an administrative step which alerted the authorities to the need to address conce rns as a matter of some urgency. Even if it was a possible forerunner of care measures, these had not transpired as the suspicions of abuse were, in the event, defused by the specialist. Even assuming, therefore, that the applicant could claim to be a vict im of an interference with her rights under Article 8, such interference could be considered to have been necessary for the protection of her son’s rights. In so finding, the Court emphasised that mistaken judgments or assessments by medical personnel did not per se reveal procedural shortcomings, that the child’s health had given considerable cause for concern, that a number of professionals had received negative impressions from the applicant’s conduct and that, once the applicant had agreed to her son’s assessment, the suspicion of fabricated or induced illness had been dispelled and her son’s name removed from the at-risk register immediately, having been on it for a total of just under four months. The Article 13 complaint failed for lack of any arguabl e claim of a violation of Convention rights. As regards Article 6, there was no basis for finding that any of the alleged procedural defects in the handling of the case had impinged on the determination of any existing civil right: manifestly ill-founded .

(b) Case of RK and AK : Admissible under Article 8 and Article 13.

Inadmissible under Article 3 – The Court reiterated that Article 3 could not be relied on where distress and anguish, however deep, flowed inevitably from measures which were otherwise comp atible with the Convention, unless there was a special element which caused the suffering to go beyond that inherent in their implementation. Given the authorities’ responsibility under Article 3 to protect children from severe abuse, it would be contradic tory to the effective protection of children’s rights to hold them automatically liable to parents under this provision whenever they erred, reasonably or otherwise, in the execution of their duties. There had to be a factor apart from the normal implement ation of those duties which brought the matter within the scope of Article 3. In the applicants’ case, it was not disputed that their child had suffered an injury which could not initially be accounted for. While the Court did not doubt the applicants’ dis tress, the fact that they had mistakenly been suspected of abuse and their account of events had been considered unsatisfactory or false, could not be regarded as constituting special elements in the sense identified: manifestly ill-founded .

Inadmissible u nder Article 6 – (i) criminal limb : No charge had been brought and no decision was taken to prosecute. Even if the police could have reconsidered at a later stage, that was not sufficient to disclose the determination of any “criminal charge”: incompatible ratione materiae .

(ii) civil limb : Article 6 did not apply to internal child-protection procedures as such. Nor was there any indication that any aspects of those procedures had impinged on the fairness of any proceedings before the courts in respect of t he applicants: manifestly ill-founded .

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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