Resolution CM/ ResDH (2012)6 5 [1]

Execution of the judgment of the European Court of Human Rights

M.A.K and R.K against the United Kingdom

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”) [2] ,

Having regard to the judgment transmitted by the Court to the Committee once it became final;

Case name (App. No.)

Judgment of

Final on

M.A.K and R.K (45901/05)

23/03/2010

23/06/2010

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent State, where appropriate, of individual measures to put an end to the violations and as far as possible to remedy their consequences for the applicant and general measures to prevent new, similar violations;

Having invited the authorities of the respondent State to provide an action plan concerning the measures proposed to execute the judgment;

Having, in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention, examined the action report provided by the government (see action report, document DH ‑ D D (2012)216E );

Having noted that the respondent State paid the a p plicant the just satisfaction, as provided in the judgment;

DECLARES, that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

Execution of Judgments of the European Court of Human Rights Action Report

MAK and RK v the United Kingdom (application nos 45901/05 and 40146/06; judgment final on 23rd March 2010) Information submitted by the United Kingdom Government on [date] October 2010

Case Summary

1. Case description:

- The case concerned the medical treatment of a child (the applicant together with her father) in March 1998 in a public hospital, in particular conducting tests on the second applicant without parental consent, the prevention without a legal basis of the first applicant from visiting his daughter due to suspicion of sexual abuse and failure to consult a dermatologist with due urgency to obtain an opinion regarding marks on the second applicant ’ s skin. The European Court found that the family separation which arose from the prevention of visiting rights whilst the second applicant was hospitalised amounted to an interference with the applicants ’ right to respect for family life.

- The Court held that there had been a violation of Article 8 in relation to both applicants and Article 13 in relation to the first applicant only.

Individual Measures

2. Just satisfaction:

- The just satisfaction award has been paid; evidence previously submitted.

- The Government considers no further individual measures are required, beyond the payment of just satisfaction, because the case was about the individual application of a policy on one occasion. The first applicant was subsequently no longer prevented from visiting the second applicant and so there was no on-going breach

General Measures

4. Publication:

- The case has been reported by a range of publishers of law reports in hard copy and online.

- It is accessible within the UK , for free, on www . bailii.org as well as on the website of the Court.

5. Dissemination:

- Article 13 infringement : The Government considers it is unnecessary to take further steps to disseminate the judgment because the events at question in these cases predate the coming into force of the Human Rights Act 1998: claims in relation to events of a similar nature which occurred after 1 October 2000 can be brought in the UK under this Act.

- Visiting Restrictions : statutory guidance to local authorities and others, set out in Working Together to Safeguard Children, was revised and issued in 2006 and 2010; revised Volume I of The Children Act 1989 Guidance and Regulations on Court Orders was revised and reissued in 2008. In the later guidance, paragraph 4.53 in the chapter on the Protection of Children, sets out clearly that where a Court makes an Emergency Protection Order (EPO) it may give additional directions as to the contact the child may have with certain persons and may be allowed to have with others. In circumstances such as those that arose in RK and MAK, the appropriate route for the local authority to take would be to apply for an EPO and to seek directions about the nature of contact between the child and his/her parents, rather than setting up informal arrangements to prevent or restrict contact. Both of the publications above give guidance on EPOs .

- Tests conducted without consent : The General Medical Council (GMC), the independent regulator for doctors, has issued a range of guidance setting out what is expected of doctors registered to practise in the United Kingdom, including 0 - 18 years:

guidance for all doctors ( http://www.gmc-uk.org/guidance/ethical_guidance / children_guidance_index.asp )

and specifically on consent

( http://ww w . g mc-uk.org )

and on making visual and audio recordings

( http://www.gmc-uk.org )

The Royal College of Paediatrics and Child Health (RCPCH) Child Protection Companion http://www.rc p ch.ac.uk/ provides additional detail.

The Department of Health issued an updated Reference guide to consent for examination

or treatment in 2009

( ht t p://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_103643 ) which provides a guide to the legal framework and cross-refers to the GMC guidance.

6. Other general measures:

7. - The Government considers that all necessary measures have been taken and the case should be closed .

[1] Adopted by the Committee of Ministers on 8 March 2012 at the 11 36 th Meeting of the Ministers’ Deputies .

[2] See also the Recommendations adopted by the Committee of Ministers in the context of the supervision of judgments of the European Court of Human Rights and in particular Recommendation Rec (2004)6 of the Committee of Ministers to member State s on the improvement of domestic remedies.