Communicated on 11 May 2018

FIRST SECTION

Application no. 87/18 S.W. against the United Kingdom lodged on 20 December 2017

STATEMENT OF FACTS

1. The applicant, S.W., is a British national. She is represented before the Court by Mr Michael Oswald of Bhatt Murphy Solicitors, a lawyer practising in London.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. In 2014 the applicant was employed as a social care worker by a local authority, which was involved in care proceedings before the domestic courts. Those proceedings concerned a number of child siblings who it was alleged by an older sibling had been sexually abused. The applicant was called as a professional witness to give evidence in support of the local authority ’ s case. The local authority succeeded at first instance but lost on appeal in the Family Court. The Family Court judge rejected the allegations of sexual abuse in his judgment of 17 October 2014.

4. In addition to setting out his findings about the sex abuse allegations, the judge of the Family Court included in the judgment adverse criticism of the local authority and professionals involved in the case including the applicant, which had not been raised or examined during the care proceedings. In particular, the judge found that the applicant was the principal instigator in a joint enterprise together with other professionals and the foster carer to obtain evidence to prove the sexual abuse allegations, irrespective of the underlying truth and irrespective of the relevant professional guidelines.

5. On 3 November 2014 the Family Court directed that the judgment be sent to the applicant ’ s then employer, who subsequently dismissed the applicant.

6 . After delivery of the judgment but prior to its publication, the judge in the Family Court held a series of hearings which addressed submissions by the applicant and a police officer concerned on some aspects of the judgment, and the decision not to anonymise the applicant and police officer. As a result, some changes to the text of the judgment were made but the adverse findings against the applicant remained, and the decision not to anonymise her was maintained.

7. The local authority appealed against the Family Court decision and the applicant and the police officer were joined as parties for the purpose of seeking amendment to the wording of the judgment.

8. On 17 November 2016, the Court of Appeal found that the applicant had not had any opportunity to meet or respond to the allegations against her.

9. After giving extensive consideration to the procedural situation, the Court of Appeal concluded that notwithstanding the fact that the applicant and the police officer were not full parties to the proceedings before the Family Court, they were entitled to seek an appeal, in light of the circumstances of the case.

10. The court then turned to the substantive issues and following a detailed review of the relevant case law of this Court, the Court of Appeal found that the criticism of the applicant contained in the judgment of the Family Court would breach her rights under Article 8 if the judgment was allowed to stand in the final form proposed. As to the process by which the judge arrived at his criticisms, the Court of Appeal found this was:

“97. f ) ... manifestly unfair to a degree which wholly failed to meet the basic requirements of fairness established under Art 8 and/or common law. In short, the case that the judge came to find proved against SW and PO fell entirely outside the issues that were properly before the court in the proceedings and had been fairly litigated during the extensive hearing, the matters of potential adverse criticism had not been mentioned at all during the hearing by any party or by the judge, they had certainly never been ‘ put ’ to SW or PO and the judge did not raise them even after the evidence had closed and he was hearing submissions.”

11. The Court of Appeal then went on to examine Article 6 and concluded:

“103. I have thus far concentrated upon the case of SW and PO with respect to fairness in the context of ECHR, Art 8 and the common law. The local authority is not able to engage with the rights established by Art 8, but it is entitled to the benefit of the right to a fair trial established by ECHR, Art 6 and to similar rights under the common law (for which see paragraph 89 above). During the hearing of this appeal no issue was taken to the effect that there was a distinction to be drawn on the facts of this case between the fair trial rights of the individuals, on the one hand, and the local authority on the other. Given the firm and clear view that I have reached as to the degree to which the process adopted here fell short of the standard of fairness to which those affected were entitled, it is unnecessary to do more than record that the same conclusion, in the context of Art 6 and the common law, must apply with respect to the adverse findings made against the local authority which had not been canvassed during the hearing and were outside the issues in the case .”

12. Examining the question of what remedy would be appropriate, the Court of Appeal found that the Family Court as a public authority had acted in a manner that was incompatible with the applicant ’ s Convention rights and therefore a remedy should be available under Sections 7 and 8 of the Human Rights Act 1998.

13. It first considered whether the post-judgment process (see paragraph 6) provided sufficient redress to the applicant and rejected that possibility, stating:

“108. Looking at this issue in general terms, it must, in some cases, be possible, where a court is contemplating making findings which may have arisen outside the original focus of the case, for the court to embark on a process which allows for those affected to make submissions and/or submit evidence in relation to those matters before final judgment is given ... For those additional steps to be an effective counter-balance to a process which might otherwise be seen as a whole to be unfair, they need, in my view, to be undertaken before the judge has reached a concluded decision on the controversial points. Whilst not impossible, it is difficult to conceive of circumstances where the overall fairness of the hearing could be rescued by any form of process after the judge has reached and announced his concluded decision. Where a court is considering making findings that have not, thus far, been foreshadowed in the proceedings I would suggest that, at the very least, the judge should alert the parties and, if necessary any affected witness, to the potential for such an outcome so that the steps ... and any other additional matters, can be openly canvassed during the hearing and before any judgment i s given.”

14. Accordingly the Court of Appeal concluded:

“119. ... it is incumbent on this court to provide a remedy and, so far as may be possible, to correct the effect of the unfairness that has occurred. In the present case what is sought is the removal from the judgment of any reference to the matters that were found by the judge against SW, PO and the local authority that fell outside the parameters of the care proceedings and had not been raised properly, or at all, during the hearing. ... then redaction must follow, subject to any submissions as to detail. I agree that this must be case. So that there is no ambiguity as to words such as ‘ removal ’ or ‘ redaction ’ in this context, I make it plain that the effect of any change in the content of the judge ’ s judgment that is now made as a result of the decision of this court is not simply to remove words from a judgment that is to be published; the effect is to set aside the judge ’ s findings on those matters so that those findings no longer stand or have any validity for any purposes. The effect is to be as if those findings, or potential findings, had never been made in any form by the judge.”

15. The applicant then sought and was granted the permission of the Court of Appeal to lift the reporting restrictions on the case solely for the purposes of bringing a claim under the Human Rights Act or for the tort of misfeasance in public office to obtain compensation for the breach of Article 8. This was granted and in August 2017 her representatives obtained copies of the relevant documents. Having received copies of those documents they advised her on 10 September 2017 that she had no domestic remedy in light of this Court ’ s decision in Hammerton v. the United Kingdom , no. 6287/10 , § 146, 17 March 2016.

16. According to the information submitted by the applicant, the parties to the domestic proceedings are in the process of agreeing the wording to be redacted from the Family Court judgment under the supervision of the Court of Appeal.

B. Relevant domestic law and practice

17. Section 9 (3) of the Human Rights Act 1998 limits the possibility of claiming damages where the act or failure of which an individual complains is a judicial act or failure:

“In proceedings under this Act in respect of a judicial act done in good faith, damages may not be awarded otherwise than to compensate a person to the extent required by Article 5(5) of the Convention . ”

18. A summary of the relevant provisions is set out in Hammerton , cited above, §§ 50-60.

COMPLAINTS

The applicant complains under Articles 6, 8 and 13 of the Convention that she does not have an effective domestic remedy available to her, as she cannot obtain compensation for the violations of Articles 6 and 8 in the domestic proceedings where section 9 (3) of the Human Rights Act precludes damages for judicial acts done in good faith. In this connection she highlights the fact she had no remedy for the loss of her employment, which occurred as a direct consequence of the judgment of the Family Court.

QUESTIONS TO THE PARTIES

1. Can the applicant claim to be a victim of a violation of the Convention, within the meaning of Article 34?

2. Did the applicant have a fair hearing in the determination of her civil rights and obligations, in accordance with Article 6 § 1 of the Convention?

3. Has there been a violation of the applicant ’ s right to respect for her private life, contrary to Article 8 of the Convention?

4. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?

5. Did the applicant have at her disposal an effective domestic remedy for her Convention complaints, as required by Article 13 of the Convention?