CEDH · CASELAW;CLIN;ENG — 23 mars 2010

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 128 March 2010 M.A.K. and R.K. v. the United Kingdom - 45901/05 and 40146/06 Judgment 23.3.2010 [Section IV] Article 8 Article 8-1 Respect for family life Delays in referring suspected child-abuse victim to specialist to determine cause of her injuries: violation   Respect for private life Medical examination of suspected child-abuse victim without parental consent or court order: violation   Facts – After suffering what appeared to be bruising on her legs, a nine-year-old girl (the second applicant) was taken to see a consultant paediatrician by her father (the first applicant). The paediatrician said that the bruising did not appear to be a skin disease and admitted the girl to hospital for further examination. As he had to go to work, the father left the hospital after leaving instructions with the hospital that no further medical examination or tests were to be carried out until his wife arrived and gave the necessary consent. On her arrival an hour later, the wife discovered that blood samples and photographs of the girl’s legs had nonetheless been taken. She gave consent for further examination, and was subsequently informed by the paediatrician that there was evidence of sexual abuse. No questions about the suspected abuse were put to the girl. The father was not allowed to visit his daughter at all that day and thereafter only under supervision. Although in the interim the wife had informed the paediatrician that the girl had recently complained to her that she had hurt herself riding her bicycle, the paediatrician was insistent that there had been sexual abuse. A few days later, after noticing marks on the girl’s hands, the wife arranged for her to be seen by a dermatologist. The girl was later diagnosed with a rare skin disease and discharged from hospital. The paediatrician wrote a letter stating that there was insufficient evidence to consider that the girl had been abused. Following a complaint by the applicants, an Independent Review Panel found that the girl should have been interviewed about the marks on her skin and that, while the paediatrician was not to be blamed for misdiagnosing the bruises, she should have sought a dermatologist’s opinion as a matter of urgency. The applicants were unsuccessful in proceedings in negligence against the local authority and hospital trust. Law – Article 3: While child-protection measures were generally liable to cause parents distress and on occasion humiliation if they were suspected of failing in their parental responsibilities, it would be contradictory to the effective protection of children’s rights to hold that authorities were automatically liable to parents under this provision whenever they erred, reasonably or otherwise, in their execution of their duties. There consequently had to be a factor apart from the normal implementation of those duties for the matter to come within the scope of Article   3. While the Court did not doubt the first applicant’s distress at being mistakenly suspected of abuse, this did not constitute a special element such as to cause his suffering to go beyond that inherent in the implementation of the measures. Conclusion : inadmissible (manifestly ill-founded). Article 8: (a) Hospital visiting restrictions – In the absence of any legal basis for the initial decision to prevent the first applicant from visiting the second applicant on the night of her admission to hospital, there had been a violation of both applicants’ rights to respect for their family life. Thereafter, although the first applicant was granted visiting rights for the remainder of the second applicant’s stay in hospital, this had been under supervision and so constituted a continuing interference. That interference was in accordance with the law and pursued the legitimate aim of protecting the second applicant’s rights. On the question whether the interference had been necessary in a democratic society, it had been reasonable, in view of the available evidence, for the paediatrician to suspect abuse and contact social services. While it must have been frustrating for the parents that the information about the bicycle accident had apparently been ignored, the continued suspicions of the local authority had been justified as the parents were themselves under suspicion and any explanation they provided had to be treated with caution. In any event, the bicycle accident had only accounted for one of the apparent injuries. The Court was, however, concerned about two of the Independent Review Panel’s other findings. As to the first – the need to interview the girl about the allegations of abuse – the Court found this not to have been indispensable as, in the absence of a medical diagnosis for the bruising, it was unlikely that any denial by the second applicant would, or indeed could, have been taken at face value or, therefore, that abuse could have been ruled out as a possible cause of her injuries at an earlier stage. Of greater concern was the panel’s finding that a dermatologist’s opinion should have been obtained as a matter of urgency. It was not until four days after the girl’s admission to hospital, when the mother noticed marks on her daughter’s hands, that a dermatologist had been consulted, thus permitting a diagnosis. Accordingly, while there had initially been relevant and sufficient reasons for the authorities to suspect abuse, the delay in consulting a dermatologist had prolonged the interference and was not proportionate to the legitimate aim of protecting the second applicant from harm. There had thus been a violation of both applicants’ rights to respect fortheir family life. (b)     Tests conducted without parental consent – Domestic law and practice clearly required the consent of parents or those exercising parental responsibility before any medical intervention could take place. The parents had given express instructions that no further tests were to be carried out until the mother’s arrival. In view of those instructions, the only possible justification for the decision to proceed with the blood test and photographs was that they were required as a matter of urgency. However, there was no evidence to suggest that the second applicant’s condition was critical, deteriorating or likely to deteriorate, or that she was in any pain or discomfort. Nor had there been any reason to believe that the mother would have withheld consent and, even if she had, the hospital could have sought a court order authorising the tests. In the circumstances, there had been no justification for the decision to take a blood test and intimate photographs of a nine-year-old girl, against the express wishes of both her parents, while she was alone in hospital. The interference with the second applicant’s private life was, therefore, not in accordance with domestic law. Conclusion : violation (unanimously). Article 13: The first applicant had had no means available to him of claiming that the local authority had been responsible for any damage which he had suffered and of obtaining compensation for that damage. Conclusion : violation (unanimously). Article 41: EUR 2,000 to the first applicant and EUR   4,500 to the second applicant in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes