CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 16 mars 2010

.s800EAC49 { font-size:12pt } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s29100277 { font-family:Arial; font-weight:bold } .sA678F94A { margin-top:0pt; margin-bottom:0pt; text-align:right; font-size:11pt } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s7ED160F0 { text-decoration:none } .s2F5E426D { font-family:Arial; font-size:6pt; font-weight:bold; vertical-align:super; color:#0069d6 } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s4F2785A5 { font-family:Arial; font-size:10pt; font-weight:bold; font-style:italic; text-decoration:underline; color:#0069d6 } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .sE0D34C67 { font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic } .s1F6AC3E7 { font-family:Arial; font-size:11pt; font-style:italic } .sA36B60A1 { font-family:Arial; font-style:italic } .sE32676A1 { margin-top:0pt; margin-bottom:0pt; text-align:center; page-break-after:avoid; font-size:11pt } .sEE1EDB13 { font-family:Arial; font-weight:normal; font-style:italic } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s99A63BFE { margin-top:0pt; margin-bottom:0pt; text-align:left; font-size:11pt } .s4BAE41EE { font-family:Arial; font-size:11pt } .sA101A847 { font-family:Arial; font-size:11pt; font-weight:bold } .s11AD46B1 { font-family:Arial; font-size:7.33pt; vertical-align:super; color:#0069d6 } .sBACB3E60 { font-family:Arial; font-size:11pt; text-decoration:underline; color:#800080 } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .s9FE28126 { margin-top:0pt; margin-right:42.5pt; margin-bottom:0pt; text-align:left; font-size:11pt } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .sB853CD26 { font-family:Arial; font-size:8pt } .sD66075BF { font-family:Arial; font-size:8pt; font-style:italic }   212 16.03.2010   Press release issued by the Registrar   Chamber judgment [1] A.D. and O.D. v. United Kingdom (application no. 28680/06)   ONE-YEAR OLD’S EXTENDED PLACEMENT IN FOSTER CARE DISPROPORTIONATE   Unanimously   Both applicants: Violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights   First applicant: Violation of Article 13 (right to an effective remedy) in conjunction with Article 8        Principal facts   The applicants, A.D. and her son O.D., are two British nationals, who were born in 1966 and 1996 respectively and live in Whitefield, Manchester. During medical examinations a few months after O.D.’s birth, physicians noticed several fractures to his ribs. Given the nature of the fractures and the lack of any clear explanation for them, a paediatrician concluded that they were sustained “non-accidentally”. The paediatrician dismissed the possibility, raised by A.D., that O.D. might have Osteogenesis Imperfecta (brittle bone disease).   The local authority placed O.D. on a register for children considered to be “at risk”. On receipt of a report from a paediatric radiologist, which concurred with the paediatrician’s conclusions, the local authority applied to the county court for an interim care order. On 7 May 1997 the county court granted an interim care order. The same day A.D., her partner and O.D. were required to relocate to a family resource centre so that an assessment could be made of this risk posed to O.D. The instructions given to the centre were ambiguous, and during the family’s 12-week stay a parenting assessment was conducted instead of a risk assessment.   In the absence of a risk assessment, the local authority believed that O.D. could not safely be placed with his parents. In August 1997 it obtained a second interim care order.   O.D. was placed with foster parents while a risk assessment was carried out by the National Society for the Prevention of Cruelty to Children (NSPCC) While O.D. was in foster care, A.D. and her partner had daily contact with him. On 27 October the NSPCC informed the local authority that O.D. should be returned to his parents without delay.   On 12 November 1997, while still in foster care, O.D. fell and was taken to hospital. An x-ray showed his bones to be thin and osteopenic. On 20 November 1997 the NSPCC submitted their risk assessment. They recommended that O.D. be returned quickly to his parents’ care, with a short period of prior increased contact. On 8 December 1997, O.D. was returned to his parents’ care. While subsequent examinations by several physicians led to differing assessments, a senior expert took the view that O.D. had brittle bone disease and that his fractures might have been caused by normal handling. Following a report prepared jointly by several physicians, the interim care order was discharged in July 1998.   A.D. subsequently complained to the local authority about the handling of the case and, following an investigation which found some of the authority’s practices to have been deficient, brought an action for damages against the authority on behalf of herself and O.D. The claims were rejected and the applicants’ appeal against this decision was dismissed in January 2006. The court of appeal held that A.D. had not been owed a duty of care by the local authority and that there was no evidence that O.D. had suffered any ”justiciable” damage.     Complaints, procedure and composition of the Court   The applicants complained that the decision to take O.D. into local authority care had violated their rights under Article 8 and that they had no effective remedy for their complaints, contrary to Article 13.   The application was lodged with the European Court of Human Rights on 12 July 2006.   Judgment was given by a Chamber of seven judges, composed as follows:   Lech Garlicki (Poland), President, Nicolas Bratza (United Kingdom) Giovanni Bonello (Malta), Ljiljana Mijović (Bosnia and Herzegovina), Ján Šikuta (Slovak Republic), Mihai Poalelungi (Moldova), Nebojša Vučinić ( Montenegro), judges,   and also Lawrence Early, Section Registrar.   Decision of the Court   The Court first reiterated that mistaken assessments by professionals did not automatically render childcare measures incompatible with the requirements of Article 8. It also observed that brittle bone disease was difficult to diagnose in small children and that although experts later found that O.D. had suffered from the disease from birth, it did not follow that the medical evidence relied on at an earlier stage had been inadequate, confused or inconclusive. The Court therefore considered that the authorities could not be blamed for not reaching an earlier diagnosis of the disease or, in the absence of such a diagnosis, acting on the assumption that the injury could have been caused by O.D.’s parents.   The Court was not satisfied, however, that it had been necessary to relocate the family far from their home for the purpose of conducting a risk assessment. Moreover, the Court noted that there had been a number of fundamental errors by the local authority in handling the case. It was evident and undisputed by the Government that the failure to conduct a risk assessment during the applicants’ stay in the family centre was a relevant factor in the decision to place O.D. in foster care. When finally produced, the risk assessment report recommended a speedy return of the child to his parents. There was therefore a real chance that, had the proper assessment been conducted earlier, O.D. might never have been placed in foster care.   Furthermore, the Court was not satisfied that less intrusive measures had not been available for conducting a risk assessment, such as placement with relatives, and it found that the local authority had dismissed these possibilities too quickly. Finally, the Court found that the delay in returning O.D. to his parents after the NSPCC’s recommendation had not been reasonable. The Court therefore unanimously concluded that, while there had been sufficient reasons for the authorities to take initial protective measures, the subsequent interference with the applicants’ right to respect for their family life had not been proportionate, in violation of Article 8.   With regard to the complaints under Article 13, the Court noted that A.D. was in a comparable position to the applicants in another case [2] , in which the Court had held that prior to the introduction of the Human Rights Act in the United Kingdom in 1998 there had been no effective means of claiming damages for negligence by the local authority and that this had amounted to a violation of Article 13. In the present case, there were no reasons to depart from those findings. The Court thus unanimously found that there had been a violation of A.D.’s rights under Article 13. O.D. had been in a different situation, however. Given that the local authority had a duty of care for him, he had been entitled to bring a claim in negligence against the authority, and he had done so. The right of bringing such a claim and to appeal against an unfavourable decision normally constituted an effective domestic remedy. There had therefore been no violation of Article 13 in his case.   Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicants jointly 15,000 euros in respect of non-pecuniary damage.   The judgment is available only in English. This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its   website ( http://www.echr.coe.int ).     Press contacts   Nina Salomon (tel: + 33 (0)3 90 21 49 79) or Stefano Piedimonte (tel: + 33 (0)3 90 21 42 04) Tracey Turner-Tretz (tel: + 33 (0)3 88 41 35 30) Kristina Pencheva-Malinowski (tel: + 33 (0)3 88 41 35 70) Céline Menu-Lange (tel: + 33 (0)3 90 21 58 77) Frédéric Dolt (tel: + 33 (0)3 90 21 53 39)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] R.K. and A.K. v. the United Kingdom (No. 38000(1)/05, 30 September 2008)