CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 23 mars 2010

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RK was born in 1989.   On two occasions, in September 1997 and February 1998, M.A.K. took his daughter to their family doctor because he, his wife and their daughter’s swimming teacher were concerned about what appeared to be bruising on her legs. They followed it up by a visit, in March 1998, to a paediatrician in a public hospital who had blood samples and pictures of the girl taken in the absence of either of the parents and despite the father’s indication that any tests should be done in the mother’s presence or with her explicit consent. The paediatrician concluded, after examining the girl’s genitalia and legs, that she had been sexually abused and informed the social workers. When the girl’s parents attempted to visit their daughter in hospital later that day, a nurse prevented the father from seeing the girl referring to orders to that effect.   The following day, hospital staff were informed that there could be no restrictions on visitors. The father was thereafter permitted to visit his daughter, although all visits were supervised on account of the suspicion that she had been sexually abused.   On the day after admitting the girl into hospital, her mother remembered and told the paediatrician of an incident which had happened three days earlier when her daughter had complained that she hurt herself when riding her bike. The doctor ignored that information reiterating that there was no doubt the girl had been abused. As a result, the social workers instructed the mother to sleep in the room with her daughter as a precautionary measure.   A few days later, after noticing marks on the girl’s hands, her mother arranged for her to be seen by a dermatologist. Following this, R.K. was diagnosed with a rare skin disease and was discharged from hospital. The paediatrician wrote a letter stating that as there was insufficient evidence to consider that the girl had been abused, her father should no longer be considered to be implicated in the sexual abuse of his daughter.   M.A.K. and R.K. complained before the NHS Trust. An Independent Panel set up by the Trust found 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 and the girl should have been interviewed about the marks on her skin. The applicants then brought proceedings for negligence against the local authority and hospital trust claiming compensation for personal injury and financial loss. Both M.A.K. and R.K. were legally aided during the first instance proceedings, but R.K. had her legal aid withdrawn during the subsequent appeals. The final domestic judicial instance, the House of Lords, found against the applicants.   Complaints, procedure and composition of the Court   Relying on Article   3 (prohibition of inhuman or degrading treatment), M.A.K. alleged that he suffered distress and humiliation as a result of the accusations against him. The applicants also complained, under Article   8, about the visiting restrictions during the ten days that R.K. was in hospital and that a blood sample and photographs were taken without parental consent. Further relying on Article   6   §   1 (right of access to a court), R.K. complained that legal aid was withdrawn from her during the appeal proceedings against the local authority and hospital for compensation. Lastly, M.A.K. complained that, in breach of Article   13 (right to an effective remedy), he could not claim compensation for damage caused by the local authority’s handling of his daughter’s case on account of the domestic courts’ finding that there was no common law duty of care owed to parents.   The applications were lodged with the European Court of Human Rights on 18   October   2005 and 28 September 2006 respectively.   Judgment was given by a Chamber of seven judges, composed as follows:   Lech Garlicki (Poland), President , Nicolas Bratza (the United Kingdom), Giovanni Bonello (Malta), Ljiljana Mijović (Bosnia and Herzegovina), Ján Šikuta (Slovakia), Mihai Poalelungi (Moldova), Nebojša Vučinić (Montenegro), Judges , and Fatoş Aracı, Deputy Section Registrar .     Decision of the Court   Article 8   The Court noted that the authorities, both medical and social, had duties to protect children and could not be held liable every time genuine and reasonably held concerns about the safety of children vis ‑ à ‑ vis members of their family were proved, retrospectively, to have been misguided.   In view of the available evidence in this case, it had been reasonable for the paediatrician to suspect abuse and consequently to contact social services. Moreover, while it must have been frustrating for the parents that the information about the bicycle accident had been apparently ignored, the Court found that the continued suspicions of the local authority had been justified in the circumstances. As the parents had been themselves under suspicion, any explanation that they had provided understandably had to be treated with caution. In addition, the bicycle accident had only accounted for one of R.K.’s apparent injuries. Even if the paediatrician had accepted the mother’s account, the bruising had remained unexplained and abuse could therefore not be ruled out.   Concerning the need to interview the girl, as concluded by the Independent Panel, the Court found that not to have been indispensable: even in the case of denial by the girl of any abuse, it had been unlikely that abuse could have been excluded as a possible cause of the marks.   However, a dermatologist had been consulted only four days after the girl’s admission into hospital, when the mother had noticed that her daughter had marks also on the hands. Consequently, had the dermatologist been consulted immediately, as recommended by the Independent Panel, R.K.’s condition could have been diagnosed some days earlier.   The Court therefore found that while it had been justified for the authorities to suspect abuse at the time of R.K.’s admission in hospital, the delay in consulting a dermatologist had undermined their efforts to protect R.K. from harm.   In addition, domestic law and practice clearly required the consent of parents or those exercising parental responsibility before any medical intervention could take place. There was no evidence to suggest that R.K.’s condition had been critical, that she had been in any pain or discomfort, or that her situation had been either deteriorating or likely to deteriorate before her mother’s arrival. Finally, there had been no reason to believe that her mother would have withheld consent, and even if she had, the hospital could have applied to the court for an order requiring the tests to be conducted. In the circumstances, the Court found 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 had been alone in the hospital.   Accordingly, there had been a violation of the applicants’ right to respect for their family life under Article 8.   Article 13   M.A.K. should have had available to him a means of claiming that the local authority had been responsible for any damage which he had suffered and of obtaining compensation for that damage. As such redress had not been available at the relevant time, the Court held that there had been a violation of Article 13.   All the other complaints were rejected by the Court.   Article 41   Under Article 41 (just satisfaction), the Court held that the United Kingdom is to pay M.A.K. 2.000   euros (EUR) and R.K. EUR   4.500 in respect of non-pecuniary damage, and to both applicants jointly EUR 15.000 for costs and expenses.   ***   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 Kristina Pencheva-Malinowski (telephone : 00 33 (0)3 88 41 35 70) or Stefano Piedimonte (telephone : 00 33 (0)3 90 21 42 04) Tracey Turner-Tretz (telephone : 00 33 (0)3 88 41 35 30) Céline Menu-Lange (telephone : 00 33 (0)3 90 21 58 77) Frédéric Dolt (telephone : 00 33 (0)3 90 21 53 39) Nina Salomon (telephone: 00 33 (0)3 90 21 49 79)   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.