Right to Privacy and Protection of Children and Families

MAK and RK v United Kingdom [2010] ECHR 363 (23 March 2010)

The European Court of Human Rights has held that restrictive hospital visiting conditions imposed on a father, the first applicant, suspected of abusing his daughter, the second applicant, breached the right to private and family life under art 8 of the European Convention on Human Rights.  Conducting a blood test and taking photographs of the child without first obtaining parental consent were also considered a violation of art 8.

Considering art 13, the Court held that the father's right to an effective domestic remedy was violated as there was no domestic redress available to him against the local authority.  The withdrawal of legal aid from the child, however, was not considered to breach art 13.

Facts

In 1997 the child, then aged 8, first visited a doctor after the father and his wife noticed bruising on her legs.  No medical abnormality was identified at that appointment.  Five months later, after her swimming teacher raised similar concerns about bruising, the parents returned to the doctor who referred the child to a paediatrician.  Shortly before the appointment with the paediatrician, the child had complained to her mother that she had hurt herself in the genital area while riding her bike.

The paediatrician concluded that the bruising was not symptomatic of a skin disease and admitted the child to hospital for further tests.  At the hospital, the father (who had to leave to go to work) instructed the paediatrician that no testing should be conducted until the child's mother arrived and provided consent.  Prior to her mother arriving, the child was nonetheless given a blood test, photographs were taken of her legs and a notification of suspected abuse by the father was made to the local authority.

When the father returned later that day to visit the child, he was told by a nurse that there were orders that he not be allowed to see her.  The following day, hospital staff were correctly informed that they could not prevent the father from visiting the child and he was allowed to see her, albeit under supervision.  Later that day the wife informed the paediatrician of the child's complaint about her injury while riding her bike.

A couple of days later, the mother noticed bruising on the child's hands so she arranged for the child to see a dermatologist. A rare skin disease was diagnosed and the child was discharged from hospital.  The paediatrician subsequently wrote to confirm that she now considered there was insufficient evidence to suggest the child had been abused and, as such, the father could no longer be implicated in that suggestion.

The applicants issued domestic proceedings against the local authority and hospital trust, alleging negligence.  The County Court found that the local authority did not owe the father a duty of care.  This was confirmed on appeal. The County Court also found that the hospital, but not the local authority, had owed the child a duty of care.  Despite having been granted leave to appeal this decision, the child's legal aid certificate was withdrawn because the likely costs were disproportionate to the value of the claim.

Decision

Art 3 (prohibition on torture, inhuman or degrading treatment or punishment)

Before the European Court, the father claimed that the accusation that he abused the child had caused him to suffer distress and humiliation, which was a breach of art 3 of the Convention.  The Court rejected this argument, observing that the authorities had an obligation to take measures to protect children from abuse and it would be counter-productive to the effective protection of children's rights to hold authorities liable whenever a mistake was made, whether or not the error was reasonable.  There was no special element in this case that took the level of distress to the father beyond that which inevitably flowed from the execution by the authority of its duty.

Art 8 (right to private and family life)

The Government accepted that the initial decision to prevent the father from visiting the child in hospital constituted an interference with both applicants' right to family life.  However the applicants also alleged that the visiting restrictions imposed on the father subsequently, and the hospital's failure to obtain parental consent for the blood test and photographs of the child, violated art 8 of the Convention.

The Court determined that the interference caused by requiring the father's remaining visits to be supervised was clearly imposed in pursuance of the legitimate aim of protecting the child.  Considering whether the interference could be regarded as ‘necessary in a democratic society’ for the purposes of art 8, the Court emphasised that ‘mistaken judgments or assessments by professionals do not per se render childcare measures incompatible’ with art 8 and it was satisfied there were sufficient reasons for the authorities to suspect abuse.  However it considered that the authorities' failure to consult a dermatologist as a matter of urgency was not proportionate to, and had undermined, the legitimate aim of protecting the child.  Further, there was no justification for conducting a blood test and taking the photographs of the child without parental consent.  Accordingly, there was a violation of the applicants' rights under art 8.

Art 6 (right to a fair and public hearing) 

The child alleged that the withdrawal of legal aid had violated her rights under art 6 § 1 of the Convention.  The critical question for the Court was whether the Government's restrictions on her right to access a court were legitimate and proportionate.  The Court accepted the Government's justification for deciding to withdraw funding.  It was relevant to its decision that there were avenues to appeal the decision to withdraw legal aid.

Art 13 (right to an effective domestic remedy)

As there was no domestic redress available to the father against the local authority at the relevant time (the Human Rights Act 1998 (UK) was not yet in force) the Court accepted there had been a violation of his human rights under art 13 of the Convention.  However the Court did not accept that the withdrawal of legal aid from the child was a breach of art 13 as she was still able to pursue her claim, albeit without legal aid.

Relevance to the Victorian Charter

This decision may inform the Court's interpretation of s 13 (respect for a person’s private life) and s 17 (protection of families and children) of the Victorian Charter.  In particular, the analysis of whether the interference, although considered legitimate, was 'necessary in a democratic society' provides useful guidance for the application of s 7 (reasonable limitations) of the Charter to the rights enshrined in these sections.

While authorities will not be held responsible for erroneously implementing protective measures for suspected incidents of child abuse, this case emphasises that such protective measures must not interfere with private and family life beyond what is considered necessary.

The decision is available at www.bailii.org/eu/cases/ECHR/2010/363.html.

Carly Dunn is a lawyer and Abigail Gill is a Senior Associate with Allens Arthur Robinson