John Hemming's Web Log John's Reference Website
Friday, October 03, 2008
  RK and AK v The United Kingdom
The link is to this case on Bailli. When I first saw the headline I thought it related to an Oldham case of medical misdiagnosis where the rules of court prevented the parents from obtaining a second opinion without permission - a real contravention of a fair trial that is systematic in the Family Division.

It, however, refers to the question of having an effective remedy. This issue is not resolved by the 1998 Human Rights Act. It does raise the issue about the masses of cases involving errors by experts that the UK is now clearly liable.

The summary from the European Court's Website is as follows:
R.K. and A.K. v. the United Kingdom (38000/05)
The applicants, R.K., and his wife, A.K., are British nationals who were born in 1972 and 1976, respectively. They live in Oldham (United Kingdom). They have a daughter, M., who was born in July 1998.

In September 1998 M. was taken to hospital with a fractured femur; doctors concluded that the injury had not been accidental and she was placed in the care of her aunt. Following another injury, M. was diagnosed with brittle bone disease. She was returned home in April 1999. The case concerned the applicants’ complaint that their daughter was placed temporarily in care due to a medical misdiagnosis. They relied on Articles 8 (right to respect for private and family life) and 13 (right to an effective remedy).

It was not disputed that the interim care order had interfered with the applicants’ right to respect for their family life. That interference had been “in accordance with the law” and pursued the legitimate aim of protecting M.. Indeed, the authorities, medical and social, had a duty to protect children and could not be held liable every time genuine and reasonably-held concerns about the safety of children in their families were proved, retrospectively, to have been misguided. The Court considered that M., a three-month old baby, had suffered a serious and unexplained fracture and that the social or medical authorities could not be faulted for not immediately diagnosing brittle bone disease, a very rare and difficult condition to identify in small infants. Moreover, the baby had been placed within her extended family and in close proximity to her parents’ home so that they could frequently and easily visit. As soon as another fracture had occurred outside of the applicants’ care, further tests had been carried out and, within weeks, M. had been returned to her home. The Court was therefore satisfied that the domestic authorities had had relevant and sufficient reasons to take protective measures, which had been proportionate in the circumstances and had given due and timely account to the applicants’ interests. Accordingly, the Court held unanimously that there had been no violation of Article 8.

However, the Court found that the applicants should have had available to them a means to claim that the local authority’s handling of procedures had been responsible for any damage they had suffered and to claim compensation. As such redress had not been available at the relevant time, the Court held unanimously that there had been a violation of Article 13 and awarded the applicants, jointly, EUR 10,000 in respect of non-pecuniary damage and EUR 18,000 for costs and expenses. (The judgment is available only in English.)

It does, of course, raise serious questions about the proportionality of other cases.
 
Comments:
I have a case where a Health Visitor is alleged to have breached NHS Trust policy and therefore is at risk of disciplinary action because she failed to follow what she perceived as an intrusive surveillance policy on a child who was on the CP register for reasons subsequently proven to be false and the child removed at the first opportunity. The HV visited the child 4 times in the 6 month period (trust policy stipulates monthly)- hence the allegation of misconduct.
The HV wishes to defend her practice on the basis of proportionality. i.e. her professional judgement (by which she still stands, despite pressure from her employers to concede)was that this family needed as normalised a process of HV surveillance as she could provide, in order to cope with the stigma (after the inevitable consequence of removal from the register)of having been on the register.
The outcome of this disciplinary hearing is to be decided next week. Are you aware of any information or source of potential information that may support our case?
 
Individual case questions about live cases are best handled via email. Alternatively discuss them on the JFF boards. This sounds a case I would like to hear more about.
 
i have a a complex case where the county are trying to hide the cact that the evedence was fabricated by a malicous social worker , they are have witheld evidence and are now insisting out of time to take action against the person
 
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