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Wednesday, February 18, 2009
  Maltreatment of Mothers in care proceedings and Article 3
I have linked this blog post to the European Court Judgment that the government use to justify the lawfulness of the maltreatment of mothers (particularly, but also fathers) in Public Family Law Proceedings.

The key part of the judgment is as follows:
2. The case of RK and AK
a. Article 3 of the Convention

The Court recalls that the Government have argued that this complaint falls to be dismissed for non-exhaustion of domestic remedies pursuant to Article 35 § 1 of the Convention since the applicants did not rely on this provision in the domestic proceedings. It does not rule on this issue since this part of the application must be rejected for the following reasons.

The Court’s case-law establishes that Article 3, which prohibits torture and inhuman or degrading treatment or punishment cannot be relied on where distress and anguish, however deep, flow, inevitably, from measures which are otherwise compatible with the Convention, unless there is a special element which causes the suffering to go beyond that inherent in the their implementation (see, mutatis mutandis, Tyrer v. the United Kingdom judgment of 25 April 1978, Series A no. 26, p. 15, § 30; Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, p. 39, § 100; V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999-IX). Child protection measures will, generally, cause parents distress and on occasion humiliation, if they are suspected of failing, in some way, in their parental responsibilities. However, given the responsibility of the authorities under Article 3 to protect children from severe abuse, whether mental or physical, it would be somewhat 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. As mentioned above, there must be a factor apart from the normal implementation of those duties which brings the matter within the scope of Article 3.

In the present case, where it is not disputed that their child suffered an injury which could not initially be accounted for, while the Court does not doubt the applicants’ distress at events, the fact that they were mistakenly suspected of abuse, and their account of events considered to be unsatisfactory or false, cannot be regarded as constituting special elements in the sense identified above. It follows that this complaint must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

Where the government lawyers err is in their argument that the trauma caused to mothers is "inevitable". Other countries manage to do a better job in terms of protecting children whilst also not causing the same trauma to parents (particularly mothers).
 
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