Re: Damages for parents in care case


"Big Les Wade" <Les@xxxxxxxxxxx> wrote in message
news:k3NebAMIa14IFwNP@xxxxxxxxxxxxxxxxxxxx
The Todal <deadmailbox@xxxxxxxx> posted

It's a bad decision, at any rate. The law in the UK, which makes very
good
sense, is that social workers owe no actionable duty of care to the
parents
because when considering a child's welfare they must not be threatened
with
lawsuits that will make them timid about taking abused children from their
abusive parents.

It makes very bad sense, because it effectively makes them untouchable.
Social workers should be compelled to accept a legal duty of care to *all*
members of a family. That would still allow them to take children into
care where necessary, provided they could show they had considered
everyone's interests and then made a decision that they reasonably
believed was the best available compromise.

In other words, you are saying that they should regularly be sued so that
the courts can decide whether or not they have carried out their duties
properly. That is the only alternative to saying that they owe no duty of
care.

Needless to say (and it shouldn't be necessary to point this out) if a
social worker does his/her job wrongly they can be disciplined or dismissed
(see eg Lisa Arthurworrey) and certainly have every reason to fear that
possibility, should they do their work carelessly. And as you can see, Ms
Arthurworrey's life has been destroyed because everyone decided to blame her
for the Climbie case.

Anyway, it isn't easy to bring up this ECHR judgment so I'll quote most of
it, to assist anyone who is interested. Hope this helps.

+++

CASE OF R.K. and A.K. v. THE UNITED KINGDOM

I. THE CIRCUMSTANCES OF THE CASE
6. The applicants, United Kingdom nationals and husband and wife, were born
in 1972 and 1976 respectively, and live in Oldham.
7. The applicants had a daughter M. born on 24 July 1998.
8. On 26 September 1998, M. screamed with pain when picked up by the
maternal grandmother. The parents and grandmother took M. to the hospital.
The triage nurse made a note of information given by the family. That note
stated that the mother, rather than the grandmother, had "yanked" M.
9. An X-ray showed a displaced slightly-comminuted fracture of the midshaft
of the femur. While it was noted that there was no history of metabolic bone
disease in the family, it was not noted that the parents were first cousins,
an incident relevant to a possible genetic condition. Neither the mother nor
grandmother spoke much English; no Pushtu interpreter was provided. A
consultant paediatrician, Dr Blumenthal, interviewed the parents and
grandmother early in the morning the next day, again without an interpreter.
He noted that none of them appeared to know how the injury had occurred. He
concluded that it was an inflicted injury and told the parents this.
10. The police were informed. The parents were interviewed on 27 September
1998 by a social worker. He was unable to communicate with the mother due to
language difficulties.
11. On 28 September 1998 the health visitor for the family was interviewed
and stated that she had had no concerns about the family.
12. On 29 September 1998 the police interviewed the parents with an
interpreter present.
13. On 30 September 1998, a social worker interviewed the family again and
indicated that medical opinion was clear that M. could not have been injured
by being picked up in the manner described by the grandmother. She warned
that without a convincing explanation for the injury a child protection
conference would have to be called.
14. On 14 October 1998, in light of the doctor's conclusion of
non-accidental injury (NAI), the Child Protection Conference decided to seek
a second opinion but that meanwhile an interim care order should be
obtained. Such care order was issued and parental responsibility given to
the local authority on 16 October 1998.
15. On 23 October 1998, M. was discharged from hospital into the care of
her aunt. The parents were allowed supervised contact.
16. The parents obtained legal advice and jointly instructed an expert,
with M.'s guardian, inter alia, to clarify whether tests had been carried
out to exclude brittle bone disease. However no further tests were carried
out at this stage.
17. On 23 December 1998, the County Court judge found that the mother and
grandmother were liars and knew more about the injury than they were
prepared to reveal (they had given evidence through an interpreter which
they allege was suspect) and that as the father was convinced of the
innocence of his wife, he was disqualified as a person capable of protecting
M. He ordered M. to be placed in care. M. remained with her aunt who lived a
few hundred yards from the family home.
18. On 29 March 1999, M. sustained a second injury in her aunt's care.
Bilateral femoral fractures were found and following further tests she was
diagnosed with osteogenesis imperfecta ("OI", commonly known as brittle bone
disease). Professor Carty and Dr Paterson were consulted at this time by Dr
Blumenthal and inter alia did not find any ground for reaching a diagnosis
of OI in preference to a non-accidental injury at the time of the first
injury.
19. After discharge from hospital, M. returned home in April 1999.
20. On 17 June 1999, the care order was discharged and M. returned to her
parents. In her report to the court dated 14 June 1999, M.'s guardian ad
litem noted, inter alia, that this had been a particularly perplexing case,
in which a diagnosis of non-accidental injury in respect of the first injury
had appeared to be the most likely explanation while not fitting with the
other information, essentially positive, which had emerged about the family.
She also noted that all the experts agreed that medical evidence available
to the court at the time of the interim care order was as complete as it
could be at that time and that a diagnosis of bone disorder could not have
been made at the time of the first injury.
21. The entire local community were aware that the family had been
suspected of harming M. and the family had been extremely shocked and
shamed. Rumours had spread to Pakistan that the mother had been put in
prison. The parents' relationship with M. and with the grandmother were
severely affected and disrupted as a result of events.
22. On 24 September 2001 the parents brought claims for negligence and
breach of their Article 8 rights against the hospital trust and the
consultant paediatrician.
23. On 4 December 2002, the High Court found no duty of care was owed to
the parents and that the Human Rights Act 1998 ("HRA 1998") did not apply to
events before it came into force on 2 October 2000. The parents appealed.
24. Leave to appeal to the Court of Appeal was granted. Two other cases
raising similar issues were considered at the same time.
25. On 31 July 2003, concerning the parents' claims in the three cases, the
Court of Appeal held as regards allegations under Article 6 that no
violation of this provision was involved, referring to Strasbourg judgments
(Z. and Others v. the United Kingdom ([GC], no. 29392/95, ECHR 2001-V and
T.P. and K.M. v. the United Kingdom ([GC], no. 28945/95, ECHR 2001-V). It
found that while domestic law now recognised that there was a duty of care
in relation to children, whose best interests were always paramount, there
was a potential conflict of interest between the child and the parents, as
it would always be in the parents' best interests for the child not to be
removed. Where consideration was being given to whether child abuse
justified measures, a duty of care could be owed to the child but not to the
parents. It upheld the rulings of the various County Court judges as a
result.
26. After a hearing on 31 January and 1 and 2 February 2005, the House of
Lords gave judgment on 21 April 2005. They affirmed the orders made by the
first-instance judges and Court of Appeal. Lord Nicholls, in his judgment
with which the majority agreed, found inter alia:
"70. There are two cardinal features in these cases. One feature is that a
parent was suspected of having deliberately harmed his or her own child or
having fabricated the child's medical condition. The other feature, which is
to be assumed, is that the ensuing investigation by the doctors was
conducted negligently. In consequence, the suspected parent's life was
disrupted, to a greater or lesser extent, and the suspected parent suffered
psychiatric injury.
71. It is the combination of these features which creates the difficult
problem now before the House. In the ordinary course the interests of parent
and child are congruent. This is not so where a parent wilfully harms his
child. Then the parent is knowingly acting directly contrary to his parental
responsibilities and to the best interests of his child. So the liability of
doctors and social workers in these cases calls into consideration two
countervailing interests, each of high social importance: the need to
safeguard children from abuse by their own parents, and the need to protect
parents from unnecessary interference with their family life.
72. The first of these interests involves protection of children as the
victims of crime. Child abuse is criminal conduct of a particularly
reprehensible character: children are highly vulnerable members of society.
Child abuse is also a form of criminal conduct peculiarly hard to combat,
because its existence is difficult to discover. Babies and young children
are unable to complain, older children too frightened. If the source of the
abuse is the parent, the child is at risk from his primary and natural
protector within the privacy of his home. This both increases the risk of
abuse and means that investigation necessitates intrusion into highly
sensitive areas of family life, with the added complication that the parent
who is responsible for the abuse will give a false account of the child's
history.
73. The other, countervailing interest is the deep interest of the parent in
his or her family life. ... Interference with family life requires cogent
justification, for the sake of children and parents alike. So public
authorities, should, so far as possible, cooperate with the parents when
making decisions about their children. Public authorities should disclose
matters relied upon by them as justifying interference with family life.
Parents should be involved in the decision-making process to whatever extent
is appropriate to protect their interests adequately.
74. The question raised by these appeals is how these countervailing
interests are best balanced when a parent is wrongly suspected of having
abused his child. Public confidence in the child protection system can only
be maintained if a proper balance is struck, avoiding unnecessary intrusion
in families while protecting children at risk of significant harm... Clearly
health professionals must act in good faith. They must not act recklessly,
that is without caring whether an allegation of abuse is well-founded or
not. Acting recklessly is not acting in good faith. But are health
professionals liable to the suspected parents if they fall short of the
standard of skill and care expected of any reasonable professional in the
circumstances? Are they exposed to claims by the parents for professional
negligence? ...
75. In considering these questions the starting point is to note that in
each of these three cases... the doctors acted properly in considering
whether the claimant parents had deliberately inflicted injury on the child
in question. The doctors were entitled, indeed bound to consider this
possibility. Further, having become suspicious, the doctors rightly
communicated their suspicions to the statutory services responsible for
child protection. That is the essential next step in child protection...
76. In each case the suspected parent was eventually cleared of suspicion.
In one case this was after ten days, in the other cases after much longer
periods. The second point to note is that, essentially, the parents'
complaints related to the periods for which they remained under suspicion.
In each case the parent's complaint concerns the conduct of the clinical
investigation during these periods; the investigation, it is said, was
unnecessarily protracted. The doctors failed to carry out the necessary
tests with appropriate expedition. Had due care and skill been realised from
the outset, the doctors' suspicions would have been allayed at once or much
more speedily than occurred, and, in consequence, the parents would have
been spared the trauma to which they were subjected. Thus the essence of the
claims is that the health professionals responsible for protecting a
suspected child victim owe a person suspected of having committed a crime
against the child a duty to investigate their suspicions, a duty sounding in
damages if they act in good faith but carelessly.
77. Stated in this broad form, this is a surprising proposition. In this
area of the law, concerned with the reporting and investigation of suspected
crime, the balancing point between the public interest and the interest of a
suspected individual has long been the presence or absence of good faith...
78. This background accords ill with the submission that those responsible
for the protection of a child against criminal conduct owe suspected
perpetrators the duty suggested. The existence of such a duty would
fundamentally alter the balance in this area of the law. It would mean that
if a parent suspected that a babysitter or a teacher at a nursery or school
might have been responsible for abusing her child, the doctor would owe a
duty of care to the suspect...
79... <Counsel> did not contend for such a broad proposition... His
submission was more restricted.... That the health professionals' duty to
exercise due professional skill and care is owed only to the child's primary
carers, usually the parents, as well as the child himself. ...
80. My initial difficulty... is that the distinction between primary carers,
to whom the duty would be owed, and other suspects to whom it would not, is
not altogether convincing. It is difficult to see why, if a health
professional owes no duty to a childminder or teacher suspected of abuse, he
should nonetheless owe such a duty to a parent suspected of abuse. An
erroneous suspicion that a childminder or school teacher had been abusing a
child in his or her care can be very damaging to him or her. ...
81. There is, however, one major difference between parents and childminders
or school teachers,. In the case of a parent suspicion may disrupt the
parent's family life. ... So the crucial question ... is whether this
potential disruption of family life tilts the balance in favour of imposing
liability in negligence where abuse by a parent is erroneously suspected...
....
85. In my view the Court of Appeal reached the right conclusion on the
issue... Ultimately the factor which persuaded me that, at common law,
interference with family life does not justify according a suspected parent
a higher level of protection than other suspected perpetrators is the factor
conveniently labelled 'conflict of interest'. A doctor is obliged to act in
the best interests of his patient. In these cases the child is his patient.
The doctor is charged with the protection of the child, not with the
protection of the parent. The best interests of a child and his parent
normally march hand-in-hand. But when considering whether something does not
feel 'quite right', a doctor must be able to act single-mindedly in the
interests of the child. He ought not have to have at the back of his mind an
awareness that if his doubts about intentional injury or sexual abuse prove
unfounded he may be exposed to claims by a distressed parent.
86. ... the seriousness of child abuse as a social problem demands that
health professionals, acting in good faith in what they believe are the best
interests of the child, should not be subject to potentially conflicting
duties when deciding whether a child may have been abused, or when deciding
whether their doubts should be communicated to others, or when deciding what
further investigatory or protective steps should be taken. The duty to the
child in making these decisions should not be clouded by imposing a
conflicting duty in favour of parents or others suspected of having abused
the child. ..."
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
27. The applicants complained that their right to respect for family life
had been violated by their separation from their child, that their right to
moral and physical integrity under the private life aspect had been
violated, that their right to reputation had been violated, affecting their
right to establish and develop relationships with other human beings and
that they had been deprived of the right to have inherent procedural
safeguards in place and observed to ensure the protection of the above
rights. Article 8 of the Convention provides as relevant:
"1. Everyone has the right to respect for his private and family life, ....
2. There shall be no interference by a public authority with the exercise
of this right except such as is in accordance with the law and is necessary
in a democratic society in the interests of national security, public safety
or the economic well-being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the protection of the
rights and freedoms of others."
A. The parties' observations
1. The applicants
28. The applicants submitted that they had had no choice but to consent to
the interim care order. They argued that it was not a matter of a mere error
of medical judgment but a concatenation of events which led to inappropriate
social and legal consequences flowing from an erroneous diagnosis, without
any appropriate safeguards to prevent it. Once Dr Blumenthal formed the view
that M. had suffered a NAI, he discounted all other possibilities and his
care was deemed substandard by their expert in the domestic negligence
proceedings, Dr Conway. Further the applicants were excluded from all
discourse in the matter; A.K. was provided with no translator during her
conversations with nursing staff and Dr Blumenthal, and she was given no
opportunity to correct mistaken factual assumptions. No weight was given to
the fact that they had no prior history with social services or that the
health visitor had had no concerns with M.'s care, her view not even being
sought initially and later being discounted. They pointed out that the
failure to order other tests to exclude OI highlighted a complete reluctance
to consider other possible causes of the fracture and the possibility of a
skin biopsy was never raised at all, excluding them from the decision-making
process. They were never given an effective opportunity to deal with
allegations, referring to the case of T.P. and K.M. v. the United Kingdom
([GC], no. 28945/95, ECHR 2001-V). They drew attention to the fact that Dr
Paterson had become a totally discredited expert in OI, receiving adverse
comments from judges in child care proceedings and being struck off in 2004
for professional misconduct. Finally, the notes of the triage nurse
contributed to highly negative assumptions being made about A.K. in
particular and about the way in which the fracture occurred, influencing not
only Dr Blumenthal's diagnosis but also Professor Carty's. Dr Conway was
never asked about OI but about Dr Blumenthal's standard of professional care
in which his own credentials were impeccable.
29. The applicants emphasised that, while M. was returned home in April
1999, the public care was not revoked until June 1999, so that their rights
were affected for nine months and suspicions, anxieties and restrictions
lingered on. They emphasised that their much-loved three-month-old
first-born baby had been taken away from them and they had been accused of
deliberately injuring her. A.K. could no longer be with her 24 hours a day,
or throughout the night, as would have happened if she had not been removed
and the parents had to endure a daily wrench of separation.
30. Furthermore, the applicants argued that if the interferences did not
reach the threshold of severity under Article 3, they disclosed serious
interferences with their moral and physical integrity and damage to their
reputation, for which no justification has been put forward by the
Government, thus constituting a breach of Article 8 in its private life
aspect.
2. The Government
31. The Government accepted that the removal of M. from home interfered
with family life but submitted that the interference was justified as being
fully in accordance with domestic law and necessary to protect M. They
pointed out that the separation was less than nine months (only from October
1998 to April 1999), that she lived with her aunt not far from her parents'
home and saw her parents almost as much as when she was at home due to
supervised, but unlimited, access. They considered that the social services
had acted reasonably and in M.'s best interests in responding to concerns of
medical professionals. The possibility of OI was considered from the outset
but there was no medical evidence at that stage to support such a diagnosis,
an independent expert also finding no bone abnormalities or radiological or
clinical evidence of OI. When the second fractures occurred, there was
prompt reconsideration of the diagnosis and a third opinion sought which
also indicated that no-one could have made a diagnosis of OI in the first
instance, the child having a confused history, with lots of discrepancies
and an essentially-normal skeletal survey. That expert also cautioned
against the utility of urine and other biochemical tests in arriving at a
confirmed OI diagnosis. The Government emphasised the extreme difficulty in
diagnosing mild OI in a very young infant such as M., requiring a trajectory
and progression of the condition over a period of time. They drew attention
to the view of the guardian ad litem of M. who stressed that a diagnosis of
OI or any other bone disorder could not have been made at the time of the
first injury. They argued that the errors in the notes made by the triage
nurse at the outset were not determinative or influential. While the
applicants placed reliance on their expert in the domestic proceedings, the
Government pointed out that he was a consultant paediatrician without any
expertise in childhood bone diseases, in particular OI. They rejected as
without substance other allegations of breaches of Article 8 concerning
physical and moral integrity and damage to reputation and private life.
B. The Court's assessment
1. Concerning family life
32. It is not disputed in the present case that the proceedings instituted
as regarded M., and the interim care order which resulted in M. being placed
away from the applicants, constituted an interference with the applicants'
right to respect for their family life within the meaning of the first
paragraph of Article 8. It must therefore be determined whether this
interference was justified under the second paragraph, namely whether it was
"in accordance with the law", pursued an aim or aims that are legitimate
under paragraph 2 of this provision and can be regarded as "necessary in a
democratic society".
33. The Court finds no reason to doubt that the interference complied with
the first two criteria, as conforming with domestic law requirements and
pursuing the legitimate aim of protecting the rights of others, namely the
child who had suffered injury.
34. As to whether the interference was "necessary in a democratic society",
the Court's case-law interprets this phrase as requiring consideration in
particular of whether, in the light of the case as a whole, the reasons
adduced to justify the measures were "relevant and sufficient", and whether
the decision-making process involved in measures of interference were fair
and afforded due respect to the interests safeguarded by Article 8. Account
must also be given to the fact that the national authorities have the
benefit of direct contact with all the persons concerned. It is not the
Court's task to substitute itself for the domestic authorities in the
exercise of their responsibilities regarding custody and access issues.
While the authorities enjoy a wide margin of appreciation, in particular
when assessing the necessity of taking a child into care, a stricter
scrutiny is called for in respect of any further limitations, such as
restrictions placed by those authorities on parental rights of access (see,
amongst many authorities, T.P. and K.M., cited above, §§ 71-72).
35. In the present case, the Court notes that the applicants have made
various complaints about the conduct of various professionals involved in
the case, essentially referring to an accumulation of errors and alleging a
lack of safeguards in place to prevent the erroneous diagnosis that the
injuries were caused non-accidentally (see paragraph 28 above).
36. The Court would re-iterate that mistaken judgments or assessments by
professionals do not per se render child-care measures incompatible with the
requirements of Article 8. The authorities, medical and social, have duties
to protect children and cannot be held liable every time genuine and
reasonably-held concerns about the safety of children vis-à-vis members of
their families are proved, retrospectively, to have been misguided. In the
present case, it is incontrovertible that M., a baby of only a few months,
suffered a serious and unexplained fracture. It is not disputed that OI is a
very rare condition and also difficult to diagnose in very small infants.
The Court does not consider that the social or medical authorities can be
faulted for not reaching an immediate diagnosis of OI or, in the absence of
such a diagnosis, acting on the basis that the injury could have been caused
by the parents. No doubt it would have been better if the triage nurse had
taken more accurate notes as to the family's account of what had happened
and trouble had been taken to obtain interpretation in medical staff's
conversations with A.K. who did not understand English. However, it is not
apparent that this would have dissipated concerns at this early stage since
there would still not have been any clear indication of how the fracture had
occurred. Furthermore, it may be noted that, even when official
interpretation was available, in court, the testimony of A.K. was not found
to be convincing.
37. The applicants' complaints very much amount to criticising the way in
which the professionals, medical and legal, were prepared to suspect the
worst on the information available to them and failed immediately to
perceive their innocence or give them the benefit of any doubt. Nonetheless,
it must also be noted that, while an interim care order was issued with a
view to protecting M., steps were also taken to place the baby within her
extended family and in close proximity to the applicants' own home so that
they could easily and frequently visit. And crucially, as soon as a further
fracture occurred outwith the applicants' care, further tests were quickly
pursued and within weeks M. was returned home.
38. The Court further notes that M. was removed from the applicants' care
for a period of some seven months. It is not impressed by the applicants'
complaint that the care order was not removed for some further two months.
This was largely a formality, the further lapse of time not imposing any
identifiable concrete prejudice. As to the time which elapsed before the
correct diagnosis was made, the Government referred to the medical opinions
of two doctors obtained at the time of diagnosis of OI which considered that
there was no fault in not reaching this conclusion at the time of the first
injury. The applicants emphasised that one of these doctors was later
totally discredited. However, the Court is not called upon to adjudicate,
retrospectively, as to the best medical practice or the most reliable expert
opinion. It is satisfied that there were relevant and sufficient reasons for
the authorities to take protective measures, such measures being
proportionate in the circumstances to the aim of protecting M. and which
gave due account and procedural protection to the applicants' interests, and
without any lack of the appropriate expedition.
39. There has, accordingly, been no violation of Article 8 of the
Convention in this regard.
2. Concerning other aspects of Article 8
40. The applicants also claimed that the events complained of above invaded
their physical and moral integrity and damaged their reputation in violation
of Article 8 of the Convention.
Having regard to its conclusions above as to the lawfulness and necessity of
the measures, the Court considers that in the circumstances no separate
issue arises.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
41. The applicants complained that they had no effective remedy for their
above complaints, invoking Article 13 of the Convention which provides:
"Everyone whose rights and freedoms as set forth in [the] Convention are
violated shall have an effective remedy before a national authority
notwithstanding that the violation has been committed by persons acting in
an official capacity."
A. The parties' submissions
42. The applicants argued that Article 13 was applicable and that none of
the remedies referred to by the Government would have satisfied that
provision. As regarded the HRA 1998, it was expressly because the events
took place before it came into force that they could not avail themselves of
that legislation. It was difficult for them to understand why recognising a
duty of care in relation to events before 2 October 2000 would have had such
unacceptable consequences for child protection since it was available
afterwards. They maintained their view that in tort public policy concerns
have meant that a wide de facto immunity from suit was allowed to public
bodies. At the time the tort of negligence was the only remedy in national
law capable of determining the substance of their Convention complaints but
the House of Lords chose not to recognise that they fell within its ambit.
43. The Government accepted that there was an arguable claim and
notwithstanding the variety of remedies available (local authority social
service and NHS complaints procedures, the local authority and NHS
ombudsmen, judicial review of the relevant authorities and appeals against
any court orders) they acknowledged that they were arguably obliged under
Article 13 to ensure an enforceable right to compensation was available for
such damage as could have been proved to have resulted from any violation of
Article 8. They submitted that as from 2 October 2000 such a remedy was
provided by the HRA 1998 (sections 7 and 8) although this did not apply to
the acts in issue in these proceedings. They pointed out though that there
was no prior obligation to incorporate the Convention in domestic law or to
incorporate it with retrospective effect as the applicants appeared to
contend. They also refuted assertions concerning alleged exclusionary rules
applied to protect public authorities from suit.
B. The Court's assessment
44. The effect of Article 13 is to require the provision of a remedy at
national level allowing the competent domestic authority both to deal with
the substance of the relevant Convention complaint and to grant appropriate
relief, although Contracting States are afforded some discretion as to the
manner in which they conform to their obligations under this provision.
However, such a remedy is only required in respect of grievances which can
be regarded as arguable in terms of the Convention (see Halford v. the
United Kingdom, judgment of 25 June 1997, Reports of Judgments and Decisions
1997-III, p. 1020, § 64; and Camenzind v. Switzerland, judgment of 16
December 1997, Reports 1997-VIII, pp. 2896-97, § 53).
45. It is common ground in this case that the applicants' complaints about
the interference with their family life through the care measures were
arguable. The Court considers that the applicants should have had available
to them a means of claiming that the local authority's handling of the
procedures was responsible for any damage which they suffered and obtaining
compensation for that damage (T.P. and K.M., cited above, §§ 108-109). Such
redress was not available at the relevant time. Consequently, there has been
a violation of Article 13 of the Convention in this regard.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
46. Article 41 of the Convention provides:
"If the Court finds that there has been a violation of the Convention or the
Protocols thereto, and if the internal law of the High Contracting Party
concerned allows only partial reparation to be made, the Court shall, if
necessary, afford just satisfaction to the injured party."
A. Damage
47. The applicants claimed 15,000 pounds sterling (GBP) each for
non-pecuniary damages as regarded their complaints under Article 8 to
reflect the separation of nine months from the child, the public suspicion
and criticism suffered by AK, the mental distress at the continuing fear of
separation from their child, the concern that their innocence has never
publicly been vindicated and that details of the unfounded allegations may
remain in local authority files. They also claimed GBP 4,214 each for the
violation of Article 13 referring to the lack of any effective remedy for
their concerns which required them to spend three and a half years in
domestic proceedings and then to bring their case here.
48. The Government claimed that these claims were excessive pointing out
that only GBP 10,000 was awarded in TP and KM v. the United Kingdom (cited
above), where there had been separation of a year, whereas there had been a
shorter period of separation and the child in the present case had in fact
been placed in the care of an aunt who lived nearby. An award of GBP 10,000
jointly to the applicants was sufficient for any violation of Article 8 and
no further award necessary for any breach of Article 13.
49. The Court recalls that it has only found a violation under Article 13
of the Convention. Not doubting that the applicants did in that regard
suffer frustration, stress and uncertainty which would not be redressed by a
finding of a violation alone, and having regard to awards in similar cases,
the Court, making its assessment on an equitable basis, awards the
applicants 10,000 EUR jointly.
B. Costs and expenses
50. The applicants claimed legal costs and expenses as regarded their
representation by counsel and solicitor in the amount of GBP 32,803.43,
which sum took into account the award of legal aid from the Council of
Europe and included value-added tax. They also claimed GBP 11,230 for advice
and work done by the AIRE Centre.
51. The Government considered that the number of hours claimed (130 by the
solicitors and 117 by AIRE Centre) were clearly excessive and contained an
significant element of duplication. They considered an award of some GBP
10,000, inclusive of VAT should be awarded.
52. The Court recalls that the procedure was in writing, that no further
submissions on the merits were put in after admissibility and that the
applicants were only successful on one complaint. It also concurs with the
Government that considerable duplication is disclosed by the claims put in
for work by solicitor, counsel and experts from the AIRE Centre. Having
regard also to the finding of only one violation, it awards EUR 18,000 for
legal costs plus any tax that may be payable by the applicants.


.

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