TP and KM v United Kingdom (app no 2894/95)
| Judgment Date | 22 November 2000 |
Human rights – Right to family life – Child care proceedings – Whether taking a child into care and separating from mother constituted an interference with their right to respect for family life – Whether interference in accordance with the law – Whether interference pursuing an aim that was legitimate – Whether interference necessary in a democratic society – European Convention on Human Rights, art 8.
Human rights – Right to a fair trial – Civil right – Access to court – Case struck out as disclosing no reasonable cause of action – Whether the striking out procedure, which ruled on the existence of sustainable causes of action, per se offending the principle of access to court – European Convention on Human Rights, art 6.
Human rights – Right to an effective remedy – Arguable claim of Convention violation – Possibility of applying to the Ombudsman and to the Secretary of State for failing to provide the applicants with any enforceable right to compensation – Whether applicants had available to them an appropriate means for obtaining a determination of and effective remedy for their allegations that local authority breached their right to respect for family life – European Convention on Human Rights, art 13.
The applicants were British nationals. In January 1983, when she was aged 17 years, the first applicant gave birth to her daughter, KM, the second applicant. Between 1984 and 1987, the local authority suspected that KM was being sexually abused as a result of her behaviour and recurrent urinary tract infections. The social worker who raised these concerns with the mother gave evidence that the mother was angry and repudiated the suggestion. Following a case conference in July 1987, to which the mother was not invited, KM was placed on the Child Protection Register under the category of emotional abuse. On 13 November 1987, a consultant child psychiatrist, Dr V, interviewed KM, then aged four. A social worker was present during the interview, which was video taped. In the course of the interview, KM disclosed that someone named X had abused her. The mother’s boyfriend, who lived with the applicants, had the same first name as the alleged abuser. KM’s evidence was confused but at one point she indicated her mother’s boyfriend was not the abuser and stated that X had been thrown out of the house. The mother was informed that KM had disclosed
that her boyfriend had sexually abused her. When she became agitated and angry, Dr V and the social worker concluded that the mother would be unable to protect her child from abuse and that she was attempting to persuade KM to retract her allegation. They immediately removed KM from the care of her mother and on the same day the local authority made a successful ex parte application to the magistrates’ court for a place of safety order for 28 days. Shortly thereafter, the mother, having excluded all men from her home, applied for KM to be made a ward of court. However, the local authority was awarded care and control of KM. While in care KM had very limited contact with her mother, continued to have urinary problems and had no contact with her extended family. In 1998 the mother gave birth to a second child who was made a ward of the court but remained in the mother’s care. Throughout the proceedings the mother had not had sought or been offered access to the video interview, however it was seen by a medical expert employed on her behalf in October 1998 who was of the view that it supported an allegation of sexual abuse against the mother’s boyfriend. In November 1998 an order was made that the videotape be disclosed to the mother. The health authority and Dr V opposed this although they had no objection to the mother’s legal advisers and medical experts viewing the tape. In November 1998 the mother’s solicitors sighted the transcript which showed that KM had said that the mother’s boyfriend had not abused her and that she had identified her abuser as having been thrown out of the house by the mother. Those matters were raised by the mother’s solicitors with the local authority and, after a hearing in the High Court where the local authority recommended that KM be rehabilitated to the mother, it was ordered by consent that KM remain a ward of court and that interim care and control be committed to the local authority who had leave to place her with the mother. KM remained in the care of her mother from that time onwards. In November 1990, the applicants issued proceedings alleging negligence and breach of statutory duty against the local authority. The main allegation was that the social worker and Dr V had failed to investigate the facts with proper care and thoroughness. The applicants claimed that as a result of their enforced separation each of them had suffered a psychiatric disorder. Following proceedings, which terminated in the House of Lords, the applicants’ claims were struck out. In its judgment of 29 June 1995, the House of Lords held, inter alia, that local authorities should not be held liable in negligence in respect of the exercise of their statutory duties safeguarding the welfare of children. The applicants contended that KM had been unjustifiably removed from her mother’s care in violation of their right to respect for family life pursuant to art 8 of the European Convention on Human Rights. They further argued that they had been denied access to court in determination of their claims of negligence against the local authority in breach of art 6 and that they had not been afforded any remedy for the damage which they had suffered as a result of the interference by the local authority in their family life in violation of art 13 of the Convention.
Held - (1) Where it was not disputed that there had been an interference with an applicant’s right to family life, it was necessary to ascertain whether the reasons for the actions of the authority were justified by and sufficient for the purposes of art 8(2) of the Convention. In the present case, it was not disputed that the
removal of KM into care by the local authority was an interference with the applicants’ right to respect for their family life under art 8(1) of the Convention, and as a consequence it was necessary to ascertain whether that interference was in accordance with the law, pursued a legitimate aim and could have been regarded as necessary in a democratic society in accordance with art 8(2). The English courts had jurisdiction to issue a place of safety order where the party applying to the court had reasonable cause to believe that the child’s proper development was being avoidably prevented or neglected or that the child was being ill-treated. A factual error made by the local authority as to the identity of the abuser did not vitiate that jurisdiction. Moreover, as the removal and subsequent measures were intended to protect the health and morals and the rights and freedoms of the child, they pursued legitimate aims within the meaning of art 8(2). In determining whether the actions of the local authority were necessary in a democratic society the Court should consider the particular facts of each case and the justification provided by the local authority in the light of art 8(2). In view of the fact that the domestic authorities had direct contact with the people concerned and that the best interests of the child were of crucial importance, it followed that the task of the Court was not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody and access issues, but rather to review, in the light of the Convention, the decisions taken by those authorities. The margin of appreciation to be accorded to the national authorities varied in accordance with the nature of the issues and the importance of the interests at stake. Whilst authorities enjoyed a wide margin of appreciation when assessing the necessity of taking a child into care, a stricter scrutiny was called for in respect of any further limitations, such as restrictions placed by those authorities on parental rights of access, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. In the present case, the removal and the continuance of the care measure under the wardship jurisdiction of the High Court were in accordance with the law as the local authority had applied to the court, stating that the second applicant had been abused, that the mother’s boyfriend was the abuser and that there was a risk of further direct abuse or that the first applicant would pressure the second applicant into retracting her allegation. The use of the emergency procedure to take KM into care was proportionate and necessary. However, the question whether to disclose the video of the interview and its transcript should have been determined promptly to allow the mother an effective opportunity to deal with the allegations that her daughter could not be returned safely to her care. The local authority’s failure to submit the issue to the court for determination meant the mother was not adequately involved in the decision-making process concerning the care of her daughter. Accordingly there had been failure to respect the applicants’ family life in violation of art 8.
(2) In general art 6(1) of the Convention applied only to disputes which were recognisable under domestic law on arguable grounds and did not in itself guarantee any particular content for civil rights and obligations in domestic law. However, it also applied to disputes that concerned the actual existence of a right
where the dispute was of a genuine and serious nature. In the present case, the applicants had an arguable case on domestic law and as a result art 6 was applicable and it was necessary to ascertain whether the proceedings had complied with its requirements. The applicants had not been prevented from bringing their claims before the...
To continue reading
Request your trial
-
F-D v The Children and Family Court Advisory Service
...1 WLR 163, [2012] 2 FLR 1432. Three Rivers DC v Bank of England (No 3) [2000] 3 All ER 1, [2003] 2 AC 1, [2000] 2 WLR 1220, HL. TP v UK[2001] 2 FCR 289, [2001] 2 FLR 549, ECt Venema v Netherlands[2003] 1 FCR 153, [2003] 1 FLR 552, ECt HR. ApplicationThe father, who sought to reinstate conta......
-
R (S) v City of Plymouth
...process: see W v United Kingdom., above; McMichael v United Kingdom (1995) 20 EHRR 205; and most recently, TP and KM v United Kingdom [2001] 2 FCR 289, paras 72: "The Court further recalls that whilst Article 8 contains no explicit procedural requirements, the decision-making process involv......
-
Re C (Care Proceedings: Disclosure of Local Authority's Decision-Making Process)
...Sommerfeld v Germany, Hoffmann v Germany [2002] 1 FLR 119, ECt HR. Scott v UK[2000] 2 FCR 560, [2000] 1 FLR 958, ECt HR. TP and KM v UK[2001] 2 FCR 289, ECt HR. V (residence order), Re[1996] 3 FCR 101, [1995] 2 FLR 1010, CA. W and B (children) (care plan), Re, Re W (children) (care plan) [2......
-
Re B (Disclosure to other parties)
...WLR 211. Scott v UK[2000] 2 FCR 560, [2000] 1 FLR 958, ECt HR. Scozzari v Italy[2000] 3 FCR 430, [2000] 2 FLR 771, ECt HR. TP and KM v UK[2001] 2 FCR 289, ECt W v UK (1987) 10 EHRR 29, [1987] EHRC 9749/82, ECt HR. WEA Records Ltd v Visions Channel 4 Ltd [1983] 2 All ER 589, [1983] 1 WLR 721......