CASE OF A.D. AND O.D. v. THE UNITED KINGDOM
Violation of Art. 8;Violation of Art. 13+8;No violation of Art. 13;Non-pecuniary damage - award
Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
6. The first applicant, A.D., is a female British national who was born in 1966 and lives in Whitefield, Manchester. The second applicant, O.D., is the first applicant's son. He is a British national who was born in 1996 and currently resides with the first applicant. 7. The facts of the case, as submitted by the parties, may be summarised as follows. 8. On 8 August 1996 O.D. was delivered by caesarian section at 36 weeks because of his failure to grow in the womb. He weighed 1.9 kg. He was not diagnosed with any particular condition. He was initially fed via feeding tube. 9. The first applicant was concerned about O.D.'s small size and his failure to pick up weight. On 24 October 1996 she asked her general practitioner to refer him to a paediatrician. She was referred to Dr S., the paediatrician who had seen O.D. after his birth. Following a consultation in November 1996 the first applicant was told that the situation would be reviewed on 2 January 1997. As O.D.'s weight and length had fallen below the third centile chart, tests were carried out on 16 January 1997. 10. On 21 January 1997 the consultant radiologist informed Dr S. that X-rays revealed evidence of three, possibly four, healing fractures to the right ribs. The first applicant and her partner were informed the same day. 11. On 23 January 1997 O.D. was admitted to hospital as a patient and a full skeletal survey was carried out, which confirmed four fractures. The local authority were informed. 12. The first applicant took legal advice and also undertook some research, herself noting that O.D. had eight of the ten indicators for the condition of Osteogenesis Imperfecta (brittle bone disease), including the genetic factor of her own joint laxity or double-jointedness. She states that she raised this possibility with Dr S. who dismissed it without giving any reasons. 13. On 24 January 1997 a report by Dr S. concluded that the injuries were sustained “non-accidentally” in view of the nature of the fractures and the lack of any other explanation for them. He noted, however, that O.D.'s parents had appeared very caring and concerned for his welfare at their three meetings. 14. On 30 January 1997 the local authority held a case conference and placed O.D. on the “At Risk Register”. At the meeting Dr S. mentioned that she had looked at O.D.'s bones to see if they appeared thin but considered that they were normal. 15. Ms M., the social worker assigned to the case, conducted six sessions with the family. When the first applicant raised the possibility of Osteogenesis Imperfecta with her, she was told that she was in denial over the injuries to her son. The first applicant and her partner were very distraught over O.D.'s feeding problems and injuries and by the accusations of child abuse. 16. The first applicant attended assessment meetings held at the Upland Centre, the purpose of which she was told was to assess the risk she and her partner posed to O.D. She and her partner fully co-operated and attended all meetings. 17. On 13 March 1997 O.D. was admitted to hospital following further weight loss and a nasogastric tube was inserted. 18. On 24 March 1997 the first applicant and her partner removed O.D. from the ward, against medical advice, as he had contracted a viral infection which caused vomiting and diarrhoea and was negating any advantages of feeding by tube. They took him to see a consultant paediatric gastroenterologist concerning his slow weight gain, but did not attend all appointments and cancelled a stomach biopsy as they felt he was well and gaining weight. 19. On 30 April 1997 the local authority received a report from Professor C., a professor of paediatric radiology, which confirmed the fractures to the ribs. She considered that the fractures had been inflicted on two separate occasions. She also concurred with Dr S. that “the rib fractures have occurred from squeezing” and that “rib fractures in children are extraordinarily rare except in non-accidental injury...”. She found that O.D.'s bone texture was normal and there was nothing to indicate any underlying bone disease. She stated that there was no other medical test that would help to identify anything further about the rib fractures. Finally, she noted that the ultrasound of O.D.'s head revealed a bright area in the brain cortex. A small bleed could not be excluded, which caused her some concern as to shaking, but on balance she thought the results were normal. 20. On 1 May 1997 the local authority applied to the County Court for an interim care order. At the same time a guardian ad litem was appointed on behalf of O.D., who was of the opinion that the family should stay together. 21. On 6 May 1997, at the statutory review meeting, it was noted that Dr S. had undertaken a test due to concerns about bone disease and that the result was used by Professor C. The local authority was informed that a police investigation was not considered appropriate as there was nothing to suggest that the injuries flowed from a criminal assault. It was hoped that the family would be placed in a protective unit where O.D. could be monitored by professionals. The first applicant and her partner were present at this meeting. The applicants disputed, however, that Dr S. had in fact carried out a test for Osteogenesis Imperfecta. 22. On 7 May 1997 the County Court granted an interim care order. It was proposed in court that the family relocate to the St John's Family Resource Centre in Bristol, some 150 miles away. The first applicant claimed that neither she nor her partner had been consulted or even warned about this possibility. They had to go directly to the Centre from the court room, leaving their own comfortable well-equipped home and their network of extended family and friends. The first applicant consented to the care order but submitted that she had no real choice, because if she had resisted the measure O.D. could have been placed in foster care straight away. She had been advised that if she did not oppose the assessment procedure, it would be less likely that they would be separated. While her solicitors had obtained an expert report by Dr P. suggesting that O.D. suffered from Osteogenesis Imperfecta, she had been advised not to rely on it in the proceedings because Dr P. had been discredited as a medical expert acceptable to the courts due to violations of professional ethics in the course of previous legal proceedings. 23. The first applicant stated that she was horrified by the conditions at the Centre, which was located in a crime-ridden, rough area of Bristol. The family had to live in one room with a small kitchenette and were not allowed to cook any meals after 7.00 p.m. The house was dirty and occupied by problem families (crime, drugs and alcohol). Initially they were only allowed to leave the Centre for two hours per day. The latter restriction was lifted on 4 June 1997 against the wishes of Ms M. and the local authority. During their stay, the first applicant and her partner had to claim benefits which they had not done previously. The family was not permitted to leave the Centre for two nights to attend the wedding of the first applicant's sister; they were only allowed to attend the actual ceremony and not the reception. According to the Government, however, the first applicant's evidence in the domestic care proceedings was at odds with this description: she stated on 15 July 1997 that the physical surroundings were better than they had feared and that the other residents were friendly and helpful. There had also been no restriction on the first applicant leaving the centre alone; the only requirement had been that if she left with O.D. they had to be accompanied by a member of staff. From 16 May she was allowed to take O.D. out unaccompanied for two hours a day, and after 4 June all restrictions were lifted. They also had overnight stays away from the hostel and a day long visit to Manchester. 24. The family remained at the Centre for twelve weeks. The first applicant was under the impression, as had been stated in court, that the assessment to be made was of the risk posed to O.D. by her and her partner. The keyworker at the Centre understood that a parenting assessment was to be carried out. When the letter of instruction was at last sent to the Centre, it asked, somewhat ambiguously, for their opinion on the standard of care provided to O.D. and the first applicant and her partner's ability to care for him. 25. The Centre's report compiled by Miss C.H. on 30 July 1997 stated that its aims were to assess the future risk posed to O.D. by his parents, to assess their handling and interaction with the child and to assess their parenting skills. The report noted that the couple presented as being very capable of caring for O.D. and that both appeared to be committed, with a willingness to accept the advice of professionals, although their level of anxiety had been high. Concerns remained, however, about O.D.'s feeding difficulties and limited weight gain, as he remained substantially below the third centile weight for a child of his age. In a further report on 2 August 1997, Miss C.H. confirmed that until there was clarity about the cause of the injuries the risk remained high. 26. While in Bristol O.D. had been seen by a consultant clinical geneticist who reported that Osteogenesis Imperfecta or some other collagen abnormality was no more than one possible explanation for O.D.'s medical history; in particular as it was rare to have this degree of growth retardation in the absence of multiple long fractures, other causes for the failure to thrive should be sought. He also commented that continuing emotional stress in the family should be seriously considered as a possible aggravating factor. He noted that further investigation might include a skin biopsy to assess collagen profiles but that it would be inappropriate to pursue these in Bristol. In any case, he indicated that the diagnostic value of the test had been previously shown to have a detection rate of only 87%. 27. On return to Manchester, after a twelve week stay in Bristol, the family had to live in a Family Assessment Centre for another week while the local authority applied to renew the interim care order. 28. The first applicant's solicitor instructed an expert radiologist, Dr L., to report on O.D.'s injuries, asking him specifically to comment on whether the injuries were more likely to have been caused by non-accidental means or a form of Osteogenesis Imperfecta. As an acknowledged expert in bone disease, Dr L. stated in the report that there was no evidence of abnormal bone morphology or density to suggest bone fragility. In the absence of abnormal bone fragility, he considered that non-accidental injury was the likely cause of the fractures. He was sceptical about taking a skin biopsy, considering the test to be equivocal. He also confirmed that the previous suggestion of a brain injury on the initial scan was unfounded as the scan merely showed reflective echoes. 29. At a statutory review on 4 August 1997, the local authority concluded that O.D. could not safely be placed with his parents and proposed to place him with foster carers, with daily parental contact, while a psychological assessment of the first applicant and her partner was undertaken and a risk assessment was carried out by the National Society for the Prevention of Cruelty to Children (NSPCC). The question of placing O.D. with a relative had been discussed with the maternal grandparents. Ms M. and another social worker paid them a visit on 7 July 1997. The matter was not pursued as it was noted that the maternal grandparents considered that not enough consideration had been given to Osteogenesis Imperfecta and that decisions were being taken by persons who did not know the parents. In a statement of evidence submitted on 6 August, the applicant's partner listed family members who would either stay with the applicants or have the applicants stay with them; he did not specify that any relative was prepared to look after O.D. by themselves. 30. The interim care proceedings began on 7 August 1997. At the hearing, Dr R., the consultant paediatrician who had overseen O.D.'s care at Bristol stated her opposition to the care plan; she considered that O.D. had a close relationship with his family and removal would cause emotional trauma equivalent to bereavement. The social worker supervisor also opposed the care plan, as O.D. had suffered no further injuries and she believed it to be highly likely to exacerbate his eating problems. While she gave evidence for the applicants, Dr R. had nonetheless stated in her report of 5 August 1997 that the rib fractures were unexplained and characteristic of non-accidental injury; that there was no definitive test for Osteogenesis Imperfecta; and that she felt it unlikely that O.D. had this condition, referring to the further opinion of an orthopaedic surgeon, Dr G, who had been unable to confirm a diagnosis of Osteogenesis Imperfecta. 31. The interim care order was granted. In a judgment handed down on 12 August 1997, the judge considered that the consultant paediatrician and supervisor seemed to deal with a much more permanent separation than was envisaged. He stated that it was unfortunate that proper communications had not existed permitting the risk assessment to be carried out at Bristol but that it still remained to be discovered how O.D. had sustained his injuries. With regard to the proposal to place O.D. outside the family, the judge noted that there had been no proper assessment of any other family member but considered that the local authority could not be blamed for this: "Clearly there had been discussions, considerable discussions and disagreement about the care plan. ... as things stand at the moment I am not satisfied that any family member would accept the sort of risk that I think at present exists." 32. He went on to say: “So far as the capability of the parents is concerned, this will probably be of little comfort to them but nevertheless ... I have no doubt that they are very capable, that they are splendid parents in every possible way except with regard to these two matters, this most important fact that the injury has still not been sorted out and there is also the possible problems with feeding.” 33. He concluded that he had to make an order to provide O.D. with the protection that he required. 34. O.D. was placed with local authority approved foster parents. The first applicant was allowed contact for a period of four hours a day for five days during the week. 35. The first applicant was concerned as to the care which O.D. was receiving in the foster home. New clothes which she had given him were not being used; she found a plastic pellet in his play pen; on one occasion he was crawling on the floor near to broken glass; and when the first applicant noticed a bruise on O.D.'s face, the foster mother showed no concern and it was the link worker who had to recommend that he saw a doctor. The Government stated that the foster parents, selected for expertise with feeding problems, reported to, and were visited by, the local authority regularly, who found their care to be satisfactory. 36. On 7 or 9 October 1997, O.D. was admitted to hospital due to feeding problems. The first applicant claimed that she was not informed and only found out on arrival for a contact session. She was not allowed to stay with him in hospital overnight. The Government stated that the first applicant had been aware in advance, due to a previous visit to a doctor, that O.D. might be admitted to hospital and that she was informed when this happened as soon as was possible. Her normal contact continued with him during his ten-day stay. 37. On 27 October the NSPCC informed the local authority that O.D. should be returned without delay to his parents. 38. On 31 October 1997 Dr Si., a consultant paediatrician instructed by the guardian ad litem, noted that the lack of further injury despite increased mobility was further evidence against Osteogenesis Imperfecta. He emphasised that the feeding and growth problem was not a child protection matter per se but that the impact of these problems on the parents needed to be taken into account. 39. On 12 November 1997, while still in foster care, O.D. fell and was taken to hospital. The radiologist diagnosed a possible fracture of the shinbone. The X-rays were analysed as showing the bones to be thin and osteopenic. 40. On 20 November 1997 the NSPCC submitted their risk assessment. They recommended that O.D. be returned quickly to his parents' care, with a short period of prior increased contact. The applicants submitted that the report was issued two months later than estimated; the Government submitted that the judge had in fact indicated that only the initial report should be available at the end of September. 41. On 8 December 1997 the local authority, at a statutory review meeting, agreed that O.D. should return home the same day. 42. On 19 January 1998 O.D. was examined by Dr B., a senior clinical research associate and honorary consultant paediatrician at the University of Cambridge. He reported in his final report of 25 March 1998 that there had been insufficient radiological evidence to substantiate the diagnosis of Osteogenesis Imperfecta or other bone disease in January 1997 but that the taking of additional X-ray views of particular bones might have provided further clarifications. Tests now indicated that O.D. had type IV Osteogenesis Imperfecta, with a significant growth retardant component, a condition which had been active from the time of the tests. The force necessary to fracture his ribs might well have fallen within the range of normal handling. He recommended regular follow-up in a specialist paediatric clinic. 43. The X-rays and draft report of Dr B. were submitted to Professor C., who in her report of 18 February 1998 found the special bone density tests inconclusive, although she noted that she was not an expert. She agreed that the X-rays now showed abnormalities but did not find this conclusive of Osteogenesis Imperfecta. She stated that in her experience if children with Osteogenesis Imperfecta had sustained rib fractures such as these from normal handling then they went on to sustain fractures in other areas; she was therefore surprised that O.D. had not had further fractures other than the one sustained in foster care if he in fact had had Osteogenesis Imperfecta. 44. Dr B., Professor C, Dr L. and Dr Si. held a meeting on 29 June 1998 and issued a joint report, in which they concurred that there was no evidence at the time of the first fractures to indicate Osteogenesis Imperfecta or the desirability of any further investigations and that O.D. had suffered from birth from Osteogenesis Imperfecta Type IV. They also agreed that in the absence of an account of trauma in a baby, rib fractures such as those observed would be highly suggestive of non-accidental injury inflicted by a forceful squeezing. However, while the latter three doctors considered that the degree of force required to cause these fractures fell outwith the normal handling of a small baby although not within the category of abusive handling, Dr B. took the view that it might not be completely outside the normal range of handling (for example, catching a child who was slipping). The cause of the serious growth retardation was not known. 45. In light of that report, the local authority made an urgent application for an abridged procedure to withdraw care proceedings, which were scheduled for further hearing in December 1998. 46. The interim care order was discharged in July 1998. 47. The first applicant submitted that the care proceedings had a devastating effect on her relationship with her partner and they have since separated. O.D., meanwhile, was suffering from sleeping and behavioural problems, was reluctant to leave the first applicant, would not play with other children and screamed and threw food at strangers. 48. In August 1998 the first applicant complained to the local authority which appointed an independent person, Mrs B., to investigate the complaint. After interviewing the key people involved, she found various defects in the handling of the case. She held that the local authority had failed to consider fostering O.D. with family members as required by statute, noted the confusion in communication with the Bristol Centre concerning the risk assessment and stated that once it had been decided to accept the NSPCC recommendation the rehabilitation should have taken days, not weeks; she also stated that there had been a steady deterioration in relations between the first applicant and the assigned social worker and that a more productive working relationship with the family might have been achieved by changing the caseworker as requested by the family. She did not uphold other specific complaints, finding, inter alia, that it had been necessary for the family to travel to the Bristol Centre on the same day as the hearing, that the local authority was justified in imposing restrictive travel arrangements on the family while at the Centre, that the stance of the judge and local authority when considering whether O.D. should be taken into care was understandable in light of the potential risks, that there was no reason to consider that the care received by O.D. from his foster carers was not entirely appropriate, that the parents were invited to review meetings and to give their views, and that the case involved the considered opinions of several eminent experts, who discounted bone disease and confirmed a diagnosis of non-accidental injury. She stated, inter alia, that with the weight of the medical evidence so firmly establishing non-accidental injury the local authority had no option but to apply for care proceedings. She made no recommendation for monetary compensation. 49. On 29 November 1999 the local authority's complaints officer wrote to the first applicant and recommended that she receive a full apology and that certain aspects of the local authority's systems be reviewed and revised. 50. On 7 December 1999, in light of the above negative findings, the Head of Children's Services sent the first applicant a letter of apology in respect of the criticised practices. 51. The first applicant instituted proceedings against the local authority on behalf of herself and O.D., claiming damages for negligence and personal injury. 52. On 9 September 2003 his Honour Judge Knopf held that the local authority owed no duty of care to a parent in the context of care proceedings based on allegations of abuse. 53. On 11 September 2003 the judge rejected the claims of O.D. on the ground that he had not been shown to have suffered any recognisable psychiatric damage, or alternatively, that any injury was transient and not compensatable by damages. 54. Both applicants were granted permission to appeal but the proceedings were stayed pending the outcome of D. v. East Berkshire Community Health NHS Trust and others [2005] AC 373 (see description of domestic proceedings in R.K. and A.K. v. the United Kingdom, 38000/05, judgment of 30 September 2008, §§ 23-26). These cases concluded in the House of Lords, which held that no duty was owed by medical or social work professionals to parents in the exercise of their duties, in the best interests of the children, when deciding whether there had been any abuse and what measures were necessary. 55. After the hearing of the applicants' appeals on 3 and 4 November 2005, the Court of Appeal on 17 January 2006 dismissed the first applicant's appeal as at no stage was she owed a duty of care by the local authority. The court also rejected O.D.'s appeal on the ground that there was no evidence that he had suffered harm other than transient distress. In the alternative, the court held that any harm suffered by O.D. did not amount to a recognised psychiatric disorder and was therefore not of the kind giving rise to an action for damages (“non-justiciable harm”). The Human Rights Act 1998 and the European Convention on Human Rights were irrelevant as the case concerned events prior to the Act's implementation. 56. Leave to appeal to the House of Lords was refused. 57. Section 23 (6) of the Children Act 1989 provides as follows: “Subject to any regulations made by the Secretary of State for the purposes of this subsection, any local authority looking after a child shall make arrangements to enable him to live with— (a) a person falling within subsection (4); or (b) a relative, friend or other person connected with him, unless that would not be reasonably practicable or consistent with his welfare.” 58. A person falling within subsection 4 is a parent of the child; a person who is not a parent of the child but who has parental responsibility for him; or a person in whose favour a residence order was made.