M.A.K. and R.K. v. the United Kingdom

The applicants were British nationals, the first applicant being the father of the second applicant who underwent a clotting test against the bruises on her legs with a General Practitioner who found no abnormality. Months later, the second applicant (who at the time was 9 years old) was taken to the same General Practitioner for the same concern; an appointment was made with a pediatrician on referral. In the mean time, the second applicant had complained, with her mother (wife of the applicant), of a pain in her genital area resulting from biking. The pediatrician authorized for a test to be performed on the second applicant, the taking of photographs of her legs, and the reporting of the incident to the local authority. These orders were authorized within that time when the parents were not in the hospital to give their consent. The second applicanthe wasn’t given an explanation either. The order was passed on the belief that the second applicant had been subjected to sexual abuse. Police and Social Workers were involved to take certain measures that were believed to be appropriate in the interest of the second applicant. The first applicant, in particular, was suspected of sexually abusing his daughter.

Days later, a dermatologist confirmed that the marks on the second applicant’s leg resulted from vasculitis.  The second applicant was also diagnosed with a rare skin disease, Schamberg followed by the pediatrician informing the parents of her not being able to make a conclusion that the second applicant had been sexually abused. The spouses complained of the matter with the National Health Service Trust which had concluded that the pediatrician had failed to consider relevant information from the parents of the second applicant and the general practitioner, improperly performed tests and took photographs in the absence of her parents, acted without consultation of a dermatologist and failed to apologize or properly explain the matter to the parents. 

With a legal aid, the applicants sued the hospital and the local authority before the County court and claimed compensation for the negligence found on their part. The judge found the duty of care existed only with the hospital and the applicants appealed on the decision. The court of appeal dismissed the first applicant’s appeal while the legal aid for the second applicant was withdrawn due to unreasonable costs of proceedings. The first applicant’s appeal with the House of Lords ended with a decision that there was no duty of care owed to the parents of the second applicant that enables them to claim damage against the Doctor or the Social workers.

The first applicant lodged his claim before the European Court of Human Rights (the ECHR) on the ground that the the manner he was treated during the incident constituted humiliation and distress in violation of Article 3 of the European Convention on Human Rights (the Convention).  The second applicant claimed that the withdrawal of the legal aid affected her right to pursue effective remedy before courts in violation of Article 6(1) of the Convention. The applicants claimed that their right to family and private life had been violated by the time the second applicant was hospitalized for ten days when they stayed separated. The applicants also claimed lack of effective national remedy under Article 13 of the Convention on the ground that domestic courts failed to establish a duty of care owed for the first applicant and the legal aid had been discontinued for the second applicant.

The ECHR dismissed the claim on Article 3 as ill-founded as it had found it to be unreasonable to hold liable the authorities for taking executive measures that protect children even when such measure are humiliating or distressing to the parent. The ECHR held that the restriction on the second applicant's access to court was legitimate and proportionate, and thus dismissed her claim under Article 6(1) of the Convention as ill-founded.

The ECHR found a violation of Article 8 of the Convention as the government had no legal ground to take the measure separating the applicants as it constituted an interference in respect for their family life. The ECHR found unjustified the act of performing the test and taking photographs where the second applicant was not in a situation compelling such an action, and it couldn't be believed that her parents would refuse to authorize such actions in which case a court authorization could also be effected.

The ECHR found that the first applicant had no redress against the local authority, constituting a violation of Article 13 of the Convention.  It then awarded non-pecuniary damage for the applicants.

"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, flows, 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 their implementation..... 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 serious 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.......there must be a factor apart from the normal implementation of those duties which brings the matter within the scope of Article 3." [Para. 35]