The European Court of Human Rights has ordered the Government to pay €24,000 for non-pecuniary damage and €60,000 in legal costs to a social worker who was accused of professional misconduct by a Family Court judge in the course of a fact-finding hearing.
The social worker, who had given evidence as a professional witness, claimed that her rights had been breached under Articles 6 (right to a fair trial) and 8 (right to respect for private and family life) of the European Convention on Human Rights.
She also claimed that pursuant to section 9(3) of the Human Rights Act 1998 she was unable to claim damages for a judicial act done in good faith.
The background to the case (as set out by the ECHR) was as follows:
- In 2012 the claimant/applicant began working with a local authority. The same year, she was called as a professional witness in childcare proceedings concerning the alleged sexual abuse of a number of siblings. Before the proceedings ended, her personnel agency assigned her to a different local authority.
- The childcare proceedings were complex in nature but for the purposes of the EHCR application the relevant stage was a fact-finding hearing before the Family Court which commenced on 9 September 2014.
- In a judgment of 17 October 2014 the Family Court judge rejected the allegations of sexual abuse. He also criticised the local authority and the professionals involved in the case. In particular, he found that the applicant was the principal instigator in a joint enterprise to obtain evidence to prove the sexual abuse allegations, irrespective of the underlying truth and the relevant professional guidelines; that she had lied to the court about important aspects of the investigation; and that she had subjected one of the children involved to a high level of emotional abuse in the course of their interaction.
- The applicant first became aware of the adverse findings two days earlier, when, at the end of the hearing, the judge gave an oral judgment.
- After delivery of the judgment but prior to it being finalised, the Family Court judge held a series of hearings which addressed submissions by the applicant on some aspects of the judgment, including the decision not to grant her anonymity. As a result, some changes were made to the text of the judgment but the adverse findings against the applicant remained, and the decision not to grant her anonymity was maintained.
- On 3 November 2014 the Family Court judge, having indicated that all cases involving the applicant should be scrutinised carefully as a matter of urgency, directed that the judgment be sent to the local authority to which the applicant was then assigned and advised that his findings should be shared with other local authorities where she had worked and with the relevant professional bodies.
- On 3 November 2014 the applicant was told by her personnel agency that her assignment with the local authority where she was then working had come to an end and she had been asked to leave. According to the applicant’s contractual terms, in cases of fraud, dishonesty or serious misconduct the local authority had the right, without notice and without liability, to instruct her to cease work on an assignment at any time.
- On 27 November 2014 the applicant contacted a company which acted as an intermediary between the personnel agency and the local authority to ask the reasons why she had been told not to return to work. They informed her the same day that her departure from the local authority “... was in relation to information provided by yourself early in your placement in relation to a critical court ruling/judgment from your time within another local authority”.
In November 2016 the Court of Appeal found that the criticism of the applicant contained in the judgment of the Family Court would breach the social worker’s rights under Article 8 of the Convention if the judgment was allowed to stand in the final form proposed. The Court of Appeal found the process by which the judge arrived at his criticisms to have been: “manifestly unfair to a degree which wholly failed to meet the basic requirements of fairness established under Art 8 and/or common law. In short, the case that the judge came to find proved against S.W. ... fell entirely outside the issues that were properly before the court in the proceedings and had been fairly litigated during the extensive hearing, the matters of potential adverse criticism had not been mentioned at all during the hearing by any party or by the judge, they had certainly never been ‘put’ to S.W. ... and the judge did not raise them even after the evidence had closed and he was hearing submissions.”
Lord Justice McFarlane also said it was “unnecessary to do more than record that the same conclusion, in the context of Art 6 and the common law, must apply with respect to the adverse findings made against the local authority which had not been canvassed during the hearing and were outside the issues in the case.”
In terms of a remedy, the Court of Appeal said: “In the present case what is sought is the removal from the judgment of any reference to the matters that were found by the judge against S.W. ... and the local authority that fell outside the parameters of the care proceedings and had not been raised properly, or at all, during the hearing. ... then redaction must follow, subject to any submissions as to detail. I agree that this must be case.
“So that there is no ambiguity as to words such as ‘removal’ or ‘redaction’ in this context, I make it plain that the effect of any change in the content of the judge’s judgment that is now made as a result of the decision of this court is not simply to remove words from a judgment that is to be published; the effect is to set aside the judge’s findings on those matters so that those findings no longer stand or have any validity for any purposes. The effect is to be as if those findings, or potential findings, had never been made in any form by the judge.”
On 10 September 2017 specialist lawyers advised SW that a claim for compensation would have no real prospect of success as she was unlikely to establish an absence of good faith on the part of the Family Court judge. In light of the European Court of Human Rights’ judgment in Hammerton v. the United Kingdom (no. 6287/10, § 146, 17 March 2016), she had no further domestic remedy available.
The ECHR revealed that in a report dated 15 November 2018 a psychiatrist noted that the receipt of the Family Court judge’s findings had been a “highly traumatic experience” for SW which had triggered post-traumatic stress disorder. She was diagnosed with anxiety and depression and her mental state was considered to have impacted on her physical health, in particular her stress-induced fibromyalgia that had been diagnosed in 2015.
Before the ECHR SW claimed £40,000 in non-pecuniary damage and £1.06m in pecuniary damage. That sum included a claim for £189,766 in respect of past loss of earnings calculated for the period 3 November 2014 to 1 July 2019; and £498,526 in respect of future loss of earnings from the period 1 July 2019 until her retirement. The remaining sums were for medication and the care and assistance provided by the applicant’s husband.
The UK Government argued that the remedy provided by the Court of Appeal had been sufficient.
In S.W. v United Kingdom the ECHR found that the judgment of the Court of Appeal did not afford the applicant appropriate and sufficient redress for her complaint under Article 8 of the Convention. “It has not been suggested that any other remedy was available to the applicant which would have provided her with the opportunity of obtaining such redress. It is not in dispute that she would only have been entitled to damages for misfeasance in public office if she could show that the judge had knowingly or recklessly abused his power and either intended to cause her harm, or was recklessly indifferent to the probability of causing her harm….. Furthermore, the Government expressly accepted that she could not have made a claim for damages under the Human Rights Act 1998 because any attempt to establish the necessary lack of good faith on the part of the judge would have been unlikely to succeed.”
The ECHR went on: “[A]lthough the Court of Appeal clearly held that the process by which the judge arrived at his criticisms was “manifestly unfair to a degree which wholly failed to meet the basic requirements of fairness established under Art 8 and/or common law”….., the applicant was nevertheless advised by counsel that a claim for compensation would have no real prospect of success as she was unlikely to establish an absence of good faith on the part of the judge…..; a fact expressly accepted by the Government….. The Court does not see any reason to depart from this assessment and therefore proceeds on the basis that a claim for compensation would not have been successful.
“In light of the foregoing, the Court would accept that the applicant did not have access to an effective remedy at the national level capable of addressing the substance of her Article 8 complaint and by virtue of which she could obtain appropriate relief.”
The ECHR noted at the outset that the violations of Articles 8 and 13 of the Convention in the present case were principally procedural; “that is, that the Family Court judge directed that his adverse findings be sent to the local authorities that employed the applicant and to the relevant professional bodies despite the fact that she had not been given an opportunity to meet those allegations in the course of the proceedings; and that there was no domestic remedy available which would have permitted her to claim compensation for the pecuniary and non-pecuniary damage that she suffered as a result.
“Although the Court of Appeal criticised the process by which the judge’s adverse findings were reached, it did not analyse the evidence underpinning those findings or determine whether or not the judge was justified in criticizing the applicant as he did. It is not the applicant’s fault that the domestic courts did not analyse the evidence underpinning the judge’s findings; presumably, had she been able to bring a claim for compensation the national courts would have had to examine precisely these issues. Nonetheless, in the absence of any such findings the Court cannot discern a direct causal link between the violations found and the pecuniary damage alleged; it therefore rejects this claim.”
The ECHR unanimously:
- Declared SW’s complaints concerning Articles 8 and 13 admissible
- Held that there had been a violation of Article 8 of the Convention;
- Held that there had been a violation of Article 13 of the Convention read together with Article 8;
- Held that it was not necessary to examine the admissibility and merits of the complaint under Article 6 § 1 of the Convention;
- Held that the UK was to pay €24,000 in respect of non-pecuniary damage and €60,000 in respect of costs and expenses;
- Dismissed the remainder of the applicant’s claim for just satisfaction.
A copy of the ruling can be found here.