In SW v United Kingdom, Strasbourg awarded damages to a social care worker whose Article 8 and 13 rights were held to be breached by the family court judge’s directions to disseminate his adverse findings as to the social care worker’s professional conduct to her employer and professional regulator.
The Applicant was a social worker who gave evidence in childcare proceedings concerning the alleged sexual abuse of the children involved. The Family Court judge rejected the allegations of sexual abuse but also found that the Applicant had lied to the court about important aspects of the investigation and had subjected one of the children involved to emotional abuse.
The Applicant was only made aware of these adverse findings when the judge gave a summary oral judgment—but not during the trial— and was given a chance to address them. The judge maintained these adverse findings, decided not to grant her anonymity and directed that these findings be shared with the local authority for which the Applicant had been working for and the professional regulator. Resultantly, the Applicant’s local authority assignment was terminated without notice.
The Applicant successfully appealed that the judgment and its dissemination to the Applicant’s employer and the professional regulator had violated her Article 8 rights. The Court of Appeal accepted that these extremely serious allegations, which in its view had been reached by a process that was manifestly unfair to a degree which wholly failed to meet the basic requirements of fairness established under Articles 6 and 8 ECHR and at common law. Thus, the Court of Appeal set the judgement aside, holding that the adverse findings no longer stood and had no validity. Consequently, her fitness to practice was no longer impaired, but she was unable to resume work due to the illness resulting from the “great deal of stress” she had been under. However, notwithstanding the loss of employment and the grave impact on her personally and professionally, the Applicant was unable to obtain compensation owing to section 9(3) of the Human Rights Act, which is a statutory bar to the award of damages in respect of a judicial act.
The Applicant then raised her cause before the European Court of Human Rights and sought compensation under Article 13 in view of the breach of her Article 8 rights.
Whether dissemination of adverse findings interfered with the Applicant’s Article 8 rights?
The European Court of Human Rights in Strasbourg upheld the decision of the Court of Appeal that dissemination of the adverse findings breached the Applicant’s Article 8 rights. It reasoned that Article 8 encapsulates a person’s reputation and psychological integrity in that a person’s right to protection of his or her reputation is part of the right to respect for private life since a person’s reputation is part of his or her personal identity and psychological integrity. In addition, the notion of “private life” does not exclude activities of a professional or business nature, and the adverse portrayal of an Applicant’s conduct in an authoritative judicial ruling could have a major impact on her personal and professional situation, as well as his honour and reputation by way of stigmatising that person. Thus, an attack on an individual’s reputation, which obstructs his or her ability to pursue a chosen professional activity, may have consequential effects on the enjoyment of the right to respect for his or her “private life” within the meaning of Article 8.
Strasbourg held that given the nature and severity of the judge’s criticisms and that the fact that they were not set aside by the Court of Appeal until after two years rendered her unable to obtain alternative employment as a social worker and significantly affected her ability to pursue her chosen professional activity which, in turn, interfered with her Article 8 rights.
Whether the Applicant’s Article 13 rights were interfered with?
The Applicant argued that she was and remained a victim of the breach of her rights under Article 8 as the adverse findings being set aside alone did not provide appropriate and sufficient redress for the loss/damage which followed disclosure to the local authorities and professional regulator. Strasbourg accepted this argument and held that such redress is up to the local authorities and the Applicant maintained the victim status at all stages of the proceedings under Article 34.
Strasbourg acknowledged that the Applicant did not have access to an effective remedy at the domestic level capable of addressing the substance of her Article 8 complaint—that is compensation—owing to the effect of section 9(3) of the Human Rights Act, which is a statutory bar to the award of damages in respect of a judicial act.
In light of the breach of the Applicant’s Article 8 and 13 rights, Strasbourg awarded her EUR 24,000 in respect of non-pecuniary damages on an equitable basis, which was substantially less than the sum claimed as Strasbourg held that it was for the domestic courts to establish a causative link between the pecuniary losses claimed and violations found. She was also awarded EUR 60,000 in respect of costs and expenses.
This case is important in at least four respects. Firstly, in the specific context of court proceedings, it highlights that it is first and foremost the responsibility of the presiding judge to ensure that the Article 8 rights of persons giving evidence are adequately protected. The Applicant’s Article 8 rights were breached by the consequences that followed the judge’s directions to disseminate the adverse findings to the Applicant’s employer and the professional regulator. This is notwithstanding the possible veracity of the judge’s findings which, as Strasbourg held, fell to the domestic authorities to investigate.
Secondly, and accordingly, the local authorities employing professionals participating in proceedings are also under a duty to act fairly, which in this scenario, could have been to suspend the Applicant pending proper investigation of the facts alleged. Lastly, the case reaffirms that the convention requires that applicants have access to effective remedies including compensation even when the fault lies with the judicial authorities
Joe Thomas is a barrister specialising in public law and human rights.
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