MC 13 - Het belang van het kind

Uitspraak europees hof voor de rechten van de mens

Een groot deel van de medische vakliteratuur is in het Engels. Het lezen van een in die taal gestelde rechterlijke uitspraak, een première in deze rubriek, moet u dus geen problemen geven. Steeds vaker komt het voor dat we in Nederland rekening moeten houden met internationale rechterlijke instanties. Zo ook in deze zaak. Wat was het geval?

Een kindje van enkele maanden oud is opgenomen in een academisch ziekenhuis. De artsen vermoeden dat de moeder aan het Münchausen-by-proxy syndrome lijdt en het kindje schade toebrengt. Zij informeren de Raad voor de Kinderbescherming en later het Bureau Vertrouwensarts hierover, in beide gevallen nog zonder de naam van de ouders bekend te maken. Korte tijd daarna doen de artsen een echte melding bij de Raad. De Raad besluit de kinderrechter te vragen een voorlopige maatregel te treffen. De ouders worden over dit alles niet ingelicht. Ook de artsen spreken er met hen niet over.

Na zonder succes in Nederland te hebben geprocedeerd, dienen de ouders een klacht in bij het Europese Hof in Straatsburg. Zij klagen onder meer over schending van het in artikel 8 van het Europese Mensenrechtenverdrag neergelegde recht op bescherming van het privé- en familieleven. Dit recht is geschonden, zo stellen zij, omdat zij in een veel te laat stadium door de artsen en de Raad voor de Kinderbescherming zijn geïnformeerd. Daardoor konden zij ten onrechte niet eerder hun eigen visie kenbaar maken. Het Europese Hof geeft hun gelijk. Het Hof begrijpt niet waarom in dit geval de artsen uit het ziekenhuis en de Raad voor de Kinderbescherming de kwestie niet eerder met de ouders hebben besproken (zie onder meer onderdeel 96 van de uitspraak).

Zaken en dilemma’s als deze hebben er in 2002 toe geleid dat de KNMG en de Vereniging Vertrouwensartsen inzake Kindermishandeling (VVAK) de Meldcode voor medici inzake kindermishandeling hebben opgesteld (zie over een vergelijkbare andere zaak: MC 34/2002: 1209-12).  De artikelen 5.2 en 10.1 van de Meldcode bepalen dat de meldende arts zo mogelijk het kind en/of diens ouders toestemming vraagt om te melden. In de toelichting op de code wordt daarop nader ingegaan. De Meldcode en het Europese Hof sluiten niet uit dat in klemmende gevallen wordt gemeld zonder voorafgaand overleg en voorafgaande toestemming. Wel benadrukt het Hof dat voor een melding zonder voorafgaand overleg met de ouders goede gronden moeten bestaan.

Aldus moeten ook de onlangs gewijzigde bepalingen van de Wet op de Jeugdhulpverlening worden gelezen. Cruciaal is dat het goede perspectief voorop blijft staan: het belang van het kind.

B.V.M. Crul, huisarts, mr. dr. J. legemaate

De zaak V tegen Nederland

B. Whether Article 8 has been violated
(...)

1. Arguments before the Court
73. (...)

a. The applicants (de klacht van de ouders)

74. The applicants (...) stated first of all that the competent authorities had taken insufficient care to ensure that the information which led them to remove Kimberly from her parents was correct and complete, that they had failed to discontinue the measure as soon as it became apparent that the measure ordered was uncalled for, and that they had failed to involve the parents before arriving at a decision.

75. The applicants argued that the case had been known to the Child Welfare Board (Raad voor de Kinderbescherming) since early August 1994. The telephone conversation of 1 December 1994 between the Child Welfare Board and the doctor at the Child Abuse Medical Counselling Centre (Bureau Vertrouwensarts inzake Kindermishandeling, dit heet nu: Advies- en Meldpunt Kindermishandeling, AMK) had not led to any further investigation. In these circumstances it was clear that the Child Welfare Board had long been aware of the need for a second opinion, and that the fact that the Child Welfare Board had found itself forced to act under pressure of time was entirely that Board’s own fault.

76. There had been no immediate danger to Kimberly’s life at the time the Board applied to the Juvenile Judge (kinderrechter), for the simple reason that Kimberly was in hospital and thus out of her parents’ immediate reach. In these circumstances it would have been quite possible for the Board itself and the Juvenile Judge to hear Kimberly’s parents before any decision, even of a provisional nature, was reached.

77. Echoing the report of the official investigation ordered by the Deputy Minister of Justice, the applicants pointed to what they considered the Child Welfare Board’s excessive reliance on information received from others - in particular, the Curium/Leiden University Hospital report - and its failure to make any investigations of its own. Such investigations would, in their submission, have clarified errors and inconsistencies in the Curium/Leiden University Hospital report. Instead, the Child Welfare Board had given incomplete information to the Juvenile Judge.

78. The failings in the file management and internal reporting practices of the Child Welfare Board, noted in the
report of the official investigation, also contributed to the lack of sufficient information and had thus prolonged Kimberly’s placement away from her parental home.

79. The Child Welfare Board had improperly influenced the psychiatrist by inducing him, in a discussion by tele-
phone, to add a caveat damaging to the applicants’ interests to his report of 27 January 1995.

80. Finally, the retraction of the request for a similar measure in respect of Kimberly’s sibling Jonathan, who was born on 28 February 1995, showed that already at that time the Child Welfare Board had realised that there was no danger to either child from the parents. Yet the Board had not sought to have the measure in respect of Kimberly terminated.

b. The Government (het verweer van de Nederlandse overheid)

81. The Government pointed out that the Child Welfare Board was consulted hundreds of times each year. The names of the persons involved were always withheld from the Child Welfare Board in order to protect the privacy of the individuals involved. In their contacts with that Board, the Leiden University Hospital doctors (in August 1994) and the doctor connected with the Child Abuse Medical Counselling Centre (on 1 December 1994) had kept the applicants’ identity secret, such being the usual practice in order to maintain the privacy of the individuals involved. Only on 20 December 1994 had the Child Welfare Board been informed of the identity of the applicants, and only on 2 January 1995 had it received the first version of the Curium/Leiden University Hospital report. The final version of the report, dated 3 January 1995, was received by the Board only on 4 January. It was only then that the Child Welfare Board was in a position to take decisive action. Consequently it was not the case that the Board could have sought a second opinion as early as August 1994.

82. The absence of a hearing before the Juvenile Judge, who gave a provisional supervision order had been justified by the perceived danger to Kimberly’s life. The Government referred to the Court’s judgment in the case ‘K and T versus Finland’ [GC], no. 25702/94, 12 July 2001, in which it had been accepted that there might be a need in urgent cases to order emergency child-care measures without associating in the decision-making process those having custody of the child (...).

83. The Government accepted that it was not impossible that Mr and Mrs V might not have received the letter of 6 January 1995 (the Court understands this to refer to the Child Welfare Board’s letter of 5 January 1995). Whatever the truth of the matter, a copy of at least one of the documents enclosed with that letter - an article on the Münchhausen-by-proxy syndrome - was also handed to Mr and Mrs V on 6 January 1995, so that it might be assumed that copies of the other documents enclosed with the said letter were handed to the applicants as well. Should it be the case that Mr and Mrs V never received any formal summons for the hearing on 10 January 1995, it was nonetheless true that they had turned up for that hearing and made their views known.

84. The Child Welfare Board had had little alternative to reliance on infor-mation from outside sources. The
Münchhausen-by-proxy syndrome was a medical-psychiatric condition which the Child Welfare Board was ill-equipped to investigate by its own means. Moreover, for reasons of privacy it was not possible for the Board to examine the applicants’ medical records. In addition, the official report of 25 July 1996 relied upon by the applicants did not suggest either that the Child Welfare Board had not been well enough informed to take considered action or that the Juvenile Judge had been insufficiently informed.

85. Mr and Mrs V had shown information from Kimberly’s medical records to the Child Welfare Board only on 10 May 1995, by which time it had been in their possession for five weeks. The Board could therefore not be blamed for not being in a position to take remedial action before mid-May. It should be pointed out in this connection that the Board could not examine medical records without the permission of the persons involved.

86. The Government denied that the Child Welfare Board had improperly persuaded the psychiatrist to add a caveat to his report of 27 January 1995, which would otherwise have been favourable to the applicants. It had emerged during the complaint proceedings that the psychiatrist, an independent expert, had done so after it had been pointed out to him that his report contained no corroboration from sources other than the applicants themselves.

87. Finally, the decision of the Child Welfare Board to withdraw its application for a supervision order in respect of Kimberly’s brother Jonathan, who at the time had not yet been born, did not reflect any medical opinion that there was no danger to either child from Mr and Mrs V. It was grounded on a legal opinion that it was not possible to seek a supervision order for an as yet unborn child.

2. The Court’s assessment
(het oordeel van het Hof)

88. The Court considers that the applicants’ complaints, firstly, that the failure of the Child Welfare Board to involve itself at an earlier stage in the proceedings led it to make a precipitate application to the Juvenile Judge and, secondly, that it acted on incomplete information with the result that it provided insufficient information to the Juvenile Judge, cannot be dissociated from the applicants’ broader complaint concerning their own lack of involvement in the decision-making process which culminated in the making of the provisional order on 4 January 1995. Given their interrelation it would be artificial to treat these various issues as distinct and unconnected.

89. For the Court, the essence of the applicants’ case is that they were at no stage prior to the making of the provisional order consulted about the concerns being expressed about them by health professionals or offered an opportunity to contest the reliability, relevance or sufficiency of the information being compiled on them. Furthermore,

although the Child Welfare Board only became actively involved in Kimberly’s case on 20 December 1994, it cannot be overlooked that the possible need for urgent action was being considered by public health professionals already in August 1994 (...) and that the Child Welfare Board had made recommen-dations in that month to the Leiden

University Hospital doctors on how to proceed (...).

90. Against this background, the Court recalls that its role is not to substitute itself for the domestic authorities in the exercise of their responsibilities in the field of the compulsory taking of children into public care, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation. The margin of appreciation so to be accorded to the competent national authorities will vary in the light of the nature of the issues and the seriousness of the interests at stake. While national authorities enjoy a wide margin of appreciation in assessing the necessity of taking a child into care, in particular where an emergency situation arises, the Court must still be satisfied in the circumstances of the case that there existed circumstances justifying such a measure. In this respect, it must have particular regard to whether, in the light of the case as a whole, the reasons adduced to justify the measure were relevant and sufficient such as to allow the conclusion to be drawn that it was ‘necessary in a democratic society’ (...).

91. The Court reiterates that whilst

Article 8 contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8 of the Convention. The applicable principle has been stated as follows (B versus the United Kingdom, 8 July 1987, Series A no. 121, § 65):

‘In the Court’s view, what (...) has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite

protection of their interests. If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as ‘necessary’ within the meaning of Article 8.’

92. It is essential that a parent be placed in a position where he or she may obtain access to information which is relied on by the authorities in taking measures of protective care or in taking decisions relevant to the care and custody of a child. Otherwise, the parent will be unable to participate effectively in the decision-making process or put forward in a fair or adequate manner those matters militating in favour of his or her ability to provide the child with proper care and protection (...).

93. The Court accepts that when action has to be taken to protect a child in an emergency, it may not always be possible, because of the urgency of the situation, to associate in the decision-making process those having custody of the child. Nor, as the Government point out, may it even be desirable, even if possible, to do so if those having custody of the child are seen as the source of an immediate threat to the child, since giving them prior warning would be

liable to deprive the measure of its effectiveness. The Court must however be satisfied that the national authorities were entitled to consider that there existed circumstances justifying the abrupt removal of the child from the care of its parents without any prior contact or consultation. In particular, it is for the respondent State to establish that a careful assessment of the impact of the proposed care measure on the parents and the child, as well as of the possible alternatives to the removal of the child from its family, was carried out prior to the implementation of a care measure (...).

94. Turning to the facts of the instant case, the Court reiterates that, irrespective of the Child Welfare Board’s

allegedly tardy involvement in the procedure, the doctors at Leiden University Hospital had been monitoring Kimberly’s situation as of August 1994 and were expressing real concern about Mrs V’s mental condition (...). It cannot be

overlooked that the Child Welfare Board advised the doctors at the Leiden University Hospital to discuss their

concerns with Mr and Mrs V (...). This advice was not followed up. The Court finds it surprising that the Child Welfare Board’s representative at the meeting held on 20 December 1994 to discuss Kimberly’s case did not renew this advice or ascertain whether the applicants had been consulted about the concerns being expressed about them (...). In the event, the Board obtained a joint report of the Leiden University Hospital and Curium on 2 January 1995. In response to questions put by the Board, a revised version was transmitted to it on 3 January 1995. This report concluded that Kimberly’s life was at risk and that urgent action was required. On the basis of this report, the Juvenile Judge decided on 4 January 1995 to issue provisional orders, valid until 11 January 1995, ordering Kimberly’s placement under supervision and away from her family. At no stage were the applicants asked to comment on the concerns about them or in any other way involved in the procedure.

95. It is to be further noted that on 20 December 1994 Kimberly was in hospital, where she remained until 6 January 1995. During this time she was thus in perfect safety. When the applicants came to collect Kimberly from the hospital on 6 January 1995, they were told that they were not allowed to take her home and that they were not allowed to see her. This must have come to them as a complete surprise as the hospital doctors, who had informed the Child Welfare Board of their analysis of Kimberly’s health situation, had not discussed this with her parents.

96. It has not been explained to the Court’s satisfaction why the doctors at the Leiden University Hospital or the Child Welfare Board could not have made arrangements to discuss their concerns with the applicants and to afford them an opportunity to dispel those concerns, if need be with reference to their own medical experts’ opinions. The Court is not persuaded by the opinion in the revised report sent by Curium to the Child Welfare Board on 3 January 1995 (see paragraph 21 above) that the applicants might have reacted unpredictably if the matter was discussed with them. In the Court’s opinion, this justification, while it may be relevant, cannot of itself be considered sufficient to exclude Kimberly’s parents from a procedure of immense personal importance to them, the less so having regard to the fact that Kimberly was in perfect safety in the days preceding the making of the provisional order. It would observe further that the failure in this case to involve the applicants in the investigative procedure before applying for the provisional order contrasts sharply with the procedure of consultation and information followed by the domestic authorities in the case (...) ‘P, C and S versus the United Kingdom’, where, arguably, there was more evidence of a threat posed to the welfare of the child (...).

97. It has been contended by the Government that, in view of the conclusions reached in the joint report of 3 January 1995 and in particular the perceived life-threatening situation for Kimberly and need for immediate urgent measures, the Child Welfare Board’s reliance on this report or the Juvenile Judge’s reaction in the form of provisional measures valid for eight days cannot be considered arbitrary or unreasonable or as overstepping the margin of appreciation enjoyed by them. However, it remains the case that the applicants were at no stage able to influence the outcome of the procedure by, for example, contesting the reliability of the information compiled in their case or adding information from their own sources to the file. It was not before 10 January 1995, when the hearing before the Juvenile Judge took place, that Kimberly’s parents could express their views. This was six days after the Juvenile Judge, on the basis of the untested fears of the Child Welfare Board, had issued the provisional supervision order and an order for Kimberley to be placed away from her family and four days after the Juvenile Judge had issued an order to have Kimberly placed in a foster home. Before Kimberly’s parents were heard and given a chance to dispute the validity of the Child Welfare Board’s fears, measures had already been taken which, because of their immediate impact and Kimberly’s age, were difficult to redress.

98. For the Court, it was crucial for the parents to be able to put forward at some stage before the making of the provisional order their own point of view. It notes that the report of the official inquiry indicated that the Child Welfare Board could ‘have displayed more creativity in seeking a solution that did more justice to the parents’ interests’ and that the Child Welfare Board’s advice to the Juvenile Judge might have been more complete (...). It further notes that the Court of Appeal observed that it would have been preferable to have involved the parents in the decision-making process at least at an earlier stage (...). The unjustified failure to allow them to participate in the decision-making process leading to the making of the provisional order denied them the requisite protection of their interests under Article 8 of the Convention including their right to challenge the necessity for the measure sought by the Child Welfare Board. That measure, it is to be noted, formed the basis of the regrettable separation of the applicants and their daughter for a period of five months and eighteen days.

99. In summary, the competent authorities presented the applicants with faits accomplis without sufficient justification. This is enough for the Court to find that there has been a violation of Article 8 of the Convention.
(...)

For these reasons, the Court unanimously holds that there has been a violation of Article 8 of the Convention

(...)

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