The European Court of Human Rights has ordered the UK to pay damages to a social worker who became aware of criticisms of her conduct only when a family court judge delivered an oral judgment at the end of a hearing.
The social worker went to the Court of Appeal, which found that the process by which the judge arrived at his criticisms was ‘manifestly unfair’ and set aside the adverse findings. However, in SW v United Kingdom, published yesterday, the Strasbourg court said the social worker suffered prejudice personally and professionally which the Court of Appeal’s judgment did not remedy.
The case stems from childcare proceedings in which the social worker was called as a professional witness. After the oral judgment was delivered but prior to it being finalised, the family court judge held a series of hearings which addressed submissions by the social worker. Some changes were made to the text, but the adverse findings remained and the decision not to grant her anonymity was maintained. The judge directed his judgment to be sent to the social worker's local authority employer and advised that it be shared with relevant professional bodies.
A psychiatrist reported that receiving the family court judge’s findings had been a ‘highly traumatic experience’ for the social worker, triggering post-traumatic stress disorder.
The ECtHR said: ‘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 UK state was ordered to pay the social worker €24,000 in respect of non-pecuniary damage and €60,000 in respect of costs and expenses.
The social worker was represented by Michael Oswald of Bhatt Murphy Solicitors.
Oswald told the Gazette: ‘While this judgment vindicates SW, she should have been able to look to the courts in this jurisdiction to remedy breaches of her fundamental rights. Section 9(3) of the Human Rights Act prevented her doing so. The government should act to remove that provision’s incompatibility with Article 13 to make effective remedy for all such breaches available in domestic courts.’