Strasbourg finds breach of Article 8 and 13 ECHR in connection with unfair treatment by a judge of a professional witness


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Strasbourg has today handed down judgment in SW v United Kingdom, a case brought by a social worker in relation to accusations of professional misconduct made by a family court judge after she gave evidence as a witness in Care Act proceedings.

Without giving the Appellant any advance notice of his criticisms or an opportunity to answer the allegations he went on to make against her, the judge had found the applicant was the principal instigator in a joint enterprise to obtain evidence to prove sexual abuse allegations, irrespective of the underlying truth and the relevant professional guidelines; that she had lied to the court; and that she had subjected one of the children involved to emotional abuse. These allegations fell entirely outside of the parameters of the case before the Family Court and had formed no part of any party’s cross-examination of her. The first time the Applicant became aware of these criticisms was when the Judge delivered an oral judgment and at the same time, directed it be sent to her employer and professional regulator. As a result, her employment was terminated with immediate effect and her professional regulator opened an investigation.

The Court of Appeal two years later found that the process conducted by the Family Court 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. The Court of Appeal  set aside the findings. However, 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 was unable to obtain just satisfaction – notwithstanding the loss of employment and the grave impact on her personally and professionally.

The European Court of Human Rights has today held that (a) the judge’s direction that his adverse findings be sent to the local authorities and relevant professional bodies without giving the applicant an opportunity to meet them in the course of the hearing interfered both unlawfully and disproportionately with her right to respect for her private life under Article 8 and (b) in violation of Article 13, the effect of section 9(3) of the Human Rights Act was that the applicant did not have access to an effective remedy at the national level to obtain appropriate relief in relation to the Article 8 violation.

Strasbourg awarded her €24,000 in non-pecuniary damage.

Dan Squires QC and Zoe McCallum acted for the Applicant, instructed by Michael Oswald of Bhatt Murphy.

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