European Court of Human Rights allows social workers access to an effective remedy in UK domestic courts for the first time.

What has happened?

On 21st June 2021 in the first case of its kind the 4th section of the European Court of Human Rights in SW v United Kingdom[] decidedly ruled against the UK Government and in favour of a social worker who had been denied an effective remedy in the domestic courts in England and Wales under Article 13 of the European Convention on Human Rights and Fundamental Freedoms 1950[][].

The social worker was giving evidence in her capacity as a professional witness in childcare proceedings. []

Having amazingly having been silent and monosyllabic for the majority of the proceedings the UK family court judge from the initial trail became incessantly critical of the social worker's conduct and refused her anonymity. Shockingly the judge directed his judgment to be sent to the social worker's local authority employer and advised it to be distributed to professional bodies. Most disturbing of all as a result the social worker sustained post-traumatic stress disorder as a result of the judge's conduct as shown in a psychiatric report.[]

What does this mean for the legal profession?

The social worker appealed to the Court of Appeal in England and Wales which found that the process by which the family court judge arrived at his criticisms was in their words 'manifestly unfair' and proceeded to set aside the judge's finding against her.[]

Not content with this ruling by the Court of Appeal, the social worker decided to bring proceedings in the European Court of Human Rights which decided that the social worker suffered prejudice personally and professionally which the Court of Appeal's decision failed to remedy.[]

As there was no effective remedy in the UK jurisdiction the social worker's appeal to the European Court of Human Rights was resoundingly successful and in the landmark decision, the state was ordered to pay 24,000 euros relating to non-pecuniary damages and 60,000 euros in respect of costs and expenses to the social worker respectively. []

The case is best summed up by the European Court of Human Rights itself at paragraph 71. They said "the Court of Appeal did not afford the applicant appropriate and sufficient redress for her complaint under Article 8 of the European Convention on Human Rights and Fundamental Freedoms 1950. 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". []

How does this impact the legal profession?

The UK government recognised the difficult situation the applicant found herself in and accepted that the social worker would be unable to pursue a claim for damages under the Human Rights Act 1998. Their argument was that the prospects of success were very low which is why the judge may have lacked good faith.[]

The case will have potentially major implications for the legal profession as social workers and potentially similar professionals will be able to seek the oversight of the English and Welsh domestic courts to remedy breaches of their human rights.

Michael Oswald from Bhatt Murphy Solicitors argued that the problem the social worker faced was that Section 9(3) of the Human Rights Act 1998[] prevented her from claiming an effective domestic remedy. He then joined the campaign to remove section 9(3)'s[] incompatibility with Article 13 of the European Convention on Human Rights and Fundamental Freedoms 1950[] to ensure that such professionals can claim an effective remedy for all breaches of this type in the UK courts.

Written by Adam Green

¹ SW v United Kingdom [2021] (Application no. 87/18) S.W. v. THE UNITED KINGDOM (coe.int)

[²] Article 13 of the European Convention on Human Rights and Fundamental Freedoms 1950

[³] Fouzder, Monidipa – 23^rd June 2021 – Law Society Gazette

[⁴] Ibid

⁵ Ibid.

⁶ Ibid.

⁷ Ibid

⁸ Ibid.

⁹ Case of S.W. v The United Kingdom Application no. 87/18 - June 2021

¹0 Ibid.

¹1 Section 9(3) of the Human Rights Act 1998

¹2 Ibid.   

¹3 Article 13 of the Human Rights and Fundamental Freedoms 1950

¹ SW v United Kingdom [2021] (Application no. 87/18) S.W. v. THE UNITED KINGDOM (coe.int)

[²] Article 13 of the European Convention on Human Rights and Fundamental Freedoms 1950

[³] Fouzder, Monidipa – 23^rd June 2021 – Law Society Gazette

[⁴] Ibid

⁵ Ibid.

⁶ Ibid.

⁷ Ibid

⁸ Ibid.

⁹ Case of S.W. v The United Kingdom Application no. 87/18 - June 2021

¹0 Ibid.

¹1 Section 9(3) of the Human Rights Act 1998

¹2 Ibid.   

¹3 Article 13 of the Human Rights and Fundamental Freedoms 1950