(European Court of Human Rights; 2 December 2008)
Following a contact visit with the father, the grandmother discovered a bruise on the back of the 3 year-old child. The grandmother asked the child what had caused the bruise, and he replied that the father had punched him. The grandmother took the child to the doctor and reported the child's account to the doctor, who noted that the bruise was consistent with a punch. The doctor then reported an alleged assault to the child welfare authorities, notwithstanding the grandmother's objection to the making of a formal report. The father then complained to the police. The grandmother was charged, and eventually convicted, of defamation 'without better knowledge'; she was required to pay compensation, but not sentenced to a prison term. The grandmother complained that her conviction was a breach of her right to freedom of expression under European Convention on Human Rights, Art 10.
The question raised by the application was how to strike a proper balance when a parent was wrongly suspected of having abused his or her child, while protecting children at risk of significant harm. The starting point in this case was to note that the grandmother had acted properly in considering whether the bruise had been deliberately inflicted. When she consulted a doctor the doctor rightly decided to communicate to the child welfare authorities the suspicion that he personally had formed having examined and interviewed the boy. The seriousness of child abuse as a problem required that persons acting in good faith in what they believed were the best interests of the child should not be influenced by fear of being prosecuted or sued when deciding whether or when their doubts should be communicated to health care professionals or social services. The duty to the child in making these decisions should not be clouded by a risk of exposure to claims by a distressed parent if the suspicion of abuse proved unfounded. Any individual should be able to voice a suspicion of child abuse, formed in good faith, in the context of an appropriate reporting procedure, without the potential 'chilling effect' of a criminal conviction or an obligation to pay compensation. It had not been argued that the grandmother had acted recklessly, that is without caring whether the boy's allegation was well founded or not. There had been a violation of Art 10.